Summary
holding location of drugs in car's center console and driver's sole possession of car implicated driver despite no evidence that driver owned the car
Summary of this case from Rodriguez v. StateOpinion
NO. 02-15-00297-CR
03-24-2016
GUSTAVO SALVADOR APPELLANT AVELARMUNOZ v. THE STATE OF TEXAS STATE
FROM 213TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1364556D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
A jury found appellant Gustavo Salvador Avelarmunoz guilty of possession of a controlled substance, namely cocaine, less than one gram. See Tex. Health & Safety Code Ann. § 481.115(b) (West 2010). The trial court assessed punishment at nine months' confinement, suspended the sentence, and placed appellant on community supervision for a period of two years. The trial court also assessed a $400 fine and court costs. In a single issue, appellant contends the evidence is legally insufficient to support his conviction. We affirm.
Factual Background
On March 30, 2014, at approximately 4:00 a.m., police officers responded to a "loud music call" and proceeded to a residence located at 3816 James Avenue. The complainant directed the police to the 2003 Chevy Silverado parked in front of 3817 James Avenue, the residence across the street. The vehicle's stereo was blaring music, which could be heard at least six houses down the street.
The police approached the vehicle from both sides and saw appellant, apparently unconscious, slumped over the driver's wheel. He was the sole occupant in the vehicle. When the officer on the passenger side shined a flashlight inside the vehicle, he observed in plain sight a white powdery substance, believed to be cocaine, in a clear plastic baggie in the center cup holder; he alerted his partner. The vehicle's engine was turned off, the driver's window was rolled down, and the keys were in the ignition.
When appellant was awakened, he appeared disoriented and under the influence of drugs. The police patted down appellant for weapons and handcuffed him. The police determined from appellant's driver's license that his birthdate was "10/27/91" and that his address was "3817 James"—the same address where the vehicle was parked. The bag contained 0.032 grams of cocaine.
In addition, the evidence included a traffic ticket issued to appellant for running a stop sign on October 10, 2014. The identification information on the ticket—appellant's name, date of birth, address, the vehicle description, and license plate—matched the information obtained on the date of his arrest.
Standard of Review
The standard for reviewing the sufficiency of the evidence is well established. We must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013).
This standard affords responsibility to the factfinder to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); see Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App.), cert. denied, 510 U.S. 837 (1993). The appellate court determines whether the necessary inferences are reasonable based upon the cumulative force of the evidence viewed in the light most favorable to the verdict. See Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013); Temple v. State, 390 S.W.3d 341, 359-60 (Tex. Crim. App. 2013); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In our review of the record, circumstantial evidence is as probative as direct evidence in establishing the guilt of an accused, and circumstantial evidence alone can be sufficient to establish guilt. Clayton, 235 S.W.3d at 778.
Applicable Law
The Texas Controlled Substances Act provides that a person commits an offense if he knowingly or intentionally possesses cocaine. Tex. Health & Safety Code Ann. § 481.115(b). The term "possession" means actual care, custody, control, or management. Id. § 481.002(38) (West Supp. 2015).
In order to support a conviction for unlawful possession of less than one gram of cocaine, the State must prove the accused (1) exercised actual care, custody, control, or management over the contraband; and (2) knew the matter possessed was contraband. See Tex. Health & Safety Code Ann. § 481.102 (West 2010), § 481.115(b); see also Martin v. State, 753 S.W.2d 384, 386 (Tex. Crim. App. 1988). Whether such proof takes the form of either direct or circumstantial evidence, it must establish the accused's connection with the contraband was more than fortuitous. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). This was formerly known as the "affirmative links" rule. See id. n.9; see also Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005) (citing Brown v. State, 911 S.W.2d 744, 747-48 (Tex. Crim. App. 1995)), overruled on other grounds by Robinson v. State, 466 S.W.3d 166, 173 n.32 (Tex. Crim. App. 2015) (holding that appellate courts should disregard a trial court's findings of fact and conclusions of law even when they support a trial court's judgment).
Mere presence at a location where drugs are discovered is not sufficient, by itself, to establish possession. Evans, 202 S.W.3d at 162. When an accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of or control over the contraband without additional independent facts and circumstances which link the accused to the contraband in such a way that it can be concluded that he had knowledge of the contraband and exercised control over it. See Poindexter, 153 S.W.3d at 406; Batiste v. State, 217 S.W.3d 74, 79-80 (Tex .App.—Houston [1st Dist.] 2006, no pet.); Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd).
