Hightower Obryant v. State

Opinion Issued December 10, 2009 In The Court of Appeals For The First District of Texas NO. 01-08-00740-CR 01-08-00741-CR HIGHTOWER OBRYANT, Appellant (1) V. THE STATE OF TEXAS, Appellee On Appeal from the 179th District Court Harris County, Texas Trial Court Cause Nos. 1105383 & 1105384 MEMORANDUM OPINION Appellant, Hightower Obryant, appeals a judgment that convicts him for the first degree felony offense of possession with intent to deliver more than four grams and less than 200 grams of cocaine, and a judgment that convicts him for the first degree felony offense of possessing more than 400 grams of dihydrocodeinone. See Tex. Health & Safety Code Ann. §§ 481.112(a), (d), 481.117(a), (e) (Vernon Supp. 2009). (2) After appellant pleaded not guilty, the jury found appellant guilty of both offenses. The jury determined appellant's punishment for the possession of cocaine with intent to deliver as 20 years in prison. The jury determined appellant's punishment for the possession of the dihydrocodeinone as five years in prison and a $5,000 fine. In five points of error, each pertaining to both of the appeals, appellant contends (1) the evidence is legally insufficient to show appellant intended to deliver cocaine and is legally insufficient to show he possessed dihydrocodeinone; (2) the Texas statutory "adulterants and dilutants" provision is facially unconstitutional, and is unconstitutional as applied to appellant; (3) the trial court erred by admitting evidence of the controlled substances because the traffic stop from which the evidence was obtained violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; (4) the Texas statutory "adulterants and dilutants" provision allowed appellant to be subjected to cruel and unusual punishment in violation of his rights under the Eighth Amendment of the United States Constitution; and (5) the indictment for possession of cocaine with intent to deliver was improperly enhanced with a "remote" felony. We conclude the evidence is legally sufficient to convict appellant for both possession of cocaine with intent to deliver and for possession of dihydrocodeinone, and appellant failed to preserve error concerning his remaining points of error. We affirm. Background On an evening in February 2007, Officer Valles of the Houston Police Department Narcotics Division was in an unmarked car conducting undercover surveillance on a small beauty salon. He specifically surveyed the beauty salon because it had been associated with drug transactions in the past. In the salon's parking lot, he observed an unknown male conducting what he believed were hand-to-hand drug transactions in the salon's parking lot. Around midnight, appellant arrived at the beauty salon in his vehicle. He met with the unknown male, shook hands, and then opened the vehicle's trunk. He briefly leaned in and out of the trunk and then closed it. The unknown male then placed "something" in appellant's pocket while they shook hands a second time. Appellant then drove away from the salon. As he followed appellant in his unmarked car, Officer Valles observed appellant run a stop sign. Officer Valles contacted Officer Kelley over the police radio, requesting that Kelley stop appellant for the traffic violation. Officer Kelley turned on the emergency lights of his marked police car, but appellant did not stop. As appellant drove several more blocks, he failed to signal when he made a right turn. He eventually stopped in a parking lot. When Officer Kelley approached appellant, he smelled marijuana and noticed a spilled drink on the driver's side floorboard. He asked appellant if he possessed marijuana. Appellant said yes, and the officer retrieved a bag of marijuana from appellant. In the cabin of the appellant's vehicle, Officer Kelley also found a bag containing six ecstacy pills. Officer Kelley placed appellant under arrest and searched him. In appellant's front jacket pocket, the officer found a cigarette pack containing 13 small baggies filled with powdered cocaine. Subsequent to appellant's arrest, Officer Valles's inventory search of the vehicle's trunk revealed a half-opened briefcase containing 14 prescription bottles. The bottles contained: dihydrocodeinone pills, alprazolam pills, carsoprodol pills, Viagra pills, and codeine syrup. The prescription labels on the bottles listed multiple people as the owners of the various prescriptions. None of the prescription labels listed appellant's name. At trial, James Miller, a controlled substances specialist from the Houston Police Department Crime Lab, testified that the white powder substance found in appellant's cigarette pack was cocaine. He testified that when combined, the baggies contained a total of 5.7 grams of cocaine. He testified that in total, the dihydrocodeinone bottles contained 508 dihydrocodeinone pills and that the total aggregate weight of the dihydrocodeinone was 423.2 grams, which included the pharmaceutical ingredients mixed into the pills as adulterants and dilutants. The State presented the testimony of Officer Valles, Officer Kelley, and