Opinion
No. 05-04-01544-CR
Opinion Filed August 8, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-48416-KQ. Affirm.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
OPINION
A jury convicted Corey Brooks of possession of cocaine with intent to deliver in an amount of four grams or more but less than 200 grams. After finding the enhancement paragraph true, the trial court assessed punishment at twenty-five years in prison. In six issues, appellant complains about the search of the vehicle, the factual sufficiency of the evidence, charge error, and the admission of expert testimony. We affirm. After observing Brooks fail to signal a turn, Dallas police officers Antonio Aleman and Daniel Torres pulled their squad car behind the truck Brooks was driving and turned on their lights and siren. During the several turns Brooks made before stopping, Aleman saw him lean several times toward the floorboard in the middle of the truck. Aleman went to the passenger side of the vehicle while Torres went to the driver's side. Brooks continued to move inside the truck as the officers approached. Brooks and his passenger, Antrone Mays, were asked to step out of the vehicle to ensure the officers' safety. Neither man was able to produce identification or insurance on the vehicle. The truck was not registered to either Brooks or Mays. After officers ran a computer check and determined Brooks had an outstanding warrant, he was handcuffed and placed under arrest. A pat down search revealed $897 in cash in Brooks's pants pocket. Mays was released. Officers then searched the truck, including the area where Brooks was seen making movements immediately before the stop. When officer Aleman turned the knob to open the glove box, the entire glove box fell to the floor of the truck. Behind the ashtray visible when the glove box fell out, Aleman observed a white rag. When he pulled out the rag, he found it was actually a sock containing crack cocaine in large and small baggies. A digital scale wrapped in a towel was recovered from under the hood of the truck. In his first issue, Brooks argues the trial court erred in denying his motion to suppress evidence seized as the result of an illegal inventory search in violation of the United States and Texas constitutions. He maintains the search was illegal because (1) it was based on a mere suspicion of criminal behavior and was actually a ruse to locate evidence of drug activity and (2) the State introduced no evidence of standardized police procedure in conducting the inventory. The State initially argues that Brooks lacks standing to contest the search but maintains the search was lawful. Brooks does not contest the legality of the traffic stop and does not contest the legality of the search of his person that led to the recovery of the $897 in cash. Brooks objects only to the searches of the inside compartment of the vehicle and under the hood, which led to the discovery of cocaine and the digital scales. Brooks characterizes both as illegal inventory searches. Regarding standing, the State contends that because no evidence establishes Brooks owned the vehicle he was driving or otherwise had permission to drive the vehicle, he has no standing to contest the search of that vehicle. The evidence adduced during the suppression hearing was that although Brooks was not the registered owner of the vehicle, the vehicle had not been reported stolen. Absent evidence the vehicle was stolen or was being used without the owner's consent, we decline to conclude Brooks lacked standing to complain about the search of the truck. See Parker v. State, 182 S.W.3d 923, 926-27 (Tex.Crim.App. 2006). Accordingly, we consider Brooks's issues regarding the validity of the search. We conduct a bifurcated review of a trial court's ruling on a motion to suppress, giving almost total deference to the trial judge's determination of historical facts but reviewing search and seizure law de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). If the issue involves credibility of a witness, such that the demeanor of the witness is important, then greater deference will be given to the trial court's ruling on that issue. Guzman, 955 S.W.2d at 87. When the trial court does not make findings of fact, we assume the trial court found facts favorable to its ruling when the record supports the implicit findings. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). An exception to the Fourth Amendment prohibition against warrantless searches is a search incident to a lawful arrest. New York v. Belton, 453 U.S. 454, 460 (1981); State v. Gray, 158 S.W.3d 465, 469 (Tex.Crim.App. 2005). "The privacy interests of a person who has been lawfully arrested must yield, for a reasonable time and to a reasonable extent, to permit the police to search for weapons, means of escape, and evidence." Oles v. State, 993 S.W.2d 103, 107 (Tex.Crim.App. 1999). Police may search the passenger compartment of a vehicle and containers within it when the search is a contemporaneous incident to a lawful arrest. Belton, 453 U.S. at 460. The search incident to arrest can include a search of the vehicle's glove compartment. Satterwhite v. State, 726 S.W.2d 81, 86 (Tex.Crim.App. 1986), rev'd on other grounds, 486 U.S. 249 (1988). The hearing on the motion to suppress was held before the trial began; officers Aleman, Torres, and Rudloff testified. Officer Aleman testified he searched the vehicle's passenger compartment and the area behind the fallen glove box, after placing Brooks under custodial arrest for an outstanding warrant. See Tex. Code Crim. Proc. Ann. art. 15.01 (Vernon 2005) (Vernon 2005). Because the search of the passenger compartment of the vehicle was a contemporaneous incident to Brooks's lawful arrest, we conclude it constituted a proper search. Having so concluded, we likewise determine that the recovery of the cocaine in the sock behind the ashtray was legal. We