Opinion
No. 13-03-281-CR
Opinion Delivered and Filed: August 12, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 36th District Court of San Patricio County, Texas.
Before Chief Justice VALDEZ and Justices HINOJOSA and CASTILLO.
MEMORANDUM OPINION
Appellant, Arnold Perez, was convicted by a jury for two counts of possession of a controlled substance, a state jail felony. On appeal, he contends (1) the trial court erred in denying his motion to suppress, and (2) the evidence is legally insufficient to support the conviction on the second count. We affirm.
Background
Officer Parnell Haynes observed Dustin Beach driving a white Dodge pickup truck ninety-three miles-per-hour in a sixty-five mile-per-hour zone. Haynes also observed the passenger-side door opening and closing several times in rapid succession. Haynes did not see anything being thrown from the vehicle, nor did he subsequently find any controlled substances or contraband along the side of the road. Haynes initiated a traffic stop. Haynes told Beach he was being stopped for excessive speed and asked appellant, the passenger, why he had repeatedly opened and closed his door. Appellant, who appeared to be visibly intoxicated, informed Haynes that his shirt had been stuck in the door and he was trying to free it. Haynes asked Beach if he had been drinking and Beach replied affirmatively. Haynes administered, and Beach passed, the horizontal gaze nystagmus sobriety test. Beach appeared "calm." Haynes ran a background license check on both Beach and appellant, which revealed no warrants or criminal history for either individual. Haynes then requested permission to search the vehicle, which Beach refused. Haynes called for the canine unit to perform an olfactory search of the vehicle. The canine unit arrived at the scene eighteen minutes later. The dog alerted on the passenger-side of the truck near the door handle, and a controlled substance was found in a plastic bag in the center roof console. Appellant was arrested within thirty minutes of the initial traffic stop. Beach and appellant were taken in separate vehicles to the police station for processing. Haynes frisked appellant and took him to the police station. After leaving appellant at the station, Haynes found another plastic bag, similar to the one found in the truck, concealed under the back seat on the passenger side of his patrol car. That is where appellant had been seated, handcuffed with his hands behind him, during transport. Appellant was the only individual that Haynes transported that evening.Illegal Prolonged Detention
In his first issue, appellant argues that his arrest was the result of an illegal prolonged detention after the traffic stop of Beach's truck. Appellant objected to the admission of the "baggies" at trial; however, his objections were overruled. An appellate court must uphold a trial court's evidentiary ruling it if is reasonably supported by the record and is correct under any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App. 2000). We will not reverse the trial court's decision to admit evidence unless the record shows that the trial court abused its discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990). This standard requires an appellate court to uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement. Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001). Appellant challenges neither the initial stop for the speeding violation nor the detention for Beach's field sobriety test. Instead, appellant contends that his continued detention after the stop for speeding was an illegally prolonged detention. An investigative detention may last no longer than is necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500 (1983); Davis v. State, 947 S.W.2d 240, 243 (Tex.Crim. App. 1997). Once the purpose of the stop has been satisfied, the stop may not be used for an unrelated "fishing" expedition. Davis, 947 S.W.2d at 243. The propriety of the stop's duration is judged by assessing whether the police diligently pursued a means of investigation that was likely to dispel or confirm their suspicions quickly. Id. at 245. The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts, which taken together with rational inferences from those facts, lead to the conclusion that the person detained is, has been, or soon will be engaged in criminal activity. Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App. 1997); 217,590 in U.S. Currency v. State, 54 S.W.3d 918, 923 (Tex. App.-Corpus Christi 2001, no pet.); Hernandez v. State, 983 S.W.2d 867, 869 (Tex. App.-Austin 1998, pet. ref'd). An officer who has a reasonable suspicion that the vehicle contains narcotics may temporarily detain it to allow an olfactory inspection by a trained drug-detection dog. Estrada v. State, 30 S.W.3d 599, 603 (Tex. App.-Austin 2000, no pet.). Based on the totality of the circumstances, we conclude that Haynes offered specific articulable facts, which, taken together with rational inferences from those facts, caused him to conclude that appellant was, had been, or soon would be engaged in criminal activity. Haynes testified that he based his request for a canine search on three factors: the vehicle's high rate of speed, appellant's appearance of intoxication, and the repeated opening and closing of the passenger-side door. Haynes testified that, in his experience, suspects may attempt to dispose of contraband or narcotics by throwing the items out of their vehicle. He had personally witnessed this occurring on fifteen or twenty different occasions. Haynes further testified that he found it extremely suspicious that the door opened and closed several times