Terry Lynn Smith and Willie Paul Greening v. Roy Clinton Farrell, Jr., Individually and as Trustee of the Roy Farrell Jr. Separate Trust ( 2009 )

NO. 07-08-0499-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
DECEMBER 7, 2009
______________________________
EARNEST LEE MARSHALL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B17,642-0805; HON. ED SELF, PRESIDING
_________________________________
Memorandum Opinion
_________________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Earnest Lee Marshall (appellant) appeals his conviction for possession of cocaine.
Via three issues, he contends that the 1) trial court erred by denying his motion to suppress
and 2) evidence was insufficient to support his conviction. We affirm.
Background
On March 20, 2008, a search warrant was executed at appellant’s residence. The
search warrant affidavit was based on numerous phone calls to the police about suspicious
activity at appellant’s residence. Officer Ramiro Sanchez (Sanchez) set up surveillance
on the home. He observed a lot of activity coming and going where several came and left
within a couple of minutes. He recognized several as well known drug users. Sanchez
contacted an informant he knew who was able to set up a drug buy from appellant. The
informant purchased the drugs and returned to meet with the officer. He informed the
officer that appellant was in possession of a large quantity of cocaine at his home.
Furthermore, Sanchez learned that appellant was the person living at the residence and
had control of same. Sanchez, then, obtained the aforementioned search warrant.
When executing the warrant, the officers found appellant in the bathroom holding
its door shut. His girlfriend was discovered hiding in the bathroom closet behind some
clothes. Furthermore, a white baseball cap that appellant had been wearing earlier that
day was seen lying on the floor of the bathroom. The officer was able to identify the cap
due to a distinctive mark or lettering on its front. Next to the cap was a pipe of the type
used to smoke crack cocaine, and when an officer attempted to retrieve the cap, a small
white rock fell out of its brim. The white rock eventually tested to be 0.13 grams of cocaine.
No other drugs were found that were connected to appellant. Nor was a large
amount of money found either on appellant or in the house. Additionally, appellant’s
girlfriend testified not only that the cocaine was hers but also that appellant owned no ball
cap.
Issue One - Denial of Motion to Suppress
In his first issue, appellant contends that the trial court erred by failing to grant his
motion to suppress based on the fact that the search warrant affidavit was insufficient to
support the issuance of a search warrant. This is so, according to appellant, because the
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information found in the warrant revealed “only non-detailed, innocent activity which could
have (and was even was [sic]) known to anyone by means of casual observation.”
Furthermore, according to appellant, the “corroborated information did not relate to future
conduct.” However, our review of the record shows that at the time the State offered into
evidence the drugs found, trial counsel stated “no objection.” Thus, he waived any
complaint on appeal concerning the admissibility of the evidence. See Holmes v. State,
248 S.W.3d 194, 201 (Tex. Crim. App. 2008) (holding that a “defendant waives any
complaint on appeal concerning the admissibility of evidence when he affirmatively states,
‘No objection,’ at the time the evidence is offered”). We overrule appellant’s first issue.
Issues Two & Three - Sufficiency of the Evidence
Appellant contends that the evidence is both legally and factually insufficient to link
him to the cocaine. This is so because 1) the evidence was not in plain view, 2) he was
not under the influence of the narcotics when arrested, 3) he possessed no other drugs
when arrested, 4) he made no incriminating statements when arrested, 5) he did not
attempt to flee or make any furtive gestures, 6) the amount of cocaine was very small, 7)
there was no odor of contraband, 8) he did not possess large sums of cash nor was he in
exclusive possession of the area where the contraband was found, and 9) his girlfriend
accepted ownership of the drugs. We disagree and overrule the issues.
The standards by which we review the sufficiency of the evidence are well
established. We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61
L. Ed. 2d 560 (1979) and Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006) for their
explanation.
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The evidence of record disclosed that 1) the house belonged to appellant, 2) during
surveillance of the house, a number of people were seen making “minute” or very short
visits to it (which activity was consistent with that undertaken at a crack house), 3) some
of the visitors were drug users known to the police, 4) appellant had sold drugs to an
officer’s informant during a very recent controlled buy at the house, 5) appellant was found
both in the house and in the room in which the drugs were located, 6) appellant, who was
closest to the cocaine rock, was attempting to force the bathroom door closed as an officer
tried to enter, 7) the cap appellant had been wearing earlier that day contained the
cocaine, and 8) that cap was discovered on the bathroom floor next to a crack pipe. These
indicia are more than some evidence from which a rational jury could deduce, beyond
reasonable doubt, that appellant exercised care, custody, and control of the drug in
question.
While it may be that appellant’s girlfriend claimed ownership of the contraband and
said appellant did not own the cap, that simply created an alternate scenario and fact issue
for the jury to consider. Furthermore, the jurors were not required to believe what the
female said. Evans v. State, 202 S.W.3d 158, 166 (Tex. Crim. App. 2006).
Upon considering the whole record, we cannot say that the evidence purporting to
contradict the verdict overwhelms that establishing guilt. Nor can we say that the latter is
weak. Consequently, we conclude that the verdict of guilty has the support of both legal
and factually sufficient evidence.
The judgment is affirmed.
Brian Quinn
Chief Justice
Do not publish.
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