Opinion
Nos. 05-02-01854-CR, 05-02-01855-CR, 05-02-01856-CR.
Opinion Filed February 19, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd District Court, Dallas County, Texas Trial Court Cause Nos. F02-01570-P, F02-50728-P, F02-50740-P. Affirmed.
Before Justices MOSELEY, RICHTER, and FRANCIS.
MEMORANDUM OPINION
A jury convicted Lonnie Baker of possession of cocaine, possession of heroin, and unlawful possession of a firearm. Baker pled true to two enhancement paragraphs. The trial court assessed punishment at forty-five years' confinement in each case. Baker appeals. In five issues he argues the trial court erred in denying his motion to suppress evidence in all three cases, and that the evidence is legally and factually insufficient to support the convictions for possession of the controlled substances. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm the trial court's judgments. Baker filed a motion to suppress the drugs and the firearm. The record at the motion to suppress hearing indicates that Officer Jason Jarc responded to a call regarding a possible drug sale in a nearby vacant lot. As he approached the vacant lot in his marked patrol car, Jarc saw Baker drop a paper bag, walk away, and sit on a milk crate about eight feet from the bag. Baker, who matched the description of the suspect, was the only person in the vacant lot. Jarc asked Baker to approach the police car, where Jarc searched and handcuffed him as a safety precaution. Jarc then retrieved the bag, which contained a loaded pistol and two pill bottles containing capsules. Jarc placed Baker under arrest. The contents of the capsules field-tested positive for cocaine and heroin. The trial court denied Baker's motion, and the contents of the bag were admitted into evidence. In his first point, Baker asserts the trial court erred in denying his motion to suppress. He asserts that he maintained control over the paper bag despite placing it on the ground and walking away, and thus that Jarc needed probable cause to search the bag. He also asserts that Jarc had no such probable cause because Baker's actions were as consistent with legal activity as they were with illegal activity. When reviewing a trial court's ruling on a motion to suppress, we give almost total deference to the trial court's determination of the facts particularly when the finding involves an evaluation of a witness's credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Similarly, we afford the same deference to mixed questions of law and fact if resolving those ultimate questions turns on an evaluation of credibility and demeanor. Id. However, mixed questions of law and fact that do not turn on credibility and demeanor may be reviewed de novo. Id. We must uphold the trial court's ruling if it was correct under any theory of law applicable to the case. Jones v. State, 982 S.W.2d 386, 389 (Tex.Crim.App. 1998). There is no seizure for constitutional purposes when police take possession of abandoned property. See Cooper v. State, 889 S.W.2d 8, 10 (Tex.App.-Eastland 1994, no pet.); see also California v. Hodari D., 499 U.S. 621, 629 (1991) (cocaine abandoned by defendant running from police not fruit of a seizure). A voluntary abandonment of property occurs if (1) the defendant intended to abandon the property, and (2) his decision to abandon the property was not due to police misconduct. See Brimage v. State, 918 S.W.2d 466, 507 (Tex.Crim.App. 1996) (op. on reh'g). Baker argues Jarc's testimony does not support the trial court's finding that Baker intended to abandon the bag and its contents because Jarc testified that Baker's conduct was also consistent with placing the bag on the ground and staying nearby. Baker concludes this is evidence he had the intention of returning to claim the bag. However, "even though a person may have a subjective intent to regain possession of his property, if he places or throws it into an area open to the public he has abandoned his property for search and seizure purposes." Armstrong v. State, 966 S.W.2d 150, 153 (Tex.App.-Austin 1998, no pet.). The record supports the finding that Baker intended to abandon the bag and its contents when he dropped it in a public place and walked several feet away from it. Abandonment was complete when Baker dropped the bag on the ground. See id. Baker does not argue that his decision to abandon the bag was induced by any police misconduct. Baker relinquished his possession and any privacy interest in the bag by dropping it and walking away as Jarc was merely approaching and before Jarc had talked to him. See id. 966 S.W.2d at 152 (police officer may approach a citizen without probable cause or reasonable suspicion to ask a citizen questions or even to request a search) (citing Hodari D., 499 U.S. at 628). Baker's decision to drop the bag on the ground was not due to any police misconduct. Also, because Jarc had a reasonable suspicion to justify detaining Baker, the seizure of the bag and its contents was not tainted by police misconduct. See Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App. 1997) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). Because the record supports the finding that Baker voluntarily abandoned his property, we conclude the trial court did not err in denying Baker's motion