No. 05-07-01608-CR
Opinion Filed April 21, 2009. DO NOT PUBLISH TEX. R. APP. P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-89003-JT.
Before Justices MORRIS, WRIGHT, and MOSELEY.
Opinion By Justice MOSELEY.
A jury convicted Almoza Mincey of possession with intent to deliver cocaine in the amount of more than four grams but less than 200 grams, a first-degree felony, see Tex. Health Safety Code Ann. §§ 481.102(3)(D) (Vernon Supp. 2008), .112(a), (d) (Vernon 2003), and found that Mincey used or exhibited a firearm, a deadly weapon, during the commission of the offense. The trial court sentenced him to forty years' confinement. Mincey raises four issues: the trial court abused its discretion by denying his motion to suppress evidence and by admitting a video that was highly prejudicial, and the evidence is factually insufficient to show possession with intent to deliver and to support the jury's deadly weapon finding. For the reasons that follow, we resolve these issues against Mincey and affirm the trial court's judgment.
I. BACKGROUND
Mincey was indicted for unlawfully and knowingly possessing with intent to deliver cocaine, a controlled substance, in an amount by aggregate weight of four grams or more but less than 200 grams. Mincey filed a pretrial motion to suppress, detailing the events concerning obtaining and executing the warrant and the items seized. In his motion, Mincey argued the search warrant was not valid because it contained the incorrect address for the premises to be searched. He argued that, although the warrant authorized the search of 5214 Columbia Avenue, the search was actually conducted of 5212 Columbia Avenue, his residence. According to Mincey, because these premises were completely separate, the warrant did not sufficiently describe the premises to be searched, thus violating article 18.04(2) of the code of criminal procedure, the Fourth Amendment of the United States Constitution, and article 1, section 9 of the Texas Constitution. After hearing the motion outside the presence of the jury, the trial court denied it. Mincey asked for, and was granted, a running objection to admission of the evidence seized. In response to complaints about drug trafficking and prostitution in a certain neighborhood, narcotics detectives recruited a woman to buy drugs from a house later identified as Mincey's home. It was one of two structures on a lot with the number 5214. Mincey's house had the number 5212 posted on the fence. One of the narcotics detectives saw the woman buy drugs from Mincey. Based on that sale, the officers obtained a search warrant for 5214 Columbia Avenue, and executed the warrant at the house numbered 5212. Two individuals in the house were arrested. An officer saw Mincey jump out a window and run away when the entry team entered the house. Mincey was arrested later. Two surveillance cameras monitored the outside of the house. The officers seized plastic baggies, scales, and about $2400 in cash, predominantly in denomination of 20s, 10s, and 5s. Evidence established that cocaine in baggies was seized and tested; the baggies contained a total of 134 grams of crack cocaine, worth $13,400 in street value, and 7.8 grams of cocaine in the salt form, worth $780 in street value. Also seized were four handguns, an assault rifle, and ammunition for the rifle. Among the evidence seized by the police officers were several cameras. The police transferred videos from the memory card in one of the cameras to a DVD, which was marked as Exhibit 74. The trial court overruled Mincey's objections, and the exhibit was admitted and published to the jury. Three of the videos showed Mincey in the house. The charge at the guilt/innocence phase instructed the jury in the law of parties and on unlawful seizure. The application paragraph allowed the jury to find Mincey, acting alone or as a party, guilty of the indicted offense. The special issue question, premised on a finding of guilt on the offense, asked whether the jury found beyond a reasonable doubt that Mincey, acting alone or as a party, used or exhibited a deadly weapon, a firearm, during the commission of the offense. The jury found Mincey guilty and answered the special issue in the affirmative. The trial court pronounced judgment in accordance with the jury's verdict of guilty and assessed punishment. Mincey's motion for new trial was overruled by operation of law. This appeal followed. II. MOTION TO SUPPRESS EVIDENCE
In his first issue, Mincey contends the trial court should have granted his motion to suppress because the search of his residence was based on an invalid warrant and was not reasonable, thus violating his constitutional rights. He argues the search warrant was invalid because it specifically authorized a search only of 5214 Columbia Avenue, but 5212 Columbia Avenue, his residence, was actually searched. A. Applicable Law and Standard of Review
