Opinion
No. 05-02-00258-CR.
Opinion Issued January 8, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F98-54238-LM. AFFIRMED.
Before Justices MORRIS, WHITTINGTON, and RICHTER.
OPINION
Burnett Taylor, Jr. appeals his conviction for possession of one gram or more but less than four grams of cocaine. See Tex. Health Safety Code Ann. §§ 481.102(3)(D) 481.115(c) (Vernon Supp. 2003). After the jury found appellant guilty, the trial judge assessed punishment at four years' confinement, probated for four years, and a $1500 fine. In five points of error, appellant contends the trial judge erred in overruling his motion to suppress, in refusing to admit certain evidence, overruling appellant's objection to the jury charge, and in ordering appellant to participate in a community service project. In two other points of error, appellant claims the evidence is legally and factually insufficient to support his conviction. We affirm the trial court's judgment.
Background
Responding to complaints about drug activity at a house located at 1515 Missouri in Dallas, police sent an undercover officer to make a drug purchase at the house on October 28, 1998. The following day, in light of the officer's successful purchase of cocaine, police sought a search warrant for the house and an arrest warrant for "John Doe," the individual who sold the drugs to the undercover officer. When police executed the search warrant, appellant and a friend were leaving the house. They were detained while officers searched the house. Appellant admitted owning and living in the house. When police discovered cocaine in the master bedroom, appellant was arrested and charged with possession of one gram or more but less than four grams of cocaine. Appellant was convicted and sentenced. This appeal followed.Legal and Factual Sufficiency of the Evidence
In his first point of error, appellant claims the evidence is legally insufficient to support his conviction. Under this point, appellant contends the State failed to prove he possessed cocaine. We disagree. When reviewing challenges to the legal sufficiency of the evidence, we apply well known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001), petition for cert. filed, (Jan. 8, 2002) (No. 02-5551). To support a conviction for unlawful possession with intent to deliver four hundred grams or more of cocaine, the State must prove the accused (i) exercised actual care, custody, control, or management over the contraband; and (ii) knew the matter was contraband. See Tex. Health Safety Code Ann. §§ 481.102(3)(D) 481.115(c) (Vernon Supp. 2003); Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim. App. 1988); Porter v. State, 873 S.W.2d 729, 734 (Tex.App.-Dallas 1994, pet. ref'd). When the accused is not in exclusive control or possession of the place where the contraband is found, the accused cannot be charged with knowledge and control over the contraband unless there are additional independent facts and circumstances affirmatively linking the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband's existence and that he exercised control over it. Porter, 873 S.W.2d at 732; see Brown v. State, 911 S.W.2d 744, 748 (Tex.Crim.App. 1995). In determining whether sufficient affirmative links exist, we examine such circumstantial factors as whether the defendant was present when the search was executed; the amount of contraband found; its location in relationship to the defendant's personal belongings; whether the defendant owned or had the right to possess the place where the drugs were found; the defendant's relationship to other persons with access to the premises; incriminating statements; whether the place the drugs were found was enclosed; and proximity of the defendant to the contraband. See Frierson v. State, 839 S.W.2d 841, 849 (Tex.App.-Dallas 1992, pet. ref'd) (citing Pollan v. State, 612 S.W.2d 594, 596 (Tex.Crim.App. [Panel Op.] 1981) and Earvin v. State, 632 S.W.2d 920, 924 (Tex.App.-Dallas 1982, pet. ref'd) (en banc)); Green v. State, 892 S.W.2d 220, 222 (Tex.App.-Texarkana 1995, pet. ref'd); Villegas v. State, 871 S.W.2d 894, 896 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). Although appellant claims the evidence is insufficient to affirmatively link him to the cocaine in this case, we disagree. Officer Larry Moses, a ten-year veteran of the Dallas police department, testified he and five other officers executed a search warrant on the house at 1515 Missouri Street. As they approached the house, the officers saw appellant and Andrea Hill leaving the house. A second team detained appellant and Hill while Moses and his team entered the house. After securing the house, Moses and his partner, Officer Moore, began searching the master bedroom. Moses discovered a medicine bottle containing crack cocaine in the pocket of a man's robe hanging on the door to the master bedroom. Officer Moore discovered plastic bags containing crack cocaine on a dresser in the master bedroom. Moses then found a gas bill with appellant's name and the address of 1515 Missouri Street and a digital scale, similar to those used by dealers to weigh drugs, in a drawer of the dresser. The officers also found a shotgun in the second bedroom. When the officers spoke with appellant, he