to suppress. We resolve Baker's first issue against him. In his last four issues, Baker asserts the evidence is legally and factually insufficient to support his convictions for possession of a controlled substance because the evidence does not affirmatively link him to the possession of the cocaine and heroin. We apply the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995) (legal sufficiency); see also Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2002) (factual sufficiency). The State was required to prove beyond a reasonable doubt that Baker intentionally and knowingly possessed cocaine in an amount of one gram or more but less than four grams in one case, and heroin in an amount of four grams or more but less than 200 grams in the other case. See Tex. Health Safety Code Ann. § 481.115(a) (Vernon 2003). To do this, the State must prove Baker exercised care, control, or management over the cocaine and heroin and knew they were contraband See Guiton v. State, 742 S.W.2d 5, 8 (Tex.Crim.App. 1987). If a defendant does not have exclusive possession of the place where the contraband was found, the State must affirmatively link the defendant to the contraband See Brown v. State, 911 S.W.2d 744, 748 (Tex.Crim.App. 1995). Possible factors to consider in determining whether a defendant is affirmatively linked to contraband include: (1) whether the defendant was present when the drugs were found; (2) whether the drugs were in plain view; (3) the defendant's proximity to and the accessibility of the drugs; (4) whether the defendant was under the influence of drugs when arrested; (5) whether the defendant possessed other contraband; (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 drugs; (10) whether the defendant owned or had the right to possess the place where the drugs were found; (11) whether the place the drugs were found was enclosed; (12) the amount of drugs found; (13) whether the defendant possessed weapons; and (14) whether the defendant possessed a large amount of cash. See Pettigrew v. State, 908 S.W.2d 563, 571 (Tex.App.-Fort Worth 1995, pet. ref'd). The number of factors present is not as important as the logical force or the degree to which the factors, alone or in combination, tend to affirmatively link the accused to the contraband See Wallace v. State, 932 S.W.2d 519, 524 (Tex.App.-Tyler 1995, pet. ref'd). Moreover, the link need not be so strong as to preclude every other reasonable explanation except his guilt. See Brown, 911 S.W.2d at 748. Jarc testified before the jury that he was responding to a dispatch about a man meeting Baker's description selling drugs in a vacant lot. When Jarc arrived, he saw Baker holding a brown paper bag. Baker then dropped the bag, walked away, and sat down. The bag contained a loaded pistol and two pill bottles containing over 100 capsules of drugs. Baker had over $500 in cash in his possession in various denominations, which is consistent with the proceeds received from drug sales. Baker was the only one present in the vacant lot. Jarc also testified that it was not possible that he picked up a different bag from the one he saw Baker drop. Jarc testified that Baker's conduct was consistent with a "throw down" where an individual simply gets rid of the contraband and then acts as if nothing is going on. Having considered the evidence (including the above evidence) in the light most favorable to the verdict, we conclude the evidence tends to affirmatively link Baker to the cocaine and heroin. See Brown, 911 S.W.2d at 748; Wallace, 932 S.W.2d at 524. Thus, a rational trier of fact could have found the essential elements of the offenses beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Mason, 905 S.W.2d at 574. Therefore, we further conclude the evidence is legally sufficient to support Baker's convictions. We resolve Baker's legal sufficiency issues against him. Having concluded that the evidence is legally sufficient, we now turn to Baker's factual insufficiency issues. Baker cites the following evidence as the most important and relevant to his assertion that the evidence is factually insufficient to affirmatively link him to the cocaine and heroin. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Specifically, Baker points to Jarc's testimony that Baker's conduct could be consistent with placing the bag on the ground with the intent to retrieve it later. Baker also points out that he did not appear surprised when he saw the police, did not attempt to flee, and none of his property was found near the bag. However, this evidence is consistent with Baker having possessed the bag containing the drugs, dropping the bag as part of a "throw down" when he saw Jarc's police car, and Baker intending to retrieve the bag and drugs after Jarc left. After reviewing all the evidence in a neutral light, we cannot say the evidence of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or that the proof of guilt is greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 10-11. We need not further detail the rest of the evidence. See Sims, 99 S.W.3d at 603. Accordingly, we conclude the evidence is factually sufficient. We resolve Baker's factual sufficiency issues against him. Having resolved all of Baker's issues against him, we affirm the trial court's judgments.