Joe Bradley Gaines v. State ( 2007 )

Opinion filed April 5, 2007

Opinion filed April 5, 2007

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-06-00208-CR

                                                    __________

                                  JOE BRADLEY GAINES, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 220th District Court

                                                      Comanche County, Texas

                                          Trial Court Cause No. CCCR-05-02773

                                                                   O P I N I O N

The jury convicted Joe Bradley Gaines of the offense of possession of less than one gram of methamphetamine.  Punishment was assessed by the trial court at confinement in a state jail facility for two years and a fine of $1,000.  However, the trial court suspended the confinement portion of the sentence and placed appellant on community supervision for five years.  We affirm. 

                                                                         Issues

Appellant presents three issues for review.  In the first issue, he contends that the trial court erred in denying his motion to suppress because of the prolonged detention after the traffic stop.  In his second and third issues, appellant contends that the evidence is legally and factually insufficient to show that he knowingly possessed the methamphetamine that was found on the passenger=s side of appellant=s vehicle. 

                                                     Suppression of the Contraband

Although appellant filed a motion to suppress, the State asserts that appellant subsequently waived any complaint regarding suppression.  We agree.  The record shows that appellant filed the motion and that the trial court held a pretrial hearing at which the parties merely stipulated to the evidence: the offense report and videotape.  The trial court subsequently entered an order denying the motion to suppress.  These actions would have preserved the suppression issue for review without further objection by appellant during the trial. At trial, however, when the State offered the items seized from appellant=s vehicle, defense counsel affirmatively stated, AI have no objection, Your Honor.@  The exhibits were admitted into evidence. 

The Court of Criminal Appeals has held in similar situations that the suppression issue was not preserved for review.  See Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992); Dean v. State, 749 S.W.2d 80, 82-83 (Tex. Crim. App. 1988); Harris v. State, 656 S.W.2d 481, 484 (Tex. Crim. App. 1983); McGrew v. State, 523 S.W.2d 679 (Tex. Crim. App. 1975).  When evidence is offered during trial and defense counsel affirmatively represents that the defendant has Ano objection@ to the evidence, any error in the admission of the evidence is waived even if the error had been previously preserved by a motion to suppress.  Moody, 827 S.W.2d at 889; Dean, 749 S.W.2d at 82-83; Harris, 656 S.W.2d at 484; McGrew, 523 S.W.2d at 680-81.  Because defense counsel affirmatively stated that he had no objection to the introduction of the evidence seized from his vehicle, we hold that appellant waived any error with respect to the admission of that evidence. Appellant=s first issue is overruled. 

                                                        Sufficiency of the Evidence

Standards of Review

In the next two issues, appellant challenges the legal and factual sufficiency of the evidence concerning his knowing possession of the methamphetamine.  In order to determine if the evidence is legally sufficient, we must review all of 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 crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000).  To determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light.  Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).  Then, we must determine whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence.  Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.  We must also give due deference to the jury=s determinations of fact, particularly those determinations concerning the weight and credibility of the evidence.  Johnson, 23 S.W.3d at 8-9. 

In cases involving unlawful possession of a controlled substance, the State must prove that the accused exercised care, custody, control, or management over the substance and that the accused knew that the matter possessed was contraband. Martin v. State, 753 S.W.2d 384 (Tex. Crim. App. 1988).  When the accused is not shown to have had exclusive possession of the place where the contraband was found, the evidence must affirmatively link the accused to the contraband.  Pollan v. State, 612 S.W.2d 594 (Tex. Crim. App. 1981).  The Court of Criminal Appeals has recently stated that the legal issue with respect to such Alinks@ is Awhether there was evidence of circumstances, in addition to mere presence, that would adequately justify the conclusion that the defendant knowingly possessed the substance.@ Evans v. State, 202 S.W.3d 158, 161-62 & n.9 (Tex. Crim. App. 2006).

Evidence Regarding Possession

The record in this case shows that appellant was stopped by Trooper Jimmy Willey because appellant=s vehicle had a defective tail lamp. During the traffic stop, Trooper Willey and his partner, Trooper Clint Cole, noticed sores on appellant=s arms that appeared to be sores related to the use of methamphetamine.  They also noticed these sores on appellant=s passenger, Phillip Glen Blankenship.  According to Trooper Cole, both occupants had burn marks around their mouths that were consistent with smoking a methamphetamine pipe.  Trooper Cole testified regarding the furtive gestures made by appellant and Blankenship after the stop was initiated.  According to Trooper Cole, both occupants= heads were bobbing around and appellant=s head disappeared from sight as he was reaching around in the vehicle.  Trooper Cole saw appellant reach across toward the passenger side of his vehicle. After stopping, appellant seemed nervous.

Trooper Willey asked appellant for permission to search the vehicle.  Appellant consented. Instead of performing a search immediately upon receiving appellant=s consent, the troopers called for a canine unit to perform a free air search around appellant=s vehicle.  After the drug dog alerted on both the driver=s door and the passenger=s door, Troopers Willey and Cole conducted a search of appellant=s vehicle.  From the driver=s side, Trooper Willey seized a plastic tube.  From the passenger=s side, Trooper Cole seized a homemade, glass methamphetamine pipe and a cut-off straw containing residue.  Appellant and Blankenship were arrested and charged with possession of a controlled substance.  The plastic tube, the pipe, and the straw were subsequently analyzed at the DPS lab. The pipe and the straw tested positive for methamphetamine in a trace amount, but the tube tested negative for contraband.

Trooper Cole testified that he found the pipe directly underneath the passenger seat. Trooper Cole saw the pipe in plain view after the passenger door was opened.  According to Trooper Cole, the pipe would have been in plain view of the passenger but not the driver.  The pipe was, however, within the driver=s reach.  The straw was seized from a pocket located toward the bottom of the passenger door. The straw would not have been visible to the driver.

After reviewing all of the evidence, we hold that the evidence is both legally and factually sufficient to support the jury=s verdict.  Although appellant was not in exclusive possession of the place where the contraband was found, the circumstances justify the jury=s conclusion that appellant exercised care, custody, control, or management over the substance and that he knew the matter possessed was contraband.  The evidence showed that the contraband was found in appellant=s vehicle, that appellant was driving the vehicle, that appellant seemed nervous, that appellant was making furtive gestures and reaching over to the passenger=s side of the vehicle where the contraband was found, and that the methamphetamine pipe was within appellant=s reach.  Based on this evidence linking appellant to the contraband, a rational jury could have found beyond a reasonable doubt that appellant knowingly possessed the contraband.  Furthermore, the evidence supporting the verdict is not so weak that the verdict is clearly wrong and manifestly unjust, nor is the verdict against the great weight and preponderance of the conflicting evidence  Appellant=s second and third issues are overruled. 

                                                               This Court=s Ruling

The judgment of the trial court is affirmed. 

TERRY McCALL

JUSTICE

April 5, 2007

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.