Eloisa Medina v. State , 555 S.W.3d 581 ( 2011 )

Opinion issued December 1, 2011.

In The

Court of Appeals

For The

First District of Texas

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NOS. 01-10-01134-CR

01-10-01135-CR

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Eloisa Medina, Appellant

V.

THE State of Texas, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Case Nos. 1176048; 1252250

O P I N I O N

Appellant Eloise Medina was convicted, pursuant to a jury verdict, of possession of cocaine and sentenced by the trial court to 15 years’ confinement (the possession case[1]).  The same evidence giving rise to that conviction, coupled with other evidence presented to the trial court, was the basis for the trial court’s additionally adjudicating guilt on an earlier deferred charge, revoking probation on that deferred charge, and imposing a sentence of 5 years’ confinement and a $300 fine (the adjudication proceeding[2]).  Appellant appeals both her conviction in the possession case and her adjudication of guilt in the adjudication proceeding.  We reverse her conviction in the possession case, and we affirm the trial court’s adjudicating guilt on her deferred charge in the adjudication proceeding, but modify that judgment to delete the assessment of the $300 fine.

THE POSSESSION CASE

Appellant was charged with possession of cocaine that was seized from her house, where she resides with her children, her parents, and her housemate, Maritza Martinez.  Martinez was charged with possession of the same cocaine.  Appellant was not home when the police executed the search warrant that led to the discovery of the drugs, although she arrived home during the raid and was immediately arrested.  Appellant’s sole point of error on appeal of her conviction is that the “evidence was legally insufficient in that the State failed to establish by proof to a high degree of certainty (beyond a reasonable doubt) that Medina did knowingly or intentionally exercise ‘actual’ care, custody, control, or management of a controlled substance.” 

A.      Evidence Presented at Trial

In early 2010, the Houston Police Department received a citizen tip about suspected drug dealing at appellant’s address.  Surveillance was conducted on the house for an initial 2-week period, which led to a search warrant that the police allowed to expire unexecuted because they discovered that appellant was out of town.  Police then conducted additional surveillance over another 2 weeks, which led to a second search warrant that was executed on February 17, 2010 at about 7:00 p.m.  The “targets” of the investigation were appellant and Martinez. 

The two officers involved in the surveillance of appellant’s home testified that—during the period in which they watched the house “two to three days a week, if not more”—they observed many visitors to the house staying five minutes or less.  These visitors arrived either on foot or by car.  At least five people making short visits to the house were observed each time the officers conducted surveillance on the house.  One officer testified that short visits to a residence by different people are consistent with drug dealing activity.  That officer also testified that, when no one was at appellant’s house, visitors were seen leaving appellant’s door and going to another house that police believed to be a “drug house.” 

At various times during their “month-long . . . off and on” surveillance, the officers observed the door being answered by appellant, Martinez, or both.  They also observed both appellant and Martinez engage in “hand-to-hand exchange[s]” with visitors at the door. 

On February 17, 2011, officers watched the house from about 2:00 p.m. until they executed the warrant at about 7:00 p.m.  Appellant was not there during that period, and there was no testimony about the last time she had been present at the house.[3] 

Officer Ong, the first officer to enter the house, testified to finding Martinez and appellant’s minor son sitting on the couch in the living room watching television.  He verified that no one else was present in the house.  Ong and six others then searched the house.  Ong found a plastic grocery bag wrapped up with a rubber band around it placed on a Santa Muerte shrine near the entrance to the kitchen from the living room.  While he could not see drugs inside the bag, he testified that his experience and training led him to recognize this bag as containing contraband, in part because it was sitting near the shrine.[4]  Field tests on the contents of the bag confirmed that it contained crack cocaine. No fingerprint analysis or DNA testing was done on the plastic bag.  Later laboratory testing confirmed the bag contained about 7 grams of cocaine.

While the house was being searched, appellant arrived home.  She was stopped by the officers outside, taken into custody, and then brought inside the house.  The search of the house revealed several items indicating that appellant lives at the house, including utility bills addressed to her.  No drugs, large amounts of money, or firearms were found on appellant, and she did not appear to be under the influence of any drugs when she was arrested. 

