Edwards v. State

813 S.W.2d 572, 1991 WL 111043

Opinions

OPINION

OVARD, Justice.

Lonnie and Johnnie Edwards appeal their respective convictions for the offense of possession of cocaine with intent to deliver. After a joint jury trial, the jury sentenced each of the twin brothers to five years’ imprisonment and a $1000 fine, probated for five years. In three points of error, appellants contend (1) that the evidence is insufficient to support their convictions, (2) that the trial court erred in not requiring the State to disclose the identity of the confidential informant, and (3) that the trial court improperly refused to hold an in camera hearing on the informant’s identity. We affirm the trial court’s judgments.

PACTS

Dallas Police Officer Kenneth Budjenska obtained a search warrant for apartment 106 of a Dallas apartment complex based on information that he had received from a confidential informant regarding drug trafficking at that address. At the time police executed the search warrant, no one was inside the apartment, and it contained only a few items of furniture. Police found in plain view inside the apartment fifty-five packets of crack cocaine on the dining room table, two shotguns, and an automatic pistol. They found no documents in the apartment, or elsewhere, which linked appellants to the apartment. The police also found no money or keys in the apartment or on appellants. The police did not check for fingerprints in the apartment or on the guns.

Dallas Police Officers Steven Claggett and Thomas Wafer handcuffed and detained appellants outside apartment 106. When the officers arrived, appellants were the only two persons in the area and stood about twenty-five to twenty-eight feet from the apartment door. They made no attempt to flee. Appellants were dressed identically except for different colored tennis shoes. Officers Claggett and Wafer spoke with the apartment manager. The manager stated that appellants lived in apartment 106, but he could not provide the officers with a copy of the lease for apartment 106. He did not appear as a witness at trial.

Both appellants testified. They stated that they were at the apartment complex visiting their stepfather’s girlfriend and that the police arrested them as they were leaving the complex. Appellants testified that they neither lived at nor had control over apartment 106. Both said they lived with their brother and his common-law wife. The stepfather’s girlfriend did not testify.

SUFFICIENCY OF THE EVIDENCE

In their third point of error, appellants claim that the evidence is insufficient to support their convictions. They argue that no evidence affirmatively links them to the cocaine found in apartment 106.

When determining whether the evidence is sufficient to support the conviction, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Marroquin v. State, 746 S.W.2d 747, 750 (Tex.Crim.App.1988). We use the same stan dard for both direct and circumstantial evidence cases. When reviewing the sufficiency of circumstantial evidence, we consider whether the evidence supports a reasonable hypothesis other than the defendant’s guilt. Belyeu v. State, 791 S.W.2d 66, 68 (Tex.Crim.App.1989). However, the State need not prove to a moral certainty that the circumstances presented exclude every hypothesis that another person may have committed the offense. It must only exclude every reasonable hypothesis raised by the evidence that tends to exculpate the defendant. If the combined and cumulative force of all the incriminating circumstances warrant a conclusion of guilt, the evidence is sufficient. Not every fact need point directly and independently to the defendant’s guilt. Brandley v. State, 691 S.W.2d 699, 703 (Tex.Crim.App.1985). The jury, as the trier of fact, remains the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. The jury may accept or reject all or any part of any witness's testimony. Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App.1982); see Tex.Code Crim.Proc. Ann. arts. 36.13 & 38.04 (Vernon 1981).

To show unlawful possession of a controlled substance, the State must prove that the accused exercised care, control, or management over the contraband, and that the accused knew the matter possessed was contraband. Humason v. State, 728 S.W.2d 363, 365 (Tex.Crim.App.1987). The evidence must affirmatively link the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband’s existence and that he exercised control over it. The State need not prove that the defendant had exclusive possession of the contraband. Evidence that shows the accused jointly possessed the contraband with another is sufficient. Ayers v. State, 570 S.W.2d 926, 928 (Tex.Crim.App.1978). The State establishes this affirmative link by showing additional facts and circumstances that indicate the accused’s knowledge and control of the contraband. Dubry v. State, 582 S.W.2d 841, 843 (Tex.Crim.App.1979). Relevant facts and circumstances linking an accused to the contraband include whether the accused owned, rented, or controlled the place where the police found the contraband, and whether the accused had convenient access to the contraband. Guiton v. State, 742 S.W.2d 5, 8 (Tex.Crim.App.1987) (op. on PDR). Other factors include wheth er the police found the contraband in plain view or in areas private to the accused. Hughes v. State, 612 S.W.2d 581, 582 (Tex.Crim.App. [Panel Op.] 1981); Smith v. State, 737 S.W.2d 933, 941 (Tex.App.—Dallas 1987, pet. ref’d). First, we consider whether the evidence affirmatively links appellants with the apartment. Then we determine whether additional links prove that they jointly possessed and controlled the contraband found within the apartment. See Herrera v. State, 561 S.W.2d 175, 179 (Tex.Crim.App.1978).

