MACKIE RAY WHITE, Appellant v. THE STATE OF TEXAS, Appellee

REVERSE and REMAND; Opinion Filed May 10, 2010.
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00241-CR
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MACKIE RAY WHITE, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F05-58394-QMY
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OPINION
Before Justices Moseley, FitzGerald, and Lang-Miers
Opinion By Justice Moseley
        A jury convicted Mackie Ray White of unlawful possession of a firearm by a felon and assessed punishment at six years' confinement. In two points of error, White contends (1) the trial court erred by denying his motion to suppress evidence, and (2) the evidence is factually insufficient to prove he possessed the firearm.
        After reviewing the evidence under the appropriate standards, we conclude the evidence is factually insufficient to prove White possessed the firearm. Because the issue is likely to arise again on remand, we also address White's first point and conclude the trial court did not err by denying the motion to suppress. Accordingly, we reverse the trial court's judgment and remand for further proceedings.
Factual Sufficiency
        White's second point of error challenges the factual sufficiency of the evidence to prove he possessed the firearm.   See Footnote 1  In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light and ask whether the fact finder was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case on a factual sufficiency challenge, the appellate court must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the jury's verdict. Id. at 417. Evidence can be factually insufficient if either the supporting evidence is so weak that the verdict seems clearly wrong and manifestly unjust, or the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so that the verdict is clearly wrong and manifestly unjust. Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008).
        When an individual is charged with unlawful possession of a controlled substance or a firearm, the State must prove the accused: (a) exercised care, custody, control, or management over the contraband or firearm; and (b) knew the matter was contraband or a firearm. See Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). If the accused is not in exclusive possession of the area where the contraband or firearm is found, the evidence must link the accused to the contraband or weapon. See Evans, 202 S.W.3d at 162; Poindexter, 153 S.W.3d at 406.
        Mere presence at the location where the contraband was found is not sufficient, by itself, to establish actual care, custody or control of the contraband. “However, presence or proximity, when combined with other evidence, either direct or circumstantial (e.g., 'links'), may well be sufficient to establish that element beyond a reasonable doubt.” Evans, 202 S.W.3d at 162. There is no set formula to determine what links are sufficient and the number of links present is not as important as the “logical force” or degree to which the factors, alone or in combination, tend to link the accused to the contraband or weapon. See Porter v. State, 873 S.W.2d 729, 732 (Tex. App.-Dallas 1994, pet. ref'd). Some factors that may establish the link include: (1) whether the contraband or weapon was in plain view or found on the accused; (2) the accused's proximity and accessibility to the weapon or contraband; (3) whether the accused owned or controlled the place where the contraband or weapon was found; (4) whether the accused made any incriminating statements; (5) whether the accused tried to flee; and (6) whether the accused made furtive gestures. See Evans, 202 S.W.3d at 162 n.12; Poindexter, 153 S.W.3d at 409-12. It is the logical force of the factors present, not the absence of factors found in other cases, that must be evaluated in the sufficiency review. See Edwards v. State, 178 S.W.3d 139, 144 (Tex. App.-Houston [1st Dist.] 2005, no pet.).
        The record contains evidence that in the fall of 2005, Dallas police were engaged in an operation to suppress crime during the State Fair in the area near Fair Park. Officer Ashley Smith testified she and other officers were at a car wash near the park on October 14, 2005. The car wash was a good location to obtain information about drug trafficking. Around 2:00 a.m., an unnamed person at the car wash told officers that drugs were being sold at a nearby house. Smith was familiar with the house and police had been there before investigating reports of drug sales. Smith and the other officers planned to walk up to the house from behind and observe what was happening in front of the house on the porch.
        Six officers approached the house from the rear. Smith was behind two other officers. The lights were on inside the house and two men were on the front porch. When the first officer jumped onto the porch, one of the men started running away and two of the officers ran after him. Smith thought they had interrupted a drug transaction. She jumped onto the porch, saw White standing in front of the door and took him into protective custody.
        Through the open door, Smith saw a coffee table inside the house with a silver revolver on it within reach of the door. The butt of the gun was pointing toward the door so that anyone coming inside could quickly grab it. Smith and another officer entered the house to secure the gun and sweep for other persons who might try to use the weapon against the officers. Police did not find anyone inside the house and did not apprehend the man who ran away. Smith found two other weapons on the coffee table, and later saw a shotgun under a couch. Police also found ammunition in the house. No drugs were found in the house or on White. A check for warrants and criminal history showed an active warrant for White and he was arrested on that warrant. There was evidence that at the time of his arrest, White was under supervision for his parole on a prior felony conviction for drug possession.
