Opinion
No. 01-89-00089-CR.
November 29, 1990. Published in Part Pursuant to Tex.R.App.P. 90. Discretionary Review Refused April 3, 1991.
Appeal from Tenth District Court, Galveston County
William M. Hicks, Dickinson, appellant.
Michael J. Guarino, Criminal Dist. Atty., John L. Davis, Asst. Criminal Dist. Atty., for appellee.
Before SAM BASS, MIRABAL and DUNN, JJ.
OPINION
Appellant, Coke Russell Morris, Jr., appeals his conviction for aggravated possession of a controlled substance, namely amphetamine. The court found appellant guilty and assessed punishment at six years confinement and a $1000 fine.
L.A. Trumps, an officer with the methamphetamine squad of the narcotics division of the Houston Police Department, testified that he received a tip from a confidential informant that methamphetamine would be delivered at a Wendy's in Dickinson. Trumps contacted R.R. Hulett, another officer with the methamphetamine squad of the narcotics division of the Houston Police Department, who went directly to the Wendy's parking lot. Hulett testified that he met with a Galveston County patrol unit. Appellant testified that after he was arrested by Hulett, he was placed in the backseat of a Dickinson city patrol car parked in the Wendy's parking lot.
Appellant's first point of error contends that his arrest and the search and seizure which followed were illegal because the Houston police officers who placed him under arrest lacked territorial authority.
Appellant did not raise this complaint at trial nor at the hearing on his motion to suppress. An error not raised at trial cannot be presented for the first time on appeal. TEX.R.CRIM.EVID. 103(a)(1); TEX.R.APP.P. 52(a). Appellant has waived this point of error.
However, we will address the law governing the contention raised by appellant's first point of error since it is relevant to a determination of other points of error.
City police officers have county-wide jurisdiction to arrest. Angel v. State, 740 S.W.2d 727, 736 (Tex.Crim.App. 1987). The holding in Angel was based on an interpretation of former TEX.REV.CIV.STAT.ANN. arts. 998 and 999. Article 998 provided that city police officers had the same jurisdiction as city marshals, and article 999 provided that city marshals had the same jurisdiction as the sheriff. Since sheriffs have county-wide jurisdiction, the court reasoned, city police officers also have county-wide jurisdiction. Angel, 740 S.W.2d at 733-36. Although articles 998 and 999 have been repealed, Angel is still controlling since the articles have been incorporated in the Local Government Code. A municipal police officer still has the same jurisdiction as a municipal marshal. TEX.LOCAL GOV'T CODE ANN. Sec. 341.001(e)(1) (Vernon 1988). A municipal marshal still has the same jurisdiction as the county sheriff to arrest offenders. TEX.LOCAL GOV'T CODE ANN. Sec. 341.021(e) (Vernon 1988). Thus, a city police officer has the authority to arrest a person within the county. Under Angel, Hulett had the authority to make an arrest anywhere in Harris County.
Repealed by ch. 149, Sec. 49(1), 1987 Tex.Gen.Laws 707, 1306-1308.
However, Hulett arrested appellant in Galveston County. The arrest of appellant was not within Hulett's, a Houston police officer's, territorial jurisdiction. However, if any police officer present at appellant's arrest had territorial jurisdiction to make the arrest, the arrest was lawful. Cruz v. State, 762 S.W.2d 624, 625 (Tex.App. — Houston [14th Dist.] 1988, no pet.); Rivera v. State, 730 S.W.2d 824, 826 (Tex.App. — Houston [14th Dist.] 1987, pet. ref'd), cert. denied, 485 U.S. 978, 108 S.Ct. 1272, 99 L.Ed.2d 483 (1988).
In the present case, Hulett testified that Galveston county officers were present at the Wendy's. Since the arrest took place in Galveston County, those officers were within their territorial jurisdiction. Appellant testified that he was placed in a Dickinson police car after he was arrested. If Dickinson police officers were present at his arrest, the arrest was within those police officers' jurisdiction. Whether Galveston county officers or Dickinson officers were present, a police officer with jurisdiction was present at appellant's arrest. Therefore, appellant's arrest was lawful.
We overrule appellant's first point of error.
The discussion of the remaining points of error does not meet the criteria for publication, TEX.R.APP.P. 90, and is, thus, ordered not published.