B.      Verdict and Judgment               

The jury found appellant guilty of “intentionally or knowingly” possessing more than 4 grams and less than 200 grams of cocaine.  After hearing additional evidence on punishment, the court sentenced her to 15 years’ confinement.  

C.      Applicable Law

Standard of Review

An appellate court reviews legal and factual sufficiency challenges using the same standard of review.  See Griego v. State, 337 S.W.3d 902, 902 (Tex. Crim. App. 2011).  “Under this standard, evidence is insufficient to support a conviction if considering all record evidence in the light most favorable to the verdict, a factfinder could not have rationally found that each essential element of the charged offense was proven beyond a reasonable doubt.”  Gonzalez v. State, 337 S.W.3d 473, 478 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)).  Evidence is insufficient under this standard in four circumstances: (1) the record contains no evidence probative of an element of the offense; (2) the record contains a mere “modicum” of evidence probative of an element of the offense; (3) the evidence conclusively establishes a reasonable doubt; and (4) the acts alleged do not constitute the criminal offense charged.  Gonzalez, 337 S.W.3d at 479; see Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. at 2786, 2789 n.11.  If an appellate court finds the evidence insufficient under this standard, it must reverse the judgment and enter an order of acquittal. Gonzalez, 337 S.W.3d at 479.

An appellate court “determine[s] whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence viewed in the light most favorable to the verdict.”  Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007)).  When the record supports conflicting inferences, an appellate court presumes that the factfinder resolved the conflicts in favor of the verdict and defers to that resolution.  Id. (citing Jackson, 443 U.S. at 326, 99 S. Ct. at 2793).  “An appellate court likewise defers to the factfinder’s evaluation of the credibility of the evidence and weight to give the evidence.”  Gonzalez, 337 S.W.3d at 479.  In viewing the record, a court treats direct and circumstantial evidence equally: circumstantial evidence can be as probative as direct evidence, and “circumstantial evidence alone can be sufficient to establish guilt.”  Clayton, 235 S.W.3d at 778 (quoting Hooper, 214 S.W.3d at 13).

Possession

To prove unlawful possession of a controlled substance, “the State must prove that (1) the accused exercised control, management, or care over the substance; and (2) the accused knew the matter possessed was contraband.”  Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); see also Tex. Health & Safety Code Ann. § 481.002(38) (Vernon 2010) (“‘Possession’ means actual care, custody, control, or management.”’). 

Possession need not be exclusive.  Evans, 202 S.W.3d at 162.  When the accused is not in exclusive possession of the place where the controlled substance is found, then additional, independent facts and circumstances must affirmatively link the accused to the substance in such a way that it can reasonably be concluded that the accused possessed the substance and had knowledge of it.  Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005); Kibble v. State, 340 S.W.3d 14, 18 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).  In other words, whether direct or circumstantial, the evidence “must establish, to the requisite level of confidence, that the accused’s connection with the [contraband] was more than just fortuitous.”  Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).  “This rule simply [reflects] the common-sense notion that a person—such as a father, son, spouse, roommate, or friend—may jointly possess property like a house but not necessarily jointly possess the contraband found in that house.”  Poindexter, 153 S.W.3d at 406.

Links that may circumstantially establish the sufficiency of the evidence to prove knowing possession include (1) the defendant’s presence when a search is conducted; (2) whether the substance was in plain view; (3) the defendant’s proximity to and the accessibility of the substance; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the substance was found; (12) whether the place where the substance was found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt.  Evans, 202 S.W.3d at 162 n.12.  

Not all of these factors must be proved; rather, it is the cumulative logical force the factors have in proving possession that we must consider.  See James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).  Additionally, absence of some of the factors is not evidence of innocence that must be weighed against the factors that are present.  Id.  Rather, they are used to assess the sufficiency of the evidence linking the defendant to knowing possession of contraband.  See, e.g., Roberson v, State, 80 S.W.3d 730, 735–36 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d); Allen v. State, 249 S.W.3d 680, 694 n.13 (Tex. App.—Austin 2008, no pet.) (explaining that presence or absence of factors “aid appellate courts in determining the legal sufficiency of the evidence in knowing possession of contraband cases”).

