Opinion
No. 05-15-00165-CR
03-14-2016
ARTURO SILVA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1330899-R
MEMORANDUM OPINION
Before Justices Lang, Brown, and O'Neill
Opinion by Justice O'Neill
The Hon. Michael J. O'Neill, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Appellant Arturo Silva was charged by indictment with possession with intent to deliver methamphetamine in an amount of four grams or more but less than 200 grams. Appellant waived a jury, and his case was tried to the court. The trial court found him guilty. The court also made an affirmative finding that appellant possessed a deadly weapon (a .25 caliber pistol) and assessed his punishment at fifteen years' imprisonment. Silva appeals, challenging the trial court's denial of his motion to suppress and the sufficiency of the evidence supporting his possession of both the drugs and the pistol. We affirm the trial court's judgment.
Background
In the course of a Drug Enforcement Administration investigation into Dallas-area drug trafficking, agents were following a target and witnessed what appeared to be a drug transaction between the target and an unidentified man. Both men then drove and met at a residence at 834 Bonham in Grand Prairie. The agents traced the vehicle driven by the unknown man; it was registered to appellant at 838 Bonham, the residence next door to the house where the target and the unidentified man had met.
Several days later, at the DEA's request, three Grand Prairie police officers were sent to conduct a "knock and talk" at 834 Bonham. They knocked at the front door but received no response. They went around the house and knocked on a bedroom window. They heard loud noises from inside the house and went back around to the front. After several more minutes, a twelve-year-old boy answered the door. The officers asked if his parents were home, and he responded that his uncle was there. The boy left, but when he returned he told the officers his uncle was gone. One of the officers asked the boy for permission to come in the house; the boy said "okay." The officers entered the living room, and a man—later identified as Victor Silva (Victor), appellant's brother—came out of one of the bedrooms and met the officers in the hallway. The officers asked Silva to come outside with them, and all four adults went out the front door. The officers testified they saw no contraband during the time they were inside the house.
A second team of Grand Prairie police also approached the house at 838 Bonham. That knock and talk is not at issue in this appeal.
While the group was outside, Victor answered the officers' questions. He told them the boy was his nephew. Victor told the officers that he lived there and had a key to the house. The officers asked for his consent to search the house, and Victor gave it. Two of the officers went to the bedroom where they had heard noises earlier. They discovered a digital scale on top of a dresser; the scale contained a "crystalline substance consistent with the texture and color of methamphetamine residue." They also found a large quantity of "crystal substance" in the first drawer of that same dresser. At that point, Officer Cesar Guerra, who was leading the team, stopped the search. He left the scene in the control of the other officers and obtained a search warrant for the premises.
When the search warrant arrived, the officers returned to the bedroom where the scale and suspected methamphetamine had been found. They discovered a safe, the keys to the safe, and methamphetamine and cash inside the safe. They also found baggies like those used to package narcotics, three small notepads containing "drug notes" and numbers, a receipt with appellant's name, and identification for appellant and his wife. Appellant's driver's license gave his address as 834 Bonham. Certificates hanging on the bedroom wall bore appellant's name. And finally they found a plastic container—sometimes referred to in the record as a "bowl"— that appeared to contain methamphetamine on top of the dresser. Testing later determined appellant's fingerprint was on that container, and the parties stipulated that the substance found throughout the room was in fact methamphetamine.
The officers also searched the kitchen. They found methamphetamine on a shelf in a cabinet. They also found a .25 caliber pistol, a prescription bottle bearing appellant's name, additional clean baggies, and another digital scale in the kitchen.
Victor was arrested after the search. However, when appellant's fingerprint was identified on the container found on the dresser, Victor was released. Subsequently, the police arrested appellant.
Counsel for appellant filed a motion to suppress the evidence seized from the house. The motion was carried through trial and, when the court found appellant guilty, it overruled the motion.
Motion to Suppress
Appellant argues the evidence seized from the house should have been suppressed for three reasons: (1) the officers did not have authority to enter the house when the boy gave them permission; (2) the officers unlawfully detained Victor, and they did not have valid consent from him to search the bedroom where drugs were found; and (3) the search warrant did not attenuate the taint of the earlier unlawful searches. We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We give almost total deference to the trial court's determination of historical facts, and we review de novo the trial court's application of law to facts not turning on credibility and demeanor. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). We do not engage in our own factual review; instead, the trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony. St. George, 237 S.W.3d at 725. We review the record to determine whether the trial court's ruling is supported by the record and is correct under some theory of law applicable to the case. Id.
