Fontenot v. State

• Decision Date: 14 June 1990
• Docket Number: No. 05-89-00284-CR,05-89-00284-CR
• Parties: John FONTENOT, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

Page 250

792 S.W.2d 250

John FONTENOT, Appellant, v. The STATE of Texas, Appellee.

No. 05-89-00284-CR.

Court of Appeals of Texas,

Dallas

June 14, 1990.

Edgar A. Mason, Dallas, for appellant.

Robert P. Abbott, Dallas, for appellee.

Before HOWELL, LAGARDE and THOMAS, JJ.

OPINION

THOMAS, Justice.

John Fontenot appeals his conviction of unlawful possession with intent to deliver cocaine. Following a trial to the court, Fontenot was sentenced to five years' confinement in the Texas Department of Corrections, ¹ probated for a period of five years. In three points of error, Fontenot contends that: (1) the trial court erred in overruling his motion to suppress evidence; (2) the evidence is insufficient to show that he possessed cocaine with the intent to deliver; and (3) the evidence is insufficient to show that he possessed cocaine. We disagree and accordingly affirm the trial court's judgment.

FACTUAL BACKGROUND

Officers Lance Raymond and Michael E. Finlay were dispatched to the Red Roof Inn in Dallas, Texas at approximately 11:00 p.m. In the lobby of the motel they met Samantha Hamilton who advised the officers that she had lost her purse the night before and she believed it was in Jerry Smyrski's car that was parked at the motel. Hamilton told the officers that she had gone to the motel earlier to find Smyrski and looked in the room as much as they would let her and also in Smyrski's car, but she got scared and left. Hamilton also told the officers that she had seen Smyrski with a gun the day before. Hamilton further stated that Fontenot and Smyrski had been "partying" the night before in the room and there were drugs involved. After talking with Hamilton, the officers and either the motel manager or a security guard went to the motel room to look for Hamilton's purse. Officer Raymond knocked on the door, someone asked who was there and he responded "police officers." After a short pause, Smyrski answered the door. Officer Raymond explained that they were investigating the possibility of a misplaced purse. Officer Raymond asked Smyrski if they could come in and he replied, "Yes, you may come in." Officers Raymond and Finlay entered the room and saw Fontenot rush into the bathroom and close the door. After they entered the room, the officers did a visual inspection for their safety because of Hamilton's report that she had seen Smyrski with a gun the day before. Officer Raymond began talking to Smyrski, and when Fontenot came out of the bathroom, Officer Raymond asked who the room belonged to and "would it be okay to look around?" Fontenot responded, "Well, yes, but what's this about?" Officer Raymond said that they were looking for a purse. For their safety, Officer Raymond walked around the room and looked in the bathroom but did not see anyone. In addition to Fontenot and Smyrski, Nelson McFarland and Dottie Gray were in the room. Officer Raymond went back to the front door and began talking to Smyrski. Officer Raymond was told that Hamilton had already been to the room earlier that night and had looked in Smyrski's car for her purse. Officer Raymond asked if he could look in Smyrski's car and he said yes. Officer Raymond and Smyrski went outside and Officer Finlay remained in the room.

Officer Finlay asked Fontenot if anyone else was in the bathroom. When Fontenot did not answer, Officer Finlay thought that someone might be hiding, so he opened the bathroom door to look for himself. Because the shower curtain was closed, he pulled it open and discovered a briefcase in the bathtub. Stacked on top of the briefcase were newspapers, syringes, clear plastic bags with substances in them he believed to be drugs, and a brown bottle made into a pipe. Officer Finlay asked Officer Raymond to come back in the room and told him that he had found drugs in the bathroom. Officer Raymond went into the bathroom, picked up the briefcase from the bathtub, and brought it out and set it on a counter. The contents of the briefcase were described as: a spoon, a package of syringes, a bottle made to be a cocaine pipe, a clear glass tube, some packets with substances later identified as 460 milligrams of cocaine, a calculator, and a certificate of title and an automobile registration form in Fontenot's name. Fontenot was subsequently placed under arrest by Officer Finlay. Prior to the arrest, Fontenot had stated that the room was his in response to Officer Raymond's inquiry. After Fontenot was arrested, the officers did a pat-down search of Smyrski and McFarland. Because they had found drugs and had not found the purse, Officer Raymond then walked over to a second briefcase that was sitting on a television set in the room and asked who it belonged to. Smyrski answered that the briefcase was his. Officer Raymond opened it and found drug paraphernalia, drugs and a gun. Smyrski was then placed under arrest.

