No. 04-03-00758-CR
Delivered and Filed: July 6, 2005. DO NOT PUBLISH.
Appeal from the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-3786, Honorable Phil Chavarria, Jr., Judge Presiding. Affirmed.
Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
KAREN ANGELINI, Justice.
Richard Case appeals his conviction of possession of a controlled substance, namely: cocaine, which by aggregate weight, including any adulterants or dilutants was of an amount one (1) gram or more but less than four (4) grams. He raises seven issues on appeal. We overrule all seven issues and affirm the judgment of the trial court.
BACKGROUND
On February 6, 2003, San Antonio Police Officer William Roberts was conducting surveillance on a residence in east San Antonio. At approximately 6:48 p.m., Officer Roberts observed an individual driving a cream-colored van pull up to the location and walk around to the back door of the residence. After a couple of minutes, the individual returned to his van and drove away. Shortly thereafter, Officer Roberts observed the van run a stop sign, and he conducted a routine traffic stop using his lights, siren, and spotlight. Following the traffic stop, Officer Roberts requested the driver's license and vehicle registration. The driver, Richard Case, did not have a license and claimed to have borrowed the vehicle from a friend. Consequently, Officer Roberts placed Case under arrest for operating a motor vehicle without a license. After placing Case under arrest, Officer Roberts searched the vehicle. During the search, Officer Roberts observed what he recognized as unpackaged rocks of crack cocaine on the floorboard. Officer Roberts also found a crack cocaine pipe in the vehicle. Like the crack cocaine, the pipe was not hidden and was located in plain view. Officer Roberts seized the suspected contraband and called for an evidence technician to field-test the substance. The substance tested positive for cocaine. As a result, Case was charged with the offense of possession of a controlled substance, namely: cocaine, of an amount one (1) gram or more but less than four (4) grams. On October 9, 2003, a jury found Case guilty as charged in the indictment. On October 10, 2003, the jury found the enhancement paragraphs to be true, and punishment was assessed at 45 years imprisonment in the Texas Department of Criminal Justice, Institutional Division. Case appeals from the judgment of the trial court. CHAIN OF CUSTODY
In his first and second issues, Case contends that the trial court erred in admitting the drugs and crack pipe into evidence because the State failed to establish a proper chain of custody. The sufficient predicate having been laid for both the drugs and the pipe, we find no error in the admission of the evidence. As a predicate to admissibility, rule 901(a) of the Texas Rules of Evidence requires the party who offers an item into evidence to establish, to the trial court's satisfaction, that the item is what the party represents it to be. See TEX. R. EVID. 901(a). On appeal, Case argues that purported inconsistencies in the State's witnesses' testimony suggest that the chain of custody was improper. Without evidence of tampering or impropriety, however, most questions concerning care and custody go to the weight rather than to the admissibility of the evidence. See Lagrone v. State, 942 S.W.2d 602, 617 (Tex.Crim.App. 1997) (dictating that questions of care and custody are credibility issues); Lee v. State, 874 S.W.2d 220, 222-23 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). Here, in our review of the record, we find that the State presented sufficient evidence to authenticate its exhibits. See Foster v. State, 101 S.W.3d 490, 498 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (holding that evidence is generally admissible if the State shows the beginning and the end of the chain of custody). At trial, the State offered the testimony of two witnesses: (1) Officer Roberts; and (2) Kristen Schug, a forensic scientist for the Bexar County Crime Laboratory. Officer Roberts positively identified State's exhibit three as the drugs he found in the van. After Roberts took the drugs into his custody, the drugs were field-tested and placed in a matchbox. Although the matchbox did not bear Roberts' initials, it was marked by the officer who conducted the field test at the scene with his initials and badge number. Furthermore, the matchbox was tagged with the Appellant's name, as well the case number 3081227. Ms. Schug testified that this box was received and stored in the Bexar County narcotics vault. Ms. Schug's lab report indicated that the investigating officer was Roberts, the applicable agency was the San Antonio Police Department, and the agency number assigned to the case was 3081227. After testing the drugs, the evidence was maintained in a sealed envelope until the evidence technician was requested to bring it to court. Likewise, Officer Roberts positively identified the crack pipe as being the same one he recovered from the vehicle. As with the cocaine, there were identifiers establishing the chain of custody of the pipe. At trial, the crack pipe was removed from a sealed envelope marked with the property tag number K403932. Officer Roberts testified that the property tag number was the same as the number he recorded in his police report. In addition, there was no evidence of tampering, and the seal on the envelope was not broken until the day of the trial. Thus, here, the trial court did not abuse its discretion in admitting the cocaine and crack pipe as evidence and leaving the factfinder free to evaluate issues regarding credibility or weight. Accordingly, we overrule these issues on appeal. OBJECTION TO TESTIMONY
