Dickson v. State

Full title: KENRICH DICKSON, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: May 27, 2005

No. 05-03-01284-CR (Tex. App. May. 27, 2005)

Opinion

No. 05-03-01284-CR

Opinion Filed May 27, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-63412-JV. Affirmed.

Before Justices MORRIS, FRANCIS and LANG-MIERS.

MEMORANDUM OPINION

Opinion By Justice LANG-MIERS.

The jury found Kenrich Dickson guilty of possession with intent to deliver cocaine in an amount of four grams or more but less than two hundred grams, found two enhancement paragraphs true, and assessed punishment at fifty-five years' confinement. See Tex. Health Safety Code Ann. §§ 481.112(a) and (d), 481.102 (Vernon 2003 and Supp. 2004-05); see also Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2004-05).¹ On appeal, appellant argues the evidence is legally and factually insufficient and that the trial court erred by admitting hearsay testimony and appellant's oral statement, and by refusing to require the state to disclose the identity of a confidential informant. We affirm.

1 We refer to the current version of the statutes involved in this appeal because any substantive changes to the laws effective after the date of the indictment do not affect this appeal.

Suffificiency of the Evidence

In a legal sufficiency challenge, we view the evidence in the light most favorable to the prosecution to determine whether 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, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). In a factual sufficiency challenge, we view the evidence in a neutral light to determine whether the fact-finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Under either review, the fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). To prove unlawful possession of a controlled substance, the State must show that appellant exercised care, control, and management over the substance and that appellant knew that what he possessed was contraband. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995); Porter v. State, 873 S.W.2d 729, 732 (Tex.App.-Dallas 1994, pet. ref'd). Control over the substance need not be exclusive and can be jointly exercised by more than one person. See McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App. 1985); Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.-Dallas 2003, no pet.). If the accused was not in exclusive possession of the contraband, the State must affirmatively link him to it. Brown v. State, 911 S.W.2d 744, 748 (Tex.Crim.App. 1995). "Affirmative links" is a "shorthand expression of what must be proven to establish that a person possessed some kind of drug `knowingly or intentionally.'" Brown, 911 S.W.2d at 747. No set formula exists to dictate a finding of affirmative links sufficient to support an inference of knowing possession of contraband. Porter, 873 S.W.2d at 732. The number of links is less important than the degree to which the links, alone or in combination, tend to affirmatively link the accused to the contraband. Wallace v. State, 932 S.W.2d 519, 524 (Tex.App.-Tyler 1995, pet. ref'd). Possible affirmative links include whether the defendant was present when the drugs were found, whether the drugs were in plain view, whether the drugs were found in proximity to and accessible by the defendant, whether the defendant was under the influence of drugs when arrested, whether the defendant possessed other contraband or drug paraphernalia, whether the defendant made incriminating statements when arrested, whether the defendant attempted to flee, whether the defendant made furtive gestures, whether there was an odor of drugs, whether the defendant owned or had the right to possess the place where the drugs were found, whether the place the drugs were found was enclosed, the amount of drugs found, whether the defendant possessed weapons, and whether the defendant possessed a large amount of cash. See, e.g., Porter, 873 S.W.2d at 732-33; Pettigrew v. State, 908 S.W.2d 563, 571 (Tex.App.-Fort Worth 1995, pet. ref'd); Washington v. State, 902 S.W.2d 649, 652 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd); Green v. State, 892 S.W.2d 220, 222 (Tex.App.-Texarkana 1995, pet. ref'd); Chavez v. State, 769 S.W.2d 284, 288-89 (Tex.App.-Houston [1st Dist.] 1989, pet. ref'd). In a possession with intent to deliver case, the "intent to deliver" element may be proved by circumstantial evidence, such as the quantity of drugs possessed, the manner of packaging, and the presence of the accused on the premises. Patterson v. State, 138 S.W.3d 643, 649 (Tex.App.-Dallas 2004, no pet. h.); Taylor, 106 S.W.3d at 831; Smith v. State, 737 S.W.2d 933, 941 (Tex.App.-Dallas 1987, pet. ref'd); see also Edwards v. State, 813 S.W.2d 572, 578-79 (Tex.App.