Eugene Jelks, Jr. v. State ( 2008 )

Motion for Rehearing Overruled

Motion for Rehearing Overruled.  Affirmed and Substitute Memorandum Opinion on Rehearing filed December 4, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00295-CR

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EUGENE JELKS, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1057145

M E M O R A N D U M   O P I N I O N   O N   R E H E A R I N G

Appellant=s Motion for Rehearing is overruled.  The opinion issued October 16, 2008 is withdrawn and the following opinion is substituted therefor.  Appellant entered a plea of not guilty to the offense of possession of a controlled substance with intent to deliver.  He was convicted, and the jury assessed punishment, enhanced by two prior convictions, at 30 years= confinement in the Institutional Division of the Texas Department of Criminal Justice.  In two issues, he contends that (1) the evidence was factually insufficient to support his conviction, and (2) the trial court erred in denying his motion to suppress.  We affirm.

I.  Background

On February 9, 2006, Deputy M.D. Mehring of the Harris County Sheriff=s Department stopped a vehicle for failure to signal turning from a major roadway into a private driveway.  There were two people in the vehicle.  Because Deputy Mehring was riding alone, he called for back-up officers.  When Mehring ran a computer check of the driver, he found she had open arrest warrants.  While waiting for confirmation of the warrants, the back-up officers arrived.  The back-up officers were Deputies VanDine and Rocabado of the Harris County Sheriff=s Department.^[1] Appellant was the passenger in the vehicle.

When Deputy VanDine arrived at the location of the traffic stop, he approached appellant and asked to see his driver=s license. VanDine explained that because the driver had outstanding warrants, the vehicle would be released to the passenger if he had a valid driver=s license. VanDine noted that appellant was looking at him and Deputy Rocabado with a scared, nervous expression.  He and Rocabado noticed that, despite the cool weather, appellant was sweating, shaking nervously, and moving around in the passenger seat.  Because of appellant=s behavior, VanDine explained that it is routine to ask the individual to step out of the car so that he can be frisked for weapons. 

While checking for weapons, VanDine felt something hard, round, and narrow between appellant=s buttocks. VanDine testified that whenever he placed his hand on the object, appellant turned and attempted to move away from VanDine.  A computer check on appellant=s driver=s license revealed two outstanding warrants.  Because of the outstanding warrants, VanDine handcuffed appellant with his hands behind his back and placed him in the back seat of the patrol car behind the passenger seat.^[2] Deputy Rocabado was seated in the passenger seat during the drive to the Humble city jail.  She testified that during the ride to the jail, appellant twisted and turned in his seat and kicked the bottom of her seat.  Upon arrival, the patrol car was parked and locked in a sally port, and appellant was immediately taken to the jail where he was strip-searched.  The deputies performing the search did not find the object felt by VanDine at the scene, so they searched the patrol car, which was still parked in the sally port.  While searching the car, they found an item under the front passenger seat, which was later identified as a cocaine cookie weighing 27.25 grams.

Both Rocabado and VanDine testified that prior to leaving on patrol that day they had thoroughly searched the patrol car.  Earlier in the day, while off duty, VanDine had thoroughly cleaned the car, including detailing the interior.  VanDine routinely checks his patrol car prior to leaving on patrol to ensure that if anyone left anything in the car he could identify the item=s owner.  VanDine was Rocabado=s supervisor during her training, so he instructed her to thoroughly search the car before they left on patrol that day.  After Rocabado searched the car, VanDine double-checked her search.  Both deputies found nothing in the car prior to leaving on patrol that day.  Further, no one else had been in the patrol car until appellant was arrested.

Appellant was subsequently indicted for the offense of possession of a controlled substance with intent to deliver.  His first trial in October, 2006 ended in a mistrial.  After a second trial, he was convicted, and the jury assessed punishment at 30 years= confinement.

II.  Factual Sufficiency

In his first issue, appellant contends the evidence is factually insufficient to support his conviction for possession with intent to deliver. 

A. Standard of Review

In a factual sufficiency review, we review all of the evidence in a neutral light, favoring neither party.  Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006).  We then ask whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the jury=s verdict seems clearly wrong and manifestly unjust, or  whether, considering conflicting evidence, the jury=s verdict is against the great weight and preponderance of the evidence.  Id.; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  We give deference to the jury=s determinations, particularly those concerning the weight of the evidence and the credibility of witness testimony.  See Johnson, 23 S.W.3d at 8B9.