The defense called three witnesses. Dottie Gray testified that she arrived at Fontenot's motel room earlier that afternoon. Gray said that Hamilton came to the room looking for her purse and accusing Smyrski of stealing it. Gray helped Hamilton look through the room and also in Smyrski's car, but they could not find it so Hamilton left. When they heard a knock at the door Gray and Smyrski looked out the curtain to see who it was. She saw two officers and told the others it was the police. Gray opened the door half way and the others were crowded behind her to see who was there. The officers told her that the people upstairs complained that their music was too loud and she told them that they did not have a radio. They asked if she was Dottie Gray and asked her to step outside, which she did and closed the door behind her. As they were standing in the parking lot, the officers asked her if she knew where Hamilton's purse was. She told them that she did not know where it was and that she had helped Hamilton look for it earlier. The officers told Gray to stand outside against the wall. When she tried to go in the room to get her purse, the officers would not let her go back in. The officers then opened the motel room door and walked into the room. Gray testified that she did not hear them ask permission to enter. Gray remained outside for about twenty minutes. Gray testified that she saw cocaine in the room on the bathroom counter but she did not know who it belonged to. She did see Fontenot, Smyrski, and Hamilton touch it, and everyone in the room knew it was there and some used it.

McFarland testified that Fontenot picked him up between 8:00 p.m. and 9:00 p.m. Gray and Hamilton were with Fontenot when they picked McFarland up, and they all went to the motel so that Fontenot could get dressed. Smyrski later came to the motel room. Hamilton, Gray, and Smyrski went out to Smyrski's car to look for her purse. Gray and Smyrski later came back in the room without Hamilton. Fontenot was in the bathroom getting ready when there was a knock at the door. Gray answered the door, and the police told her that there was a complaint about loud music. She responded that they did not have any music on. McFarland testified that no one knew it was the police before they answered and no one went to the door with Gray. The police talked to Gray outside and then entered the room through the door that Gray had left open. McFarland testified that neither he, Fontenot nor Smyrski gave the officers permission to enter the room or to look around, but he did not know whether Gray gave them permission. Fontenot came out of the bathroom and asked the police what was going on and they said it was about a purse. Fontenot told them there was no purse in the room and that it had supposedly been left in the car. McFarland testified that one of the officers stayed outside with Gray while the other officer began searching the room. The officer went into the bathroom and came out and got the other officer. The second officer went into the bathroom and came out with two briefcases. He set them on a counter and asked who they belonged to. Smyrski responded that one of them was his and the other was Fontenot's. The officer then opened the briefcases and said there were drugs in one of them. They arrested Smyrski first and then Fontenot. McFarland testified that he did not see any drugs in the room.

Fontenot testified that he rented the motel room the afternoon of the incident. He picked up McFarland between 8:00 p.m. and 8:30 p.m. They went to the motel and waited for Smyrski to come by. After Smyrski arrived, Gray and Hamilton went outside with him and searched his car. They did not find the purse and Hamilton left. Fontenot went in the bathroom to finish getting ready to go out. While he was in the bathroom, he heard a knock on the door and heard "it's the police." As Fontenot was sitting on the toilet, Smyrski came in the bathroom and put two briefcases on his knees and shut the door. Fontenot set the briefcases over into the bathtub. Fontenot said he saw the newspapers and something stacked on top but did not pay attention to what it was. Fontenot testified that he got up, went into the other room to see what the problem was, closing the bathroom door behind him. He saw two police officers; one was in the room and the other was outside the open door. Fontenot asked what was going on, and the officer said he wanted to take a look around. Fontenot said, "No, wait a minute. What are we looking for?" The officer talked about the noise in the room and then said he was looking for a purse. The officer went in the bathroom and then called the other officer to the back of the room. The officers brought the briefcases out and set them on a counter. One of the officers asked if the room was registered to Fontenot and when he said yes, he was arrested. Fontenot testified that he never gave the officers permission to be in the room or to search it. Fontenot denied having any drugs in his possession and said he did not see any in the bathroom or in the motel room. H...