Opinion
No. 04-17-00344-CR
05-16-2018
Ernest PENA, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CR4227
Honorable Steve Hilbig, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Irene Rios, Justice AFFIRMED AS MODIFIED
Ernest Pena appeals his conviction for the offense of possession of methamphetamine in an amount of less than one gram. Pena argues the evidence was insufficient to convict him of the offense and the trial court abused its discretion in awarding $57.00 in restitution to the San Antonio Police Department. Because the trial court erred in awarding restitution, we modify the trial court's judgment to delete the award of $57.00 in restitution to the San Antonio Police Department. As modified, we affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Three San Antonio Police Department officers responded to a call for a disturbance at a residence. The first officer who arrived on the scene, Detective Al Cruz, was unavailable to testify at trial. The other two officers, Michael Mandujano and Matthew Ott both testified concerning the disturbance call.
The evidence at trial showed that the three officers responded to a report of a disturbance at a house on East Magnolia. They spoke with the resident, Stella Martinez, and determined no crime had been committed. As they were leaving, they heard a male and female screaming and yelling, and the sounds of breaking glass, which seemed to be coming from the rear of the home. Officers Mandujano and Ott ran toward an alleyway behind the home while Detective Cruz went to the front of the house to get his vehicle. Once Officers Mandujano and Ott got to the alleyway, they saw Mrs. Martinez. She was upset and yelling that "he had taken her credit card and money," referring to the defendant. The officers observed the defendant, who was Mrs. Martinez's common-law husband, walking away from them down the alleyway. They yelled at the defendant and told him to return. He looked at them, but then continued to walk away. When the defendant reached the street, he turned right. At that point, Detective Cruz began to follow the defendant in his patrol car. Officer Mandujano, who was in front of Officer Ott, saw Detective Cruz detain, handcuff and frisk the defendant, finding the credit card, money and narcotics in the defendant's left pocket. Officer Mandujano also saw Detective Cruz test and initial the narcotics and mark them with his badge number. Detective Cruz then arrested the defendant for possession of methamphetamine. Detective Cruz also returned the credit card (which was in Mrs. Martinez's name only) and cash to Mrs. Martinez. Both Officers Mandujano and Ott provided detailed testimony regarding the detention, the frisk, and the arrest; however, Officer Ott testified that he lost sight of the defendant for about five to ten seconds. According to Officer Ott, when the defendant reached the street and turned right, Officer Ott was more focused on the alleyway and street traffic because he was responsible for the safety of the scene and the officers.
At trial, Officer Mandujano testified that the "defendant" was the individual who possessed the narcotics. Officer Ott testified that the man who was in the alleyway was in the courtroom. Officer Ott pointed him out and identified him by the style and color of his shirt.
DISCUSSION
In his first two issues, Pena argues the evidence is legally and factually insufficient to convict him of possession of a controlled substance. The Texas Court of Criminal Appeals has held that "the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt." Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Under that standard, we determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Crabtree v. State, 389 S.W.3d 820, 824 (Tex. Crim. App. 2012) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We may not re-weigh the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525-26 (Tex. Crim. App. 2012).
The essential elements of an offense are determined by state law. Crabtree, 389 S.W.3d at 824. "Under Texas state law, we measure the sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge for the case." Id. (citations omitted). Such a charge is "one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.
In cases involving unlawful possession of a controlled substance, the State must prove that the defendant exercised care, control, or management over the substance and that he knew the matter possessed was contraband. See Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). Whether the evidence is direct or circumstantial, it must establish the defendant's connection with the substance was more than fortuitous. Id.
Pena argues the evidence is insufficient to support his conviction because of "the lack of identification of the person who possessed the controlled substance." Pena emphasizes that Detective Cruz, the only officer who had direct contact with him, did not testify and thus did not connect him to the controlled substance. He further points to Officer Ott's testimony that while following Pena, he lost sight of Pena and did not personally witness the arrest and search of Pena. Thus, Pena argues that even though Officer Ott did identify him in court as the person in Detective Cruz's custody, Officer Ott did not connect him to the controlled substance. Finally, Pena argues that even though Officer Mandujano testified he saw Detective Cruz's interaction with the "defendant," Officer Mandujano never formally identified Pena in court as the person in Detective Cruz's custody or as the person who possessed the controlled substance.
We find Pena's argument unpersuasive. The test for sufficiency of an in-court identification is whether we can conclude "from a totality of the circumstances the jury was adequately apprised that the witnesses were referring to appellant." See Rohlfing v. State, 612 S.W.2d 598, 601 (Tex. Crim. App. [Panel Op.] 1981). Moreover, the absence of an in-court identification is only one factor for the jury to consider in assessing the weight and credibility of the witnesses' testimony. See Meeks v. State, 897 S.W.2d 950, 955 (Tex. App.—Fort Worth 1995, no pet.) (holding evidence was sufficient to support conviction and explaining the "fact that the complainant failed to identify [the defendant] at trial goes only to the weight and credibility of the witnesses").
Even though Detective Cruz was not available to testify, there was sufficient evidence from which the jury could conclude Pena was the person in possession of a controlled substance. Although Officer Ott testified he lost sight of the defendant for five to ten seconds as Detective Cruz was detaining and arresting the defendant, Officer Mandujano testified that Officer Ott was behind him when he observed Detective Cruz detain and handcuff the defendant. Officer Mandujano further testified he saw Detective Cruz frisk the defendant and find the credit card, money and narcotics in the defendant's left pocket. And, according to Officer Mandujano, Detective Cruz tested the substance, placed it in an evidence bag, initialed the bag, and placed his badge number on the bag. He then saw Detective Cruz arrest the defendant for possession of methamphetamine.
Further, Officer Mandujano consistently referred to the man who was detained and arrested by Detective Cruz and who was found to be in possession of methamphetamine as the "defendant." Officer Ott, in turn, testified the man who was frisked and searched by Detective Cruz was sitting in the courtroom. When asked to point the man out to the jury and identify him by an article of clothing, Officer Ott stated, "He's right there in the maroon polo." Considering the totality of the circumstances, the evidence sufficiently informed the jury that the defendant, Pena, was the individual Detective Cruz detained and arrested for possession of methamphetamine. Thus, we hold the evidence is sufficient to support Pena's conviction for possession of a controlled substance.
In his third and fourth issues on appeal, Pena argues the trial court abused its discretion in awarding $57.00 in restitution to the San Antonio Police Department. Pena argues, and the State agrees, that the trial court's order of restitution of $57.00 to the San Antonio Police Department was an abuse of discretion. First, we note that the San Antonio Police Department was not a victim of the crime. See Campbell v. State, 5 S.W.3d 693, 697 (Tex. Crim. App. 1999) (holding "a trial court may not order restitution to any but the victim or victims of the offense with which the offender is charged"). Second, there is no evidence in the record to support the amount of $57.00 in restitution. See id. at 696 (explaining the record must contain evidence to show the amount set by the court has a factual basis).
Therefore, we hold the trial court erred in awarding restitution to the San Antonio Police Department. We modify the trial court's judgment to delete the award of restitution. As modified, the judgment of the trial court is affirmed.
Karen Angelini, Justice Do not publish