B. Possession

To prove the offense of possession of a controlled substance, the State was required to show that appellant (1) exercised actual care, control, and management over the controlled substance and (2) was conscious of his connection with the controlled substance and knew what it was.  See Tex. Health & Safety Code Ann. '' 481.002(38), 481.112(a) (Vernon 2003 & Supp. 2007); Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).  Because appellant was not in exclusive possession of the vehicle where the contraband was found, the State must affirmatively link appellant to the contraband.  Brown, 911 S.W.2d at 748.  This proof must have established that his connection with the cocaine was more than just fortuitous.  See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005).  Links to demonstrate that connection could include things such as whether the cocaine was (1) in plain view, (2) conveniently accessible to the accused, (3) in a place owned by the accused, (4) in a car driven by the accused, (5) found on the same side of the car as the accused, and (6) found in an enclosed space; and whether (7) the accused=s conduct indicated a consciousness of guilt.  See Hurtado v. State, 881 S.W.2d 738, 743 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d).

The record reflects the following facts:

$ When approached by the deputies, appellant acted nervous and was moving around in his seat.

$ When VanDine frisked appellant, he turned and tried to move away from VanDine.

$ VanDine felt a hard, round object between appellant=s buttocks, a location Officer Abraham Vanderberry testified was a common location for concealment of controlled substances.

$ The cocaine was not in the patrol car before appellant was placed in the back seat.

$ Appellant was the only occupant of the back seat.

$ While being transported, appellant twisted and turned in his seat and kicked the front passenger seat where the cocaine was eventually found.

$ The hard, round object previously felt by VanDine was not found during the strip-search of appellant.

$ While the car was parked in the sally port, it was locked and no one else had access to it.

While the cocaine was not in plain view under the back seat of the patrol car and while the car was not owned or driven by appellant, the cocaine was found on the same side of the car as appellant in an enclosed space in which appellant was the only occupant.  We find the evidence is not so weak that the jury=s verdict seems clearly wrong or manifestly unjust. Appellant did not present evidence on his own behalf, but relied on his cross-examination of the State=s witnesses.  Considering any conflicting evidence, we find that the jury=s verdict is not against the great weight and preponderance of the evidence.  The evidence was factually sufficient to show that appellant exercised care, custody, and control over the cocaine and that he knew that it was cocaine.

C. Intent to Deliver

Appellant further claims that the evidence is factually insufficient to show that he had intent to deliver the cocaine.  Intent to deliver may be shown by circumstantial evidence, including expert testimony by experienced law enforcement officers.  Reed v. State, 158 S.W.3d 44, 48B49 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).  Intent to deliver may be inferred from the quantity of drugs possessed, and it may also be inferred from the manner in which the drugs are packaged.  Rhodes v. State, 913 S.W.2d 242, 251 (Tex. App.CFort Worth 1995), aff=d, 945 S.W.2d 115 (Tex. Crim. App. 1997). 

The record reflects that appellant possessed a cookie of cocaine, which weighed 27.25 grams.  Officer Abraham Vanderberry of the Houston Police Department narcotics division testified that a personal use quantity of crack cocaine is two to three rocks, which are usually cut off of a cookie with a razor blade.  Each rock usually weighs between .1 and .2 grams.  He further testified that 27 grams of crack cocaine is a Adistributive amount of cocaine.@

Based on the amount of cocaine appellant possessed, the way it was packaged, and the expert testimony of Officer Vanderberry, we find that the proof of appellant=s guilt was not so obviously weak as to undermine confidence in the jury=s determination, nor was the contradictory evidence so strong that the standard of proof beyond a reasonable doubt could not have been met.  See Watson, 204 S.W.3d at 414B15.  Appellant=s first issue is overruled.

III.  Motion to Suppress

In his second issue, appellant contends that the evidence obtained as a result of his arrest was not admissible because the traffic warrants on which appellant was arrested were not supported by statements of probable cause. 