D.      The Parties’ Arguments

Appellant argues that the State failed to prove a sufficient link between appellant and the contraband seized to carry its burden to prove possession. She argues that the State’s theory that appellant “was in joint possession of all the cocaine found in the home simply because she lived there and, on prior occasions, had been observed engaging in what the police believed to be drug transactions,” is insufficient as a matter of law to establish her possession of the contraband seized in this case that she is charged with possessing.  In addition to pointing to the absence of nearly all of the factors courts use to establish links in possession cases, she focuses on two prominent failings in the State’s case: (1) appellant was not present at the home before or during the search, and “there was no testimony regarding the date that [appellant] left or how long she had been absent from the premises,” and (2) while two surveillance officers suspected that the appellant had, on earlier occasions, engaged in hand-to-hand transactions involving drug sales (with which appellant was not charged), there was no evidence confirming that any of these alleged transactions involved drugs.

The State acknowledges that “when an accused is not in exclusive possession of the place where contraband is found, it cannot be concluded [s]he had knowledge or control over the contraband unless there are additional independent facts and circumstances which affirmatively link h[er] to the contraband.”  It asserts, however, that it met its burden of demonstrating appellant’s possession with evidence of more than appellant’s right to possession of the house in which contraband was found.  It argues: (1) “that cars came and went from the house, and visitors stayed no longer than five minutes, was consistent with drug dealing,” (2) “that appellant was seen making hand to hand transactions at the front door of her house,” (3) “that the cocaine was found in plain view on a shrine often connected with drug dealing,” and (4) “that the amount of cocaine seized from appellant’s house was significant—more than 6 grams, an amount large enough to indicate appellant knew of its existence.”  According to the State, this “evidence is legally sufficient to prove appellant’s guilt.” 

E.      Analysis

We agree with appellant that the evidence at trial is not legally sufficient to demonstrate that she possessed the cocaine seized from her house. 

First, appellant was not present at her house when the drugs were found, and there was no evidence about how long she had been absent from the house. Surveillance testimony confirmed she had not been there in the four hours leading up to the raid.  Because she was not present, and because there was at least one other person—Martinez—with the right of possession over the house who was present in the same room where the drugs were found, absent additional links between appellant and the seized drugs, the State cannot demonstrate appellant’s possession of them. The State relies heavily upon the surveillance officers’ testimony that, in the weeks leading up to execution of the warrant, (1) they observed visitor traffic at the house consistent with drug dealing, during which appellant was observed sometimes answering the door, and (2) appellant appeared to conduct hand-to-hand transactions with visitors.

The State cites Poindexter v. State for the proposition that the “relative probative value of all the evidence was legally sufficient” to show appellant “exercised care, custody, control, and management over the contraband.”    Poindexter is distinguishable in several ways.  In that case, there was evidence presented at trial that a confidential informant who had purchased drugs at the defendant’s house told the police that he “personally observed the [defendant] in possession of a quantity of cocaine,” and that the defendant hid those drugs in the ceiling of a linen closet.  153 S.W.3d at 404. Two days after this purchase by the confidential informant, the police executed a warrant on the residence—while the defendant was away—and discovered drugs and paraphernalia, among other places, secreted in the ceiling of the linen closet.  Id. at 405.  The Court of Criminal Appeals found this discovery in the ceiling to be significant in linking the defendant to the contraband because the confidential informant had said the linen closet was where the defendant kept his drugs, and because it was secreted in a place most accessible to the defendant.  Id. at 410–11.   Finally, although there was someone other than defendant present when the confidential informant purchased drugs at the defendant’s house, the court characterized testimony that no one else appeared to live at defendant’s residence as “crucial testimony, as it demonstrates that there was no affirmative evidence that any other person lived in the same house or exercised care, control, or custody over either the house or the drugs.”  Id. at 412.       

