No. 05-07-00696-CR
Opinion issued June 27, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 296th Judicial District Court Collin County, Texas; Trial Court Cause No. 296-80066-04.
Before Chief Justice THOMAS and Justices MAZZANT and MALONEY..
The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
FRANCES MALONEY, Justice.
The trial court convicted Brandy Lanita Paris of possession of methamphetamine, assessed a six-month sentence in State Jail and $500 fine, suspended the State Jail sentence, and placed appellant on community supervision for two years. In one point of error, appellant complains that factually insufficient evidence exists to affirmatively link appellant to the contraband. We affirm the trial court's judgment.
BACKGROUND
Appellant, Ashley Cassidy, and Richard Knight had lived together in Allen, Texas at a residence owned by appellant's parents. A search warrant issued for the Allen residence. During the search, officers found a purse containing methamphetamine and a parcel from the Texas Department of Transportation addressed to appellant in the master bedroom. FACTUAL SUFFICIENCY
In her sole point of error, appellant complains the evidence was factually insufficient because it did not affirmatively link the methamphetamine to her. Specifically, appellant argues that appellant no longer lived there and others, who were still living there, had access to the area where the drugs were found. The State responds that appellant used drugs while driving, was seen relocating drugs in her vehicle, and the police found "abundant evidence of methamphetamine and marijuana use in her trash" in the month preceding the search of her home. The State contends that others "who had access to [appellant's] room does not sever" appellant's link to the methamphetamine. 1. The Evidence a. Troy Eavenson
Eavenson, an Allen Police Corporal, testified that he investigated appellant's drug use and secured the search warrant for the allen residence. His research of records had established that three people shared the Allen residence-appellant, Cassidy, and Knight. Cassidy and Knight shared the southeast bedroom and appellant stayed in the southwest bedroom. Inside the southwest bedroom, the searchers found a brown purse on the floor that contained a plastic bag containing white powder residue and a parcel from the Texas Department of Transportation addressed to Brandy Paris at another address in Irving, Texas. An analysis showed the residue to be methamphetamine. Additionally, in that same bedroom, the police found a videotapelabeled as appellant's eighteenth birthday, photographs of appellant, and other papers addressed to appellant at the Allen residence. In early June, Eavenson had done "two trash runs" at the Allen residence that netted broken pipes, "baggies," water logs, mail addressed to appellant, as well as marijuana seeds and stems. On cross-examination, appellant established that Eavenson had never seen appellant at the Allen residence. He had seen her vehicle there, but never saw appellant herself at the Allen residence. Eavenson admitted that it had been so long since he checked he could not remember in whose name the vehicle was registered. But, he did remember the vehicle he saw at the Allen residence was the same vehicle appellant was driving when she picked up her dog at animal control. Eavenson also stated he saw three or four vehicles at the Allen residence. His research indicated that appellant's parents owned the Allen residence, but water logs were in appellant's name and he found mail addressed to appellant in the trash at the Allen residence. This led him to believe that appellant resided there. When the police arrived to execute the search warrant, only Cassidy was on the premises. She left just before the search. The police stopped and detained her about two blocks from the Allen residence. The search team found the door to the southwest bedroom closed, but not locked. Eavenson agreed that anyone in the house could have used the southwest bedroom where he found the brown purse. The brown purse was on the floor in front of an open closet, near the bathroom door. Eavenson deduced from the property found in the southwest bedroom-scrapbooks, mail addressed to appellant in the brown purse, and videotapes-that appellant lived there. b. Sherry Paris
Appellant called her mother to testify. She testified that Knight and Cassidy agreed to share the rent with appellant. They had moved into the Allen residence in March, but had not paid any rent. On June 26, appellant had returned to Irving to live with her mother. However, she had left "stuff" in the searched house. At the first of March or April, a leak developed from the bathtub off the hallway. If you ran water, the tub would leak, so everybody used the master bathroom. Paris testified that she and appellant shopped together. Paris purchased a lot of appellant's clothing. The brown bag was not appellant's style, and Paris had never seen the brown bag before. Additionally, someone had forged appellant's name on checks and cashed them at various places. On cross-examination, the State established that appellant moved into the Allen residence when she was eighteen or nineteen. Apparently, appellant had left her dogs at the Allen residence when she had moved back to Irving. Appellant, however, would return to the Allen residence from time to time to pick up packed items and to care for her dogs. When she went to get the dogs in June, her Saint Bernard was missing. Appellant made arrangements to pick up the dog at the animal shelter and brought it back to Irving. c. The Search Warrant
