Percy Lafayette Green v. State ( 2004 )

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Opinion December 23, 2004



In The

Court of Appeals

For The

First District of Texas

NO. 01-03-01070-CR

PERCEY LAFAYETTE GREEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 936132

MEMORANDUM OPINION

          A jury found appellant, Percey Lafayette Green, guilty of possession of between four and two hundred grams of cocaine, and the trial court assessed punishment at fifteen years’ confinement. We affirm.

Background

          On January 14, 2003, Houston Police Officers Jose Estrada and Rick Kennedy observed Green in a “high crime area,” parked in a car with a known prostitute, in a hotel parking lot known for narcotic and prostitution activity. Officer Estrada testified that Green made eye contact with him, dropped his hand, as though reaching for a weapon, and jumped out the car. Fearing for his safety, Estrada reached for his gun and told Green to take his hands out of his pockets and go back inside the car. Green remained in the car while Officer Kennedy spoke with the prostitute. The prostitute told Officer Kennedy that Green was her “prostitution trick,” who wanted to have sex with her.

          While inside the car, Green had his hands on the steering wheel, but then dropped his hands to “his lap area, around the seat.” Officer Estrada testified that he felt threatened by Green’s actions. Estrada instructed Green to get out of the car and asked if Green had anything harmful in his pockets. Green responded, “Yeah, I’ve got some dope in my pocket.” Estrada reached into Green’s pocket and pulled out a “cookie” of crack cocaine. The officers asked Green if he had any more drugs, and Green responded that he had more drugs inside the ashtray of the car. The officers recovered another “chunk of crack cocaine” from the ashtray. The officers arrested Green and read him his rights.

          Officer Estrada ran next door to get the patrol car. While Officer Kennedy waited at the scene, the prostitute told Kennedy that there were drugs in Green’s hotel room. Kennedy asked Green for permission to search his hotel room. Green agreed orally and in writing. When Officer Estrada returned, the officers escorted Green to his hotel room. Upon entering the room, the officers observed two women inside. The officers found twenty rocks of cocaine, marijuana, razors with white residue, crack pipes, cigarette rolling papers, and weighing scales.

          On appeal, Green contends that the trial court erred in granting his appointed counsel’s motion to withdraw; the trial court erred in denying his motion to suppress the cocaine found in the hotel room; and the evidence is legally and factually insufficient to affirmatively link him to the cocaine found in the hotel room.

Right to Counsel

          Green contends that the trial court erred in granting his appointed counsel’s motion to withdraw and in appointing a new trial counsel. The State originally charged Green with possession of between four and two hundred grams of cocaine, a second degree felony. Tex. Health & Safety Code Ann. §§ 481.115(d) (Offense: Possession of Substance in Penalty Group 1), 481.102(3)(D) (Penalty Group 1) (Vernon 2003 & Supp. 2004-2005). The trial court determined that Green was indigent and appointed Mary Acosta to represent him. The State later re-indicted Green with possession of between four and two hundred grams of cocaine with intent to deliver, a first degree felony. Tex. Health & Safety Code Ann. §§ 481.112(d) (Offense: Manufacture or Delivery of Substance in Penalty Group 1), 481.102(3)(D) (Penalty Group 1) (Vernon 2003 & Supp. 2004-2005). Acosta thereafter moved to withdraw as attorney of record, stating the basis for her withdrawal: “per certification requirements—case re-indicted to 1st degree.” The trial court granted Acosta’s motion to dismiss and appointed Layton Duer as new counsel.

          Green filed a pro se motion to dismiss Duer, asserting that Green could not “place his trust” in Duer. Without providing a basis for his contention, Green further asserted that Duer did not provide effective assistance of counsel. The trial court denied Green’s motion. During a pretrial hearing, Green again voiced his concerns about Duer, stating that Duer “has not worked for me.” The trial court explained that it removed Acosta as Green’s first appointed counsel because Acosta “is not licensed to represent” Green for the first degree felony charge. Green orally moved to dismiss Duer, and the trial court denied Green’s motion.

          A trial court has discretion to determine whether counsel should be allowed to withdraw from a case. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). An indigent defendant’s right to counsel does not compel the trial court to appoint a counsel agreeable to the accused. Id. Personality conflicts and disagreements concerning trial strategy typically are not valid grounds for withdrawal. Id. A defendant does not have the right to his own choice of appointed counsel, and unless he waives his right to counsel and chooses to represent himself, or shows adequate reason for the appointment of new counsel, he must accept the counsel appointed by the court. Garner v. State, 864 S.W.2d 92, 98 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d).

