Opinion issued January 5, 2006
In The
Court of Appeals
For The
First District of Texas
NO. 01-05-00299-CR
TERRENCE LAVAN JENKINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 977556
MEMORANDUM OPINION
Appellant, Terence Lavan Jenkins, was convicted in a bench trial of possession of less than one gram of a controlled substance, oxycodone. See Tex. Health & Safety Code Ann. §§ 481.115(a),(b), 481.102(3)(A) (Vernon 2003 & Supp. 2005). The trial court assessed punishment at confinement for one year in the state jail.
In two points of error, appellant contends that the trial court erred in overruling his motion to suppress the narcotics seized from the car that he had been driving and that the evidence was not legally or factually sufficient to support his conviction because the State did not provide sufficient proof of affirmative links between appellant and the oxycodone.
We affirm.
Background
On the evening of February 14, 2004, Officer Philip Bryan was stationed in a marked patrol car outside the Katz Club on Bissonnet Street in Houston, Texas. While stationed outside the club, Officer Bryan observed appellant drive his car into the parking lot of the club, exit his car, and enter the club. Shortly afterwards, appellant then exited the club, got back in his car, and drove away. Given the Katz Club’s reputation as a “hot spot” and the brevity of appellant’s stay at the club, Officer Bryan suspected that appellant had been involved in a narcotics transaction and decided to follow him.
While following appellant, Officer Bryan witnessed two traffic violations and stopped appellant as a result. Officer Bryan observed that appellant’s car did not have a license plate light and that the license plate was dirty, making it difficult to read. Both are violations of the Texas Transportation Code. Tex. Transp. Code Ann. §§ 502.409(a)(7), (b), 547.004(a)(2), 547.322(f) (Vernon 1999 & Supp. 2005). Officer Bryan testified that, as he approached appellant, he had his flashlight pointed into the vehicle and had no trouble seeing into the interior. In addition to appellant, there was a female passenger in the car as well. This passenger was Amanda Jordan, appellant’s then girlfriend and the owner of the car.
Officer Bryan asked appellant for his driver’s license and insurance. Appellant told Officer Bryan that he did not have his license with him and began looking for it in the car. Appellant searched through the pockets in his clothing and on the floorboard area of the car. When appellant began looking on the floorboard, Officer Bryan became wary and changed his body position so that he could better see what was happening in the car—fearing that appellant might reach for a gun. Officer Bryan moved from the driver’s side window area to the “front windshield part right at an angle, so [he] could get a better look into the vehicle” and see what appellant was doing. Appellant then began looking through the center console of the car with his back to the driver’s side window. According to Officer Bryan, appellant was attempting to conceal his actions from the officer, and he seemed unaware of Officer Bryan’s changed location. However, given Officer Bryan’s change of position, he could see inside the center console. Officer Bryan positioned the beam of his flashlight directly on the center console and saw several plastic bags containing pills. Officer Bryan suspected that these pills were illegal narcotics given that there were no prescription bottles present. When appellant noticed the light shining into the center console, he suddenly closed the lid and turned back around. According to Officer Bryan, when appellant looked up, the expression on his face was that of being “busted.” Officer Bryan explained this term to mean that it was a “flush kind of defeated look.”
Officer Bryan asked appellant to get out of the car and placed appellant in the back seat of his patrol car. Officer Bryan ascertained that the car belonged to the passenger, Amanda Jordan, and gained her permission to search the car. Upon searching the car, Officer Bryan found several plastic bags, some of which contained pills. Officer Bryan took the bags back to his patrol car where appellant was seated and asked appellant if he had a prescription for the drugs. Appellant said he did not. He also said that the drugs were not his, but that he did know to whom they belonged and that he would take care of it.
Appellant was taken into custody and charged with the state jail felony offense of possession of less than one gram of a controlled substance, oxycodone. Officer Bryan testified that the decision to charge only appellant was based on his actions in entering and leaving the Katz Club and his actions during the traffic stop.
Motion to Suppress
In his first point of error, appellant contends that the trial court erred in overruling appellant’s motion to suppress evidence because the testimony showed that the arresting officer searched the car pursuant to an illegal, warrantless stop.
A. Standard of Review
We review the trial court’s ruling on a motion to suppress evidence for abuse of discretion. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the credibility of the witnesses and their testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). The appropriate standard for reviewing a trial court’s ruling on a motion to suppress is bifurcated: we defer almost totally to the trial court’s determination of historical facts and review de novo the court’s application of the law. Id.; Guzman, 955 S.W.2d at 89.
