Summary
holding apparent authority to consent to search vehicle was established where consent-giver asserted it was his vehicle and was in possession of it at time of search, even though it was not his vehicle
Summary of this case from Elliott v. StateOpinion
No. 04-02-00805-CR.
Delivered and Filed: March 31, 2004. DO NOT PUBLISH.
Appeal from the 226th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-0809, Honorable Sid L. Harle, Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice and Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Appellant Charles Wilson was found guilty of possession of a controlled substance and was sentenced by the district court to 25 years in the Texas Department of Criminal Justice, Institutional Division as a habitual offender. Wilson's court-appointed appellate attorney filed a brief containing a professional evaluation of the record and demonstrated that there are no arguable grounds to be advanced. Counsel concluded that the appeal is without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). A copy of counsel's brief was delivered to Wilson, who was advised of his right to examine the record and file a pro se brief. Wilson filed a pro se brief asserting nine issues. Because the issues involved in this case involve the application of well-settled principals of law, we affirm the trial court's judgment in this memorandum opinion under Tex. R. App. 47.4 for the following reasons:
1. In his first issue, Wilson argues that he was denied effective assistance of appellate counsel based on appellate counsel's filing of an Anders brief. Wilson contends that there are "multiple meritorious issues yet to be heard" that are apparent from the record. Wilson frames seven of his issues in terms of appellate counsel's failure to assert each particular issue on appeal. Where the appellant alleges that appellate counsel was ineffective for failing to assert a certain issue on appeal, and the reviewing court disposes of that issue adversely to the appellant's position, "appellate counsel cannot be deemed ineffective for failing to present the spurious claim on appeal." Stafford v. State, 813 S.W.2d 503, 509 (Tex.Crim.App. 1991). Because we conclude, as appellate counsel did, that this appeal is frivolous and without merit, counsel's decision to file an Anders brief does not constitute ineffective assistance. Wilson's first issue is overruled.
2. In his second issue, Wilson contends that he was denied effective assistance of trial counsel in violation of both the United States and Texas Constitutions because trial counsel did not object to inadmissible testimony. Wilson complains that he received ineffective assistance of counsel because his attorney failed to object to the hearsay statements of an informant. The record provides no explanation as to the motivation behind trial counsel's failure to object to the alleged hearsay statements. A silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). On the record presented, it must be concluded that Wilson has failed to meet his burden under Strickland v. Washington. 466 U.S. 668 (1984). Wilson's second issue is overruled.
3. Wilson's third, fifth, and ninth issues allege that the trial court's finding that Wilson possessed narcotics was contrary to the great weight of the evidence adduced at trial and insufficient to prove beyond a reasonable doubt that he possessed the cocaine. Wilson also alleges that the trial court abused its discretion in finding him guilty, as "no rational trier of fact could have found the essential elements of guilt beyond a reasonable doubt" in light of the record.Wilson contends the State's evidence failed to support the trial court's finding that Wilson possessed the cocaine because the State failed to establish an affirmative link between Wilson and the seized cocaine. See Puente v. State, 888 S.W.2d 521, 526 (Tex. App.-San Antonio 1994, no writ) (stating that in order to establish unlawful possession where the contraband is not in the exclusive control of the accused, the State must show an affirmative link between the accused and the contraband). The evidence shows that Wilson was occupying the black Cadillac in which the cocaine was found, establishing his proximity to and the accessibility of the narcotics. Although the vehicle was not registered to Wilson, the evidence shows that Wilson was often seen driving the black Cadillac, creating an inference of Wilson's right to possess the property where the cocaine was found. The evidence also shows that a razor blade, which is drug paraphernalia commonly used to cut cocaine, was found in Wilson's pocket. Moreover, Officer Odoms testified that Wilson appeared nervous, and Officer Ramirez testified that the narcotics were discovered in plain view on the seat of the car in which Wilson had been sitting. See Chisum v. State, 988 S.W.2d 244, 248 (Tex. App.