Hunter v. State

• Decision Date: 13 November 2002
• Docket Number: No. 10-01-407-CR.,10-01-407-CR.
• Citation: 92 S.W.3d 596
• Parties: Kathleen Diane HUNTER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

92 S.W.3d 596

Kathleen Diane HUNTER, Appellant, v. The STATE of Texas, Appellee.

No. 10-01-407-CR.

Court of Appeals of Texas, Waco.

November 13, 2002.

Discretionary Review Refused March 5, 2003.

COPYRIGHT MATERIAL OMITTED

Andy J. McMullen, Hamilton, for appellant.

B.J. Shepherd, Hamilton County Dist. Atty., Martin L. Peterson, Assistant Dist. Atty., Meridian, for appellee.

Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.

OPINION

BILL VANCE, Justice.

Kathleen Diane Hunter appeals from her conviction for possession of methamphetamine. Hunter presents four issues: (1) whether an unsigned affidavit is sufficient to obtain a search warrant; (2) if her motion to suppress was untimely, did she receive ineffective assistance of counsel; and whether the evidence is (3) legally and (4) factually sufficient to sustain the conviction. Finding the search warrant invalid but the evidence seized as a result nevertheless admissible, and further finding the evidence to be legally and factually sufficient to support the conviction, we will affirm the judgment.

BACKGROUND

On January 4, 2001, Noland Hicks, a sergeant investigator of the Rural Area Narcotics Task Force (RANTF), met with a confidential informant who claimed that Harold Hugh Hart and Kathleen Diane Hunter possessed methamphetamine in their Hamilton County home. At approximately 9:00 p.m. that day, he presented an affidavit to Charles Garrett, the county judge of Hamilton County, to obtain a search warrant for the residence. Although Hicks was named as the affiant in the supporting affidavit, he failed to sign it. He testified that he "swore" to the contents of the affidavit before Judge Garrett, who signed the search warrant. Less than an hour later, Hicks and other members of the Task Force executed the warrant.

Hunter was alone when the officers entered the home. According to Hicks, "she had lots of tracks or needle marks on her hands and arms." Hicks also testified that Hunter "was always" at the home and that she kept "clothing and stuff there." While some officers searched the home for contraband, Officer Cody Lee remained in the kitchen logging every item seized in order to maintain an accurate inventory. As a result of the search, twelve items were found which might have methamphetamine. They were:

• a flashlight with plastic bag and tissue containing some sort of residue;

• a teddy bear with a plastic bag inside it;

• another teddy bear with a red balloon inside it;

• a cigarette box containing one handrolled cigarette;

• a spoon with a residue substance on it;

• a box containing syringes;

• a leather case with a baggy inside it;

• a clear baggy;

• a plastic baggy containing wet coffee filters;

• a black plastic tube with wet coffee filters inside that had a white powder residue;

• a plastic container with wet coffee filters inside that also had a white powder residue; and

• a flashlight containing syringes and lithium strips.

Araceli Uptmor, a drug analyst for the Department of Public Safety, tested the items to determine the presence and amount of methamphetamine, if any. Uptmor's analysis revealed approximately 0.06 grams of methamphetamine and adulterants.

Hunter was indicted for possession of less than one gram of methamphetamine. After she filed a motion to suppress the evidence, which was denied, she pled "not guilty." A jury convicted her of the offense and assessed punishment at two years' confinement in a state jail facility. She then brought this appeal.

LEGAL SUFFICIENCY OF THE EVIDENCE

Hunter's third issue asserts that the evidence is legally insufficient to sustain her conviction because mere presence where drugs are located is not sufficient to establish "possession." Davis v. State, 74 S.W.3d 90, 96 (Tex.App.-Waco 2002, no pet.). We address this issue before her other issues because under it she is entitled to an acquittal if she is correct. See Edmonson v. State, 951 S.W.2d 6, 6 (Tex. Crim.App.1997) (per curiam). Furthermore, the admissibility of evidence seized under the search warrant does not affect this issue because evidence erroneously admitted at trial is considered in determining sufficiency of the evidence in criminal cases. See Dunn v. State, 721 S.W.2d 325, 327 (Tex.Crim.App.1986) (all of the evidence, both proper and improper, must be considered in deciding the issue).

