Opinion
No. 14-05-00342-CR
Memorandum Opinion Filed February 28, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 184th District Court, Harris County, Texas, Trial Court Cause No. 982,437. Affirmed.
Panel consists of Justices FOWLER, EDELMAN, and GUZMAN.
MEMORANDUM OPINION
A jury found appellant James Patrick Preyear guilty of possession with intent to deliver a controlled substance, namely at least 400 grams of cocaine, and assessed his punishment at twenty-two years' confinement in the Institutional Division of the Texas Department of Criminal Justice and a $3,000 fine. On appeal, appellant contends (1) the evidence is legally insufficient to establish that he intentionally and knowingly possessed the cocaine found in the automobile he was driving; (2) the trial court erred by denying his motion to suppress because the officers lacked probable cause to stop or search him; and (3) the trial court erred by overruling his objection to a police officer's testimony that the drugs would have a devastating effect on a small community. We affirm.
Factual Background
In March of 2004, Detective Frank Fullbright began investigating appellant, who resided in Alabama, after learning he had checked into a local motel. Detective Fullbright had extensive experience in the area of narcotics, and he apparently was familiar with appellant. On the morning of March 25, Detective Fullbright, with the assistance of other police officers, began conducting undercover surveillance on two side-by-side rooms occupied by appellant, Lloyd McMillian, and two females. During the day, Fullbright watched the subjects of the surveillance go back and forth between the two rooms periodically and run errands in a 1999 Ford Expedition with an Alabama license plate. At some point that afternoon, Fullbright saw McMillian remove from the Expedition a purple Crown Royal bag. Because of the bag's appearance, Fullbright suspected it did not contain a bottle of Crown Royal, but instead contained bundles of money. McMillian took the bag into one of the motel rooms, where he was joined by appellant and the females. Later that evening, the group left the motel room and got in the Expedition to go to a Chinese restaurant. McMillian was carrying the Crown Royal bag and put it in the back of the Expedition. Shortly after the group arrived at the restaurant and began to eat, two unknown males drove into the restaurant's parking lot in a black Toyota. The black male driver of the Toyota got out of the car and began walking toward the restaurant while talking on a cell phone. Appellant and McMillian walked out to meet him, and the three talked for a while in the parking lot before getting in the Expedition. After a few minutes, the unknown male returned to the Toyota and appellant and McMillian went back into the restaurant. Appellant, McMillian, and the females then left in the Expedition with the Toyota following them back to the motel. Once at the motel, appellant, McMillian, and the unknown male went into one of the rooms. McMillian was carrying the still full-looking Crown Royal bag as he went into the room. After a few minutes, the unknown male came out of the room carrying the Crown Royal bag, and drove away. Within two hours, the unknown male returned with the Crown Royal bag, which now appeared empty. He went in one of the rooms, and after a few minutes, he left without the Crown Royal bag. Shortly after midnight on March 26, Fullbright watched as appellant and McMillian got in the Expedition and went to a nearby Gerland's supermarket where they purchased some items. They then returned to the motel room carrying the Gerland's bag. A little later, the unknown male in the Toyota returned to the motel. He retrieved a grocery bag from the trunk and took it to appellant's room. To Fullbright, the bag appeared to have "kilogram-shaped bundles in it." The unknown male stayed in the room for about an hour and a half before leaving. A few minutes after he left, appellant and McMillian came out of the room carrying a covered box or tray, and appellant tossed a grocery bag into a trash can outside. Appellant and McMillian took the covered box or tray over to the Expedition, and appellant got in the driver's side of the vehicle while McMillian opened the rear passenger side door and leaned into the vehicle. Appellant appeared to be "doing something with the dashboard." After a few minutes, they both got in the car and moved to the back parking lot, where it was very dark. After a few more minutes, the Expedition returned to where it was originally parked, and both men returned to the rooms. At about 2:30 a.m., appellant and McMillian came back down and, with appellant driving, went to a car wash and "sprayed scent all in the car," but did not get the car washed. They then returned to their motel rooms around 3:00 a.m. At trial, Fullbright testified that, based on his training and experience, his observations of appellant's and McMillian's actions led him to conclude that they had "made a normal dope deal." Around 11:30 a.m., appellant, McMillian, and the two females got in the Expedition, and, with appellant driving, left the motel. Detective Fullbright alerted other officers on the surveillance team of the group's actions, and they began to follow the group in the Expedition. At some point, a patrol officer in a marked police car pulled over appellant for the traffic offense of following too closely. Fullbright arrived and asked appellant for consent to search the Expedition, but appellant refused. Fullbright then called for a K-9 unit. With everyone out of the Expedition, the K-9 dog sniffed around the exterior of the vehicle and "alerted" to the odor of narcotics at the back of the vehicle. The officers then searched the Expedition and found a small amount of marijuana scattered on the floorboard. Appellant and McMillian then were arrested for possession of the marijuana. Police took the Expedition to a Houston Police Department garage, where they searched it more thoroughly but found no other contraband. Believing there were drugs somewhere in the vehicle, Detective Fullbright had it transported to an auto body shop, where technicians disassembled the dash and found four bundles of cocaine, totaling 718.6 grams, and two bundles of ecstacy tablets, containing a total of 1,090 tablets. The cocaine and the ecstacy