Edwards v. State

• Decision Date: 25 June 1991
• Docket Number: 05-89-00947-CR,Nos. 05-89-00946-C,s. 05-89-00946-C
• Citation: 813 S.W.2d 572
• Parties: Lonnie Gene EDWARDS and Johnnie Lynn Edwards, Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 572

813 S.W.2d 572

Lonnie Gene EDWARDS and Johnnie Lynn Edwards, Appellants, v. The STATE of Texas, Appellee.

Nos. 05-89-00946-CR, 05-89-00947-CR.

Court of Appeals of Texas Dallas.

June 25, 1991.

Discretionary Review Refused

Oct. 16, 1991.

Bruce Anton, Dallas, for appellants.

Anne B. Weatherholt, Dallas, for appellee.

Before the Court en banc.

OPINION

OVARD, Justice.

Lonnie and Johnnie Edwards appeal their respective convictions for the offense of possession of cocaine with intent to deliver. After a joint jury trial, the jury sentenced each of the twin brothers to five years' imprisonment and a $1000 fine, probated for five years. In three points of error, appellants contend (1) that the evidence is insufficient to support their convictions, (2) that the trial court erred in not requiring the State to disclose the identity of the confidential informant, and (3) that the trial court improperly refused to hold an in camera hearing on the informant's identity. We affirm the trial court's judgments.

FACTS

Dallas Police Officer Kenneth Budjenska obtained a search warrant for apartment 106 of a Dallas apartment complex based on information that he had received from a confidential informant regarding drug trafficking at that address. At the time police executed the search warrant, no one was inside the apartment, and it contained only a few items of furniture. Police found in plain view inside the apartment fifty-five packets of crack cocaine on the dining room table, two shotguns, and an automatic pistol. They found no documents in the apartment, or elsewhere, which linked appellants to the apartment. The police also found no money or keys in the apartment or on appellants. The police did not check for fingerprints in the apartment or on the guns.

Dallas Police Officers Steven Claggett and Thomas Wafer handcuffed and detained appellants outside apartment 106. When the officers arrived, appellants were the only two persons in the area and stood about twenty-five to twenty-eight feet from the apartment door. They made no attempt to flee. Appellants were dressed identically except for different colored tennis shoes. Officers Claggett and Wafer spoke with the apartment manager. The manager stated that appellants lived in apartment 106, but he could not provide the officers with a copy of the lease for apartment 106. He did not appear as a witness at trial.

Both appellants testified. They stated that they were at the apartment complex visiting their stepfather's girlfriend and that the police arrested them as they were leaving the complex. Appellants testified that they neither lived at nor had control over apartment 106. Both said they lived with their brother and his common-law wife. The stepfather's girlfriend did not testify.

SUFFICIENCY OF THE EVIDENCE

In their third point of error, appellants claim that the evidence is insufficient to support their convictions. They argue that no evidence affirmatively links them to the cocaine found in apartment 106.

When determining whether the evidence is sufficient to support the conviction, we 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 crime beyond a reasonable doubt. Marroquin v. State, 746 S.W.2d 747, 750 (Tex.Crim.App.1988). We use the same standard for both direct and circumstantial evidence cases. When reviewing the sufficiency of circumstantial evidence, we consider whether the evidence supports a reasonable hypothesis other than the defendant's guilt. Belyeu v. State, 791 S.W.2d 66, 68 (Tex.Crim.App.1989). However, the State need not prove to a moral certainty that the circumstances presented exclude every hypothesis that another person may have committed the offense. It must only exclude every reasonable hypothesis raised by the evidence that tends to exculpate the defendant. If the combined and cumulative force of all the incriminating circumstances warrant a conclusion of guilt, the evidence is sufficient. Not every fact need point directly and independently to the defendant's guilt. Brandley v. State, 691 S.W.2d 699, 703 (Tex.Crim.App.1985). The jury, as the trier of fact, remains the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. The jury may accept or reject all or any part of any witness's testimony. Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App.1982); see TEX.CODE CRIM.PROC.ANN. arts. 36.13 & 38.04 (Vernon 1981).

