Amy Christine Matthiesen v. State ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-92-171-CR





AMY CHRISTINE MATTHIESEN,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT

NO. CR-91-195, HONORABLE FRED A. MOORE, JUDGE PRESIDING

In a trial before the court, appellant was convicted of the offense of possessing a controlled substance, lysergic acid diethylamide (L.S.D.) in an amount less than twenty-eight grams. See Tex. Health & Safety Code Ann. § 481.115 (West 1992). Punishment was assessed at ten years' probation and a fine of seven hundred fifty dollars. In her first point of error, appellant asserts that the trial court erred in overruling her motion for acquittal because the evidence was insufficient to support the conviction. In points of error two through five, appellant complains of the trial court's overruling her motion to suppress. We will overrule appellant's points of error and affirm the judgment of the trial court.

Officers Jeff Caldwell and Bill Huddleston observed a marihuana plant growing on the balcony of apartment 2003 at the Colony Square Apartments in San Marcos on May 17, 1991. After determining that appellant resided at the apartment, the officers obtained a warrant authorizing a search of the apartment and the arrest of appellant. It is undisputed that appellant and her sixteen-year-old son were the sole occupants of the apartment. A small "hit" of L.S.D. was found in a clear capsule in an opaque ceramic jewelry box in the bathroom adjoining appellant's bedroom. The search further revealed a "little paper of L.S.D." in the desk drawer of the son's bedroom. Appellant denied any knowledge of the presence of L.S.D. in her apartment, but stated that she knew about the marihuana plant on her balcony and a marihuana pipe recovered from her bedroom. Appellant testified that she was familiar with L.S.D., knew what it looked like, but that it had been five years since she had seen any L.S.D.

Appellant directs our attention to evidence reflecting that she did not have exclusive control of the apartment. Appellant testified that her son brought high school friends to the apartment for lunch. While there was a bathroom other than the one adjoining appellant's bedroom, appellant related that the boys used both bathrooms. Susan Kinel testified that she had a key to appellant's apartment for three years and went there frequently during her lunch hour. Kinel related that a woman named Trish Searles had a key to appellant's apartment and used the apartment "mainly" when her boyfriend was abusive. Kinel denied ownership of the L.S.D. found in appellant's apartment. Appellant testified that Searles had been to her apartment the week before the occasion in question and that she had known Searles to use L.S.D. Searles did not testify.

"'Possession' means actual care, custody, control or management." Tex. Health & Safety Code Ann. § 481.002(38) (West 1992). Possession need not be exclusive, and evidence which shows that the defendant jointly possessed it with another is sufficient. Wiersing v. State, 571 S.W.2d 188, 190 (Tex. Crim. App. 1978). When the accused is not in exclusive possession of the place, there must be additional independent facts and circumstances which affirmatively link the accused to the contraband. Id. at 190. The affirmative link can be established by showing additional facts and circumstances which indicate the accused's knowledge and control of the contraband. Guiton v. State, 742 S.W.2d 5, 8 (Tex. Crim. App. 1987).

Appellant had leased the apartment for a number of years. The "hit" of L.S.D. was conveniently accessible to appellant in a ladies' jewelry box in her bathroom that was only accessible through appellant's bedroom. See Hahn v. State, 502 S.W.2d 724, 725 (Tex. Crim. App. 1973). Appellant was familiar with L.S.D. See Davis v. State, 696 S.W.2d 494, 497 (Tex. App.--El Paso 1985, no pet.). Another "hit" of L.S.D. was found in her son's room. The fact finder could logically infer that appellant as lessee of the apartment was in control of the premises. See id. In addition to her ability to recognize L.S.D., appellant was no stranger to controlled substances as evidenced by her possession of the marihuana plant and the marihuana pipe.

Contrary to appellant's argument, we find that the evidence excludes every reasonable hypothesis other than the guilt of appellant. ⁽¹⁾ Viewing the evidence in the light most favorable to the conviction, we hold that any rational trier of fact could have found that there was sufficient evidence affirmatively linking appellant to the L.S.D. to prove the offense beyond a reasonable doubt. Appellant's first point of error is overruled.

