Raul Eugene Schillings v. State ( 2004 )

MARY'S OPINION HEADING

                                                                                    NO. 12-03-00069-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RAUL EUGENE SCHILLINGS,                      §                 APPEAL FROM THE 273RD

APPELLANT

V.                                                                         §                 JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE                                                        §                 SHELBY COUNTY, TEXAS

MEMORANDUM OPINION

            This is a probation revocation. On June 9, 2000, Raul Eugene Schillings (“Appellant”) pleaded guilty to an indictment charging him with the delivery of marijuana to a minor. The trial court assessed Appellant’s punishment at imprisonment for ten years but suspended the imposition of sentence and placed Appellant on community supervision for eight years. On November 15, 2002, the State moved to revoke Appellant’s probation. In its motion to revoke Appellant’s probation, the State alleged that he had violated the terms and conditions of his probation by intentionally or knowingly possessing (a) eighty-six pills of hydrocodone, a controlled substance, (b) marijuana in an amount of four ounces or less but more than two ounces, and (c) possessing a firearm while under community supervision following conviction of a felony.

            On January 31, 2003, the court granted the State’s motion and sentenced Appellant to imprisonment for ten years. In two issues, Appellant contends (1) the trial court abused its discretion in revoking his probation, and (2) that the trial court erred in admitting into evidence the confession of a co-defendant.

Background

            On November 8, 2002, officers from the Northeast Texas Narcotics Task Force and deputies from the Panola County Sheriff’s Department executed a search warrant on a residence in Panola County. Upon entering the house, they found Appellant, his girlfriend Lori Brown (“Brown”), and Brown’s four-year-old daughter in the living room. The officers arrested Appellant and Brown and placed them on the floor while another officer tried to calm the young daughter upset by the furor accompanying the officers’ entry. During the search of the house, the officers discovered eighty-six tablets in blister packets suspected of being hydrocodone, a controlled substance. A total of four ounces of marijuana was found in various locations within the house, consisting of blunt cigars, residue, loose marijuana, and partially smoked joints. The officers also found a pair of scales in the living room and a firearm elsewhere in the house. Some of the loose marijuana was located in Appellant’s coat in the living room, and some of the blunt cigars were found under Appellant where he lay in the living room. During the search, Appellant volunteered that all the “stuff” (presumably the narcotics) was his.

            Deputy Kevin Lake (“Deputy Lake”), an eleven-year veteran with the Panola County Sheriff’s Office, testified that he had seen Appellant mowing the yard at the residence. Brown admitted that she had accompanied Appellant to meet with his probation officer, and that she had told his probation officer that Appellant lived with her. She also said that the male clothing in the bedroom belonged to her estranged husband, and that Appellant stayed in a separate room. While in custody, Brown gave a written statement in which she stated that Appellant was selling marijuana, hydrocodone and vicodin tablets. She stated that the drugs found at her residence belonged to Appellant, but that she knew they were there and that she had recently smoked some of the marijuana and used some of the pills. Her statement was admitted over Appellant’s objection. On the advice of her counsel, she refused to answer the prosecutor’s questions directly concerning Appellant’s or her own role in the offense.

            Deputy Lake had received special training in narcotics interdiction and dealt with marijuana on a monthly basis. He identified the tablets seized as “suspected” hydrocodone tablets. After initially describing the loose marijuana as “suspected” marijuana “due to its sight and smell,” he testified, “I’m not a lab technician, but it is marijuana.” There was no evidence introduced of a laboratory analysis of the marijuana or the tablets.

Standard of Review

            In a probation revocation hearing, the State must establish the violation of the terms of community supervision by a preponderance of the evidence. Moreno v. State, 22 S.W.3d 482, 488 (Tex. Crim. App. 1999) (en banc). If the State has alleged several violations in its revocation motion, the revocation order is sufficient if only one violation is supported by a preponderance of the evidence. Ross v. State, 523 S.W.2d 402, 402 (Tex. Crim. App. 1975). When the State has sustained its burden of proving the allegation by a preponderance of the evidence, and no procedural obstacle is raised, the decision whether to revoke probation is within the discretion of the trial court. Flournoy v. State, 589 S.W.2d 705, 707 (Tex. Crim. App. 1979); Gordon v. State, 4 S.W.3d 32, 35 (Tex. App.–El Paso 1999, no pet.). Thus, the only question presented on appeal is whether the trial court abused its discretion in revoking appellant’s probation. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981); Gordon, 4 S.W.3d at 35.

            To prove drug possession, the State must show (1) that the defendant exercised care, custody, control, or management over the drugs, and (2) that the defendant knew that he possessed a controlled substance. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App 1995). When a defendant is not in exclusive possession or control of the place where the drugs were found, the State must affirmatively link the defendant with the drugs. Rodriguez v. State, 635 S.W.2d 522 (Tex. Crim. App. 1982). Circumstantial evidence relevant in establishing an “affirmative link” between the appellant and the contraband includes:

            (1)         appellant’s presence when the contraband was discovered;

              (2)         whether the contraband was in plain view;

              (3)         appellant’s proximity to and accessibility of the narcotic;

              (4)         whether the appellant was under the influence of narcotics when arrested;

              (5)         whether appellant possessed other contraband when arrested;

              (6)         whether appellant made incriminating statements when arrested;

              (7)         whether appellant attempted to flee;

              (8)         whether appellant made furtive gestures;

              (9)         whether there was an odor of the contraband;

            (10)           whether other contraband or drug paraphernalia was present;

            (11)           whether the place where the drugs were found was enclosed; and

               (12)        whether appellant owned or had the right to possess the place where the drugs were found.