To show unlawful possession of a controlled substance, the State must prove that the accused exercised care, control, or management over the contraband, and that the accused knew the matter possessed was contraband. Humason v. State, 728 S.W.2d 363, 365 (Tex.Crim.App.1987). The evidence must affirmatively link the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband's existence and that he exercised control over it. The State need not prove that the defendant had exclusive possession of the contraband. Evidence that shows the accused jointly possessed the contraband with another is sufficient. Ayers v. State, 570 S.W.2d 926, 928 (Tex.Crim.App.1978). The State establishes this affirmative link by showing additional facts and circumstances that indicate the accused's knowledge and control of the contraband. Dubry v. State, 582 S.W.2d 841, 843 (Tex.Crim.App.1979). Relevant facts and circumstances linking an accused to the contraband include whether the accused owned, rented, or controlled the place where the police found the contraband, and whether the accused had convenient access to the contraband. Guiton v. State, 742 S.W.2d 5, 8 (Tex.Crim.App.1987) (op. on PDR). Other factors include whether the police found the contraband in plain view or in areas private to the accused. Hughes v. State, 612 S.W.2d 581, 582 (Tex.Crim.App. [Panel Op.] 1981); Smith v. State, 737 S.W.2d 933, 941 (Tex.App.--Dallas 1987, pet. ref'd). First, we consider whether the evidence affirmatively links appellants with the apartment. Then we determine whether additional links prove that they jointly possessed and controlled the contraband found within the apartment. See Herrera v. State, 561 S.W.2d 175, 179 (Tex.Crim.App.1978).

Evidence Linking Appellants to Apartment 106

Officer Claggett's testimony

During direct examination, Officer Claggett testified that the apartment manager told him that appellants lived in apartment 106. Defense counsel objected to the manager's statement to the police on hearsay grounds, and the court sustained the objection. However, defense counsel later solicited the same information from Officer Claggett on cross-examination when he asked an open-ended question. The pertinent part of the cross-examination proceeded as follows:

Q: What would you have done if there was another set of twins?

[PROSECUTOR]: Judge, I'm going to object to that question as being speculation.

THE COURT: Go ahead and answer.

A: If there would have been another set of twins, I probably still would have had to arrest these two.

Q: What if one twin was sitting next to John--standing next to Johnnie and another identical twin, black male about the right size, maybe, was standing next to Lonnie, which one would you have arrested?

A: Johnnie and Lonnie.

Q: Why?

A: Because the apartment manager told us they lived there.

[Defense Counsel]: Your Honor, I object to that. He was instructed earlier that he was not to go--

[The Court]: I think you solicited the answer.

Defense counsel continued questioning Officer Claggett. Shortly thereafter, he again elicited the information the police had received from the apartment manager:

Q: How did you know there was an apartment manager?

A: I don't recall if it said it on his door, or sign out front that said apartment manager and the room number.

Q: You went there personally?

A: Yes, I did.

Q: You are telling us that as you just--excuse me. And you are trying to tell us that he told you these people occupied the premises?

A: That's correct, he did.

Defense counsel entered no objection to Officer Claggett's response. Defense counsel must object every time allegedly inadmissible evidence is offered. Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App.1984). Where the court erroneously admits testimony over defendant's objection, and the defendant later allows the court to admit the same testimony or testimony to the same effect without objecting to it, defendant waives his prior objection. Kirvin v. State, 575 S.W.2d 301, 302 (Tex.Crim.App. [Panel Op.] 1978). However, the defendant does not waive the harmful effect of improperly admitted evidence when he seeks to meet, destroy, or explain it. Maynard v. State, 685 S.W.2d 60, 65 (Tex.Crim.App.1985). Defense counsel must press the court to the point of procuring a ruling to his objection, otherwise he waives that objection. Lewis v. State, 664 S.W.2d 345, 349 (Tex.Crim.App.1984). A nonspecific comment by the court does not equate to a ruling. See id.; Mayberry v. State, 532 S.W.2d 80, 82 (Tex.Crim.App.1975).

Defense counsel waived any objection to the manager's statements to the police. First, defense counsel solicited the information when he asked Officer Claggett an open-ended question. Second, he did not press the court to the point of procuring a ruling to his objection and thus waived not only that objection, see Lewis, 664 S.W.2d at 349, but also his prior objection to this evidence, see Kirvin, 575 S.W.2d at 302. Third, defense counsel later intentionally elicited similar testimony from Officer Claggett without raising an objection. Finally, the intentionally elicited testimony was from Officer Claggett, not appellants, and in any case does not meet, destroy, or explain the manager's statements to Officer Claggett.

Officer Budjenska's Testimony

After appellants testified and defense counsels rested...