Opinion
No. 05-07-00732-CR
Filed May 8, 2008.
On Appeal from the County Court at Law No. 4 Collin County, Texas, Trial Court Cause No. 004-80707-06.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
MEMORANDUM OPINION
Zachary Brynner Ray was charged by information with the offense of possession of a controlled substance, dihydrocodeinone, in an amount under 28 grams. See Tex. Health Safety Code Ann. § 481.117(a)-(b) (Vernon 2003). He pleaded not guilty and waived a jury trial. The court found him guilty and sentenced him to thirty days in the county jail and a $500 fine. The court suspended the imposition of sentence and placed appellant on community supervision for six months. In two points of error, appellant contends that the evidence is legally insufficient to show he knew the substance was contraband, and the trial court erred by not requiring the State to introduce the physical evidence containing the dihydrocodeinone. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm. In his first point, appellant appears to concede that he possessed the substance but contends that the evidence is insufficient to prove he knew the substance was contraband. Although appellant does not state whether he challenges the legal or factual sufficiency of the evidence, we construe his argument as challenging only the legal sufficiency of the evidence. In determining the legal sufficiency of the evidence, we view all 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). To establish appellant had knowing possession of the dihydrocodeinone, the State had to prove appellant exercised actual care, custody, control, or management over the drug and that he knew the substance was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005). When a defendant is not in exclusive control of the contraband, the State must introduce evidence that the defendant's connection to the contraband was more than mere fortuitous. Evans v. State, 202 S.W.3d 158, 161 (Tex.Crim.App. 2006). In other words, the State must offer "evidence of circumstances, in addition to mere presence, that would adequately justify the conclusion that the defendant knowingly possessed the substance." Id. at n. 9. At trial, Deputy Constable Mike McCandless testified that, when he was a police officer with the Parker Police Department, on January 28, 2006 around 2:37 a.m., he conducted a traffic stop of a vehicle being driven with a defective license plate light. Appellant, age 17 at the time, was the driver, and there were four teenage passengers in the car. Appellant showed Officer McCandless a paper driver's permit. The officer testified that appellant was driving in violation of at least two restrictions on the permit: more than one passenger under the age of 21, and driving past midnight and before 5:00 a.m. Appellant told the officer he and his friends had come from a party. He gave the officer permission to search his vehicle, and the officer removed everyone from the vehicle. Before he began the search, appellant told the officer he had a wine bottle in the vehicle. During the search, the officer found two wine bottles, one of which had been opened, under some clothes in the back; a cup with a liquid that smelled of alcohol on the driver's side; a similar-looking cup on the passenger's side under the front seat that smelled of alcohol but did not contain a liquid; and a Newport cigarette pack in the driver's side door pocket. The cigarette pack was a cardboard-type package and "was bulging." The package did not contain any cigarettes, but the officer saw a white napkin or paper towel sticking up from the top of the package. When he pulled the napkin out of the package, he found one yellow tablet, later determined to contain dihydrocodeinone, and 41 white tablets wrapped up in the napkin. The officer testified that the tablets had numbers imprinted on them, indicating they were prescription medications. When he asked appellant about the tablets, appellant said he did not know they were there. Appellant and his passengers were unable to produce prescriptions for the tablets. The State asked the trial court to take judicial notice of the certificate of analysis and chain of custody affidavit on file in the case. Appellant objected to the court taking judicial notice of the evidence because it violated his confrontation rights under the Sixth Amendment to the U.S. Constitution as enunciated in Crawford v. Washington, 541 U.S. 36 (2004). The court overruled the objection and took judicial notice of the evidence. The drug analysis laboratory report showed that one of the tablets contained 0.43 grams of dihydrocodeinone. Appellant stipulated that the laboratory report showed the amount of hydrocodeinone contained in the tablet was under 28 grams. Although the evidence in this case is undisputed, appellant contends it is legally insufficient to show he knew the substance was contraband. We cannot agree. The evidence showed that appellant was driving the vehicle, the cigarette pack was in the driver's door pocket, it was visible from the driver's seat, it was within appellant's proximity and accessible to him, it was "bulging" with a napkin sticking out from the top but did not contain cigarettes, the tablet was wrapped up inside the napkin, appellant did not have a prescription for the tablet, he was driving in violation of the restrictions on his permit, and he knew there was other contraband, alcohol, in the vehicle. We conclude this evidence is legally sufficient to adequately justify the conclusion that appellant knowingly possessed the hydrocodeinone. See Evans, 202 S.W.3d at 161 n. 9. We resolve appellant's first point against him. In his second point, appellant contends that the State's failure to introduce the actual contraband into evidence violated his due process rights under article I section 19 of the Texas Constitution. Appellant's argument on appeal does not comport with his objection at trial. At trial, appellant based his objection on hearsay and federal constitutional grounds, not state constitutional grounds. As a result, his complaint on appeal has not been preserved for review. See Tex. R. App. P. 33.1(a)(1)(A)-(B); Buchanan v. State, 207 S.W.3d 772, 779 n. 8 (Tex.Crim.App. 2006) (citing Heidelberg v. State, 144 S.W.3d 535, 539-43 (Tex.Crim.App. 2004) for proposition that "specific objection under federal constitution did not preserve error under state constitution because, inter alia, opposing counsel's questions did not provide context suggesting that the court would obviously have known he was also objecting under state constitutional grounds"). We resolve appellant's second point against him. We affirm the trial court's judgment.
In determining whether sufficient evidence links the appellant to the contraband, we consider a variety of factors, including: (1) the defendant's presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant's proximity to and the accessibility of the contraband; (4) whether the defendant was under the influence of contraband when arrested; (5) whether the defendant possessed other contraband when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the contraband was found; (12) whether the place where the contraband was found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt. Evans, 202 S.W.3d at 162 n. 12.
Appellant conceded, however, that the legislature authorized this method of admitting laboratory analysis of physical evidence. See Tex. Code Crim. Proc. Ann. arts. 38.41 (admissibility of certificate of analysis), 38.42 (chain of custody affidavit) (Vernon 2005).