Andrew Richards, Jr. v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-93-161-CR ANDREW RICHARDS, JR., APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT NO. 18,344, HONORABLE CHARLES E. LANCE, JUDGE PRESIDING Appellant waived a jury trial and entered a plea of not guilty before the court to the offense of possession of cocaine with the intent to deliver. Appellant brings this appeal asserting that the evidence is insufficient to support his conviction, and in four additional points of error, appellant urges that the trial court erred in admitting evidence unlawfully obtained, in refusing to require the State to identify an unnamed informer, and in admitting in evidence the cocaine for which a proper chain of custody was not shown. The judgment will be affirmed. An unnamed informer told Tommy Roach, a city of Rockdale police officer, that appellant and Clarence Crawford were selling crack cocaine out of appellant's car which was parked on a city street in front of Emma's Beauty Shop. Officers Roach and Stan Powell, who knew appellant and Crawford, armed themselves with an arrest warrant and a capias pro fine which they knew had been issued for appellant's arrest for other offenses. The officers went to the place where the informer said appellant was selling cocaine. The officers were in uniform and in marked cars, and when they approached appellant's car, appellant and Crawford walked away from appellant's car in opposite directions. Powell with the arrest warrant and the capias pro fine attempted to arrest appellant and Roach stopped Crawford. Crawford dropped a cellophane wrapper which Roach required him to recover and hand to Roach. Roach believed the white residue on the cellophane was cocaine. Roach asked Crawford to wait where he was standing because Powell needed Roach's assistance to arrest appellant who was struggling and resisting arrest. Appellant, after he was subdued, was taken to the city jail. He had no contraband or money on his person, but had the ignition keys for his car. Appellant left his car doors locked. Appellant had claimed ownership of the car sometime before the day of appellant's arrest when appellant had asked and obtained Roach's assistance in unlocking the car in which he had locked his keys. After appellant's arrest, the officers had appellant's car towed to the police station parking lot and obtained a search warrant to search the car. In their search the officers found under the console a cellophane bag containing six pieces of a white solid substance that appeared to them to be crack cocaine. The officers also found in the car a brown paper sack containing a white powdery residue, a razor blade, a copper tube, and a box of corn starch. Crawford testified that he and appellant were selling "crack" out of appellant's car on the day they were arrested. However, Crawford testified that the only crack cocaine that he knew the appellant possessed was in the pocket of a coat which appellant threw against a fence while he was struggling with the officers. The officers did not take possession of the abandoned coat. Crawford testified that he was unaware of any cocaine that was found under the console of appellant's car. Steve Tindall testified that earlier in the day before appellant was arrested he rode around in appellant's car with appellant and Crawford and that they smoked crack cocaine. They were looking for appellant's brother hoping to find more cocaine. Tindall denied knowing that there was cocaine under the console of appellant's car. Joel Budge, a chemist employed by the Department of Public Safety, analyzed the substance found in appellant's car and testified that the substance was .38 grams of cocaine. Appellant offered the testimony of his wife Clara, who was serving a felony prison sentence, and the testimony of a bail bondsman. They testified that Clara had been offered a deal to dismiss charges against her if she would help "set-up" her husband for a criminal charge and conviction. The bail bondsman testified: A: I recall talking to Renae [Clara Renae Richards] about that particular case, but I do not recall the actual words of the conversation. I can vividly recall, as I told you earlier, but I can't remember everything that was said but I do believe I went over to Rockdale to talk to Renae specifically about that case. I can remember vividly something to do with some type of bargain or some type of deal that the D.A. was going to make her for in return of some type of testimony against Andre, but I can't remember what it was in detail. Their testimony failed to persuade the trial court. The defense offered the testimony of several other witnesses whose testimony did not appear to add or detract from appellant's defensive effort. Appellant testified that the contraband found in his car was not his and that he saw it for the first time in the courtroom. Appellant admitted that he was buying the car and that no one other than he had a right to possession of the car in which the cocaine was found. Appellant accused Crawford of "setting him up" for arrest. In point of error five, appellant urges that the evidence is insufficient to sustain his conviction because there are "insufficient affirmative links between the appellant and the contraband." In reviewing the legal sufficiency of the evidence, the relevant question is whether, after reviewing the evidence in light most favorable to the State, any rational trier of fact could have found the essential elements of the criminal offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). When the State relies on circumstantial evidence, an appellate court no longer applies the reasonable hypothesis analytical construct. Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Mack v. State, 859 S.W.2d 526 (Tex. App.--Houston [1st Dist.] 1993, no pet.). In proving possession of a controlled substance, the State must prove that the accused exercised control, management, and care over the substance and that accused knew the matter possessed was contraband. Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988); Cude v. State, 716 S.W.2d 46 (Tex. Crim. App. 1986); Parr v. State, 864 S.W.2d 132 (Tex. App.--Houston [14th Dist.] 1993, pet. ref'd); Castellano v. State, 810 S.W.2d 800 (Tex. App.--Austin 1991, no pet.). When the accused is not shown to have exclusive possession of the place where the contraband is found, the evidence must affirmatively link the accused to the contraband. Polland v. State, 612 S.W.2d 594 (Tex. Crim. App. 1981); Mills v. State, 847 S.W.2d 453 (Tex. App.--Eastland 1993, pet. ref'd). Numerous cases aid us in determining what "affirmative links" will be sufficient to prove possession of a controlled substance. See, e.g., Deshong v. State, 625 S.W.2d 327 (Tex. Crim. App. 1981); Watson v. State, 861 S.W.2d 410 (Tex. App.--Beaumont 1993, pet. ref'd); Williams v. State, 859 S.W.2d 99 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd); Whitworth v. State, 808 S.W.2d 566 (Tex. App.--Austin 1991, pet. ref'd); Trejo v. State, 766 S.W.2d 381 (Tex. App.--Austin 1989, no pet.). The number of factors present is less important than the logical force the factors have, alone or in combination, in establishing the elements of the offense. Whitworth, 808 S.W.2d at 569; Trejo, 766 S.W.2d at 385. The cocaine was found in the car which appellant owned and which he had been recently driving. The car was locked and appellant possessed the key as he walked away from the car. The cocaine was conveniently accessible to appellant in an enclosed place under the console. There was also paraphernalia in the car. The evidence considered in the light most favorable to the State would allow any rational trier of fact, in this case the trial court, to find that all of the essential elements of the offense were proved beyond a reasonable doubt. The evidence is sufficient to support appellant's conviction. Appellant's point of error five is overruled. In point of error two, appellant asserts that the affidavit used to obtain the warrant to search appellant's car does not state sufficient facts to establish probable cause to authorize the magistrate to issue the warrant. Therefore appellant argues the trial court erred in overruling the motion to suppress and in admitting in evidence the cocaine seized in the search of appellant's car authorized by the warrant. Appellant's contention is based on the alleged violation of federal constitutional rights. He does not raise an issue of the violation of his state constitutional rights. The statements in the affidavit relied on to show probable cause follow: 3. A confidential non-paid informant who has been reliable in the past and is not a member of the criminal element told me the following: 4. Two people known to the confidential informant as Andrew Richards and Clarence Crawford have been seen with in the past twenty-four hours setting in a white Oldsmobile 2 door, bearing Texas 138 MLF in possession of cocaine, in rock form. 5. Confidential informant has seen the two above identified suspects selling cocaine, in rock form inside the vehicle while it was parked on the North side of Second Street in front of Emma's Beauty Shop. 6. Confidential informant is aware of what cocaine in rock form is, having viewed what was confirmed to be cocaine. Appellant faults the affidavit because it fails to "say how the informant is credible." Further, appellant urges that statements made in the affidavit are conclusive in nature and: "It does not state by whom the individuals were seen in possession of cocaine, whether the confidential informant or some other unnamed person and does not demonstrate any basis of knowledge of reliability to the magistrate." In Hennessy v. State, 660 S.W.2d 87 (Tex. Crim. App. 1983), the Court of Criminal Appeals adopted the Illinois v. Gates, 462 U.S. 213 (1983) "totality of the circumstances" test for reviewing the sufficiency of search warrant affidavits. In Gates, the Supreme Court criticized lower courts interpretation of Aguilar and modified the holding of Aguilar v. Texas, 378 U.S. 108 (1964), and said: "Perhaps the central teaching of our decisions bearing on the probable-cause standard is that it is a 'practical, non-technical conception.' . . . [.i]n dealing with probable cause, . . . as the very name implies, we deal with probabilities." Gates, 465 U.S. at 231 [citations and quotation marks omitted]. Appellant incorrectly argues that the Gates "totality of the circumstances" test does not overrule the two prongs of the Aguilar-Spinelli test. In Gates, it was said: "For all these reasons, we conclude that it is wiser to abandon the 'two-pronged test' established by our decisions in Aguilar and Spinelli in its place we reaffirm the 'totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations.'" Gates, 462 U.S. at 238. Although appellant cites Gates and post-Gates cases in his brief, he also cites, quotes and relies upon Avery v. State, 545 S.W.2d 803 (Tex. Crim. App. 1977) and Caldera v. State, 504 S.W.2d 914 (Tex. Crim. App. 1974), which were opinions based on Aguilar. These cases are somewhat at odds with Gates and are not determinative of the issue before us. When the warrant-issuing magistrate in this case read the affidavit in a non-technical common sense manner as required by Gates, he could have reasonably understood that: An unnamed, non-paid informer, who "is not a member of the criminal element" (that is a law-abiding citizen), who can from prior experience identify crack cocaine, and whose information in the past has been reliable, informed the affiant, a city of Rockdale police officer, that within the last twenty-four hours the informer saw Andrew Richards and Clarence Crawford selling crack cocaine from a car, which the informer described in detail, that was parked in front of Emma's Beauty Shop on the north side of Second Street in the City of Rockdale. The Supreme Court has admonished and instructed reviewing courts: [W]e have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's determination of probable cause should be paid great deference by reviewing courts. A grudging or negative attitude by reviewing courts toward warrants, is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant; courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner. Gates, 462 at 236 [citations and quotation marks omitted]. It is arguable that in this case the officers could have lawfully searched the car without obtaining a search warrant; however, they took a safer course to obtain a search warrant. The magistrate determined that there was probable cause and issued the warrant. We will accord the magistrate's finding of probable cause the "great deference" it is due, and we will follow the Supreme Court's instruction not to invalidate a warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense manner. United States v. Ventresca, 380 U.S. 102, 109 (1965). We hold that the affidavit within its four corners shows probable-cause for issuance of the search warrant. The trial court did not err in overruling the motion to suppress and in admitting the cocaine in evidence. In point of error one, appellant argues that: "The trial court erred in allowing and asking questions regarding the conversation between police officers and the magistrate issuing the search warrant as probable cause is to be determined from the four corners of the search warrant affidavit." Since we have held that the affidavit on its face and within its four corners states probable cause, we need not further discuss point of error number one and it is overruled. In his third point of error, appellant contends that the trial court erred in overruling his motion for disclosure of the unnamed informer's identity. Rule 5.08 of the Rules of Criminal Evidence provides that a "public entity" has a privilege to withhold the identity of an informer in most circumstances. We quote that rule: Rule 508. Identity of Informer (a) Rule of privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation (b) Who may claim. The privilege may be claimed by an appropriate representative of the public entity to which the information was furnished, except that the privilege shall not be allowed if the state objects. (c) Exceptions. (1) Voluntary disclosure; informer a witness. No privilege exists under this rule if the identity of the informer or his interest in the subject matter of his communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer's own action, or if the informer appears as a witness for the public entity. (2) Testimony on merits. If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of the issues of guilt, innocence and the public entity invokes the privilege, the judge shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the judge may direct that testimony be taken if he find that the matter cannot be resolved satisfactorily upon affidavit. If the judge finds that there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose his identity, the judge on motion of the defendant shall dismiss the charges to which the testimony would relate and the judge may do so on his own motion. Evidence submitted to the