No formula of facts exists to dictate a finding of links sufficient to support an inference of knowing possession. Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.). A factor that is of little or no value in one case may be the turning point in another. See Nhem v. State, 129 S.W.3d 696, 699 (Tex. App.—Houston [1st Dist.] 2004, no pet.). When determining whether the accused knew that he possessed contraband, the jury is allowed to infer the accused's knowledge from his acts, conduct, remarks, and from the surrounding circumstances. See Cedillo v. State, No. 02-09-00388-CR, 2011 WL 476859, at *3 (Tex. App.—Fort Worth Feb. 10, 2011, no pet.) (mem. op., not designated for publication). In sum, it is the logical force of the evidence, and not the number of links, that supports a factfinder's verdict. Evans, 202 S.W.3d at 166; see Krause v. State, 243 S.W.3d 95, 111 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd).
In Evans, the court set forth a non-exhaustive list of independent facts and circumstances—links—that may, alone or in combination with others, prove an accused's knowing possession of contraband. 202 S.W.3d at 162 n.12. The court emphasized that the absence of various links does not constitute evidence of innocence to be weighed against the links that are present. James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd).
Evans sets forth the following non-exhaustive list of circumstances to illustrate links to establish a person's possession of contraband:
(1) the defendant's presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant's proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt.
Application of the Law to the Facts
Appellant argues that the evidence merely shows he was either asleep or unconscious in the vehicle and that there were no significant links connecting him to the vehicle or to the cocaine other than his mere presence. We review the evidence in relation to the relevant factors applicable to this case in order to determine whether these independent facts and circumstances link appellant to the cocaine.
The defendant's presence when a search is conducted.
Appellant concedes that he was found unconscious, sitting in the driver's seat of the vehicle and in the presence of a controlled substance. Appellant argues that the officers "did not know if there had been any other occupants of the truck prior to [their] arrival." We are not charged with speculating on what may or may not have occurred absent relevant evidence. It was undisputed that appellant was the sole occupant of the vehicle and that he was sitting in the driver's seat at the time the cocaine was discovered.
Whether the substance was in plain view.
Appellant asserts that the cocaine was not in plain view because it was dark at 4:00 a.m. and that the police could not have seen inside the vehicle without using a flashlight. This argument has been previously advanced in cases involving search and seizure issues to counter the State's reliance upon the plain view doctrine and in cases involving the applicability and significance of this link—whether the substance was in plain view—as proof of possession. These challenges have been unsuccessful with remarkable consistency.
SeeTexas v. Brown, 460 U.S. 730, 740, 103 S. Ct. 1535, 1542 (1983) ("Numerous other courts have agreed that the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection."); Onofre v. State, 474 S.W.2d 699, 701 (Tex. Crim. App. 1972) ("Further, '[t]he view that the use of a visual aid such as a flashlight changes the character of a visual encounter by a police officer has been repeatedly rejected by the courts. . . . The plain view rule does not go into hibernation at sunset.'"); Villareal v. State, No. 01-13-00374-CR, 2014 WL 6602439, at *3 (Tex. App.—Houston [1st Dist.] Nov. 20, 2014, pet. ref'd) (mem. op., not designated for publication) (holding that looking inside a vehicle with the use of a flashlight does not implicate Fourth Amendment protections); Soto v. State, No. 13-10-00013-CR, 2011 WL 5000393, at *5 (Tex. App.—Corpus Christi Oct. 20, 2011, no pet.) (mem. op., not designated for publication) (stating that using flashlight does not affect the application of the plain view doctrine); Tilley v. State, No. 06-06-00232-CR, 2007 WL 2480533, at *4 (Tex. App.—Texarkana Sept. 5, 2007, no pet.) (mem. op., not designated for publication) ("The fact that the officer intentionally looked into the truck or was forced to use a flashlight as a visual aid to see through the tinted glass does not affect the application of the plain view doctrine."); Duhig v. State, 171 S.W.3d 631, 636-37 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd) (holding that standing on tiptoes and using a flashlight does not transform an otherwise justifiable "plain view" observation into a search); Jenkins v. State, No. 01-05-00299-CR, 2006 WL 23323, at *1 (Tex. App.—Houston [1st Dist.] Jan. 5, 2006, pet. ref'd) (affirming denial of motion to suppress notwithstanding officer's use of flashlight); Edwards v. State, No. 05-03-00237-CR, 2004 WL 837871, at *2 (Tex. App.—Dallas Apr. 20, 2004, pet. ref'd) (not designated for publication) ("When, as here, the officer approached an individual in a vehicle parked in a public place and looked inside the vehicle using a flashlight, Fourth Amendment protections are not implicated."); James v. State, 629 S.W.2d 92, 94 (Tex. App.—Dallas 1981, pet. ref'd) ("An officer's use of a flash light to aid his vision does not transform an otherwise plain-view observation into an illegal search."), cert. denied, 459 U.S. 987 (1982), overruled on other grounds by Woods v. State, 956 S.W.2d 33, 36 n.3 (Tex. Crim. App. 1997).
