Norton, Roland v. State ( 2006 )

Affirmed and Memorandum Opinions filed March 28, 2006

Affirmed and Memorandum Opinions filed March 28, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00871-CR

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ROLAND NORTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 983,159

M E M O R A N D U M  O P I N I O N

A jury convicted appellant, Roland Norton, of possession of a controlled substance, namely cocaine, weighing less than one gram.  See Tex. Health & Safety Code Ann. ' 481.102(3)(D) (Vernon Supp. 2005) & 481.115(b) (Vernon 2003).  The trial court assessed punishment at 18 months= confinement.  Appellant challenges his conviction in five points of error.  We affirm. 

Factual Background

On April 3, 2004, Officers De La Rosa and Kravetz, two undercover narcotics officers with the Houston Police Department, performed surveillance of a storefront in an area known  for drug activity.  While parked across the street in separate vehicles, the officers observed appellant drive into the parking lot.  Prior to appellant=s arrival, the officers observed a suspect make what may have been several drug transactions with other individuals.  When appellant arrived, the officers observed him park his vehicle and walk up to the suspect.  The two men spoke briefly, and then appellant went into the convenience store. While appellant was in the store, Officer Kravetz saw the suspect spit something out of his mouth into his hand.^[1]  When appellant returned, Officer De La Rosa observed the two men make a hand to hand exchange, and then appellant returned to his vehicle and drove away.

Officer De La Rosa informed Officer Kravetz about the hand to hand exchange, and Officer Kravetz followed appellant in his unmarked vehicle.  Officer Kravetz observed appellant run two red lights, so he radioed for a marked police vehicle to stop appellant for the traffic violations.  When the officer in the marked police vehicle stopped appellant, appellant pulled into the driveway of his apartment complex, blocking the entrance.  Officer Kravetz then arrested appellant for running the two red lights and began an inventory search of appellant=s vehicle.

When searching the front driver=s side, Officer Kravetz found a folded white piece of paper sticking up between the right side of the driver=s seat and the center console.  He pulled out the paper, felt a Abump,@ and opened the paper to find five rocks individually wrapped in plastic, which later tested positive for cocaine.  Officer Kravetz asked appellant if he preferred his vehicle to be towed and impounded or parked in the parking lot.  Appellant preferred his vehicle to be parked in the parking lot in his personal parking space, and Officer Kravetz complied with the request.

Discussion

In five points of error, appellant challenges his conviction.  Appellant contends (1) the trial court erred in overruling appellant=s motion to suppress the cocaine; (2) the trial court erred in allowing the State=s chemist to testify; (3) the trial court erred by not allowing testimony from a defense witness about appellant=s history of not using cocaine; and (4) the evidence is legally and factually insufficient to support the conviction. 

I. Motion to Suppress

In his first point of error, appellant contends the trial court erred when it denied his motion to suppress the cocaine found in his vehicle.^[2]  We review the trial court=s ruling on a motion to suppress evidence under an abuse of discretion standard. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).  We will not overturn a trial court=s ruling on a motion to suppress if the record supports the ruling.  Hill v. State, 902 S.W.2d 57, 59 (Tex. App.CHouston [1st Dist.] 1995, pet. ref=d).  At a suppression hearing, the trial judge is the sole finder of facts.  Arnold v. State, 873 S.W.2d 27, 34 (Tex. Crim. App. 1993); Hill, 902 S.W.2d at 59.  We give almost total deference to the trial court=s determination of historical facts that the record supports, especially when the trial court=s findings turn on evaluating a witness=s credibility and demeanor.  State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).  We give the same amount of deference to the trial court=s ruling on mixed questions of law and fact if the question is resolved by evaluating credibility and demeanor.  Id. at 856.  We consider de novo issues that are purely questions of law.  Id.  If the trial court=s ruling is reasonably supported by the record and is correct on any theory of law applicable to the case, the reviewing court will sustain it upon review.  Villarreal, 935 S.W.2d at 138.  In the present case, the trial court did not make explicit findings of historical facts.  We, therefore, review the evidence in a light most favorable to the trial court=s ruling.  Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).  We review de novo the lower court=s application of the relevant Fourth Amendment standards.  Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).