Here, unlike in Poindexter, appellant did not have exclusive rights of possession over the house from which the cocaine was seized. Nor was there testimony, like there was in Poindexter, that appellant had ever possessed the drugs seized or had possessed any other drugs before the drugs at issue were found at her house.  Finally, unlike the drugs seized from the closet ceiling in Poindexter, the drugs found in appellant’s house were found in the living room (while she was not present)—the same room that Martinez and appellant’s son were in at the time of the raid—rather than secreted away somewhere that appellant alone had primary access.   

The evidence about visitor traffic at the house during the month before the search warrant was executed supports an inference that drug dealing was occurring at appellant’s house.  But because appellant was not in exclusive possession of the house, that evidence does not provide a link between the drugs seized on February 17, 2010 and appellant. 

The evidence about appellant appearing to engage in hand-to-hand transactions could support an inference linking appellant to drug dealing (with which she was not charged), but none of the transactions witnessed were confirmed to have involved money or drugs, and these transactions were temporally distant from the discovery of the drugs in appellant’s house.  These transactions were not observed the same day that the search warrant was executed.  Rather, they were observed sometime during the month before the execution of the search warrant, when officers conducted surveillance “two to three days a week, if not more.” Even if evidence of engaging in hand-to-hand transactions alone was sufficient to establish possession of contraband, such evidence could not support a conviction of possession of a certain type or quantity of drugs.  And, although there was testimony that appellant was residing at the house during the two weeks leading up to the execution of the warrant, there is no evidence about when she was last at the house before the raid; in fact she was not seen at the house at all during the day the search warrant was executed until she arrived during the evening raid.  

Evidence of a defendant’s conducting hand-to-hand transactions characteristic of drug transactions can provide a link between the defendant and recovered drugs, even when the drugs are not found in the defendant’s exclusive possession.  E.g., Lair v. State, 265 S.W.3d 580, 587 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (testimony that hand-to-hand transaction occurring in defendant’s presence in vehicle that defendant was driving provided sufficient link between defendant and drugs later seized from car to demonstrate possession, despite argument that drugs belonged to another vehicle occupant); Washington v. State, No. 01-10-00357-CR, 2011 WL 4398545, at *4 (Tex. App.—Houston [1st Dist.] Sept. 22, 2011, no pet. h) (testimony that defendant and two other men were seen conducting numerous hand-to-hand transactions with bottle of PCP was sufficient to demonstrate his possession of the bottle of PCP, when bottle was recovered in close proximity to defendant). But these cases do not involve the temporal and proximal disconnect of this case.  The State has not cited any cases, and we have not located any, in which a defendant’s conducting unconfirmed hand-to-hand drug transactions at some time in the month-long period before drugs were seized from a residence over which the defendant had non-exclusive possession provides a sufficient link to establish the defendant’s possession of those drugs. 

The only other evidence the State cites is “that the cocaine was found in plain view on a shrine often connected with drug dealing,” and “that the amount of cocaine seized from appellant’s house was significant—more than 6 grams, an amount large enough to indicate appellant knew of its existence.”  The State did not adduce evidence as to the ownership of the shrine.  That similar shrines are found in other homes in the Hispanic community targeted in narcotic investigations does not mean that such shrines are not equally common in the community in homes not involved in drug sales.  In this case, other things—in addition to the bag containing drugs—were found on the shrine, including food, money, and alcohol.  For this very reason, the trial court refused to allow the State to characterize the shrine located in appellant’s house as a narcotics shrine.[5]    The discovery of the cocaine on the shrine, especially given that there is no evidence about when the drugs were placed there, is not sufficient to establish a link between appellant and possession of the cocaine seized in her absence. 

The presence of a significant amount of contraband is a factor that was relevant to establishing a defendant’s possession of contraband in Carvajal v. State, 529 S.W.2d 517, 520 (Tex. Crim. App. 1975).  In Carvajal, the defendant was found with other people in a room with thirty-seven pounds of marihuana in  plain view on the floor, and additional amounts were found on the defendant’s person.  Id.  Presumably, the quantity of drugs in that case was relevant to knowledge and possession because of its sheer size.  In other cases, quantity can be relevant to showing that a defendant intends to distribute narcotics rather than just possess it for personal use.  Poindexter, 153 S.W.3d at 412.