The judgment is affirmed.
WS******
Before trial, appellant filed a motion to suppress evidence. In the motion to suppress, appellant sought to have all evidence seized at his arrest suppressed as well as all statements and actions of appellant at his arrest and the testimony of the police officers. Appellant claimed his arrest was made without probable cause.
A hearing was held on the motion to suppress. Trumps testified that about 2:20 p.m. on September 22, 1986, he received information from a confidential informant that methamphetamine would be delivered at a Wendy's in Dickinson between 3:00 and 3:30 p.m. Trumps had been a narcotics officer for four years. The identity of the confidential informant was not revealed at the hearing nor was it sought. The confidential informant had given reliable information in the past. The informant gave a description of the vehicle to be used, a 1982 two-tone blue Ford Bronco, and its license plate number, as well as a physical description of the person to make the delivery, a man about six feet tall, 250 pounds, with medium-length hair. Trumps testified that when he arrived on the scene, the vehicle and the person arrested matched the descriptions given by the informant.
Trumps testified that no attempt was made to obtain an arrest warrant. Trumps stated that the arrest occurred at about 3:15 p.m., about 55 minutes after he received the tip. He claimed 55 minutes is not enough time to obtain a warrant.
Hulett testified that Trumps contacted him about 2:30 p.m. on September 22, 1986, with information about a methamphetamine transaction. Hulett had been a narcotics officer for approximately eight years. After receiving the information, Hulett and other officers from the narcotics division left downtown Houston and went directly to the Wendy's parking lot; it took about 30 or 40 minutes to get there.
Hulett saw a vehicle matching the one described by the informant pull into the Wendy's parking lot. The license plate numbers also matched the description. Appellant was driving the vehicle. After pulling into the parking lot, appellant sat in the vehicle for three or four minutes, then got out and went in the Wendy's. When Hulett approached appellant in Wendy's, he noticed a chemical odor associated with production of methamphetamine. Hulett then arrested appellant. Trumps also testified that when he was close to appellant, he noticed a distinct odor of chemicals used in the manufacture of methamphetamine.
The trial court denied the motion to suppress, finding the arrest was made with probable cause under exigent circumstances.
Appellant contends in point of error number eight that his arrest was unlawful because it was made without probable cause. Appellant raised this issue in the trial court in his motion to suppress evidence, but did not raise the issue at trial. We treat appellant's point of error eight as contending the trial court erred in overruling appellant's pretrial motion to suppress because appellant's arrest was made without probable cause.
Generally, when an appellate court determines whether a trial court erred in overruling a pretrial motion, the appellate court only considers evidence at the pretrial hearing, not any evidence at the trial. Hardesty v. State, 667 S.W.2d 130, 133 n. 6 (Tex.Crim.App. 1984). Therefore, this Court will only consider the evidence and testimony at the pretrial hearing on the motion to suppress in determining whether the trial court erred in overruling appellant's motion to suppress.
An appellate court should look at the totality of the circumstances to determine if there is a substantial basis for concluding that probable cause existed at the time of the arrest. Eisenhauer v. State, 754 S.W.2d 159, 164 (Tex.Crim.App.), cert. denied, 488 U.S. 848, 109 S.Ct. 127, 102 L.Ed.2d 101 (1988). The test for probable cause for an arrest without a warrant is:
'Whether at that moment the facts and circumstances within the officer's knowledge and of which (he) had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the (arrested person) had committed or was committing an offense.'
Lunde v. State, 736 S.W.2d 665, 667 (Tex.Crim.App. 1987), quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964) (emphasis in original). An officer's hunch, suspicion or good faith perception is not enough, without more, to constitute probable cause. Stull v. State, 772 S.W.2d 449, 451 (Tex.Crim.App. 1989).
The Court of Criminal Appeals has considered whether an arrest in circumstances similar to the present case was with probable cause. Jones v. State, 640 S.W.2d 918 (Tex.Crim.App. 1982). In Jones, a police officer received a tip from an informant who had been correct twice previously. Id. at 919. The informant gave the name, physical description, and a description of the clothes of a man purportedly carrying drugs. Jones, 640 S.W.2d at 919-20. In addition, the informant told the police officer the flight number and arrival time of the person carrying the drugs; the informant also described the briefcase and clothing bag the person would be carrying. Jones, 640 S.W.2d at 920. The court found probable cause unquestionably existed for the warrantless arrest. Id. The court noted that the informant had given reliable information on two previous occasions; in addition, the informant's information was highly detailed; finally, the court noted that the details given by the informant were verified by the officers making the arrest. Id. The court held that the verification of details by the officers, the proven reliability of the informant, and the detailed nature of the informant's tip showed probable cause. Id.