had been wrapped in Saran Wrap and sealed with electrical tape, and placed in the air conditioning ducts behind the dash. Appellant and McMillian were then arrested for possession of cocaine with intent to distribute an amount over 400 grams. At trial, Detective Fullbright testified that, after appellant and McMillian were first arrested, he returned to the motel and found the grocery bag appellant had thrown in the trash as he and McMillian carried the covered box or tray to the Expedition. Inside the bag were packages of electrical tape, a Saran Wrap box, and plastic wrappings containing chunks of what was later found to be cocaine. Detective Fullbright testified that the Saran Wrap and electrical tape recovered from the trash can was consistent with that used to package the cocaine and the ecstacy found in the Expedition. Later in the trial, a Houston Police Department fingerprint identification expert compared a fingerprint he took from appellant to a latent print found on the Saran Wrap box, and testified that both fingerprints belonged to appellant.I. The Evidence is Legally Sufficient to Show Affirmative Links Supporting Appellant's Conviction
In his first point of error, appellant contends "the evidence was legally insufficient to establish the essential element that appellant intentionally and knowingly possessed the cocaine found in the automobile." In conducting a legal sufficiency review, we view the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). We evaluate all the evidence in the record, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). In this case, the State was required to prove beyond a reasonable doubt that appellant knowingly possessed with intent to deliver a controlled substance, namely cocaine, in an amount of 400 grams or more. See TEX. HEALTH SAFETY CODE § 481.112(a), (f). If an accused does not have exclusive possession of the place where the controlled substance is found, the State must affirmatively link the accused to the contraband. Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005). The affirmative links can be established by showing additional facts and circumstances that raise a reasonable inference of the accused's knowledge and control of the contraband. Villegas v. State, 871 S.W.2d 894, 896 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). This evidence may be direct or circumstantial. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). In determining if sufficient affirmative links exist, we can examine such circumstantial factors as the amount of contraband found, its location in relationship to the defendant's personal belongings, the defendant's relationship to other persons with access to the premises, incriminating statements, and proximity of the defendant to the contraband. Id. Other significant factors include whether the accused owned, rented, or controlled the place where the police found the contraband; whether the defendant had convenient access to the contraband; whether the police found the contraband in plain view or in areas private to the accused; whether the defendant was the driver of the automobile in which the contraband was found; whether the place where the contraband was found was enclosed; and whether paraphernalia to use the contraband was in view of or found on the accused. Id. at 897. The number of factors present is not as important as the logical force the factors have in establishing the elements of the offense. Gilbert v. State, 874 S.W.2d 290, 298 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). Here, we find numerous significant factors affirmatively linking appellant to the cocaine found in the vehicle. As detailed above, Detective Fullbright observed appellant over a period of time engaging in conduct consistent with buying and possessing illegal drugs. Based on his testimony, a rational jury could infer that appellant and McMillian exchanged money for contraband, concealed the contraband in the vehicle, and sprayed scent in the vehicle to mask any odor of the contraband. Other significant factors include the following: (1) appellant was the driver of the vehicle in which the cocaine was found; (2) the quantity of cocaine was large; (3) the cocaine was discovered in an enclosed area behind the dashboard of the vehicle; (4) the cocaine was found along with a large quantity of ecstacy tablets; (5) the cocaine was packaged with electrical tape and plastic wrap consistent with the tape and Saran Wrap packaging found in a grocery store bag appellant was seen throwing away; and (6) the Saran Wrap box had appellant's fingerprint on it. Upon thorough review of the record and in the light most favorable to the verdict, we find the evidence is legally sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt.II. The Motion to Suppress
In his second point of error, appellant contends the trial court erred in denying his motion to suppress because the officers lacked probable cause to stop or search him. The State responds that appellant has inadequately briefed this point of error and has waived any error as to the admission of the illegal drugs found in the Expedition. As we explain below, we agree with the State. In appellant's brief, he mentions the dog alert and the alleged traffic violation of following too closely, but his main argument seems to be that the surveillance of him and his friends "did not reveal a single illegal act" by any of them, so probable cause was not established to stop or search the vehicle. However, appellant does not identify what evidence he contends should have been suppressed or upon what legal grounds that evidence should have been suppressed. In Brennan v. State, this Court explained that, when deciding whether to address the merits of an appeal of a denial of a motion to suppress, the appellate court must first identify the evidence, or "fruits," of the allegedly unlawful seizure that the trial court held would not be suppressed. 