Police pulled over appellant and arrested him for running two red lights. Appellant stopped his vehicle in the driveway to his apartment complex.  Officer Kravetz testified the vehicle needed to be moved out of the driveway, so he conducted an inventory search of the vehicle.  During the inventory search, Officer Kravetz found five rocks of a substance later found to be crack cocaine in between the right side of the driver=s seat and the center console.  Officer Kravetz then testified that, after he finished the inventory search, he asked appellant whether appellant wished the vehicle to be towed or parked inside the parking lot.  Appellant wanted the vehicle parked in the parking lot in his personal parking space. Appellant contends the inventory search of his vehicle was unreasonable under the Fourth Amendment because his car was left at his apartment complex and not impounded. 

An inventory search is permissible if conducted pursuant to a lawful impoundment.  See South Dakota v. Opperman, 428 U.S. 364, 372, 96 S. Ct. 3092, 3098B99 (1976).  The first issue we must decide is whether appellant=s vehicle was properly impounded.  See Benavides v. State, 600 S.W.2d 809, 810 (Tex. Crim. App. 1980).  Reasonable cause for impoundment exists when a vehicle is illegally parked or otherwise impeding other traffic.  Opperman, 428 U.S. at 368B69, 96 S. Ct. at 3097; Benavides, 600 S.W.2d at 811.  Inventory searches are conducted to protect the arrestee=s property and the police from claims of theft. Opperman, 428 U.S. at 374, 96 S. Ct. at 3099. 

Inventory searches conducted pursuant to established departmental policy will generally be constitutional.  See Moberg v. State, 810 S.W.2d 190, 195 (Tex. Crim. App. 1991); Josey v. State, 981 S.W.2d 831, 843 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d).  A warrantless search of a vehicle becomes permissible if the inventory search is part of the routine administrative care taking function of the police and is not a pretext for an investigatory motive.  State v. Garcia, 801 S.W.2d 137, 140 (Tex. App.CSan Antonio 1990, pet. ref=d).  Furthermore, these rules do not prohibit police discretion made according to standardized criteria based on something other than suspicion of criminal activity.  Colorado v. Bertine, 479 U.S. 367, 375, 107 S. Ct. 738, 743 (1987) (holding policy giving police discretion to safely park a vehicle rather than impound a vehicle does not make an inventory search unconstitutional under the Fourth Amendment). 

In the case at hand, Officer Kravetz arrested appellant and initiated impoundment procedures because appellant=s vehicle was blocking the entrance to appellant=s apartment complex.  After conducting the inventory search and finding the cocaine in question, Officer Kravetz asked appellant if he would rather have the vehicle towed or parked.  Appellant argues Officer Kravetz should have asked appellant whether to park the car in the apartment complex before conducting the inventory search.  We disagree.  Police are not required to offer the arrestee the option of making special arrangements for the vehicle.  Garcia, 801 S.W.2d at 140B41 (citing Bertine, 479 U.S. at 373B74, 107 S. Ct. at 742).  Nor does it make a difference that an inventory search is conducted prior to the time when an automobile may be towed.  Daniels v. State, 600 S.W.2d 813, 815 (Tex. Crim. App. 1980).  Here, because appellant was under arrest, and appellant=s detention would involve taking him to the police station and booking him, leaving the car without a driver, the officer appropriately took measures to protect the vehicle.  See Josey, 981 S.W.2d at 842.  Even if appellant wanted the vehicle parked rather than towed, Officer Kravetz parked the vehicle himself, and to do so, he took custody of the vehicle.  Conducting an inventory search prior to driving the vehicle was a reasonable way to effectively carry out the officer=s care taking function.  See Perez v. State, 103 S.W.3d 466, 468 (Tex. App.CSan Antonio 2003, no pet.) (holding officer used his discretion by permitting arrestee=s vehicle to be parked and locked rather than impounded because the vehicle was lawfully in police custody).  We overrule appellant=s first point of error.