In his third issue, Case contends that the trial court erred in allowing the State's witness, Kristen Schug, to testify, while consulting her lab report, that: Case was the subject of CIL no. 03-00580, the investigating officer in that case was Roberts, and the corresponding SAPD case number was 3081227. On appeal, Case argues that the trial court violated rule 612 of the Texas Rules of Evidence because the witness did not testify from her memory of the matter, but rather from the report itself. This argument is misplaced. Rule 612 is an entitlement rule; that is, when invoked, the opposing party is entitled to the production, inspection, cross-examination on, and introduction of the writings reviewed by a witness. By contrast, here, Case sought to exclude the testimony of the witness. Therefore, the relevant objection would have been to hearsay or best evidence. However, because he failed to make an objection comporting with either of these grounds at trial, Case failed to preserve this issue for our review. See TEX. R. APP. P. 33.1(a). Accordingly, having found no error in the admission of the testimony, we overrule this issue on appeal. LEGAL AND FACTUAL SUFFICIENCY
In two issues on appeal, Case further argues that the evidence is legally and factually insufficient to support his conviction for possession of a controlled substance. A. Standard of Review
When reviewing the legal sufficiency of the evidence, we do not weigh the evidence tending to establish innocence, nor do we assess the credibility of witnesses. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex.Crim.App. 1996). We view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998). If we determine that the evidence is legally insufficient, we must render a judgment of acquittal. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). In reviewing the factual sufficiency of the evidence, rather than viewing the evidence in the light most favorable to the prosecution, our review is a neutral one of the evidence. Zuniga v. State, 144 S.W.3d 477, 481-82 (Tex.Crim.App. 2004). We determine if a finding is so against the great weight and preponderance of the evidence that it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. at 484. There is only one question to be answered in a factual sufficiency review: considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Id. If, after a neutral review of all the evidence, we determine that proof of guilt is so obviously weak as to undermine the confidence in the jury's verdict, we must vacate the conviction and remand the cause for a new trial. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000). B. Analysis
To support a conviction for unlawful possession of a controlled substance, the State must prove: (1) that the defendant exercised actual care, custody, control, or management over the substance; and (2) that he knew that what he possessed was contraband. See TEX. HEALTH SAFETY CODE ANN. §§ 481.002(38), .115(a) (Vernon 2003); De la Garza v. State, 898 S.W.2d 376, 379 (Tex.App.-San Antonio 1995, no pet.). These elements may be proved by circumstantial evidence. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App. 1985); De la Garza, 898 S.W.2d at 379. However, mere possession of the vehicle in which contraband is found, by itself, will not support a conviction for possession. De la Garza, 898 S.W.2d at 379. The State must also provide evidence of additional independent facts and circumstances that affirmatively link the accused to the contraband in such a manner that it can be concluded he had knowledge of the contraband as well as control over it. Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005); Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App. 1981). Circumstances that may link an accused to contraband include, but are not limited to: (1) presence when the search was executed; (2) contraband in plain view; (3) proximity to and the accessibility of the contraband; (4) accused under influence of the contraband; (5) accused's possession of other contraband when arrested; (6) accused'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) accused's ownership or right of possession of the place where the controlled substance was found; (12) drugs found in an enclosed place. De la Garza, 898 S.W.2d at 379. On appeal, Case contends that because some of these factors and circumstances were not present at the time of his arrest, the evidence was insufficient to show that he knowingly possessed the substance. However, because each case is fact-specific, the number of factors present is not as important as the "logical force" to which the factors, alone or in combination, tend to affirmatively link the accused to the contraband. See Roberson v. State, 80 S.W.3d 730, 734-35 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). Here, the record establishes that the Appellant was in possession of a vehicle in which cocaine and drug paraphernalia were discovered both in plain view and proximity to him. Case alleges that the drugs and pipe did not belong to him and that he was unaware of their presence. Nevertheless, when Officer Roberts asked Case for his address, Case stated that he lived in the van and that the tools found in the van belonged to him. The record further establishes that, prior to being stopped and discovered with the contraband, the Appellant briefly stopped at a residence that was under surveillance by the San Antonio Police Department, walked around to the back door of the residence, and after a couple of minutes, returned to his vehicle and drove away. The record establishes that no person other than Case was seen entering or exiting the vehicle. Therefore, viewed in the light most favorable to the verdict, the evidence could have led a rational jury to determine beyond a reasonable doubt that Case knowingly possessed the drugs as alleged in the indictment. Moreover, viewing the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Accordingly, having found the evidence both legally and factually sufficient to uphold Case's conviction of possession of a controlled substance, we overrule these issues on appeal. SEARCH INCIDENT TO AN ARREST
