No. 04-07-00383-CR
Delivered and Filed: April 9, 2008. DO NOT PUBLISH
Appeal from the 290th Judicial District Court, Bexar County, Texas, Trial Court No. 2006-CR-5571, Honorable Sharon MacRae, Judge Presiding. REVERSED AND RENDERED
Sitting: ALMA L. L ÓPEZ, Chief Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.
PHYLIS J. SPEEDLIN, Justice.
Richard Rodriguez, Jr. challenges the revocation of his community supervision for the offense of possession of a controlled substance. Because we conclude that the State failed to prove its revocation allegations by a preponderance of the evidence, we reverse the trial court's judgment revoking Rodriguez's community supervision.
Background
Rodriguez was indicted for the offense of possession of a controlled substance. Pursuant to a plea bargain agreement, Rodriguez pled nolo contendere and was sentenced to eight years' community supervision. The State filed a motion to revoke Rodriguez's community supervision, alleging that Rodriguez violated two conditions of his community supervision by: (1) possessing a controlled substance, penalty group one, in an amount of less than one gram; and (2) failing to maintain gainful employment. At a hearing on the motion to revoke, Rodriguez pled "not true" to both allegations. After hearing testimony from several witnesses, the trial court found both allegations "true," revoked Rodriguez's community supervision, and sentenced Rodriguez to eight years' incarceration. Applicable Law
In a hearing on a motion to revoke community supervision, the State bears the burden to prove its allegations by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993). The State meets its burden when the greater weight of the credible evidence creates a reasonable belief that the defendant violated a condition of his community supervision. Rickels v. State, 202 S.W.3d 759, 764 (Tex.Crim.App. 2006). An appellate court reviews the trial court's judgment revoking community supervision under an abuse of discretion standard. Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. [Panel Op.] 1981). We indulge all inferences in a light favoring the trial court's ruling, Jones v. State, 589 S.W.2d 419, 421 (Tex.Crim.App. [Panel Op.] 1979), and sustain the order of revocation if the evidence substantiates a single violation. Jones v. State, 571 S.W.2d 191, 193-94 (Tex.Crim.App. [Panel Op.] 1978). Possession of a Controlled Substance
Rodriguez argues the State's evidence was insufficient to prove he violated any condition of his community supervision. Rodriguez contends the State: (1) failed to prove the items seized from Rodriguez, if any, were actually controlled substances; and (2) failed to establish Rodriguez was in possession of "anything." Looking at the evidence in a light most favorable to the trial court's ruling, two police officers stopped a vehicle in which Rodriguez was a front-seat passenger. Officer Sense testified that he observed the backseat passenger holding, in plain view, a large baggie of white powder that appeared to be cocaine. Officer Sense observed the driver and Rodriguez making unnecessary movements in the front seat of the vehicle. When Officer Oliva was patting down Rodriguez, Officer Sense observed "a small baggie with . . . tiny clear crystals" fall out of Rodriguez's pant leg. Officer Sense confirmed that all of the drugs found on Rodriguez and the other occupants field-tested positive for controlled substances. Officer Oliva testified that he saw the driver of the vehicle throw a clear bag with a white substance as she exited the vehicle. Officer Oliva testified that he patted down Rodriguez, and a small baggie of a controlled substance fell out of Rodriguez's pant leg. Officer Pryde, who was called to the scene for back-up, testified that he searched Rodriguez a second time after his arrest and found "a small bag that contained a white substance" in Rodriguez's sock. Officer Pryde testified that Rodriguez said the bag was not his. Rodriguez told Officer Pryde that the three occupants had "found this stuff and that they knew it was worth something but they didn't know what it was, they were just holding it for somebody." Forensic chemist, Mark Florence, testified that he was asked to "examine the evidence to determine if there [was] a controlled substance." Florence confirmed that he had tested and weighed all of the substances found in conjunction with the vehicle stop. Rodriguez argues that Florence's testimony indicates Florence did not positively identify all of the material as controlled substances because Florence used the word "alleged" when describing the contents of three out of four manilla envelopes submitted to him for testing. We agree. When asked about the contents of envelope number one, Florence responded "it . . . contain[ed] one plastic bag of methamphetamine." When asked about the contents of the other three envelopes, Florence testified they contained "alleged" drugs. Although the State specifically asked Florence whether the substance in envelope number three "tested positive for cocaine," Florence replied "5.307 grams." While the trial court might have inferred from Florence's testimony that envelope number three contained a controlled substance, the trial court could not have reasonably inferred from Florence's testimony that the evidence in the remaining two envelopes (envelopes two and four) were controlled substances. The State argues that the combination