therefore decline to address his contention that the search of this area was an improper inventory search. See Laney v. State, 117 S.W.3d 854, 857 (Tex.Crim.App. 2003) (allowing appellate court to uphold trial court's ruling if the ruling is reasonably supported by the record and correct on any theory of law applicable to the case). We next consider Brooks's argument that the search under the hood and recovery of the digital scales was an illegal inventory search. An inventory search is constitutionally permissible as long as it is not a "ruse for a general rummaging in order to discover incriminating evidence." Florida v. Wells, 495 U.S. 1, 4 (1990). Inventories conducted pursuant to standard police procedures are considered reasonable under the Fourth Amendment. South Dakota v. Opperman, 428 U.S. 364, 372 (1976). During an inventory search, police may open closed containers so long as they do so in accordance with standardized procedures. Colorado v. Bertine, 479 U.S. 367, 376 (1987). Inventory searches are valid when a vehicle is impounded by police and its contents are inventoried using a standardized procedure for the purposes of protecting (1) the owner's property while it remains in police custody, (2) the police against claims or disputes over lost or stolen, property, and (3) the police or the public from potential danger. Opperman, 428 U.S. at 369. During the hearing, Officer Aleman testified the passenger of the vehicle had no identification or driver's license. Because he had no identification, the officers were "unable to release the vehicle to him" and "an inventory search of that car" would have to be conducted. The vehicle would be "impounded" and "taken to the city pound." Officer Aleman told the trial court that, under certain conditions, the vehicle would have been released to the passenger. Those conditions included the passenger's possession of a valid driver's license, proof of driver's ownership of the vehicle, and proof of insurance on the vehicle. Officer Rudloff testified that he arrived on the scene to assist and, after the cocaine was recovered from inside the cab of the truck, he told officer Aleman he would conduct the search under the hood of the truck. When asked if he was searching for drugs, Officer Rudloff responded, "Yeah, drugs, guns, whatever, contraband anything that we wouldn't want going into the auto pound." He stated that a wrecker book sheet would be filled out at the scene. Officer Torres described the "search incident to arrest" and the "inventory search." While no formal police policy was discussed, the three officers testifying at the suppression hearing described a variety of police procedures governing their actions during the search. We do not agree this evidence fails to reflect a valid inventory search as opposed to a rummaging for evidence. See Moberg v. State, 810 S.W.2d 190, 195 (Tex.Crim.App. 1991); Mayberry v. State, 830 S.W.2d 176 (Tex.App.-Dallas 1992, pet. ref'd). We conclude the search was not a "ruse." We overrule appellant's first issue. In his second issue, Brooks contends the inventory search violated federal and state contitutional protections because, during the hearing on the motion to suppress, the State did not produce the outstanding warrant for Brooks's arrest, the reason officers gave for conducting the inventory search. Consequently, Brooks argues, the evidence seized as a result of the search was the fruit of an illegal arrest. The State counters that it introduced the warrant during trial. In determining whether a trial court's decision on a motion to suppress is supported by the record, we generally consider only evidence produced at the suppression hearing because the ruling was based on that evidence, rather than evidence introduced later at trial. Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App. 1996). But it would be unreasonable to ignore trial evidence in our review of the suppression decision only to be confronted by the evidence in our consideration of whether the error was harmless. Tex.R.App.P. 44.2(b); Rachal, 917 S.W.2d at 809. Here, the record shows that the warrant, while not admitted at the suppression hearing, was admitted at trial. Consequently, we need not determine whether the trial court erred by denying the motion to suppress when no warrant was presented at the hearing because even assuming it did, we would not conclude it was harmful. We overrule Brooks's second issue. In his third issue, Brooks contends the evidence is factually insufficient to support the jury's finding that he had care, custody, and control of the drugs. He maintains no affirmative links existed between the cocaine and him because (1) he was not in exclusive control of the vehicle as a passenger was present in the truck; (2) he did not own the vehicle; (3) the contraband was not in plain view, nor was it easily accessible; and (4) he made no effort to deter the officers from searching the vehicle. In reviewing a challenge to the factual sufficiency of the evidence, we view the evidence in a neutral light to determine whether the a fact-finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). The evidence is factually insufficient when the evidence supporting the verdict, considered by itself, is too weak to support a finding of guilt beyond a reasonable doubt or when the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. The jury is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996); Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). To establish the unlawful possession of a controlled substance with intent to deliver, the State must prove the accused exercised care, control, and management over the contraband and knew that the matter possessed was cocaine. Tex. Health safety code Ann. §§ 481.002(38); 481.112(a) (Vernon 2003 Supp. 2005); Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). The State need not prove exclusive possession of the contraband for conviction. Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005). When the accused is not in exclusive possession of the place where the contraband is found, however, we cannot conclude that the accused had knowledge of and control over the contraband unless the State established an "affirmative link" between the accused and the contraband, that is, independent facts and circumstances that affirmatively link the accused to the contraband so as to suggest that the accused had knowledge of the contraband and exercised control over it. Rhyne v. State, 620 S.W.2d 599, 601 (Tex.Crim.App. 1981). The State must establish that the accused's connection with the substance was more than just fortuitous. Brown, 911 S.W.2d at 747. The number of links actually supported by the evidence is not as important as the "logical force" they collectively create to prove that a crime has been committed. Taylor v. State, 106 S.W.3d 827, 830 (Tex.App.-Dallas 2003, no pet.). One fact that can establish an affirmative link is evidence that the accused was the driver of the vehicle in which the controlled substance was found. Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App. 1981). Additionally, furtive attempts to discard the drugs or drug paraphernalia are factors that indicate the accused exhibited knowledge and control over the substance. Earvin v. State, 632 S.W.2d 920, 924 (Tex.App.-Dallas 1982, pet. ref'd). Finally, another affirmative link occurs when the accused possesses weapons or a large amount of cash. King v. State, 710 S.W.2d 110, 113 (Tex.App.-Houston [14th Dist.] 1986, pet. ref'd). The above links are present in this case. Brooks was the driver of the vehicle. Officers Aleman and Torres testified Brooks continued to drive for a period of time after Aleman had turned on his lights and siren. The officer observed Brooks moving several times toward the center area of the truck during the time immediately prior to his stopping the truck, and the cocaine was recovered from this area of the truck. In Brooks's right front pants pocket, officer Aleman recovered $897 in cash, comprised primarily of $20 bills. In addition, digital scales were recovered from under the hood of the truck. After reviewing the evidence, we cannot conclude it is so weak as to render the verdict clearly wrong or manifestly unjust. We overrule the third issue. In his fourth and fifth issues, Brooks asserts that because the evidence is legally and factually insufficient to establish he acted as a party in the commission of the offense, the trial court erred in including an instruction in the charge that Brooks could be found guilty if he solicited, encouraged, aided, or attempted to aid the passenger of the vehicle to commit the offense. Brooks argues the passenger, Antrone Mays, was not arrested or charged with the offense so he cannot be a party to the commission of a crime with an individual who committed no crime. Brooks objected to the inclusion of the instruction in the charge. Even where proper objection is made at trial, the court of criminal appeals has held that where, as in the instant case, the evidence clearly supports a defendant's guilt as the primary actor, error in charging on the law of parties was harmless. See Cathey v. State, 992 S.W.2d 460, 466 (Tex.Crim.App. 1999). If an appellant claims guilt would be an irrational finding under the evidence, then it would be highly unlikely that a rational jury would base its verdict on a parties theory. Id. We previously set out the evidence that clearly established Brooks's guilt as the primary actor. Thus, even if we assumed the trial court erred in submitting the parties charge, appellant has failed to show harm. See Cathey, 992 S.W.2d at 466. We overrule the fourth and fifth issues. In his sixth issue, Brooks contends the trial court erred in admitting the testimony of Robert Starr, a narcotics detective who testified that Brooks possessed the cocaine with intent to distribute. We review a trial judge's decision to admit evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001). Under Texas Rule of Evidence 401, evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. A witness may testify as an expert if the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue and if that witness is qualified as an expert by knowledge, skill, experience, training, or education. Tex. R. Evid. 702. Experience alone can provide a sufficient basis to qualify a person as an expert. Carter v. State, 5 S.W.3d 316, 319 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). Brooks contends the State failed to prove Starr's testimony was reliable because the State did not show (1) the field of expertise involved was legitimate, (2) the subject matter of Starr's testimony was within the scope of that field, and (3) Starr's testimony properly relied upon or used the principles involved in the field. We disagree. Starr testified he had been a narcotics officer for almost eight years, worked undercover with confidential informants, and had purchased narcotics "very many times." Moreover, Starr testified he had attended a forty-hour class, annual continuing education, drug recognition schools, drug testing classes, drug buying classes and a few classes on courtroom testimony. After Starr described cocaine, its packaging, amounts and prices, and described the cocaine found in this case, he testified a person in possession of a 100 grams of cocaine would be in possession with intent to distribute. We cannot say the trial court abused its discretion in allowing his testimony. See Reece v. State, 878 S.W.2d 320, 325 (Tex.App.-Houston [1st Dist.] 1994, no pet.) (concluding that witness who had been police officer for seven and one-half years and had made numerous narcotics arrest qualified to testify to appellant's actions that indicated he was selling cocaine). We overrule the sixth issue. We affirm the trial court's judgment.