In his sixth issue, Case contends that the trial court erred in failing to suppress testimony at the punishment hearing concerning drugs that were seized from the Appellant's wallet following his separate and unrelated arrest in 2003 for a suspected theft. However, because the cocaine was legally discovered through a search incident to a lawful arrest, there was no error. While a search without a warrant is per se unreasonable, we recognize certain well-established exceptions. See Fancher v. State, 659 S.W.2d 836, 839 (Tex.Crim.App. 1983); Ortega v. State, 974 S.W.2d 361, 362 (Tex.App.-San Antonio 1998, pet. ref'd). Among these exceptions, a search is reasonable and therefore legal under the Fourth Amendment if it is properly conducted pursuant to a valid arrest. See Chimel v. California, 395 U.S. 752, 755-59 (1969). When a lawful arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Id. at 762-63. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. Id. at 763. Here, during the punishment phase of the trial, Officer Edward Lopez of the San Antonio Police Department testified that, on May 8, 2003, he was conducting surveillance on a San Antonio-area AutoZone where numerous shopliftings had occurred. Officer Lopez testified that he observed Case enter the AutoZone and emerge from the store approximately ten to fifteen minutes later. Officer Lopez then observed another police officer in an unmarked vehicle drive up to Case as he was walking away from the store. When Officer Meyer exited the vehicle and identified himself to Case as a police officer, however, Case began to run. The officers eventually discovered Case hiding in a storage shed in a backyard, and they arrested him on suspicion of theft and for evading arrest. Upon arrest, Case was handcuffed and searched. In conducting their search, the officers found stolen auto parts in his pockets, as well as a wallet which held his personal identification. Upon looking inside Case's wallet, the officers discovered a small pink Ziploc bag containing a powdery substance. Based upon his experience and training, Officer Lopez believed the substance to be cocaine. Here, because the officers had probable cause to arrest Case for theft and evading arrest, they were authorized to conduct a search incident to that arrest. Further, in a lawful search incident to an arrest, no warrant is required to search those objects immediately associated with the person of the arrestee. See Snyder v. State, 629 S.W.2d 930, 933-34 (Tex.Crim.App. 1982) (holding that "full search of the person" included wallet found in defendant's pocket at time of arrest). Therefore, having found the warrantless search of Case's wallet following his arrest permissible as a search incident to the arrest, there was no error in admitting the police officer's testimony. Accordingly, we overrule this issue on appeal. ENHANCEMENT OF PUNISHMENT
In his seventh issue, Case contends that the evidence was insufficient to support the jury's finding of true to enhancement beyond a reasonable doubt. In determining the legal sufficiency of enhancement evidence, we view the evidence in the light most favorable to the jury's answer and determine whether a rational trier of fact could have found the punishment enhancement issue in question beyond a reasonable doubt. Martinez v. State, 980 S.W.2d 662, 664 (Tex.App.-San Antonio 1998, pet. ref'd) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). If we are presented with conflicting inferences or evidence, we must presume the jury resolved the conflict in favor of the State. See Matchett v. State, 941 S.W.2d 922, 936 (Tex.Crim.App. 1996). For enhancement purposes, the State bears the burden of demonstrating that the prior convictions became final before the commission of the primary offense. Russell v. State, 790 S.W.2d 655, 657 (Tex.Crim.App. 1990). In presenting two prior felony offenses, the State must further demonstrate "the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final." See TEX. PEN. CODE ANN. § 12.42(d) (Vernon 2003); see also Tomlin v. State, 722 S.W.2d 702, 705 (Tex.Crim.App. 1987) Here, in the indictment, the State alleged the following: (1) before the commission of the primary offense, Case was previously convicted of Criminal Attempt Escape in Cause No. 91 CR 3096 in Denver, Colorado, on November 25, 1991 ("first prior felony"); and (2) before the commission of the primary offense, and after his conviction of first prior felony was final, Case committed the offense of Third Degree Burglary and was convicted in Cause No. 93 CR 1571 in Jefferson County, Colorado, on May 9, 1994 ("second prior felony"). In support of their allegations, the State introduced into evidence copies of the prior felony judgments. On appeal, Case's complaint centers around an entry on the judgment for the second prior felony that reads "DOO-4-16-93." Case contends that this entry is insufficient proof that the second prior felony alleged for enhancement of punishment was committed subsequent to the first prior felony conviction becoming final, because no person could conclusively attest that the letters "DOO" stood for "Date of Offense." This argument is without merit. In reviewing the copy of the judgment, it is clear that "DOO" represented an abbreviation for "Date of Offense." The form on which the judgment was entered specified: "Indicate the following after each count: offense, statutory citation, class of offense, and date of offense." Beneath these instructions, the following information was entered: "THIRD DEGREE BURGLARY, C.R.S. 18-4-204, DOO-4-16-93." Given this information, any rational trier of fact could reasonably infer that DOO stood for "Date of Offense," and that, here, the date of offense for the felony burglary was April 16, 1993. Therefore, we find that the evidence was legally sufficient that the offense was committed subsequent to Case's first felony conviction becoming final on November 25, 1991, but prior to his commission of the primary offense for which he is now on appeal. Accordingly, we overrule this final issue on appeal. CONCLUSION
Having overruled all issues, we affirm the judgment of the trial court.