Sanchez v. State
| Decision Date | 27 October 2010 |
| Docket Number | NO. 07-08-0356-CR,07-08-0356-CR |
| Parties | JOHNNY ANDREW SANCHEZ, APPELLANT v. THE STATE OF TEXAS, APPELLEE |
| Court | Texas Court of Appeals |
NO. 07-03-6387; HONORABLE PAT PHELAN, JUDGE
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant, Johnny Andrew Sanchez, was convicted by a jury of possession of a controlled substance (cocaine) in an amount of four grams or more but less than 200grams.1 He was sentenced to seven years confinement and assessed a fine of $10,000. On appeal, Appellant asserts: (1) the evidence at trial was legally and factually insufficient to establish that he knowingly possessed the cocaine; (2) the trial court erred by denying his motion to suppress and, alternatively, (3) the trial court erred by refusing to instruct the jury on the provisions of article 38.23 of the Texas Code of Criminal Procedure.2 We affirm.3
Background
On February 16, 2006, Monty Peck rented a three bedroom, residential dwelling to Appellant and Chrisann Orosco pursuant to a joint Residency Tenancy Agreement (Agreement). The Agreement provided that "[t]he term of the lease [was] a periodic tenancy commencing 12:00 noon on and continuing on a month to month basis until the Landlord or the Tenant terminates the tenancy." The tenancy ran from the 16th to the 16th of each month and rent was due on or before the 16th of each month. Until Augustof that year, either Appellant or Orosco paid the rent in cash on or before the 16th of each month.
Prior to the rent being due for the period running from August 16, 2006 to September 16, 2006, Peck received a call from Orosco saying "they" were moving out on August 16 because they had purchased a house. Thereafter, neither tenant offered to pay the rent and no rent payments were made. On August 21, Peck entered the house to inspect the premises to determine whether cleaning and repairs were necessary. Inside the house, he found partial pieces of a dresser, broken lamps, and trash bags filled with garbage. He found no food, clothing, or any indication anyone was living there. When he went outside to inspect the yard, he discovered that the lock on the storage shed had been changed, and he did not have a key to fit the lock.
After returning to the house to complete his inspection, Peck discovered a key on a shelf in the laundry room. He returned to the shed, tried the lock with the new key and it opened. Inside the storage shed, he found several five gallon drums of oil, truck batteries, and tools. In an open box, he discovered an open, Enfamil baby formula can containing a clear plastic bag of white powder, digital scales and, in the bottom of the box, a number of small green envelopes. He called the police and, after the officers arrived, he signed a form consenting to a search of the storage shed. The police searched the shed and recovered the box and its contents.
Motion to Suppress
Appellant filed a motion to suppress all evidence seized by the police. At the suppression hearing, Appellant asserted that his landlord's entry upon the premises, his subsequent discovery of cocaine in the storage shed, and his consent permitting the police to search the premises was illegal because Appellant retained a leasehold interest in the property. Appellant contended that, because his landlord did not give him thirty days notice prior to terminating his lease4 and/or Appellant did not give Peck notice that he was leaving the premises on August 16th, his landlord had no authority to enter the premises.
The State countered that the landlord's consent was proper because Appellant had abandoned his leasehold interest prior to his landlord's consent and subsequent search. The State maintains that the landlord properly entered the premises per the Agreement's terms.5 The trial court ruled that, prior to August 21, Appellant had abandoned the property and overruled Appellant's motion.
Trial
Peck's testimony at trial largely mirrored that given at the suppression hearing. He testified that the Agreement required thirty days notice before either party could terminate the lease. He further testified that, after August 16, he sent a letter to Appellant and Orosco indicating they owed three weeks prorated rent or $487.50 because they only gave a week's notice before vacating on August 16. Peck deducted the prorated rent and repair expenses from their deposit.
Betty Modgling Steinhauser, a DPS latent print examiner, testified that two fingerprints belonging to Appellant were found on the bottom of the Enfamil can, and Scott Williams, a DPS forensic scientist, testified that the substance found in the Enfamil can was 140 grams of cocaine.