Appellant argues the officers lacked consent for their initial entry into the house, and he attempts to negate every possible ground that would have justified the entry. He contends: the twelve-year-old boy lacked both apparent and actual authority to consent to entry or a search; no exigent circumstances justified entry or a search; no evidence existed indicating the child could be injured—or that drugs might be destroyed—absent entry or a search; and no actual grounds existed to fear for the officers' safety if they did not enter and search the house. The State responds to these arguments, but asserts that even if the boy had no authority to consent to the officers' entry, no causal connection exists between that initial entry and the complained-of evidence. See generally Roquemore v. State, 60 S.W.3d 862, 870 (Tex. Crim. App. 2001) ("Evidence should be excluded once a causal connection between the illegality and the evidence is established."). We agree. Our review of the record establishes that during this initial entry the officers entered only the living room and the hallway, where Victor met them. All four men then left the house through the living room and front door. The undisputed evidence establishes that the officers did not see any contraband during the time they were inside the house. They did not enter the bedrooms or kitchen where contraband was subsequently discovered. No search was undertaken, and no evidence was identified or procured during the entry. Nor was any of the evidence discovered later as a result of this first entry. Thus, no evidence could properly be suppressed on account of that initial entry into the house.
Appellant next argues evidence should be suppressed that was found when officers entered the house the second time. He contends that Victor was subject to an unlawful detention when he left the house with the officers. The record, however, does not support this conclusion. Victor did not testify at trial. The officers testified they asked Victor to come outside with them, and he complied. Appellant contends "it is a reasonable inference that [Victor] stepped outside his own home only as an acquiescence to police authority." Again, we must disagree. The officers testified Victor was not handcuffed or restrained; they denied threatening, coercing, or physically harming Victor in order to gain his consent. Guerra testified to the contrary, that Victor's consent was freely and voluntarily given. Appellant argues the trial court had only the word of the officers that Victor's consent was voluntary. But the trial judge is the sole judge of credibility of the witnesses and the weight to be given to their testimony. St. George, 237 S.W.3d at 725. The trial court implicitly found the officers credible. We reject appellant's argument that Victor was unlawfully detained and did not give valid consent to search the house.
Appellant next contends the officers exceeded the scope of Victor's legitimate consent. He argues Victor lacked authority to consent to a search beyond common areas and his own bedroom. But settled law is broader than appellant's argument. "[T]he consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared." United States v. Matlock, 415 U.S. 164, 170 (1974). A warrantless search may be justified when permission to search was obtained from a third party "who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." Id. at 171. In this case, Victor told the officers he lived in the house and that he had a key to it. Given that information, the officers could reasonably rely on Victor's authority to give consent to search the house as a whole. See Hubert v. State, 312 S.W.3d 554, 561-62 (Tex. Crim. App. 2010) (to show authority of person who gave consent, State must show person had mutual access to and control over place to be searched). Appellant argues the search warrant was based upon information that appellant and his wife lived in the house as well and that the drugs were found in their bedroom. That information was only discovered after Victor gave his consent. And when the officers discovered methamphetamine—first in plain sight and then concealed in a dresser drawer—in the bedroom, they stopped the search and obtained a search warrant. We conclude the State established both Victor's apparent authority to consent to a broad search and the officers' good faith in expanding the scope of the search only after obtaining a search warrant.
Finally, appellant argues the search warrant did not attenuate the taint of the previous illegalities, so all seized evidence should be suppressed. We have concluded there was no connection between the seized evidence and the officers' first entry into the house. We have further concluded the officers' warrantless search made pursuant to Victor's consent was lawful. In the absence of any illegalities related to the seized evidence, we need not address the issue.
The trial court did not err in overruling appellant's motion to suppress. We decide appellant's first issue against him.
Sufficiency of the Evidence
Appellant's second and third issues challenge the sufficiency of the evidence to support (a) his conviction for possession of the methamphetamine found in the premises search and (b) the trial court's affirmative deadly weapon finding. We review sufficiency challenges by examining the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The fact finder exclusively determines the credibility of the witnesses and the weight to be given their testimony. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). Our duty is to ensure that the evidence presented supports the verdict and that the State has presented a legally sufficient case of the offense charged. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
Possession of Methamphetamine
In his second issue, appellant argues the evidence is insufficient to support his conviction for possession with intent to distribute methamphetamine. To prove possession with intent to deliver a controlled substance, the State must show a defendant (1) exercised care, custody, control, or management over the controlled substance, (2) intended to deliver the controlled substance to another, and (3) knew that the substance in his possession was a controlled substance. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (West 2010); Parker v. State, 192 S.W.3d 801, 805 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd).