We review a trial court=s ruling on a motion to suppress under an abuse of discretion standard.  Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).  The trial judge is the sole fact finder and we give almost total deference to the trial court=s determination of historical facts when supported by the record.  State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).  The same deference is accorded to determinations of mixed questions of law and fact if their resolution depends upon witness credibility and demeanor.  Id.  We will sustain the trial court=s ruling if it is reasonably supported by the evidence and is correct on any theory of law applicable to the case.  Villarreal, 935 S.W.2d at 13.

During a traffic stop, an officer is entitled to request a driver=s license, proof of financial responsibility, and registration and run a computer check on the information provided.  See United States v. Brigham, 382 F.3d 500, 509 (5th Cir. 2004); Kothe v. State, 152 S.W.3d 54, 66B67 (Tex. Crim. App. 2004).  If the computer check shows an outstanding warrant for the individual=s arrest, the officer has probable cause to arrest the individual.  Haley v. State, 480 S.W.2d 644, 645 (Tex. Crim. App. 1972); Oliver v. State, 10 S.W.3d 411, 416 (Tex. App.CWaco 2000, no pet.); Tex. Code Crim. Proc Ann. art. 15.26 (Vernon 2005).

Deputy VanDine explained that he checked appellant=s driver=s license because he would release the vehicle to appellant if his driver=s license was valid.  Appellant was arrested on the outstanding traffic warrants that were discovered as a result of the computer check of his driver=s license. Appellant challenged the arrest, alleging that the warrants were not based on probable cause.  If the State seeks to justify an arrest based on an arrest warrant, it must produce both the warrant and the supporting affidavit in the trial court.  Etheridge v. State, 903 S.W.2d 1, 19 (Tex. Crim. App. 1994).  This procedure permits the trial court to review the documents and determine whether probable cause exists and whether the accused=s rights have been protected.  Id.

At his first trial, appellant raised the motion to suppress in the following manner:

THE COURT: Okay.  First of all, Mr. Duer [defense counsel], did you B you have the motion to suppress on file?

MR. DUER: Yes.

THE COURT: All right.  Did you want to put on any evidence in regard outside the jury=s presence on the issue of your motion to suppress?

MR. DUER: No.

THE COURT: Okay.  So do you then rest on your motion, other than argument?

MR. DUER: Well, let me back up just a minute.  I want to resolve the issue on the warrants.  I know what you=re going to do about those.  Just tell me so I can put on the record what I need to put on the record.

MS. PROSCECUTOR: I can put on the record, I show that he was booked on both of those warrants.  So I=m making a call to Judge (inaudible) court for the copies of the actual, I guess, couple of warrants B

MR. DUER: And the affidavits B

MS. PROSECUTOR:  B the records actually show the outstanding warrants and that he was booked on those two warrants (inaudible), which is I assume after he left the B

THE COURT: (Inaudible)?

MS. PROSECUTOR: Yeah.

THE COURT: Okay.

MS. TAYLOR [prosecutor]: And also did verify the warrants before taking him in B

THE COURT: That=s his testimony, I understand that.

MR. DUER: Right, I heard him say that.  I=m just saying that B

MS. PROSECUTOR: That you want a hard copy.

MR. DUER: Uh-huh, and to make part of the record.

MS. PROSECUTOR: Okay.

MR. DUER: And so I=m going to object at this point in time until we get this issue involved [sic].  And I don=t know how you want to involve [sic] it.  I mean B

MS. PROSECUTOR: Based on the state of the record, would it be okay to conditionally admit the evidence and then B

THE COURT: Yeah, that=s my thought.  Just conditionally admit it and if they kept the warrants proper form then B

MR. DUER: Subject to my motion and my objection at this point in time and that we=ll review the warrants when they get here with the probable cause affidavits and then you=ll make your ruling then depending on which way it goes then, that=s fine with me.

(emphasis added)

At the close of the State=s case, the following exchange took place:

MS. TAYLOR: Judge, we don=t really have anybody else.  I just didn=t know if we needed to take care of the motion.

THE COURT: No.  Because I denied his motion.

MS. TAYLOR: Okay.

THE COURT: If something happens, I can deal with it in another manner.  Right?

MR. DUER: Okay.  So we=re going to go forward from here?  Just so I understand B

THE COURT: Uh-huh, because State=s 1 is admitted.^[3] State=s 1 is admitted.  If we got (inaudible) or something of that sort, which it doesn=t appear that they are, I can (inaudible).