In assessing the legal sufficiency of the evidence to support a conviction, we consider all the evidence in the light most favorable to the prosecution and determine whether, based on that evidence and reasonable inferences therefrom, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Holberg v. State, 38 S.W.3d 137, 139 (Tex.Crim.App.2000). We are in the position of a final, due process safeguard, ensuring only the rationality of the fact finder. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988).

An illegal drug can be jointly possessed with others. Davis, 74 S.W.3d at 96 (citing Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App.1988)). Mere presence at the scene does not prove possession; there must be evidence "affirmatively linking" the accused to the contraband which shows the accused had knowledge of and control over the contraband. Id.

"Affirmative links" is a shorthand expression to identify what must be proven in a prosecution for the possession of illegal drugs. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995). An accused must not only have exercised actual care, control, or custody of the substance, but must also have been conscious of her connection with it and have known what it was. Evidence which affirmatively links her to it suffices for proof that she possessed it knowingly. Id. This evidence may be direct or circumstantial. Id. In either case it must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous. Id. This is the whole of the so-called "affirmative links" rule. Id. It is still, just as it always was, only a shorthand expression of what must be proven to establish that a person possessed some kind of drug "knowingly or intentionally." Id.

The evidence shows that Hunter had been living in the residence with Hart, Hart stored drugs at the residence and used it as a distribution point, and he had given Hunter drugs for her personal use. Some drugs, which Hart denied knowing about, were located in a kitchen cabinet. Hunter admitted that she knew drugs had been periodically stored in the house, but denied knowing that the drugs found in the search on the day of her arrest were there. She also said she had looked for drugs and failed to find any. From this evidence, we conclude that a rational jury could have found that Hunter knowingly possessed the drugs in question. Holberg, 38 S.W.3d at 139. We overrule issue three.

SUPPRESSION OF EVIDENCE

The validity of the search warrant is the basis for Hunter's first issue. She filed a motion to suppress the evidence obtained thereby, alleging that the warrant was invalid because the supporting affidavit was not signed by Officer Hicks as "required by the Fourth and Fourteenth Amendments to the Constitution of the United States of America, Article I, Section 9 of the Constitution of the State of Texas, and Chapter 18 of the Texas Code of Criminal Procedure."

Validity of the Search Warrant

In 1988, a panel of the San Antonio court of appeals addressed this issue. Vance v. State, 759 S.W.2d 498, 500 (Tex. App.-San Antonio 1988, pet. ref'd). The majority held that the magistrate's reliance on an unsigned affidavit to issue a search warrant did not violate the Texas Constitution's requirement that no warrant shall issue without probable cause supported by oath or affirmation, because the affiant had sworn to the magistrate that the contents of the affidavit were true. Id. We disagree with that conclusion.

Article I, Section 9 of the Texas Constitution reads:

The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.

TEX. CONST. art. I, § 9 (emphasis added). According to this provision of the Texas Constitution, a search warrant can be issued only if (1) the things to be seized are described "as near as may be," (2) there is "probable cause" to believe that the things to be found are present at the location, and (3) the facts in both (1) and (2) are "supported by oath or affirmation." Id.

The Code of Criminal Procedure provides:

No search warrant shall issue for any purpose in this state unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause does in fact exist for its issuance. A sworn affidavit setting forth substantial facts establishing probable cause shall be filed in every instance in which a search warrant is requested. The affidavit is public information if executed, and the magistrate's clerk shall make a copy of the affidavit available for public inspection in the clerk's office during normal business hours.

TEX.CODE GRIM. PROC. ANN. art. 18.01(b)

(Vernon Supp.2002) (emphasis added). In light of article 18.01(b) of the Code of Criminal Procedure, the three constitutional requirements must be provided to the magistrate in the form of a "sworn affidavit." Id.

We begin our analysis with an interpretation of the word "affidavit" as it is used in article 18.01(b). Article 3.01 of the Code of Criminal Procedure states that "[a]ll words, phrases and terms used in this Code are to be taken and understood in their usual acceptation in common language, except where specially defined." Id. art. 3.01 (Vernon 1977). Article 18.01, however, does...