David Lee Trevino, Jr. v. State

Trevino v. SOT NUMBER 13-02-00223-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG DAVID LEE TREVINO, JR., Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 105th District Court of Kleberg County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Hinojosa and Castillo Memorandum Opinion by Justice Hinojosa A jury found appellant, David Lee Trevino, Jr., guilty of possession of a controlled substance and assessed his punishment at two years confinement in a State jail facility and a $4,000 fine. The trial court has certified that this case "is not a plea-bargain case and the defendant has the right of appeal." See Tex. R. App. P. 25.2(a)(2). By three points of error, appellant contends: (1) the trial court erred in denying his motion to suppress; (2) the evidence is legally and factually insufficient to support his conviction; and (3) the trial court erred in denying his motion for a new trial. We affirm. As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the court's decision and the basic reasons for it. See Tex. R. App. P. 47.4. A. Motion to Suppress By his first point of error, appellant complains the trial court erred in denying his motion to suppress "the identification and arrest of [appellant] and the seizure of cocaine as fruits of an illegal detention." Specifically, appellant contends that the anonymous tip the police relied on to go to the hotel room where he was found, which he argues is itself an investigative detention, was not enough to rise to the level of reasonable suspicion. Appellant asserts that any evidence seized and any identification of him is inadmissible. When an accused affirmatively asserts during trial that he has "no objection" to the admission of evidence, he waives any error in the admission of the complained of evidence despite a pretrial ruling on a motion to suppress. Dean v. State, 749 S.W.2d 80, 83 (Tex. Crim. App. 1988); Harris v. State, 656 S.W.2d 481, 484 (Tex. Crim. App. 1983). In the instant case, appellant's counsel repeatedly stated, "no objection," when the State offered the evidence at trial that was obtained from the complained-of encounter, including the cocaine and drinking straw that had cocaine residue on it. We hold these affirmative statements waived any error. Accordingly, we overrule appellant's first point of error. B. Sufficiency of the Evidence By his second point of error, appellant contends the evidence is legally and factually insufficient to support his conviction for possession of a controlled substance. Specifically, appellant asserts: (1) the arresting officer did not see any person in the room in personal possession of the drugs; (2) the statements of his co-defendant accomplices were not sufficiently corroborated; (3) the State failed to establish an affirmative link showing that appellant exercised care, control, and management over the drugs; and (4) his mere presence in the room is not sufficient justification for being charged with possession. When we review the legal sufficiency of the evidence, we view all 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 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In conducting this analysis, we may not re-weigh the evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The standard is the same for both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999); Vela v. State, 771 S.W.2d 659, 660 (Tex. App.--Corpus Christi 1989, pet. ref'd). We measure the legal sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would accurately set out the law, would be authorized by the indictment, and would not unnecessarily increase the State's burden of proof. Id. The jury, as the trier of fact, may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs when giving effect to the inferences that reasonably may be drawn from the evidence. Booker v. State, 929 S.W.2d 57, 60 (Tex. App.--Beaumont 1996, pet. ref'd). As fact finder, the jury is the exclusive judge of the credibility of witnesses and the weight to be afforded their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1981); Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). The jury is free to accept one version of the facts, reject another, or reject all or any of a witness's testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). When we review the factual sufficiency of the evidence, we review all of the evidence and set aside the verdict only if (1) the evidence is so weak as to be clearly wrong and manifestly unjust or (2) the verdict is against the great weight of the evidence. Johnson, 23 S.W.3d at 11. We are not bound to view the evidence in the light most favorable to the prosecution, and may consider the testimony of all the witnesses. Id. at 10-12. Disagreeing with the fact finder's determination is appropriate only when the record clearly indicates that such a step is necessary to arrest the occurrence of a manifest injustice. Id. Otherwise, due deference must be accorded the jury's determinations, particularly those concerning the weight and credibility of the evidence. Id.1. Affirmative Links In possession-of-a-controlled-substance cases, two evidentiary requirements must be satisfied by the State. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). First, the State must prove that the defendant exercised actual care, control, and management over the contraband; and second, that he had knowledge the substance in his possession was contraband. Id. Both of these elements may be proved circumstantially. Sewell v. State, 578 S.W.2d 131, 135 (Tex. Crim. App. 1979). Knowledge, being subjective, must always be inferred to some extent, in the absence of an admission by the defendant. Id. If an accused was not in exclusive possession of and control of the place where the contraband is found, knowledge or control over the contraband may not be inferred unless additional facts and circumstances affirmatively link the accused to the contraband. Flores v. State, 650 S.W.2d 429, 430 (Tex. Crim. App. 1983). Various factors that may be considered in determining whether the evidence is sufficient to affirmatively link appellant with the contraband include, but are not limited to: (1) whether the contraband was in plain view or recovered from an enclosed place; (2) whether the accused was the owner of the premises or had the right to possess the place where the contraband was found; (3) whether the contraband was conveniently accessible to the accused; (4) whether the contraband was found in close proximity to the accused; (5) whether a strong residual odor of the contraband was present; (6) whether paraphernalia was in view, or found on the accused; (7) whether the physical condition of the accused indicated recent consumption of the contraband in question; and (8) whether the accused was observed in a suspicious area under suspicious circumstances. Lassaint v. State, 79 S.W.3d 736, 740-41 (Tex. App.-Corpus Christi 2002, no pet.). The number of the factors present is not as important as the logical force the factors have in establishing the elements of the offense. Lassaint, 79 S.W.3d at 736. The contraband in this case was recovered from an enclosed place, a one-bedroom hotel room. Appellant was present at an apparent drug party, which of itself is a suspicious circumstance. Cocaine was found on the counter of the bathroom. The contraband was, therefore, conveniently accessible and in close proximity to appellant. The arresting officers testified that a strong odor of marihuana and a large amount of smoke emanated from the hotel room. Drug paraphernalia, including a piece of a drinking straw used to consume cocaine and wrapping papers for marihuana cigarettes, were found in plain view. Appellant's co-defendant accomplices testified that: (1) he was in the hotel room for a period of approximately twelve hours; (2) he entered the bathroom where the cocaine was found; and (3) everybody in the hotel room was using the contraband. We conclude this evidence is sufficient to affirmatively link appellant to the contraband. 2. Accomplice Testimony At trial, the State elicited testimony from co-defendants who were in the hotel room with appellant during the drug party. (1) In evaluating the sufficiency of the evidence, an appellate court must examine all the evidence, including accomplice testimony. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). A conviction cannot stand on accomplice testimony unless it is corroborated by other evidence tending to connect the defendant with the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). In order to determine whether the accomplice testimony is corroborated, we eliminate all accomplice evidence and determine whether the other inculpatory facts and circumstances tend to connect appellant to the offense. McDuff, 939 S.W.2d at 612; Hernandez v. State, 52 S.W.3d 268, 279 (Tex. App.-Corpus Christi 2001, no pet.). The accomplice testimony need not directly link the accused to the crime or be sufficient in itself to establish guilt. Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988). Rather, the non-accomplice evidence merely has to tend to connect appellant to the offense. Hernandez, 52 S.W.3d at 279. Even without the accomplice testimony, the same evidence that affirmatively linked appellant to the contraband tends to connect him to the commission of the offense. Proof that an accused was present at the scene of a crime, coupled with other suspicious circumstances, may tend to connect the accused with the commission of the offense. Cruz v. State, 690 S.W.2d 246, 250-51 (Tex. Crim. App. 1985); Valencia v. State, 51 S.W.3d 418, 422 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd). The presence of the drugs in close proximity to appellant, the smell of burning marihuana and accompanying smoke, and appellant's presence in the hotel room sufficiently corroborate the accomplice testimony presented at trial. After reviewing the evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found the essential elements of the offense of possession of a controlled substance beyond a reasonable doubt. Accordingly, we hold the evidence is legally sufficient to support appellant's conviction. Further, after reviewing all the evidence, we conclude that the evidence is not so weak as to be clearly wrong and manifestly unjust and the verdict is not against the great weight of the evidence. Therefore, we hold the evidence is factually sufficient to support appellant's conviction. Appellant's second point of error is overruled. C. Lack of Court Reporter's Record By his third point of error, appellant contends he is entitled to a new trial because the reporter's record of the hearing on the motion to suppress was lost. Specifically, appellant asserts the lost reporter's record is necessary for the resolution of this appeal because the evidence at the hearing shows that the police officers went to the hotel room solely on the basis of an anonymous tip and performed no further investigation prior to knocking on the hotel room door. A defendant is entitled to a new trial if the lost, destroyed, or inaudible portion of the reporter's record is necessary to the appeal's resolution. Tex. R. App. P. 34.6(f)(3). However, because we have held that appellant's challenge to the trial court's denial of the motion to suppress was waived, we conclude the reporter's record of the hearing is unnecessary for the resolution of this appeal. Appellant's third point of error is overruled. The judgment of the trial court is affirmed. FEDERICO G. HINOJOSA Justice Do not publish. See Tex. R. App. P. 47.2(b). Opinion delivered and filed this the 29th day of January, 2004. 1. A person is an accomplice if he participates before, during, or after the commission of the crime and can be prosecuted for the same offense as the defendant or for a lesser-included offense. Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim. App. 1999).