Generally, both the United States Constitution and the Texas Constitution prohibit searches without a warrant describing the particular place to the searched. See U.S. Const. amend. IV; Tex. Const. art. I, § 9. See also Tex. Code Crim. Proc. art. 38.23(a) (Vernon 2005) (providing that no evidence obtained in violation of any constitutional provisions or laws shall be admitted in evidence against accused on trial of any criminal case). The constitutional objectives of requiring a "particular" description of the place to be searched include: (1) ensuring that the officer searches the right place; (2) confirming that probable cause is, in fact, established for the place described in the warrant; (3) limiting the officer's discretion and narrowing the scope of the officer's search; (4) minimizing the danger of mistakenly searching the person or property of an innocent bystander or property owner; and (5) informing the owner of the officer's authority to search that specific location. Long v. State, 132 S.W.3d 443, 447 (Tex.Crim.App. 2004). See Tex. Code Crim. Proc. Ann. art. 18.04(2) (Vernon 2005) ("A search warrant issued under this chapter shall be sufficient if it contains the following requisites: . . . (2) that it . . . name or describe, as near as may be, the . . . place, . . . to be searched[.]"). If the warrant is sufficient to enable the executing officer to locate and identify the premises intended to be searched, and the deficiencies in the description do not give rise to a reasonable probability that mistaken execution will take place at an unintended site, then the warrant is valid. Olivas v. State, 631 S.W.2d 553, 556 (Tex.App.-El Paso 1982, no pet.). "Minor discrepancies will not vitiate a warrant if it sufficiently describes the premises." Smith v. State, 962 S.W.2d 178, 179 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd). In reviewing a ruling on a motion to suppress evidence, we view the evidence in the light most favorable to the trial court's ruling. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). On appeal, we decide whether the record supports the trial court's ruling. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). We sustain the trial court's ruling if it is reasonably supported by the record, and we reverse if the trial court's decision was a clear abuse of discretion. Id. B. Discussion
The warrant describes the place to be searched as follow: 1. There is in Dallas County, Texas, a suspected place and premises described and located as follows: A single family, wood frame residence, white in color with black trim, which is the unattached, southernmost living quarters which is separated from the northern structure by a fence and can only be accessed from the south alley behind the location, and is occupied by the person in Paragraph #3, located at 5214 Columbia Avenue, City of Dallas, Dallas County, Texas.
(Emphasis added.) The State presented evidence that police officers investigated the address of a house where they had observed drug buys. Officer Todd Conway testified the house was behind another house and would have been "servants' quarters or guest quarters at the property." He accessed the drug house from the alley and observed other foot and vehicle traffic approaching it from the alley. Photographs show a fence separating Mincey's house from the other structure and the number 5212 on the fence, but Conway testified Mincey's house could not be accessed from Columbia Avenue. In researching the address, the officers used the Dallas Central Appraisal District to search for the 5212 Columbia address, without success. However, a DCAD search showed the number 5214 for "the area [Conway was] at to buy crack cocaine." A witness from DCAD also testified that a DCAD map showed the lot numbered 5214 with two "house-like" structures on it. Conway also testified that the houses on Columbia Avenue were numbered in increments of four. Conway observed the drug house at night and described it in the warrant as a white single-family wood-frame house with black trim. Photographs taken during the day showed the trim was dark green. The other house was also a single-family wood-frame white house, but with white trim. Mincey presented evidence that he leased the residence at 5212 Columbia Avenue, and his lease showed this address. His Texas Department of Public Safety identification card also showed that address, and letters and bills were addressed to him at the number 5212. Mincey testified that his house could be accessed from Columbia Avenue by a driveway at the number 5214. Mincey argues the warrant's description does not adequately identify the location of the residence and was not sufficient to overcome the incorrect numerical address. Mincey acknowledges that "an incorrect address alone will not defeat the search warrant." Williams v. State, 928 S.W.2d 752, 754 (Tex.App.