Derick Dewayne Hunt v. State ( 2018 )

Opinion issued January 23, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-17-00175-CR
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DERICK DEWAYNE HUNT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Case No. 1508362
MEMORANDUM OPINION
Derick Hunt was convicted by a jury of possession, with intent to deliver, of
between four and 200 grams of cocaine. See TEX. HEALTH & SAFETY CODE
§ 481.115(a), (d). Hunt pleaded “true” to two enhancement paragraphs, and the
trial court assessed punishment at 32 years’ imprisonment. Hunt contends (1) that
the evidence is legally insufficient to support his conviction for knowing or
intentional possession of cocaine and (2) that either his motion to suppress or his
trial objections to certain evidence should have been sustained because the
evidence was obtained by a warrantless search that violated the Fourth
Amendment. We affirm.
Background
Houston Police Officers V. Vu and A. Merino were on patrol when a driver,
R. Gonzalez, flagged them down to report an incident of road rage. Gonzalez told
Officer Merino that another car had stopped at a nearby intersection and that its
driver exited the car, approached Gonzalez’s car, cursed at Gonzalez, walked back
to his own car, and attempted to pull out an object that Gonzalez thought was
maybe a bat or a gun. While the officers were speaking with Gonzalez, the other
car “U”-turned in the intersection and pulled alongside where the officers were
speaking with Gonzalez. No one but the driver was in the other car. Upon arriving,
the driver, Derick Hunt, almost immediately told Officer Vu, “I didn’t do it, I
didn’t do it.” Because everyone’s cars were blocking the road, the officers asked
Gonzalez and Hunt to pull into a nearby parking lot.
Once all three cars were parked in the lot, both Gonzalez and Hunt exited
their cars and started talking to each other. Their interaction was initially hostile
and then became harmonious. Gonzalez said that he did not want to press charges.
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Hunt hugged Gonzalez. Officer Vu then told both Hunt and Gonzalez that they
were free to leave. Gonzalez left.
Hunt remained at the scene though he had not been ordered to do so. Officer
Vu continued to talk with Hunt. While they talked, Officer Merino approached the
car that Hunt had been driving. He did so because Hunt’s hug had struck him as
odd and because he wanted to ensure that no weapons had been involved. As
Officer Merino approached the car’s open front passenger window, he smelled a
strong odor of marijuana.
Officer Merino told Officer Vu that he smelled marijuana, so Officer Vu told
Hunt that he was now being detained. Hunt then tried to reach back into the car.
Hunt admitted that there was marijuana in the car, telling Officer Vu that he only
had a little bit inside the vehicle.
Because of this, Officer Merino searched the car, starting with its center
console. When he opened the center console, the smell of marijuana got stronger.
When he looked into the console, he saw a gun, which contained a loaded
magazine. He also found in the console a white grocery bag, which contained a
large amount of marijuana, about 114 grams of cocaine, and about 50 pills in
multiple pill bottles. Two of the pill bottles bore the name “David Cavanaugh.”
Lastly, he found in the console $311 in small denominations, weight scales, and
small baggies.
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Hunt was prosecuted for knowing or intentional possession of cocaine in an
amount between four grams and 200 grams. See TEX. HEALTH & SAFETY CODE
§ 481.115(a), (d). In both a motion to suppress and in trial objections, Hunt
challenged the admission of the evidence that Officer Merino discovered in the car.
The trial court overruled both the motion to suppress and the trial objections. After
a jury trial, Hunt was convicted and was assessed punishment at 32 years’
imprisonment. This appeal followed.
Legal Sufficiency of Evidence of Knowing or Intentional Possession
We review Hunt’s legal-sufficiency challenge under the standard in Jackson
v. Virginia, 443 U.S. 307 (1979). See Ramsey v. State, 473 S.W.3d 805, 808 (Tex.
Crim. App. 2015). We examine all the evidence in the light most favorable to the
verdict and determine whether a rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 318–19.
Our review includes both direct and circumstantial evidence, as well as any
reasonable inferences that may be drawn from that evidence. Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). We do not reevaluate the weight and
credibility of the evidence or substitute our judgment for that of the factfinder.
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Because the jury
is the sole judge of the credibility of the witnesses and of the weight given to their
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testimony, any conflicts or inconsistencies in the evidence are resolved in favor of
the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
In a prosecution for possession of a controlled substance, a necessary
element of the offense is the defendant’s actual care, custody, or control of the
controlled substance. See TEX. HEALTH & SAFETY CODE § 481.115(a); Evans v.