          Harris County has a “countywide alternative program” for appointing counsel for indigent defendants, stating that attorneys must “meet specified objective qualifications, which may be graduated according to the degree of seriousness of the offense, for providing representation in felony cases.” Tex. Code Crim. Proc. Ann. art. 26.04 (g)(2)(B)(1) (Vernon 1989) (Procedures for Appointing Counsel). The trial court stated its reason for granting Acosta’s motion to withdraw as counsel—Acosta was “not licensed,” i.e., not qualified to represent an indigent defendant charged with a first degree felony.

          Green cites Buntion v. Harmon, for the proposition that a trial court may not substitute counsel based solely on the court’s preference or practice. 827 S.W.2d 945, 949 (Tex. Crim. App. 1992). In Buntion, the Court of Criminal Appeals held that a trial court erred in arbitrarily replacing an appointed counsel, over the objections of both counsel and the defendant. Id. The court held that a principled reason, apparent from the record, must exist to justify a trial court’s sua sponte replacement of appointed counsel. Id. Buntion is distinguishable from this case because a principled reason apparent from the record exists to justify the trial court’s removal of Acosta. The record reflects that the trial court removed Acosta, based on her request to withdraw, because she was not approved to represent an indigent defendant charged with a first degree felony. We hold that the trial court did not err in granting Acosta’s motion to withdraw as counsel and in appointing new trial counsel.

Motion to Suppress

          Green contends that the trial court erred in denying his motion to suppress the cocaine found in his hotel room because his consent to search was a product of an unlawful detention. In reviewing a trial court’s ruling on a motion to suppress, we apply the bifurcated standard of review articulated in Guzman v. State, 955 S.W.2d 85, 87-89 (Tex. Crim. App. 1997). If the issue involves the credibility of a witness, we defer to a trial court’s ruling, as a trial court is in a better position to evaluate the credibility of witnesses before it. Id. If the trial court is called upon to apply the law to the facts, and the ultimate resolution of the issue does not turn on an evaluation of credibility and demeanor of a witness, we review that issue de novo. Id. at 89.

          Green neither objected at trial nor asserts on appeal that his consent was involuntary. Instead, Green focuses on whether his detention was lawful. A police officer may stop and briefly detain a person when the officer has a “reasonable suspicion” that criminal activity “may be afoot,” even if the officer lacks probable cause. Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997) (quoting Terry v. Ohio, 392 U.S. 1, 29, 88 S. Ct. 1868, 1884 (1968)). In reviewing the officer’s reasonable-suspicion determination, we look at the “totality of the circumstances” to decide whether the officer had a “particularized and objective basis” for suspecting legal wrongdoing. United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981); see also Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). Where the initial detention is unlawful, any evidence seized subsequent to such a detention is inadmissible. Gurrola v. State, 877 S.W.2d 300, 302 (Tex. Crim. App. 1994).

          Here, the officers testified that they observed Green in a high crime area, known for narcotics and prostitution. We recognize that mere presence in a known high crime area alone is not a basis for an investigative stop. See id. at 303. The officers also testified, however, that Green was in a car with a known prostitute. See Acosta v. State 868 S.W.2d 19, 21 (Tex. App.—Austin 1993, no pet.) (holding that officer’s knowledge of prostitute’s background supports reasonable suspicion for investigative stop). Officer Estrada testified that Green made eye contact with him, and dropped his hand, as though reaching for a weapon. See Crooks v. State, 821 S.W.2d 666, 669 (Tex. App.—Houston [14th Dist.] 1991, no pet.) (holding that defendant’s nervous gestures, such as “ducking down in his seat and acting “nervous and jittery,” in high crime area support reasonable suspicion for investigative detention). Estrada testified that Green “jumped out of the car, literally trying to get away from the car.” See Reyes v. State, 899 S.W.2d 319, 325 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d) (holding that flight from authority supports reasonable suspicion for investigative detention). Estrada testified that he feared for his safety and felt “threatened” by Green’s actions.

          Green testified that the officers never asked him about the cocaine. He testified that the officer pointed his gun at Green, told Green to get out of the car, handcuffed him, and then searched his pockets. The officers testified, however, that Green volunteered that he had dope in his pocket. We defer to the trial court because it is in a better position to evaluate the credibility of witnesses. See Guzman, 955 S.W.2d at 87-89. The trial court was free to believe the officers and disbelieve Green.

