Washington v. State

• Decision Date: 15 June 1995
• Docket Number: No. 14-93-00419-CR,14-93-00419-CR
• Citation: Washington v. State, 902 S.W.2d 649 (Tex. App. 1995)
• Parties: Kenneth Ray WASHINGTON, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 649

902 S.W.2d 649

Kenneth Ray WASHINGTON, Appellant, v. The STATE of Texas, Appellee.

No. 14-93-00419-CR.

Court of Appeals of Texas Houston (14th Dist.).

June 15, 1995.

Petition for Discretionary Review Refused Nov. 8, 1995.

David Bires, Houston, for appellant.

Kimberly Stelter, Houston, for appellee.

Before LEE, AMIDEI and EDELMAN, JJ.

OPINION

LEE, Justice.

Appellant entered a plea of not guilty before the jury to possession and intent to deliver more than 28 grams and less than 400 grams of a controlled substance. TEX. HEALTH & SAFETY CODE ANN. §§ 481.112; 481.115 (Vernon 1989). ¹ He was convicted of the possession charge and the jury assessed punishment at imprisonment for 7 years, probated and a $1 fine. In four points of error, appellant contends there was insufficient evidence to show that he exercised care, custody, or control over the substance, the search of his business was not supported by a valid search warrant, and the identity of a confidential informant should have been revealed. We affirm.

On September 29, 1992, appellant was stopped outside of his business by a team from the Houston Police Department. Pursuant to a search warrant, the team searched his business and found over 100 grams of crack cocaine in appellant's office. The officers also found a digital scale commonly used in drug trafficking in appellant's desk.

In his first point of error, appellant argues that the evidence was insufficient to show that he exercised care, custody, or control over the cocaine. When reviewing the sufficiency of the evidence, we look at the evidence in the light most favorable to the verdict. Garrett v. State, 851 S.W.2d 853, 857 (Tex.Crim.App.1993); Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984). In doing so, we are to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Ransom v. State, 789 S.W.2d 572, 577 (Tex.Crim.App.1989), cert. denied, 497 U.S. 1010, 110 S.Ct. 3255, 111 L.Ed.2d 765 (1990). See also, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Butler v. State, 769 S.W.2d 234 (Tex.Crim.App.1989). The standard of review is the same for both direct and circumstantial evidence. Geesa v. State, 820 S.W.2d 154, 161 (Tex.Crim.App.1991); Christian v. State, 686 S.W.2d 930, 934 (Tex.Crim.App.1985).

To support a conviction for unlawful possession, the state must prove that the accused: 1) exercised care, control and management over the contraband; and 2) knew the matter possessed was contraband. Id.; Campbell v. State, 822 S.W.2d 776, 777 (Tex.App.--Houston [14th Dist.] 1992, pet. ref'd).

Appellant took the stand and testified on his own behalf. He admitted he was the owner of the fast food restaurant where the cocaine was found, but contended that the cocaine was not his. He testified that he was at the restaurant at various times of day, as his schedule permitted, approximately eight hours a day. In addition to himself, the restaurant employed five people each of which had access to his office. He normally kept the office locked when he was not working at the restaurant, but a key to the office was left in the cash register for the employees to use. Appellant testified the cocaine and the scale were not his but, rather, belonged to one of the employees. None of the employees testified on his behalf. Appellant argues on appeal, that the state did not adequately show that he exercised care, custody, or control over the cocaine.

When an accused is not in exclusive possession of the place where the contraband is found, the state must present additional independent facts and circumstances that affirmatively link the accused to the contraband. The affirmative link must raise a reasonable inference that the accused knew of and controlled the contraband. Christian, 686 S.W.2d at 932; Dickerson v. State, 866 S.W.2d 696, 700 (Tex.App.--Houston [1st Dist.] 1993, pet. ref'd); Cooper v. State, 852 S.W.2d 678, 681 (Tex.App.--Houston [14th Dist.] 1993, pet. ref'd). Some factors on which various courts have relied to provide this affirmative link include: the place where the contraband was found was enclosed; the contraband was conveniently accessible to the accused; the accused was the owner of the place where the contraband was found; the quantity of drugs found; the accused possessed a key to the locked location of the drugs; a tip by an informant that the accused was in possession of contraband; the accused was in close physical proximity to a large quantity of contraband; and drug paraphernalia was found on or in plain view of the accused. Stokes v. State, 853 S.W.2d 227, 239 (Tex.App.--Tyler 1993, no pet.); Ettipio v. State, 794 S.W.2d 871, 874 (Tex.App.--Houston [14th Dist.] 1990), pet. dism'd, improvidently granted, 817 S.W.2d 344 (1991); Richardson v. State, 751 S.W.2d 663, 665 (Tex.App.--Houston [1st Dist.] 1988), rev'd on other grounds, 786 S.W.2d 335 (1990), cert. denied, 502 U.S. 972, 112 S.Ct. 448, 116 L.Ed.2d 466 (1991); see also Deshong v State, 625 S.W.2d 327, 329 (Tex.Crim.App. [Panel Op.] 1981).