-Dallas 1991, pet. ref'd) (en banc); Moss v. State, 850 S.W.2d 788, 797 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd). Further, intent to deliver is a question of fact for the jury to resolve, and it may be inferred from the acts, words, or conduct of the accused. Patterson, 138 S.W.3d at 649; Taylor, 106 S.W.3d at 831; Avila v. State, 15 S.W.3d 568, 573 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Here, the evidence adduced at trial showed that undercover narcotics detectives conducted an investigation into activities at 1830 Bennett Avenue, apartment 229, following a citizen complaint. Based on information obtained from a confidential informant, an application for a search warrant was prepared describing the individual who was the target of the search and the warrant was immediately executed. Upon entering the apartment, the detectives found appellant and a female, Amy Lee, lying on the bed in the master bedroom. The detectives testified that appellant fit the description of the individual named in the search warrant. While searching the master bedroom, detectives found an open cardboard box on the floor under the window next to the bed where appellant had been lying. The box contained in plain view a small glass or china plate containing residue, two razor blades partially wrapped in masking tape, varying sizes of small zippered baggies and a battery-powered scale. The detectives testified that these are the types of items used to cut and package crack cocaine for sale. The police also observed an ice tea can sitting on the television in the bedroom that appeared out of place and, based on experience, thought it might be a "stash can." Inside the can, a detective found a large baggie containing fifty-three smaller baggies each of which contained a white rock-like substance. A field test of the substance inside the baggies tested positive for cocaine. The substance in the baggies was later determined to be cocaine weighing 4.476 grams. Police also seized a baggie of marijuana in plain view. The officers testified that because of the cost and nature of cocaine, it would be unusual for a person to purchase fifty-three individual uses of crack cocaine. They testified this quantity of crack cocaine would not be considered personal use. The State's expert witness testified that the only reason to package cocaine in individual baggies is to sell it. Additionally, police testified they found men's clothing in the master bedroom closet and in a basket in the bedroom, and appellant confirmed that he lived at the apartment. Appellant also matched the description of the targeted suspect. Although appellant's name was not on the apartment lease, the State's expert witness testified that drug dealers often use a "straw rental" (using someone else to obtain a rental apartment or house on their behalf) from which to sell drugs. He testified that, depending on the person's relationship with the drug dealer, that person may or may not ever return to that location. Lee, the female lying on the bed with appellant at the time of the search, was named on the lease. Appellant argues that evidence of several of the affirmative link factors was not presented at trial. For example, police did not find any documents in the apartment, no money was seized from appellant, he did not resist the officers or attempt to flee, and his fingerprints were not found on the tea can or the plate. However, other factors indicate appellant was in possession of the crack cocaine, such as his presence at the location when the drugs were found, drug paraphernalia found in plain view, the cocaine in proximity to and accessible by appellant, his right to be in the apartment, and the large quantity of cocaine seized from the apartment. The jury evaluated the credibility of the police officers and detectives. No evidence was presented by the defense. It was the jury's prerogative to accept the officers' accounts as true. Whether appellant intended to deliver was a question of fact for the jury to resolve, and intent could be inferred from the evidence. We conclude the evidence is legally and factually sufficient to support appellant's conviction for possession of a controlled substance with intent to deliver. We overrule appellant's first and second issues.

Hearsay Testimony

Appellant next complains the trial court erred in admitting testimony by an undercover detective that drug trafficking had occurred in the apartment prior to the search. The following questioning transpired at trial:

Q. Detective, related to the location, 1830 Bennett Avenue, Apartment 229, please tell the members of the jury how that particular apartment first came on your radar as a place that might be involved in the sale or distribution of narcotics.