State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). The evidence, whether direct,
circumstantial, or both, “must establish that the defendant’s connection with the
drug was more than fortuitous.” Evans, 202 S.W.3d at 161. This is the “affirmative
links” rule, “which protects the innocent bystander—a relative, friend, or even
stranger to the actual possessor—from conviction merely because of his fortuitous
proximity to someone else’s drugs.” Id. at 161–62. “Mere presence at the location
where drugs are found is . . . insufficient, by itself, to establish actual care, custody,
or control of those drugs.” Id. at 162. “However, presence or proximity, when
combined with other evidence, either direct or circumstantial (e.g., ‘links’), may
well be sufficient to establish that element beyond a reasonable doubt.” Id. “It is
. . . not the number of links that is dispositive, but rather the logical force of all of
the evidence, direct and circumstantial.” Id.
The kinds of links that the Court of Criminal Appeals and our sister courts of
appeals often look to include:
(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
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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.
Id. at 162 n.12.
Hunt focuses his legal-sufficiency challenge on whether the State proved
beyond a reasonable doubt that he knowingly or intentionally possessed the
cocaine. Hunt was the only occupant of the car. He voluntarily talked with Officer
Vu. During that conversation, Officer Merino smelled marijuana through the car’s
open front passenger window. Hunt was therefore detained. Hunt admitted to
Officer Vu that he had marijuana inside the vehicle. Officer Merino then searched
the car’s closed center console and found a gun containing a loaded magazine and
a white grocery bag containing marijuana, 114 grams of cocaine, and pills.
Based on this evidence, when viewed in the light most favorable to the
verdict, the jury could reasonably have found that Hunt knowingly or intentionally
possessed the cocaine. Hunt admitted that he “had”—that is, possessed—marijuana
in the car. The same bag that contained Hunt’s marijuana also contained the 114
grams of cocaine. There is evidence, therefore, that Hunt knew that he had cocaine
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in the white grocery bag in the car he was driving. There is no evidence suggesting
that Hunt was simply near someone else’s cocaine. On the contrary, the evidence
shows the presence of Evans links 1 (Hunt was present during the search), 3 (Hunt
was near the cocaine, and it was accessible to him), 6 (Hunt made an incriminating
statement), 9 (Officer Merino smelled marijuana), 10 (Officer Merino found
marijuana, weight scales, and baggies), 12 (Officer Merino had to open the
console), and 13 (Officer Merino found $311). See 202 S.W.3d at 162 n.12.
In response, Hunt argues that there are nine sets of facts and circumstances
that tend to show that no rational trier of fact could have found knowing or
intentional possession of cocaine:
1. Officer Vu did not request DNA or fingerprint testing of the gun or
bullets, though Officer Vu “agreed that if he could show that Mr. Hunt
had handled the weapon that was sitting on top of the drugs, that
would help show Mr. Hunt knew that was there.”
2. During the search, Hunt did not appear to be high, to be intoxicated, to
have bloodshot eyes, to be under the influence of drugs, or to smell
like marijuana.
3. The car Hunt was driving was a rental car owned by Enterprise.
4. Officer Merino did not find any paperwork in the car indicating that
Hunt owned the car.
5. The pill bottles found in the car’s center console were not labeled with
Hunt’s name.
6. No one tried to find any fingerprints on the weight scales or baggies.
7. Officer Merino did not receive any DNA or fingerprint results from
the gun.
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8. Two pill bottles found in the grocery bag bore the name “David
Cavanaugh.”
9. Officer Merino did not know who David Cavanaugh is and did not
look him up on his patrol car’s computer.
These do not alter the analysis. We must examine the evidence in the light most
favorable to the verdict. In that light, Hunt’s point number one, for example, does
not undermine Hunt’s having admitted to possessing the marijuana that was in the
same bag as the cocaine. Showing that Hunt knew that the marijuana was in the
bag strongly suggests that he knew the cocaine was in the bag too. Even Hunt
agrees with this logic by contending that, had Hunt known that the gun was in the
console, that “would help show that Mr. Hunt knew” that the cocaine was in the
console too. Hunt’s point number two demonstrates, at most, that Evans link 4 is
not present, but that does not undermine the logical force of the separate presence
of links 1, 3, 6, 9, 10, 12, and 13. Hunt’s points three through nine raise issues
about whether Hunt owned the car that he was driving; recently handled the gun,
weight scales, and baggies; or owned the pill bottles. But none of this necessarily
undermines the independently reasonable conclusion that Hunt knowingly or
intentionally possessed both the marijuana and the cocaine in the white grocery
bag. We overrule Hunt’s first issue.
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Denial of Motion to Suppress and Trial Objections to
Evidence Obtained from Warrantless Search
In reviewing a motion to suppress, we must view the evidence in the light
most favorable to the trial court’s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex.