        Smith also testified that she found a prescription bottle in one of the bedrooms with White's name on it. White confirmed it was his. Smith did not think the prescription bottle was relevant at the time and did not seize it or mention it in her police report.
        White called several witnesses in his defense. Judson Hoover testified White managed and collected rent for several properties Hoover owned, including the house where White was arrested. White was in the process of buying that property from Hoover and acquired title sometime in November 2005. To Hoover's knowledge, White never lived at the house and Hoover understood the property was leased to Jared Hubbard.
        Hubbard testified he lived at the house at the time of the arrest and paid rent to White or sometimes to Hoover. Hubbard claimed the firearms seized from the house belonged to him and he bought them on the street. He said none of the firearms were visible from the front door of the house.         Hubbard testified he, Christopher Hawkins, Nakeisha Phillips, Brittany Newhouse, and White were at the house that night. Hubbard, Phillips, and Hawkins had smoked marijuana earlier that night and were getting ready to leave for a club when the police arrived. Hawkins was on the front porch, White was near the front door, and Newshouse was asleep in a bedroom off of the main room. On cross-examination, Hubbard admitted he sold narcotics out of the house and was arrested for selling cocaine at the house about a year after White's arrest.
        Hawkins, Newhouse, and Phillips testified that they were at the house with Hubbard and White the night police arrested White. They also testified that Hubbard lived at the house and rented it from White. They agreed White did not live there. All three testified White was in the bedroom where Newhouse was when police arrived. Newhouse was pregnant at the time of the arrest, probably with White's child. She said she never lived at the house, but stayed there sometimes. Sometime before the arrest, she called police because she had some “stuff” in the house and someone broke into the house and ransacked it. Neither she nor Hawkins remembered seeing any of the firearms that were seized from the house. Phillips remembered the shotgun because Hubbard showed it to her after he bought it, but she did not know about the handguns.
        The State called officer Otha Hampton on rebuttal to testify that she met White and Newhouse at the house in September 2005 to investigate a criminal mischief complaint. Hampton did not enter the house, but White said he owned the house and Hampton had the impression he lived there.
        White argues that other than his mere presence at the house, the evidence is insufficient to link him to possession of the firearm at the time it was seized. He argues it is undisputed that Hubbard owned all the firearms and all the defense witnesses testified Hubbard lived at the house and rented it from White.         The State points to the conflicting evidence about who was present when the police arrested White. Police testified only White and the man who ran away were on the porch when police arrived; no one was found in the house. Four defense witnesses testified they were inside the house along with White when the police entered the house. Resolution of this conflict in favor of the State, however, does not show a link between White and the firearm-he was found on the porch while the firearm was inside the house. Even if White was inside the house, he was not in exclusive possession of the house according to the defense witnesses.
        The State also argues the firearm was in plain view from the porch, but according to the State, the firearm was inside the house and White was outside on the porch. While there was some proximity between White and the firearm, the same can be said for the man who ran away. (The flight factor in fact points toward the man who ran away from police rather than to White.) Further, evidence that drug sales were attributed to the house and guns are commonly associated with drugs does not seem to connect White to the firearm. No drugs were found in the house, police testified they did not seek a search warrant for drugs after White's arrest, and White was not charged with a drug offense.
        The State argues the prescription bottle found inside a bedroom with White's name on it connected White to the firearm. Again the logical force of this circumstantial evidence is not strong; the bottle was found in a bedroom and the firearm was on a coffee table in the front room or another room visible from the front door. The presence of the prescription bottle may tend to connect White to the house, along with the evidence he collected rent at the house, but does not show his connection to the firearm was anything more than fortuitous. Common sense indicates a person “may jointly possess property like a house but not necessarily jointly possess the contraband found in that house.” Poindexter, 153 S.W.3d at 406. Here, nothing more connects White to the firearm. The evidence indicates White did not try to flee from police, did not make any incriminating statements, and did not make any furtive gestures.
