Hill v. State

• Court: Texas Court of Appeals
• Writing for the Court: JUNELL
• Citation: Hill v. State, 755 S.W.2d 197 (Tex. App. 1988)
• Decision Date: 07 July 1988
• Docket Number: No. C14-87-00300-CR,C14-87-00300-CR
• Parties: Clinton Russell HILL, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)

Page 197

755 S.W.2d 197

Clinton Russell HILL, Appellant, v. The STATE of Texas, Appellee.

No. C14-87-00300-CR.

Court of Appeals of Texas Houston (14th Dist.).

July 7, 1988.

Sherra Miller, Houston, for appellant.

John B. Holmes, Jr., Jana K. Miller, Houston, for appellee.

Before JUNELL, SEARS and CANNON, JJ.

OPINION

JUNELL, Justice.

In a jury trial appellant was convicted of the felony offense of possession of cocaine. The jury found appellant had one prior felony conviction and sentenced him to forty-five years imprisonment and a fine of $4,500.00.

Appellant brings four points of error asserting that: (1) the evidence is insufficient to prove that appellant committed the offense; (2) the trial court erred in admitting in evidence the crack cocaine allegedly found and seized as a result of an illegal arrest; (3) he was denied effective assistance of counsel; and (4) the prosecutor's improper comments during the punishment stage of trial denied appellant his right to due process. We affirm.

In the early morning hours of December 7, 1986, Wanda Thompson heard a gunshot coming from Apartment No. 58 in the Oxford Garden Apartments complex where she was employed as a security officer. The man who answered the door at Apartment No. 58 said there had not been a shooting at the apartment. As Ms. Thompson was leaving Apartment No. 58, appellant called to her from inside the apartment and said that a shooting had indeed occurred. The security officer entered the apartment and called the police after seeing a woman with a gunshot wound. Ms. Thompson observed five people when she entered the apartment.

Officer Edwards and Officer Alexander first arrived at the scene followed by Officers Ashby and Kravetz. When Officer Ashby entered the apartment, ambulance paramedics, two police officers, the security officer, one or two males (including appellant) and an injured woman were present at the scene. The officers also saw individually wrapped crack cocaine rocks on counters, chest of drawers and coffee tables as well as paraphernalia for making crack cocaine on top of the kitchen cupboards. Officer Ashby testified that appellant was in the northeast bedroom when they arrived. Officers Ashby and Kravetz entered that northeast bedroom to assist the paramedics with the woman who had been shot.

As Officer Ashby was leaning on the east wall of the northeast bedroom he noticed a little plastic bag containing crack cocaine behind a weight lifting barbell. The officer picked up the cellophane bag and counted the pieces of rock cocaine. Officer Ashby gave the rock cocaine to his partner since Ashby was still assisting the paramedics. A short time later Officer Ashby went to the front room and asked the people gathered there who lived in the apartment. Appellant replied that the apartment was his. Officer Ashby then asked appellant what it (the cocaine) was. Appellant responded that he didn't know what the item was. At this point appellant was arrested, handcuffed, and given Miranda warnings. Appellant was placed in the police car and driven to the police station. While Officers Ashby and Kravetz were driving appellant downtown, appellant suddenly stated "I fu--ed up. I shouldn't have had the crack in my apartment anyway."

In his first point of error appellant argues that the evidence is insufficient to sustain his conviction. We disagree. In reviewing narcotics convictions based on circumstantial evidence, the appellate court must examine the record to determine whether there is a reasonable alternative explanation of the circumstances which a rational trier of fact would have to accept as raising a reasonable doubt of the appellant's guilt. Earvin v. State, 632 S.W.2d 920, 922 Tex.App.--Dallas 1982, pet ref'd). The evidence must establish more than a suspicion of guilt. Ford v. State, 571 S.W.2d 924, 926 (Tex.Crim.App.1978). A conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the defendant's guilt. Bryant v. State, 574 S.W.2d 109, 111 (Tex.Crim.App.1978).

