Christopher Hopkins v. State

Opinion issued February 2, 2012. In The Court of Appeals For The First District of Texas ———————————— NO. 01-10-01098-CR ——————————— Christopher Hopkins, Appellant V. The State of Texas, Appellee On Appeal from the 263rd District Harris County, Texas Trial Court Case No. 1238886 MEMORANDUM OPINION Christopher Hopkins was charged by indictment with the felony offense of possessing more than one gram and less than four grams of crack cocaine. Hopkins filed a pre-trial motion to suppress the evidence against him, claiming the arresting officer lacked probable cause to search his vehicle. The trial court held a hearing and denied the motion to suppress. After a jury found him guilty, Hopkins pleaded true to four prior felony convictions, and the trial court assessed a punishment of twenty-five years’ imprisonment. On appeal, Hopkins contends that the trial court erred in denying his motion to suppress, and that the evidence presented at trial was legally and factually insufficient to support his conviction. We affirm. Background On October 28, 2009, Deputy M. Alvarado, with the Harris County Sheriff’s Office, was operating radar when he detected Hopkins, the sole occupant of his car, driving ten miles over the speed limit. Alvarado activated his emergency lights and attempted to stop Hopkins. Hopkins continued driving for approximately four blocks before turning into the parking lot of an apartment complex. When Alvarado entered the parking lot, Hopkins had already parked and stepped out of his car. Alvarado testified, both at the hearing on the motion to suppress and at trial, that Hopkins was walking toward Alvarado, near the rear bumper of Hopkins’s car, when Alvarado got out of his car and asked Hopkins for identification. According to Alvarado, Hopkins was on his cell phone at the time and began nervously searching his pockets for identification. Alvarado patted down Hopkins to ensure he was not carrying any weapons. Having confirmed Hopkins was not carrying any weapons, Alvarado walked to the front of Hopkins’s car to conduct a visual inspection of the car. Hopkins called Alvarado to the rear of the car and pointed out that the lights around his license plate were not working. Alvarado, suspecting this was an attempt to distract him, returned to the front of the car, looked through the window, and saw a bag that appeared to contain crack cocaine rocks. Alvarado then opened the driver’s side door, which he said was ajar, secured the bag, and placed Hopkins under arrest. According to Alvarado, after he told Hopkins that he was under arrest, Hopkins volunteered, “[Y]ou might as well put me in the back of the patrol car, I owe a lot of money to drug dealers.” The State also offered the testimony of Scott Vajdos, a drug chemist with the Harris County Institute of Forensic Sciences. Vajdos testified that the substance recovered from Hopkins’s car showed the presence of cocaine and weighed 3.72 grams. Hopkins testified both at the suppression hearing and at trial, offering testimony that conflicted with Alvarado’s testimony in several respects. Hopkins denied speeding and denied that Alvarado’s emergency lights were on when Alvarado pulled into the apartment complex. He also testified that he was no longer standing by his car when Alvarado approached him; rather, according to Hopkins, he had walked some distance toward a staircase in the complex when Alvarado arrived and asked him to return to his car. Hopkins admitted he was nervous while talking to Alvarado but attributed his reaction to the fact that he could not find his driver’s license and was panicked about the prospect of getting a traffic ticket. According to Hopkins, although the driver’s door was unlocked, it was shut, and Alvarado opened it before he began to search the car. Hopkins testified that he had not put any drugs in the car, and that he did not see Alvarado pull any drugs from his car. Hopkins testified that many people, including his friend Taquilla Earnest, Earnest’s child’s father, and Hopkins’s co-workers, all use his car on a regular basis, but he could not remember if anyone else had driven his car that day. Hopkins offered the testimony of Earnest, who testified that she observed Alvarado’s and Hopkins’s interactions on the day of the arrest. Earnest testified that she was in the parking lot while Hopkins spoke with Alvarado. She saw Alvarado look through the windows of Hopkins’s car and open the driver’s side front door. Earnest testified that she did not see Alvarado remove any items from the car, but did see Alvarado handcuff Hopkins. Earnest testified that Hopkins let other people drive his car and that she had driven the car the day before the arrest but had not seen any drugs in the car. Hopkins’s wife, Dusti Hopkins, also testified. According to Dusti, Earnest called her and asked her to bring Hopkins’s license to the parking lot. Dusti stated that she did not see Alvarado remove anything from Hopkins’s car, but admitted that she did not arrive until after Alvarado had begun his search. Dusti also testified that many people drove Hopkins’s car on a regular basis. Motion to Suppress In his first point of error, Hopkins contends that the trial court erred in denying his motion to suppress the State’s evidence against him because Alvarado had no probable cause to search Hopkins’s vehicle. A. Standard of Review In reviewing a trial court’s ruling on a motion to suppress evidence, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Blake v. State, 125 S.W.3d 717, 722 (Tex. App.