        The contrary evidence was strong that White did not live at the house and only collected the rent. On rebuttal, Hampton testified White claimed ownership of the house and said he lived there about a month before the arrest, but she admitted the possibility she could have misconstrued his statement of ownership to be a statement that he lived there. In contrast, the defense witnesses testified Hubbard lived there at the time of the arrest and Hubbard claimed ownership of the firearms and ammunition seized from the house.
        After reviewing all the evidence in a neutral light, we conclude the evidence is too weak to support, and the evidence greatly preponderates against, a finding beyond a reasonable doubt that White possessed or exercised custody or control of the firearm. Accordingly, the evidence is factually insufficient to support the jury's verdict. We sustain White's second point of error.
Motion to Suppress
        White's first point of error challenges the trial court's denial of his motion to suppress evidence. Because this issue is likely to arise again in the event of a retrial and the parties have thoroughly briefed it, we address it in the interest of judicial economy and in the interest of justice. See Sparks v. State, 68 S.W.3d 6, 12 (Tex. App.-Dallas 2001, pet. ref'd) (addressing charge-error complaint in the interest of judicial economy after sustaining Batson complaint), abrogated in part on other grounds by Guzman v. State, 85 S.W.3d 242 (Tex. Crim. App. 2002); see also Ramirez v. State, 815 S.W.2d 636, 640 (Tex. Crim. App. 1991).
        White argues the trial court erred by denying his motion to suppress the firearms because police did not have probable cause to search the residence. The State argues probable cause was not necessary because officers can approach a public place like the front porch of the house without reasonable suspicion or probable cause. Once lawfully on the porch, police had reasonable suspicion sufficient to justify their entry to seize a weapon in plain view in order to protect their safety while they investigated.
        On appeal, the State also argues White did not have a reasonable expectation of privacy in the house and thus he lacked standing to complain about the seizure of the firearms. However, at the beginning of the suppression hearing, the State withdrew its request that White establish his standing and conceded he would be able to prove standing. The prosecutor stated, “we would like to a be able to provide testimony that will establish standing and we would remove our defense to their motion on that ground. We will concede that they would be able to prove standing.” The prosecutor said appraisal records show that White paid taxes on the house. We conclude the State formally waived its contention that White lacked standing and conceded the facts necessary to show standing at the suppression hearing. See Kothe v. State, 152 S.W.3d 54, 60 (Tex. Crim. App. 2004) (appellate court may conclude State forfeited standing argument by failing to raise it before trial court); Velez v. State, 240 S.W.3d 261, 264-65 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd) (State bound by stipulation in trial court that defendant had standing).
        The Fourth Amendment protects against unreasonable searches and seizures. U. S. Const. Amend. IV; Minnesota v. Carter, 525 U.S. 83, 88 (1998); Walter v. State, 28 S.W.3d 538, 540-41 (Tex. Crim. App. 2000). An officer may briefly detain a person for investigative purposes if, under the totality of the circumstances, the officer has reasonable suspicion supported by facts that the person detained is, has been, or soon will be engaged in criminal activity. Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). Furthermore, a police officer is permitted to approach a citizen without probable cause or reasonable suspicion to ask questions, ask to examine identification, or even ask for consent to search. See Florida v. Bostick, 501 U.S. 429, 434 (1991); Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997). Indeed, police have the same right as any other person to enter onto residential property and walk up to the front door. Cornealius v. State, 900 S.W.2d 731, 733-34 (Tex. Crim. App. 1995).
        Information from an informant that exhibits sufficient indicia of reliability may provide the reasonable suspicion necessary to justify an investigatory detention. Roy v. State, 90 S.W.3d 720, 723 (Tex. Crim. App. 2002) (citing Alabama v. White, 496 U.S. 325, 326-27 (1990)). If the informant describes in detail the criminal activity, along with a statement that the event was observed firsthand, the information exhibits sufficient indicia of reliability. Brother v. State, 166 S.W.3d 255, 257-59 (Tex. Crim. App. 2005).
        Whether a specific search or seizure was reasonable is a mixed question of law and fact and is reviewed de novo. Kothe v. State, 152 S.W.3d 54, 62-63 (Tex. Crim. App. 2004). We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). We give almost total deference to the trial court's determination of historical facts and review de novo the trial court's application of law to the facts. See State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review the record to determine whether the trial court's ruling is supported by the record and correct under some theory of law applicable to the case. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).
