Washington v. State

902 S.W.2d 649, 1995 WL 358679
Court of Appeals of Texas·Decided June 15, 1995·No. 14-93-00419-CR·Published·Cited by 88 cases

Opinion

902 S.W.2d 649 (1995)

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.

*651 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, *652 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. *653 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 o

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Washington v. State, 902 S.W.2d 649, 1995 WL 358679 (Tex. Ct. App. 1995).

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