In order to establish the unlawful possession of a controlled substance, the state must prove two elements: (1) that the accused exercised care, control, and management over the contraband, and (2) that the accused knew the matter possessed was contraband. Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App.1986); Rhyne v. State, 620 S.W.2d 599, 601 (Tex.Crim.App.1981); Dubry v. State, 582 S.W.2d 841, 843 (Tex.Crim.App.1979). Possession of contraband need not be exclusive and evidence which shows that the accused jointly possessed the contraband with another is sufficient. Woods v. State, 533 S.W.2d 16, 18 (Tex.Crim.App.1976); Long v. State, 532 S.W.2d 591, 594 (Tex.Crim.App.1975), cert. denied, 425 U.S. 937, 96 S.Ct. 1670, 48 L.Ed.2d 179 (1976). However, where the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Wiersing v. State, 571 S.W.2d 188, 190 (Tex.Crim.App.1978).

The court of criminal appeals has determined that finding the contraband in the open or plain view of the accused can establish an affirmative link. Pollan v. State, 612 S.W.2d 594, 596 (Tex.Crim.App.1981); Hernandez v. State, 538 S.W.2d 127 (Tex.Crim.App.1976). That the contraband was in close proximity to the accused and readily accessible to him is an additional fact indicating the accused's knowledge and control of the contraband. Pollan v. State, 612 S.W.2d at 596; Hahn v. State, 502 S.W.2d 724, 725 (Tex.Crim.App.1973). Another fact showing an affirmative link is that the amount of contraband found is large enough to indicate that the accused knew of its presence. Carvajal v. State, 529 S.W.2d 517, 520-21 (Tex.Crim.App.1975), cert. denied, 424 U.S. 926, 96 S.Ct. 1139, 47 L.Ed.2d 336 (1976). The issue before us then is whether the state established such independent facts and circumstances to affirmatively link appellant to the crack cocaine.

The state submits that sufficient affirmative links exist to connect appellant to the cocaine and create an inference that he knew of the existence of the cocaine. We agree. Appellant told Officer Ashby that the apartment was his. ¹ The record shows that appellant was in the northeast bedroom when the officers first entered the apartment. The baggie containing the crack cocaine was found in plain view in the northeast bedroom. Officer Ashby testified that there were small bags of individually wrapped crack cocaine rocks located on numerous counters and coffee tables throughout the apartment. In addition to all of the foregoing, appellant voluntarily admitted to Officers Ashby and Kravetz that he should not have had the crack cocaine in his apartment. The state maintains that this statement shows appellant's knowledge that the cocaine existed. Appellant makes no argument that his statement should not have been admitted in court or that it should not be considered in reviewing the sufficiency of the evidence. Our reasons supporting the trial court's admission into evidence of appellant's statement will be discussed in point of error three.

After reviewing all of the evidence we hold that sufficient affirmative links exist to connect appellant with the cocaine. These affirmative links show that appellant knew of the crack cocaine and exercised control over the cocaine. We find no other reasonable explanation of the circumstances which would provide a jury with a reasonable doubt of appellant's guilt. We hold that sufficient evidence exists to sustain appellant's conviction for cocaine possession. Point of error one is overruled.

In point of error two appellant complains that the state lacked probable cause to arrest him and therefore his arrest was illegal and the evidence seized from the allegedly illegal search was inadmissible. It is well established that under certain circumstances the police may seize evidence in plain view without a warrant. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The plain view doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). A warrantless seizure by police of private possessions is permitted when: (1) the police officer lawfully makes the initial intrusion; (2) the incriminating evidence is discovered inadvertently; and, (3) it is immediately apparent to the police that the items they observe may be evidence of a crime, contraband or otherwise subject to seizure. Coolidge v. New Hampshire, 403 U.S. at 466, 91 S.Ct. at 2038. The seizure of property in plain view is presumptively reasonable as long as the officer has probable cause to connect the property with criminal activity. An officer has sufficient probable cause to seize the items if the circumstances surrounding the property are such to "warrant a man of reasonable caution in the belief" that certain items may be contraband, stolen property, or useful as evidence of a crime. Texas v. Brown, 460 U.S. 730, 740-742, 103 S.Ct. 1535, 1542-1543, 75 L.Ed.2d 502 (1983); Johnson v. State, 720 S.W.2d 239, 240 (Tex.App.--Houston [14th Dist.] 1986, no pet.)

It is uncontested that the police officers entered Apartment No. 58 in response to a report of a gunshot. Clearly, the officers' initial entry into the apartment was based on exigent circumstances. Officer Ashby inadvertently saw the cellophane bag containing the rock cocaine while he was in the northeast apartment bedroom assisting the paramedics. Because Officer Ashby believed the baggie contained contraband, he was justified in retrieving and subsequently opening...