Similarly, in the instant case, Trumps received a tip from a confidential informant who had previously proven reliable. The informant supplied Trump with details of the narcotic transaction including the location, the time, a physical description of the person, a description of the vehicle, and the license plate numbers of the vehicle. Furthermore, Hulett verified the details of the tip when he made the arrest. Appellant matched the physical description given by the informant, the vehicle driven by appellant matched the description, and the license plate numbers were the same. In addition, appellant arrived at the location at the approximate time given by the confidential informant. Moreover, when Hulett approached appellant, he noticed the odor associated with manufacturing methamphetamine. We find probable cause existed for the arrest, and the trial court did not err in denying appellant's pretrial motion to suppress.
We overrule appellant's eighth point of error.
In point of error nine, appellant claims there is insufficient evidence to show he possessed a controlled substance, namely amphetamine.
At trial, Trumps testified that he received information from a confidential informant that methamphetamine would be delivered to a Wendy's on FM 517 and the Gulf Freeway. Trumps was an officer with the methamphetamine squad of the narcotics division of the Houston Police Department with 10 years experience as a police officer and four years experience as a narcotics officer. The confidential informant had previously given Trumps credible information. The informant also gave a physical description of the person delivering the methamphetamines and the year, model, and license plate number of the vehicle he would be driving. The delivery was supposed to occur about 2:30 (sic) in Dickinson.
Trumps contacted Hulett to assist in the arrest. Hulett was another officer with the methamphetamine squad of the narcotics division of the Houston Police Department; he had 15 years experience as a police officer and approximately eight years experience as a narcotics officer. Hulett, his partner, and some other officers went to Dickinson.
Hulett testified that the vehicle described by the confidential informant, a Ford Bronco, pulled into the Wendy's parking lot. The Bronco was driven by appellant who was alone. Appellant entered the Wendy's after sitting in the Bronco for three or four minutes. Hulett testified that when he approached appellant in Wendy's, he noticed a strong odor associated with manufacturing methamphetamine and amphetamine. Hulett then arrested appellant.
After appellant was arrested, the Bronco was searched. Hulett testified that three glass vials of methamphetamine (later identified as amphetamine) were found in a cracker box on the driver's floor of the Bronco. Appellant denied that the cracker box was on the driver's floorboard. He stated that he was not aware that the cracker box was in the Bronco at all. Hulett testified that a loaded pistol was partially visible in a pouch on the driver's door of the Bronco. Appellant stated that he did not see the gun in the Bronco and denied that it was there.
Trumps stated that, when he arrived at the Wendy's, he also noticed a very strong odor associated with manufacturing methamphetamine and amphetamine coming from appellant.
Trumps testified that the Bronco was registered to appellant. Terry Morris, appellant's wife, testified that the Bronco was owned by Clifford Andrews who let her and appellant drive it. Morris stated that she, Andrews, his wife, and his daughter, as well as appellant, had access to the Bronco. A certificate of title showing the owner of the Bronco to be Tasco Contractors, Inc. was admitted into evidence. Tasco was a business owned by Andrews.
In reviewing the sufficiency of the evidence, the appellate court must view the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App. 1989). This standard applies to circumstantial evidence as well as direct evidence. Christian v. State, 686 S.W.2d 930, 934 (Tex.Crim.App. 1985). The standard incorporates the principle that a conviction based on circumstantial evidence cannot be sustained unless the circumstances exclude every other reasonable hypothesis except guilt. Id.
