Martinez, Alipio v. The State of Texas--Appeal from 183rd District Court of Harris County

Affirmed and Opinion filed May 16, 2002

Affirmed and Opinion filed May 16, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00409-CR

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ALIPIO MARTINEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris  County, Texas

Trial Court Cause No. 825,966

O P I N I O N

Appealing his conviction of possession with intent to manufacture or deliver a controlled substance, appellant Alipio Martinez contends the trial court improperly commented on the weight of the evidence and that the evidence is legally insufficient to support his conviction. We affirm.

I. Factual and Procedural Background

Houston Police Officer Stephen Robinson, acting on a strong suspicion of drug trafficking, set up surveillance at an apartment leased and occupied by appellant and Victor Cedano. After several months of surveillance, Officer Robinson called a marked unit to stop Cedano on a traffic violation so that he could speak with him. When Cedano failed to use his turn signal, a marked unit stopped him and Officer Robinson was called to the scene. When Officer Robinson asked Cedano about the apartment, Cedano initially denied living there. Later, however, he gave Officer Robinson written consent to search the apartment. He also consented to the search of the Acura automobile the police had seen appellant driving.

  Upon their search of the Acura, the officers discovered a hidden compartment commonly used to conceal controlled substances, but nothing else. The officers then took Cedano to the apartment. Upon arrival, Cedano inserted a key and made an unsuccessful attempt to open the door.[1] The officers knocked on the door and appellant answered. Upon request by the officers, appellant retrieved his identification from one of the bedrooms in the apartment.

  The officers, having previously obtained Cedano=s consent, searched the apartment and found several of appellant=s belongings in the room from which appellant had retrieved his identification. Among these items was a prayer book containing a math ledger. Other such ledgers were found throughout the apartment. When the officers searched Cedano=s bedroom, they recovered, among other things, a passport, $16,010 in cash wrapped in cellophane, and a blue notebook with a math ledger. Officer Richard Reeves testified that this amount in cash is the approximate price for a kilogram of cocaine. When the officers asked Cedano about the money, he initially denied knowledge of it; later, he stated that the cash was there when he moved into the apartment.

Houston Police Officer Gary Doyle also searched the apartment with the assistance of a trained dog. The results of this search yielded: (1) five bundles of cocaine and a .357 Ruger revolver, wrapped in cellophane inside a hidden compartment underneath the pantry; (2) two pressed bundles of cocaine in a cabinet above the refrigerator; (3) boric acid (commonly used to cut, or break down, the purity of the cocaine); (4) two cans of coffee (commonly used to mask the odor of cocaine); (5) a large roll of plastic bags; (6) a large roll of cellophane; (7) two rolls of tape and assorted rubber bands; (8) three small scales; (9) a kilo press (commonly used for blending cocaine); and (10) other drug paraphernalia. The officers also searched the trash outside the apartment and found drug-related items similar to those found in the apartment.

  Appellant was indicted with the felony offense of possession with the intent to manufacture or deliver of controlled substance, i.e., cocaine. See Tex. Health & Safety Code Ann. ' 481.112. Appellant pleaded not guilty. A jury found appellant guilty as charged and assessed punishment at forty years=confinement in the state penitentiary.

II. Legal Sufficiency

In his first point of error, appellant contends the evidence is legally insufficient because the State failed to affirmatively link appellant to the cocaine. Specifically, appellant alleges that the evidence is legally insufficient to show that he actually possessed the cocaine, an element of the offense. See id.

In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict. Weightman v. State, 975 S.W.2d 621, 624 (Tex. Crim. App. 1998); see also Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992). We must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). The jury, as the trier of fact, Ais the sole judge of the credibility of witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses= testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).

Under Texas law, a person may not be convicted for possession of a controlled substance unless the state shows the individual charged possessed the substance Aintentionally or knowingly.@ Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995) (en banc). This means that an accused must have (1) exercised actual care, control or custody of the substance; and (2) known that the substance was contraband. Id. at 747; see also Nunn v. State, 640 S.W.2d 304, 305 (Tex. Crim. App. 1982); Edwards v. State,807 S.W.2d 338, 339 (Tex. App.CHouston [14th Dist] 1991, pet ref=d). Mere presence at a place where drugs are being used or possessed by others does not justify a finding of joint possession, or prove that one is party to an offense. Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). Moreover, the fact that the accused is the lessee of the real property where narcotics are found is not enough to support a finding of joint possession if the property is also used by others. Guiton v. State, 742 S.W.2d 5, 8 (Tex. Crim. App. 1987). It does not matter whether the evidence is direct or circumstantial, but it must provide Aaffirmative links@between the accused and the contraband, i.e., facts and circumstances in addition to mere presence that raise a reasonable inference of the accused=s knowledge and control of the contraband. Hurtado v. State, 881 S.W.2d 738, 743 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d).