-Texarkana 1998, pet. ref'd) (analyzing whether the contraband was in plain view, the accused's proximity to and accessability of the narcotic, whether drug paraphernalia was present, and the accused's right to possess the place where the drugs were found as factors in determining whether an affirmative link existed). Therefore, the affirmative link factors considered together are sufficient to support the trial court's finding that Wilson possessed the cocaine. See Warmowski v. State, 818 S.W.2d 505, 507 (Tex. App.-San Antonio 1991), aff'd, 853 S.W.2d 575 (Tex.Crim.App. 1993) (finding sufficient evidence based on plain view and defendant's proximity to contraband). Wilson also alleges that the trial court erroneously read the law and the facts of the case, abused its discretion in finding him guilty, and denied him due process. Although Wilson frames this argument in the foregoing terms, Wilson actually challenges the sufficiency of the evidence based on alleged inconsistencies in the officers' testimony. As the sole evaluator of the credibility of the witnesses and evidence presented, the trial judge in his discretion chose to believe the officers' version of the events. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Upon reviewing the record, the evidence is legally and factually sufficient to support the trial court's judgment. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson, 23 S.W.3d at 11. Wilson's third, fifth, and ninth issues are overruled. 4. Wilson's fourth issue alleges that his conviction was based on evidence obtained through an illegal search and seizure, and that his trial counsel failed to obtain an evidentiary hearing based on the evidence seized being "fruits of the poison tree." Contrary to Wilson's assertion, the record demonstrates that the trial court did make a ruling on the defendant's motion to suppress the evidence seized. The trial court denied the motion on the merits and on the issue of standing. Wilson also argues that he "lacked standing" to give consent to search under the Fourth Amendment of the United States Constitution; therefore, the evidence obtained from the search of the vehicle must be suppressed. When reviewing a trial court's ruling on a motion to suppress, an appellate court will generally afford total deference to a trial court's determination of the historical facts, while reviewing de novo the trial court's application of the law to the facts. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002), cert. denied, 537 U.S. 1051 (2002). The testimony adduced at trial unequivocally indicates that Wilson consented to Officer Odoms' request to search the black Cadillac in which the cocaine was found. Prior to confronting Wilson, Officer Odoms ran a check of the vehicle's license plate and knew that Wilson was not the registered owner of the vehicle. However, Officer Odoms testified that he was told by several informants that Wilson frequently drove the car. Wilson himself told Officer Odoms that the Cadillac was his when asked by the officer for consent to search the vehicle. Wilson was in the driver's seat of the car and gave the appearance of having control over the vehicle when he was approached by the officers. Once the bag of cocaine was seized from the vehicle, and after Wilson was arrested, Wilson told the officers that the Cadillac did not belong to him. Although Wilson was not the registered owner of the car, Wilson's control over the vehicle gave him the authority to validly consent to the search. United States v. Matlock, 415 U.S. 164, 171 (1974) (allowing a third party with authority and control over property to consent to a search). Additionally, the record shows that Wilson was not coerced into telling the officer that the Cadillac was his. There is no evidence in the record that Wilson did not voluntarily give the officers consent to search the vehicle, nor is there evidence sufficient to indicate that Wilson did not have control over the property. See Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973) (requiring the State to prove, based on the totality of the circumstances, that the defendant gave consent voluntarily). Moreover, Wilson had apparent authority to consent to the search of the vehicle since an objective review of Wilson's consent would lead a person of reasonable caution to believe that Wilson appeared to have the authority to consent. Illinois v. Rodriguez, 497 U.S. 177, 188 (1990); Riordan v. State, 905 S.W.2d 765, 771 (Tex. App.-Austin 1995, no pet.). Wilson asserted the vehicle was his, and he was in possession of the vehicle when the consent was given. There were no ambiguities present in the situation that should have given Officer Odoms pause to doubt Wilson's apparent authority over the vehicle. Corea v. State, 52 S.W.3d 311, 317 (Tex. App.