[DEFENSE COUNSEL]: I am going to object to that as blatantly calling for some sort of hearsay, Your Honor.

THE COURT: Overruled.

A. As I stated earlier, I work in a street squad area, and we respond to complaints from citizens. This can be done by phoning our office. People will remain anonymous, whoever takes the phone call puts the information down on paper on what is called a drug complaint. Those complaints are assigned to various detectives in our office depending on what division they are working in. On this particular 1830, Number 229, I was the one that received the complaint after it was taken on the phone. I was given a handwritten complaint that stated that there was crack —

[DEFENSE COUNSEL]: Objection, hearsay, Your Honor. THE COURT: Sustained.

[DEFENSE COUNSEL]: Ask the jury to disregard the last statement.

THE COURT: The jury will disregard the last statement.

Appellant argues the trial court should have sustained his initial objection to this testimony. The State argues the trial court did sustain the objection. The record reflects the trial court sustained defense counsel's objection to the "last statement." We conclude the "last statement" was the one the detective was not allowed to complete and the objection to the detective's other statements were overruled. Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex. R. Crim. Evid. 801(d). A statement not offered for its truth is not hearsay. See id.; Dinkins v. State, 894 S.W.2d 330, 347 (Tex.Crim.App. 1995). An extrajudicial statement offered for the purpose of showing what was said rather than for the truth of the matter stated does not constitute hearsay. Crane v. State, 786 S.W.2d 338, 352 (Tex.Crim.App. 1990); Porter, 623 S.W.2d at 385; Nixon v. State, 587 S.W.2d 709, 711 (Tex.Crim.App. 1979). In Gholson v. State, 542 S.W.2d 395, 398 (Tex.Crim.App. 1976), the court stated "[a]n extra-judicial statement or writing may be admitted as circumstantial evidence from which an inference may be drawn, and not for the truth of the matter stated therein, without violating the hearsay rule." In another case, a police officer testified about several out-of-court statements by a witness and that these statements caused the officer to suspect the defendant and ultimately obtain an arrest warrant based upon those statements. Jones v. State, 843 S.W.2d 487, 499 (Tex.Crim.App. 1992), overruled in part on other grounds by Maxwell v. State, 48 S.W.3d 196 (2001). The court held the extrajudicial statements were not hearsay because they were admitted to explain how the defendant came to be a suspect, not to prove the truth of the statements. Id.; Dinkins. 894 S.W.2d at 347. The question here asks the detective to explain what prompted his investigation of the activities in apartment 229, not whether drugs were actually being sold from that apartment. The detective responded that he was given the complaint, without stating the contents of the complaint. When the detective began to testify about the contents of the complaint, the trial court sustained defense counsel's hearsay objection. We conclude the trial court did not abuse its discretion in overruling the first objection to hearsay. We overrule appellant's third issue.