          We conclude the facts established at the motion to suppress hearing are sufficient for an investigative detention. Parham v. State, 76 S.W.3d 60, 64 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d). Considering the totality of the circumstances, we conclude that these facts, and the rational inferences from these facts, create a reasonable suspicion for a lawful detention. See id. We hold that the trial court did not err in denying the motion to suppress the cocaine found in the hotel room. See id.

Affirmative Links

          Green contends that the evidence is legally and factually insufficient to affirmatively link him to the cocaine located in his hotel room. 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 offense beyond a reasonable doubt. King, 29 S.W.3d at 562. We may not substitute our judgment for that of the fact finder. Id. In our review of the factual sufficiency of the evidence, we view all of the evidence neutrally, and we ask 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 whether the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004). Although our analysis considers all the evidence presented at trial, the trier of fact is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

          A person commits the offense of possession of a controlled substance if he knowingly or intentionally possesses a controlled substance, including cocaine. Tex. Health & Safety Code Ann. §§ 481.115(a) (Offense: Possession of Substance in Penalty Group 1), 481.102(3)(D) (Penalty Group 1) (Vernon 2003 & Supp. 2004-2005). To establish the unlawful possession of a controlled substance, the State must show that a defendant (1) exercised care, custody, control, or management over the controlled substance, and (2) knew that he possessed a controlled substance. See King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). The State may prove that a defendant knowingly possessed contraband by offering circumstantial evidence affirmatively linking him to the contraband. Brown v. State, 911 S.W.2d 744, 746-48 (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).

          We consider the following factors to establish affirmative links:

(1) the defendant’s presence when the search was executed;

(2) whether the narcotics were in plain view;

(3) the defendant’s proximity to and accessibility of the narcotics;

(4) whether the defendant was 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 an 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 were found; and

(12) whether the narcotics were found in an enclosed place.

Williams v. State, 859 S.W.2d 99, 101 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d); Chavez v. State, 769 S.W.2d 284, 288-89 (Tex. App.—Houston [1st Dist.] 1989, pet. ref’d). Despite this list of factors, no set formula exists; rather, the totality of the circumstances establishes affirmative links. Sosa v. State, 845 S.W.2d 479, 483 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d).

          The officers found cocaine in Green’s hotel room. It is undisputed that the hotel room belonged to Green. Green contends that any ownership rights in the hotel room are insufficient to support his possession of the cocaine because two females were present in the room during the search. Green cites Guiton v. State, which held, “The fact that a defendant has rented the premises upon which narcotics are found, if also occupied by others, is not usually sufficient in and of itself to justify a finding of joint possession.” 742 S.W.2d 5, 8 (Tex. Crim. App. 1987) (holding evidence insufficient to support conviction). As in Guiton, we must look for “additional independent facts and circumstances” affirmatively linking the accused to the contraband. Id.

          In addition to Green’s undisputed ownership of the hotel room, additional independent facts and circumstances affirmatively link Green to the cocaine. Officer Kennedy testified that he found “the majority” of the drugs on the bed; therefore, it appears from the record that the drugs were in plain view. Green possessed other narcotics when the officers arrested him. The officers found cocaine in Green’s pocket and in his car ashtray. The officers also found other narcotics and narcotics paraphernalia in the hotel room, such as marijuana, razors with white residue, crack pipes, cigarette rolling papers, and weighing scales. Moreover, the quantity of contraband found is a factor in determining affirmative links. Roberson v. State, 80 S.W.3d 730, 740 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (considering twenty four grams of cocaine in determining affirmative links). Here, the officers found twenty cocaine rocks, referred to as “$5 rocks,” in the hotel room. Viewing this evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that Green knowingly and intentionally possessed the cocaine. We therefore hold that the evidence is legally sufficient to affirmatively link Green to the cocaine found in the hotel room.

          With regard to factual sufficiency, we review all the evidence neutrally. Green contends on appeal that the evidence is factually insufficient because others were present in the hotel room. Green did not testify during the guilt/innocence phase. Green’s testimony at the motion to suppress hearing centered on the detention. He did not testify about the narcotics found at the hotel room, although he admitted that he owned the hotel room. Viewing all of the evidence neutrally, the proof of guilt is not greatly outweighed by the fact that others were present in the hotel room. We therefore hold that the evidence is factually sufficient to affirmatively link Green to the cocaine found in the hotel room.

Conclusion

          We affirm the judgment of the trial court.

                                                             Jane Bland

                                                             Justice

Panel consists of Justices Taft, Jennings, and Bland.

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