Jackson v. State

Full title: MARCUS SHERDELL JACKSON, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Feb 5, 2009

No. 05-07-00783-CR (Tex. App. Feb. 5, 2009)

Opinion

No. 05-07-00783-CR

Opinion Filed February 5, 2009. DO NOT PUBLISH Tex. R. App. P. 47

On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F-05-57197-MU.

Before Justices BRIDGES, RICHER, and MAZZANT.

OPINION

Opinion By Justice RICHTER.

A jury found appellant guilty of possession with intent to deliver cocaine in an amount of 4 grams or more but less than 200 grams, and also made a deadly weapon finding. The trial court sentenced appellant to fifteen years' imprisonment and a $5,000 fine. On appeal, appellant contends the trial court erred in admitting the drug evidence and his oral post-arrest statement. Appellant also argues the evidence is legally and factually insufficient to support his conviction. Finding no reversible error, we affirm the trial court's judgment.

I. Background

In September 2005, Dallas narcotics detectives investigated complaints about drug activity in two houses located across the street from one another. One house was located at 3715 Cauthorn Drive and the other at 3706 Cauthorn Drive. Based on their investigation, the police believed the two houses were operating a drug business together. After observing the two houses and drug purchases made by a confidential informant, the police obtained a search warrant for each location. The warrant executed at the house located on 3715 Cauthorn is at issue here. When a narcotics team executed the warrant they recovered drugs and supplies used for distribution from the living room closet, including forty-eight bags of cocaine, four bags of marijuana, empty drug baggies, and a digital scale with cocaine residue. A loaded twelve-gauge shotgun was discovered on top of the couch in the living room and a loaded handgun was retrieved from under the couch. Appellant was found in the sunroom trying to open the door to get out of the house. There was no one else present in the home. The police found $1570 in cash in varying denominations in appellant's pocket. Appellant was charged by indictment with possession with intent to deliver cocaine in an amount of 4 grams or more but less than 200 grams and entered a plea of "not guilty." The police officers involved with the investigation and execution of the search warrant testified at trial. Officer Anthony Whitaker, the affiant for the search warrant, testified about drug purchases made by the confidential informant and obtaining the warrant. Sergeant Gary Westry, the controlling supervisor, testified about the execution of the warrant and the items seized. Officer James Dupoch testified he accompanied Officer Whitaker when the confidential informant made the drug purchases. Officers Greg Garcia and Kurt Manasco also testified about the search. Officer Bishop, the officer stationed outside to cover the parameter of the home, testified that appellant was turned over to him outside the house after he had been arrested and searched. Officer Bishop asked appellant his name, date of birth and address. In response, appellant told the officer he had only lived at the house for the past two months. This statement was admitted over appellant's objection. Ann Weaver, a chemist from the Southwest Institute of Forensic Sciences, testified about the analysis of the narcotics retrieved from the house. The drugs and the lab report were admitted into evidence over appellant's objection that the evidence was seized pursuant to an invalid warrant. Detective Barry Ragsdale testified as an expert on the drug trade. After reviewing the drug evidence and other materials seized from the home, Detective Ragsdale opined that a drug distribution enterprise was conducted from the home. He further testified that in his experience, an individual running a drug operation would not leave just any individual alone in the house with 16.8 grams of cocaine. Appellant's girlfriend, April Williams, was the only witness who testified on his behalf. Williams testified that she lived at the home with her mother and aunt and appellant lived elsewhere. Williams stated she was unaware of any activities that took place at the house during the day because she worked all day and spent every morning in drug treatment. The jury returned a guilty verdict and made a deadly weapon finding. The trial court sentenced appellant to fifteen years' imprisonment and a $5,000 fine. This appeal followed.