Appellant's Oral Statement

Appellant also complains the trial court erred in admitting into evidence his oral statement that he lived at the premises being searched. The trial court conducted a hearing outside the presence of the jury to determine the admissibility of appellant's oral statement that he lived in the apartment. Appellant argued it was inadmissible because it was the result of custodial interrogation and the State had not complied with article 38.22 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005). The trial court concluded that identification information is not a confession and ruled that he would allow the evidence at trial. When the State elicited the testimony from the officer at trial, appellant's objection was overruled. Article 38.22 precludes the use of a defendant's statement that results from custodial interrogation absent compliance with certain procedural safeguards. See id. However, the statute does not preclude the admission of statements that do not stem from custodial interrogation. See id.; see also Morris v. State, 897 S.W.2d 528, 531 (Tex.App.-El Paso 1995, no pet.). Not all police questioning is "interrogation." Jones v. State, 795 S.W.2d 171, 174 (Tex.Crim.App. 1990). Interrogation refers to words, actions or questions by police which police should know are reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 300-02 (1980); Jones, 795 S.W.2d at 174 and n. 3. Questions normally attendant to arrest, custody or administrative booking procedure do not constitute "interrogation" for purposes of article 38.22. See Pennsylvania v. Muniz, 496 U.S. 582, 601-02 (1990) (defendant's name, address, height, weight, eye color, date of birth, and current age admissible because they were within the "routine booking question" exception); see also Cross v. State, 144 S.W.3d 521, 524-25 n. 5 (Tex.Crim.App. 2004); Jones, 795 S.W.2d at 174 n. 3. When police executed the search warrant, detectives handcuffed appellant and Lee and removed them from the apartment during the search. The detectives placed appellant in a prone position on the outside landing. At that time, a uniformed police officer approached appellant to get identification information. This officer was part of a uniformed group of officers at the scene to assist the undercover detectives and had not been involved in the investigation. The officer testified that his purpose was to get booking information and to take pictures of the people removed from the apartment for identification purposes only and not to question the detainees about the offense. The officer asked appellant his name and appellant initially said his name is Kenrich Hicks. When the officer was unable to locate that name in his mobile computer, he asked appellant if Hicks was his real name. At that point appellant told the officer his real name. The officer located Kenrich Dickson in the computer with a last known address of 1830 Bennett, apartment 229. The officer wrote this information on the book-in sheet. He asked appellant if this was his address, pointing to the apartment, and appellant said yes. We conclude this questioning was the type of question normally attendant to arrest and custody and was not intended to elicit an incriminating response. However, even if we were to find appellant's statement should have been suppressed, we conclude the error was harmless because there were sufficient other affirmative links connecting appellant to the cocaine. Accordingly, we overrule appellant's fourth issue.

Disclosure of Confidential Informant

Appellant next complains of the trial court's denial of his motion for discovery of the identity of the confidential informant. The rules of evidence grant the State a privilege not to disclose the informant's identity. Tex. R. Crim. Evid. 508(a). An exception to the privilege arises when it appears that an informer may be able to give testimony necessary to a fair determination of a material issue on guilt or innocence. Tex. R. Crim. Evid. 508(c)(2); see Bodin v. State, 807 S.W.2d 313, 317-18 (Tex.Crim.App. 1991); Patterson, 138 S.W.3d at 648. However, for the exception to apply, the defendant must present evidence that makes a threshold showing that "the informer's potential testimony [will] significantly aid the defendant and mere conjecture or supposition about possible relevancy is insufficient." Bodin, 807 S.W.2d at 318. Within forty-eight hours prior to the search, detectives sent a confidential informant to apartment 229 to make a controlled buy. Based on the information gained from this informant, detectives requested a search warrant which contained a description of the targeted suspect. Appellant argues "the informant might have been able to provide information as to whether or not the Appellant sold cocaine that came out of the tea can that formed the basis of this prosecution. If the Appellant had not sold cocaine taken out of the tea can, then such fact would support the Appellant's argument that he was not affirmatively linked to the 4.4 grams of cocaine discovered in the tea can." However, appellant offered no evidence to support this contention or that selling the cocaine from the tea can was material to the issue of guilt or innocence. The informant was not present when the search warrant was executed and did not participate in the offense. See Washington, 902 S.W.2d at 657 (informant's identity not essential to fair determination of guilt when informant's information was only used to establish probable cause for warrant, informant not present when warrant executed and informant not a participant in offense). Appellant's argument that the informant "might have been able" to provide exculpatory information is nothing more than conjecture or supposition unsupported by any evidence. We conclude appellant failed to carry the threshold burden of making a plausible showing of how the informant's information may be important. See Bodin, 807 S.W.2d at 318; Patterson, 138 S.W.3d at 649; Washington, 902 S.W.2d at 657. We overrule appellant's fifth issue. Having decided all of appellant's issues against him, we affirm the trial court's judgments.