No. 01-02-00394-CR
Opinion issued May 22, 2003 Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 230th District Court, Harris County, Texas, Trial Court Cause No. 877480
Panel consists of Justices HEDGES, JENNINGS, and ALCALA.
MEMORANDUM OPINION
A jury found appellant, Oscar Quintanilla, guilty of possession with intent to deliver cocaine weighing at least 400 grams and assessed punishment at confinement for 20 years. In two points of error, appellant contends that the trial court erred in denying his motion to suppress evidence and that the evidence is legally and factually insufficient to support his conviction. We affirm. Facts
On May 15, 2001, Houston Police Officer Mark Boyle supervised a narcotics investigation with several uniformed and undercover police officers. Boyle testified that he received information from an informant that a suspected drug dealer, Jose Diaz, wanted to sell a large amount of cocaine that day. The officers set up surveillance on Diaz and followed him to the parking lot of a restaurant in the Montrose area of Houston. Boyle watched Diaz park his car behind the restaurant, get out of his car, and get into the informant's car. After the two men had engaged in conversation for 15 minutes, Boyle saw Diaz retrieve a blue bag from his car and carry it to the informant's car. The informant testified that Diaz showed him four kilograms of cocaine contained in the blue bag, but that Diaz told him that "you don't want to buy this stuff . . . it's not good." Diaz then told the informant, "I can take you somewhere and get good quality [cocaine] sealed up." Boyle saw Diaz place the blue bag back inside his car. Diaz and the informant then left their cars and walked to the front of the restaurant. At this point, Diaz and the informant walked to and entered a residence directly across the street from the restaurant. The informant further testified that, after appellant opened the front door of the residence, the men gathered in the kitchen. Appellant showed the informant a sample of cocaine in a plastic bag. After the informant tried some of the cocaine, appellant then showed "a sealed kilo" of cocaine to the informant. After he was shown the "sealed kilo," the informant and Diaz left the residence, and the informant called Officer Boyle and told him that "everything is okay and they could move ahead or forward with their plan." Officer Boyle, based on his surveillance and the informant's telephone call, "determined that narcotics negotiations had been completed and decided to detain all suspects." Appellant was detained at a nearby tire shop, and officers brought him back to his residence. The officers entered the house to perform a protective sweep, and appellant then gave his written consent to search his residence. The officers found a kilogram of cocaine in a plastic bag in appellant's kitchen, and they found two kilograms of sealed cocaine in a safe in appellant's bedroom closet. In addition, the officers found a loaded pistol in a kitchen drawer and two pistols in appellant's bedroom. Appellant testified that he allowed Diaz to keep "stuff" at appellant's residence and that, in return, Diaz paid appellant's rent and bills. Appellant stated that Diaz called him that day and said "they were going to pick up some stuff." Appellant "thought he was going to pick up some money that they had there." Appellant testified that a friend of Diaz, Tonio, then came to his residence and dropped off the "sealed kilos" of cocaine. Appellant claimed that the first time he had seen the narcotics was when Diaz called him and asked him to take a kilogram of cocaine to Diaz in the restaurant. Appellant told Diaz "no." When Diaz then asked appellant to bring "a piece" of cocaine to the restaurant, appellant again refused. Appellant stated that the cocaine was not his and he was not involved in the narcotics negotiations. He further stated that when the informant asked him the price of the cocaine, appellant responded, "[T]hat's not my business." Consent to Search
In his first point of error, appellant contends that the trial court erred in denying his motion to suppress evidence obtained from his residence because he did not freely and voluntarily give his consent to the search his residence. Under the Fourth and Fourteenth Amendments to the Unites States Constitution, a search conducted without a warrant issued upon probable cause isper se unreasonable limited to a few well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043 (1973). A search pursuant to voluntary consent is an exception to the requirement that a search be based upon a warrant supported by probable cause. Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App. 2000). For consent to be valid, however, it must be voluntary. Id.at 817-18. At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the credibility of the witnesses and their testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002). The validity of an alleged consent to search is a question of fact to be determined from the totality of the circumstances.Id.The federal constitution requires the State to prove the voluntariness of the consent by a preponderance of the evidence, while the Texas Constitution requires the State to show by clear and convincing evidence that the consent was freely and voluntarily given. Id. The appropriate standard for reviewing a trial court's ruling on a motion to suppress is bifurcated, giving almost total deference to a trial court's determination of historical facts and reviewing de novo the court's application of the law. Id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Among the factors to be considered in determining voluntariness are whether the consenting person is in custody, whether he or she was arrested at gunpoint, and whether the person was informed that he or she did not have to consent. Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Crim.App. 2000). Other factors include the youth of the accused, the education of the accused, the intelligence of the accused, the constitutional advice given to the accused, the length of the detention, the repetitiveness of the questioning, and the use of physical punishment. Reasor, 12 S.W.3d at 818. Appellant contends that his consent to search his residence was involuntary because (1) he was under arrest; (2) he was confronted by two or more police officers; (3) the police displayed their weapons; (4) he was in handcuffs; (5) the police had already taken possession of his house key and entered his residence; (6) the police made repeated requests for a consent to search; and (7) the protective sweep of his residence was illegal and tainted his consent. Appellant testified that, while he was at the tire shop, "a guy dressed in regular clothes jumped out with a gun drawn . . . I saw the gun in my face, and then he just threw me to the ground and handcuffed me." After appellant was taken back to his residence, he saw many officers running around the sides of his residence. Appellant stated that officers pushed on his front door "like if they were going to break it," and an officer then came and took keys out of his pocket. Appellant further stated that Officer Walter Redman asked him for consent to search his residence and that Redman told him that he "had nothing to worry about because they knew it wasn't [appellant]." Appellant claimed that Redman also told him that if appellant did not sign the written consent form, "[Redman] would have me sit in the police car until he went to get a search warrant and came back." Appellant also claimed that officers were in his house for 35 minutes before he signed the written consent to search his residence. However, on cross-examination, appellant admitted that he initially lied when he told the officers that he did not live at the residence, and appellant admitted that he initially denied that his signature was on the consent form when, in fact, it was his own. Moreover, Officer Redman testified that appellant was not under arrest and, when Redman approached appellant, Redman did not have his weapon drawn. Redman testified that he did not threaten or coerce appellant in any fashion, and he initially informed appellant of his legal rights, including appellant's right to refuse to consent to search. Redman stated that appellant gave him oral consent to search his residence, but Redman wanted to "back up" the oral consent with a "written form of consensual search." Redman also stated that appellant appeared to be literate. When Redman presented appellant with a written consent-to-search form, appellant read the form and stated that he understood his rights. Redman further testified that, after 10 to 15 minutes, appellant voluntarily signed the consent form and Officer Rick Ashwood witnessed appellant signing the form. Additionally, Redman stated that appellant was not arrested in order to gain consent, and he denied threatening appellant with a search warrant in order to gain his consent. Here, the record supports a finding by clear and convincing evidence that the consent to search was freely and voluntarily given. The record indicates that although appellant was informed of his legal rights and he read the consent form, which stated that he had "a right to refuse to consent to the search," appellant voluntarily chose to waive his rights. Although the officers had already entered appellant's residence to perform a protective sweep, the record does not indicate that the officers in fact searched the residence prior to appellant signing the consent form. Appellant gave contrary testimony, but the trial court, as the fact finder, was free to disbelieve appellant. Martinez v. State, 17 S.W.3d 677, 683 (Tex.Crim.App. 2000). Giving deference to the trial court's resolution of factual conflicts, we conclude there was clear and convincing evidence to sustain the trial court's ruling that appellant voluntarily consented to the search of his residence. Accordingly, we hold that the trial court did not abuse its discretion in denying appellant's motion to suppress evidence. We overrule appellant's first point of error. Sufficiency of the Evidence