B. Analysis
Appellant raises two separate issues in challenging the denial of his motion to suppress. The first is whether the traffic stop was permissible under the Fourth Amendment. The second is whether appellant had a reasonable expectation of privacy, or standing, to object to the search. As these are distinct issues, each capable of requiring suppression independent of the other, we review them seperately. See Kothe v. State, 152 S.W.3d 54, 61–62 (Tex. Crim. App. 2004) (holding defendant can challenge illegal seizure even if he or she cannot challenge subsequent search); United States v. Roberson, 6 F.3d 1088, 1091 (5th Cir. 1993) (holding that passenger of automobile cannot challenge search of automobile but can challenge stop).
1. Legality of Traffic Stop
A traffic stop is a “seizure” within the meaning of the Fourth Amendment. Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App. 2002). “A police officer’s decision to stop an automobile is reasonable under the Fourth Amendment when the officer has probable cause to believe the driver committed a traffic offense. An officer’s observation of an actual violation of the traffic laws gives probable cause for a traffic stop.” Moreno v. State, 124 S.W.3d 339, 346 (Tex. App.—Corpus Christi 2003, no pet.); see also Randle v. State, 89 S.W.3d 839, 842 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). In the present case, the traffic violation took place within the officer’s view and was thus sufficient authority for an initial stop of the vehicle. Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005); Tex. Transp. Code Ann. § 543.001 (Vernon Supp. 2005).
Appellant argues that the traffic stop was not valid under Texas law because Officer Bryan did not have sufficient articulable facts to justify a Terry stop and he did not observe appellant committing any traffic violations. Officer Bryan testified that he stopped appellant based on the lack of a license plate light on the car and dirt on the license plate that made the plate very difficult to read. Under the Transportation Code a person commits an offense if his license plate has “a coating, covering, or protective material that: distorts angular visibility or detectability; or alters or obscures the letters or numbers on the plate, the color of the plate, or another original design feature of the plate.” Tex. Transp. Code Ann. § 502.409(a)(7). Additionally, the Transportation Code requires that “a tail lamp or separate lamp shall be constructed and mounted to emit a white light that: illuminates the rear license plate; and makes the plate clearly legible at a distance of 50 feet from the rear.” Tex. Transp. Code Ann. § 547.322(f). An officer can arrest, without a warrant, a person who commits either of the above mentioned violations. Tex. Transp. Code Ann. § 543.001.
Appellant further complains that the minor traffic violations cited by Officer Bryan were used as a pretext for the traffic stop. However, the Texas Court of Criminal Appeals has held that a pretext stop is valid so long as an actual violation occurs and law enforcement officials detain the person for that reason regardless of the officer’s subjective reasons for the detention. Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992).
Continued detention of appellant during a traffic stop “must be based on articulable facts which, taken together with rational inferences from those facts, would warrant a person of reasonable caution in the belief that a continued detention was justified, i.e., the detainee was or would soon be engaged in criminal activity.” Herrera v. State, 80 S.W.3d 283, 288 (Tex. App.—Texarkana 2002, pet. ref’d) (citing Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997)). Further detention of appellant was based upon Officer Bryan’s observation of plastic bags containing pills in the center console. This observation was the result of appellant’s independent actions. We hold that there was no violation of appellant’s Fourth Amendment right against illegal seizure.
2. Warrantless Search
Next we must consider whether appellant had a reasonable expectation of privacy in order to object to the search. A defendant who asserts a Fourth Amendment claim has the initial burden to establish, as an element of that claim, that he personally has a legitimate expectation of privacy in the premises searched—that the appellant has standing. State v. Klima, 934 S.W.2d 109, 111 (Tex. Crim. App. 1996). The State may raise the issue of standing for the first time on appeal. Id. We review standing de novo, as it is a question of law. State v. Allen, 53 S.W.3d 731, 732 (Tex. App.—Houston [1st Dist.] 2001, no pet.).
Appellant and Officer Bryan both testified that appellant was driving and his girlfriend was a passenger. Appellant conceded that his girlfriend was the owner of the car. The nonowner driver of a vehicle has no standing to contest a search when the owner of the vehicle is present. Id. at 733. A nonowner driving when the owner is present does not stand in the owner’s shoes and, thus, has no legitimate expectation of privacy. Id. Additionally, it is undisputed that the owner of the vehicle, Amanda Jordan, granted consent to search the vehicle. Under these factual circumstances, appellant has no standing to assert a Fourth Amendment claim based on the search of Amanda Jordan’s car. We hold that the trial court did not abuse its discretion in overruling appellant’s motion to suppress.
Appellant’s first point of error is overruled.
Sufficiency of the Evidence
In his second point of error, appellant contends that the evidence is legally and factually insufficient to support his conviction because the State did not provide sufficient proof of affirmative links between appellant and the oxycodone.
A. Standards of Review
A legal-sufficiency challenge requires us to determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Howley v. State, 943 S.W.2d 152, 155 (Tex. App.—Houston [1st Dist.] 1997, no pet.). Although our analysis considers all of the evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).
