No. 05-04-00146-CR
Opinion filed December 13, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F03-49935-VL. Affirmed.
Before Justices MOSELEY, O'NEILL, and FITZGERALD.
Opinion By Justice MOSELEY.
On a plea of not guilty, a jury convicted Rafael Pileta Colman of possession of a controlled substance, cocaine, in an amount of more than four but less than two hundred grams. See Tex. Health Safety Code Ann. § 481.102(3)(D) (Vernon Supp. 2005), § 481.115(d) (Vernon 2003). Appellant pled not true to two enhancement paragraphs. The court found the enhancement paragraphs true and assessed punishment at life imprisonment. Appellant brings nine issues. Concluding his issues are without merit, we resolve them against appellant and affirm the trial court's judgment.
I. FACTUAL BACKGROUND
Testimony from Dallas police officers Antonio Alemand and Daniel Torres established that a person flagged them down, complaining about a drug transaction in a nearby apartment. The officers knocked on the apartment door, and appellant answered. Alemand told appellant they were investigating a complaint of drugs being sold. Alemand asked whose apartment it was and if appellant lived in the apartment; appellant responded that "it was his, he lived there." Alemand asked appellant if they could come inside the apartment to make sure no drugs were being sold out of it and told him they were looking for drugs; appellant told them to come in. Two women in the apartment said they were visiting and were permitted to leave. Inside the apartment, Torres saw a pair of tennis shoes with what looked like a plastic baggie sticking out of one of the shoes. Torres asked appellant if the shoes were his, and appellant said yes. Inside the plastic baggie was a single rock of crack cocaine, later determined to weigh ten and one-tenth grams. Appellant was arrested and taken to jail wearing the tennis shoes in which the cocaine had been found. During the ride to the jail, Alemand asked appellant if he had any medical problems or was taking any mediation, and appellant told Alemand that "he used the crack for his habit and he would sell a little bit on the side." II. MOTION TO SUPPRESS
In his first issue, appellant contends the trial court erred in denying his motion to suppress his oral statements in the apartment. At the end of the State's case, appellant argued his oral motion to suppress any statements by appellant and any items gathered from the apartment, urging two grounds: (1) because police acted on an anonymous tip without corroborating evidence of a crime, there was no probable cause; and (2) there were no Miranda warnings given by the police after they entered the apartment, rendering any interrogation illegal. Because appellant's motion to suppress was untimely, he preserved nothing for review. See Tex.R.App.P. 33.1(a)(1) (preservation requires timely motion); Sims v. State, 833 S.W.2d 281, 284 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd) (holding motion "reurged" after Stated rested case-in-chief "untimely and preserved nothing for review"). We resolve appellant's first issue against him. Because appellant never objected to the admission of the cocaine on grounds that the search exceeded the scope of consent given, we conclude he failed to preserve his second issue, in which he argues the cocaine was inadmissible because the search exceeded the scope of his consent, which was to drug dealing, not possession, for review. See Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002) (to preserve complaint for review, issue on appeal must comport with trial objection). We resolve appellant's second issue against him. In his third issue, appellant argues the evidence is legally and factually insufficient "as to consent to search being valid and voluntary." The issue of consent to search goes to the admissibility of evidence and is raised by a motion to suppress or an objection in a suppression hearing or during the trial on the merits. See Stults v. State, 23 S.W.3d 198, 205 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) ("To preserve error on a claim of illegal seizure, defense counsel must either file a motion to suppress or object when the evidence is offered."). Because appellant did not raise any complaint in the trial court that his consent to a search was not "valid and voluntary," he has failed to preserve this complaint for review. See id. We resolve appellant's third issue against him. III. EVIDENTIARY RULINGS
In his fourth issue, appellant contends the trial court's failure to sustain his objections on hearsay grounds to statements by Alemand and Torres and a statement by another police officer violated his constitutional right of confrontation. Because appellant never specifically objected on confrontation grounds and his hearsay objections did not preserve error on a confrontation claim, he has failed to preserve any confrontation issue for review. See Bunton v. State, 136 S.W.3d 355, 368-69 (Tex.App.