II. Discussion

Admissibility of Post-Arrest Statement

In his first issue, appellant contends his oral post-arrest statement was inadmissible pursuant to article 38.22 of the Texas Code of Criminal Procedure because the statement was not electronically recorded and he was not given the requisite Miranda warnings. The State maintains Miranda and section 38.22 are inapplicable because there was no custodial interrogation. We agree with the State. Article 38.22 generally conditions the evidentiary use of a defendant's statement stemming from custodial interrogation on compliance with its procedural safeguards. See Tex. Code Crim. Proc. Ann. art. 38.22(3) (Vernon 2005). The statute codifies both Miranda's system of protecting a suspect against self-incrimination and its distinction between voluntary statements and compelled confessions. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App. 1996). However, article 38.22 does not preclude the admission of statements that do not result from custodial interrogation. See Tex. Code Crim. Proc. Ann. art. 38.22(5) (Vernon 2005); Morris v. State, 897 S.W.2d 528, 531 (Tex.App.-El Paso 1995, no pet.). If either the "custodial" or the "interrogation" predicates are not met, article 38.22 does not apply. Gomes v. State, 9 S.W.3d 373, 379 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). A person is in custody if, under the circumstances, a reasonable person would believe his freedom of movement was restrained to the degree of formal arrest. Dowhitt, 931 S.W.2d at 254. There is no question that appellant was in custody at the time he made the statement. He had been placed under arrest, handcuffed, and placed in a prone position on the ground. The mere fact of being in custody, however, does not automatically render any conversation between law enforcement and an accused "custodial interrogation." Cruse v. State, 882 S.W.2d 50, 51 (Tex.App.-Houston [14th Dist.] 1994, no pet.). Therefore, the focus of our inquiry is whether the officer's questions to appellant constituted interrogation within the meaning of Miranda and article 38.22. Not all police questioning can be categorized as "interrogation." As defined by the United States Supreme Court, the term "interrogation" includes both express questioning and any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291, 300-02 (1980). In Pennsylvania v. Muniz, 496 U.S. 582 (1990) (plurality op.), a four-justice plurality recognized a "routine booking question" exception that exempts from Miranda questions to secure biographical data for booking or pretrial services. Id. at 601. The Texas Court of Criminal Appeals is in accord with the plurality and has stated that "[q]uestions normally attendant to arrest, custody, or administrative `booking' do not constitute `interrogation' for purposes of Miranda. . . ." Cross v. State, 144 S.W.3d 521, 524 n. 5 (Tex.Crim.App. 2004) (citing Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990)); see also, Morris v State, 897 S.W.2d 528, 531 (Tex.App.-El Paso 1995, no pet.). The types of booking questions typically considered routine include inquiries about a defendant's name, address, weight, height, place of employment, or physical disabilities. See Townsend v. State, 813 S.W.2d 181, 186 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd) (citing Sims v. State, 735 S.W.2d 913, 917 (Tex.App.-Dallas 1987, pet. ref'd). Appellant relies on Rios v. State, 623 S.W.2d 496 (Tex.Civ.App.-Corpus Christi 1981, pet. ref'd) and Peddicord v. State, 942 S.W.2d 100 (Tex.App.-Amarillo 1997, no pet.) in support of his argument that the statement was erroneously admitted. This reliance is misplaced. Unlike the instant case, Peddicord involved a question posed by an investigating officer that was likely to elicit an incriminating response. Rios is devoid of any substantive discussion of the issue at hand. Thus, neither case is instructive here. In this case, appellant was asked his name, date of birth, and address so the cover officer could begin the identification process. These routine questions were not likely to elicit an incriminating response. To the contrary, giving such basic information to a police officer during the course of an arrest is basic to the process of being arrested and does not constitute interrogation. See Cruse, 882 S.W.2d at 51. The fact that appellant gratuitously provided a response subsequently considered among the factors linking him to the contraband does not alter our analysis of whether the questions constituted interrogation. Because there was no interrogation, the statutory warning was not required and article 38.22 does not apply. Appellant's first issue is overruled.

