Nos. 14-03-00156-CR, 14-03-00157-CR.
Memorandum Opinion filed May 18, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 351st District Court Harris County, Texas, Trial Court Cause Nos. 914,428 914,430. Affirmed.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
JOHN S. ANDERSON, Justice.
Andrew Burns, appellant, was convicted by a jury of possession of less than one gram of a controlled substance and aggravated kidnaping with intent to commit sexual abuse. The jury sentenced appellant to twenty years' confinement for the possession offense and thirty-five years' confinement for the aggravated kidnaping offense. By three points of error, appellant challenges both convictions, alleging legal insufficiency, improper jury argument, and cruel and unusual punishment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of June 7, 2002, W.D., a ten year old girl, walked from her grandfather's house to Lockhart Park, located next to Lockhart Elementary School, to meet a friend. When she arrived at the park, W.D. could not find her friend, and because no other children were at the park, she began the five to ten minute walk back to her grandfather's house. As she was walking by Lockhart Elementary, a taxi cab approached her, and appellant, the rear passenger, told W.D. to get into the car. W.D. believed appellant was a friend of her grandfather and thought he would give her a ride back to her grandfather's house. After W.D. entered the cab, appellant asked her name and age and then gave her a twenty dollar bill. The taxi cab dropped the two off at Legend Inn where appellant, followed by W.D., went into the lobby and rented a room for two hours. Appellant asked W.D. for the twenty dollar bill to pay for the room. Thereafter, appellant walked down the breezeway of the motel toward the room, unlocked the door, and entered the room. W.D. continued to follow appellant. Once appellant and W.D. were in the room, appellant locked the door and exposed himself by unzipping his pants. W.D. asked appellant why he brought her there, and appellant responded that he was not going to do anything wrong to her and then asked her to disrobe. W.D. unlocked the door and ran from the room. She ran to Derrick Delane, a patron of the Legend Inn, who was getting ice at the machine located near the lobby. W.D. asked Delane for help and told him appellant was trying to have sex with her. Delane took W.D. to the lobby and instructed the motel's staff to call the police and lock the door. Shortly thereafter, appellant exited the room with his pants still unzipped as he was attempting to leave. Delane approached appellant with the intent to detain him until the police arrived; however, Delane acted cautiously because one of appellant's hands was in his pocket, and Delane thought appellant might have a weapon. Delane hit appellant, knocking him to the ground, and a fight ensued, but appellant's hand remained in his pocket. When appellant stood up, Delane hit appellant again and "slammed" him against the stairs. Appellant removed his hand and Delane saw he was holding a glass object, which Delane recognized as a "stem." A stem is glass tube used to smoke cocaine. The tube was broken on the end, indicating it had been used. Delane noticed the tube in appellant's hand was broken and had a jagged edge. Fearing appellant may try to stab him, he grabbed appellant by the wrist and hit appellant's hand against an iron rail of the staircase, causing appellant to drop the glass tube. The two continued struggling, but Delane's significant size advantage enabled him to detain appellant. When the police arrived, they separated appellant and Delane. One of the officers who responded, Paula Camp, found the glass pipe lying under appellant where he had been pinned. Officer Camp also found an unused brillo pad in appellant's back pocket. Because Officer Camp knew brillo pads were common paraphernalia used with glass pipes, she sent both the glass pipe and the brillo pad to the crime lab for testing. The residue in the glass pipe tested positive for cocaine, but because the brillo pad was unused, it was not tested. Appellant was charged with indecency with a child, aggravated kidnaping with intent to commit sexual abuse, and possession of less than one gram of cocaine. The jury found appellant guilty of aggravated kidnaping and possession, but acquitted appellant on the indecency charge. Appellant raises four points of error, two points of error on the possession charge and two points of error on the aggravated kidnaping charge; however, because two points of error, one from each charge, raise the same issue, appellant's complaints can be condensed into the following three points of error: (1) there is legally insufficient evidence to prove appellant knowingly possessed cocaine; (2) the prosecutor made improper jury arguments during the punishment stage of trial; and (3) the sentence for aggravated kidnaping constitutes cruel and unusual punishment. I. Legal Sufficiency