II. Chemist=s Expert Testimony

In his second point of error, appellant contends the trial court erred when admitting the testimony of Houston Police Department chemist, Betsy Mannankara.  Specifically, appellant argues the State never properly qualified Mannankara as an expert qualified to testify about the chemical composition of the substance found in appellant=s vehicle.  Appellant argues Mannankara is not qualified as an expert because she did not take Aadvanced@ chemistry classes in college.  According to Mannankara=s testimony, during college, she took introductory level chemistry and organic biochemistry, and she completed a research project in biochemistry and worked in the biochemistry lab as an assistant.  She also testified Texas A&M did not offer any other advanced chemistry classes while she attended.  The State argues Mannankara=s overall resume qualifies her as an expert to testify about the chemical composition of a controlled substance.  Specifically, she has a bachelor=s degree in biology, she has more than six months of training from the Houston Police Department (AHPD@), she attended at least three seminars while working for HPD, she has 40 hours of training with the Drug Enforcement Administration, and she has 18 months of work experience with HPD as a criminologist.  

We review the trial court=s decision to admit scientific expert testimony under an abuse of discretion standard.  Sexton v. State, 93 S.W.3d 96, 99 (Tex. Crim. App. 2002).  If the trial court=s decision is within the zone of reasonable disagreement, the trial cout=s ruling will be upheld.  Id. The admission of expert testimony is governed by Rule 702 of the Texas Rules of Evidence.  Tex. R. Evid. 702; Winston v. State, 78 S.W.3d 522, 525 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d).  A witness may be qualified as an expert on a particular matter through a variety of methods, including knowledge, skill, experience, training, or education.  See Carter v. State, 5 S.W.3d 316, 319 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).  A witness=s expertise must be measured against the actual subject matter about which the expert is offering an opinion.  Roise v. State, 7 S.W.3d 225, 234 (Tex. App.CAustin 1999, pet. ref=d). 

Even if Mannankara=s chemistry training in college does not qualify her as an expert to testify about the chemical composition of the substance found in appellant=s car, her other training since graduation may qualify her.  Special knowledge, which qualifies a witness to give expert testimony, can be derived from specialized education, practical experience, a study of technical works, or a combination thereof.  Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000).  Witnesses may also be qualified on experience alone.  Carter, 5 S.W.3d at 319B20.  The expert=s special knowledge should indicate to the trial court that the expert=s testimony will assist the jury in making inferences regarding fact issues more effectively than the jury could do unaided by such opinion.  Thomas v. State, 915 S.W.2d 597, 600 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d). 

Since joining HPD, Mannankara received specific training to test the chemical composition of controlled substances, she must pass an annual proficiency exam to remain qualified to do her job, and as she testified, for 18 months prior to testifying in this case, she used her training approximately eight to nine times per day, which amounts to over 3,000 times by the time she testified.  She had also testified on prior occasions in similar matters as an expert. Mannankara clearly does not have an overwhelming amount of education in testing the chemical composition of alleged controlled substances; however, that is her primary responsibility for HPD, and she has testified as an expert in this area before.  Based on the evidence about her overall training and experience and the subject matter about which she offered an opinion, the trial court did not abuse its discretion in permitting Mannankara to testify about the chemical composition of the substance found in appellant=s vehicle.  We overrule appellant=s second point of error. 

III. Character Evidence

In his third point of error, appellant contends the trial court abused its discretion when it prohibited character evidence offered by appellant. Specifically, appellant sought to elicit testimony from appellant=s girlfriend that he did not use cocaine as evidence tending to prove he would not have possessed the cocaine.  Appellant=s defense at trial was that no contraband was ever found in his vehicle by police, and police must have planted it there.  In support of this defense, appellant provided one witness who testified he never saw the police remove anything from appellant=s vehicle, even though the witness admittedly only witnessed a portion of the events which occurred in front of appellant=s apartment complex.