        The evidence at the suppression hearing was similar to that later presented at trial. Smith did not believe she had probable cause to arrest anyone based on the information from the informant about drug sales at the house, therefore she planned to approach the house and attempt a “knock and talk” with the persons there.         Smith testified she stopped White as he was moving toward the front door. Smith said the door to the house was open and a large, grated-metal door was propped open; she had an unobstructed view inside the house. She saw a coffee table about three feet from the door and a silver revolver was on the coffee table. She handed White off to another officer, and entered the house to secure the weapon. Smith was not aware of any criminal history for White when she saw the guns in the house.
        White presented evidence from Hawkins, Phillips, and Newhouse that they and Hubbard were present in the house when police arrested White. They testified some of them had been smoking marijuana that night and the police came in the house with guns drawn and told everyone to get down on the ground. White was inside the house in a bedroom when the police came in. They agreed Hubbard was leasing the house from White at the time of the arrest. They also testified they were familiar with the furniture and layout of the house and the coffee table was in a back room and could not be seen from the front door.
        The trial court stated that he found the police officers credible and did not credit the testimony of the defense witnesses. The trial court denied the motion to suppress and found the presence of the gun and the possibility that other persons were inside the house who could have used the gun against the officers created exigent circumstances justifying the entry and seizure of the weapons.
        White argues the anonymous tip did not establish probable cause to enter the house. The State counters that the officers had sufficient information to initiate an investigation of the tip they received and the exigent circumstances created by the presence of the gun and the danger to the officers while they continued their investigation rendered the entry and seizure of the weapon reasonable.         Although the anonymous tip did not alone establish probable cause, it did provide information justifying further investigation. See Brother, 166 S.W.3d at 258 n.2. The “knock and talk” is a reasonable police procedure. See United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001). As the officers approached the porch of the house, one of the two men on the porch ran from the officers. At that point, Smith saw a firearm in plain view just inside the house. See Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000) (“[T]he 'plain view' doctrine requires only that: (1) law enforcement officials have a right to be where they are, and (2) it be immediately apparent that the item seized constitutes evidence, that is, there is probable cause to associate the item with criminal activity.”); cf. Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009) (seizure of object under plain view exception is lawful if law enforcement officials are lawfully where object can be plainly viewed, incriminating character of object is immediately apparent, and officials have right to access object).
        The presence of a firearm nearby created a safety risk to the officers as they continued their investigation, including the possibility that others were in the house or the man who fled would return and try to use the weapon against the officers. See Jones, 239 F.3d at 720 (“A firearm that is located a short distance from an occupant in a residence likely containing illegal narcotics presents an obvious safety risk to law enforcement officers.”); Griffin v. State, 215 S.W.3d 403, 409 (Tex. Crim. App. 2006) (objectively reasonable for police to believe seller of narcotics might be armed). While there was conflicting evidence whether the coffee table was visible from the porch of the house, the trial court resolved the conflict in favor of the police testimony the table and the firearm were in plain view from the porch. We defer to this finding of historical fact. Carmouche, 10 S.W.3d at 327.
        While the firearm may not have been contraband, it posed a danger to the officers and the temporary seizure of the firearm was not unreasonable. See Terry, 392 U.S. at 27 (officer may perform search for weapons if he is justified in believing a suspect might be armed); O'Hara v. State, 27 S.W.3d 548, 550 (Tex. Crim. App. 2000) (“It would be unreasonable to deny a police officer the right to neutralize the threat of physical harm.”); See also United States v. Bishop, 338 F.3d 623, 626-28 (6th Cir. 2003) (citing cases interpreting Terry as permitting police officers to seize a weapon found in plain view that is not obvious contraband if they reasonably believe that seizure is necessary to protect officer or public safety). Based on the record at the suppression hearing, it was reasonable for the officers to believe the firearm posed an immediate threat to their safety.
        We conclude under the totality of the circumstances shown at the suppression hearing, that the seizure of the firearms and ammunition found in plain view while the police were investigating the report of drug activities was reasonable. We overrule White's first point of error.
Conclusion
        We reverse the trial court's judgment and remand this case for further proceedings.
 
 
        
 
 
 
 
 
 
 
 
 
        
 
 
 
 
 
JIM MOSELEY
 
 
 
        
 
 
 
 
 
JUSTICE
 
 
 
Do Not Publish
Tex. R. App. P. 47.2(b)
080241F.U05
 
 
Footnote 1         White does not challenge the legal sufficiency of the evidence under the Jackson v. Virginia, 443 U.S. 307, 319 (1979), standard.