Carlos Diaz v. State ( 1999 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-99-00041-CR

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Carlos Diaz, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT NO. 0983606, HONORABLE BOB PERKINS, JUDGE PRESIDING

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Appellant Carlos Diaz waived a jury trial and pleaded not guilty to the charge of possession of cocaine. The trial court found Diaz guilty of possession of less than one gram of cocaine. See Tex. Health & Safety Code Ann. § 481.115 (West Supp. 1999). The trial court assessed punishment, enhanced by four prior convictions, at eleven years' imprisonment in the Texas Department of Criminal Justice, Institutional Division.

In two issues, Diaz alleges that the police did not have probable cause to search him and that the evidence is insufficient to support the conviction. We will affirm the conviction.

BACKGROUND

On July 18, 1998, at approximately 1:30 p.m., Diaz was driving fifty miles per hour in a forty mile per hour zone in the 6800 block of North Lamar in Austin, Texas. Officer Richard Miller of the Austin Police Department stopped Diaz for speeding. Miller testified that when Diaz stopped the vehicle, ⁽¹⁾ he immediately got out and walked to the back of the car. Miller testified that Diaz's actions led him to believe that Diaz was trying to hide something and did not want the officer to search the car. Miller asked Diaz if he had any weapons, and Diaz replied that he had a razor blade in his pocket. Diaz agreed when Officer Miller asked if he could search the vehicle. Miller saw what he thought might be crack cocaine on the seat and floorboard of the vehicle.

Shortly thereafter, Austin Police Officer Kevin Covington arrived at the scene to assist Miller. Covington walked to the driver's side of the vehicle and saw "in plain view several off-white colored, rock-like" objects on the left side of the driver's seat. He testified that he knew these objects to be crack cocaine from his training and experience. Using a field test kit, the officers analyzed the objects, which tested positive for cocaine. Miller seized the cocaine, placed it in a plastic bag, and arrested Diaz.

Anthony Arnold, a forensic chemist with the Austin Police Department, analyzed the objects seized from the vehicle. He determined the net weight of the rock-like substance to be nine milligrams and concluded it contained cocaine base.

DISCUSSION

Sufficiency of the Evidence

In his first issue, Diaz argues that the evidence is legally insufficient to link him to the cocaine and prove the required elements of the offense. In determining the legal sufficiency of the evidence to support a criminal conviction, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Stanley v. State, 887 S.W.2d 885, 888 (Tex. Crim. App. 1994).

In order to prove unlawful possession of a controlled substance, the State must prove that the accused exercised care, control, and management of the substance, and that the accused knew the substance was contraband. See Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1987); Hackleman v. State, 919 S.W.2d 440, 444 (Tex. App.--Austin 1996, pet. ref'd, untimely filed). When the accused is not in exclusive control of the place the contraband is found, the State must prove independent facts and circumstances affirmatively linking the accused to the contraband. See Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). "Affirmative links" is a shorthand expression of what the State must prove to establish that the accused knowingly or intentionally possessed the contraband. See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). The required affirmative links can be proven by direct or circumstantial evidence, but the links do not need to be so strong that they exclude every other outstanding reasonable hypothesis. See id. at 747-48. All that is required is that the accused's connection with the drug be more than fortuitous. See id. at 747.

Diaz asserts that the record contains no evidence that he knew there was cocaine in the vehicle. Specifically, he contends that since he did not own the vehicle and had only taken possession of it the night before, when it was dark and his visibility obscured, there is no evidence that affirmatively links him to the cocaine. We disagree.

This Court has addressed several factors identified by the Court of Criminal Appeals that can tend to link the accused to the contraband. See Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.--Austin 1991, pet. ref'd); Trejo v. State, 766 S.W.2d 381, 384 (Tex. App.--Austin 1989, no pet.). Several factors relevant to this case include: (1) contraband in plain view; (2) contraband conveniently accessible to the accused; (3) the accused driving the automobile in which contraband discovered; (4) contraband found on the same side of the car seat where the accused was sitting; (5) contraband paraphernalia in view of or found on the accused; (6) conduct by the accused indicating a consciousness of guilt; and (7) the physical condition of the accused indicating recent consumption of the contraband.

