BEREATA JEANETTE v. THE STATE OF TEXAS

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Court of Appeals of Texas, Houston (1st Dist.).

------------ BEREATA JEANETTE lAWS, Appellant v. THE STATE OF TEXAS, Appellee

NO. 01-09-00431-CR

Decided: May 27, 2010

Panel consists of Justices Jennings, Hanks, and Bland.

MEMORANDUM OPINION

A jury found appellant, Bereata Jeanette Laws, guilty of the offense of possession of marijuana in a usable quantity under two ounces,1 and the trial court assessed her punishment at confinement for three days.   In four points of error,2 appellant contends that the trial court erred in denying her motion to suppress evidence and the evidence is legally and factually insufficient to support her conviction.

We affirm.

Background

Houston Police Department (“HPD”) Officer M. Brady testified that on September 3, 2008, at approximately 1:20 a.m., he saw appellant drive a car out of a driveway and onto a street.   Appellant, without turning on the headlights of the car, proceeded about one-half of a block before turning the headlights on.   Brady considered driving without headlights to be a “classic sign” of driving while intoxicated, and he activated the emergency lights on his marked patrol car and initiated a traffic stop.   Appellant immediately pulled her car to the side of the road.

HPD Officer K. Snyder testified that she and Officer Brady stopped appellant for driving the car at night without the headlights on.   After appellant had stopped the car, Snyder approached the passenger's side of the car while Brady approached the driver's side.   When Snyder reached the passenger's door, she, using her flashlight, looked into the open window and saw on the passenger's seat a “translucent,” “yellowish brown grocery type bag.”   She could see that the bag contained a “green leafy substance” with stems “poking out” that, from her training and experience, she immediately recognized as marijuana.   Brady removed appellant from the car while Snyder confiscated the “torn” “piece of a grocery bag,” opened it, and confirmed that it contained marijuana.   Brady then arrested appellant.   On cross-examination, Snyder could not identify the contents of similar grocery-type bags offered for demonstrative purposes by appellant.

Motion to Suppress Evidence

In her first and second points of error, appellant argues that the trial court erred in denying her motion to suppress evidence of the marijuana seized from her car because it was “obtained as the result of an unlawful traffic stop” and it was not in plain view.

We review a ruling on a motion to suppress evidence for an abuse of discretion.  Shepherd v. State, 273 S.W.3d 681, 684 (Tex.Crim.App.2008).   We generally consider only the evidence adduced at the suppression hearing unless the parties consensually re-litigate the issue at trial, in which case we also consider relevant trial testimony.  Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App.1996).   We give almost total deference to a trial court's determination of historical facts, especially if those determinations turn on witness credibility or demeanor, and review de novo the trial court's application of the law to facts not based on an evaluation of credibility and demeanor.  Neal v. State, 256 S.W.3d 264, 281 (Tex.Crim.App.2008).   At the suppression hearing, a trial court is the sole and exclusive trier of fact and judge of the witnesses' credibility.  Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App.2002).   Accordingly, a trial court may choose to believe or to disbelieve all or any part of a witnesses' testimony.  State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000).   Unless a trial court abuses its discretion by making a finding unsupported by the record, we defer to its findings of fact and will not disturb them on appeal.  Flores v. State, 177 S.W.3d 8, 13-14 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd).   When a trial court fails to make explicit findings of fact, we imply fact findings that support the trial court's ruling so long as the evidence supports these implied findings.  Gutierrez v. State, 221 S.W.3d 680, 687 (Tex.Crim.App.2007).

At the conclusion of the suppression hearing, the trial court orally found 3 that the “pieces of grocery bag material” were “transparent” and it could see “a dark leafy substance with what appeared to be stems kind of poking in the material,” as did Officer Snyder.   The court also found that Snyder's observation “was sufficient for [Snyder] to believe that the plastic bag material that was wrapped around this object, that the item was in fact marijuana.”

Reasonable Suspicion

Generally, a police officer's decision to stop a car is reasonable when the officer has probable cause to believe that a traffic violation has occurred.   Walter v. State, 28 S.W.3d 538, 542 (Tex.Crim.App.2000) (citing Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772 (1996)).   With an objectively valid reason for a traffic stop, the constitutional reasonableness of the stop does not depend on the actual motivations of the officer.   See Whren, 517 U.S. at 813, 116 S.Ct. at 1774.