In this case, officers seized 7 grams of crack cocaine.  One officer testified that this quantity is an amount that is more than for one person’s personal use and indicative of drug dealing. Another officer characterized this amount as “mediocre” that could be either for personal use or for dealing. While this testimony supports an inference that there was drug dealing going on in the house, the State fails to articulate how the quantity of cocaine seized in this case ties appellant, who was not present, to possession of that cocaine.  See Allen, 249 S.W.3d at 698 (noting that “[t]he question is whether the amount of cocaine discovered should be factored into the determination of any link between appellant and the cocaine under the circumstances,” and concluding that “the factor of a large quantity of contraband [was] of little or no value in linking appellant to the cocaine” under the circumstances presented); Robertson, 80 S.W.3d at 740 (concluding that 24 grams of cocaine found in vehicle near seat where passenger was sitting, while “not an insignificant amount,” was insufficient to link driver to possession of that cocaine, in part because “it was still small enough to be concealed on someone’s person”).   

Circumstantial evidence of possession should not be analyzed in isolation, but rather should be “viewed in combination and its sum total” to determine if there is sufficient evidence connecting appellant to the actual care, custody, or control of the drugs at issue.  Evans, 202 S.W.3d at 166.  The question is whether the “logical force of the combined pieces of circumstantial evidence, . . . coupled with reasonable inferences from them, is sufficient to establish, beyond a reasonable doubt, that appellant exercised actual care, custody, control, or management of the cocaine” seized.  Id.    

Here, we conclude that the circumstantial evidence is insufficient to support appellant’s conviction when viewed in combination and its sum total. We thus sustain appellant’s first point of error, reverse her conviction for possession of cocaine, and render a judgment of acquittal. 

THE ADJUDICATION PROCEEDING

Pursuant to a 2009 plea agreement, appellant admitted to possessing more than 4 grams and less than 200 grams of cocaine.  On January 15, 2010, the trial court entered an Order of Deferred Adjudication and placed appellant on community supervision for a period of four years. As conditions of this community supervision, the trial court ordered that appellant, among other things (1) commit no offense against the laws of this or any other State or of the United States, and (2) participate in a Community Service Restitution Program.   

Shortly after appellant was arrested in the possession case, the State filed a Motion to Adjudicate Guilt, alleging that appellant violated terms of her community service by possessing between 4 and 200 grams of cocaine on February 17, 2010 (the same facts alleged in the possession case), and by failing to participate in the Community Service Restitution Program at the rate ordered by the court. 

The court held a hearing on the State’s motion to adjudicate a few days after the punishment hearing and pronouncement of judgment in the possession case.  At the adjudication hearing, the State called only one witness, appellant’s probation officer, because the court already “heard the testimony in the trial.”  Appellant’s counsel likewise informed the court that he planned to “just . . . proffer the testimony that you heard already in the other case.”  At the close of the hearing, the trial court signed a judgment adjudicating appellant’s guilt, revoking her deferred adjudication community supervision, and sentencing her to 5 years’ confinement and a $300 fine. 

A.   Applicable Law

“Appellate review of an order revoking probation is limited to abuse of the trial court’s discretion.”  Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006) (quoting Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984)).  In determining questions regarding sufficiency of the evidence in probation revocation cases, the burden of proof is by a preponderance of the evidence.  Id. “[A]n order revoking probation must be supported by a preponderance of the evidence; in other words, that greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of his probation.”  Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974). 

When the State alleges a “conviction” for another crime as the basis for revocation, that conviction cannot serve as the basis for the revocation until it is final.  Prince v. State, 503 S.W.2d 777, 779 (Tex. Crim. App. 1974).  If the State instead alleges a new law violation, proof of a final conviction is not necessary so long as the State proves by a preponderance of the evidence that the new law violation was committed.  Green v. State, 528 S.W.2d 617, 619 (Tex. Crim. App. 1975). 