Miller. Appellant presented no witnesses and did not testify. The jury found appellant guilty of possession of cocaine with intent to deliver, and found appellant guilty of possession of dihydrocodeinone, which was a lesser included offense of the original indictment for possession with intent to deliver dihydrocodeinone. Sufficiency of Evidence In his fifth point of error, appellant contends the evidence is legally insufficient to show that appellant intended to deliver cocaine and that he possessed dihydrocodeinone. A. Law Pertaining to Legal Sufficiency In a legal sufficiency review, we consider the entire trial record to determine whether, viewing the evidence in the light most favorable to the verdict, a rational jury could have found the accused guilty of all essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). The jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to give their testimony. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). A jury is entitled to accept one version of the facts and reject another, or reject any part of a witness's testimony. See id. In reviewing the evidence, circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). On appeal, the same standard of review is used for both circumstantial and direct evidence cases. Id. B. Intent to Deliver Cocaine A person commits the offense possession of a controlled substance with intent to deliver, namely cocaine, in an amount of 4 to 200 grams, if he knowingly or intentionally possesses the controlled substance in the prescribed amount, by aggregate weight, including adulterants or dilutants, and intends to deliver that controlled substance. See Tex. Health & Safety Code Ann. §§ 481.002(38), 481.102(3)(D) (Vernon Supp. 2009). To prove possession of a controlled substance with intent to deliver, the State must prove that appellant: (1) exercised care, custody, control, or management over the controlled substance, (2) intended to deliver the controlled substance to another; and (3) knew that the substance in his possession was a controlled substance. Parker v. State, 192 S.W.3d 801, 805 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd). Intent to deliver may be proven by circumstantial evidence. Jordan v. State, 139 S.W.3d 723, 726 (Tex. App.--Fort Worth 2004, no pet.); Williams v. State, 902 S.W.2d 505, 507 (Tex. App--Houston [1st Dist.] 1994, pet. ref'd). Intent to deliver may be inferred from (1) the nature of the location where the defendant was arrested, (2) the quantity of drugs the defendant possessed, (3) the manner of packaging of the drugs, (4) the presence or absence of drug paraphernalia (for use or sale), (5) whether the defendant possessed a large amount of cash in addition to the drugs, and (6) the defendant's status as a drug user. Jordan, 139 S.W.3d at 726; See also Parker, 192 S.W.3d at 805. The first four circumstances are present here. First, concerning the nature of the location where appellant was arrested, the record shows appellant was seen in an area associated with drug transactions in the past, meeting someone, and taking something from the person. Second, the quantity of drugs appellant possessed suggested he planned to sell them. Officer Valles testified that in his experience, when police find an amount as high as 5.7 grams of cocaine, and that amount is packaged and individually wrapped, the cocaine is likely not for personal use, but rather indicates an intent to deliver. Third, the manner of packaging the drugs also suggests they were for sale. Appellant's cigarette pack found in his jacket pocket contained 13 inch-by-half inch ziploc bags, each containing cocaine. Officer Valles testified the cocaine in the cigarette pack would be worth approximately $500 on the street if sold in $20 portions, or approximately $300 if all the cocaine appellant possessed was sold together. Fourth, the absence of drug paraphernalia suggests appellant did not have the cocaine for personal use. Viewing the evidence in the light most favorable to the verdict, a rational jury could have found that the above facts sufficiently indicated that appellant possessed the cocaine, intended to deliver it, and knew it was cocaine. Accordingly, we conclude the evidence is legally sufficient to support the conviction. See Branch v. State, 833 S.W.2d 242, 245 (Tex. App.--Dallas 1992, pet. ref'd) (holding evidence legally sufficient where appellant found with 17 baggies of cocaine and $732 cash). C. Possession of Dihydrocodeinone A person commits the offense of possession of a controlled substance, namely dihydrocodeinone, in an amount of more than 400 grams, if he knowingly or intentionally possesses the controlled substance in the prescribed amount, by aggregate weight, including adulterants or dilutants. See Tex. Health & Safety Code Ann. §§ 481.002(38), 481.117(e) (Vernon Supp. 2009). To prove unlawful possession, the State must establish (1) appellant exercised actual care, custody, control, or management of the controlled substance, and (2) knew the matter possessed was contraband. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). Regardless of whether the evidence is direct or circumstantial, it must establish that the defendant's connection with the drug was more than fortuitous. Id. at n.9. Although courts have used the term "affirmative links" to determine if the evidence is legally sufficient in a possession case, the legal issue is "whether there was evidence of circumstances, in addition to mere presence, that would adequately justify the conclusion that the defendant knowingly possessed the substance." Id. Courts have identified over 12 possible factors to show a link between a defendant and a narcotic. Among those factors are whether (1) the defendant was present when the drugs were found; (2) the defendant was in proximity to the drugs and had access to them; (3) the defendant possessed other contraband; (4) there was an odor of drugs; (5) the defendant owned or had the right to possess the place where the drugs were found; (6) the drugs were found in an enclosed place; and (7) the amount of drugs found was significant. Swarb v. State, 125 S.W.3d 672, 684 (Tex. App.--Houston [1st Dist.] 2003, pet. dism'd). It is not the number of links that is dispositive, but rather the logical force of all of the evidence, direct and circumstantial. Evans, 202 S.W.3d at162. The record shows the seven factors described above are present here. Concerning the first and second factors, appellant was at the location where the dihydrocodeinone was found, was seen in close proximity to the drugs, and had access to them. Officer Valles testified that he observed appellant open and reach into the trunk of his vehicle and then receive something during a "hand-to-hand transaction" that appellant conducted with another unknown male at the beauty salon. Subsequent to appellant's arrest, Officer Valles found an unlocked briefcase in the trunk containing the 14 bottles of dihydrocodeinone and other pharmaceutical drugs. The other factors also point to appellant's knowing possession of dihydrocodeinone. Concerning the third factor, appellant possessed other contraband: cocaine, marijuana, ecstacy pills, and bottles of an assortment of pharmaceutical drugs, on which none of the prescriptions listed on the bottles belonged to appellant. Regarding the fourth factor, when Officer Kelley approached appellant, he smelled marijuana emanating from appellant's vehicle and appellant acknowledged he possessed marijuana. As related to the fifth and sixth factors, appellant was seen driving the vehicle where the narcotics were found, and the narcotics were found in the enclosed space of the vehicle's trunk, where Officer Valles saw appellant repeatedly access. Finally, regarding the seventh factor, the amount of drugs was significant in that the total number of dihydrocodeinone tablets obtained from appellant's briefcase was 508 tablets, and the total weight of those tablets was 423.2 grams. Officer Valles testified the street value of this amount of dihydrocodeinone would be worth approximately $4000 to $8000. Viewing the evidence in the light most favorable to the verdict, a rational jury could have found that the above facts when viewed together sufficiently linked appellant to the briefcase and to the knowing possession of the more than 500 dihydrocodeinone tablets found within it. We, therefore, conclude that the evidence is legally sufficient to support the possession of dihydrocodeinone conviction. See Lair v. State, 265 S.W.3d 580, 586-88 (Tex. App.--Houston [1st Dist.], 2008, pet. ref'd) (holding evidence legally sufficient to establish possession of controlled substance where Lair greeted another male in parking lot, transaction occurred in vehicle, money was exchanged; officer stopped vehicle Lair was driving and later found sack of narcotics in enclosed compartment of vehicle). We overrule appellant's fifth point of error for both appeals. Waiver of Error In his four remaining points of error pertaining to both appeals, appellant makes challenges on appeal that were never presented to the trial court. The general rule is that a party must make a timely and specific objection at trial to preserve an issue for appellate review. See Tex. R. App. P. 33.1; Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999); Freeman v. State, 230 S.W.3d 392, 407 (Tex. App.--Eastland 2007, pet. ref'd.). The rule applies to all objections except complaints involving violations of "rights which are [expressly] waivable only" and denials of "absolute systemic requirements." Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003). Rights that may only be waived expressly include the right to assistance of counsel and the right to trial by jury. Id.; Freeman, 230 S.W.3d at 407. Absolute systemic requirements are a separate class of rights that cannot be waived and the deprivation of which may be raised for the first time on appeal. Hawkins v. State, 930 S.W.2d 767, 769 (Tex. App.--Beaumont 1998, pet ref'd.). Absolute systemic requirements include claims related to reasonable doubt instruction, personal jurisdiction, subject matter jurisdiction, and a penal statute's compliance with the Separation of Powers section of the state constitution. Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002); Freeman, 230 S.W.3d at 407; Hawkins, 930 S.W.2d at 770. A. Constitutionality of Statute In his second point of error, appellant challenges the constitutional validity of the adulterants and dilutants provision as applied to him, and he contends the statute is facially unconstitutional. Because he did not present this challenge to the trial court, we hold he has waived this point of error. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (holding facial constitutional challenge must be presented to trial court first to be preserved for appeal); Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995) (holding points of error concerning constitutionality of statute as applied to appellant not preserved due to failure to object at trial); Hooper v. State, 106 S.W.3d 270, 273 (Tex. App.--Austin [1st Dist.], 2003, no pet.) (same). We overrule appellant's second point of error for both appeals. B. Equal Protection In his third point of error, appellant contends the trial court erred by admitting evidence of the controlled substances because the traffic stop from which the evidence was obtained violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. See U.S. Const. amend. XIV. Although he disobeyed two traffic laws, appellant claims the police stopped him because of his race, and therefore violated his equal protection rights. Rights under the Equal Protection Clause are not categorized as "waivable only rights" nor are they "absolute systemic requirements." Saldano, 70 S.W.3d at 889; Freeman, 930 S.W.2d at 408. Therefore, an appellant must preserve an equal protection error at trial to raise the issue on appeal, even though the evidence concerns the appellant's constitutional rights. Saldano, 70 S.W.3d at 889. Appellant contends he preserved error through his motion to suppress drug evidence that was premised on the assertion that the traffic stop was illegal. A motion to suppress, however, is nothing more than a specialized objection to the admissibility of evidence. Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981). Appellant did not support his motion on the grounds of an equal protection claim. On appeal, appellant's point of error must comport with a specific objection made at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Because appellant must preserve an equal protection error, and he did not object or otherwise raise the equal protection issue in conjunction with his motion to suppress, we hold appellant waived the issue on appeal. See Saldano, 70 S.W.3d at 889; Wright v. State, 930 S.W.2d 131, 133 (Tex. App.--Dallas 1996, no pet.) (equal protection claim forfeited by failure to assert error at trial). We overrule appellant's third point of error for both appeals. C. Cruel and Unusual Punishment In his fourth point of error, appellant contends the adulterants and dilutants provision violates the Eight Amendment prohibition against cruel and unusual punishment. We hold he waived this issue on appeal because he failed to assert this challenge to the trial court. See Curry, 910 S.W.2d at 497-98 (failure to make specific objection at trial waives Eighth Amendment claim of cruel and unusual punishment); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd) (cruel and unusual punishment error may be waived by failing to object at trial). We overrule appellant's fourth point of error for both appeals. D. Remote Prior Conviction Appellant's fifth point of error contends the indictment for possession of cocaine with intent to deliver was improperly enhanced with a "remote" felony. Appellant failed to object at trial to the use of the enhancement on the ground of remoteness and therefore waives this issue on appeal. See Tex. R. App. P. 33.1. Furthermore, if appellant had not waived this issue, his claim would fail. Rule 609 provides for the admission of a witness's prior conviction for purposes of impeachment. See Tex. R. Evid. 609. Because appellant's prior conviction was admitted for enhancement purposes and not for impeachment, Rule 609 would not require exclusion of the enhancement. See Tex. Penal Code Ann. § 12.42(c)(1) (Vernon Supp. 2009); Barnett v. State, 847 S.W.2d 678, 679-80 (Tex. App.--Texarkana 1993, no pet.) (holding prior felony convictions admissible for punishment and not subject to remoteness attacks under rule 609 of Texas Rules of Evidence because not offered for impeachment). We overrule appellant's fifth point of error for both appeals. Conclusion We affirm the judgments of the trial court. Elsa Alcala Justice Panel consists of Justices Keyes, Alcala, and Hanks. Do not publish. Tex. R. App. P. 47.2(b). 1. During oral argument, appellate's counsel informed the court that appellant's name is Obryant Hightower, not Hightower Obryant. 2. The possession of cocaine with intent to deliver judgment is appellate cause number 01-08-00740-CR, which is trial court cause number 1105383. The possession of dihydrocodeinone judgment is appellate cause number 01-08-00741-CR, which is trial court cause number 1105384.