-Austin 2004, pet. ref'd). Moreover, because appellant's issue includes rulings on hearsay objections to at least five different statements and is therefore multifarious, we conclude any error in overruling appellant's hearsay objections is not subject to review. See Stults, 23 S.W.3d at 205. Accordingly, we resolve appellant's fourth issue against him. Likewise, we resolve appellant's eighth issue against him because it attacks numerous rulings regarding admission of State's Exhibit Nos. 2 (appellant's shoes) and 3 (the cocaine) and is therefore multifarious, presenting nothing for review. See id. In his sixth issue, appellant contends the trial court erred in admitting appellant's statement to Alemand that he "used the crack for his habit and he would sell a little bit on the side" because this evidence is more prejudicial than probative. Because appellant did not object when Torres offered the same evidence, he failed to preserve this complaint for review. See Stoker v. State, 788 S.W.2d 1, 14 (Tex.Crim.App. 1989) (holding any error in admission of evidence cured when same evidence later admitted without objection). We resolve his sixth issue against him. In his seventh issue, appellant challenges the admission of two penitentiary packets, State's Exhibit Nos. 5 and 6, offered during the punishment phase. The packets showed prior final convictions of appellant for possession of a controlled substance with intent to deliver and for conspiracy to deliver a controlled substance. Specifically, appellant argues that the affidavits attached to the pen packets were "signed, sealed, and then filled in at a later time." However, the admission of State's Exhibit No. 7, which consisted of Dallas County's certified copies of court records showing appellant's prior convictions, is not challenged on appeal. Thus, even assuming the trial court improperly admitted State's Exhibit Nos. 5 and 6, because the trial court could find that the enhancements paragraphs were true based on State's Exhibit No. 7, any error in admitting State's Exhibit Nos. 5 and 6 was harmless. See King v. State, 953 S.W.2d 266, 271-73 (Tex.Crim.App. 1997) (applying rule of appellate procedure 44.2(b) and concluding no harm when properly admitted evidence showed future dangerousness, even assuming penitentiary packets improperly admitted). Accordingly, we resolve appellant's seventh issue against him. IV. SUFFICIENCY OF THE EVIDENCE
In his fifth issue, appellant challenges the factual sufficiency of the evidence supporting the "possession" element of the offense. A. Applicable Law and Standard of Review
In a possession of controlled substance case, the State must prove, either directly or circumstantially, that the accused exercised actual care, custody, control, or management over the contraband. Tex. Health Safety Code Ann. § 481.002(38) (Vernon Supp. 2005); Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005). Pursuant to the "affirmative links" rule, the evidence must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous. Poindexter, 153 S.W.3d at 405-06. Thus, "[w]hen the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband." Id. at 406 (quoting Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App. 1981)). This rule simply restates the common-sense notion that a person-such as a father, son, spouse, roommate, or friend-may jointly possess property like a house but not necessarily jointly possess the contraband found in that house. Id. The affirmative links rule is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else's drugs. Id. In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). B. Discussion First, appellant argues the evidence was insufficient to show that he lived in the apartment because there was no corroboration such as a key or a lease. However, Alemand and Torres both testified that appellant told them the apartment was his and that he lived there. Alemand testified the women said they were visiting. Next, appellant argues the evidence is insufficient to show the shoe in which the drugs were found was his. However, Torres testified he asked appellant whether the shoes were his, and appellant said, "Those are my shoes." Appellant wore the shoes to jail. Having viewed all of the evidence under the appropriate standard of review, we conclude the evidence is factually sufficient to prove appellant exercised actual care, custody, control, or management over the cocaine. See Tex. Health Safety Code Ann. § 481.002(38); Poindexter, 153 S.W.3d at 405-06. Accordingly, we resolve appellant's fifth issue against him. V. ACCESS TO SUBPOENAED RECORDS
In his ninth issue, appellant contends the trial court erred in regards to certain confidential personnel records about Alemand that the defense subpoenaed from the police department. Because appellant cites no authority, we conclude this issue is improperly briefed. See Tex.R.App.P. 38.1(h) (brief must contain "appropriate citations to authorities"). Even assuming proper briefing, the record shows that, before trial, the trial court allowed appellant's counsel to review the records and make copies; counsel said that was "agreeable." At the close of evidence, just before the case was submitted to the jury, counsel argued he should have "the opportunity to have all of [the police records that were under subpoena by the defense]," although he admitted he had reviewed them. The trial court denied the request. Later, the records were admitted as Defense Exhibit No. 1 and sealed at appellant's counsel's request. Although appellant argues on appeal that his "cursory look" at the police reports deprived him of the opportunity to impeach and cross-examine Alemand, he did not raise this argument in the trial court. Accordingly, we conclude his argument on appeal does not comport with any trial objection. See Wilson, 71 S.W.3d at 349. We resolve appellant's ninth issue against him. VI. CONCLUSION
Having resolved appellant's ninth issues against him, we affirm the trial court's judgment.