of the positive field-testing results and the testimony of Florence and the arresting officers is sufficient to meet a preponderance of the evidence burden of proof that all of the seized substances were controlled substances. Specifically, Officer Sense testified that all of the seized substances were field tested and confirmed to be controlled substances. Officer Sense further testified that all of the baggies found on Rodriguez field-tested positive for a controlled substance. In Curtis v. State, on an appeal from a motion to revoke community supervision, the State made a similar argument. There, the Court of Criminal Appeals rejected the State's sufficiency of the evidence argument that was based solely upon an experienced officer's testimony that the substances he seized field-tested positive for a controlled substance. Curtis, 548 S.W.2d at 58-59. The court concluded that, without the substantiating testimony of the chemist who lab-tested the seized substances, field testing was not enough to meet a preponderance of the evidence standard. Id. at 59. Although Florence, the chemist who performed the lab tests, did testify in Rodriguez's case, he failed to positively identify each item as a controlled substance. Therefore, at most, the State identified only two pieces of evidence as controlled substances. The next question is whether the State positively linked the two controlled substances, identified by Florence, to Rodriguez's possession. To prove Rodriguez illegally possessed a controlled substance, the State must show Rodriguez: (1) exercised control, management, or care over the substance; and (2) knew the matter possessed was contraband. See Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005); see also Tex. Health Safety Code Ann. § 481.115(a) (Vernon 2003). Mere presence at the location where drugs are found is . . . insufficient, by itself, to establish actual care, custody, or control of those drugs. However, presence or proximity, when combined with other evidence, either direct or circumstantial (e.g., "links"), may well be sufficient to establish that element beyond a reasonable doubt. Evans v. State, 202 S.W.3d 158, 162 (Tex.Crim.App. 2006). "In deciding whether the evidence is sufficient to link the defendant to contraband, the trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony." Poindexter, 153 S.W.3d at 406. Officers Sense and Oliva testified that a baggie of tiny crystals fell from Rodriguez's pant leg during a pat down. Officer Pryde testified that he found a small baggie of white matter in Rodriguez's sock. Rodriguez admitted that the backseat passenger had a controlled substance in his possession and that there were other drugs and drug paraphernalia in the vehicle. Rodriguez further testified that a little baggie was found near his foot but that it was not his. Arguably Florence positively identified two of the seized substances as controlled substances, but he also testified that he did not know which substances were found on each person. Although this is some evidence that Rodriguez was at a location where drugs were found and that he knew the substances were contraband, there is no evidence that Rodriguez had actual care, custody, or control of a controlled substance. Because the State failed to link any controlled substance to Rodriguez's possession, the trial court abused its discretion in finding the possession of a controlled substance allegation to be true. We now turn to the State's second allegation to determine if the trial court could have revoked Rodriguez's community supervision based on that allegation alone. Failure to Maintain Gainful Employment
Rodriguez's community supervision agreement required Rodriguez to: "Obtain and keep gainful employment in a lawful occupation and show proof of employment. Notify the Supervision Officer of any changes within [four] hours." Rodriguez had $600.00 in cash on his person when he was arrested. Rodriguez testified that the money came from a "paycheck" he received for working at "PM Masonry" as a bricklayer and that he had let the probation department know where he was working. Rodriguez further testified "I was only working a couple of days, so I would get paid . . . without a check but cash." The State offered no evidence that Rodriguez had not obtained and kept gainful employment, but it contends that "working a couple of days" failed to establish Rodriguez had gainful employment. Although the trial judge, as sole fact-finder, may determine the credibility of the witnesses and the weight to be given to their testimony, Garrett, 619 S.W.2d at 174, the burden of proof was on the State to show by a preponderance of the evidence that Rodriguez had violated this condition of his community supervision agreement. See Cobb, 851 S.W.2d at 873. Because the State offered no evidence that Rodriguez's "couple of days" failed to meet the condition of gainful employment, the trial court abused its discretion in finding true the allegation that Rodriguez failed to maintain gainful employment. Conclusion
Having found insufficient evidence that Rodriguez violated the conditions of his community supervision by possessing a controlled substance and failing to maintain gainful employment, we sustain Rodriguez's single point of error and reverse the trial court's judgment revoking Rodriguez's community supervision, and we render judgment continuing Rodriguez on community supervision.