-Houston [14th Dist.] 1996) (citing Olivas, 631 S.W.2d at 556), aff'd, 965 S.W.2d 506 (Tex.Crim.App. 1998). In Williams, a affidavit in support of a search warrant described the location and appearance of an apartment building, and the specific location ("on the third floor facing south" and in relation to other numbered apartments) and appearance ("green door with white trim") of an apartment within the building, even though the apartment number was unknown Id. at 754-55. Such clear identification of the building and specific description of the location overcame the incorrect street address and lack of apartment number. Id. at 755. Despite minor discrepancies, the description in the warrant here, emphasized above, meets the Long requirements of ensuring the officer searches the right place, limiting the officer's discretion and narrowing the scope of the officer's search, and minimizing the danger of mistakenly searching the person or property of an innocent bystander or property owner. See Long, 132 S.W.3d at 447; Williams, 928 S.W.2d at 755. See also Haynes v. State, 475 S.W.2d 739, 741 (Tex.Crim.App. 1971) ("Where the warrant contains accurate directions as to how to locate the place to be searched and a showing is made that the place searched is the place described, specificity is met in the warrant."). As explained in Olivas, earlier cases holding a warrant invalid for an improper address showed "no actual relationship, historical or otherwise" between the address in the warrant and the premises searched. See Olivas, 631 S.W.2d at 556-57. Here, there was evidence of the relationship between the two structures numbered 5212 and 5214 on the same property, specifically the DCAD evidence and the arrangement of the structures on the lot. Moreover, the officers were entitled to rely upon the descriptive portions of the warrant as a whole. See id. at 557. Because the record reasonably supports the trial court's denial of Mincey's motion to suppress, we discern no abuse of discretion. See Guzman, 955 S.W.2d at 89, Villarreal, 935 S.W.2d at 138. We resolve Mincey's first issue against him. III. ADMISSION OF EVIDENCE
In his second issue, Mincey contends the trial court abused its discretion in admitting "highly prejudicial video excerpts" from a camera seized in the search in violation of rules of evidence 403, 404(b), and 901. A. Applicable Law and Standard of Review
Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. See Miller v. State, 36 S.W.3d 503, 507 (Tex.Crim.App. 2001) (evidence must be material and probative to be relevant). Generally, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. Evidence is unfairly prejudicial when it has an undue tendency to suggest that a decision be made on an improper basis, commonly, but not necessarily, an emotional one. Vasquez v. State, 67 S.W.3d 229, 240 (Tex.Crim.App. 2002). Factors that should be considered in applying rule 403 are the probative value of the evidence, the potential of the evidence to impress the jury in some irrational way, the time needed to develop the evidence, and the proponent's need for the evidence. Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex.Crim.App. 1991) (op. on reh'g). Rule of evidence 901(a) provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Tex. R. Evid. 901(a). See Angleton v. State, 971 S.W.2d 65, 67 (Tex.Crim.App. 1998). Examples of authentication or identification, "[b]y way of illustration only, and not by way of limitation," include: "testimony of witness with knowledge"; "voice identification"; and evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. Tex. R. Evid. 901(b)(1), (5), (9). We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002). We reverse only when the trial court's decision was so clearly wrong as to fall outside the zone of reasonable disagreement. Id. We uphold the trial court's ruling if it was correct on any theory reasonably supported by the evidence and applicable to the case. Id. B. Discussion
Conway testified that, when he seized cameras from Mincey's residence, they contained memory cards, and he was able to take video files from one of the cameras and transfer them to a DVD. Conway had viewed the disc and testified that it accurately represented what he viewed on the camera when it was seized and had not been tampered with in any way. Mincey cross-examined Conway whether anything indicated the time or date of the videos, to which Conway responded in the negative. On additional questioning by the State, Conway testified that the images in the videos occurred in the music studio of Mincey's house. The jury could observe Mincey in the videos. In one, he is counting money. In another, he is singing a rap song and displaying one of the guns, a chrome semiautomatic pistol, seized by the officers and admitted into evidence as Exhibit 61. The trial court overruled Mincey's objections as to lack of authentication, no showing of a date or time, irrelevance, probative value outweighed by prejudice, and hearsay. The disc was admitted as Exhibit 74. First, Conway authenticated Exhibit 74 by testifying to the process by which he transferred the video files from the camera found in the house to the disc. He testified the disc accurately represented what he viewed on the camera when it was seized and had not been tampered with in any