—Houston [1st Dist.] 2003, no pet.). We give almost total deference to the trial court’s determination of historical facts that depend on credibility, while we conduct a de novo review of the trial court’s application of the law to those facts. Carmouche, 10 S.W.3d at 327. In a hearing on a motion to suppress, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Accordingly, a trial court may choose to believe or to disbelieve all or any part of a witness’s testimony. Id. “This is so because it is the trial court that observes first hand the demeanor and appearance of a witness, as opposed to an appellate court which can only read an impersonal record.” Id. Unless a trial court abuses its discretion by making a finding unsupported by the record, we defer to its findings and will not disturb them on appeal. Flores v. State, 177 S.W.3d 8, 14 (Tex. App.—Houston [1st Dist.] 2005, pet ref’d). When a trial court fails to make explicit findings of fact, we imply fact findings that support the trial court’s ruling so long as the evidence supports these findings. Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). B. Applicable law A traffic stop is a detention and, therefore, must be reasonable. Magana v. State, 177 S.W.3d 670, 673 (Tex. App—Houston [1st Dist.] 2005, no pet.) (citing Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997)). The decision to stop an automobile is reasonable when the police have probable cause to believe that a traffic violation has occurred. Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 1772, (1996); Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000). Speeding and failure to control speed are traffic violations. See Tex. Trans. Code Ann. § 545.351 (West 2011). Although warrantless searches are per se unreasonable, seizing contraband in plain view does not violate the Fourth Amendment protection against unreasonable search and seizure. Walter, 28 S.W.3d at 541. A police officer may seize an item in “plain view” if he (1) is legally present when he sees the item and (2) it is immediately apparent that there is probable cause to “associate the item with criminal activity.” Id. A police officer’s observation of a traffic violation establishes probable cause to stop a car and, thus, provides the officer with a lawful vantage point from which she can look through the windows of a car into its interior. See Texas v. Brown, 460 U.S. 730, 739–40, 103 S. Ct. 1535, 1542 (1983); Walter, 28 S.W.3d at 544–45. For it to be immediately apparent that an item is evidence of criminal activity, a police officer need not have actual knowledge that the item is contraband, but he must have “probable cause to associate the [item] with criminal activity.” Brown, 460 U.S. at 741–42, 103 S. Ct. at 1543; see Joseph v. State, 807 S.W.2d 303, 308 (Tex. Crim. App. 1991). A police officer may use his training and experience in determining whether an item in plain view is contraband. Brown, 460 U.S. at 746, 103 S. Ct. at 1545–46 (Powell, J. concurring) (citing to United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695 (1981)); see Joseph, 807 S.W.2d at 308. C. Analysis Although Hopkins’s brief does not specify which “evidence” should have been suppressed, we construe his complaint as one relating to both the trial court’s refusal to suppress the crack cocaine and its refusal to suppress the oral statement Hopkins made after his arrest, to the effect that he owed lots of money to drug dealers. 1. Waiver of objection to admissibility of crack cocaine “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.” Lemons v. State, 135 S.W.3d 878, 882 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (citing Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986)). “However, when the defendant affirmatively asserts during trial that he has ‘no objection’ to the admission of the complained of evidence, he waives any error in the admission of the evidence, despite the pretrial ruling.” Id.; see also Swain v. State, 181 S.W.3d 359, 368 (Tex. Crim. App. 2005) (by stating he had no objection to evidence he previously argued was inadmissible fruit of illegal arrest, appellant affirmatively accepted previously challenged evidence and waived any error in its admission); Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992) (appellant’s response during trial that he had “no objection” waived his claim to inadmissibility of challenged evidence that had been subject of suppression hearing). At trial, the State offered the crack cocaine into evidence through Vajdos, a drug chemist with the Harris County Institute of Forensic Sciences. When the State tendered the evidence to the Court, Hopkins’s counsel responded “No objection, Your Honor.” By affirmatively stating that he had no objection to the admission of the crack cocaine into evidence at trial, Hopkins waived his complaint to the admissibility of the crack cocaine, despite the pretrial ruling. See Swain, 181 S.W.3d at 368; Moody v. State, 827 S.W.2d at 889; Lemons v. State, 135 S.W.3d at 882. 