Rene Moncada v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-06-00207-CR

Rene MONCADA,

Appellant

v.

The STATE of Texas ,

Appellee

From the 186th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CR-3591

Honorable Pat Priest , Judge Presiding

Opinion by: Rebecca Simmons , Justice

Sitting: Sandee Bryan Marion , Justice

Phylis J. Speedlin , Justice

Rebecca Simmons , Justice

Delivered and Filed: December 13, 2006

AFFIRMED

Appellant Rene Moncada was convicted on October 12, 2004, of failure to register as a sex offender. The trial court assessed punishment at five years confinement in the Institutional Division of the Texas Department of Criminal Justice but the sentence was suspended and Moncada was placed on community supervision.

On February 22, 2006, the State filed its second Motion to Revoke Community Supervision, alleging possession with intent to deliver cocaine, associating with a person of harmful or disreputable character, failure to maintain lawful employment and failure to pay supervision fees. At the hearing on March 15, 2006, Moncada entered a plea of not true to each of the allegations. The trial court revoked Moncada's community supervision, finding that Moncada judicially confessed to possession of cocaine and the court sentenced him to five years confinement in the Institutional Division of the Texas Department of Criminal Justice. In his sole issue on appeal, Moncada claims the trial court abused its discretion in revoking his community supervision and sentencing him to confinement. Because the trial court's decision is supported by a preponderance of the evidence, we affirm the judgment.

Factual Background

Appellant Rene Moncada was convicted of indecency with a child and as a condition of his parole, Moncada was required to maintain annual sex offender registration for life. Moncada failed to comply with the registration requirements, and on May 21, 2003, was indicted by a Bexar County grand jury for the offense of failure to register as a sex offender. Following Moncada's plea of guilty under a plea-bargain agreement, the trial court granted probation for five years.

In February of 2006, two Bexar County Probation Officers and two San Antonio Police Officers conducted surveillance outside of the apartment that Moncada shared with his father. The officers observed Francisco Alvarez enter the apartment. The officers followed and obtained consent to enter the residence. Upon inquiry, Moncada indicated that he and his father were the only individuals present in the apartment. After receiving further verbal consent to search, the officers located Alvarez in the rear bathroom and, among a stack of towels, the officers discovered several individually wrapped packages of cocaine weighing approximately 4.312 grams. Additional cocaine was discovered on Moncada's person and a cigarette package containing approximately 4.474 grams of the same type of individually packaged cocaine was removed from Moncada's closet.

The State filed a motion to revoke Moncada's community supervision alleging technical violations and possession with intent to deliver cocaine. At the hearing, Moncada entered a plea of not true. The trial court determined that Moncada had violated the terms and conditions of supervision, revoked his community supervision and imposed the original sentence of five years confinement. Moncada urges that the evidence does not support the trial court's finding that he violated the conditions of supervision.

Standard of Review

The decision to revoke community supervision is at the discretion of the trial court. See Tex. Crim. Proc. Ann. art. 42.12, 21 (Vernon 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); Rickels v. State, 202 S.W.3d 759, 763-64 (Tex. Crim. App. 2006). The State's allegations in a motion to revoke must be proved by a preponderance of the evidence; in other words, if the greater weight of the credible evidence creates a reasonable belief that the defendant has violated a condition of his community supervision, the trial court did not abuse its discretion and its order of revocation must be upheld. See Rickels, 202 S.W.3d at 763-64; Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974); Cardona, 665 S.W.2d at 493-94. Importantly, the State need only prove one allegation to revoke a defendant's community supervision. Canseco v. State, 199 S.W.3d 437, 439 (Tex. App.--Houston [1st Dist.] 2006, pet. filed); Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980).

Analysis

When an accused is charged with unlawful possession of a controlled substance with intent to distribute, the prosecution must prove: 1) that the accused exercised care, control and management over the contraband; 2) that the accused knew the matter possessed was contraband; and 3) that the accused had the intent to distribute. See Martin v. State, 753 S.W.2d 384, 386 (Tex. Crim. App. 1988); see also Tex. Pen. Code Ann. 1.07 (a)(39) (Vernon 2006). Possession need not be exclusive, but can be jointly exercised with other persons. Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986).

When the accused is not in exclusive possession of the place where the controlled substance is found, there must be additional independent facts and circumstances which affirmatively link the accused to the contraband. See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995);Puente v. State, 888 S.W.2d 521, 526 (Tex. App.--San Antonio 1994, no writ). Circumstances that may link a defendant to the controlled substance include: 1) presence when the search was executed; 2) contraband in plain view; 3) proximity to and accessibility of the contraband; 4) defendant under the influence of contraband when arrested; 5) defendant's possession of other contraband when arrested; 6) defendant's incriminating statements; 7) attempted flight; 8) furtive gestures; 9) odor of the contraband; 10) presence of other contraband; 11) defendant's right to possession of the place where contraband was found; and 12) drugs found in an enclosed place. See Rischer v. State, 85 S.W.3d 839, 843 (Tex. App.--Waco 2002, no pet.); see also Lassaint v. State, 79 S.W.3d 736, 740-41 (Tex. App.--Corpus Christi 2002, no pet.).

In the instant case, the evidence supports the presence of several affirmative links indicating that Moncada had knowledge and control of the contraband. First, Moncada resides at the apartment where the contraband was discovered. Specifically, the contraband was discovered in the closet where his personal effects were stored. Second, Moncada was in possession of cocaine found in his pocket and judicially confessed to such possession. Third, the small individual bag discovered in the bathroom had the same green tint as the individual bags found in Moncada's closet and was the same type of packaging found in Moncada's jacket pocket.

The State elicited testimony from the officers that individually wrapping cocaine in such amounts is distributing contraband. See Jordan v. State, 139 S.W.3d 723, 726-27 (Tex. App.--Fort Worth 2004, no pet.) (holding that intent to deliver may be inferred from the quantity of drugs possessed, the manner in which they are packaged, and expert testimony indicating an intent to deliver). Even if Moncada was not in possession of the cocaine discovered in the bathroom, the evidence nevertheless supported the finding that Moncada possessed the contraband found on his person and also in his closet, which totaled at least five grams.

Viewing the evidence in the light most favorable to the trial court's decision to revoke community supervision, there was sufficient proof by a preponderance of the evidence that Moncada possessed a controlled substance with intent to deliver. Thus, there was sufficient evidence to support the trial court's revocation of Moncada's community supervision and sentence of five years confinement in the Institutional Division of the Texas Department of Criminal Justice. Accordingly, we affirm the judgment of the trial court.

Rebecca Simmons, Justice

Do Not Publish