Kurtis Leonel Otto v. State

COURT OF APPEALS COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS KURTIS LEONEL OTTO,                                   ) ) No. 08-04-00249-CR Appellant, ) ) Appeal from the v. ) ) 409th District Court THE STATE OF TEXAS,                                     ) ) of El Paso County, Texas Appellee. ) ) (TC# 20030D02388) ) O P I N I O N Appellant Kurtis Leonel Otto appeals his conviction for possession of a controlled substance, to wit: cocaine, having an aggregate weight of one gram or more but less than four grams. Over Appellant=s not guilty plea, the jury found Appellant guilty of the offense as charged in the indictment and assessed punishment at 9 2 years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. Appellant raises three issues on appeal, in which he contends: (1) the trial court committed reversible error by refusing to give an Article 38.23 jury instruction; (2) the evidence was legally and factually insufficient to sustain his conviction; and (3) the trial court erred in denying his motion to suppress evidence. We affirm. On January 8, 2003, at approximately 2:30 a.m., Officer Michael Macias of the El Paso Police Department DWI Task Force observed an orange Chevrolet Camaro revving its engine and peeling out of a parking lot near Gateway West and Lee Trevino. The Camaro sped down the street. As Officer Macias sped to catch up to the vehicle, he saw the car twice fail to signal an intent to change lanes, two additional traffic violations. Officer Macias then initiated a traffic stop. When Officer Macias approached the vehicle, he noticed that it had its reverse lights on. Officer Macias called for back up assistance because he observed two occupants in the vehicle. He ordered the driver, later identified as Appellant, to place the vehicle in park and noticed that Appellant was having difficulty in doing so. When Officer Macias approached the driver=s side window, he detected the odor of alcohol. Officer Macias advised Appellant of the reason for the traffic stop and asked both Appellant and the passenger for identification. He did not request registration information on the vehicle. Appellant produced his driver=s license, but the passenger said that he did not have any identification. When back up officers arrived, Officer Macias asked the passenger to step out of the vehicle while he obtained his information. After obtaining the passenger=s information, Officer Macias placed the passenger in the patrol car and returned to the vehicle. Officer Macias asked Appellant to exit the vehicle in order to determine whether the odor of alcohol he smelled was only coming from the interior of the vehicle. Officer Macias found that the odor was coming from Appellant=s breath and his person. He then administered the standardized field sobriety tests. Based on the driving observations, the odor of alcohol from Appellant, and Appellant=s performance on the sobriety tests, Officer Macias decided to place Appellant under arrest for suspicion of driving while intoxicated. He later learned that Appellant had outstanding traffic warrants for his arrest. After verifying the passenger=s information, Officer Macias learned that the passenger also had a warrant for his arrest and placed him under arrest as well. Officer Macias directed Officer George Spencer to conduct an inventory search of the vehicle since it was going to be impounded. During the inventory search, Officer Spencer noticed that the plastic cover surrounding the gear shift in the center console had been tampered with and was slightly open. Using the tip of his thumb, the officer lifted the plastic cover around the gear shifter and saw a plastic bag containing several other baggies, which contained a white powdery substance, and a clear orange plastic vial, or inhaler, that also contained a white powdery substance. Jon Janczak, a criminalist for the El Paso Field Crime Lab later determined that the substances found were cocaine, having an aggregate weight of 1.93 grams. When Officer Spencer found the cocaine, he called Officer Macias over to the vehicle to show him what he had found. Officer Spencer lifted up the plastic molding around the gear shifter and Officer Macias saw the items containing cocaine. Officer Macias removed the items from the vehicle. According to the officers, neither the door panels nor the ceiling cover of the vehicle were removed during the inventory search. Officer Spencer also testified that he only lifted the plastic cover around the gear shift to find the items containing the cocaine. Officer Macias testified that he asked Appellant who the vehicle belonged to and Appellant replied that it was his. However, he never looked at the registration for the vehicle or otherwise determined who actually owned the vehicle. Both officers testified that they did not know to whom the drugs belonged. We first address Appellant=s third issue, where he contends that the trial court erred in denying his motion to suppress because the police exceeded the scope of a valid inventory search. When a pretrial motion to suppress evidence is overruled, the defendant need not subsequently object at trial to the same evidence in order to preserve error on appeal. Moraguez v. State, 701 S.W.2d 902, 904 (Tex.App.Crim. 1986). However, when a defendant affirmatively asserts that he has Ano objection@ at trial to the admission of the complained‑of evidence, he waives any error in the admission of the evidence, despite the pretrial ruling on his objection. Id.; Moody v. State, 827 S.W.2d 875, 889 (Tex.Crim.App. 1992). In this case, when the State offered the contraband discovered in the inventory search into evidence at trial, Appellant=s counsel affirmatively stated that he had Ano objection@ to the introduction of that evidence. Because defense counsel specifically stated he had no objection to the evidence, any error in its admission is waived despite the adverse pretrial ruling. See Moraguez, 701 