way. The jury could have recognized Mincey in the video. This evidence satisfies the authentication requirement in rule 901(a). See Tex. R. Evid. 901(a)(1), (5), (9); Angleton, 971 S.W.2d at 67-68 (discussing identification of voices on tape and circumstances under which it was obtained showing it "was not a fraudulent composition designed to frame appellant"). Nevertheless, Mincey suggests that a witness authenticating a photograph must have personal knowledge it accurately represents the scene or event it purports to portray. However, in Angleton, 971 S.W.2d at 68, the court of criminal appeals, relying on federal authority, said, "[T]he government does not have to prove when, where, how, and by whom tape recordings were made, when those recordings were recovered from the defendant or an alleged co-defendant, were not created as a result of government involvement, were not tampered with, and the defendant is identified as a speaker on the tape." Applying Angleton's rationale here, we reject Mincey's argument that Exhibit 74 was improperly authenticated because of the lack of such evidence. Next, we conclude the videos were material to the issues of possession-with-intent-to-deliver a controlled substance and a deadly weapon finding because they placed Mincey in the drug house around the money and guns. They were probative because they tended to make the existence of those facts more probable than without this evidence. See Tex. R. Evid. 401; Miller, 36 S.W.3d at 507. We have considered the rule 403 factors in light of this case, that is, the probative evidence of the videos in placing Mincey in the house in contact with the money and guns, the limited amount of time needed to develop the evidence, the State's need to place Mincey in the drug house when he was arrested sometime after the house was searched, and the unlikelihood of impressing the jury in an emotional or otherwise irrational way. See Tex. R. Evid. 403; Vasquez, 67 S.W.3d at 240; Mongtomery, 810 S.W.2d at 389-90. Specifically, we cannot agree with Mincey that they were unduly prejudicial because they do not show actual drug dealing. We cannot conclude that the probative value of the videos was substantially outweighed by the danger of unfair prejudice. Finally, we consider Mincey's rule 404(b) argument. The record shows that he did not raise an objection in the trial court based on that rule's inadmissibility due to character conformity. Therefore, he has failed to preserve this argument. See Tex. R. App. P. 33.1. Assuming he had preserved this argument, we conclude the video excerpts were admissible under rule 404(b) because they showed intent, knowledge, and absence of mistake or accident in light of the indicted offense. See Tex. R. Evid. 404(b). Discerning no abuse of discretion in the trial court's admission of Exhibit 74, we resolve Mincey's second issue against him. IV. FACTUAL SUFFICIENCY OF THE EVIDENCE
In his third and fourth issues, Mincey contends the evidence is factually insufficient to show possession with intent to deliver cocaine and to support a deadly weapon finding. A. Standard of Review
In a factual sufficiency review, we view all of the evidence in a neutral light to determine whether: (1) the evidence supporting the conviction is too weak to support the factfinder's verdict, or, (2) considering conflicting evidence, the factfinder's verdict is "against the great weight and preponderance of the evidence." Laster v. State, 275 S.W.3d 512, 518 (Tex.Crim.App. 2009). We must defer to the jury's findings. Id. We may only find the evidence factually insufficient when necessary to prevent manifest injustice. Id. The factual sufficiency of evidence to support a conviction is measured by the elements of the offense as defined by a hypothetically correct jury charge. Wooley v. State, 273 S.W.3d 260, 261 (Tex.Crim.App. 2008) (citing Malik v. State, 953 S.W.2d 234, 239-40 (Tex.Crim.App. 1997)). B. Possession with Intent to Deliver
1. Applicable Law A person commits a first-degree felony offense if he knowingly possesses with intent to deliver a controlled substance, cocaine, in an amount by aggregate weight, including adulterants or dilutants, of four grams or more but less than 200 grams. Tex. Health Safety Code Ann. §§ 481.102(3)(D), .112(a), (d). In a possession-with-intent-to-deliver case, the State must prove that the defendant: (1) exercised care, custody, control, or management over the controlled substance; (2) intended to deliver the controlled substance to another; and (3) knew that the substance in his possession was a controlled substance. Id. § 481.002(38) (Vernon Supp. 2008); Nhem v. State, 129 S.W.3d 696, 699 (Tex.App.