Appellant specifically argues the State failed to "affirmatively link" him to the drugs found on the searched premises. Appellant contends the evidence established he was not in sole control of the premises. Indeed, he asserts that testimony connected eight other individuals to the premises besides appellant. He argues we cannot know when appellant's fingerprint was placed on the container containing methamphetamine or whether his brother Victor might have placed the drugs in appellant's bedroom. He concludes the evidence is insufficient to connect him to the seized methamphetamine.
The Court of Criminal Appeals has explained the "affirmative links" rule as "a shorthand catch-phrase for a large variety of circumstantial evidence that may establish the knowing 'possession' or 'control, management, or care' of some item such as contraband." Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). --------
Mere presence at the location where drugs are found is insufficient, by itself, to establish care, custody, or control of drugs. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). Therefore, when a defendant is not in exclusive possession of the place where the controlled substance is found, the State must prove facts and circumstances linking the defendant to the contraband in such a way that it can be concluded the defendant had knowledge of the contraband and exercised control over it. Parker, 192 S.W.3d at 805. A defendant is sufficiently linked to the contraband when the evidence—direct or indirect—shows his connection with the drug was "more than just fortuitous." Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). No set formula of facts exists to dictate a finding of links sufficient to support an inference of knowing possession. Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.). It is the logical force of the evidence, and not the number of links, that supports a fact finder's verdict. Evans, 202 S.W.3d at 166.
When determining a defendant's connection to contraband, courts have looked to such factors as whether the contraband was in plain view, the defendant's proximity to and the accessibility of the drug, whether other contraband or drug paraphernalia were present, and whether the defendant owned or had the right to possess the place where the drugs were found. Id. at 162, n.12. Likewise, an affirmative link has been found when drugs are hidden in a place tied to the accused. Poindexter, 153 S.W.3d at 409, n.24. In this case, the officers found sufficient evidence to conclude the bedroom where the drugs were found belonged to appellant and his wife: their identification and a receipt with appellant's name were found in the dresser drawer, and certificates bearing appellant's name were hanging on the bedroom walls. In that bedroom, officers found a container bearing appellant's fingerprint and methamphetamine residue as well as a digital scale in plain sight on top of the dresser. Inside the dresser drawer, a closet, and the bedroom safe, officers found more methamphetamine, baggies like those used to package and distribute drugs, drug ledgers, and cash. Viewing the evidence in the light most favorable to the verdict, the trial court could have reasonably found beyond a reasonable doubt that appellant exercised actual care, custody, and control of the methamphetamine seized from the bedroom. See Jackson, 443 U.S. at 319.
We overrule appellant's second issue.
Deadly Weapon Finding
In his third issue, appellant argues the State failed to link him to the firearm found on the searched premises. When a defendant is not in exclusive control of the place where a firearm is found, courts use the same sufficiency analysis they use for illegal drug possession and require the State to link the defendant to the weapon. See, e.g., Smith v. State, 176 S.W.3d 907, 916 (Tex. App.—Dallas 2005, pet. ref'd). The pistol was found in a kitchen cabinet on the same shelf as methamphetamine and a digital scale that bore appellant's fingerprint. Officers also found a box of clean baggies and a prescription bottle bearing appellant's name in the kitchen, although the record is not clear as to where in the kitchen those items were found.
We acknowledge the kitchen may well have been shared space in the residence as the location of food storage and preparation. However, the presence of appellant's fingerprint on the scale is sufficient to tie appellant to use of the kitchen in the drug business being conducted in the residence, not merely food-related activities. Appellant also kept his personal medication in the kitchen. We conclude the gun was hidden in a place tied to appellant. See Poindexter, 153 S.W.3d at 409, n.24. Again, viewing the evidence in the light most favorable to the verdict, the trial court could have reasonably found beyond a reasonable doubt that appellant exercised actual care, custody, and control of the pistol seized from the kitchen. See Jackson, 443 U.S. at 319.
We overrule appellant's third issue.
Conclusion
We have decided each of appellant's issues against him. We affirm the trial court's judgment.
/Michael J. O'Neill/
MICHAEL J. O'NEILL
JUSTICE, ASSIGNED Do Not Publish
TEX. R. APP. P. 47 150165F.U05
JUDGMENT
On Appeal from the 265th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1330899-R.
Opinion delivered by Justice O'Neill, Justices Lang and Brown participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 14th day of March, 2016.