Choice v. State, No. 12-02-00227-CR (Tex. App. 4/14/2004)

• Court: Texas Court of Appeals
• Writing for the Court: Sam Griffith
• Decision Date: 14 April 2004
• Docket Number: No. 12-02-00227-CR.,12-02-00227-CR.
• Citation: Choice v. State, No. 12-02-00227-CR (Tex. App. 4/14/2004) (Tex. App. 2004)
• Parties: GUELAND CHOICE, Appellant v. THE STATE OF TEXAS, Appellee.

Page 1

Unpublished Opinion

GUELAND CHOICE, Appellant v. THE STATE OF TEXAS, Appellee.

No. 12-02-00227-CR.

Court of Appeals of Texas, Twelfth District, Tyler.

Opinion delivered April 14, 2004.

DO NOT PUBLISH.

Appeal from the 241st Judicial District Court of Smith County, Texas.

Panel consisted of WORTHEN, C.J., and GRIFFITH, J. DeVASTO, J., not participating.

MEMORANDUM OPINION

SAM GRIFFITH, Justice.

Gueland Choice ("Appellant") appeals his conviction for possession of a controlled substance, cocaine, in an amount of four grams or more but less than 200 grams. Appellant presents four issues on appeal. We affirm.

BACKGROUND

Appellant was arrested and charged by indictment with possession of a controlled substance, cocaine, in an amount of four grams or more but less than 200 grams, including any adulterants and dilutants.¹ Appellant pleaded not guilty and elected a trial by jury. Before trial, Appellant filed a motion to suppress (1) any and all tangible evidence seized by law enforcement officers in connection with Appellant's detention and arrest, (2) the arrest of Appellant and any and all evidence relating to the arrest and any testimony of law enforcement officers concerning Appellant's actions while in detention or under arrest, (3) all written and oral statements made by Appellant to any law enforcement officer or others and any testimony of law enforcement officers regarding Appellant's statements, and (4) any other matters that the trial court finds should be suppressed. The trial court found that Appellant had no legitimate privacy interest in the mobile home that was searched and, therefore, lacked standing to contest the search. The trial court denied the motion to suppress as to the mobile home, but granted the motion as to automobiles on the premises.

At trial, Constable Dennis Taylor ("Taylor") of Smith County, Texas testified that he executed a search warrant on a mobile home in north Smith County on October 23, 2001. Taylor testified that an investigation involving the mobile home had been ongoing, and Taylor had successfully worked an informant on the premises. After Taylor had obtained sufficient information from the informant which he believed established probable cause, he obtained a search warrant to enter the mobile home and search for narcotics.

The next day, accompanied by Deputies Tommy Goodman ("Goodman") and Ron Van Ness ("Van Ness"), Taylor executed the search warrant. When they arrived, Taylor sent the deputies to the back of the mobile home, and he knocked on the front door. When someone asked who was at the door, Taylor identified himself by name and as a peace officer. Taylor also testified that he believed that he told the person he had a paper to give him and to come to the door. Taylor heard people in the mobile home running and talking. However, he could not hear what was being said. He continued knocking on the door. After a few minutes, Appellant opened the door slightly and asked what Taylor needed, but would not let Taylor in. Taylor testified that Appellant said to give him the paper, but Taylor replied that he needed to enter the mobile home. However, Appellant refused to let Taylor in, and closed the door. Taylor then pushed the door open, but Appellant attempted to keep him out. They struggled for about thirty seconds. Taylor then pulled his weapon, backed Appellant into the house, sat him on the couch, and told Appellant that he had a search warrant. Two unidentified occupants ran down the hall of the mobile home.

Goodman came in and stayed with Appellant while Taylor checked the other rooms. Taylor found Casey Mosley ("Mosley") in a bedroom. Taylor told Mosley he had a search warrant, and that he needed to come to the front room. Mosley complied, and was seated on the couch beside Appellant. Taylor found Levi Thomas Ponder ("Ponder") in the bathroom, and escorted him to the living room. Goodman and Van Ness searched the mobile home while Taylor catalogued items recovered by the deputies. The deputies found powder cocaine hidden under the tank lid of the commode, rock cocaine in the refrigerator and bedroom, marijuana in two bedrooms, and pills in a bedroom. All of the trash cans contained large amounts of discarded tobacco, indicating someone had made "blunts."² A set of blue electronic scales designed to make very exact, small measurements was found in plain view on the kitchen table. Another set of electronic scales was found in a bedroom. Cell phones and a marijuana pipe were also recovered at the mobile home. Additionally, the officers discovered empty baggies, another pair of scales, a razor blade, and a straw. The officers also found mail addressed to eight to ten people, and medicine bottles with prescriptions in the names of five or six people. Appellant's name was not on any of the medicine bottles, mail, or any documents found in the mobile home.