Taken in the light most favorable to the verdict, the evidence supports several factors affirmatively linking appellant to the contraband. The cocaine found in the car was in plain view. It was easily accessible to Diaz, as it was beside his left leg on the floor and seat on the driver's side of the car. Diaz was the driver and sole occupant of the vehicle on the afternoon in question. Diaz also had a single-edged razor blade in his pocket, which Officer Miller testified is associated with the use of cocaine. In addition, Miller testified that Diaz was nervous or jittery; that Diaz quickly exited the vehicle when he was stopped; that he was "excited and talkative"; and that his movements were rapid. A reasonable factfinder could have inferred consciousness of guilt or recent consumption of the contraband from such behavior. We hold that the evidence in the record is legally sufficient to support a finding of guilt beyond a reasonable doubt. We overrule Diaz's first issue.

Validity of the Search

In his second issue, Diaz complains that Officer Miller did not have probable cause to stop, search, and arrest Diaz. Appellant concedes that the officer had cause to stop him for speeding. Once stopped, the officer observed the contraband in plain view, and appellant gave the officer permission to search the car. Appellant cannot now claim the search was illegal, and thus the evidence seized was clearly admissible. In any event, Diaz did not object to the validity of the search at trial, nor did he object to the admission of evidence of the seized cocaine. ⁽²⁾ To preserve error for appellate review, a timely request, objection, or motion must be made to the trial court by the complaining party. See Tex. R. App. P. 33.1(a)(1). Because Diaz failed to preserve this issue for appeal, we overrule Diaz's second issue.

We affirm the judgment of the trial court.

Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: October 21, 1999

Do Not Publish

1. Diaz did not own the vehicle he was driving. Diaz took possession of the vehicle from a friend on the evening before his arrest.

2. Diaz did not raise this argument via a motion to suppress the evidence. Moreover, his trial attorney admitted that such a motion would have been "fruitless" since the cocaine was in plain view.

e, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). "Affirmative links" is a shorthand expression of what the State must prove to establish that the accused knowingly or intentionally possessed the contraband. See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). The required affirmative links can be proven by direct or circumstantial evidence, but the links do not need to be so strong that they exclude every other outstanding reasonable hypothesis. See id. at 747-48. All that is required is that the accused's connection with the drug be more than fortuitous. See id. at 747.

Diaz asserts that the record contains no evidence that he knew there was cocaine in the vehicle. Specifically, he contends that since he did not own the vehicle and had only taken possession of it the night before, when it was dark and his visibility obscured, there is no evidence that affirmatively links him to the cocaine. We disagree.

This Court has addressed several factors identified by the Court of Criminal Appeals that can tend to link the accused to the contraband. See Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.--Austin 1991, pet. ref'd); Trejo v. State, 766 S.W.2d 381, 384 (Tex. App.--Austin 1989, no pet.). Several factors relevant to this case include: (1) contraband in plain view; (2) contraband conveniently accessible to the accused; (3) the accused driving the automobile in which contraband discovered; (4) contraband found on the same side of the car seat where the accused was sitting; (5) contraband paraphernalia in view of or found on the accused; (6) conduct by the accused indicating a consciousness of guilt; and (7) the physical condition of the accused indicating recent consumption of the contraband.

Taken in the light most favorable to the verdict, the evidence supports several factors affirmatively linking appellant to the contraband. The cocaine found in the car was in plain view. It was easily accessible to Diaz, as it was beside his left leg on the floor and seat on the driver's side of the car. Diaz was the driver and sole occupant of the vehicle on the afternoon in question. Diaz also had a single-edged razor blade in his pocket, which Officer Miller testified is associated with the use of cocaine. In addition, Miller testified that Diaz was nervous or jittery; that Diaz quickly exited the vehicle when he was stopped; that he was "excited and talkative"; and that his movements were rapid. A reasonable factfinder could have inferred consciousness of guilt or recent consumption of the contraband from such behavior. We hold that the evidence in the record is legally sufficient to support a finding of guilt beyond a reasonable doubt. We overrule Diaz's first issue.

Validity of the Search

In his second issue, Diaz complains that Officer Miller did not have probable cause to stop, search, and arrest Diaz. Appellant concedes that the officer had cause to stop him for speeding. Once stopped, the officer observed the contraband in plain view, and appellant gave the officer permission to search the car. Appellant cannot now claim the search was illegal, and thus the evidence seized was clearly admissible. In any event, Diaz did not object to the validity of the search at trial, nor did he object to the admission of evidence of the seized cocaine. ⁽²⁾ To preserve error for appellate review, a timely request, objection, or motion must be made to the trial court by the complaining party. See Tex. R. App. P. 33.1(a)(1). Because Diaz failed to preserve this issue for appeal, we overrule Diaz's second issue.

We affirm the judgment of the trial court.

Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: October 21, 1999

Do Not Publish

1. Diaz did not own the vehicle he was