Roberts v. State

• Decision Date: 20 February 1998
• Docket Number: No. 06-96-00148-CR,06-96-00148-CR
• Citation: 963 S.W.2d 894
• Parties: L.T. ROBERTS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 894

963 S.W.2d 894

L.T. ROBERTS, Appellant, v. The STATE of Texas, Appellee.

No. 06-96-00148-CR.

Court of Appeals of Texas,

Texarkana.

Submitted Feb. 19, 1998.

Decided Feb. 20, 1998.

Kent A. Schaffer, Bires & Schaffer, Houston, for appellant.

Calvin A. Hartmann, Asst. Dist. Atty., Houston, for appellee.

Before CORNELIUS, C.J., and GRANT and ROSS, JJ.

OPINION

CORNELIUS, Chief Justice.

L.T. Roberts was convicted of the felony offense of possession with intent to deliver cocaine, a controlled substance. He was tried before a jury, which convicted him and set his punishment at twenty-five years' confinement and a fine of $75,000.00. Roberts challenges his conviction, contending that the evidence is legally and factually insufficient to prove that he possessed the cocaine as charged in the indictment; the trial court erred in overruling his claim that the State used its peremptory challenges in a racially discriminatory manner; the trial court committed reversible error in limiting the cross-examination of the arresting officer; and the court should have suppressed the evidence because the warrant failed to comply with Articles 18.06 and 18.10 of the Texas Code of Criminal Procedure. We overrule these contentions and affirm the judgment.

On August 4, 1993, a team of narcotics officers executed a search and arrest warrant on an automotive shop in search of cocaine. Roberts, the owner of the shop, and three other individuals were present when the officers arrived. One officer approached Roberts, who was standing in a bay doorway, and conducted a pat-down search and handcuffed him. After they searched the premises, an officer discovered a locked bank bag in a desk located in the shop office. An officer cut the bag open and found over 400 grams of cocaine. Thereafter, the officer returned to Roberts and searched him more thoroughly. He found a set of keys in Roberts' pants pocket. One of these keys fit the lock on the bank bag.

Roberts first contends that the evidence is legally and factually insufficient to support his conviction. In reviewing a challenge to both the legal and factual sufficiency of the evidence, we must first determine whether the evidence adduced at the trial was legally sufficient to support the verdict. Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App.1996); Gaffney v. State, 937 S.W.2d 540, 541 (Tex.App.--Texarkana 1996, pet. ref'd). The standard for reviewing legal sufficiency is whether, after reviewing the evidence in the light most favorable to the verdict 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Royal v. State, 944 S.W.2d 33, 35 (Tex.App.--Texarkana 1997, pet. ref'd); Gaffney v. State, 937 S.W.2d at 541. If the evidence is legally insufficient, the court must order an acquittal.

A factual sufficiency review is a question of fact. In conducting a factual sufficiency review, we review the fact finder's weighing of the evidence in an appropriately deferential way to avoid substituting our judgment for that of the jury. Clewis v. State, 922 S.W.2d at 135. We view all the evidence without the prism of "in the light most favorable to the prosecution," and 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 v. State, 922 S.W.2d at 135. When there is conflicting evidence, the fact finder's verdict on such matters in generally regarded as conclusive. Taylor v. State, 921 S.W.2d 740, 746 (Tex.App.--El Paso 1996, no pet.). If the evidence is insufficient, we remand the cause for a new trial. Gaffney v. State, 937 S.W.2d at 541.

To support a conviction for possession of a controlled substance, the State must show that the accused exercised actual care, custody, or control over the substance, that he was conscious of his connection with it, and that he possessed the substance knowingly or intentionally. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995). The evidence on these elements can be direct or circumstantial. Id. at 747. The State must establish that the accused's connection with the substance was more than just fortuitous. Id. Intent to deliver may be proved by circumstantial evidence. Reece v. State, 878 S.W.2d 320 (Tex.App.--Houston [1st Dist.] 1994, no pet.). When the contraband is not found on the accused's person or it is not in his exclusive possession, additional facts must affirmatively link him to the contraband. McMillon v. State, 940 S.W.2d 767, 769 (Tex.App.--Houston [14th Dist.] 1997, pet. ref'd); Menchaca v. State, 901 S.W.2d 640, 651 (Tex.App.--El Paso 1995, pet. ref'd); Green v. State, 892 S.W.2d 220, 222 (Tex.App.--Texarkana 1995, pet. ref'd). The link, however, need not be so strong that it excludes every other reasonable hypothesis except the defendant's guilt. Brown v. State, 911 S.W.2d at 748. The affirmative link ordinarily emerges from an orchestration of several factors and the logical force they have in combination. Villegas v. State, 871 S.W.2d 894, 896 (Tex.App.--Houston [1st Dist.] 1994, pet. ref'd).

