Smith, James Otis v. The State of Texas--Appeal from 212th District Court of Galveston County

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Affirmed and Memorandum Opinion filed September 13, 2005

Affirmed and Memorandum Opinion filed September 13, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00267-CR

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JAMES OTIS SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Cause No. 02CR0941

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M E M O R A N D U M O P I N I O N


A jury convicted appellant, James Otis Smith, of possession of cocaine with intent to deliver and assessed punishment at eighty years= confinement. In seven issues, appellant contends (1) the trial court erred by denying his motion to suppress the cocaine and other evidence obtained as a result his arrest and invalid consent to search his vehicle, (2) the evidence is legally and factually insufficient to affirmatively link appellant to the cocaine, (3) the evidence is legally and factually insufficient to establish appellant=s knowledge of the unlawful nature of the cocaine, and (4) the evidence is legally and factually insufficient to establish appellant was aware of the unlawful nature of the cocaine, and his control over it, for a sufficient period of time to have been able to terminate his control. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.

I. Background

On April 30, 2002, Officers Todd Phillips and Robert Owens of the Galveston Police Department, narcotics division, were conducting surveillance at a convenience store located in an area known for drug trafficking.[1] The officers were positioned in an unmarked police car across the street from the store. They witnessed a gold Acura Legend pull quickly into the store parking lot and stop next to Terrance Hall, an individual known to the officers. An exchange took place between Hall and the front seat passenger. Hall then walked towards a female and made an exchange with her. Thereafter, Hall walked back to the Acura and handed money to the passenger.

After the exchange was completed, the occupants in the Acura drove away, and the officers followed. While following the Acura, the officers observed that the passenger was not wearing his seatbelt and also observed the driver fail to signal a turn. Officer Owens radioed for a marked patrol car to stop the Acura.

Before the stop was initiated, the driver of the Acura parked the vehicle, and both occupants exited. The officers witnessed appellant exit the driver=s side and an individual, later identified as Billy Moore, exit the front passenger side. As the officers pulled up behind the Acura and exited their unmarked vehicle, Officer Chris Force arrived in a marked patrol car. Officer Phillips instructed Officer Force to place appellant under arrest for failure to signal a turn, and appellant was handcuffed.


After appellant was handcuffed, Officer Phillips asked to see his driver=s license and proof of insurance. Appellant produced his driver=s license but indicated that his proof of insurance was in the glove compartment of the Acura. Appellant gave Officer Phillips verbal permission to enter the Acura to obtain his proof of insurance. While opening the glove box, Officer Phillips observed a beige rock, which appeared to be cocaine, on the front passenger side floorboard. The officers placed appellant in a patrol car and administered Miranda warnings. Officer Phillips then inventoried the Acura. In the center console, he found one plastic bag containing twelve rocks and another bag containing two rocks. He also found three razor blades in the driver=s door arm rest.

Minh Nguyen, a chemist at the Department of Public Safety crime lab, testified that he conducted two tests on each rock found in the Acura, and each rock tested positive for crack cocaine. The cocaine rocks were admitted into evidence.

II. Motion to Suppress

In his first issue, appellant contends that the trial court erred by denying his motion to suppress the cocaine and other evidence obtained as a result of his arrest and the search of the vehicle. The State argues that appellant did not preserve this issue for review.

To preserve error on a claim of an illegal search or seizure, the appellant must either obtain a ruling on a pretrial motion to suppress or object and obtain a ruling at trial. See Thomas v. State, 884 S.W.2d 215, 216 (Tex. App.CEl Paso 1994, pet. ref=d). A trial objection must be raised at the earliest possible opportunity or as soon as grounds for the objection become apparent. Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995); Thomas, 884 S.W.2d at 216. An objection is not timely if it is made after substantial testimony is given regarding the alleged illegally seized item. See Angelo v. State, 977 S.W.2d 169, 177 (Tex. App.CAustin 1998, pet. ref=d); Turner v. State, 642 S.W.2d 216, 217 (Tex. App.CHouston [14th Dist.] 1982, no pet.).


Here, appellant filed several pre-trial motions to suppress the evidence obtained as a result of his arrest and the search of his vehicle. A pre-trial suppression hearing was held. However, the suppression hearing was not completed and was never rescheduled.[2] Thus, appellant failed to obtain a pre-trial ruling on his motions.

Having failed to obtain a pre-trial ruling, it was incumbent on appellant to timely object during trial. See Thomas, 884 S.W.2d at 216. The record reflects that appellant did object when the crack cocaine rocks were offered into evidence. However, by that time, Officers Phillips and Owens had given substantial testimony regarding the beige rocks that were discovered in the Acura.[3] Additionally, Minh Nguyen had testified without objection that the beige rocks discovered in the Acura tested positive for cocaine. By failing to timely object to this testimony, appellant failed to preserve error regarding the trial court=s admission of the crack cocaine rocks.

The record reflects that appellant did timely object to Officer Phillips= testimony regarding the three razor blades discovered in the Acura and also objected when the razor blades were offered into evidence. However, Officer Owens subsequently testified without objection that three razor blades were discovered inside the Acura. It is well settled that overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). Therefore, any error in the admission of the razor blades was rendered harmless due to Officer Owens= unobjected-to testimony regarding the razor blades.