The Texas Transportation Code provides that “[a] vehicle shall display each lighted lamp ․ required ․ to be on the vehicle ․ at nighttime.”   Tex. Transp.  Code Ann.N. § 547.302(a)(1) (Vernon 1999).   Officers Brady and Snyder both testified that they stopped appellant because they saw her drive her car out of a driveway and continue about one-half of a block down a street without activating the headlights.   Appellant asserts that “from the standpoint of an objectively reasonable person so situated as was the police officer, this five second drive out of a residential driveway before activating the car headlights does not amount to reasonable suspicion sufficient to justify an investigatory detention.”   However, the statute contains no distance or time qualifiers, which the legislature could have included had it so desired.   See, e.g., Tex. Transp.  Code. Ann.N. § 545.104 (Vernon 1999) (“An operator intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn.”).   The evidence showed that it was nighttime and appellant drove her car on a street without its headlights illuminated.   Any subjective motives of Officer Brady or Officer Snyder for the stop are not relevant.   See Whren, 517 U.S. at 813, 116 S.Ct. at 1774.   Accordingly, the evidence supports the trial court's conclusion that Officers Brady and Snyder's detention of appellant was reasonable.   See Walter, 28 S.W.3d at 542.

Plain View 4

Warrantless searches violate the Fourth Amendment and are per se unreasonable unless an exception, such as “plain view,” applies.  Walter, 28 S.W.3d at 541.   A police officer may seize an item in “plain view” if she (1) is legally present when she sees the item and (2) “immediately recognizes” the item as evidence such that she has probable cause to “associate the item with criminal activity.”  Ramos v. State, 934 S.W.2d 358, 365 (Tex.Crim.App.1996).   A police officer's observation of a traffic violation establishes probable cause to stop a car and, thus, provides the officer with a lawful vantage point from which she can look through the windows of a car into its interior.  Texas v. Brown, 460 U.S. 730, 739-40, 103 S.Ct. 1535, 1542 (1983);  Walter, 28 S.W.3d at 544-45.   To “immediately recognize” an item as evidence of criminal activity, a police officer need not have actual knowledge that the item is contraband, but she must have “probable cause to associate the [item] with criminal activity.”  Brown, 460 U.S. at 741-42, 103 S.Ct. at 1543;  Joseph v. State, 807 S.W.2d 303, 308 (Tex.Crim.App.1991).   A police officer may use her training and experience in determining whether an item in plain view is contraband.  Brown, 460 U.S. at 746, 103 S.Ct. at 1545 (Powell, J. concurring) (citing to United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695 (1981));  Joseph, 807 S.W.3d at 308.

Because Officers Brady and Snyder had reasonable suspicion to detain appellant for the traffic violation of driving at night without headlights illuminated, the officers could lawfully look into appellant's car as they conducted the traffic stop.  Walter, 28 S.W.3d at 544-45 (police officer conducting traffic stop could lawfully look into defendant's truck).   Appellant argues that because it was “very dark outside” when the traffic stop occurred, Officer Snyder had to use her flashlight and could not recall whether the bag that she had seized was open, closed, tied, untied, or double-bagged.   She further argues that, because Snyder, in court, could not identify the contents of similar bags, she “could not have seen the marijuana in plain view” during the traffic stop.   Appellant asserts that “the marijuana was not clearly visible without removing the bag from the car and opening it to examine the contents.”   However, Officer Snyder testified that she had, on “many occasions,” seen marijuana in plastic bags and, here, she immediately identified as marijuana the “green leafy substance” in the “transparent” plastic bag lying on the passenger's seat of appellant's car.   Snyder was not required to demonstrate that her belief that the bag contained marijuana was “more likely true than false,” only that she had probable cause to associate the contents of the bag with contraband.  Brown, 460 U.S. 730 at 742, 103 S.Ct. at 1543.   The evidence of Snyder's experience with narcotics and the transparency of the bag, along with her testimony that during the traffic stop she saw “leaves, stems, and seeds,” supports the trial court's conclusion that Snyder saw the bag and its contents in plain view and had probable cause to believe that the bag contained marijuana.

