Allen v. State

• Decision Date: 07 March 2008
• Docket Number: No. 03-04-00557-CR.,03-04-00557-CR.
• Citation: 249 S.W.3d 680
• Parties: Chandell ALLEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

249 S.W.3d 680

Chandell ALLEN, Appellant, v. The STATE of Texas, Appellee.

No. 03-04-00557-CR.

Court of Appeals of Texas, Austin.

March 7, 2008.

Rehearing Overruled March 25, 2008.

Georgette Hogarth, Asst. Dist. Atty., Austin, for Appellee.

Don Morehart, Morehart and Weinman, Austin, for State.

Before Chief Justice LAW, Justices PEMBERTON and ONION^*.

OPINION

JOHN F. ONION, JR., Justice (Retired).

Appellant Chandell Allen¹ appeals her conviction for possession of a controlled substance, to wit: cocaine in the amount of more than 200 grams but less than 400 grams. See Tex. Health & Safety Code Ann. § 481.115(a), (e) (West 2003). After the jury found appellant guilty, appellant with the State's consent, requested that the trial court assess punishment. Pleading "true" to the enhancement of punishment allegations of a prior conviction for robbery, appellant was sentenced to fifteen years' imprisonment by the trial court. See Tex. Penal Code Ann. § 12.42(c)(1) (West Supp.2007).

POINTS OF ERROR

Appellant advances three points of error. Initially, she challenges the legal sufficiency of the evidence to sustain the conviction. Second, she urges that the evidence is factually insufficient to support the jury's verdict. Third, appellant claims that the insufficient evidence shows her mere presence at the apartment where the contraband was found. This contention is, of course, included in the first two points. We will sustain the appellant's first point and order an acquittal.

BACKGROUND

On December 4, 2004, Austin Police Officers executed a search warrant at the two-story apartment of Joe Houston at 1310 Southpoint Street, # C in Austin. Approximately eight men in black attire made a "no knock or announce" entry into the apartment at about 5:30 p.m. These men were the "entry team," and were followed by another eight men led by Officer Leslie Kyle to supervise the search. Prior to the search, Austin Police Officer Bart Gatlin began surveillance of Houston's apartment. Officer Gatlin testified that his surveillance began at about 4:30 p.m. on December 4, 2003, and lasted for thirty to sixty minutes. He saw appellant come out of the apartment and return on one occasion.² He saw a white woman and an older black man come separately to the apartment and then leave in a few minutes. He did not know these individuals or whether they lived in the neighborhood. He could not remember their clothing and did not detain them. Officer Gatlin did state that the foot traffic of two individuals could be indicative of narcotic activity.

When Officer Kyle and his officers entered the apartment, they found appellant seated on a couch in the living room with two small children, her daughter, Miracle, about five or six months old, and Jada Houston, about eighteen months old. Kyle found a "hot" marihuana roach on the couch which had recently been smoked. The record reflects that there were two diaper bags. In the one belonging to appellant, Officer Kyle found a razor blade. In the search of the house, a ceramic plate or platter was found on the back of the top of the kitchen refrigerator behind a cereal box and a bag of corn chips. On the platter were small baggies of powdered cocaine, several rocks of crack cocaine, a razor blade and a plastic knife. The residue scraped from the platter and utensils, also on the platter were later shown to weigh 0.03 grams of cocaine. The other cocaine weighed 6.82 grams. The 6' 1" tall Kyle stated the "plate" was in "plain view." He did not say the cocaine was in plain view.

Police officers found in a closed cabinet under the kitchen sink, a Pyrex jar containing a 12.64 gram "cookie" of crack cocaine. Near the jar was a sifter (strainer) and a fork with 0.68 grams of cocaine residue attached thereto. A digital electronic scale was also found in that cabinet. In another closed cabinet above the kitchen counter was found a stack of seven "cookies" of crack cocaine shown to weigh 94.57 grams. In a closed dog food bag, in the dining area near the kitchen, was found 134.28 grams of powdered cocaine. On a bar separating the living room and kitchen was another razor blade.

A search of the second floor of the apartment revealed two bedrooms. One contained a man's clothing and personal items. The other contained the clothes and belongings of a child. Nothing belonging to appellant was found on the second floor. Officer Kyle testified that paychecks and other personal papers seized all belonged to Joe Houston. The officer stated that no evidence was uncovered during the search to indicate that appellant lived there.