We overrule appellant=s first issue.

III. Sufficiency of the Evidence

In his second through seventh issues, appellant contends that the evidence is legally and factually insufficient to (1) affirmatively link appellant to the cocaine, (2) establish appellant=s knowledge of the unlawful nature of the cocaine, and (3) establish that appellant was aware of the unlawful nature of the cocaine, and his control over it, for a sufficient period of time to have the opportunity to terminate his control.

A. Standard of Review

When reviewing legal sufficiency of evidence, we view the evidence in the light most favorable to the verdict and determine if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). Thus, 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).


In contrast, when reviewing factual sufficiency of evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). The evidence may be factually insufficient in two ways. Id. First, when considered alone, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting and contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484B85.

B. Applicable Law

To support a conviction for unlawful possession of a controlled substance, the State must prove that the defendant (1) exercised actual control, management, or care over the substance, and (2) knew what he possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). An offense is committed only if a person voluntarily engages in conduct, including an act, an omission, or possession. Tex. Pen. Code Ann. ' 6.01(a) (Vernon 2003). Possession is voluntary Aif 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 the defendant does not have exclusive control of the place where the police recovered the contraband, it cannot be concluded that the defendant had knowledge of, and control over, the contraband unless there are additional facts and circumstances that affirmatively link the defendant to the contraband. Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981). An affirmative link generates a reasonable inference that the defendant knew of the contraband=s existence and exercised control over it. See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). Circumstances that may affirmatively link the defendant to the contraband include, but are not limited to: (1) presence when the search was executed; (2) contraband in plain view; (3) proximity to and accessability of the contraband; (4) defendant under the influence of the contraband; (5) defendant=s possession of other contraband when arrested; (6) defendant=s incriminating statements when arrested; (7) attempted flight; (8) furtive gestures; (9) odor of the contraband; (10) presence of other contraband or drug paraphernalia not included in the charge; (11) defendant=s ownership or right of possession of the place where the controlled substance was found; and (12) drugs found in an enclosed place. De la Garza v. State, 898 S.W.2d 376, 379 (Tex. App.CSan Antonio 1995, no pet.). Because each case is fact specific, the number of factors present is not as important as the Alogical force@ to which the factors, alone or in combination, tend to affirmatively link the defendant to the contraband. Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d)

C. Analysis

In support of his legal and factual insufficiency arguments, appellant relies on the following: (1) Officer Phillips admitted that when he first observed what he believed to be a drug transaction between the passenger of the Acura and a pedestrian, he could not determine whether appellant was the driver of the Acura; (2) appellant did not say or do anything to indicate that he knew the cocaine was present in the Acura; and (3) none of the State=s witnesses observed appellant exercising control over the cocaine. Nonetheless, the evidence establishes several affirmative links that raise reasonable inferences supporting the State=s contention that appellant had knowledge of and control over the cocaine found in the Acura.


Although Officer Phillips testified that he could not determine whether appellant was the driver of the Acura during the drug transaction, Officer Phillips was able to identify appellant as the person who exited the driver=s seat of the Acura shortly after the drug transaction. Thus, the jury could have reasonably inferred that appellant was the driver of the Acura during the drug transaction. Furthermore, shortly after the drug transaction, the officers discovered one cocaine rock in plain view on the front passenger floor of the Acura. See De la Garza, 898 S.W.2d at 379 (concluding that contraband in plain view is a factor that affirmatively links a defendant to the contraband). Additionally, appellant had easy access to the crack cocaine found in the center console as well as the razor blades[4] found in the driver=s door armrest. See Gilbert, 874 S.W.2d at 298 (concluding cocaine found inside truck, located below or conveniently near where the defendant had been sitting, affirmatively linked the defendant to cocaine); see also De la Garza, 898 S.W.2d at 379 (concluding that presence of drug paraphernalia is a factor that affirmatively links the defendant to the contraband).

Viewing the evidence in a light most favorable to the verdict, we conclude that a rational jury could have concluded beyond a reasonable doubt that appellant voluntarily possessed the cocaine. Moreover, viewing the evidence in a neutral light, we cannot say the evidence of guilt is too weak to support a finding beyond a reasonable doubt that appellant voluntarily possessed the cocaine or that the contrary evidence is so strong the beyond a reasonable doubt standard could not have been met. Accordingly, we hold that the evidence is legally and factually sufficient to support appellant=s conviction. We overrule appellant=s second through seventh issues.

The judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed September 13, 2005.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).


[1] At the time of trial, Officer Phillips was a Texas State Trooper.

[2] The record reflects that appellant=s trial counsel asked several times to reschedule the suppression hearing before trial. However, there is nothing in the record to show that the trial court refused to reschedule the suppression hearing or rule on appellant=s motions.

[3] Officers Phillips and Owens both testified that based on their experience and training, they believed the beige rock discovered on the floorboard of the Acura to be cocaine. Further, Officer Owens testified that based on his experience and training, he believed the beige rocks found in one of the plastic bags to be cocaine.

[4] Officer Phillips testified that razor blades are associated with narcotics activities. They are used to cut the crack cocaine rocks into smaller pieces for sale on the street.