in rapid succession. While appellant informed Haynes that he opened and closed the door repeatedly to free his shirttail from the door, Haynes testified that he believed appellant was wearing a t-shirt without a tail. Moreover, given the physical dimensions of the truck and the location of the passenger seat therein, Haynes estimated that there would have been a gap of approximately a foot-and-a-half between the passenger's shirttail and the passenger-side door. We conclude that Haynes offered articulable facts and circumstances that justified a continued detention and broader investigation. Davis, 947 S.W.2d at 243. While a detention based on a violation of a traffic regulation will not justify detention to await the arrival of a drug detection dog, 217,590, 54 S.W.3d at 924, Haynes's testimony provided additional specific facts and circumstances which caused him to suspect the vehicle contained narcotics. Accordingly, we overrule appellant's first issue.Sufficiency of the Evidence
In appellant's second issue, he argues that the evidence is legally insufficient to support his conviction under count two, that is, possession of the narcotics found in the center roof console of the truck. Hector Cadenas, a chemist with the Texas Department of Public Safety, testified that the narcotics found in the console consisted of 0.56 grams of N, N-dimethylamphetamine. We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The sufficiency of the evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). This hypothetically correct 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. The State was required to prove that appellant knew he possessed a controlled substance and exercised actual care, custody, and control over it. See TEX. HEALTH SAFETY CODE ANN. §§ 481.002(3), 481.115 (Vernon Supp. 2004); Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). The indictment alleged that appellant did "intentionally and knowingly possess N, N-Dimethylamphetamine, a controlled substance listed in Penalty Group 2, in an amount of less than one (1) gram aggregate weight, including adulterants and dilutants." When the contraband is not found on the person or within the exclusive possession of the accused, additional independent facts and circumstances must affirmatively link the accused to the contraband in order to establish the requisite knowledge and control. Brown, 911 S.W.2d at 747; McQuarters v. State, 58 S.W.3d 250, 259 (Tex. App.-Fort Worth 2001, pet. ref'd). We utilize a nonexclusive list of factors to determine whether the evidence is sufficient to affirmatively link the accused with the controlled substance:I. the contraband was in plain view or recovered from an enclosed place;
I. the accused was the owner of the premises or had the right to possess the place where the contraband was found, or was the owner or driver of the automobile in which the contraband was found;
I. the accused was found with a large amount of cash;
I. the contraband was conveniently accessible to the accused, or found on the same side of the vehicle as the accused was sitting;
I. the contraband was found in close proximity to the accused;
I. a strong residual odor of the contraband was present;
I. the accused possessed other contraband when arrested;
I. paraphernalia to use the contraband was in view, or found on the accused;
I. the physical condition of the accused indicated recent consumption of the contraband in question;
I. conduct by the accused indicated a consciousness of guilt;
I. the accused attempted to escape or flee;
I. the accused made furtive gestures;
I. the accused had a special connection to the contraband;
I. the occupants of the premises gave conflicting statements about relevant matters;
I. incriminating admissions connecting the accused to the contraband;
I. the quantity of the contraband; and
I. the accused was observed in a suspicious area under suspicious circumstances.Lassaint v. State, 79 S.W.3d 736, 740-41 (Tex. App.-Corpus Christi 2002, no pet.) (citations omitted). The number of affirmative links present is not as important as the logical force they have in establishing the elements of the offense. Corpus v. State, 30 S.W.3d 35, 37-38 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). Affirmative links may be shown by direct or circumstantial evidence. Brown, 911 S.W.2d at 747. The evidence need not exclude every reasonable hypothesis other than the defendant's guilt, but it must show facts and circumstances that, viewed in the totality of the circumstances, indicate the defendant's knowledge and control over the drugs. See id. at 748; State v. Derrow, 981 S.W.2d 776, 778 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd). Appellant contends the only affirmative link present in the instant case is his presence, as a passenger, in the truck. We disagree. In this case, the contraband was located in an enclosed space, the center roof console of the truck, which was easily accessible to appellant and was in close proximity to appellant. The drug-detection dog alerted to the passenger-side door of the vehicle, which was where appellant, as passenger, was sitting. Appellant appeared to be intoxicated. Haynes articulated "suspicious circumstances," specifically attributable to appellant, that is, the repeated opening and closing of the passenger-side door. Moreover, as the jury inferred from the evidence, appellant possessed other contraband that he jettisoned in Haynes's patrol car. Viewing the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found that appellant knowingly and intentionally possessed the narcotics at issue. King, 29 S.W.3d at 562. Appellant's second issue is overruled.