Evidence Linking Appellants to Apartment 106

Officer Claggett’s testimony

During direct examination, Officer Clag-gett testified that the apartment manager told him that appellants lived in apartment 106. Defense counsel objected to the manager’s statement to the police on hearsay grounds, and the court sustained the objection. However, defense counsel later solicited the same information from Officer Claggett on cross-examination when he asked an open-ended question. The pertinent part of the cross-examination proceeded as follows:

Q: What would you have done if there was another set of twins?

[PROSECUTOR]: Judge, I’m going to object to that question as being speculation.

THE COURT: Go ahead and answer.

A: If there would have been another set of twins, I probably still would have had to arrest these two.

Q: What if one twin was sitting next to John — standing next to Johnnie and another identical twin, black male about the right size, maybe, was standing next to Lonnie, which one would you have arrested?

A: Johnnie and Lonnie.

Q: Why?

A: Because the apartment manager told us they lived there.

[Defense Counsel]: Your Honor, I object to that. He was instructed earlier that he was not to go—

[The Court]: I think you solicited the answer.

Defense counsel continued questioning Officer Claggett. Shortly thereafter, he again elicited the information the police had received from the apartment manager:

Q: How did you know there was an apartment manager?

A: I don’t recall if it said it on his door, or sign out front that said apartment manager and the room number.

Q: You went there personally?

A: Yes, I did.

Q: You are telling us that as you just— excuse me. And you are trying to tell us that he told you these people occupied the premises?

A: That’s correct, he did.

Defense counsel entered no objection to Officer Claggett’s response. Defense counsel must object every time allegedly inadmissible evidence is offered. Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App.1984). Where the court erroneously admits testimony over defendant’s objection, and the defendant later allows the court to admit the same testimony or testimony to the same effect without objecting to it, defendant waives his prior objection. Kirvin v. State, 575 S.W.2d 301, 302 (Tex.Crim.App. [Panel Op.] 1978). However, the defendant does not waive the harmful effect of improperly admitted evidence when he seeks to meet, destroy, or explain it. Maynard v. State, 685 S.W.2d 60, 65 (Tex.Crim.App.1985). Defense counsel must press the court to the point of procuring a ruling to his objection, otherwise he waives that objection. Lewis v. State, 664 S.W.2d 345, 349 (Tex.Crim.App.1984). A nonspecific comment by the court does not equate to a ruling. See id.; Mayberry v. State, 532 S.W.2d 80, 82 (Tex.Crim.App.1975).

Defense counsel waived any objection to the manager’s statements to the police. First, defense counsel solicited the information when he asked Officer Clag-gett an open-ended question. Second, he did not press the court to the point of procuring a ruling to his objection and thus waived not only that objection, see Lewis, 664 S.W.2d at 349, but also his prior objection to this evidence, see Kirvin, 575 S.W.2d at 302. Third, defense counsel later intentionally elicited similar testimony from Officer Claggett without raising an objection. Finally, the intentionally elicited testimony was from Officer Claggett, not appellants, and in any case does not meet, destroy, or explain the manager’s statements to Officer Claggett.

Officer Budjenska’s Testimony

After appellants testified and defense counsels rested their cases, the State recalled Officer Budjenska. He testified that, during the book-in process, he asked appellants where they lived. One appellant indicated that they lived in apartment 106. During cross-examination, Officer Budjens-ka further testified, without objection, as follows:

Q: Isn’t it true that you are the one that suggested that that is their street address; that they lived there?

A: No, sir, it’s not true.

Q: They gave you that address? Is that what your testimony is?

A: No, they didn’t specifically give me the address. I said, where did they live. They indicated the apartment we had gone to and said was [sic] an uncle. I agreed—

Q: As a matter of fact, you insisted they lived at 4515, Apartment 106, isn’t that true?

A: No that is not true.

* * * * * *

Q: Okay. So when you say 106, that was exactly your view of what they were saying. They never said that apartment. They said that complex, if anything, isn’t that true?

A: Technically, they never mentioned 106.

Q: Technically, they never mentioned 106?

A: That is true. They didn’t say 106.

Q: So the 106 in your report is totally your opinion of where they lived? Yes or no?