Since appellant combines points of error two through five for discussion, we address them accordingly. Appellant contends that the trial court erred in overruling her motion to suppress because: the contraband was seized during the execution of a warrant that was not supported by probable cause; the search exceeded the scope authorized by the warrant; appellant's rights were violated under the Fourth and Fourteenth Amendments to the United States Constitution; and appellant's rights were violated under Article I, Sections 9 and 19 of the Constitution of Texas.

Appellant urges that there was no probable cause to search the interior of the apartment since the marihuana plant was observed on the balcony of the apartment. The affidavit upon which the warrant was based recited that the affiant, Jeff Caldwell, and fellow police officer, Bill Huddleston, observed a marihuana plant growing on the balcony of appellant's apartment that was only accessible from appellant's apartment. The affidavit included the training and experience of the officers in investigating narcotic offenses. The affidavit further stated that the officers knew from their experience that those who deal in narcotics keep books, ledgers, receipts, tally sheets, bank records, money orders, and other papers related to the cultivation, sale, and distribution of narcotics.

Warrant affidavits should be interpreted in a common sense and realistic manner and the magistrate is permitted to draw reasonable inferences. See Jones v. State, 833 S.W.2d 118, 124 (Tex. Crim. App. 1992), cert. denied, 113 S. Ct. 1285 (1992). The magistrate is not required to make a probable cause determination within a factual vacuum. See LaGrone v. State, 742 S.W.2d 659, 661 (Tex. Crim. App. 1987), cert. denied, 485 U.S. 937 (1988). Our review of the magistrate's determination must "afford great deference to the issuing magistrate's decision and be based upon the evidence as a whole." State v. Morgan, 841 S.W.2d 494, 498 (Tex. App.--El Paso 1992, no pet.).

Having read the affidavit as a whole, the issuing magistrate was justified in drawing the reasonable and logical inference that marihuana would be found inside the apartment when the officers observed a marihuana plant growing on the balcony of an apartment that was only accessible from appellant's apartment. The magistrate could also consider the statements in the affidavit relative to the officers' training and experience in investigating narcotic offenses. See Holladay v. State, 805 S.W.2d 464, 473 (Tex. Crim. App. 1991). Appellant's argument that the search warrant should have been limited to other marihuana plants would deprive a magistrate of the right to exercise common sense and draw reasonable inferences in reviewing an affidavit. We hold that the affidavit contained sufficient facts from which a magistrate could conclude that probable cause existed for issuing a search warrant of appellant's apartment for marihuana, other controlled substances and books, ledgers, and other papers relating to the cultivation, manufacture, sale, and distribution of controlled substances. See Tex. Code Crim. Proc. Ann. art. 18.01 (West Supp. 1994).

Appellant contends that the closed opaque jewelry box in appellant's bathroom was a container possessing a greater expectancy of privacy and that there was a lack of sufficient probable cause to justify the officer in opening the box. Appellant urges that the instant cause is virtually indistinguishable from United States v. Donnes, 947 F.2d 1430 (10th Cir. 1991). In Donnes, the court held that the burden was on the government to justify the officers' opening and inspecting a camera lens that was not in plain view with a valid exception to the warrant requirement. Id. at 1436. Unlike Donnes, the officers' search in the instant cause was made pursuant to a search warrant. Thus, the pivotal issue is whether the opening of the opaque jewelry box on the vanity of appellant's bathroom exceeded the search authorized by the warrant. Appellant's argument appears to be that the jewelry box could not possibly contain any object the officers were authorized to search for under the terms of the warrant. As heretofore noted, the search warrant did not limit the search to other marihuana plants. The warrant authorized the officers to search for marihuana and other controlled substances. While we do not have the benefit of the dimensions of the jewelry box, we take judicial knowledge of the fact that a ladies' jewelry box is capable of holding a sufficient quantity of marihuana or other controlled substances to sustain a conviction for possession of the contraband. We hold that the officers did not exceed the scope of the search authorized by the warrant. Appellant's second through fifth points of error are overruled.

The judgment is affirmed.

Tom G. Davis, Justice

Before Justices Powers, B. A. Smith and Davis^*

Affirmed

Filed: February 16, 1994

Do Not Publish

^* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).

1.   The instant cause was tried on October 8, 1991, prior to Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991), which prospectively overruled the use of the reasonable hypothesis analysis in all cases tried after November 6, 1991.