Orosco testified that the storage shed had a door that opened into the alley behind their house and someone could have accessed the storage shed from the alley. She also testified their baby was given Enfamil formula and Appellant would prepare the baby's bottles. She denied that she or Appellant ever used drugs or dealt drugs.
Regarding the lease, she testified that rent was due on the 16th of each month.6 She further testified she never entered the storage shed nor had she been close enough to notice whether a new lock had been installed on the shed door. She also testified that she called Peck a week or two before they moved out of the house and told him they were moving. When she and Appellant moved out, she testified they took everything worth taking.
Peck subsequently testified as a rebuttal witness for the State. He indicated that the back door to the shed opening into the alley was barricaded by a piece of lumber sitting in brackets bolted to the shed's wall. He testified that the back door was barricaded when he leased the property to Appellant and when he re-entered on August 21. He also testified that, when he leased the property, the storage shed was empty.
Jury Charge
At the charge conference, Appellant tendered an article 38.23 instruction asserting that the evidence at trial had raised a fact issue whether Peck's consent tosearch the shed was valid.7 The trial court overruled the request and instructed the jury. Thereafter, Appellant was convicted of possession of a controlled substance (cocaine) in an amount of four grams or more but less than 200 grams, sentenced to seven years confinement, and assessed a fine of $10,000. This appeal followed.
Discussion
Appellant asserts the evidence is legally and factually insufficient because the State failed to show that Appellant exercised care, custody, or control over the cocaine located in the storage shed or that he had knowledge the substance in the Enfamil can was cocaine. He next asserts the trial court erred in denying his motion to suppress because, under the Texas Property Code, Orosco's notice that they were vacating the premises on August 16 did not terminate their leasehold interest until September 2 (thirty days later). Therefore, Peck's entry onto the property on August 21st and his subsequent consent to a search of the storage shed by law enforcement officers violated Appellant's continuing leasehold interest. Finally, Appellant asserts the trial court erred by denying his article 38.23 instructions because there was a fact issue whether he had abandoned the premises or the lease was terminated on August 21.
Heretofore appellate courts have struggled with the distinction between legal and factual sufficiency of the evidence challenges. The Texas Court of Criminal Appeals has recently held that the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia. See Brooks v. State, No. PD-0210-09, 2010 WL 3894613 (Tex.Crim.App. Oct. 6, 2010) (plurality op.)8 Under that standard, in assessing the sufficiency of the evidence to support a criminal conviction, this Court considers all the evidence in the light most favorable to the verdict and determines whether, based on that evidence and reasonable inferences to be drawn therefrom, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 33 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
To support the verdict rendered in this case, the State was required to prove that Appellant knowingly possessed a controlled substance, to-wit: cocaine, in an amount of four grams or more but less than 200 grams. To prove possession, the State wasrequired to show that Appellant (1) exercised "actual care, custody, control, or management" of the substance and (2) knew the matter possessed was contraband. See § 481.102(38). See also Tex. Penal Code Ann. § 1.07(39) (Vernon Supp. 2008); Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex.Crim.App. 2005).
When, as here, the accused does not have actual possession of the controlled substance or exclusive possession of the locale where the controlled substance was found, it cannot be concluded or presumed that the accused had possession over the contraband unless there are additional independent facts or circumstances that tend to connect or link9 the accused to the knowing possession of the contraband. Poindexter, 153 S.W.3d at 406; Evans v. State, 202 S.W.3d 158, 161-62 (Tex.Crim.App. 2006); Allen v. State, 249 S.W.3d 680, 691 (Tex.App.-Austin 2008, no pet.).
A link is a fact or circumstance which generates a reasonable inference that the defendant knew of the contraband's existence and exercised control over it. Lair v. State, 265 S.W.3d 580, 600 (Tex.App.--Houston [1st Dist.] 2008, pet. ref'd). The evidence demonstrating such links may be direct or circumstantial. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995).
Numerous nonexclusive factors have been recognized as contributing...
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