B.   The Parties’ Arguments

Appellant argues that there was “legally insufficient evidence to support the trial court’s findings and conclusion that [appellant] violated the terms and conditions of deferred adjudication community supervision,” because (1) the trial court erred by relying on the conviction from the possession case—which was not final because appellant was planning to appeal—as a basis for finding appellant had committed a new law violation, and (2) appellant’s probation officer’s testimony demonstrated that appellant did not violate the community service provisions of her sentence.  Appellant additionally requests that the $300 fine assessed by the court in its judgment be deleted, as that was not part of the trial court’s oral rendition of judgment. 

The State responds that it did not “rely upon the ‘conviction’ as the basis for its motion to revoke probation.” Rather, it relied upon the evidence that the trial court heard in the possession case, which “proved by a preponderance of the evidence that appellant committed an offense in violation of the conditions of her community supervision,” rendering the finality of the conviction for that conduct irrelevant.  The State acknowledges that it was error for the court to assess a $300 fine in the judgment that was not orally pronounced and notes our authority to modify the judgment to delete the fine.      

C.   Analysis      

The trial court heard the evidence presented to the jury in the possession case. It also heard additional direct evidence at the punishment phase in the possession case about appellant’s commission of new law offenses that violated her deferred adjudication terms and conditions, including testimony by appellant’s father that he was aware of the crack and powder cocaine appellant kept in the house and sometimes sold.  Appellant does not argue that the combination of this evidence is insufficient to demonstrate, by a preponderance of the evidence, that she committed an alleged new law violation.  Rather, her only argument is that the State improperly relied upon a conviction that was not final.

We agree with the State that the finality of the judgment in the possession case was irrelevant because the court heard legally sufficient evidence establishing a new law violation by a preponderance of the evidence, and relied upon that evidence to revoke appellant’s probation.  See Green, 528 S.W.2d at 619; see also Martinez v. State, 635 S.W.2d 762, 767 (Tex. App.—Corpus Christi 1982, no pet.).  We thus affirm the trial court’s adjudication of appellant’s guilt.

It is undisputed that the trial court’s written judgment included assessment of a $300 fine that was not part of the court’s oral pronouncement of appellant’s sentence.  “When there is a conflict between” an oral pronouncement and the court’s written judgment, “the oral pronouncement controls.”  Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) (affirming court of appeal’s modification of judgment to remove fine assessed in written judgment but not orally pronounced).  We thus modify appellant’s sentence to delete the assessment of the $300 fine.  The court’s judgment revoking appellant’s deferred adjudication, adjudicating guilt, and imposing a sentence of 5 years’ confinement is otherwise affirmed. 

CONCLUSION

We reverse the trial court’s judgment in the possession case (trial court number 1252250; appellate court number 01-10-01135-CR).  We affirm as modified the trial court’s judgment in the adjudication proceedings (trial court number 1176049; appellate court number 01-10-01134-CR). 

                                                                   Sherry Radack

                                                                   Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Publish.   Tex. R. App. P. 47.2(b).

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[1]           trial court cause number 1252250; appellate court cause number 01-10-1135-CR

[2]           trial court cause number 1176048; appellate court cause number 01-10-1134-CR

[3]           One surveillance officer testified that she believed that appellant was inside the home at the time the warrant was executed by other officers, but it is clear from the other evidence that this testimony was erroneous. The State concedes that appellant was absent from the home when the police executed the warrant.

[4]           Officer Ybanez, who was also involved in the surveillance of appellant’s home and in the execution of the search warrant, testified that Santa Muerte shrines are used to ask for blessings over material objects.  Items are placed “at the foot of it that you wish to have luck or love or money, blessing, that type of thing.”  There were several items located on the shrine in this case, including food, money, and alcohol.  Ybanez testified that she has seen such shrines before in residences where search warrants were executed looking for narcotics, and that they are favored by people engaging in illegal narcotics activity. 

[5]           The trial court heard evidence outside the presence of the jury that, while such shrines to this saint are common to drug dealers in the community, they are also used in other homes for other purposes with no connection to drugs. The court thus ruled that the officer could testify that she had seen similar shrines in homes where narcotics were seized, but that she could not opine to the jury that this is a shrine used only by drug traffickers.  The court reasoned that any such opinion is misleading, unsupported, and highly prejudicial.