Validity of the Warrant

In his second issue, appellant argues the trial court erred in admitting the lab report and drugs into evidence because the evidence was seized without a valid warrant. Specifically, appellant contends the evidence was inadmissible pursuant to article 38.23 of the Texas Code of Criminal Procedure because the warrant did not describe the premises of 3715 Cauthorn Drive with sufficient particularity. The Fourth Amendment commands that no warrant shall issue except one "particularly describing the place to be searched." U.S. Const. amend IV; Long v. State, 132 S.W.3d 443, 446 (Tex.Crim.App. 2004). When a search exceeds the scope of a warrant, evidence obtained must be excluded. See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). The constitutional objectives to be served by the particularity requirement include: (1) ensuring that the officer searches the correct place; (2) confirming that probable cause is, in fact, established for the place described in the warrant; (3) limiting the officer's discretion and narrowing the scope of his search; (4) minimizing the danger of mistakenly searching the person or property of an innocent bystander or property owner; and (5) informing the owner of the officer's authority to search the specific location. Long, 132 S.W.3d at 447. Thus, when a warrant and its supporting documents contain accurate and specific directions that meet these constitutional objectives, the particularity requirement of the Fourth Amendment is satisfied. Id. at 447-48. When an affidavit is attached to the warrant, the documents are considered together as defining the place to be searched. Id. at 447 n. 11. The sufficiency of the affidavit is to be determined by considering the totality of the circumstances set forth within the four corners of the document. Illinois v. Gates, 462 U.S. 213, 234 (1983); Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App. 2004). The test for determining the adequacy of a search warrant's description of the place to be searched is whether the place described is sufficient to inform police officers of where they are to conduct the search. Jones v. State, 914 S.W.2d 675, 678 (Tex.App.-Amarillo 1996, no pet.); Etchieson v. Sate, 574 S.W.2d 753, 759 (Tex.Crim.App. 1978). The warrant must be sufficiently descriptive to protect innocent parties from a reasonable probability of a mistaken execution of a defective warrant. Bridges v. State, 574 S.W.2d 560, 562 (Tex.Crim.App. 1978). Therefore, the issue we must decide is whether the warrant and affidavit, read as a whole, were sufficiently specific to apprise the officers of where to conduct the search. Both the search warrant and the affidavit list the address of the premises to be searched as 3715 Cauthorn Drive. In the fifth paragraph of the affidavit, Officer Whitaker states that he received drug complaints about both 3706 and 3715 Cauthorn Drive, which are described together as the "complaint location." On September 7, a confidential informant went to both addresses and personally observed the suspect deliver cocaine. Officer Whitaker and the informant returned to both locations on September 13. The informant entered the house at 3706 Cauthorn Drive and asked the suspect for fifty dollars worth of crack. The suspect replied that he only had "fives" and "tens," and the "twenty-fives" were across the street at 3715 Cauthorn Drive. The informant observed the suspect as he walked to 3715 Cauthorn and returned with two items each containing twenty-five dollars' worth of cocaine. Appellant admits 3715 Cauthorn is listed in both the heading of the affidavit and the warrant, but insists the description of the place to be searched designates only 3706 Cauthorn. In support of his argument, appellant points to paragraphs one and two which state:

There is in Dallas County, Texas, a suspected place and premises described as follows . . . the numbers 3706 are on the front . . . designating it as 3706 Cauthorn.

There is at said suspected place and premises . . property . . . kept in violation of the laws of Texas . . . COCAINE.

Appellant urges that we discount the references to 3715 Cauthorn, claiming paragraph 5 merely recites facts to support a search of 3706 Cauthorn. Based on a statement made by the prosecutor at trial concerning the execution of warrants for both locations, appellant would also have us infer that the warrant admitted into evidence in this case was actually the warrant for 3706 Cauthorn. We are not persuaded by the argument and the inference is not supported by the evidence. A search warrant and its accompanying affidavit must be read in a common sense and realistic manner. Long v. State, 132 S.W.3d 443, 448 (Tex.Crim.App. 2004). Minor discrepancies will not vitiate a warrant if it sufficiently describes the premises to be searched. Smith v. State, 962 S.W.2d 178, 185 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd). We review technical discrepancies with a judicious eye for the procedural aspects surrounding the issuance and execution of the warrant. Green v. State, 799 S.W.2d 756, 757 (Tex.Crim.App. 1990). We are also mindful of the fact that the objectives of the law concerning search warrants are not furthered by a rigid application of the rules. Id. at 760. The application urged by appellant requires reading select paragraphs of the affidavit in isolation, and ignores the warrant entirely. We decline such a hypertechnical interpretation. Read as a whole in a common sense manner, the affidavit is sufficiently specific to identify 3715authorn as the place to be searched. The affidavit demonstrates that both 3715 Cauthorn and 3706 Cauthorn were under investigation and believed to operate as a single illicit enterprise. The address listed on the heading of both the warrant and the affidavit is 3715 Cauthorn, and the testimony at trial established this was the location that was searched. Therefore, we do not construe the reference to 3706 Cauthorn in paragraph 1 as rendering the affidavit insufficient to support a search of 3715 Cauthorn. The warrant was valid. Because the warrant was valid, the trial court did not err in admitting the evidence seized pursuant to the warrant. Appellant's second issue is overruled.

