No. 14-07-00382-CR
Filed April 10, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 183rd District Court Harris County, Texas, Trial Court Cause No. 1067265.
Panel consists of Chief Justice HEDGES and Justices ANDERSON and BOYCE.
ADELE HEDGES, Chief Justice.
Appellant, Albert Cameron, Jr., appeals his conviction for possession of a controlled substance, namely cocaine weighing more than four grams but less than 200 grams, for which he was sentenced to 30 years in prison. On appeal appellant challenges the sufficiency of the evidence and the trial court's denial of his motion to suppress evidence. We affirm.
BACKGROUND
On May 1, 2006, La Porte police officers were dispatched to Bayshore Apartments after receiving an anonymous tip that drugs were being manufactured in apartment number 3. Upon arriving, Officers Martin and Dalton knocked on the apartment door. A female opened the door a few inches, immediately shut it, and yelled, "Police; the police are here." The officers knocked a second time, and Kenneth Williams answered the door. Williams identified himself as the lessee of the apartment and stepped outside to speak with the officers. While speaking with Williams, the officers heard commotion and movement inside the apartment. Williams told the officers that his friend, later identified as appellant, was alone in the apartment. Appellant was in the bathroom, which was in full view of the officers while they were standing at the front door of the apartment. Williams told appellant to come out of the bathroom. When appellant did not respond, the officers demanded that he come out. Appellant finally exited the bathroom and became argumentative. Appellant walked towards the officers wearing hospital scrubs covered in a white powdery substance that smelled similar to the household cleaning agent Comet. Williams was arrested for an outstanding warrant. When Officer Martin requested Williams' consent to search the apartment, appellant became extremely belligerent and physically aggressive. Using profanity, he told Williams not to give the officers consent to search the apartment. After observing appellant's aggressive conduct, the officers attempted to detain appellant for safety purposes. Appellant resisted and became physically combative with the officers, who were over powered by appellant's size. Officer Dalton, after warning appellant to stop resisting, tasered appellant. Minutes later, appellant was restrained with handcuffs. Appellant continued to be aggressive after being restrained and made various death threats against law enforcement officials. After oral and written consent by Williams, the police searched the apartment. Police found a cooking pot containing 10.6 grams of cocaine on the bathroom counter. The bathroom was covered in a white powder, purportedly the cleaning agent Comet, similar to the white substance found on appellant's clothing. In the living area, police found marijuana cigars on the coffee table. There was a heavy residue of cocaine in the kitchen around the stove top burners and three razor blades encrusted with heavy powder cocaine residue. In the master bedroom, police discovered a large quantity of crack cocaine inside a jewelry box in the dresser drawer and a small bag of powder cocaine inside a purse in the closet. Appellant was arrested for possessing the 10.6 grams of cocaine found in the bathroom. He was charged by indictment for felony possession of cocaine weighing more than four grams but less than 200 grams. A jury found appellant guilty as alleged in the indictment and sentenced him to 30 years' confinement in prison. On appeal, appellant contends that: (1) the evidence is legally and factually insufficient to support his conviction because the State failed to affirmatively link him to the cocaine found in the bathroom and (2) the trial court erred in denying his motion to suppress evidence of the contraband found in the search. ANALYSIS
In appellant's first two issues, he challenges the legal and factual sufficiency of the evidence. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and determine whether a trier of fact could have found each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). We give due deference to the jury's determinations, particularly those concerning the weight of the evidence and the credibility of witness testimony. Johnson v. State, 23 S.W.3d 1, 8-9 (Tex.Crim.App. 2000). When reviewing the factual sufficiency of the evidence to support a conviction, we review all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex.Crim.App. 2005). We then ask (1) whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the jury's verdict seems clearly wrong and manifestly unjust, or (2) whether, considering conflicting evidence, the jury's verdict is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15, 417; Johnson, 23 S.W.3d at 11. In this case, the State is required to show that appellant knowingly or intentionally possessed cocaine, an illegal substance, in the amount of more than four grams but less than two hundred. Tex. Health Safety Code Ann. §§ 481.115 (a),(d), 481.102(3)(D) (Vernon 2003). In order to prove the possession element of this offense, the State must present evidence that appellant exercised care, control, or management over the contraband and that he knew it was contraband. See Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005); Olivarez v. State, 171 S.W.3d 283, 291 (Tex.App.