S.W.2d at 904. We find that this issue was not preserved for review. Accordingly, we overrule Issue Three. Returning to the first issue, Appellant contends the trial court committed reversible error by refusing to give a jury instruction pursuant to Article 38.23 of the Texas Code of Criminal Procedure. Specifically, Appellant argues that the evidence clearly raised a factual issue concerning the legality of the search. Article 38.23 provides that no evidence obtained by an officer or other person in violation of the laws or constitutions of Texas or the United States shall be admitted in evidence against the accused on the trial of any criminal case. It also provides that where the legal evidence raises such an issue, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained by such a violation, then it shall disregard any such evidence. See Tex.Code Crim.Proc.Ann. art. 38.23 (Vernon 2005). An Article 38.23 instruction must be included in the jury charge only if there is a factual dispute about how the evidence was obtained. Garza v. State, 126 S.W.3d 79, 85 (Tex.Crim.App. 2004). A fact issue concerning whether the evidence was legally obtained may be raised A>from any source, and the evidence may be strong, weak, contradicted, unimpeached, or unbelievable.=@ Id. If a defendant successfully raises a factual dispute over whether evidence was illegally obtained, inclusion of a properly worded Article 38.23 instruction is mandatory. Bell v. State, 938 S.W.2d 35, 48 (Tex.Crim.App. 1996). Absent any such factual dispute, a trial court may properly refuse such a charge. Murphy v. State, 640 S.W.2d 297, 299 (Tex.Crim.App. 1982). In this case, the record shows there was no factual dispute about how the evidence was obtained. Officer Macias testified that he initiated a traffic stop after witnessing three traffic violations. The officer placed Appellant under arrest for suspicion of driving while intoxicated after administering standardized field sobriety tests and noticing various indicators of intoxication. The passenger in the vehicle was also arrested under an outstanding traffic warrant. Officer Macias decided to impound the vehicle. Officer Spencer was asked to conduct an inventory search of the vehicle.[1] During the search, Officer Spencer noticed that the plastic covering around the gear shifter had been tampered with and was slightly open. Using his thumb and with little or no force, he lifted the plastic molding and discovered the contraband. Both officers testified that neither the door paneling or the ceiling cover was removed during the search. The officers= testimony was consistent and uncontroverted. Consequently, the legality of the stop, arrest, and search were questions of law, not questions of fact for the jury. See Garza, 126 S.W.3d. at 87-8. Because there were no fact issues regarding the legality of the stop, arrest, and search of the vehicle, we conclude that an instruction under Article 38.23 was not warranted. Therefore, the trial court did not err in refusing to give an Article 38.23 jury instruction. Accordingly, we overrule Issue One. In Issue Two, Appellant challenges the legal and factual sufficiency of the evidence to sustain his conviction. Specifically, Appellant contends that the State failed to prove the elements of the offense because there were insufficient affirmative links connecting him to the contraband. Standards of Review In reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Hernandez v. State, 946 S.W.2d 108, 110-11 (Tex.App.--El Paso 1997, no pet.). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is to determine whether if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. See Adelman, 828 S.W.2d at 421-22. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. In reviewing the factual sufficiency of the evidence, we must determine whether considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); see also Clewis, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). There are two ways in which we may find the evidence to be factually insufficient: (1) the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85. AThis standard acknowledges that evidence of guilt can >preponderate= in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt.@ Id. at 485. In other words, evidence supporting a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an offense beyond a reasonable doubt. See id. at 481-82; Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis, 922 S.W.2d at 133. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant=s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Possession of a Controlled Substance A person commits the offense of possession of cocaine if she knowingly or intentionally possesses the controlled substance. See Tex.Health & Safety Code Ann. '' 481.115(a) & (c), 481.102 (3)(D)(Vernon 2003 & Supp. 2004-05). Possession is defined as Aactual care, custody, control or management.@ Tex. Health & Safety Code Ann. ' 481.002 (38)(Vernon Supp. 2004-05). To support a conviction for unlawful possession of a controlled substance, the State must prove that the accused (1) exercised actual care, custody, control and management over the contraband, and (2) the accused knew the substance he possessed was contraband. See Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995); Menchaca v. State, 901 S.W.2d 640, 651 (Tex.App.--El Paso 1995, pet. ref=d). Knowledge may be inferred from the circumstances. Linton v. State, 15 S.W.3d 615, 618 (Tex.App.--Houston [14th Dist.] 2000, pet. ref=d). When the defendant is not in exclusive possession or control of the place where the contraband is found, the State must prove additional independent facts and circumstances affirmatively linking him to the contraband. Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005). An affirmative link generates a reasonable inference that the accused knew of the contraband=s existence and exercised control over it. See Brown, 911 S.W.2d at 747; Menchaca, 901 S.W.2d at 651. By either direct or circumstantial evidence, the State Amust establish, to the requisite level of confidence, that the accused=s connection with the drug was more than just fortuitous.