140 S.W.3d 779, 781 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). If it is not clear from the testimony and exhibits what the fruits are, then the appellate court need not address the merits of the claim. Id. Moreover, an assertion that the fruits of the illegal seizure are "obvious" and "can easily and unmistakably be ascertained by the reviewing the record" is insufficient. See id. Thus, this court held that the appellant presented nothing for review because his points of error challenging the denial of his motion to suppress failed to identify what, if any, evidence that was ruled upon by the denial. Id. Appellant's written motion requested suppression of the ecstasy, cocaine, marijuana, and "[a]ll statements made . . . and such other actions" of appellant at the time of and after the stop, arrest, and search based on several state and federal constitutional grounds. Although the motion suggests appellant was attempting to suppress specific evidence, he does not identify any evidence that he claims should have been suppressed in either his brief or in the hearing on the motion below. As noted in Brennan, it is not this court's role to develop appellant's issues for him. Id. Because appellant fails to identify what evidence he contends was erroneously suppressed, he presents nothing for our review. Id. But, even if we were to ascertain exactly what evidence appellant contends was erroneously suppressed, it is also unclear what appellant is contesting and upon what legal theory he relies. Appellant merely asserts in a conclusory fashion that the officers lacked probable cause, and sets out several cases involving various search and seizure issues. He makes no attempt to apply the cases he cites to the facts of this case, and it is impossible to ascertain whether he is contesting the initial stop for the alleged traffic violation, the existence of reasonable suspicion to stop or detain appellant, the length of appellant's detention, the use of the K-9 dog, the search of the vehicle either at the time of the stop or thereafter, the impounding of the vehicle, the seizure of the illegal drugs, or something else. In the absence of relevant citations to the record, reasonably cogent arguments, or any legal analysis, we must conclude that appellant has failed to adequately brief this point of error. See TEX. R. APP. P. 38.1(h); Bell v. State, 90 S.W.3d 301, 305 (Tex.Crim.App. 2002) (overruling appellant's point of error when appellant offered only conclusory argument and failed to cite to record or provide any legal analysis to support claim that trial court violated constitutional rights). Additionally, appellant failed to preserve any error in the admission of the illegal drugs found in the Expedition because he affirmatively asserted that he had "no objection" to the admission of this evidence when the State offered it. See Dean v. State, 749 S.W.2d 80, 83 (Tex.Crim.App. 1988) (holding that when accused affirmatively asserts during trial that he has "no objection" to the admission of the complained-of evidence, he waives any error in its admission despite the pretrial ruling). We therefore overrule appellant's second issue.III. The Officer's Testimony
In his third issue, appellant contends the trial court erred by overruling appellant's objection to a police officer's testimony that the drugs would have a devastating effect on a small community. Appellant contends the trial court's "failure to act on a proper objection" to a "flagrant example of prosecutorial misconduct" denied him a fair trial and therefore his right to due process. He also argues the testimony was highly prejudicial and inflammatory, and could not have been appropriate victim impact testimony. At the punishment hearing, the prosecutor asked Detective Fullbright about the effect of the amount of drugs recovered "on the street level." Appellant's counsel objected to the question as calling for speculation, because the witness was not a psychologist or drug expert. The trial court overruled this objection after the State asserted the witness had been proven up as a narcotics expert. Detective Fullbright then answered that it would "[b]e devastating to a small community." As the record shows, appellant objected to the testimony on one ground, speculation. On appeal, however, he asserts numerous different grounds not raised below. To preserve error for appellate review, a defendant must make a specific objection in the trial court. Tex.R.App.P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). The point of error on appeal must comport with the specific objection made at trial. Wilson, 71 S.W.3d at 349. An objection stating one legal basis may not be used to support a different legal basis on appeal. Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990). Because appellant's trial objection does not comport with the issues appellant raises on appeal, he has preserved nothing for our review. See Ibarra v. State, 11 S.W.3d 189, 197 (Tex.Crim.App. 1999); Penry v. State, 903 S.W.2d 715, 763 (Tex.Crim.App. 1995). We therefore overrule appellant's third point of error.Conclusion
We overrule appellant's points of error and affirm the trial court's judgment.The two females went into the other room.
Detective Fullbright testified that appellant and McMillian purchased Saran Wrap and electrical tape. Appellant's counsel objected to the testimony and the trial court sustained the objection.
At trial, Detective Fullbright testified that the large quantity of the drugs indicated that they were "definitely" not for personal use.
The State argues appellant has failed to preserve error because the point is inadequately briefed. See TEX. R. APP. P. 38.1(h) (providing that an appellant's brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record). We agree that the point is poorly presented and nearly devoid of argument. However, based on the wording of appellant's point of error as challenging the "element that appellant intentionally and knowingly" possessed the cocaine, and his citations to cases discussing "affirmative links," we understand him to be challenging the legal sufficiency of the evidence that he knowingly possessed the cocaine. See Humason v. State, 728 S.W.2d 363, 365 (Tex.Crim.App. 1987) ("Consistent with the mens rea requirement of a possessory offense under the Controlled Substances Act, this Court has held that the State must provide evidence of `affirmative links' between a defendant and a controlled substance."); Classe v. State, 840 S.W.2d 10, 12 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd) (discussing affirmative links establishing control and knowledge to support offense of unlawful possession of a controlled substance). We therefore address the merits of this point of error.