told them Hill had nothing to do with the investigation. She was therefore released. The officers searched appellant and found $355 in cash. Appellant testified he owns and lives in the house at 1515 Missouri Street. He lives alone, although Hill occasionally spends the night. According to appellant, he does not own a robe or any type of long dressing gown with pockets. Similarly, appellant testified he knew nothing about the digital scale, the cocaine in the medicine bottle, or the plastic bags with cocaine. Appellant also claimed he had approximately $972 in cash when he was arrested. Appellant conceded the shotgun came from his house. The evidence in this case shows appellant owned and lived alone in the house at 1515 Missouri. Officers executed a search warrant in appellant's presence and discovered (i) cocaine in a man's robe in the master bedroom, (ii) cocaine in plastic bags on the dresser in the master bedroom, (iii) a digital scale similar to those used by drug dealers when measuring drugs for sale, (iv) a gas bill in appellant's name for the house at 1515 Missouri, and (v) a shotgun. In addition, appellant had a large amount of cash in his pockets at the time of his arrest. From these facts, we conclude a rational jury could find beyond a reasonable doubt that (i) the State presented sufficient evidence affirmatively linking appellant to the contraband and (ii) appellant knowingly possessed one gram or more but less than four grams of cocaine. After viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction. We overrule appellant's first point of error. In his second point of error, appellant contends the evidence is factually insufficient to support his conviction. Under this point, appellant again argues we must reverse his conviction because the evidence did not affirmatively link appellant to the cocaine. Again, we disagree. In conducting a factual sufficiency review, we examine the jury's weighing of the evidence and view all the evidence without the prism of "in the light most favorable to the prosecution." See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim. App. 1996). We do not, however, judge the credibility of witnesses in determining factual sufficiency. Nolasco v. State, 970 S.W.2d 194, 196 (Tex.App.-Dallas 1998, no pet.); see Dillard v. State, 931 S.W.2d 689, 696 (Tex.App.-Dallas 1996, pet. ref'd, untimely filed). Rather, we defer to the jury's findings so as to avoid substituting our judgment for that of the jury. See Johnson, 23 S.W.3d at 7; Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996). Our review is only to prevent a manifestly unjust result. See Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 135. We have reviewed the record in this case and, after doing so, we conclude the jury's verdict was not so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. The evidence is therefore factually sufficient to support appellant's conviction. We overrule appellant's second point of error.Motion to Suppress
In his third point of error, appellant contends the trial judge erred in denying his motion to suppress. Under this point, appellant claims he was arrested pursuant to an invalid search and arrest warrant because the warrant did not describe appellant. The Texas constitution requires that the affiant of a search warrant identify the place to be searched with some particularity. See Tex. Const. art. I, § 9 (no warrant "shall issue without describing [the property] as near as may be"). The primary objectives of the descriptive averment are to: (i) direct the executing officer to the place to be searched; (ii) confirm that probable cause has focused on the place named in the warrant; (iii) limit the police officer's discretion and narrow the scope of his search; (iv) minimize the danger of mistakenly executing the warrant on the unintended property of an innocent owner or resident; and (v) apprize the owner or resident of the officer's authority to search his premises. Taylor v. State, 974 S.W.2d 851, 856 (Tex.App.-Hous. [14th Dist.] 1998, no pet.). In contrast, an arrest warrant must "specify the name of the person whose arrest is ordered, if it be known, if unknown, then some reasonably definite description must be given of him." Tex. Code Crim. Proc. Ann. art. 15.02(1) (Vernon 1977). In this case, the police executed a search warrant of the house located at 1515 Missouri and an arrest warrant for a "John Doe." "John Doe" was not found at the location. Nevertheless, the police executed the search warrant and discovered cocaine and drug paraphernalia at the house. Police also found documents indicating the house belonged to appellant. Appellant was initially detained because he was seen leaving the house immediately prior to the search. Once cocaine was discovered at the house and appellant admitted he was the owner of the house, he was arrested for committing a crime (possession of cocaine) in the presence of police. See Tex. Code Crim. Proc. Ann. art. 14.01(a) (Vernon 1977); Tex. Health Safety Code Ann. §§ 481.102(3)(D) 481.115(c) (Vernon Supp. 2003). Because appellant was not arrested pursuant to the arrest warrant issued for "John Doe," his complaint that the arrest warrant did not describe him lacks merit. We overrule appellant's third point of error.Exclusion of Evidence