The unlawful possession of a controlled substance requires the exercise of care, control, and management over the substance and knowledge that the substance possessed is contraband. Oaks v. State, 642 S.W.2d 174, 176 (Tex.Crim.App. 1982); Doyle v. State, 779 S.W.2d 492, 495 (Tex.App. — Houston [1st Dist.] 1989, no pet.). Mere presence in the vicinity of a controlled substance is insufficient to link the defendant to the controlled substance. Humason v. State, 728 S.W.2d 363, 365 (Tex.Crim.App. 1987). Evidence must affirmatively link the defendant to the controlled substance. Id.; Gallegos v. State, 776 S.W.2d 312, 314 (Tex.App. — Houston [1st Dist.] 1989, no pet.). Evidence that provides affirmative links includes:
(1) The defendant owned the vehicle in which the controlled substance was found, Gallegos, 776 S.W.2d at 314; Acosta v. State, 752 S.W.2d 706, 708 (Tex.App. — Corpus Christi 1988, pet. ref'd), or was associated, with the owner of the vehicle. Gallegos, 776 S.W.2d at 314.
(2) The defendant was the driver of the vehicle in which the controlled substance was found. Duncan v. State, 680 S.W.2d 555, 560 (Tex.App. — Tyler 1984, no pet.).
(3) The controlled substance was in close proximity to the defendant. Gallegos, 776 S.W.2d at 314; Brazier v. State, 748 S.W.2d 505, 508 (Tex.App. — Houston [1st Dist.] 1988, pet. ref'd).
(4) The defendant was carrying a gun. Reid v. State, 749 S.W.2d 903, 905-06 (Tex.App. — Dallas 1988, pet. ref'd); Nickerson v. State, 645 S.W.2d 888, 892 (Tex.App. — Dallas), aff'd, 660 S.W.2d 825 (Tex.Crim.App. 1983).
(5) Police officers corroborated a tip from an informant. Doyle v. State, 779 S.W.2d 492, 496-97 (Tex.App. — Houston [1st Dist.] 1989, no pet.); Acosta, 752 S.W.2d at 708.
(6) The odor of the controlled substance emanated from the defendant. Durham v. State, 701 S.W.2d 951, 956 (Tex.App. — Fort Worth 1986, pet. ref'd).
Appellant relies on two cases in contending the evidence is insufficient to show he possessed a controlled substance: Humason v. State, 728 S.W.2d 363 (Tex.Crim.App. 1987) and Baty v. State, 734 S.W.2d 62 (Tex.App. — Dallas 1987, pet. ref'd).
In Humason, the Court of Criminal Appeals found the evidence insufficient to support a conviction for possession of a controlled substance. Humason, 728 S.W.2d at 367. The accused, in that case, was the sole occupant of a truck with an unzipped gym bag containing cocaine within his reach. Humason, 728 S.W.2d at 366. The court held the evidence failed to eliminate the reasonable hypothesis that the occupant of the truck was unaware of the presence of the gym bag or that if he was aware of the gym bag, he was unaware of its contents. Humason, 728 S.W.2d at 366-67. While a trier of fact could conclude the occupant was in possession of the cocaine, the trier of fact could also rationally conclude he was unaware of the presence of the cocaine. Humason, 728 S.W.2d at 366.
The Dallas Court of Appeals reached a similar conclusion in Baty. The accused was the sole occupant of a car stopped for traffic violations. Baty, 734 S.W.2d at 63. A small amount of amphetamines was found on the occupant, and a larger amount of amphetamines was found in the locked trunk of the car. Baty, 734 S.W.2d at 63-64. The court noted that no evidence showed the occupant was the owner of the car or connected with the owner. Id. In addition, the court noted that the small amount of amphetamines on the occupant did not exclude the hypothesis that the occupant was unaware of the amphetamines in the trunk. Baty, 734 S.W.2d at 65. The court also noted that no evidence showed the occupant was under the influence of amphetamines, that he made any furtive gestures toward the amphetamines in the trunk, that he made any incriminating statements at the time of his arrest or that he made any attempt to escape. Id. The court held that while a trier of fact could find the occupant was in possession of the amphetamines in the trunk, a rational trier of fact could also find the occupant was unaware of the amphetamines in the trunk. Baty, 734 S.W.2d at 64-65.
The present case can be distinguished from both Humason and Baty. In the present case, there is more evidence to affirmatively link appellant to the amphetamines.
