Opinion
Nos. 10-06-00309-CR, 10-06-00310-CR
Opinion delivered and filed May 14, 2008. DO NOT PUBLISH.
Appealed from the 361st District Court Brazos County, Texas, Trial Court Nos. 06-00676-CRF-361 and06-05920-CRM-361.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Patrick Johnson was charged with the offenses of possession of cocaine with intent to deliver and possession of marihuana. In a bench trial, the trial court found him guilty of both offenses and sentenced him to thirty years in prison for possession of cocaine with intent to deliver and 180 days in the Brazos County Jail for possession of marihuana. In eight issues, Johnson challenges the arrest, the search and seizure incident to the arrest, and the trial court's refusal to compel the identity of the confidential informant.
Background
On December 2, 2005, Officer Ryan Rutledge was working as a Narcotics Task Force Officer. Around noon that day, he received a call from a confidential informant who traditionally worked with Officer Hanks, also with the Task Force. At trial, Officer Hanks testified that in his previous work with this informant he received "very good information" that led to the seizure of drugs and felony arrests. He stated that he knew the informant's identity and had worked with him on ten to fifteen occasions. The informant stated that he had just seen one-and-a-half ounces of crack cocaine in the floorboard of a large maroon car. The informant provided the license plate number and the area where the vehicle could be found. The informant also identified the driver of the vehicle as "Head" McGee, but he did not mention a passenger. After receiving the tip, Officer Rutledge, along with other officers, began to search for the vehicle in the designated location. About twenty minutes after receiving the tip, Officers Hanks and Glidewell traveled to the area of East M.L.K and North Texas Avenue in Bryan. There, they located a large maroon car sitting at the intersection. Officer Hanks confirmed the description of the vehicle and the license plate number given by the informant. They followed the vehicle until it pulled into the handicap zone at the King Mart convenience store. Officer Hanks approached the passenger side where Johnson was sitting and noticed two marihuana cigars in the center dash of the vehicle. Both Johnson and McGee, the vehicle's driver, were asked to step out of the vehicle and placed under arrest for possession of marihuana. During the arrest, McGee stated that the marihuana belonged to him. Johnson was searched, and officers found inside of his left coat pocket a plastic bag with five large slabs of crack cocaine and a wire wisk. Johnson also had $780 on his person. Officer Hanks noted that the field weight of the cocaine was 18.13 grams. Johnson was charged with possession of a controlled substance with intent to deliver. At the bench trial, McGee testified that when he pulled into the King Mart, an officer walked up to the driver's side of his vehicle with a gun in his hand. He stated that when the officer approached, his windows were up, and his car had dark "illegal" tint. Brandon Turner, an eyewitness, testified that he was across the street from the King Mart when Johnson was arrested. He stated that he was only able to see what happened on the driver's side of the vehicle. He observed one of the officers "jump out" with a gun in his hand. He also testified that he knew both Johnson and McGee before trial but does not maintain a close relationship with either. Before trial, Johnson filed a motion to suppress the drugs that were found as a result of the search and a motion for production of all informers in open court. The court denied the motion to suppress and declined to hold an in-camera hearing to identify the informant or require the informant to appear in open court.Probable Cause
In issues one, three, and five, Johnson complains that the trial court erred in finding that the vehicle in which Johnson was a passenger was legally detained based on information provided by a confidential informant. Essentially, Johnson argues that his warrantless arrest was without probable cause and the cocaine found incident to that arrest should have been suppressed at trial because the tip from the informant did not mention him and did not reference a passenger in the vehicle. Thus, the officers did not have probable cause to arrest him. The State argues that viewed under the totality of the circumstances, the trial court did not abuse its discretion in finding that Officer Hanks had probable cause to arrest Johnson because the officers received a tip from a confidential informant that was later corroborated when the vehicle and suspect were located. The State further argues that because the arrest and search were lawful, the cocaine found on Johnson was properly admitted at trial. We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). A trial court's denial of a motion to suppress is reviewed for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999). The trial court's findings of fact are given "almost total deference," and in the absence of explicit findings, the appellate court assumes the trial court made whatever appropriate implicit findings that are supported by the record. Carmouche, 10 S.W.3d at 327-28; Guzman, 955 S.W.2d at 89-90. But when the trial court's rulings do not turn on the credibility and demeanor of the witnesses, we review de novo a trial court's rulings on mixed questions of law and fact. Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App. 2005). Therefore, although due weight should be given to the inferences drawn by trial judges and law enforcement officers, determinations of matters such as reasonable suspicion and probable cause are reviewed de novo on appeal. Guzman, 955 S.W.2d at 87 (citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). A confidential tip, standing alone, does not constitute probable cause. See State v. Steelman, 93 S.W.3d 102, 108 (Tex.Crim.App. 2002) (citing Ebarb v. State, 598 S.W.2d 842, 845 (Tex.Crim.App. 1980)). But probable cause may arise from information supplied by a confidential informant provided the information is corroborated. Eisenhauer v. State, 678 S.W.2d 947, 953 (Tex.Crim.App. 1984), overruled on other grounds by Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App. 1991). Texas follows the "totality-of-the-circumstances" approach in evaluating informant-based probable cause. Johnston v. State, 99 S.W.3d 269, 272 (Tex.App.-Texarkana 2003, no pet.). Under the totality-of-the-circumstances approach, an informant's veracity, reliability, and basis of knowledge are all highly relevant in determining the value of a tip. Id. These elements, however, are not entirely separate and independent requirements to be rigidly exacted in every case. Id. Rather, they are simply closely intertwined issues that may usefully illuminate the commonsense, practical question of whether there is probable cause to believe that contraband or evidence is located in a particular place. Id. In considering the totality of the circumstances in this case, we find that the trial court did not abuse its discretion in finding probable cause. The officers knew the following facts when they approached McGee's vehicle: The confidential informant told Officer Rutledge that he had seen one-and-a-half ounces of crack cocaine in the floorboard of a large maroon car. The informant provided the correct license plate information, the approximate location of the vehicle, and the driver's nickname and last name. According to Officer Hanks, he had worked with the informant ten to fifteen times and the informant had provided reliable information in the past. Hanks and other officers also independently corroborated the informant's tip by sighting the maroon vehicle, bearing the identified license plate in the identified area, approximately twenty minutes after receiving the informant's tip. This information was sufficient to raise a high degree of suspicion and created a reasonable belief that cocaine was located in the vehicle, thus providing the officers with probable cause to search the vehicle. Johnston, 99 S.W.3d at 272. As officers approached the vehicle, two marihuana cigars were seen in the middle dash. Although Johnson's mere presence in the car that the police had probable cause to suspect contained contraband did not, in and of itself, give the police the right to also search Johnson, the police could search him after the marihuana was identified and he was arrested. See United States v. Di Re, 332 U.S. 581, 586-87, 68 S.Ct. 222, 224-25, 92 L.Ed. 210 (1948) (probable cause to search a car does not, automatically, confer an incidental right to search all persons in the car); see also Legall v. State, 463 S.W.2d 731, 732 (Tex.Crim.App. 1971). Both Johnson and McGee were arrested for the possession of marihuana after the marihuana was seen in the vehicle. Johnson was then searched. Because we have concluded that the officers had probable cause to search the vehicle based on the corroborated tip given by the informant, the warrantless arrest for the marihuana was lawful. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). Further, because we have concluded that the warrantless arrest was lawful, the court did not err in denying Johnson's request to suppress the evidence obtained from the search of Johnson's person. Legall, 463 S.W.2d at 732. We overrule Johnson's issues one, three, and five.Affirmative Links
In issues two and four, Johnson argues that the evidence was legally insufficient to "affirmatively link" him to the marihuana found in the vehicle because there are no independent facts or circumstances linking him to the marihuana. Specifically, he asserts that the tip from the informant did not mention him specifically, or a passenger generally, and the vehicle did not belong to him. Additionally, when asked about the marihuana, McGee, the vehicle's driver, accepted responsibility for the marihuana and told the Officer that he planned to "drive around and smoke that day." The State argues that it proved sufficient links connecting Johnson to the marihuana. When reviewing a challenge to the legal sufficiency of the evidence to establish the elements of a penal offense, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Our duty is to determine if the finding of the trier of fact is rational by viewing all of the evidence admitted at trial in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex.Crim.App. 1992). In doing so, any inconsistencies in the evidence are resolved in favor of the verdict. Curry, 30 S.W.3d at 406. To prove drug possession, the State must show 1) a defendant exercised care, custody, control, or management over the contraband, and 2) that he knew he possessed a controlled substance. Rischer v. State, 85 S.W.3d 839, 843 (Tex.App.-Waco 2002, no pet.). A defendant's knowing possession of contraband may not be proved merely by his presence at the scene when the drugs were found, unless the defendant had been in exclusive possession of that location. See Hudson v. State, 128 S.W.3d 367, 374 (Tex.App.-Texarkana 2004, no pet.). The control over the contraband need not be exclusive, but can be jointly exercised by more than one person. Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App. 1986). When the accused is not in exclusive control of the place where the contraband is found, the State must show additional affirmative links between the accused and the contraband to show his or her knowledge of or control over the contraband. Id. Factors which have been considered affirmative links include: 1) presence when the search was executed; 2) contraband in plain view; 3) proximity to and accessibility of the contraband; 4) the accused being under the influence of contraband when arrested; 5) the accused's possession of other contraband when arrested; 6) the accused's incriminating statements when arrested; 7) attempted flight; 8) furtive gestures; 9) odor of the contraband; 10) presence of other contraband; 11) the accused's right to possession of the place where contraband was found; and 12) drugs found in an enclosed place. Id. 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 affirmatively to link the accused to the contraband. See Bellard v. State, 101 S.W.3d 594, 599 (Tex.App.-Waco 2003, pet. ref'd). Furthermore, the defendant must be affirmatively linked to the contraband itself rather than the area where it was found. Mendoza v. State, 583 S.W.2d 396, 399 (Tex.Crim.App. 1979). Johnson argues that he did not smell of marihuana or appear under the influence when he was arrested. The State argues that Johnson was a passenger in the vehicle when it was searched. The marihuana was in plain view in the center dash ashtray of the vehicle, in close proximity to Johnson. Additionally, incident to his arrest for the marihuana possession, Johnson was found to have a bag of crack cocaine and a wire wisk. In viewing the evidence in the light most favorable to the verdict, we cannot say that the factfinder was not rationally justified in finding that Johnson possessed the marihuana. See Curry, 30 S.W.3d at 406. Accordingly, we find that the evidence is legally sufficient to support a finding that Johnson knowingly possessed marihuana as alleged. We overrule Johnson's issues two and four.Confidential Informant
In his last three issues, Johnson contends that the trial court erred when it refused to disclose the informant's identity in open court and hold an in-camera hearing to evaluate the informant's reliability. Johnson asserts that disclosure of the informant's identity is necessary because there was a reasonable probability that the confidential informant would be a material witness to his guilt or innocence. We review a trial court's denial of a motion to disclose a confidential informant under an abuse of discretion standard. Taylor v. State, 604 S.W.2d 175, 179 (Tex.Crim.App. [Panel Op.] 1980). Under that standard, a trial court's decision is disturbed on appeal only when it falls outside the zone of reasonable disagreement. Jones v. State, 944 S.W.2d 642, 651 (Tex.Crim.App. 1996). Generally, the State has a privilege to refuse to disclose the identity of a confidential informant who has furnished information to a law enforcement officer conducting an investigation. See TEX. R. EVID. 508(a). There are three exceptions that may require the State to disclose the identity of the informant. See TEX. R. EVID. 508(c)(1)-(3). Johnson relies on the second exception, which provides in pertinent part:Testimony on Merits. If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of . . . guilt or innocence in a criminal case, and the public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informant can, in fact, supply that testimony.TEX. R. EVID. 508(c)(2). The defendant bears the initial burden of showing that the confidential informant may be able to give testimony necessary to a fair determination of the defendant's guilt or innocence. Id. This initial burden has been described as a "plausible showing." Bodin v. State, 807 S.W.2d 313, 318 (Tex.Crim.App. 1991). "Evidence from any source, but not mere conjecture or speculation must be presented to make the required showing that the informant's identity must be disclosed." Id. If the defendant meets the burden of making the preliminary showing, then the trial court is required to hold an in-camera hearing. See Bailey v. State, 804 S.W.2d 226, 230 (Tex.App.-Amarillo 1991, no pet.). The in-camera hearing provides the State the opportunity to show facts that rebut the defendant's preliminary showing. Id. Whenever an informant is an eyewitness to an alleged offense, then that informant can give testimony necessary to a fair determination of the issue of guilt or innocence. Anderson v. State, 817 S.W.2d 69, 72 (Tex.Crim.App. 1991). However, when the informant's information is used only to establish probable cause and the informant was not a participant in the offense for which the defendant is charged, the identity of the informant need not be disclosed because his testimony is not essential to a fair determination of guilt. See Washington v. State, 902 S.W.2d 649, 656-57 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd). Johnson reasons that the initial detention of McGee's vehicle was based on the tip of the informant, and he argues that several cases have held that a defendant can satisfy the initial burden by showing that the confidential informant was an eyewitness to the search or participated in the transaction for which the defendant was indicted. See Anderson, 817 S.W.2d at 72; Bodin, 807 S.W.2d at 318; Sanchez v. State, 98 S.W.3d 349, 356 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). Here, the informant could offer no testimony about the actual offense. There is no evidence that the confidential informant participated in the offense for which Johnson was charged, nor is there evidence the informant was an eyewitness to the search. The informant's testimony would only be relevant to the issue of probable cause, thus making it unnecessary for the identity of the informant to be disclosed. Washington, 902 S.W.2d at 657. Consequently, the trial court did not abuse its discretion in refusing to hold an in-camera hearing or to disclose the identity of the informant. Ford v. State, 179 S.W.3d 203, 210 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd). We overrule Johnson's sixth and eighth issues.