An object is seized in plain view if three requirements are met. Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009). "First, law enforcement officials must lawfully be where the object can be 'plainly viewed.'" Id. (citing Horton v. California, 496 U.S. 128, 136, 110 S. Ct. 2301, 2308 (1990)). "Second, the 'incriminating character' of the object in plain view must be 'immediately apparent' to the officials." Id. Third, "the officials must have the right to access the object." Id.
Merideth v. State, 603 S.W.2d 872, 873 (Tex. Crim. App. [Panel Op.] 1980); Jenkins, 2006 WL 23323, at *5; Fowler v. State, No. 08-01-00409-CR, 2002 WL 1732598, at *2-3 (Tex. App.—El Paso, July 25, 2002, no pet.) (not designated for publication); Sanchez v. State, No. 05-92-01647-CR, 1994 WL 34167, at *6 (Tex. App.—Dallas Feb 2, 1994, no pet.) (not designated for publication).
A flashlight is nothing more or less than a visual aid designed to enhance vision in order to illuminate a darkened area. The record reflects that an officer testified without objection that he approached appellant's vehicle at about 4:00 a.m.; shined a flashlight into the passenger's side; and saw "in plain sight" a white powdery substance, believed to be cocaine, in a clear plastic baggie in the center cup holder.
Under these facts and circumstances, we conclude that the contraband was in plain view when it was discovered, a conclusion consistent with common sense and substantial legal precedent.
The defendant's proximity to and the accessibility of the substance.
The police saw appellant sitting in the driver's seat next to the center console where the cocaine was found. The baggie was in close proximity to appellant and was easily accessible to appellant. See Robinson v. State, 174 S.W.3d 320, 326 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd) ("The term 'conveniently accessible' means that the contraband must be within the close vicinity of the accused and easily accessible while in the vehicle so as to suggest the accused had knowledge of the contraband and exercised control over it").
Whether the defendant was under the influence of narcotics when arrested.
Appellant argues that the evidence failed to show he was under the influence of narcotics when arrested, as he was not administered a field sobriety test, the officers did not recall smelling the odor of alcohol, and "he knew who he was" at the time he was arrested. However, the evidence showed an officer had to open the front door of the vehicle, to shake appellant, and to raise his voice in order to wake him up at the scene. At that time, appellant appeared disoriented and under the influence of drugs.
We note that even the officer's testimony quoted in appellant's brief shows he was disoriented: "He had appeared to—although he was disoriented, he knew who he was. Umm, he just—he had just woken up and didn't quite know exactly what was going on or who we were." --------
This evidence describing appellant's physical and mental state is consistent with appellant's being under the influence of drugs.
Whether the defendant owned or
had the right to possess the place where the substance was found.
Appellant argues that while the evidence showed he did reside at 3817 James, the address where the vehicle was parked, there was no evidence he owned the vehicle. However, "the determining issue is control of the car at the time the contraband is found, not ownership." Hyett v. State, 58 S.W.3d 826, 831 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd); Villegas v. State, 871 S.W.2d 894, 897 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd).
The evidence shows that when the police arrived in response to the noise complaint, appellant was observed in the driver's seat slumped over the wheel. He was the lone occupant of the vehicle on the date of the offense. The keys were in the ignition, but the engine was turned off. The residential address where the vehicle was parked matched the address shown on appellant's driver's license. A traffic citation issued six months later showed that appellant was still in possession of and driving this same vehicle.
These facts show singular possession of the vehicle and clear evidence of care, custody, control, and management of the vehicle.
Conclusion
We conclude the logical force of the factors present in this case are sufficient to establish appellant knowingly possessed cocaine. Viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have concluded appellant knowingly possessed the cocaine. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Matlock, 392 S.W.3d at 667. The evidence is, therefore, sufficient to support the conviction. We resolve appellant's sole issue against him and affirm the trial court's judgment.
/s/ Kerry FitzGerald
KERRY FITZGERALD
JUSTICE PANEL: GABRIEL and SUDDERTH, JJ.; and KERRY FITZGERALD (Senior Justice, Retired, Sitting by Assignment). DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: March 24, 2016
Id.