judge shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity. All counsel and parties shall be permitted to be present at every stage of proceedings under this subdivision except a showing in camera, at which no counsel or party shall be permitted to be present. (3) Legality of obtaining evidence. If information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the judge is not satisfied that the information was received from an informer reasonably believed to be reliable or credible, he may require the identity of the informer to be disclosed. The judge shall, on request of the public entity, direct that the disclosure be made in camera. All counsel and parties concerned with the issue of legality shall be permitted to be present at every stage of proceedings under this subdivision except a disclosure in camera, at which no counsel or party shall be permitted to be present. If disclosure of the identity of the informer is made in camera, the record thereof shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity. Appellant filed an unsworn pre-trial motion for discovery of the informer's identity alleging that the unnamed informer referred to in the search warrant affidavit did not exist, and if he did exist he was a material witness to "the transaction" and his identity was therefore necessary for a fair determination of the cause. When the trial court heard the motion, appellant argued for the court to grant the motion, but offered no evidence. The State offered and the court admitted in evidence an affidavit made by Roach in answer to appellant's motion which stated that there was an informer and that the informer was not at the scene when appellant was arrested. Appellant in his appellate brief quotes and relies on exceptions (c)(2) and (c)(3) of Rule 508. There is no evidence controverting the State's evidence that there was an informer. There is nothing to indicate that the trial judge was not satisfied that the information received from the informer was reasonably believed to be reliable and credible. Moreover, we do not interpret the record to show the trial court was, at the time of trial, asked to act under the provisions of exception (c)(3). Therefore, the trial court did not err in failing to require disclosure of the informer's identity under exception (c)(3). Appellant's arguments at trial and on appeal are focused on appellant's right to disclosure of the informer's identity under exception (c)(2). In Bodin v. State, 807 S.W.2d 313 (Tex. Crim. App. 1991), the Court of Criminal Appeals concluded that Rule 508 is broader than the prior decisions of that court. In applying Rule 508 it was said: The next issue to resolve is the amount of proof necessary for the defendant to show that testimony may be necessary to a fair determination of guilt or innocence. The informer's potential testimony must significantly aid the defendant and mere conjecture or supposition about possible relevancy is insufficient. The defendant has the threshold burden of demonstrating that identity must be disclosed. Since the defendant may not actually know the nature of the informer's testimony, however, he or she should only be required to make a plausible showing of how the informer's information may be important. Evidence from any source, but not mere conjecture or speculation, must be presented to make the required showing that the informer's identity must be disclosed. The mere filing of a Rule 508 motion is insufficient to obtain a hearing, much less compel disclosure. Id. at 318 (citations omitted). Has appellant sustained his threshold burden of making a "plausible showing" demonstrating that the informer's identity must be disclosed for appellant to obtain a fair determination of guilt or innocence? The only evidence admitted at the hearing of appellant's motion was Roach's affidavit which in no way supports appellant's contention. Appellant, on the hearing of his motion, urged the trial court to consider the search warrant affidavit, in which it was stated that the informer had observed appellant and Crawford selling cocaine. Appellant argues that since the informer witnessed cocaine deliveries he was present when the offense was committed and he would be able to testify whether appellant or Crawford or both were selling cocaine and who was in possession of the cocaine. Appellant was not charged with nor tried for the offenses of selling cocaine in "the transactions" observed by the informer. The facts and circumstances in this case are unlike those in Anderson v. State, 817 S.W.2d 69 (Tex. Crim. App. 1991), where the defendant made a "plausible showing" by producing a police officer's testimony that the informer was present when the drug delivery transaction, for which the defendant was being tried, was made. Also the facts and circumstances in this case are unlike those in Bodin, where the informer bought drugs from the defendant at the direction of law enforcement officers and the officers, based on that transaction, seized drugs possessed by the defendant. Bodin wanted