Accordingly, we hold that the trial court did not err in denying appellant's motion to suppress evidence of marijuana seized from her car.

We overrule appellant's first and second points of error.

Sufficiency of the Evidence

In her third and fourth points of error, appellant argues that the evidence is legally and factually insufficient to support her conviction because “the State failed to prove, beyond a reasonable doubt, that she intentionally or knowingly possessed marijuana in a usable quantity.”

We review the legal sufficiency of the evidence by considering all of 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 offense beyond a reasonable doubt.  Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, (1979)).   In doing so, we give deference to the responsibility of the fact-finder to fairly resolve conflicts in testimony, to weigh evidence, and to draw reasonable inferences from the facts.  Id. Our duty requires us to “ensure that the evidence presented actually supports a conclusion that the defendant committed” the criminal offense of which she is accused.  Williams, 235 S.W.3d at 750

In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the verdict seems “clearly wrong and manifestly unjust,” or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence.  Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App.2006).   We note that a jury is in the best position to evaluate the credibility of witnesses, and we afford due deference to the jury's determinations.  Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App.2006).   Although we should always be “mindful” that a jury is in the best position to decide the facts and that we should not order a new trial simply because we disagree with the verdict, it is “the very nature of a factual-sufficiency review that ․ authorizes an appellate court, albeit to a very limited degree, to act in the capacity of a so-called ‘thirteenth juror.’ ”  Watson, 204 S.W.3d at 414, 416-17.   Thus, when an appellate court is “able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury's verdict[,] ․ it is justified in exercising its appellate fact jurisdiction to order a new trial.”  Id. at 417.

An individual commits the offense of possession of marijuana if she “knowingly or intentionally possesses a usable quantity of mari[j]uana” in the amount of “two ounces or less.”  Tex. Health & Safety Code Ann. § 481.121(a), (b)(1) (Vernon Supp.2009).   To prove possession, the State must prove that the accused (1) exercised actual care, custody, control, or management over the substance and (2) knew that the matter possessed was a controlled substance.   Tex. Penal Code Ann. § 1.07(39) (Vernon Supp.2009);  Evans v. State, 202 S.W.3d 158, 161 (Tex.Crim.App.2006).   Possession is a “voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.”  Tex. Penal Code Ann. § 6.01(b) (Vernon 2003).

If the contraband is not found on the accused's person, independent facts and circumstances may “link” the accused to the contraband such that it may be justifiably concluded that the accused knowingly possessed the contraband.   Evans, 202 S.W.3d at 1610-62;  Roberson v. State, 80 S.W.3d 730, 735 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd).   Among the many possible factors that we may consider in assessing the link between a defendant and contraband are whether the narcotics were (1) in plain view;  (2) conveniently accessible to the accused;  (3) in a place owned, rented, possessed or controlled by the accused;  (4) in a car driven by the accused;  (5) found on the same side of the car as the accused;  or (6) found in an enclosed space;  and whether (7) the odor of narcotics was present;  (8) drug paraphernalia was in view of or found on the accused;  (9) the accused's conduct indicated a consciousness of guilt (e.g., furtive gestures, flight, conflicting statements);  (10) the accused had a special relationship to the drug;  (11) the accused possessed other contraband or narcotics when arrested;  (12) the accused was under the influence of narcotics when arrested;  (13) affirmative statements connected the accused to the drug;  (14) the accused's presence;  and (15) the accused was found with a large amount of cash.  Evans, 202 S.W.3d at 162 n.12;  Roberson, 80 S.W.3d at 735 n.2;  Villegas v. State, 871 S.W.2d 894, 897 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd).   The number of linking factors present is not as important as the “logical force” they create to prove that an offense was committed.  Roberson, 80 S.W.3d at 735.   The absence of various links does not constitute evidence of innocence to be weighed against the links present.  Hernandez v. State, 538 S.W.2d 127, 131 (Tex.Crim.App.1976);  James v. State, 264 S.W.3d 215, 219 (Tex.App.-Houston [1st Dist.] 2008, pet. ref'd).

