Mark Leonard Prater v. The State of Texas--Appeal from 337th District Court of Harris County

Opinion issued October 27, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00862-CR

__________

MARK LEONARD PRATER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 967574

MEMORANDUM OPINION

A jury found appellant, Mark Leonard Prater, guilty of possession with intent to deliver more than four and less than 200 grams of cocaine. After finding one enhancement paragraph true, the jury assessed punishment at 22 years confinement. In two points of error, appellant contends that (1) the trial court erred in denying his motion to suppress and (2) the evidence is legally insufficient to support the verdict. We reverse and remand the cause for a new trial.

Motion to Suppress

In point of error one, appellant argues that the trial court erred in denying his motion to suppress because the arrest and search were not supported by probable cause or pursuant to a valid warrant. Appellant filed a motion to suppress alleging that he was arrested without a valid warrant and/or probable cause and exigent circumstances in violation of his rights as guaranteed by U.S. Const. amend IV, XIV and Tex. Const. art. 1, sec. 9.

A trial court s ruling on a motion to suppress evidence will not be set aside unless there is an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Spight v. State, 76 S.W.3d 761, 765 (Tex. App. Houston [1st Dist.] 2002, no pet.). We will afford almost total deference to a trial court s determination of facts supported by the record, especially when the findings are based on the evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Spight, 76 S.W.3d at 765. The appellate courts may review de novo mixed questions of law and fact not falling within this category. Guzman, 955 S.W.2d at 89.

During the motion to suppress, Houston Police Department Sergeant Diana Poor testified that, on November 8, 2003, she was stopped at a traffic light and decided to run the license plates of the cars around her. When she checked on the license plate of the Cadillac in front of her, the computer indicated that there were city warrants. // The computer described that the warrant was for a black male named Mark Prater.

Sergeant Poor testified that, once she saw that the driver was a black male, she pulled the Cadillac over and asked the driver if he was Mark Prater. When he answered that he was, Sergeant Poor took him into custody and put him in the back of her patrol car. There was no one else in the car. She transferred him to another patrol car, and appellant s car was inventoried before it was towed from the scene. Houston Police Department Sergeant Herberto Hernandez testified that he opened the front passenger door of the Cadillac to conduct the inventory and noticed a plaid flannel jacket bunched up in the middle of the seat. He picked it up, and a clear white bag of white substance fell out of the front pocket. The powdery substance field tested positive for cocaine. Sergeant Hernandez testified that he followed policy by towing the car from the scene.

Appellant complains that the state failed to produce any warrants or testimony supplying the underlying probable cause for appellant s arrest.

When the State seeks to justify an arrest on the basis of an arrest warrant, it must produce both the warrant and the supporting affidavit in the trial court at the time of the justification of the arrest. Etheridge v. State, 903 S.W.2d 1, 19 (Tex. Crim. App. 1994). This requirement is imposed so that the trial court may inspect the documents and determine whether probable cause existed and ensure that the arrestee s rights have been fully protected. Garrett v. State, 791 S.W.2d 137, 140 (Tex. Crim. App. 1990). In Garrett, the State failed to produce a supporting affidavit to support Garrett s arrest warrant for parole violation, but the parole case worker testified at the suppression hearing. The Court of Criminal Appeals wrote:

Since the parole case worker was called and was subject to cross examination, appellant was not deprived of the opportunity to inquire regarding the basis for the warrant. The trial court was given the opportunity to determine whether the warrant was supported by a reasonable belief, and appellant s rights were protected.

Id. at 141.

Here, the State failed to produce any evidence relating to the veracity of the warrants. Neither the actual warrants nor the supporting affidavits were produced. There was no evidence introduced that explained the basis for the warrant; therefore, the trial court was not given an opportunity to determine whether the warrant was supported by a reasonable belief. See id.

Accordingly, we hold that the trial court abused its discretion by denying appellant s motion to suppress.

We sustain point of error one.

Sufficiency

In point of error two, appellant contends that the evidence was legally insufficient to sustain his conviction because the evidence failed to affirmatively link appellant to the confiscated bag of cocaine.

In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004). An appellate court must consider all evidence actually admitted, even evidence improperly admitted at trial, in its sufficiency review and give it whatever weight and probative value it could rationally convey to a jury. Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004).

Possession means actual care, custody, control, or management. See Tex. Health & Safety Code Ann. 481.002 (38) (Vernon 2003). A person commits a possession offense only if he voluntarily possesses the prohibited item. Tex. Pen. Code Ann. 6.01(a) (Vernon 2003). Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control. Id. 6.01(b). When a defendant s possession of contraband is not exclusive, the State may prove knowing possession by evidence affirmatively linking the defendant to the contraband. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). An affirmative link may be established through direct or circumstantial evidence. Id. Some non-exhaustive factors that may affect the determination of an affirmative link include whether the contraband was (1) in a car driven by the accused, (2) in a place owned by the accused, (3) conveniently accessible to the accused, (4) in plain view, or (5) found in an enclosed space. Powell v. State, 112 S.W.3d 642, 644 45 (Tex. App. Houston [1st Dist.] 2003, pet. ref d). Courts have also considered an accused s affirmative statement connecting him to the contraband. See Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App. Houston [1st Dist.] 1994, pet. ref d).

The evidence presented at trial established that the cocaine was (1) found in a car driven by appellant, (2) conveniently accessible to the accused, and (3) in an enclosed space. See id. We hold that the evidence was legally sufficient to support the conviction.

We overrule point of error two.

Conclusion

We reverse the trial court s order denying the motion to suppress and remand the cause for a new trial.

George C. Hanks, Jr.

Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).