We review the trial court=s decision to admit evidence under an abuse of discretion standard.  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).  If the trial court=s decision is within the zone of reasonable disagreement, the trial court=s ruling will be upheld.  Id. An accused in a criminal case may introduce evidence of a pertinent good character trait to prove action in conformity with that trait.  Tex. R. Evid. 404(a)(1)(A); Valdez v. State, 2 S.W.3d 518, 519 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).  Proof of such good character may be made through reputation or opinion testimony. Tex. R. Evid. 405(a); Valdez, 2 S.W.3d at 519.  Specific instances of conduct may only be admissible if the character trait is an essential element of the crime charged.  Tex. R. Evid. 405(b); Biagas v. State, 177 S.W.3d 161, 175 (Tex. App.CHouston [1st Dist.] 2005, pet. ref=d). 

Drug use is not an essential element of the crime of possession of a controlled substance.  Appellant may not, therefore, use specific instances of drug use; rather, he may only use reputation or opinion testimony to prove his good character.  The testimony of appellant=s girlfriend was not being offered in the form of reputation or opinion testimony.  Thus, the testimony about past drug use was inadmissible character evidence. 

Appellant argues this case is similar to Wade v. State, where the court held evidence of the accused=s history of never possessing drugs in the past in a prosecution for possession was a pertinent character trait and an essential element of appellant=s charged crime.  See 803 S.W.2d 806, 808  (Tex. App.CFort Worth 1991, no pet.).  Appellant contends Wade is directly on point because it stands for the proposition that non-use of drugs is admissible in a possession case. The court in Wade, however, decided the issue on the history of drug possession, not the history of drug use. See id. (reciting the record where defendant=s counsel asked a witness about whether the defendant ever talked about drug users, holding that question does not go to defendant=s character, and further holding drug possession is a pertinent character trait for a possession case).  The facts in Wade are distinguishable from the facts here because appellant=s witness would have testified about drug use, not drug possession. 

In another case, the Fort Worth court of appeals similarly held evidence of the use or sale of drugs was a pertinent character trait and an essential element of a defense when the crime charged was possession of a controlled substance.  See Brazelton v. State, 947 S.W.2d 644, 650 (Tex. App.CFort Worth 1997, no pet.).  In Brazelton, the defendant was charged with possession of a controlled substance, and the defense was necessity.  Id. at 646.  The court found the specific conduct of never using or selling drugs was an essential element of the defendant=s necessity defense.  Id. at 650.  Brazelton is also distinguishable from the facts of this case because appellant never sought or received any defensive instruction requiring proof of the specific conduct of non-use of drugs. 

We hold the trial court did not abuse its discretion when prohibiting appellant=s witness from testifying about defendant=s non-drug use.  Accordingly, we overrule appellant=s third point of error.                        

IV. Legal and Factual Sufficiency

In his fourth and fifth points of error, appellant contends the State failed to affirmatively link appellant to the substance analyzed by the chemist, Mannankara.  Specifically, appellant argues the discrepancies in Mannankara=s and Officer Kravetz=s testimony fail to prove the substance allegedly found by Officer Kravetz is the same substance analyzed by Mannankara. Officer Kravetz testified he found individually wrapped rocks and Mannankara testified she analyzed rocks taken from separate containers.  The State argues the chain of custody was established and the difference in language by the witnesses was not an issue at trial because Mannankara clarified what she meant by Acontainers:@ she meant the plastic wrapping around each of the rocks. 

In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005).  The jury, as the sole judge of the credibility of the witnesses, chooses whether or not to believe all or part of a witness=s testimony.  See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision.  Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). Thus, if there is evidence establishing guilt beyond a reasonable doubt, we are not authorized to reverse the judgment on sufficiency of the evidence grounds.

In a factual sufficiency review, we consider all the evidence in a neutral light and determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).  The evidence may be factually insufficient in two ways.  Id.  First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt.  Id.  Second, when the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable doubt standard could not have been met.  Id. at 484B85.  Our evaluation of the evidence should not intrude upon the fact-finder=s role as the sole judge of the weight and credibility of the evidence.  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  In conducting a factual sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). 