A: I’m sorry. I’m trying to reconstruct and make sure what I’m answering you is what you are saying. Yes, I drew certain conclusions. I assumed we were all talking about the same apartment that all the police went in, and the bomb went off in. It was very evident the apartment we were talking about, yes. I did reach the conclusion that we were talking about the same apartment.

On redirect, Officer Budjenska testified, without objection, as follows:

Q: Officer, why did you assume when you were talking to these Defendants about where they resided, that y’all were both talking about Apartment 106?

A: All the activity that night centered around 106. We were there enough time to where there was a lot of activities in and out of 106.

Q: And, Officer, again, what did they say that leads you to believe that that was the Apartment 106 they were referring to?

A: I asked them where they stayed. They said, we stayed in that apartment with our uncle, referring to Apartment 106.

On recross, defense counsel asked Officer Budjenska whether he based the arrest solely on the information he received from the confidential informant. Without objection, Officer Budjenska testified:

A: Are you asking me if that is the only information that caused me to do that?

Q: To arrest these boys out in front of that apartment?

A: No, we had — I was told we had a manager that said they lived there.

Q: You didn’t know that when you came in?

A: When I came in where?

Q: In the complex. The manager wasn’t standing—

A: No, I didn’t know that.

Q: The only thing that caused you to arrest these boys outside this complex was that the twins were there, and that was the — is your affirmative link, is that not correct?

A: Maybe I’m getting confused when exactly — the point of arrest was when at the end of the case, when I decided, you know, for sure, who was going to jail. I knew both of that information. I knew the [confidential informant’s] information, and I knew the information that had been told to me by the officers about the manager. That is when I personally made a decision on who was going to jail.

Statements, other than ones made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted, constitute hearsay. Tex.R.CRIm.Evid. 801(d). A party’s own statements, made in his individual capacity, when offered against him do not constitute hearsay. Tex.R.Crim.Evid. 801(e)(2)(A). The State may use the statement of an accused against him if it appears that the accused gave the statement freely and vol untarily, without compulsion or persuasion. Tex.Code Crim.PROc.Ann. art. 38.21 (Vernon 1979). This means that the statement must not result from custodial interrogation. See Gauldin v. State, 683 S.W.2d 411, 413 (Tex.Crim.App.1984) (op. on PDR). Questions routinely asked during arrest and book-in, such as appellant’s name, address, and social security number, are not interrogation. Gamer v. State, 779 S.W.2d 498, 603 (Tex.App.—Fort Worth 1989, pet. ref’d).

When Officer Budjenska asked them their address, one appellant said that they lived in the apartment where the events occurred, which Officer Budjenska understood to mean apartment 106. The question was not “interrogation.” Gamer, 779 S.W.2d at 503. Further, appellant made the statement in his individual capacity, and that statement was then used against him. Therefore, the statement was not hearsay. The statement was an admission by that appellant that he lived in apartment 106 and was also evidence that the State could use to show that the other appellant also lived in apartment 106.

Summary

On appeal, we must consider unob-jected-to hearsay in determining the sufficiency of the evidence to sustain a conviction. Harris v. State, 727 S.W.2d 537, 541 (Tex.Crim.App.1987). Before 1986, hearsay admitted without objection had no probative value and could not support a finding of fact or a verdict. Mendoza v. State, 522 S.W.2d 898, 899 (Tex.Crim.App.1975). However, rule 802 of the Texas Rules of Criminal Evidence now states in pertinent part: “Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.” Tex. R.Crim.Evid. 802. The new rule does not automatically accord probative value to hearsay evidence. The trier of fact has the responsibility to determine the probative force of particular items of evidence.

Once the trier of fact has made its decision assessing and weighing the probative value of the evidence in its determination of guilt or innocence, an appellate court does not have the power to step in and reevaluate the probity of an individual item of evidence in its review of the sufficiency of the evidence to support the verdict.

Fernandez v. State, 805 S.W.2d 451, 456 (Tex.Crim.App.1991).

Officer Claggett testified, without objection, that the manager told him that the appellants lived in apartment 106. Officer Budjenska testified, without objection, that he did not decide who was going to jail until after he received the information about the manager’s statement. This testimony constitutes unobjected-to hearsay. This Court must consider it in determining the sufficiency of the evidence. See Harris, 727 S.W.2d at 541. Further, Officer Budjenska testified, without objection, that one appellant told him they lived in the apartment searched by the police. Appellant’s statement was made during the normal arrest procedure. The statement was an admission as to whichever appellant answered the question, and served as some evidence that the other appellant lived in apartment 106. A reasonable trier of fact could find beyond a reasonable doubt from this testimony that both appellants exercised control over apartment 106.