MR. DUER: Okay.  I mean, just in addition, before we go any further here, on the notion of chain of custody, I would object to this being offered into evidence because they failed to establish chain of custody.  They have a missing link in it.

Appellant did not pursue his probable cause objection further.  Moreover, there was no indication in the record that the court had not reviewed the warrants and the probable cause affidavits.

In the second trial, which is the subject of this appeal, the trial court ruled as follows:

THE COURT: All right.  Back in October, when this case was initially set for trial, the defense filed a motion to suppress and on October 17th of 2006, the Court, based on the evidence heard at the prior hearing, which will certainly be made a part of this record, if necessary, denied the motion.

It=s my understanding that the defense wanted to go ahead, for the purposes of having the Court sort of review that ruling, to have the actual warrants that Mr. Jelks was arrested for placed into evidence; am I correct?

MR. DUER: That=s the B the only issue I think is B today is that we=ve got copies of the warrants today, marked as State=s 2 and 3.

MS. TAYLOR: 2 and 3.

MR. DUER: Just want to make sure that they are made part of the record for the appeal.

THE COURT: Okay.

MR. DUER: And I understand you ruled on it already.  I think it=s clear that he was arrested on these two warrants. Our position is the warrants are insufficient.  They don=t state probable cause, but we just want to make sure that was part of the record and we=re ready to go forward.  That=s all we have on that issue.

THE COURT: All right.  So, I will admit State=s Exhibits 2 and 3.  I=ve reviewed 2 and 3 and the Court does not intend to change its ruling on the motion, based on the review of those documents.

MR. DUER: Okay.  We=re ready then.

The record from appellant=s first trial reflects that the trial court, appellant=s lawyer, and the prosecutor discussed production of the warrants and affidavits, and that the State arranged for hard copies to be produced.  When the trial court denied the motion, appellant did not make a further objection.  It appears from the record that the warrants and affidavits were produced and the court was satisfied with the probable cause statements. 

At the second trial, the trial court re-affirmed its ruling from the first trial, and agreed to include the warrants in the record.  Appellant argued again that the warrants did not state probable cause, and ensured that the warrants were admitted into evidence, but did not indicate that the affidavits were not attached to the warrants.  After the second trial, the court entered findings of fact and conclusions of law in which it concluded, among other things, that Deputy Van Dine verified the warrants and that the warrants were Averified and valid.@

On appeal, appellant contends that the warrants were deficient because no affidavits were attached to the warrants.  Appellant failed to make that objection at trial.  The purpose of the rule requiring a party to make a complaint to the trial court by specific and timely request, objection, or motion as a prerequisite to presenting a complaint for appellate review is to ensure that the trial court will have an opportunity to prevent or correct any error.  Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2005).  At the first trial, defense counsel requested that the affidavits be produced and the prosecutor called the judge to obtain copies of the warrants and affidavits.  When the trial court denied the motion to suppress based on its review of the documents, appellant did not object to any missing documents.  There is no indication in the record that the affidavits were not produced.  At the second trial, appellant specifically requested that the warrants be admitted into evidence.  If the affidavits were indeed not produced to the trial court, it was appellant=s responsibility to timely raise the issue in order for the trial court to correct the error if possible.  Tex. R. App. P. 33.1.

Appellant asks this court to presume that because the affidavits are missing from the appellate record that they were never presented to the trial court.  However, appellant=s presumption is not supported by the record.  The record reflects that the trial court reviewed the warrants and affidavits and found sufficient probable cause to arrest appellant.  Without copies of the probable cause affidavits in the record, we cannot review the trial court=s conclusion the warrants were supported by probable cause.  Appellant=s second issue is overruled.

The judgment of the trial court is affirmed.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion on Rehearing filed December 4, 2008.

Panel consists of Chief Justice Hedges and Justices Guzman and Brown.

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

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^[1]  Deputy Rocabado is a volunteer deputy.  She testified that all volunteer deputies receive the same training as deputies who are paid for their work. 

^[2]  VanDine testified that he did not think the item was a weapon, so he did not strip-search appellant at the scene.

^[3]  State=s Exhibit 1 was the cocaine found in the patrol car.