In his fourth and sixth points of error, appellant contends the trial judge erred in excluding certain evidence. We review a trial judge's decision to admit or exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). Absent an abuse of discretion, we do not disturb a trial judge's ruling on the admissibility of evidence. See Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim. App. 1994). Under his fourth point, appellant claims the trial judge erred in limiting his cross-examination of Officer Moses and not allowing him to elicit evidence about the October 28th drug transaction. Appellant contends this evidence would have shown someone else, specifically a younger black male, was using appellant's house to sell cocaine and therefore, appellant did not have care, custody, and control over the cocaine found in his house. He claims the failure to admit this evidence is reversible error. We disagree. Appellant was charged with possession of cocaine discovered at his house on October 29. Appellant was not charged with delivery of cocaine to Officer Moses on October 28. Because appellant was not on trial for the October 28th delivery of cocaine, we fail to see how Officer Moses's testimony regarding that transaction would be relevant to appellant's case. We overrule appellant's fourth point of error. Under his sixth point, appellant claims the judge erred in "excluding information of disciplinary complaints lodged against Officer Larry Moses." Appellant requested "various records, personnel[,] and Internal affairs" records on Officer Moses and contends he should have been allowed to examine and introduce the documents to challenge the officer's reputation for truthfulness. The State submitted the evidence to the trial judge for an in camera review. After reviewing the documents in camera, the trial judge ordered the records sealed and denied appellant access to them. We have reviewed the sealed records. The records do not contain any evidence Officer Moses was not truthful or that he did not have a character for truthfulness. Because the records do not contain any evidence relevant to Officer Moses's character for truthfulness, they were not relevant to the issues raised in this case. Thus, the trial court did not err in denying appellant access to the records or in denying their admissibility. We overrule appellant's sixth point of error.Jury Charge
In his seventh point of error, appellant contends the trial judge erred in overruling his objection to the jury charge. Under this point, appellant claims he requested an instruction on affirmative links be included in the jury charge and that the trial judge erred in denying his request. We disagree. "Affirmative links" is a legal standard of review and, therefore, is not appropriate for use by the jury. See Gilbert v. State, 874 S.W.2d 290, 297 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd); Davila v. State, 749 S.W.2d 611, 614 (Tex.App.-Corpus Christi 1988, pet. ref'd); Gordon v. State, 686 S.W.2d 241, 243 (Tex.App.-Houston [14th Dist.] 1985, pet. ref'd). Because the requested instruction was not proper, the trial judge did not err in denying appellant's request. We overrule appellant's seventh point of error. Punishment In his fifth point of error, appellant claims the trial judge abused his discretion in ordering appellant to participate in a community service project when appellant is disabled. Appellant contends the trial judge pronounced in open court that he "should complete the community service hours only ` as able.'" He argues the provision ordering appellant to complete community service was unreasonable and that the written judgment is in conflict with the oral pronouncement of sentence. The record, however, belies his claim. At the conclusion of punishment, the judge assessed punishment and stated:Your application for probation is granted and you will be on probation for a four-year period. Standard drug conditions [will apply] and you will be ordered to perform the usual community service hours. I do know that you have testified that you are disabled, I made a note on the docket sheet. I am not sure what kind of community service is available for you to be doing, but you are going to be doing it.(Emphasis added.) Nothing in this oral pronouncement restricts appellant's hours. Rather, the record reflects that although he acknowledged appellant's testimony that he was disabled, the trial judge nevertheless ordered appellant to perform community service as a portion of his probation. He did not, as appellant claims, limit such service to "only as able." Furthermore, although appellant claims the judge "found" he was disabled, the trial judge made no such finding. See State v. Garza, 931 S.W.2d 560, 562 (Tex. Crim App. 1996) (holding court of appeals did not err in concluding that docket entry was not written order); State v. Shaw, 4 S.W.3d 875, 878 (Tex.App.-Dallas 1999, no pet.) (docket sheet entry is not trial court's order). Because the sentence pronounced in open court does not vary from the written sentence in this case, we conclude appellant's complaint lacks merit. We overrule appellant's fifth point of error. We affirm the trial court's judgment.