to show that because the officers had directed the informer's purchase of drugs Bodin had been entrapped. The failure to disclose the informer's identity, Bodin argued, deprived him of evidence to show a defense of entrapment, and the Court of Criminal Appeals agreed. Appellant has failed to sustain his threshold burden of demonstrating that the informer's identity must be disclosed. Appellant has not shown that the informer's potential testimony would significantly aid him in the fair determination of guilt or innocence of the offense for which he was tried. Appellant's showing amounts to no more than conjecture or supposition about the possible relevancy of the informer's testimony to aid him in a fair determination of guilt or innocence of the offense actually charged and for which he was convicted. We hold that appellant has not made a "plausible showing" that he is entitled to disclosure of the informer's identity. The trial court did not err in overruling appellant's motion to disclose the informer's identity. Point of error three is overruled. In point of error four, appellant argues that the State failed to show a proper chain of custody of the cocaine found under the console of appellant's car, and therefore the trial court erred in admitting the cocaine in evidence. Appellant argues more explicitly that since Roach did not make any identifying marks on the bag containing the cocaine before he mailed it to the laboratory, the evidence does not "tie it specifically to this case." When Roach found the six white rocks wrapped in cellophane under the console of appellant's car, he photographed them before they were removed. Roach then placed the cellophane wrapped white rocks in a plastic bag, but failed to place his initials or some other identifying mark on the bag. Roach filled out a Department of Public Safety submission list and request for analysis form. The bag containing the "six rocks of a white colored hard substance" found "beneath console" was item number two on the form. The request on the form was that item two be "test[ed] for presence of cocaine." Roach placed item two and other evidence in this case in a box, and mailed it to the Department of Public Safety Laboratory in Austin. The box was mailed by certified mail and Roach received a receipt showing the box had been received by the addressee. Budge, the Department of Public Safety chemist, testified without objection that he recognized the initials of Dennis Ramsey, a laboratory employee. The records of the laboratory with Ramsey's initials thereon show that Ramsey received the box mailed by Roach. Ramsey inventoried the items in the container and assigned a laboratory case number to the container and items sent to the Laboratory by Roach. Ramsey sealed the box with the items in it and placed them in the laboratory vault. Budge obtained the box with items therein from the vault and analyzed item two. Budge found that the six white rocks in the plastic bag were rock cocaine weighing .38 grams. Budge placed his initials and the laboratory number on the plastic bag and returned it to the box. The box was then mailed to Roach at the City of Rockdale Police Department. Roach testified he received the box with item two in the mail. At trial, although he could not identify the bag and its contents by a mark, Roach testified that it was the same bag he had mailed to the laboratory. Budge, at trial, identified the bag with his initials on it which had been item two on the list submitted to the laboratory. The bag which had been item two on the submission form was marked as State's exhibit seven at trial and admitted in evidence. Although Ramsey was not called as a witness, Budge's testimony, to which there was no objection, concerning the laboratory procedure and practice which were carried out by Ramsey supplied additional evidence showing a complete chain of custody of exhibit seven. Appellant relies on Easley v. State, 472 S.W.2d 128 (Tex. Crim. App. 1971), which is in some respects similar, but there are some significant differences such as the evidence in this case of the laboratory procedure and practice followed in handling substances submitted for analysis. The circumstances are sufficiently different in this case that Easley is not controlling. The more typical chain of custody cases make clear that the mere possibility of a break in the chain does not render the physical evidence inadmissible, but raises the question of the weight to be accorded by the trier of fact to the sufficiency of proof of a chain of custody. Levi v. State, 809 S.W.2d 668, 671 (Tex. App.--Beaumont 1991, no pet.) (citing United States v. White, 569 F.2d 263 (5th Cir. 1978)). The evidence here shows a sufficient chain of custody. The trial court did not err in admitting State's exhibit seven. Point of error four is overruled. The judgment is affirmed. Carl E. F. Dally, Justice Before Chief Justice Carroll, Justices Kidd and Dally* Affirmed Filed: August 31, 1994 Do Not Publish * Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).