2. Admissibility of Hopkins’s oral statement Our analysis of whether the trial court erred in refusing to suppress Hopkins’s oral statement as fruit of an illegal search requires us to examine whether Alvarado’s detention of Hopkins and seizure of the crack cocaine were permissible. Alvarado testified that he followed and ultimately detained Hopkins because he saw Hopkins commit a traffic violation, i.e., drive ten miles over the speed limit. This made Alvarado’s decision to stop Hopkins reasonable. See Walter, 28 S.W.3d at 544–45 (officer acted reasonably by stopping defendant when he had probable cause to believe that a traffic violation has occurred); Tex. Trans. Code Ann. § 545.351 (speeding is a traffic violation). It also satisfied the requirement that Alvarado be legally present at the time he saw the bag containing cocaine. See Walter, 28 S.W.3d at 545 (police officer conducting traffic stop could lawfully look into appellant’s truck). Alvarado further testified that the cocaine he seized from Hopkins’s car was in plain view. Specifically, Alvarado testified that he saw the baggie that contained the crack cocaine on the floorboard of Hopkins’s car when he was standing outside the car looking through the car window. He further testified that based on his years of experience, he recognized the bag as the kind of bag in which drugs commonly are stored and suspected that it, in fact, contained drugs. See id. at 544. Alvarado’s testimony was disputed, as Hopkins denied the presence of any drugs in his car, and Hopkins’s counsel, during cross-examination of Alvarado attempted to call into doubt Alvarado’s testimony that the drugs found on the floorboard could have been visible from outside the car. However, the trial court was the sole judge of the weight and credibility of the witnesses’ testimony, and we give great deference to its findings of historical facts as long as the record supports them. See Carmouche, 10 S.W.3d at 327. We conclude that the record supports the trial court’s finding that Alvarado’s detention of Hopkins was reasonable and that his seizure of the drugs was permissible because the crack cocaine was in plain view. See Walter, 28 S.W.3d at 545; Ramos, 934 S.W.2d at 365. Because we conclude that the detention of Hopkins and seizure of the crack cocaine were valid, we reject Hopkins’s contention that his oral statement concerning his debts to drug dealers was inadmissible fruit of an illegal search. We overrule Hopkins’s first point of error. Sufficiency of the Evidence In his second and third points of error, Hopkins contends that the evidence was insufficient to support his conviction. A. Standard of Review This court reviews legal and factual sufficiency challenges using the same standard of review. Ervin v. State, 331 S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). Under this standard, evidence is insufficient to support a conviction if considering all record evidence in the light most favorable to the verdict, a factfinder could not have rationally found that each essential element of the charged offense was proven beyond a reasonable doubt. Gonzalez v. State, 337 S.W.3d 473, 478 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)). Evidence is insufficient under this standard in four circumstances: (1) the record contains no evidence probative of an element of the offense; (2) the record contains a mere “modicum” of evidence probative of an element of the offense; (3) the evidence conclusively establishes a reasonable doubt; and (4) the acts alleged do not constitute the criminal offense charged. Gonzalez, 337 S.W.3d at 479 (citing Jackson, 443 U.S. at 314, 318, 320, 99 S. Ct. at 2786, 2789 n.11). If an appellate court finds the evidence insufficient under this standard, it must reverse the judgment and enter an order of acquittal. Gonzalez, 337 S.W.3d at 479. An appellate court “determine[s] whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence viewed in the light most favorable to the verdict.” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007)). When the record supports conflicting inferences, an appellate court presumes that the factfinder resolved the conflicts in favor of the verdict and defers to that resolution. Id. (citing Jackson, 443 U.S. at 326, 99 S. Ct. at 2793). “In deciding whether the evidence is sufficient to link the defendant to contraband, the trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony.” Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). In viewing the record, a court treats direct and circumstantial evidence equally: circumstantial evidence can be as probative as direct evidence, and “circumstantial evidence alone can be sufficient to establish guilt.” Clayton, 235 S.W.3d at 778 (quoting Hooper, 214 S.W.3d at 13). B. Applicable law To prove unlawful possession of a controlled substance, the State must show that the accused (1) exercised care, custody, control, or management over the contraband and (2) knew the matter possessed was contraband. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); see also Tex. Health & Safety Code Ann. § 481.002(38) (West 2010). When determining whether the defendant knew that he possessed narcotics, the jury may infer the defendant’s knowledge from his acts, conduct, remarks, and from the surrounding circumstances. Krause v. State, 243 S.W.3d 95, 111 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Possession is a “voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.” Tex. Penal Code Ann. § 6.01(b) (West 2011). If the contraband is not found on the accused’s person, independent facts and circumstances may “link” the accused to the contraband such that it may be justifiably concluded that the accused knowingly possessed the contraband. Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d); see Evans, 202 S.W.3d at 162. Among the many possible factors that we may consider in assessing the link between a defendant and contraband are: (1) the defendant’s presence when a search is conducted; (2) whether the substance was in plain view; (3) the defendant’s proximity to and the accessibility of the substance; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the substance was found; (12) whether the place where the substance was found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt. Evans, 202 S.W.3d at 162 n.12. Not all of these factors must be proved; rather, it is the cumulative logical force the factors have in proving possession that we must consider. See James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). Additionally, absence of some of the factors is not evidence of innocence that must be weighed against the factors that are present. Id. Rather, they are used to assess the sufficiency of the evidence linking the defendant to knowing possession of contraband. See, e.g., Roberson v. State, 80 S.W.3d at 735–36. C. Analysis Hopkins contends his conviction cannot stand because he testified that he does not sell drugs, that he did not put the crack cocaine in the car, that he never saw any drugs in the car and did not know where the cocaine came from, and because he and others testified that his wife, friends, and co-workers have access to his car on a regular basis. The jury heard Alvarado testify that he found the bag containing crack cocaine in plain view on the driver’s side floorboard in Hopkins’s car and that Hopkins had been driving the car alone just moments before his arrest. While Hopkins, Dusti Hopkins, and Earnest all testified that others drove the car on a regular basis, it is undisputed that Hopkins owned the car and was the sole occupant of the car immediately before the crack cocaine was seized. And Hopkins himself testified that he could not say that anyone else had driven his car on the day of the arrest. In addition to hearing testimony that the crack cocaine was in plain view and accessible to Hopkins in an enclosed space that Hopkins owned and had a right to possess, the jury heard evidence of Hopkins’s incriminating statement to Alvarado that he “owe[d] a lot of money to drug dealers” and that Hopkins appeared nervous at the scene. Several links connecting Hopkins to the crack cocaine are present. See Evans, 202 S.W.3d at 162. While Hopkins correctly asserts that the jury heard testimony indicating that Hopkins did not knowingly possess the crack cocaine, the jury was free to disbelieve or believe the testimony presented at trial and was the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. See Poindexter, 153 S.W.3d at 406. We conclude that the evidence is sufficient to support the jury’s finding that Hopkins possessed the crack cocaine. See Evans, 202 S.W.3d at 166; see also Robinson v. State, 174 S.W.3d 320, 329–30 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (affirming conviction for possession of front-seat passenger in truck where cocaine was located in factory compartment in back wall of truck and easily accessible to passenger); Harmond v. State, 960 S.W.2d 404, 407 (Tex. App—Houston [1st Dist.] 1998, no pet.) (evidence sufficient to support conviction for possession of controlled substance where appellant was sole occupant of car and drug paraphernalia was within plain view and accessible to appellant); Hyett v. State, 58 S.W.3d 826, 831 (Tex. App.—Houston [14th Dist.] 2001, ref’d) (evidence sufficient to show knowing possession where defendant was sole occupant of car in his control, and contraband was in plain view and close proximity to appellant). We overrule Hopkins’s second and third points of error. Conclusion We affirm the judgment of the trial court. Justice Rebeca Huddle Justice Panel consists of Justice Jennings, Massengale and Huddle. Do not publish. Tex. R. App. P. 47.2(b).