In appellant's second point of error, he contends that the evidence was legally and factually insufficient to prove that he intentionally and knowingly possessed the cocaine found in his residence. We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. Id. The factual sufficiency of the evidence is reviewed by examining all of the evidence neutrally and asking whether the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). To establish the unlawful possession with the intent to deliver a controlled substance, the State must show (1) that a defendant exercised care, custody, control, or management over the controlled substance; (2) that he knew he possessed a controlled substance; and (3) that he had the intent to deliver the controlled substance. Tex. Health Safety Code Ann. §§ 481.002(38), 481.112 (Vernon Supp. 2003); Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). The State need not show that the defendant exercised exclusive control over the controlled substance, but when the defendant does not have exclusive control, the State must show additional affirmative links between the defendant and the contraband. Cedano v. State, 24 S.W.3d 406, 411 (Tex.App.-Houston [1st Dist.] 2000, no pet.). The affirmative links must raise a reasonable inference that the accused knew of and controlled the contraband. Dickerson v. State, 866 S.W.2d 696, 700 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). Factors that have been considered to establish affirmative links include (1) the defendant's presence when the search was executed; (2) narcotics in plain view; (3) the defendant's proximity to and accessibility of the narcotics; (4) the defendant under the influence of narcotics when arrested; (5) the defendant's possession of other narcotics when arrested; (6) the defendant's incriminating statements; (7) the defendant's attempted flight; (8) the defendant's furtive gestures; (9) the presence of odor of the narcotics; (10) the presence of other narcotics or narcotics paraphernalia; (11) the defendant's ownership or right to possession of the place where narcotics found; and (12) narcotics found in an enclosed place. Williams v. State, 859 S.W.2d 99, 101 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). Despite this list of factors, there is no set formula necessitating a finding of an affirmative link, but rather, affirmative links are established by the totality of the circumstances. Sosa v. State, 845 S.W.2d 479, 483 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). Appellant argues that there are insufficient affirmative links to connect him to the cocaine found inside his residence. We disagree. Here, there are many affirmative links between appellant and the cocaine seized from inside his residence. Appellant testified that he lived at the residence and that Diaz paid his rent and bills because appellant agreed to keep "some stuff" at the residence. Appellant further testified that Diaz called and twice asked him to bring cocaine to the restaurant, raising an inference that appellant knew there was cocaine at the residence and that appellant had control over the cocaine. The informant testified that appellant showed him both cocaine in a plastic bag and a kilogram of "sealed cocaine." The record reveals that a plastic bag of cocaine was found in appellant's kitchen and two kilograms of "sealed cocaine" were found inside a safe located in appellant's bedroom closet. The record also reveals that appellant possessed the only key to the front door of the residence and possessed a key to the safe, indicating appellant had complete control over the residence and over a location where cocaine was stored within the residence. The record further shows that police found two handguns inside a dresser located in appellant's bedroom and a loaded handgun inside a kitchen drawer with the plastic bag of cocaine. See Johnigan v. State, 69 S.W.3d 749, 755-56 (Tex.App.-Tyler 2002, pet. ref'd) (finding possession of gun relevant to show control and dominion over cocaine); Levario v. State, 964 S.W.2d 290, 296-97 (Tex.App.-El Paso 1997, no pet.) (finding evidence of handgun admissible to show defendant's willingness to protect narcotics). Moreover, recognizable drug paraphernalia, a gram scale commonly used to measure contraband, was in plain view on the kitchen counter, further linking appellant to the cocaine. See Harmond v. State, 960 S.W.2d 404, 406 (Tex.App.-Houston [1st Dist.] 1998, no pet.). A rational fact finder could have found affirmative links between appellant and the cocaine found inside his residence. Thus, we hold under the totality of the circumstances that the evidence is legally sufficient to support his conviction. In regard to factual sufficiency, appellant argues that he was unaware that cocaine was inside his house until Diaz called him and that Diaz's friend, Tonio, brought the cocaine inside his residence. Appellant contends that he initially believed that Diaz was keeping only money in the safe inside his closet and that he told the informant that matters concerning the cocaine were "not my business." The jury, as the trier of fact, is the sole judge of the credibility of witnesses and the weight to be given to testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). The jury may believe or disbelieve all or any part of a witness's testimony. Id.To the extent that any of the evidence in this case may be viewed as contradictory, we note that a decision is not manifestly unjust merely because the fact finder resolved conflicting views of the evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). Therefore, we hold that appellant has not shown that the verdict is so weak as to be manifestly unjust or that the facts are so contrary to the great weight and preponderance of the evidence as to be clearly wrong. We overrule appellant's second point of error. Conclusion
We affirm the judgment of the trial court. Terry Jennings, Justice