Opinion
No. 01-07-01122-CR
Opinion issued April 16, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 240th District Court Fort Bend County, Texas, Trial Court Cause No. 43,449.
Panel consists of Justices JENNINGS, HANKS, and BLAND.
MEMORANDUM OPINION
A jury found appellant, Benjamin Meza, Jr., guilty of the offense of possession of a controlled substance, namely cocaine, with intent to deliver and, after finding that he had committed the offense in a drug-free zone, assessed his punishment at confinement for eighty years. In four points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction, the evidence is legally and factually insufficient to support the finding that he committed the offense in a drug-free zone, and the trial court erred in denying his motion to suppress his statement and admitting evidence that he is a gang member. We affirm.
See Tex. Health Safety Code Ann. §§ 481.002(5), 481.102(3)(D) (Vernon Supp. 2008), § 481.112(a), (e) (Vernon 2003).
See id. § 481.134(c) (Vernon Supp. 2008).
Factual Background
Fort Bend County Sheriff's Department Lieutenant R. Glendening testified that on November 29, 2005, he supervised a team of police officers that executed a search warrant at appellant's residence. At the residence, police officers found 244 grams of cocaine, "some digital scales," and "some little plastic bags." Glendening noted that the officers did not find items such as mirrors, straws, razor blades, needles, or tubes which might indicate that someone had been "snorting," "shooting," or "smoking" cocaine at the residence. City of Rosenberg Police Department Sergeant A. Slater testified that he was also part of the team that executed the search warrant at appellant's residence. Once inside the residence, Slater explained to appellant that he "had a search warrant . . . and that [the police officers] would be searching for cocaine." Appellant responded, "Listen, the cocaine is mine, nobody else['s]. It doesn't belong to anyone else in the house." Appellant then told Slater the location of the cocaine, leading him to the kitchen and pointing "above some cabinets" at a Kleenex box which contained nine bags of cocaine. After his arrest, appellant, at the Fort Bend County Sheriff's Office, provided Slater with a written statement in which he admitted that he had showed police officers where he had stored "between 8 and 9 ounces" of cocaine "on top of the bar cabinet" in the kitchen. Fort Bend County Sheriff's Office Detective A. Gonzales testified that he photographed the Kleenex box and moved it to the top of the kitchen counter. In the Kleenex box, Gonzales found "nine packages of . . . powder cocaine." Gonzales also discovered "on top of the same cabinet" another package in a Ziploc bag which contained powder cocaine. In addition to the cocaine, Gonzales found approximately 120 "small baggies" and a scale. Gonzales estimated the value of the cocaine found at Meza's residence at "close to $12,000."Sufficiency of the Evidence
In his first and second points of error, appellant argues that the evidence is legally and factually insufficient to support his conviction because the State failed to prove that he exercised care, custody, or control over the contraband. Appellant asserts that the only evidence linking him to the contraband was his presence at the residence. He also contends that the evidence is legally and factually insufficient to show that he lived within a drug-free zone. We review the legal sufficiency of the evidence by considering all of 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. Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979)). In doing so, we give deference to the responsibility of the fact-finder to fairly resolve conflicts in testimony, to weigh evidence, and to draw reasonable inferences from the facts. Id. However, our duty requires us to "ensure that the evidence presented actually supports a conclusion that the defendant committed" the criminal offense of which he is accused. Id. In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). We note that a jury is in the best position to evaluate the credibility of witnesses, and we afford due deference to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Although we should always be "mindful" that a jury is in the best position to decide the facts and that we should not order a new trial simply because we disagree with the verdict, it is "the very nature of a factual-sufficiency review that . . . authorizes an appellate court, albeit to a very limited degree, to act in the capacity of a so-called `thirteenth juror.'" Watson, 204 S.W.3d at 414, 416-17. Thus, when an appellate court is "able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury's verdict[,] . . . it is justified in exercising its appellate fact jurisdiction to order a new trial." Id. at 417. A person commits the offense of possession of a controlled substance in an amount more than 200 grams but less than 400 grams if he knowingly and intentionally possesses the controlled substance in the prescribed amount, by aggregate weight, including adulterants or dilutants. See Tex. Health Safety Code Ann. §§ 481.002(5), 481.102(3)(D) (Vernon Supp. 2008), § 481.112(a), (e) (Vernon 2003). To prove possession with intent to deliver, 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), § 481.112(a); Parker v. State, 192 S.W.3d 801, 805 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd). Possession is a "voluntary act 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). If the offense is committed within 1,000 feet of a school, the minimum term of confinement is increased by five years, and the maximum fine is doubled. Tex. Health Safety Code Ann. § 481.134(c) (Vernon Supp. 2008). The State may offer direct or circumstantial evidence to prove a defendant's possession of narcotics. See Brown v. State, 911 S.W.2d 744, 747-48 (Tex.Crim.App. 1995). When the State relies on circumstantial evidence to prove that a defendant knowingly possessed narcotics, the State must link the defendant to the narcotics in such a manner that one could reasonably conclude that the defendant knew of the existence of the narcotics and exercised control over it. Id.; see also Evans v. State, 202 S.W.3d 158, 161 n. 9 (Tex.Crim.App. 2006) (recognizing that necessary connection between defendant and narcotics may be referred to as "affirmative link" or simply as "link"). Whether direct or circumstantial evidence is used, the State must establish that the defendant's connection with the narcotics was more than just fortuitous. Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex.Crim.App. 2005). In determining whether the defendant actually knew that he possessed narcotics, the jury is allowed to infer the defendant's knowledge from his acts, conduct, remarks, and from the surrounding circumstances. Ortiz v. State, 930 S.W.2d 849, 852 (Tex.App.-Tyler 1996, no pet.); Menchaca v. State, 901 S.W.2d 640, 652 (Tex.App.-El Paso 1995, pet. ref'd); see also Gutierrez v. State, 628 S.W.2d 57, 60 (Tex.Crim.App. [Panel Op.] 1980) (concluding that jury could reasonably infer from independent facts and circumstances that defendant knew of narcotic's existence), overruled on other grounds, Chambers v. State, 711 S.W.2d 240, 247 (Tex.Crim.App. 1986). Appellant argues that the State failed to prove that he had care, custody, or control over the cocaine because there is no evidence that he owned the residence in which the cocaine was found and there is evidence that other people had access to the area where the cocaine was found. Viewing the evidence in the light most favorable to the verdict, appellant admitted to the police officers who were executing the search warrant that he lived at the residence and told them that "the cocaine is mine, nobody else['s]. It doesn't belong to anyone else in the house." Appellant showed Sergeant Slater the location of the cocaine in the Kleenex box in the kitchen. After his arrest, appellant also provided Slater with a written statement in which he admitted that he possessed the cocaine that was found in the kitchen. From this evidence, a rational trier of fact could have found that appellant's connection to the cocaine was not merely fortuitous. See Poindexter, 153 S.W.3d at 405-06. Accordingly, we hold that the evidence is legally sufficient to support the jury's implied finding that appellant exercised care, custody, or control over the cocaine. Appellant next argues that the evidence is legally insufficient to support the jury's finding that he committed the offense in a drug-free zone because the only evidence offered to support this finding was Sergeant Slater's "speculative" testimony, based on "a drug-free zone map," that appellant's residence is located within 1,000 feet of an elementary school. Appellant asserts that this evidence is "insufficient to prove that [his] residence [is] within the required distance to be labeled a drug free zone." Viewing the evidence in the light most favorable to the verdict, Sergeant Slater testified, based on "a drug-free zone map" provided to him by the City of Rosenberg, that appellant's residence is "within a thousand feet of Bowie Elementary School." From this evidence a rational trier of fact could have found that appellant's residence was located within 1,000 feet of a school. Accordingly, we hold that the evidence is legally sufficient to support the jury's finding that appellant committed the offense within 1,000 feet of a school and, therefore, in a drug-free zone. Appellant argues that the evidence is factually insufficient to support his conviction because "the evidence overwhelmingly demonstrates that there [is] a reasonable doubt as to whether he" knowingly possessed, with intent to deliver, a controlled substance, namely, cocaine, in an amount of more than 200 grams but less than 400 grams. Viewing the evidence introduced during the guilt stage of trial in a neutral light, appellant stated that he knew the location of the cocaine and that all of the cocaine found in the residence "belonged to [him] and no one else." In his written statement, appellant also confirmed that the "scale, a spoon, and some small baggies next to the cocaine" belonged to him. Lieutenant Glendening testified that the presence of these items — and the absence of narcotics paraphernalia that would be used to ingest the cocaine — indicated that appellant "intended to distribute the cocaine." Glendening also testified that the large amount of cocaine in the residence further strengthened this conclusion. Based on this evidence, the jury found that appellant (1) exercised care, custody, control, or management over the cocaine; (2) intended to deliver the cocaine; and (3) knew that the substance in his possession was a controlled substance, namely cocaine. See Tex. Health Safety Code Ann. §§ 481.002(38), 481.112(a); Parker v. State, 192 S.W.3d 801, 805 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd). In his briefing, appellant does not point to, nor do we find in the record, evidence that would lead us to conclude that the verdict is "clearly wrong and manifestly unjust" or that the proof of guilt is against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 414-15. Accordingly, we hold that the evidence is factually sufficient to support the jury's implied finding that appellant exercised care, custody, control, or management over the cocaine. Appellant next argues that the evidence is factually insufficient to support the jury's finding that he committed the offense in a drug-free zone because the only evidence offered to support this finding was Sergeant Slater's "speculative" testimony, based on "a drug-free zone map," that appellant's residence is located within 1,000 feet of a school. As noted above, Sergeant Slater testified, based on a "drug-free zone map" provided to him by the City of Rosenberg, that appellant's residence is "within a thousand feet of Bowie Elementary School." Appellant offered no rebuttal testimony or contrary evidence. Accordingly, we hold that the evidence is factually sufficient to show that appellant committed the offense in a drug-free zone. We overrule appellant's first and second points of error.Motion to Suppress