-Houston [14th Dist.] 2005, no pet.). When the accused is not in exclusive possession of the place where the contraband is found, the State must affirmatively link the accused to the contraband. Olivarez, 171 S.W.3d at 291. We have held that the following circumstances are evidence of affirmative links: (1) presence of accused when the search is conducted; (2) contraband in plain view; (3) proximity to and accessibility of the narcotic; (4) accused under the influence of narcotics when arrested; (5) accused's possession of other contraband or narcotics when arrested; (6) accused's incriminating statements when arrested; (7) attempted flight; (8) furtive gestures; (9) odor of contraband; (10) presence of other contraband or drug paraphernalia; (11) accused's right to possess the place where the drugs were found; (12) narcotics found in enclosed place; and (13) accused's conduct indicating a consciousness of guilt. Id. It is not the number of links that is dispositive; rather, it is the logical force of all of the evidence, direct and circumstantial. Coleman v. State, 113 S.W.3d 496, 501 (Tex.App.-Houston [1st Dist.] 2003), aff'd, 145 S.W.3d 649 (Tex.Crim.App. 2004). Affirmative links are established by the totality of the circumstances. Hyett v. State, 58 S.W.3d 826, 830 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). According to appellant, the State produced insufficient evidence affirmatively linking him to the cocaine found in Williams' bathroom. We disagree. The record reveals multiple affirmative links between appellant and the cocaine. Appellant was the only individual observed to have occupied the bathroom and last to leave prior to the search. The bathroom was a small confined area, and the pot containing the 10.6 grams of cocaine was in plain view. Appellant was in close proximity to the cocaine and had easy access to it. A white powdery substance that smelled like the cleaning agent Comet was found on appellant's clothing and spread across the bathroom. Detective Green testified that Comet is commonly mixed with cocaine to alter the ability to test the drug. Other contrabands, marijuana and powder cocaine, were found in other areas of the apartment. Appellant made furtive gestures and resisted detention by the officers. Appellant's violent demands that Williams not consent to a search, physical combativeness with the officers, and threats against law enforcement indicate a consciousness of guilt. Viewing the evidence in the light most favorable to the verdict, a rational jury could have found, beyond a reasonable doubt, that appellant knowingly or intentionally possessed cocaine weighing more than four grams and less than 200 grams. Furthermore, we cannot say that the evidence is so obviously weak or greatly outweighed by contrary proof as to indicate a manifest injustice has occurred. We overrule appellant's first and second issues. MOTION TO SUPPRESS
In appellant's third issue, he argues that the trial court erred in denying his motion to suppress evidence of the contraband seized during the search. The State responds that: (1) appellant has no standing to challenge the search and (2) Williams, the lessee, gave officers lawful consent to search the apartment. We agree. While we review a trial court's ruling on a motion to suppress evidence under an abuse of discretion standard, we review issues of standing to contest a search and seizure de novo. Parker v. State, 182 S.W.3d 923, 925 (Tex.Crim.App. 2006); Villareal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). Standing is an individual's right to complain about an allegedly illegal governmental search, and thus to exclude evidence. An accused has no standing to complain about the invasion of another's personal rights. Voyles v. State, 133 S.W.3d 303, 305 (Tex.App.-Fort Worth 2004, no pet.). In order to attain standing, appellant has the burden to prove that he had a legitimate expectation of privacy in the premises searched. Granados v. State, 85 S.W.3d 217, 223 (Tex.Crim.App. 2002); Villarreal v. State, 893 S.W.2d 559, 561 (Tex.App.-Houston [14th Dist.] 1994), aff'd, 935 S.W.2d 134 (Tex.Crim.App. 1996). Appellant must establish (1) that by his conduct, he exhibited a subjective expectation of privacy and (2) circumstances existed under which society was prepared to recognize his subjective expectation as objectively reasonable. See Villarreal, 935 S.W.2d at 138. Various factors may be considered when determining whether the accused's subjective expectation was one society recognizes as objectively reasonable: (1) accused's property or possessery interest in the place searched; (2) legitimacy of accused's presence in the place searched; (3) accused's complete dominion or control and right to exclude others; (4) accused took normal precautions prior to the search that are customarily taken by those seeking privacy; (5) accused put the property to some private use; and (6) accused's claim to privacy is consistent with traditional notions of privacy. See Calloway v. State, 743 S.W.2d 645, 651 (Tex.Crim.App. 1988). Here, appellant presents no evidence showing that he had a reasonable expectation of privacy in Williams' apartment. Williams identified himself as the lessee of the apartment. When asked about his residence by officers, appellant provided a different address. Appellant did not keep his clothes or other personal belongings at the apartment. See Villarreal, 935 S.W.2d at 137 (stating that an individual who has no possessory or proprietary interest in the premises, but is a guest, has no clothes in the house, or other belongings, has no legitimate privacy interest in the premises searched). At best, appellant was an informal guest; however, an individual has no valid expectation of privacy in a home where he is simply a guest. Villarreal, 893 S.W.2d at 561. Because appellant failed to establish a reasonable expectation of privacy, he has no standing to challenge the search. We hold that the trial court did not err in denying appellant's motion to suppress. Finding that appellant did not have standing to challenge the search of Williams' apartment, we need not address the validity of Williams' oral and written consent to search the apartment. We overrule appellant's third issue. We affirm the trial court's judgment.