Chavez v. State, 769 S.W.2d 284, 288-89 (Tex. App.–Houston [1st Dist.] 1989, pet. ref’d); Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.–Houston [14th Dist.] 2001, pet. ref’d). More than the defendant’s mere presence near the drugs is required, especially when several people are present or in possession of the place where the drugs were found. Villareal v. State, 865 S.W.2d 501, 503 (Tex. App.–Corpus Christi 1993, pet. ref’d). The totality of the circumstances must indicate the defendant’s knowledge and control over the drugs. See Brown, 911 S.W.2d at 48. The sufficiency of the evidence necessary to establish the possession of a firearm by a felon is analyzed under the same rules used in determining the sufficiency of the evidence in drug possession cases. See Young v. State, 752 S.W.2d 137, 140 (Tex. App.–Dallas 1988, pet. ref’d).

Abuse of Discretion

            In his first issue, Appellant insists first that the trial court abused its discretion in revoking his community supervision, because the State failed to affirmatively link him to the tablets, the marijuana, or the firearm. Appellant argues that no written evidence such as a lease agreement or utility bills connected him to the residence. There was no evidence that the clothes in the one bedroom where much of the marijuana was found belonged to Appellant. Brown testified that her estranged husband’s clothing was still in the house. There was absolutely no testimony regarding the firearm except that it was found in the residence.

            Brown told Appellant’s probation officer that Appellant lived with her. She testified that he lived there, but stayed in a separate bedroom. Deputy Lake, who lived in the vicinity, testified that he had seen Appellant mowing the yard and watering the plants, chores normally performed by residents.

            Although Appellant’s possession of the premises was not exclusive, the officers found loose marijuana in Appellant’s coat in the living room where it was located when they entered. They also discovered blunt cigars with the odor of marijuana under Appellant in the living room. Appellant volunteered that the “stuff” was his. Thus, Appellant was present when the contraband was discovered, he was very close to some of the contraband and he had ready access to it, he made an incriminating statement when arrested, and he had the right to jointly occupy the place where the drugs were. We conclude that these circumstances are sufficient links connecting Appellant to the suspected drugs seized at the residence. The State concedes that there was insufficient evidence connecting Appellant to the firearm found in the house.

            Next, Appellant argues that the State failed to prove that the items seized were controlled substances, but only produced evidence that the tablets were suspected hydrocodone and that what was alleged to be marijuana was “suspected marijuana.”

            An officer experienced in the recognition of marijuana is sufficiently qualified to express his opinion that a substance is in fact marijuana. Miller v. State, 168 Tex. Crim. 570, 330 S.W.2d 466, 468 (1959). In Miller, the officer testified that “he had been with the Narcotics Bureau of the Dallas Police Department for eighteen months and that he was acquainted with and had seen much marijuana and could recognize marijuana when he saw it.” Id. The court of criminal appeals held that “[t]he officer’s testimony was sufficient to show his qualifications to testify as an expert and the opinion expressed by him was sufficient to show that appellant did possess marijuana.” Id.

            Deputy Lake, an officer with many years of experience, special training in narcotics interdiction, and at the time of trial in charge of the narcotics canine unit, testified that he frequently dealt with marijuana. Regarding the seized substance, Deputy Lake told the court, “I’m not a lab technician, but it is marijuana.”

            Deputy Lake’s testimony that the substance taken from Appellant’s coat was marijuana and that the blunt cigars found under Appellant smelled like marijuana is sufficient to show that the substance possessed by Appellant was marijuana, a violation of a condition of his probation as alleged in the State’s motion to revoke. Proof by a preponderance of the evidence of any one alleged violation is sufficient to support an order revoking probation. O’Neil v. State, 623 S.W.2d 660, 661 (Tex. Crim. App. [Panel Op.] 1981). The trial court did not abuse its discretion, and Appellant’s first issue is overruled.

Lori Brown’s Confession

            In his second issue, Appellant maintains that the trial court erred in admitting into evidence Brown’s confession. Appellant contends that although the confession was partially self-inculpatory, the portions that refer to Appellant are self-serving in that they shift the blame to the Appellant as the primary actor. Appellant argues that the introduction of her confession over his objection, and her subsequent invocation of her Fifth Amendment privilege effectively denied him his Sixth Amendment right to confront and cross-examine the witness against him. We note, however, that Appellant cross-examined Brown and she answered all of the questions asked her by Appellant’s counsel.

            Further, even assuming the confession was inadmissible, it is presumed that the trial judge disregarded inadmissible evidence at a probation revocation hearing. Palafox v. State, 509 S.W.2d 846, 849 (Tex. Crim. App. 1974). The sufficiency is then determined from a review of the remainder of the evidence. Roberts v. State, 537 S.W.2d 461, 463 (Tex. Crim. App. 1976). In addressing Appellant’s first issue, we did not rely on evidence contained in Brown’s confession in concluding that Appellant possessed marijuana in violation of the terms and conditions of his community supervision. Appellant’s second issue is overruled.

Conclusion

            The evidence is sufficient to support the court’s order revoking community supervision; therefore no abuse of discretion is shown. The trial court’s judgment is affirmed.

                                                                                                    BILL BASS

                                                                                                            Justice

Opinion delivered May 28, 2004.

Panel consisted of Griffith, J., DeVasto, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(DO NOT PUBLISH)