No cocaine was found on appellant's person. Officer Kyle stated that he did not observe any outward indications that appellant had been using cocaine. She was not agitated or hyper from such use. She had no powder residue on her clothes. She did not have a runny nose, had no burn marks on her fingers from smoking cocaine, and there was no aroma of recently burned cocaine in the apartment. No crack pipes, snorting tools, or needles, all typical drug user paraphernalia, were found. The evidence does not reflect that any cash or firearms were located.

Officer Kyle testified that appellant did not try to flee from the premises or attempt to hide any items. He described her as being cooperative with the police. Appellant made no incriminating statements. Officer Kyle did observe that the premises smelled of marihuana, but concluded that the smell came from the recently burned marihuana roach. At the conclusion of the search, appellant was released. She was not arrested.³

Latent fingerprints were recovered from some of the objects seized: the ceramic platter from the top of the refrigerator, the scale and its battery, and a Pyrex jar measuring cup. According to Dennis Degler, the fingerprint examiner for the Austin Police Department, appellant's known fingerprints (State's exhibit No. 26) matched the right thumb and left middle fingerprints lifted from the ceramic platter. (State's exhibits No. 22 & 23).⁴ Joe Houston's fingerprints were also found on the platter, and on the digital scale and the scale's battery. Appellant's fingerprints were not found and identified except on the underside of the ceramic platter. Degler testified that fingerprints could be lifted a year or longer after being made depending on environmental facts.

Chemist Glenn Harlison testified that the controlled substances seized were submitted to him, were analyzed and found by him to be 252.78 grams of cocaine. He related that he tested twenty of the crack cocaine racks found in a kitchen cabinet (State's exhibit No. 15), but not all the rocks.⁵ Appellant's counsel stated, "No objection," when the State introduced into evidence the search warrant affidavit, the search warrant, and the return thereon. The affidavit alleged that the premises in question were controlled by Joe Houston in whose name the utilities were registered; that Houston was on parole for convictions for narcotic-related offenses and had recently purchased a shotgun; that a confidential informant, who had given reliable information in the past, had been in Houston's apartment within the last seventy-two hours and had seen a distributable amount of cocaine there; and that Joe Houston was selling cocaine from the apartment.

The affiant, Detective Jeff White, stated his belief that Houston was knowingly in possession of cocaine and alleged that the apartment contained cocaine, firearms, U.S. currency, and tally sheets related to the sale of cocaine. The search warrant affidavit made no mention of appellant or any other woman.

The search warrant reflected that the magistrate found probable cause and issued the warrant. The execution or return and inventory dated December 5, 2003, reflected that the search occurred on December 4, 2003.⁶

Before resting its case-in-chief, the State played for the jury a videotape of the search itself. The tape consisted principally of an interview with appellant while she tried to handle two small children who were moving about. Appellant was not arrested for possession and was permitted to leave Houston's apartment.

The twenty-seven-year-old appellant testified in her own behalf. Appellant admitted that she had been placed on probation for robbery in 1996, had her probation revoked in 1999, had been released from prison in 2001, and that her parole was terminated in February 2002. At the time of the search, she lived at 2007 New York Avenue in Austin, and received food stamps and child support from the father of her four children.

Appellant related that in October 2003, she was introduced to Joe Houston at his mother's house by "Daryl, her children's uncle." She testified that Houston began to bring his daughter, Jada, to her house on Blessing Avenue on his way to work at a car wash, and would pick the child up in the evenings. He paid appellant for the baby sitting. Appellant testified that Houston moved from his mother's place to 1310 Southpoint, # C about November 1, 2003, which coincided with her own move to 2007 New York Avenue. Houston continued to bring Jada to her to baby sit. Appellant acknowledged that after Houston's move, she had taken groceries to his apartment on one occasion, and some pots on another because he did not have such utensils.

Appellant stated that on the morning of December 3, 2003, Houston telephoned her and asked her to pick up Jada because he was running late. She went alone in a taxi cab to Houston's apartment, arriving at about 8:30 a.m. A man named "Junior," whom she did not know, gave her the keys to the apartment and left. Jada was still eating her cereal, so appellant washed some dishes, got Jada's things, and took the child to appellant's home on New York Avenue. The next morning, December 4, 2003, Houston telephoned appellant again with the same excuse. Appellant indicated that "this had to stop." Appellant took her infant, Miracle, and went in a taxi cab to Houston's...