The factors to be considered in determining whether an affirmative link exists are: (1) the defendant's presence when the search warrant was executed; (2) whether the contraband was in plain view; (3) the defendant's proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether contraband or drug paraphernalia was present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; and (12) whether the place the drugs were found was enclosed. Green v. State, 892 S.W.2d at 222; Chavez v. State, 769 S.W.2d 284, 288-89 (Tex.App.--Houston [1st Dist.] 1989, pet. ref'd). The number of the factors is not as important as the logical force the factors have in establishing the elements of the offense. Gilbert v. State, 874 S.W.2d 290, 298 (Tex.App.--Houston [1st Dist.] 1994, pet. ref'd). Possession need not be exclusive, and evidence showing joint possession with another is sufficient. Martinez v. State, 880 S.W.2d 72, 77 (Tex.App.--Texarkana 1994, no pet.).

Roberts argues that the evidence is insufficient to prove that he had care, custody, or control over the contraband or that he had knowledge of its presence. He points out that mere presence, by itself, at the scene of the search is not enough to support a conviction for possession of a controlled substance. Herndon v. State, 787 S.W.2d 408 (Tex.Crim.App.1990). Further, he argues that other people had access to both the building and the office where the cocaine was found, and that the only evidence linking him to the contraband is the key to the bank bag.

Contrary to Roberts' contentions, however, the evidence shows several affirmative links between him and the substance. First, he was at the place searched at the time of the search. See Villegas v. State, 871 S.W.2d at 896. Second, he was the owner and operator of the business in which the cocaine was found. Third, the cocaine was found in the desk drawer in the office. See Washington v. State, 902 S.W.2d 649, 652-53 (Tex.App.--Houston [14th Dist.] 1995, pet. ref'd) (finding substance in desk drawer of office is link even if other employees have access to the office). Fourth, there was a large amount of contraband. Id. Fifth and most important, Roberts had the key to the bank bag on his person at the time of the search. Roberts' possession of a key to a container with contraband reasonably implies his control over the contraband. Christopher v. State, 639 S.W.2d 932, 935 (Tex.Crim.App. [Panel Op.] 1982), overr. on other grounds, Preston v. State, 700 S.W.2d 227, 230 (Tex.Crim.App.1985); Hernandez v. State, 867 S.W.2d 900, 905 (Tex.App.--Texarkana 1993, no pet.); Garza Gonzalez v. State, 783 S.W.2d 774, 777 (Tex.App.--Corpus Christi 1990, no pet.); see also Trejo v. State, 766 S.W.2d 381, 384 (Tex.App.--Austin 1989, no pet.). Sixth, because he had possession of the key to the bank bag, he had ready access to it. Washington v. State, 902 S.W.2d at 652-53. Seventh, there was no evidence that anyone else but Roberts had a key to the bank bag, and he had undeniable, clear access to the bank bag and control over the office and desk as its owner. See cf. Garza Gonzalez v. State, 783 S.W.2d at 777. We find adequate affirmative links between Roberts and the cocaine, and thus the evidence is both legally and factually sufficient to support his conviction.

Roberts also contends that the court should have sustained his challenge to the State's exercise of its peremptory challenges. At the conclusion of voir dire and before the jury was sworn, Roberts notified the court that he had challenges to the jury based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Roberts challenged the State's strikes of venire members two, seven, twenty, and twenty-nine as being racially motivated.

In reviewing a Batson challenge, we review the record in the light most favorable to the trial court's rulings and determine if the court's action was clearly erroneous. Williams v. State, 804 S.W.2d 95, 101 (Tex.Crim.App.1991). A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court is left with the definite and firm conviction that the trial court committed a mistake. Whitsey v. State, 796 S.W.2d 707, 721 (Tex.Crim.App.1989). The trial court is the fact finder at a Batson hearing, and it is his responsibility to weigh the evidence and determine the credibility of the witnesses....