Villegas v. State

• Decision Date: 17 February 1994
• Docket Number: No. 01-92-0866-CR,01-92-0866-CR
• Citation: 871 S.W.2d 894
• Parties: Juan Manuel VILLEGAS, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 894

871 S.W.2d 894

Juan Manuel VILLEGAS, Appellant, v. The STATE of Texas, Appellee.

No. 01-92-0866-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Feb. 17, 1994.

Discretionary Review Refused May 18, 1994.

Allen C. Isbell, Houston, for appellant.

John B. Holmes, Jr., Karen A. Clark, Lynne Parsons, Houston, for appellee.

Before HUTSON-DUNN, DUGGAN and ANDELL, JJ.

OPINION

HUTSON-DUNN, Justice.

Appellant was found guilty of possession of cocaine, with intent to deliver, and possession of marihuana. The jury assessed punishment at 60-years confinement and a $250,000 fine for count one and 60-years confinement and a $50,000 fine for count two. We affirm.

On April 29, 1992, a search warrant was executed for a house at 1948 Rosa. Appellant and another man, Jose Munoz, were inside the house at the time of the search. Two bundles of cocaine were found inside a closet in the back bedroom and two bundles of marihuana were found in a closet in a loft above the garage. A canine officer and his dog discovered two more bundles of cocaine hidden from view in a brown station wagon in the garage. Appellant was arrested and brought to trial. We affirm.

Appellant brings six points of error. He argues the evidence is insufficient to support either conviction, and that the trial court erred in overruling the motion to suppress and in failing to order the State to disclose the informer's identity.

Sufficiency of the Evidence

In points of error one and two, appellant argues that the convictions should be reversed because the evidence is insufficient to show knowing possession. We view the evidence in the light most favorable to the verdict to determine if 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, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979).

In order to establish the offense of unlawful possession of a controlled substance, the State must show 1) the accused exercised care, control, or management over the contraband, and 2) he knew that what he possessed was contraband. Humason v. State, 728 S.W.2d 363, 364 (Tex.Crim.App.1987). The control over the contraband need not be exclusive, but can be jointly exercised by more than one person. Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App.1986). When the accused is not in exclusive control of the place where the contraband is found, the State must show additional affirmative links between the accused and the contraband. Id. The affirmative links can be established by showing additional facts and circumstances that raise a reasonable inference of the accused's knowledge and control of the contraband. Id; Pollan v. State, 612 S.W.2d 594, 596 (Tex.Crim.App. [Panel Op.] 1981).

The affirmative link customarily emerges from an orchestration of several of a list of factors and the logical force they have in combination. Whitworth v. State, 808 S.W.2d 566, 569 (Tex.App.--Austin 1991, pet. ref'd). In determining if sufficient affirmative links exist, a reviewing court can examine such circumstantial factors as the amount of contraband found, its location in relationship to the defendant's personal belongings, the defendant's relationship to other persons with access to the premises, incriminating statements, and proximity of the defendant to the contraband. Frierson v. State, 839 S.W.2d 841, 849 (Tex.App.--Dallas 1992, pet. ref'd) (citing Earvin v. State, 632 S.W.2d 920, 924 (Tex.App.--Dallas 1982, pet. ref'd) and Pollan v. State, 612 S.W.2d at 596). Other factors to consider include: 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 men's clothing, if the defendant is male; 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. Classe v. State, 840 S.W.2d 10, 12 (Tex.App.--Houston [1st Dist.] 1992, pet. ref'd). It is significant whether the accused owned, rented, or controlled the place where the police found the contraband; whether the defendant had convenient access to the contraband; whether the police found the contraband in plain view or in areas private to the accused, Edwards v. State, 813 S.W.2d 572, 575 (Tex.App.--Dallas 1991, pet. ref'd), (citing Guiton v. State, 742 S.W.2d 5, 8 (Tex.Crim.App.1987) and Hughes v. State, 612 S.W.2d 581, 582 (Tex.Crim.App. [Panel Op.] 1981)); whether the defendant was the driver of the automobile in which the contraband was found; whether the place where the contraband was found was enclosed; and whether paraphernalia to use the contraband was in view of or found on the accused. Whitworth, 808 S.W.2d at 569.