When the prosecution asserts that the accused and another person jointly possessed a narcotic drug, the evidence must affirmatively link the accused to the contraband. Martin, 753 S.W.2d at 387. The trier of fact must be able to conclude that the accused had knowledge of the contraband as well as control over it. Id. In determining whether the State has met its burden, we consider the following factors:

1) the accused=s presence when the search warrant was executed;

2) contraband in plain view;

3) the accused=s proximity to and the accessibility of the narcotic;

4) whether the accused was under the influence of narcotics when arrested;

5) the accused=s possession of other contraband, if any, when arrested;

6) the accused=s incriminating statements, if any, when arrested;

7) the accused=s attempted flight;

8) the accused=s furtive gestures;

9) presence of odor of the contraband;

10) presence of other contraband or drug paraphernalia, not included in the charge;

11) the accused=s ownership or right to possession of the place where the controlled substance was found; and

12) the place where the controlled substance was found was enclosed.

Brunson v. State, 750 S.W.2d 277, 280 (Tex. App.CHouston [14th Dist.] 1988, pet. ref=d). Affirmative links emerge from the combination of the above factors. The number of factors present is less important than the logical force the extant factors have in establishing the elements of the offense. Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.CHouston [14th Dist.] 1994, pet ref=d).

The evidence in the record reflects multiple affirmative links. The main factor that links appellant to the contraband is that it was found in an apartment he rented and occupied. See Moulden v. State, 576 S.W.2d 817 (Tex. Crim. App. 1978) (holding that evidence was sufficient where accused was the owner of the place where the contraband was found). Appellant was seen leaving and returning to the apartment on several occasions. The cocaine was found in several places easily accessible to appellant, and appellant was the only person present at the time the police arrived at the apartment to conduct the search. More importantly, a large quantity of the contraband was found in the kitchen, a place which appellant clearly used. Several bundles of cocaine were found in kitchen cabinets and drug paraphenila, such as scales, a kilo press, and plastic bags and tape, were found in plain view. In addition to the items found in the kitchen, the officers also found a prayer book containing a math ledger of the type commonly used for drug trafficking. In appellant=s bedroom they also found a passport, some cash, and several plane tickets to cities which maintain a high demand for cocaine. Although these items would not be incriminating if found alone, combined with all of the other evidence, they sufficiently link appellant to the cocaine located inside the apartment to establish his knowing and intentional possession of the narcotics.

Viewing the evidence in the light most favorable to the verdict, we find ample evidence from which the jury could have found, beyond a reasonable doubt, that appellant possessed the cocaine. Accordingly, the evidence is legally sufficient. We overrule appellant=s first point of error.

III. Comment on the Weight of the Evidence

In his second point of error, appellant contends the trial court improperly commented on the weight of evidence. The State counters that by failing to properly object to the trial court=s comment, appellant has waived any error. The State also contends that the trial court=s statement was not an improper comment on the weight of the evidence. We agree with the State.

During their deliberations, the jury sent the court a note requesting to examine one of the seized bags of cocaine so that they could smell the contents of the bag. The trial court responded to this rather unusual request, stating:

The Court: Okay . . . you want to explain exactly what you want to smell and whatBhow do you want to open this?

We=re just concerned about your personal safety and everything else dealing with this.

Appellant complains that the court=s last statement (italicized above) was an impermissible comment on the weight of the evidence.

Article 38.05 of the Texas Code of Criminal Procedure provides that a trial judge shall not comment on the weight of the evidence nor make Aany remark calculated to convey to the jury his opinion of the case.@ Tex. Code Crim. Proc. Ann. Art. 38.05 (Vernon 1979). However, absent fundamental error, when no objection is made at trial to the trial judge=s statements nor any request made to instruct the jury, nothing is presented for appellate review. Sharp v. State, 707 S.W.2d 611, 619 (Tex. Crim. App.1986); Cade v. State, 795 S.W.2d 43, 45 (Tex. App.CHouston [1st Dist.] 1990, pet. ref=d); McGee v. State, 689 S.W.2d 915, 919 (Tex. App.CHouston [14th Dist.] 1985, pet. ref=d); but see Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (plurality op.) (holding that if the trial court makes a comment on the weight of the evidence that constitutes fundamental error, then it is not necessary to object to preserve error). Because the alleged error is clearly not fundamental and because appellant failed to object, we find that appellant failed to preserve his complaint for appellate review. See Sanchez v. State, 434 S.W.2d 133 (Tex. Crim. App. 1968).

Even if appellant=s complaint had been preserved, we would find no reversible error. To constitute reversible error in violation of Article 38.05, the trial court=s comment must be such that it is reasonably calculated to prejudice the accused=s rights by injuring him or benefitting the State. Howard v. State, 420 S.W.2d 706, 707 (Tex. Crim. App. 1967); Collins v. State, 376 S.W.2d 354, 357 (Tex. Crim. App. 1964). The trial court=s comment was not a prejudicial comment on the evidence nor did it discredit appellant=s case, or imply that the trial court favored the State over appellant. The trial court was merely expressing concern for the jury=s safety in handling and sniffing a controlled substance that was part of the evidence in the case. Accordingly, we overrule appellant=s second point of error.

We affirm the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Opinion filed May 16, 2002.

Panel consists of Chief Justice Brister and Justices Anderson and Frost.

Do Not Publish C Tex. R. App. P. 47.3(b).

[1] Testimony by the officers at trial revealed that the officers used the same key Cedano used and were able to unlock the door without any difficulty.