In support of her arguments that the evidence is legally and factually insufficient to support her conviction, appellant asserts that it was very dark at the time of the traffic stop;  there were no street lights;  Officer Snyder's flashlight only illuminated “a small circular area”;  the bag containing the marijuana was “yellowish”;  Snyder could not recall if the bag was double-wrapped nor identify the contents of “similar” demonstrative bags despite the bright lighting in the courtroom;  the photographs admitted into evidence show that the bag was not translucent;  no evidence established that appellant owned the car, had a large amount of cash, had other contraband or drug paraphernalia on her person, was intoxicated, had a special connection to the marijuana, or exhibited a consciousness of guilt;  and there was no odor of marijuana in the car.   The State counters that appellant was the driver and sole occupant of the car in which the marijuana was found in close physical and visual proximity to appellant and the marijuana was in plain view on the passenger's seat.

The facts in this case are similar to those in Harmond v. State, where the evidence established that the defendant was the sole occupant and driver of a car in which cocaine in a makeshift crack pipe was found in plain view on the floorboard between the bucket seats closest to the driver's seat.  960 S.W.2d 404, 405 (Tex.App.-Houston [1st Dist.] 1998, no pet.).   There, the court held the evidence was legally sufficient to support the defendant's conviction for possession of cocaine.  Id. at 407;  see also Hyett v. State, 58 S.W.3d 826, 831-32 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (evidence sufficient to show knowing possession where defendant was sole occupant of car that he controlled but did not own, crack pipe was not present just before defendant entered car, and contraband was in plain view and in close proximity to defendant).

Here, viewing the evidence in the light most favorable to the verdict, appellant was the driver and sole passenger in a car where a plastic bag containing marijuana was found in plain view on the passenger's seat next to her, making it conveniently accessible.   Proof that appellant owned the car was not necessary as appellant's sole control of the car linked her to the marijuana.   See Hyett, 58 S.W.3d at 831.   We conclude that the evidence is sufficient such that a rational trier of fact could have found that appellant knowingly possessed the marijuana.   See Harmond, 960 S.W.2d at 406.   That, as appellant asserts, other links are absent does not affect the logical force of the evidence that shows that appellant knowingly possessed the marijuana.   See James, 264 S.W.3d at 219;  Roberson, 80 S.W.3d at 735.   Accordingly, we hold that the evidence is legally sufficient to support appellant's conviction.

Viewing the evidence in a neutral light, it is true that no evidence established that appellant owned the car that she drove or that she had been the only one to have driven the car that day.   Also, Officer Snyder did not testify that she smelled marijuana, and it was dark outside when appellant had entered the car.   However, the fact that appellant was the driver and sole occupant of the car supports an implied finding that she knowingly possessed the bag of marijuana, which was within plain view and in arm's reach on the passenger's seat next to her.   See Harmond, 960 S.W.2d at 406.   We conclude that this evidence is not so obviously weak such that the verdict is clearly wrong and manifestly unjust, or that the proof of guilt is against the great weight and preponderance of the evidence.   Accordingly, we hold that the evidence is factually sufficient to support appellant's conviction.

We overrule appellant's third and fourth points of error.

Conclusion

We affirm the judgment of the trial court.

FOOTNOTES

FN1. See Tex. Health & Safety Code Ann. § 481.121(a), (b)(1) (Vernon Supp.2009)..  FN1. See Tex. Health & Safety Code Ann. § 481.121(a), (b)(1) (Vernon Supp.2009).

FN2. Appellant included in her brief two separate lists of seven points of error, but she only briefs four points of error.   We address only those four points of error that have been briefed.   See Tex R.App. P. 38.1(i)..  FN2. Appellant included in her brief two separate lists of seven points of error, but she only briefs four points of error.   We address only those four points of error that have been briefed.   See Tex R.App. P. 38.1(i).

FN3. Neither party directly addresses whether the trial court's oral findings should be considered explicit findings.   Both appear to ask us to consider the trial court's implied findings..  FN3. Neither party directly addresses whether the trial court's oral findings should be considered explicit findings.   Both appear to ask us to consider the trial court's implied findings.

FN4. Because the parties re-litigated the plain view issue at trial, we consider the testimony of the officers at both the suppression hearing and at trial.  Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App.1996)..  FN4. Because the parties re-litigated the plain view issue at trial, we consider the testimony of the officers at both the suppression hearing and at trial.  Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App.1996).

Terry Jennings Justice

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