Evidence Linking Appellants to the Contraband

Officers Claggett and Wafer both explained the typical method used by crack dealers to market their goods. In a typical operation, the house or apartment is largely devoid of furnishings or personal property. There is no drug paraphernalia or evidence of on-premises drug usage. Large amounts of controlled substances, packaged for delivery, are kept in the crack house in an area easily accessible to the dealers. In addition, crack houses usually contain weapons for the dealers’ protection and a large wooden block to barricade the door. Dealers do not wait for customers inside the crack house. They typically leave all drugs inside and stand outside awaiting customers. The dealers accompany the customer inside for the transaction, then go outside again. The dealers try to distance themselves from the illegal contraband. The facts in this case correspond to the “typical” crack house operation.

Officer Budjenska testified that the police found the drugs, fifty-five individual packets of crack cocaine, lying in plain view on the dining room table inside apartment 106. The testimony that appellants had control of the premises, coupled with the large amount of contraband found in plain view in a common area of the apartment, sufficiently establishes that appellants jointly possessed and controlled the contraband. See Herrera, 561 S.W.2d at 179; Turner v. State, 543 S.W.2d 629, 631 (Tex.Crim.App.1976); Estrada v. State, 643 S.W.2d 753, 756-57 (Tex.App.—San Antonio 1982, no pet.). Officer Claggett additionally linked appellants to the contraband when he testified that appellants were the only persons in the area, and they stood twenty-five to twenty-eight feet from the apartment door. He also testified that the only entrance to apartment 106 was within their view and easily accessible to them. See Guiton, 742 S.W.2d at 8.

Conclusion

The facts surrounding the search and arrest that link appellants to the contraband include:

(1) the search turned up drugs in plain view, see Siroky v. State, 653 S.W.2d 476, 479 (Tex.App. — Tyler 1983, pet. ref’d);

(2) the drugs were conveniently accessible to appellants, Guitón, 742 S.W.2d at 8;

(3) appellants controlled the place where the drugs were found, Guitón, 742 S.W.2d at 8; Isaacs v. State, 770 S.W.2d 76, 79 (Tex.App — El Paso 1989, pet. ref’d).

Reviewing this evidence in the light most favorable to the verdict, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. We overrule appellants’ third point of error.

INFORMANT’S IDENTITY

In their first and second points, appellants contend that the trial court erred in not requiring the State to disclose the identity of the confidential informant and by refusing to have an in camera hearing to determine whether that information would be admissible. Appellants argue that disclosure of the informant’s identity was necessary because his testimony was essential to a fair determination of the cases against them. They cite Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), and rule 508 of the Texas Rules of Criminal Evidence.

Rule 508 states in pertinent part:

(a) Rule of Privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.

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(c) Exceptions.

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(2) Testimony on Merits. If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of the issues of guilt, innocence and the public entity invokes the privilege, the judge shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony.

Tex.R.Crim.Evid. 508. The Supreme Court explained in Roviaro that where disclosure of an informant’s identity, or the contents of his communication, is relevant and helpful to the defense, or is essential to a fair determination of a cause, the privilege must give way. Roviaro, 353 U.S. at 60-61, 77 S.Ct. at 627-28. Most of the federal cases involving this limitation on the scope of the informer’s privilege have arisen where the defendant challenged the legality of a warrantless search and claimed that the communications of an informer provid ed probable cause. Id. In those cases, the courts did not require the government to disclose the informer’s identity if there was sufficient evidence apart from his confidential communication. See id.

To determine whether the trial court erred by not requiring the State to disclose its informer’s identity, we consider all of the circumstances of the case. Rovi-aro, 353 U.S. at 62, 77 S.Ct. at 628. Rule 508 of the Texas Rules of Criminal Evidence requires an in camera hearing only if it appears that the informant’s testimony is necessary to a fair determination of the issues of guilt and innocence. Tex.R.CRIM.Evid. 508. Here, the informant was not present at the time of execution of the warrant or of the arrest. Neither did he participate in the offenses for which appellants were arrested, charged, and convicted. The informant’s testimony would have been neither relevant nor helpful. Further, his testimony would have related to events that occurred before the night of the arrests and would constitute inadmissible evidence of extraneous offenses. Therefore, the informant’s testimony was not essential to a fair determination of these causes and no in camera hearing was required. We overrule appellants’ first and second points of error.

We affirm the trial court’s judgments.

ENOCH, WHITHAM, STEWART, LAGARDE, THOMAS, KINKEADE, BURNETT, WHITTINGTON and CHAPMAN, JJ., agree with majority opinion. BAKER, dissents with an opinion in which ROWE and MALONEY, JJ., agree.