@ Brown, 911 S.W.2d at 747. Affirmative links connecting a defendant to the contraband may include the following: (1) the contraband was in plain view; (2) the contraband was conveniently accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the accused was the driver of the automobile in which the contraband was found; (5) the contraband was found on the same side of the car seat as the accused was sitting; (6) the place where the contraband was found was enclosed; (7) the contraband emitted a strong odor; (8) paraphernalia to use the contraband was in view of or found on the accused; (9) conduct by the accused indicated a consciousness of guilt; (10) the accused had a special connection to the contraband; (11) occupants of the automobile gave conflicting statements about relevant matters; (12) the physical condition of the accused was compatible with recent consumption of the contraband found in the car; (13) traces of the contraband were found on the accused; (14) affirmative statements connect the accused to the contraband; and (15) the accused possessed other contraband when arrested. See Nguyen v. State, 54 S.W.3d 49, 53 (Tex.App.--Texarkana 2001, pet. ref=d); Jones v. State, 963 S.W.2d 826, 830 (Tex.App.--Texarkana 1998, pet. ref=d); De La Paz v. State, 901 S.W.2d 571, 583-84 (Tex.App.--El Paso 1995, pet. ref=d). There is no set formula of facts necessary to support an inference of knowing possession. Hyett v. State, 58 S.W.3d 826, 830 (Tex.App.--Houston [14th Dist.] 2001, pet. ref=d). Moreover, the number of factors present is less important than the logical force the factors have in establishing the elements of the offense. Hurtado v. State, 881 S.W.2d 738, 743 (Tex.App.--Houston [1st Dist.] 1994, pet. ref=d). Appellant argues that the only evidence presented by the State to establish an affirmative link between him and the concealed cocaine was that he was the purported owner of the vehicle. The evidence, however, showed that the Appellant told Officer Macias that he was the owner of the vehicle and Appellant was present when it was searched. The contraband was found underneath the plastic molding of the gear shift console, a location that was in close proximity to Appellant, the driver, and easily accessible by him. In addition, Appellant exhibited some signs of intoxication, possibly from an unknown alcoholic beverage. Appellant directs our attention to the lack of additional affirmative links to connect him to the contraband, namely that he made no furtive gestures, he had no drug paraphernalia, there were no fingerprints recovered, the passenger had access to the vehicle, he made no incriminating statement, he did not flee, no drugs were found on his person, he had no weapons, and he was arguably drunk, but not under the influence of drugs. However, the number of affirmative links present in any given case is not as important as the degree to which they tend to link the appellant to the contraband. See Gant v. State, 116 S.W.3d 124, 132 (Tex.App.‑-Tyler 2003, pet. ref=d). We conclude that a rational trier of fact could have found beyond a reasonable doubt that Appellant exercised care, custody, control and management over the contraband, and that Appellant knew the substance possessed was contraband, thus the evidence was legally sufficient to support Appellant=s conviction. Appellant also contends that the evidence was factually insufficient. Appellant again directs our attention to the lack of other affirmative links connecting him to the contraband. After reviewing the evidence in a neutral light, we conclude that the evidence supporting the verdict was not too weak to support the guilty finding beyond a reasonable doubt. Rather, there was strong circumstantial evidence linking Appellant to the contraband. Moreover, we also conclude that the evidence contrary to the verdict is not so strong that guilt could not be proven beyond a reasonable doubt. Thus, the evidence is legally and factually sufficient to sustain Appellant=s conviction. Issue Two is overruled. We affirm the trial court=s judgment. August 11, 2005 DAVID WELLINGTON CHEW, Justice Before Barajas, C.J., McClure, and Chew, JJ. (Do Not Publish) [1] An inventory search is permissible under the Fourth Amendment and Article I, section 9 pursuant to a lawful impoundment. See Colorado v. Bertine, 479 U.S. 367, 371, 107 S.Ct. 738, 741, 93 L.Ed.2d 739 (1987); Stephen v. State, 677 S.W.2d 42, 44 (Tex.Crim.App. 1984). With regard to the scope of an inventory search, the Fourth Amendment allows police to open closed, even locked, containers as part of the inventory search of a vehicle, as long as they do so in accordance with standardized police procedures, do not act in bad faith, and not for investigative purposes. See Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990); Bertine, 479 U.S. at 375-76, 107 S.Ct. at 743. Likewise, this Court has held that Article I, section 9 of the Texas Constitution does not prohibit the search of closed containers pursuant to an inventory search. State v. Mercado, 993 S.W.2d 815, 818-19 (Tex.App.--El Paso 1999, pet. ref=d)(declining to follow the plurality opinion in Autran v. State, 887 S.W.2d 31 [Tex.Crim.App. 1994])(holding that Article I, section 9 does not guarantee any greater privacy interest in closed containers search pursuant to inventory search than that found under the Fourth Amendment); Gonzalez v. State, 990 S.W.2d 833, 835 (Tex.App.--El Paso 1999, pet ref=d) (same); see also Jurdi v. State, 980 S.W.2d 904, 907 (Tex.App.--Fort Worth 1998, pet. ref=d); Wells v. State, 968 S.W.2d 483, 486 (Tex.App.--Eastland 1998, pet. ref=d); Trujillo v. State, 952 S.W.2d 879, 881 (Tex.App.--Dallas 1997, no pet.); Madison v. State, 922 S.W.2d 610, 613 (Tex.App.--Texarkana 1996, pet. ref=d).