By his first point of error, appellant contends the evidence is legally insufficient to prove beyond a reasonable doubt that he was guilty of knowingly possessing cocaine. When reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). The standard of review on appeal is the same for both direct and circumstantial evidence. McGoldrick v. State, 682 S.W.2d 573, 577 (Tex.Crim.App. 1985). In conducting this review, we cannot re-evaluate the weight and credibility of the evidence, but consider only whether the jury reached a rational decision. Linton v. State, 15 S.W.3d 615, 618 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). In order to prove unlawful possession of a controlled substance, the State is required to prove: (1) the defendant exercised care, control and management over the contraband, and (2) the defendant knew the matter possessed was contraband Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App. 1981); Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd). The State is not required to prove exclusive possession; however, when the defendant is not in exclusive possession of the place where the narcotics are found, the State must present additional independent facts and circumstances that affirmatively link the defendant to the contraband Washington v. State, 902 S.W.2d 649, 652 (Tex. App.-Houston [14th Dist.] 1995, pet. ref'd). The affirmative link must raise a reasonable inference the defendant knew of the contraband's existence and exercised control over it. Hyett, 58 S.W.3d at 830. Regardless of whether the evidence is direct or circumstantial, "it must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous." Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). Circumstantial evidence relevant to establish an affirmative link between appellant and the contraband include: (1) appellant's presence when the contraband was discovered; (2) whether the contraband was in plain view; (3) appellant's proximity to and accessibility of the narcotic; (4) whether the appellant was under the influence of narcotics when arrested; (5) whether appellant possessed other contraband when arrested; (6) whether appellant made incriminating statements when arrested; (7) whether appellant attempted to flee; (8) whether appellant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia was present; (11) whether the place where the drugs were found was enclosed; and (12) whether appellant owned or had the right to possess the place where the drugs were found. Hyett, 58 S.W.3d at 830. There is no set formula necessary to find an affirmative link; rather, affirmative links are established by looking to the totality of the circumstances and the logical force the circumstantial evidence provides. Villareal v. State, 116 S.W.3d 74, 80 (Tex. App.-Houston [14th Dist.] 2001, no pet.); Villegas v. State, 871 S.W.2d 894, 896 (Tex. App.-Houston [1st Dist.] 1994, pet ref'd). Viewing the evidence in a light most favorable to the verdict, the following evidence links appellant to the cocaine. Delane testified appellant's hand was in his pocket when he first approached him and when appellant removed his hand, he was holding a glass pipe that was broken on one end. Delane grabbed appellant's wrist, hit it against the iron rail, causing appellant to drop the glass pipe. Moments later, Officer Camp arrived and after separating Delane and appellant, she found a glass pipe that was broken on one end lying underneath appellant. Officer Camp also found a brillo pad in appellant's back pocket, which she testified is commonly used in connection with cocaine. Additionally, Delane thought appellant was under the influence of drugs because appellant was "droopy eyed" and in a trance. We hold the evidence affirmatively links appellant to the glass pipe and the cocaine found therein and the evidence raises a reasonable inference appellant knew about and had control of the cocaine. A rational jury could have found beyond a reasonable doubt appellant knowingly possessed the cocaine and exercised actual care, custody and control over it. See Hyett, 58 S.W.3d at 830-32. Appellant's first point of error is overruled. II. Improper Jury Argument
In his second point of error, appellant contends the trial court erred in overruling his objection to allegedly improper jury argument. During closing arguments in the punishment phase of trial, the State argued appellant was a drug addict that loitered around elementary schools and play grounds and picked up children. Appellant immediately objected, claiming the evidence did not show he was hanging around elementary schools. The trial court overruled his objection. On appeal, appellant argues the statement was improper because it suggested he was a serial offender; however, because appellant failed to object at trial to the alleged inference that he was a serial offender, the error, if any, is waived. TEX. R. APP. P. 33.1; Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990) ("An objection stating one legal basis may not be used to support a different legal theory on appeal."). Appellant's objection at trial must comport with his complaint on appeal. Accordingly, appellant's second issue is overruled. III. Cruel and Unusual Punishment
In his final point of error, appellant argues his thirty-five year sentence for aggravated kidnaping with intent to commit sexual abuse constitutes cruel and unusual punishment because it is disproportionate to the acts that gave rise to the conviction. To preserve error for appellate review, the appellant must make a timely, specific objection at the earliest opportunity, and obtain an adverse ruling. TEX. R. APP. P. 33.1; Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996). Even constitutional errors may be waived by failure to object at trial. Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App. 1990); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd). Appellant failed to object at the sentencing hearing on the basis of cruel or unusual punishment, and appellant did not raise any such complaints in a post-trial motion. Accordingly, appellant has waived this argument on appeal. See Rhoades, 934 S.W.2d at 120; Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd). Appellant's third point of error is overruled. Having overruled appellant's three points of error, we affirm the judgment of the trial court.