The trial court admitted, without objection, the Search Warrant and its attached affidavit that issued on July 10, 2003. In the affidavit, Eavenson recited that he had "received information" from the Allen Animal Control Supervisor that when appellant came to pick up her dog at the shelter, appellant's eyes were bloodshot and she was "very belligerent." A confidential informant (CI #1), an unidentified volunteer, helped appellant load the dog into her vehicle. CI#1 smelled a "strong odor of burnt marijuana" coming from inside the vehicle and saw appellant move a tin containing what she believed to be marijuana under the driver's seat. That same CI#1 described appellant as "being `wasted' . . . [and] unsteady, with slurred and belligerent speech." The affidavit corroborated Eavenson's testimony regarding his search of the trash. But, also recited that his June 9th search for abandoned property revealed aluminum foil which when field tested contained traces of methamphetamine. His June12th search for abandoned property revealed two "baggies" which when tested contained traces of methamphetamine and three "push rods" commonly used for smoking illegal drugs. 2. Standard of Review
In reviewing the factual sufficiency of evidence to support a verdict, we view all evidence in a neutral light and set aside a judgment only when (1) the evidence is so weak that it is clearly wrong and manifestly unjust or (2) it is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). We apply the same standard to circumstantial and direct evidence. King v. State, 29 S.W.3d 556, 565 (Tex.Crim.App. 2000). In conducting this review, we must not "substantially intrude upon" the factfinder's role as the sole judge of the evidence's weight and the testimony's credibility. See Johnson v. State, 23 S.W.3d 1, 20 (Tex.Crim.App. 2000); see also Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). We must defer to the factfinder's decisions on credibility and weight. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). 3. Applicable Law
A person possess methamphetamine if she exercised care, custody, control, or management over the drug and knew that methamphetamine was illegal. Tex. Health Safety Code Ann. §§ 481.002(38), 481.112(a) (Vernon 2003 Supp. 2007). Possession need not be exclusive, but, when appellant is not in exclusive control of the place where the drug is found, the evidence must link appellant to the contraband. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005). 4. Application of Law to Facts
Appellant does not contest the propriety of the initial investigation, the sufficiency of the warrant, the existence of probable cause, or any other preliminary legal question. The CI#1's observations came into evidence through the affidavit attached to the search warrant admitted as State's Exhibit Number 1 after appellant's attorney stated he had "no objection." We acknowledge that this out of court statement could have been considered hearsay. But, once admitted without objection, it became probative and supported the judgment. See Poindexter, 153 S.W.3d at 409 (citing Marin v. State, 851 S.W.2d 275, 278 (Tex.Crim.App. 1993)). The parties agree that appellant did not have exclusive possession of the Allen residence. Although appellant maintains that she was no longer living at the Allen residence when the police executed the search warrant, she did not contest that she was living there when Eavenson executed his "trash runs" that revealed traces of marijuana and methamphetamine. Appellant's mother testified that appellant had moved into the Irving house sometime around June 26th, but conceded that appellant had returned to the Allen house on occasion. Additionally, the brown purse contained a letter addressed to appellant at the Irving address. The police found other mail, including the water log, addressed to appellant, together with appellant's personal items at the Allen address. After reviewing and weighing the evidence supporting the judgment and the evidence contrary to the judgment, we cannot conclude that the evidence presented is so weak as to be clearly wrong and manifestly unjust or against the great weight and preponderance of the evidence. Nor can we conclude that the contrary proof outweighed the proof of guilt. Consequently, we conclude the evidence was factually sufficient. We affirm the trial court's judgment.