-Houston [1st Dist. 2001], pet. ref'd) (stating that law enforcement officers should not be permitted to proceed when ambiguous circumstances exist that merit further inquiry into the consenting party's apparent claim of authority to allow the search). The trial court did not abuse its discretion in finding that the officers conducted a constitutional search pursuant to consent. The trial court properly denied the motion to suppress. Wilson's fourth issue is overruled. 5. Wilson's sixth issue alleges that the police officers provided contradictory and perjured testimony at trial in violation of Wilson's due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and article 1, Sections 10 and 19 of the Texas Constitution. Wilson alleges that Officer Odoms's testimony relating to the issue of whether Wilson was a "main focus" of the investigation was contrary to statements in his police report and, therefore, constituted perjury. Wilson also alleges contradictions between the testimony of Officer Ramirez and Officer Odoms. Although the record does reveal contradictions, the evidence does not support a showing either that the statements were false or that there was any intent to deceive in connection with the misstatements. See Tex. Pen. Code Ann. § 37.02 (Vernon 2003) (perjury statute). Moreover, Wilson's perjury allegation is based on unpreserved error. Wilson failed to object at every point in which the alleged perjured testimony was offered into the record. See Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App. 2003) (holding that a party must object each time evidence believed to be inadmissible is presented). Because Wilson failed to secure an adverse ruling from the trial court regarding the alleged perjured testimony, Wilson failed to preserve error for review. Wilson's sixth issue is overruled. 6. Wilson's seventh issue alleges that the prosecution suppressed material and favorable evidence from the defense in violation of Brady v. Maryland. 373 U.S. 83, 87 (1963). Wilson alleges that the State improperly suppressed a police record dated September 4, 2001, which allegedly states "Billy (Bill) (William) McDonald was the driver of the same vehicle stopped by police." Wilson alleges the police record is material evidence that supports his contention that he was not frequently seen driving the Cadillac. Wilson's argument fails to establish the first element of the three-part Brady test. Butler v. State, 736 S.W.2d 668, 670 (Tex.Crim.App. 1987). The first prong of the test prohibits the State from failing to disclose material evidence to the accused. Ex Parte Kimes, 872 S.W.2d 700, 702-03 (Tex.Crim.App. 1993). Here, the evidence about which Wilson complains was not suppressed or withheld; it was accessible to him at all times. It was not the State's responsibility to establish a defense for Wilson. See Flores v. State, 940 S.W.2d 189, 191 (Tex. App.-San Antonio 1996, pet. ref'd) (noting that it is not the prosecution's duty to obtain evidence for the accused that is equally available to both sides). Wilson has failed to prove the alleged evidence falls within the scope of reversible error under Brady. Wilson's seventh issue is overruled. 7. Wilson alleges in his eighth issue that he was denied his right to confront and cross-examine the unidentified informant whose out-of-court statements were admitted into evidence. Wilson argues that by confronting the informant he could have revealed to the court that he had been framed. Wilson claims that the unknown informant was "an active participant" who placed the contraband in Wilson's vicinity by throwing the cocaine in the area of Wilson and then running away. The only factual issue that may relate to this argument is whether or not the police officers on the scene permitted bystanders to run off without first securing them. Both the defense and the prosecution examined the witnesses thoroughly on this issue, and the testimony from each witness conflicted. In its discretion, the trial court evaluated the weight and credibility of the contradictory witness testimony. Johnson, 23 S.W.3d at 7. Wilson failed to show that the informant was a material witness to his case. Therefore, Wilson failed to carry his burden of showing that the informant's identity required disclosure. Bodin v. State, 807 S.W.2d 313, 318 (Tex.Crim.App. 1991) (holding defendant with the threshold burden of establishing the necessity of disclosing the informant's identity). Wilson's eighth issue is overruled.
Officer Ramirez testified that, while the officers were legally on the property pursuant to an investigation for possible drug trafficking, he saw in plain view through the passenger side of the vehicle's window what he believed to be a bag of narcotics. Officer Ramirez testified that he recognized the substance to be a narcotic based on his experience and training as a police officer. See Joseph v. State, 807 S.W.2d 303, 308 (Tex.Crim.App. 1991) (citing Horton v. California, 496 U.S. 128 (1990)) (discussing plain view doctrine).