Crim. App. 2007). The trial judge, unlike us, is uniquely situated to observe
witness demeanor and appearance. Id. Consequently, the trial court is the sole trier
of fact and judge of the credibility of the witnesses and the weight to be given their
testimony when entertaining a motion to suppress. Id. at 24–25. When a trial court
makes explicit fact findings, we determine whether the evidence, viewed in the
light most favorable to the trial court’s ruling, supports these fact findings. Johnson
v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013).
In reviewing whether evidence obtained by a warrantless search is properly
admitted or suppressed, we must determine what type of citizen–police interaction
is at issue—a consensual encounter, an investigative detention, or an arrest. Id. at
191. Consensual encounters do not implicate Fourth Amendment protections. Id.
The trial court stated the following when it denied the motion to suppress:
The defendant’s initial encounter with Officers Merino and Vu was
consensual. Officer Merino was well within his legal rights and within
the -- to be where he was when he smelled marijuana through the
open window of the defendant’s car. Search subsequent to that was
legally allowed where the guns and drugs were recovered.
The trial court’s finding that Hunt’s initial encounter with Officers Merino and Vu
was consensual is supported by the record. The trial court could have believed
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Officer Vu’s testimony that there was no traffic stop, that Hunt was not detained
until after Officer Merino smelled the marijuana, and that Officer Vu told Hunt
after Hunt hugged Gonzalez that Hunt was free to leave. Amid Hunt’s admittedly
consensual encounter with the officers, Officer Merino approached Hunt’s car and
its open window and smelled marijuana through the open window.
Though Hunt admits that this interaction was a consensual encounter, he
relies on investigative-detention case law to argue that the search was
unconstitutional. Because Hunt’s encounter with the officers was consensual and
was not a detention, Fourth Amendment protections are not implicated. See
Johnson, 414 S.W.3d at 191.
In a prior instance when the police did not detain a driver but the driver
instead voluntarily stopped the car and exited it, the Court of Criminal Appeals
held that the police did not initiate an unlawful search merely by walking toward
the stopped car, smelling marijuana, and then detaining the driver. See Stewart v.
State, 603 S.W.2d 861, 862 (Tex. Crim. App. 1980). This case is akin to Stewart
because, in both instances, the search of a car that produced evidence of possession
of a controlled substance resulted simply from the officers’ having approached a
car that the defendant had opened on his own without having been detained. See id.
Hunt argues that the case is more akin to Rodriguez v. United States, 135
S. Ct. 1609 (2015), which he characterizes as involving an unlawful “police
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extension of a traffic stop in order to conduct a . . . sniff . . . .” There, a police
officer pulled over a driver for having driven on the shoulder, a violation of state
law. The officer collected the driver’s license, registration, and proof of insurance;
ran a records check on the driver; returned to the driver’s car; gathered the
passenger’s driver’s license; questioned the driver and passenger about where they
were coming from and where they were going; ran a records check on the
passenger; issued a written warning to the driver; explained the warning; and
returned the driver’s and passenger’s documents. Rodriguez, 135 S. Ct. at 1612–
13. At that point, the officer had handled the matter for which the stop was made.
See id. at 1613. The officer then prolonged the encounter to conduct a dog sniff of
the car. Id. The Supreme Court of the United States held that
a police stop exceeding the time needed to handle the matter for which
the stop was made violates the Constitution’s shield against
unreasonable seizures. A seizure justified only by a police-observed
traffic violation, therefore, “become[s] unlawful if it is prolonged
beyond the time reasonably required to complete th[e] mission” of
issuing a ticket for the violation.
Id. at 1612 (alterations in original).
Rodriguez’s outcome depended on a preexisting, and completed, traffic stop
before a dog sniff. See id. (“This case presents the question whether the Fourth
Amendment tolerates a dog sniff conducted after completion of a traffic stop.”); id.
at 1613 (“He moved to suppress the evidence seized from his car on the ground,
among others, that [the officer] had prolonged the traffic stop without reasonable
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suspicion in order to conduct the dog sniff.”); id. at 1614 (“We granted certiorari to
resolve a division among lower courts on the question whether police routinely
may extend an otherwise-completed traffic stop, absent reasonable suspicion, in
order to conduct a dog sniff.”).
This case does not involve a traffic stop. Hunt voluntarily stopped his car,
exited it, and spoke with Officer Vu. Officer Merino’s approach of the car’s open
window and smell of marijuana did not prolong the time Hunt needed to stay at the
scene. Rodriguez is inapplicable. We overrule Hunt’s second issue.
Conclusion
We affirm the trial court’s judgment.
Harvey Brown
Justice
Panel consists of Justices Keyes, Brown, and Lloyd.
Do Not Publish. TEX. R. APP. P. 47.2(b).
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