Viewing the evidence in the light most favorable to the verdict, the evidence is sufficient to show appellant was in possession of a controlled substance. Trumps testified that appellant was the owner of the Bronco; if appellant was not the owner but Andrews was, as asserted by appellant's wife, appellant, at least, had some connection with the owner. Appellant was driving the Bronco in which the amphetamines were found. The amphetamines were found on the driver's floor of the Bronco placing them in close proximity to appellant. Hulett testified that part of a pistol was visible in the Bronco. Trumps and Hulett both noticed the odor associated with manufacturing methamphetamine and amphetamine when they approached appellant. Moreover, a reliable confidential informant told Trumps that a narcotics transaction was to take place; the informant gave the approximate time, the location, a physical description of the person involved, a description of the vehicle to be used, and the license plate numbers of the vehicle. Hulett verified the details of the informant's tip before placing appellant under arrest. The evidence is sufficient to affirmatively link appellant to the amphetamines found in the Bronco. The evidence is sufficient to show appellant was in unlawful possession of a controlled substance.
We overrule point of error nine.
In points of error two through seven, appellant contends he was rendered ineffective assistance of counsel because:
(1) trial counsel failed to object to appellant's arrest on the grounds that the officers lacked territorial jurisdiction;
(2) trial counsel failed to ascertain what, if any, authority Houston police officers had to arrest appellant;
(3) trial counsel failed to urge any Texas law in support of appellant's motion to suppress or at the hearing on appellant's motion to suppress;
(4) trial counsel was not aware of the proper standard under the United States constitution for probable cause for a warrantless arrest;
(5) trial counsel failed to ascertain the identity of the confidential informant; and
(6) trial counsel failed to properly represent appellant.
A criminal defendant is entitled to reasonably effective counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App. 1986). In determining whether trial counsel was ineffective, the appellate court determines whether, in light of all the circumstances, the trial counsel's conduct was deficient. Washington v. State, 771 S.W.2d 537, 545 (Tex.Crim.App. 1989), quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). If the conduct was deficient, the appellate court must determine whether there is a reasonable probability that a different result would have been reached but for the deficient conduct. Id. To be effective, counsel does not have to be errorless. Ex parte Cruz, 739 S.W.2d 53, 58 (Tex.Crim.App. 1987). The totality of the representation should be evaluated, not just isolated acts or omissions by trial counsel. Wilkerson, 726 S.W.2d at 548.
Appellant contends trial counsel's assistance was ineffective because he failed to assert appellant's arrest was unlawful because the Houston officers lacked territorial jurisdiction, and because trial counsel failed to ascertain under what authority a Houston police officer could arrest appellant. As discussed previously, appellant's arrest was lawful even though Hulett, as well as all other Houston city police officers, were outside their territorial jurisdiction. Appellant's arrest was rendered lawful by the presence of Galveston County officers or Dickinson city officers. Since appellant's arrest was lawful, counsel was not ineffective for failing to challenge the territorial jurisdiction of the arrest or for failing to ascertain the authority of the officers to make the arrest.
In addition, appellant asserts his trial counsel was ineffective because he failed to urge any Texas law in support of his motion to suppress, and because he was unaware of the proper standard to evaluate probable cause under the United States Constitution. As discussed above, there was probable cause for appellant's arrest. Even if trial counsel was deficient in failing to urge Texas law or argue the proper standard in support of his motion to suppress evidence, there is no reasonable probability that a different result would have occurred. Trial counsel was not ineffective.
Appellant also contends that trial counsel was ineffective because he failed to fully pursue the identity of the confidential informant. The identity of a confidential informant does not have to be revealed unless the informant participated in the offense, was present at the offense or arrest, or is otherwise shown to be a material witness. Etchieson v. State, 574 S.W.2d 753, 757 (Tex.Crim.App. 1978), cert. denied, 440 U.S. 936, 99 S.Ct. 1282, 59 L.Ed.2d 495 (1979). In the present case, the record does not reflect that the informant participated in the offense, nor does the record reflect that the informant was present at the offense or at the arrest. In addition, appellant does not demonstrate nor does the record reflect that the informant would have been a material witness. Thus, the identity of the confidential informant is not required to be revealed. Since the identity of the confidential informant would probably not have been revealed even if trial counsel would have pursued it, assistance of counsel was not ineffective at trial.
Viewing the totality of the representation, we find appellant was not rendered ineffective assistance of counsel. We overrule points of error two through seven.
The judgment is affirmed.