The record reflects that on September 29, 1992, police placed appellant's restaurant under surveillance. The police arrived after the restaurant had closed and only appellant remained in the business. After appellant left the business, the police stopped him and placed him under arrest. Using appellant's keys, the police entered the business and determined that no one was inside the building. An officer used another key to unlock the padlock on appellant's office door. A narcotics search dog entered the office and identified a trash can and desk as potential locations for controlled substances. A subsequent search uncovered 1) over 100 grams of crack cocaine; 2) a small amount of crack cocaine wrapped in aluminum foil; 3) a piece of aluminum foil with residue of crack cocaine; and 4) a box containing a digital scale. All of the items were located in appellant's office. The 100 grams of cocaine were found between the liner of the trash can and the trash can. The small amount of crack wrapped in aluminum foil was found "in the seating part of the desk," while the aluminum foil with residue of crack and the scale were found in the desk drawers. An officer testified that the scale was a type commonly used in drug trafficking.

Appellant argues that the evidence presented fails to establish a link between him and the cocaine. We disagree. We find that the following facts provide an affirmative link which raised a reasonable inference that appellant had knowledge of and controlled the crack cocaine:

1. the office was enclosed and normally locked;

2. the cocaine was conveniently accessible to appellant and significantly less accessible to his employees;

3. appellant owned the restaurant where the cocaine was found and the cocaine was found in his office;

4. a large quantity of drugs were found;

5. appellant possessed a key to the locked office which the police used to open the office; and

6. a digital scale commonly used in drug trafficking was found in his desk.

The entirety of appellant's argument is based on his testimony that the cocaine and the drug paraphernalia were not his. By its verdict, it is clear that the jury did not believe him. The jury may accept or reject the state's version of the facts and it is up to them to weight the credibility of the witnesses. Elkins v. State, 822 S.W.2d 780, 783 (Tex.App.--Houston [14th Dist.] 1992, pet. ref'd). The jury may even choose to reject all of the defendant's testimony. Id.; Alvarado v. State, 822 S.W.2d 236, 240 (Tex.App.--Houston [14th Dist.] 1992, pet. ref'd). We are not to reweigh the evidence as a thirteenth juror. Watson v. State, 861 S.W.2d 410, 413 (Tex.App.--Beaumont 1993, pet. ref'd) cert. denied, 511 U.S. 1076, 114 S.Ct. 1659, 128 L.Ed.2d 376 (1994). We find the evidence presented provided an affirmative link from which the jury could rationally find that appellant controlled the cocaine and knew the cocaine was contraband. Appellant's first point of error is overruled.

In his second and fourth points of error, appellant complains of the sufficiency of the evidence supporting the search warrant. In his second point of error he argues there was not probable cause to search the restaurant. The search warrant was based on the affidavit of a police officer. The officer attested that he spoke with a reliable and credible confidential informant. The informant told him that appellant was selling cocaine out of his business. An interested buyer was to call a pager number and appellant would return the call. Appellant would then meet the buyer at a specified location, pick up the prospective buyer, drive around the block, return the buyer to the original location, and return to the restaurant. The police officer placed appellant under surveillance and observed appellant conducting sales exactly as described by the informant. In order to further substantiate the confidential informant's claims, the officer had the informant perform three "controlled buys." In each instance, the officer would search the informant for drugs prior to the transaction. The officer observed the informant and appellant as they conducted a transaction exactly as the informant had previously described. Each time, when he returned, the informant had purchased cocaine from appellant. Appellant admits the affidavit supports searching his person or his automobile, but argues it does not support searching his restaurant because none of the activity was conducted in the restaurant and he was not ever seen taking cocaine in or out of the restaurant.

In order for a search warrant to be valid it must be based on probable cause. U.S. CONST. amend. IV.; Lowery v. State, 843 S.W.2d 136, 138 (Tex.App.--Dallas 1992, pet. ref'd). A magistrate issuing a search warrant is to "make a practical, common-sense decision" whether there is a "fair probability that...