-Houston [1st Dist.] 2004, no pet.). Possession is voluntary "if 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." Tex. Penal Code Ann. § 6.01(b) (Vernon 2003). A person acts knowingly, or with knowledge, with respect to the nature of his conduct of in circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. Id. § 6.03(b) (Vernon 2003). When a person is not in exclusive possession of the place the contraband was found, the State must show "circumstances, in addition to mere presence, that would adequately justify the conclusion that the defendant knowingly possessed the substance." Evans v. State, 202 S.W.3d 158, 161 n. 9 (Tex.Crim.App. 2006) (quoting Womack, J., concurring, at 166-67). The non-exclusive factors Texas courts have recognized as sufficient, either singly or in combination, to establish a person's possession of contraband include: (1) whether the defendant was present when the search was conducted; (2) whether the contraband was in plain view; (3) the defendant's proximity to and the accessibility of the contraband; (4) whether the defendant was under the influence of a controlled substance when arrested; (5) whether the defendant possessed other contraband when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt. Id. at 161-62. "Intent to deliver" may be proved by circumstantial evidence, such as the quantity of drugs possessed, the manner of packaging, and the presence of the accused in a drug house. Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.-Dallas 2003, no pet.) Intent to deliver is a question of fact for the jury to resolve, and it may be inferred from the acts, words, or conduct of the accused. Id. 2. Discussion The evidence shows Mincey leased and lived in the searched premised; he was observed making a drug sale; he was present when the warrant was executed, but ran away; a large quantity of cocaine and a smaller amount of marijuana was seized; the drugs were in plain view, and some was packaged in baggies. Unlike in Baty v. State, 734 S.W.2d 62, 64 (Tex.App.-Dallas 1987, pet. ref'd), cited by Mincey in which this Court emphasized that no evidence showed a vehicle in which amphetamines were found was owned by the defendant, here there was evidence Mincey leased the premised searched and lived there. Mincey's other authorities are also distinguishable. In Cude v. State, 716 S.W.2d 46, 48 (Tex.Crim.App. 1986), there was evidence the defendant neither leased nor lived in the apartment in which drugs were seized. And in McCarty v. State, 788 S.W.2d 213, 215 (Tex.App.-Fort Worth 1990), pet. dism'd, 820 S.W.2d 795 (Tex.Crim.App. 1991) (per curiam), there was evidence the defendant did not know about drugs found in the house she shared with a roommate. The evidence of the circumstances here, in addition to Mincey's mere presence, is factually sufficient to justify adequately the conclusion that Mincey knowingly possessed the cocaine. See Evans, 202 S.W.3d at 161-62. Barry Ragsdale, a Dallas narcotics investigator, testified as a drug trafficking expert. He testified that the cocaine was broken up and baggie-packaged in sale amounts. Observing the weapons, the scale, the drugs, and the security cameras, Ragsdale opined the person possessing the drugs had the intent to deliver because these items were evidence of a drug distribution enterprise. A video shows Mincey counting large amounts of bills in the house, and he was observed selling drugs and running away from the house. We conclude the circumstantial evidence of the quantity and packaging of the cocaine is factually sufficient to establish Mincey's intent to deliver. See Taylor, 106 S.W.3d at 831. Having applied the appropriate standard of review to all the record evidence, including that outlined above, we conclude the evidence is factually sufficient to support the jury's finding that Mincey possessed the controlled substance with the intent to deliver. See Laster, 275 S.W.3d at 518. We resolve Mincey's third issue against him. B. Deadly Weapon Finding
1. Applicable Law A trial judge is precluded from considering community supervision when it is shown that a defendant used or exhibited a deadly weapon during the commission of a felony offense or during immediate flight therefrom and that the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited. Tex. Code Crim. Proc. Ann. art. 3g(a)(2) (Vernon Supp. 2008). "Use" extends to any employment of a deadly weapon, even its simple possession, if such possession facilitates the associated felony. See Gale v. State, 998 S.W.2d 221, 224 (Tex.Crim.App. 1999). 2. Discussion
Ragsdale testified drug traffickers used weapons to "protect their investment" and intimidate possible intruders. See id. Mincey argues the video showing him in his music studio with the gun while singing a rap song is insufficient to show use or exhibit of the weapon during the offense. However, such exhibition and use may be in addition to, not negating, employment of a deadly weapon to facilitate possession of the cocaine with intent to deliver it. Applying the appropriate standard of review to all the record evidence on this issue, including that outlined above, we conclude the evidence is factually sufficient to support the jury's deadly weapon finding. See Laster, 275 S.W.3d at 518. We resolve Mincey's fourth issue against him. V. CONCLUSION
Having rejected Mincey's four issues, we affirm the trial court's judgment.