Levario v. State

• Decision Date: 18 December 1997
• Docket Number: No. 08-96-00406-CR,08-96-00406-CR
• Citation: 964 S.W.2d 290
• Parties: Saul LEVARIO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 290

964 S.W.2d 290

Saul LEVARIO, Appellant, v. The STATE of Texas, Appellee.

No. 08-96-00406-CR.

Court of Appeals of Texas El Paso.

Dec. 18, 1997.

Peter R. Escobar, El Paso, for Appellant.

Jaime E. Esparza, District Attorney, El Paso, for State.

Before BARAJAS, C.J, and McCLURE and CHEW, JJ.

OPINION

McCLURE, Justice.

Saul Levario appeals his conviction for possession of a controlled substance having an aggregate weight of four grams or more but less than 200 grams. Upon a finding of guilt, the trial court assessed punishment at ten years' probation and a $1,000 fine of which $500 was probated. Finding no error, we affirm.

FACTUAL SUMMARY

On March 15, 1995, the police department received an anonymous tip of narcotics activity at 1672 Brian Ray Circle. Based on this tip, the police set up surveillance and over a two-week period, observed people going to the house, staying only a few minutes, and leaving. The police then arranged with the sanitation department to pick up the discarded trash from the home in order to search for narcotics. In the trash, the police discovered a bundle of plastic wrapping with marijuana residue, seeds, stems, and plastic bags with cocaine residue. The officers also found a spoon with white residue on it; the spoon had been burned on the bottom. Based on the surveillance of the house and the evidence in the trash, the officers obtained a search warrant for the residence.

The following day, the officers executed the search warrant. Upon entering the home, they detained a male subject located in the living room and a female subject (later identified as April Barker). Levario was found in one of the bedrooms, standing by the bed. On the nightstand, the officers discovered a small straw with white residue inside. They also found two spoons in the bedroom--one in a drawer and one on the bed. Both spoons had been burned on the bottom indicating that they had been used for cooking cocaine. In a dresser in the closet, the officers found a plastic baggie containing seven diamond folds filled with cocaine. On top of the dresser, they found the plastic cellophane of a cigarette pack containing the butt of a marijuana cigarette. Additional marijuana was found in the top drawer. On the top shelf of the closet, the officers located a .22 handgun. The closet contained both men's and women's clothing. Officer Posada testified that it appeared that Levario and Barker shared the bedroom. Levario was then arrested and charged with possession.

In five points of error, Appellant complains that the evidence is legally and factually insufficient to support a conviction, that the trial court erred in overruling the motion to suppress, and that the court erred in admitting hearsay testimony and irrelevant evidence.

LEGAL SUFFICIENCY

Levario brings a legal sufficiency complaint in his first point of error. In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App.1991). We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App.1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843.

Unlawful possession of a controlled substance contains two elements. The State must prove (1) that the accused exercised care, control, and management over the contraband, and (2) that the accused knew the substance was contraband. See Martin v. State, 753 S.W.2d 384, 386 (Tex.Crim.App.1988); Menchaca v. State, 901 S.W.2d 640, 651 (Tex.App.--El Paso 1995, pet. ref'd); Musick v. State, 862 S.W.2d 794, 804 (Tex.App.--El Paso 1993, pet. ref'd). An affirmative link must be established between the accused and the contraband demonstrating both that the accused had control over it and that the accused had knowledge of its existence and character. See Brown v. State, 911 S.W.2d 744 (Tex.Crim.App.1995); Menchaca, 901 S.W.2d at 651. This "affirmative link" may be shown by either direct or circumstantial evidence, and "it must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous." Brown, 911 S.W.2d at 747.

When the contraband is not found on the accused's person or it is not in the exclusive possession of the accused, additional facts and circumstances must link the accused to the contraband. Menchaca, 901 S.W.2d at 651; Musick, 862 S.W.2d at 804. This may include any statements made by the accused, the proximity of the accused to the contraband and its accessibility or visibility to the accused, other people in the vicinity of the scene, and any indications of drug use by the accused such as the existence of drug paraphernalia and the presence of track marks on the accused. Davila v. State, 930 S.W.2d 641, 645 (Tex.App.--El Paso 1996, pet. ref'd). Other factors to consider are: (1) whether the defendant was at the place searched at the time of the search; (2) whether there were other persons present at the time of the search; (3) whether the contraband was found in a closet that contained clothing for the defendant; (4) whether the amount of contraband found was large enough to indicate the defendant knew of its existence; and (5) whether there is evidence establishing the defendant's occupancy of the premises. Villegas v. State, 871 S.W.2d 894, 897 (Tex.App.--Houston [1st Dist.] 1994, pet. ref'd), citing Classe v. State, 840 S.W.2d 10, 12 (Tex.App.--Houston [1st Dist.] 1992, pet. ref'd).

Levario was standing next to the bed when the officers entered the bedroom. On the bed was a spoon used for injecting cocaine; next to the bed on the nightstand was a straw with white residue on it. The butt of a marijuana cigarette was found on the dresser in the closet. All of the contraband was visible to and accessible by Levario. Finally, Detective Maldonado testified that the bedroom in which Levario was located was shared by him and Barker.

Levario cites Brown v. State, 663 S.W.2d 139, 142 (Tex.App.--Houston [1st Dist.] 1983, no pet.), for the proposition that evidence of contraband found hidden in a home in which the defendant was merely present is not sufficient, without additional facts, to prove care, control, and custody. We believe, however, that in light of the significant amount of contraband found in the bedroom within plain view of Levario, a rational trier of fact could easily have inferred that Levario had exercised care, custody, and control of the contraband. These facts raise a reasonable inference of his knowledge and control of the contraband. Villegas, 871 S.W.2d at 897, citing Cooper v. State, 852 S.W.2d 678, 681 (Tex.App.--Houston [14th Dist.] 1993, pet. ref'd). Point of Error No. One is overruled.

FACTUAL SUFFICIENCY

In Point of Error No. Two, Levario challenges the factual sufficiency of the evidence to support his conviction. In reviewing factual sufficiency, we consider all of the evidence, but we do not view it in the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996); Taylor v. State, 921 S.W.2d 740, 745 (Tex.App.--El Paso 1996, no pet.). We will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 129; Taylor, 921 S.W.2d at 745. In conducting a factual sufficiency review, the reviewing court cannot substitute its conclusions for those of the jury. Davila, 930 S.W.2d at 647; Taylor, 921 S.W.2d at 746. It is not within the province of this Court to interfere with the jury's resolution of conflicts in the evidence or to pass on the weight or credibility of the witness's testimony. Davila, 930 S.W.2d at 647; Taylor, 921 S.W.2d at 746. Where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. Id.

Applying the proper standard, we have reviewed the record in its entirety. Levario was located in the bedroom where the contraband and paraphernalia were in plain view. Additional contraband was accessible to Levario and located in a closet which contained men's clothing. The trial court's resolution of the issues was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Point of Error No. Two is overruled.

MOTION TO SUPPRESS

In his third point of error, Appellant argues that the trial court erred in denying his motion to suppress the search warrant. The affidavit to establish probable cause in support of the request for the search warrant was based upon a warrantless search of Appellant's garbage. Appellant contends that the garbage was within the curtilage of the residence and therefore, that the warrantless search and seizure of the garbage was unlawful. Without this evidence, Levario maintains that the remaining facts in the affidavit were insufficient to establish probably cause for the search of the residence.

We begin with the landmark case of California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). In Greenwood, the police acted on information indicating that Greenwood might be engaged in narcotics trafficking. Twice they obtained from Greenwood's regular trash collector evidence from garbage bags left on the...