When an accused is charged with possession of a controlled substance, the State must prove: (1) the defendant exercised actual care, custody, control, or management over the contraband, and (2) the defendant knew the object he possessed was contraband.  See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Linton v. State, 15 S.W.3d 615, 618 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  Evidence may be direct or circumstantial, and it must establish the accused=s connection to the contraband was more than just fortuitous.  Brown, 911 S.W.2d at 747.  Further, proof at the beginning and end of the chain of custody will support admission of evidence barring a showing of tampering or alteration.  Stoker v. State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989), disapproved of on other grounds by Leday v. State, 983 S.W.2d 713, 716 n.2 (Tex. Crim. App. 1998); Durrett v. State, 36 S.W.3d 205, 208 (Tex. App.CHouston [14th Dist.] 2001, no pet.).  Any gaps in the chain go to the weight of the evidence rather than to its admissibility.  Durrett, 36 S.W.3d at 208.  Conflicting testimony about the type of container in which the drugs are placed or found does not amount to a break in the chain of custody.  Stoker, 788 S.W.2d at 10. 

Officer Kravetz testified he maintained custody of the contraband once he found it in appellant=s vehicle.  Once he returned to the office, he weighed the contraband, tagged it in an envelope, and placed it in a locked narcotics box.  Mannankara did not testify she retrieved the envelope from the lock box, but she identified her lab number and initials were on the same envelope previously identified at trial by Officer Kravetz, and she testified she delivered that envelope to Officer Kravetz on the day of trial.  Mannankara also testified she cut open the five rocks from individually wrapped pieces of plastic to test them and those individually wrapped pieces of plastic are what she would have termed Acontainers@ in her report.  Based on the testimony from Officer Kravetz and Mannankara, appellant has not established a break in the chain of custody that would go to the admissibility of the evidence.  Furthermore, appellant did not provide evidence of tampering or alteration.

Appellant also contends his neighbor=s testimony about not seeing the police retrieve anything from appellant=s vehicle makes the evidence insufficient to support his conviction.  The jury is the sole judge of the credibility of this witness=s testimony, and it may choose whether or not to believe any part of it.  See Moreno, 755 S.W.2d at 867.  Having found against appellant, the jury either did not believe this witness=s testimony or even believed all of it, but also believed the witness did not see all the events that occurred in front of appellant=s apartment complex.  We will not second guess the jury=s evaluation of this testimony. 

Viewing all the evidence in the light most favorable to the verdict, we find a rational trier of fact could have found appellant intentionally or knowingly possessed the cocaine found in his vehicle.  Therefore, the evidence is legally sufficient to find appellant guilty of possession of a controlled substance.  We overrule appellant=s fourth point of error.  Viewing the same evidence in a neutral light, we conclude the evidence supporting the verdict was not too weak to support the verdict beyond a reasonable doubt, and the contrary evidence was not so strong that the beyond-a-reasonable-doubt standard could not have been met.  Therefore, the evidence is factually sufficient to find appellant guilty of possession of a controlled substance.  We overrule appellant=s fifth point of error.

Conclusion

Having considered and overruled each of appellant=s five points of error, we affirm the judgment of the trial court.                             

/s/         John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed March 28, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson (Yates, J. concurs in result only).

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Officer Kravetz testified many drug dealers keep the drugs they are selling in their mouth wrapped in small pieces of plastic before selling it.  If the police show up, the drug dealer swallows the drugs and will later pass the plastic-wrapped drugs through their body before the plastic dissolves and exposes them to a large quantity of drugs. 

^[2]  The State argues appellant waived appellate review of this issue because appellant=s trial attorney said, ANo objection@ when the cocaine was admitted at trial.  The State, however, takes this statement out of context.  Defense counsel did say, ANo objection,@ but when reading this entire section of the record, appellant=s counsel was merely clarifying his decision to delay objecting to the admission of the evidence until the prosecutor finished laying the chain of custody predicate.  Once that predicate was laid, appellant=s counsel promptly objected to the admission of the cocaine and preserved this issue for appellate review.