The evidence in the case shows that the amount of contraband found was very large, i.e., 46.5 kilograms (more than 90 pounds) of 80.5 percent pure cocaine and 165 pounds of marihuana. The contraband was found in plain view in the closets of both bedrooms both of which contained men's clothing. Although Munoz owned the house, appellant's vehicle registration and telephone and gas records listed 1948 Santa Rosa as appellant's address, and it appeared that he was the sole occupant of the house. A small amount of marihuana and a household scale were found in plain view of appellant. Appellant was present at the address when the search warrant was executed.

Appellant 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 car that appellant has not been shown to operate on any other occasion is not sufficient, without additional facts, to prove care, control, and custody. The case before the Court today is distinguishable. The State showed that appellant typically drove a brown Plymouth and was only seen driving the station wagon in which the contraband was found on the date of the offense. When he drove into the driveway on Santa Rosa, he pulled the car into the garage and closed the door. In light of the significant amount of contraband found in plain view in the house, a rational trier of fact could easily have inferred that appellant used the station wagon to transport the contraband and had partially unloaded the bundles found in the house. The facts presented in this case raise a reasonable inference of appellant's knowledge and control of the contraband. Cooper v. State, 852 S.W.2d 678, 681 (Tex.App.--Houston [14th Dist.] 1993, pet. ref'd).

The evidence is sufficient to affirmatively link appellant with the contraband. Reviewing the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found appellant knew of and exercised care, control, or custody of the marihuana and cocaine.

We overrule points of error one and two.

Motion to Suppress

In point of error three, appellant argues the trial court erred in overruling appellant's motion to suppress because the affidavit in support of the search warrant failed to provide probable cause for its issuance in violation of the United States and Texas Constitutions.

Under the United States and Texas Constitutions, a search warrant may not issue unless it is based upon probable cause. Knight v. State, 814 S.W.2d 545, 546 (Tex.App.--Houston [1st Dist.] 1991, no pet.) (citing U.S. CONST. amend. IV; TEX. CONST. art. I sec. 9). Under the Texas Code of Criminal Procedure, an affidavit supporting the application for a search warrant must be filed, and must set forth sufficient facts that establish:

1) a specific offense has been committed; 2) the specifically described property or items that are to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense; and 3) the property or items constituting evidence to be searched for or seized are located at or on the particular person, place or thing to be searched.

TEX.CODE CRIM.P.ANN. art. 18.01(c) (Vernon Supp.1994).

In Illinois v. Gates, 462 U.S. 213, 239-40, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983), the United States Supreme Court adopted the "totality of the circumstances" approach for determining whether probable cause exists for issuance of a search warrant, rejecting the narrower "two-prong test" used under Aguilar. In Aguilar, the test was whether the affidavit 1) revealed the informant's basis of knowledge and 2) provided sufficient facts to establish either the informant's veracity or the reliability of the informant's report. Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964). In Gates, the Supreme Court held:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.

Gates, 462 U.S. at 239, 103 S.Ct. at 2332. Thus, the Supreme Court states that while the informant's veracity, reliability, and basis of knowledge are highly relevant, these elements are not entirely separate and independent requirements for each case. Id. at 231, 103 S.Ct. at 2328. Relying on information received from an informant is acceptable "so long as the informant's statement is reasonably corroborated by other matters within the officer's knowledge." Id. at 242, 103 S.Ct. at 2334. But, there must be some indicia of reliability of the tip. Id. at 233, 103 S.Ct. at 2329. "Under the totality of the circumstances test," the magistrate's "determination of probable cause...