In a factual-sufficiency review, we view all of the evidence in a neutral light, and we will set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 483 (Tex. Crim. App. 2004)). We must defer appropriately to the fact-finder to avoid substituting our judgment for its judgment. Zuniga, 144 S.W.3d at 481–82. Our evaluation may not intrude upon the fact-finder’s role as the sole judge of the weight and credibility accorded any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). The fact-finder alone determines what weight to place on contradictory testimonial evidence, as it depends on the fact-finder’s evaluation of credibility and demeanor. Id. at 408–09. In conducting a factual sufficiency review, we must discuss the evidence that, according to appellant, most undermines the verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
B. Analysis
The Health and Safety Code provides, in pertinent part, that a person commits the offense of possession of a controlled substance, a state jail felony, if the person knowingly or intentionally possesses oxycodone, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice. Tex. Health & Safety Code Ann. §§ 481.102(3)(A), 481.115(a), (b) (Vernon 2003 & Supp. 2005).
Possession is defined by the Health and Safety Code to be the “actual care, custody, control, or management” of the substance in question. Tex. Health & Safety Code Ann. § 481.002(38) (Vernon Supp. 2005). To support a conviction for unlawful possession of a controlled substance, the State must prove both that the accused exercised care, custody, control, or management of the substance and that he knew that he possessed a controlled substance. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). The State must establish that the accused’s connection with the drug was more than just fortuitous. Id. This is known as the affirmative links rule. A defendant must be affirmatively linked with the drugs he allegedly possessed, but this link need not be so strong that it excludes every other outstanding reasonable hypothesis except the defendant’s guilt. Id. at 748. When a defendant is not in exclusive possession of the place where the substance is found, the State must prove additional independent facts and circumstances which affirmatively link the accused to the contraband. Nhem v. State, 129 S.W.3d 696, 699 (Tex. App.—Houston [1st Dist.] 2004, no pet. h.).
1. Legal Sufficiency
Courts have identified a non-exhaustive list of factors that may help to show an affirmative link to a controlled substance. Id. at 699. Each case is examined on its own facts, and a factor that contributes to the sufficiency of the evidence in one case may be of little or no value in a different case. Id. It is not the number of affirmative links present that is important, but rather the “logical force” that they create to prove that the defendant committed the crime. Id. at 699–700. We must examine, therefore, any factors that possibly link appellant to the oxycodone.
Because appellant was not alone in the car, he did not have exclusive control of the premises. The evidence shows, however, that appellant had multiple affirmative links to the oxycodone. Appellant alone entered the Katz Club, a known drug “hot spot,” and stayed for no more than two minutes. According to Officer Bryan, this behavior was indicative of a narcotics transaction and, thus, led to an inference that appellant bought the oxycodone while in the club. The oxycodone was found in an enclosed area that was easily accessible to the defendant. Officer Bryan testified that, while looking through the console in the car, appellant turned his body in a manner that Officer Bryan believed was intended to conceal the contents of the console. Appellant acted “busted” when he realized Officer Bryan had seen the bags containing pills inside the console. Both appellant’s attempt to conceal the contents of the console and his expression could reasonably be interpreted to indicate that he knew of the presence of oxycodone in the console. Additionally, appellant’s statement that he knew to whom the drugs belonged and that he would take care of it indicated that he knew of the presence of the drugs in the console. His statement that the drugs did not belong to him has no bearing on whether he knew of their presence. His knowledge of their presence and the fact that they were under his control affirmatively linked the appellant to the oxycodone.
Viewing the evidence in the light most favorable to the verdict we hold that, a rational finder of fact could have found beyond a reasonable doubt that appellant knowingly and intentionally possessed oxycodone weighing less than one gram.
2. Factual Sufficiency
In arguing that the evidence was factually insufficient to support his conviction, appellant relies upon his lack of exclusive control of the vehicle and possible alternate explanations for his behavior during the traffic stop. Appellant argues that his “busted” expression was the result of feelings of guilt for accidentally exposing his girlfriend’s drugs rather than an indication of his own guilt. Additionally, he posits that his behavior of opening the console to reveal the drugs would be “ludicrous” behavior for a person who knew the console contained drugs. However, evidence is not factually insufficient merely because appellant offers a different explanation for the facts. Coleman v. State, 113 S.W.3d 496, 502 (Tex. App.—Houston [1st Dist.] 2003), aff’d, 145 S.W.3d 649 (Tex. Crim. App. 2004). The fact-finder alone determines what weight to place on contradictory testimonial evidence, as it depends on the fact-finder’s evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408–09. Nor does possession of a controlled substance need to be exclusive to constitute a violation of the law. Nhem, 129 S.W.3d at 701. We hold that the verdict is not so against the great weight and preponderance of the evidence as to be manifestly unjust, and proof of guilt is not so weak as to undermine confidence in the trial court’s determination.
Appellant’s second point of error is overruled.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Nuchia, Jennings, and Higley.
Do not publish. See Tex. R. App. P. 47.2(b).