In the course of his investigation, Taylor discovered that the mobile home was leased to a Derrick Jenkins ("Jenkins"), who was not in the mobile home at the time of the search. Taylor testified that the mobile home was a "dope house," and no one lived there. Appellant had $619 in cash and Mosley had $1,411. Ponder had only $60. No drugs were found on Appellant. Taylor did not know if Appellant was under the influence of drugs because Appellant would not talk to the officers. Taylor did not find any indication that Appellant had been in other rooms of the mobile home. No attempt was made to determine if Appellant's fingerprints were on any of the plastic bags or on the tank lid of the commode where cocaine was discovered.

Karen Ream ("Ream"), a criminalist in the drug section for the Department of Public Safety ("DPS") Crime Lab in Tyler, Texas, testified that she analyzed items recovered in this case. The pills recovered at the mobile home contained controlled substances. Ream determined that the officers recovered a total of 217.73 grams of marijuana. According to her analysis, the powdery substance found under the commode tank lid was . 56 gram of cocaine. Further, she determined that there was a total of 24.14 grams of crack cocaine.

Ponder testified that he was arrested with Appellant at the mobile home. He testified that earlier on October 23, 2001, he took Mosley to Jacksonville where Mosley bought marijuana. Later, in Tyler, Mosley called Appellant from Ponder's vehicle, and Ponder heard Mosley tell Appellant where to meet. From this conversation, Ponder believed Appellant was coming to the mobile home to meet Mosley.

Ponder testified that Mosley asked him to give him a ride, and directed Ponder to the mobile home. At the time of the occurrence, Ponder believed that the mobile home was Mosley's home. However, at the time of trial, Ponder no longer believed that this was Mosley's home. Although he had been there once before, Ponder had never been inside the mobile home. Mosley told Ponder to come inside and wait for a few minutes. No one was in the mobile home when they got there. Mosley put the marijuana on the kitchen table. About five minutes later, Appellant arrived at the mobile home alone. Ponder noticed that Mosley and Appellant appeared to know each other "pretty well." When Appellant walked in, he did not inquire if anyone else was present. Appellant sat down at the kitchen table and Mosley stood beside him. Ponder remained on the couch watching television. Appellant appeared comfortable and did not appear nervous. Although Appellant and Mosley were talking, Ponder could not hear what they were saying. Ponder testified that Appellant did not seem shocked that there was one-half pound of marijuana on the kitchen table. Ponder went to the kitchen table. He did not recall what Mosley said. He recalls that Mosley showed Appellant a small bag of cocaine, but was unsure how many rocks of cocaine Mosley had. Ponder did not see Appellant's reaction. Ponder testified that he was "pretty sure" that Mosley had the cocaine first and stated to Appellant, "I got some work." According to Ponder, this meant that Mosley had some drugs. Ponder does not believe Appellant responded or appeared shocked. Further, Ponder did not see Appellant with any cocaine. Other than the marijuana and cocaine, Ponder did not see any other narcotics at the mobile home. Ponder testified that Mosley opened the set of scales that were beside the marijuana on the kitchen table and placed the cocaine on the scales in front of Appellant. Ponder did not hear either of them say anything, nor was any money displayed. Ponder never heard an offer to buy or sell any type of drugs between Appellant and Mosley. The cocaine was on the scales for less than a minute, and Mosley removed it immediately prior to Taylor's knock on the door. He did not see anything else weighed on these scales.

According to Ponder, Taylor knocked on the door not more than ten minutes after Appellant arrived. Mosley told Appellant to answer the door and "don't let him in." At that time, there was approximately one-half pound of marijuana on the kitchen table where Appellant had been sitting. Ponder went to the bathroom because he was scared, and Mosley went to the back bedroom.

The jury found Appellant guilty of possession of a controlled substance as charged in the indictment. Appellant elected to have punishment assessed by the court and was sentenced by the judge to ten years of imprisonment.³

MOTION TO SUPPRESS

In his third and fourth issues, Appellant argues that the trial court erred in overruling his motion to suppress in violation of his rights under the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution. We analyze the federal and state issues separately.

Standard of Review

In reviewing a trial court's ruling 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...