In his third point of error, appellant argues that the trial court erred in denying his motion to suppress his written statement because he was intoxicated at the time he gave the statement. Appellant also asserts that the trial court erred in not making findings of fact and conclusions of law regarding his waiver of his legal rights. When the voluntariness of a statement made by a defendant is questioned, the trial court is required to make an independent finding, outside the jury's presence, as to whether the statement was made under voluntary conditions. Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon 2005). If the trial court determines that the defendant made the statement voluntarily, it must then enter findings of fact and conclusions of law. Id.; Urias v. State, 155 S.W.3d 141, 142 (Tex.Crim.App. 2004). The findings "`need not be made with minute specificity as to every alleged and hypothetical possibility for physical or mental coercion, but need only be sufficient to provide the appellate court and the parties with a basis upon which to review the trial court's application of the law to the facts.'" Vasquez v. State, 179 S.W.3d 646, 654 (Tex.App.-Austin 2005) (quoting Nichols v. State, 810 S.W.2d 829, 831 (Tex.App.-Dallas 1991, pet. ref'd)), aff'd, 225 S.W.3d 541 (Tex.Crim.App. 2007). When the trial does not make findings, "[t]he proper procedure is that the trial judge be directed to make the required findings of fact and conclusions of law." Urias, 155 S.W.3d at 142. On December 3, 2008, after discovering that the trial court had not issued the requisite written findings of fact and conclusions of law, this Court ordered the appeal abated and directed the trial court "to complete written findings of fact and conclusions of law." The trial court has done so. Therefore, appellant's complaint that the trial court did not make findings of fact and conclusions of law is moot. See Rocha v. State, 16 S.W.3d 1, 10 (Tex.Crim.App. 2000). A defendant's statement may be used in evidence against him if the defendant made it freely and voluntarily and without compulsion or persuasion. Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005). At a suppression hearing on a defendant's challenge to the voluntariness of his statement, the trial court is the sole and exclusive trier of fact and judge of witnesses' credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002). Accordingly, the trial court may choose to believe or to disbelieve all or any part of the witnesses' testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). In reviewing a trial court's ruling, we generally consider only evidence adduced at the suppression hearing because the ruling was based on it rather than evidence introduced later. Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App. 1996). When considering whether a statement was voluntarily made, we consider the totality of the circumstances in which the statement was obtained. Wyatt v. State, 23 S.W.3d 18, 23 (Tex.Crim.App. 2000). At the suppression hearing, Officer Slater testified that at the Fort Bend County Sheriff's Office he "read [appellant] his [legal] rights prior to obtaining the statement" and that appellant "knowingly and intelligently waive[d] those rights." Slater then interviewed appellant and typed appellant's statement using the information that appellant provided. After the statement had been typed, Slater "explained to [appellant] that he need[ed] to read the entire statement." After reading his statement, appellant initialed "next to each one of the" warnings about his legal rights and signed "the bottom of each page." Slater stated that appellant did not say that he was tired and did not "seem asleep or out of it." Fort Bend County Deputy Sheriff B. Leach testified that he was in the interview room with appellant "for the complete time that [appellant] was there." Leach observed that appellant did not "look like he may have been under the influence of any drug or narcotic," nor did "he look sleep deprived." Appellant testified that he did not read the statement that Slater typed because he "wanted to go to sleep." He agreed that he did initial and sign the statement. The trial court made the following findings of fact:. . . .
4. Sergeant Slater of the Rosenberg Police Department read [appellant] . . . the warnings provided in Code of Criminal Procedure Art. 38.22, prior to [appellant] giving his oral and written statements to police.
5. [Appellant] knowingly and voluntarily waived his [legal] rights, both verbally and in writing, and agreed to give Sergeant Slater a statement.
6. After giving his oral statement, Sergeant Slater then typed [appellant's] statement on a computer and gave [appellant] a copy to read and make any corrections before signing it.
7. [Appellant] read out loud the top portion of his statement to indicate that he could read, write, and speak English.
8. [Appellant] acknowledged his statement was freely and voluntarily given, and that it was correct as typed, by signing his written statement.
9. There was no credible evidence presented at the hearing on [appellant's] motion to suppress his confession that any member of law enforcement coerced [appellant] into giving either his oral or written statement.Finding that the testimony of Slater and Leach was credible and that the testimony of appellant was not credible, the trial court ultimately decided that appellant had "acknowledged [that] his statement was freely and voluntarily given, and that it was correct as typed, by signing his written statement." The trial court's findings are supported by the evidence adduced at the suppression hearing. Accordingly, we hold that the trial court did not err in denying appellant's motion to suppress his statement. We overrule appellant's third point of error.