Sufficiency of the Evidence

In his third and fourth issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). A review of the evidence for legal sufficiency does not involve a re-weighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). As the reviewing court, we must give deference to "the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). When reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight is to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). To support a conviction for unlawful possession with intent to deliver cocaine in an amount of 4 grams or more but less than 200 grams, 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(d) (Vernon Supp. 2008 Vernon 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 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 Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim App. 2006); Frierson v. State, 839 S.W.2d 841, 849 (Tex.App.-Dallas 1992, pet. ref'd). In a possession with intent to deliver case, the "intent to deliver" element may be proved by circumstantial evidence, such as the quantity of drugs possessed, the manner of packaging, and the presence of the accused in a drug house. Smith v. State, 737 S.W.2d 933, 941 (Tex.App.-Dallas 1987, pet. ref'd); see also Edwards v. State, 813 S.W.2d 572, 578-79 (Tex.App.-Dallas 1991, pet. ref'd) (en banc); Moss v. State, 850 S.W.2d 788, 797 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd). Further, intent to deliver is a question of fact for the jury to resolve, and it may be inferred from the acts, words, or conduct of the accused. Avila v. State, 15 S.W.3d 568, 573 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Appellant admits that four of the factors favor the State: he was located in the house when the search was conducted, he made a statement that he lived at the location, he was trying to get out of the door when the officers entered the home, and he was found with a large amount of cash in his pocket. But appellant argues these factors do not carry much force and the other factors should weigh in his favor. It is well-established, however, that the number of factors present is not as important as the logical force or degree to which the factors, alone or in combination, tend to affirmatively link a defendant to the contraband. Taylor v. State, 106 S.W.3d 827, 830 (Tex.App.-Dallas 2003, no pet.). In addition, the jury was entitled to judge the credibility of the witnesses and believe some, all, or none of the testimony presented. See Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Appellant was alone in a house where drugs and drug distribution materials were recovered. Two firearms were also retrieved from the home. Officer Whitaker testified that the packaging of the drugs in individual baggies of varying sizes indicated the house was "open for business." Officer Ragsdale testified that the manner of packaging as well as the quantity of drugs indicated the person who possessed them intended to sell them. He opined that the combination of drugs, firearms, scales, and cash indicated a drug distribution enterprise. He further opined that it was unlikely that a dealer running a drug distribution enterprise would leave just any individual alone in a house with 16.8 grams of cocaine. Appellant's girlfriend, April Williams testified she lived in the house with her mother and aunt, and appellant had his own residence. On the day in question, she stayed home from work and appellant came to visit. According to Williams, she left appellant at the house when she went to the store to purchase "pop" and cigarettes. The warrant was executed in her absence. Williams admitted she is a drug addict, as are her mother and aunt. Williams initially denied seeing any drugs in the house, but later admitted she had seen drugs because she had used them. Williams provided no explanation for the quantity of drugs and paraphernalia found in the house, and professed ignorance of any activities that occurred at the house while she was at work. Viewing the evidence under the proper standards, we conclude it is legally and factually sufficient to support the conviction. Appellant's third and fourth issues are overruled. Having resolved all of appellant's issues against him, we affirm the judgment of the trial court.