in the Matter of the Marriage of David Hagstrom and Karen Hagstrom

NO. 07-06-0484-CV

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL C

 

DECEMBER 11, 2007

 

______________________________

 

 

IN THE MATTER OF THE MARRIAGE OF

 

DAVID HAGSTROM AND KAREN HAGSTROM

 

_________________________________

 

FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY;

 

NO. 2005-529,358; HONORABLE PAULA LANEHART, JUDGE

 

_______________________________

 

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

           Appellant, David Hagstrom, and Appellee, Karen Hagstrom, were married on May 9, 1998, and ceased to live together as husband and wife in February 2005. No children were born of the marriage. David filed for divorce and Karen counter-petitioned for divorce. After a two-day trial to the bench, the trial court entered a Final Decree of Divorce and ordered division of the marital estate. Upon David’s request, the trial court entered Findings of Fact and Conclusions of Law. By a sole issue, David contends the evidence does not support the trial court’s award of $74,965 to Karen, an award of an encumbrance in favor of Karen for $74,930 against property awarded to him, and an award to Karen of $48,469 as reimbursement. He contends that awards contained in the Final Decree of Divorce do not correspond with the trial court’s Findings of Fact and Conclusions of Law.

           Karen responds that David has failed to preserve his issue for appellate review by failing to include citations to the reporter’s record in support of his complaint. See Tex. R. App. P. 38.1(h). We agree. David’s only record references in his brief are to the clerk’s record, mainly the Decree of Divorce and the trial court’s Findings of Fact and Conclusions of Law.

           The reporter’s record consists of 248 pages of testimony and 336 pages of exhibits. An appellate court is not required to search a voluminous record without guidance from an appellant to determine whether an assertion of reversible error is valid. Labrador Oil Co. v. Norton Drilling Co., 1 S.W.3d 795, 803 (Tex.App.–Amarillo 1999, no pet.); Granada Biosciences, Inc. v. Barrett, 958 S.W.2d 215, 222 (Tex.App.–Amarillo 1997, pet. denied). See also Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197, 200-01 (1956) (holding it was not the duty of the Court of Civil Appeals to make an independent search of the statement of facts, which consisted of 510 pages and many exhibits, including account books and other records, to find evidence in support of a theory). David’s issue presents nothing for review.

           Assuming, arguendo, that David had preserved his complaint, a trial court is required to order a division of the marital estate that it deems “just and right” having due regard for the rights of each party. Tex. Fam. Code Ann. § 7.001 (Vernon 2006). This provision does not obligate the court to divide the property equally. In re Marriage of Scott, 117 S.W.3d 580, 584 (Tex.App.–Amarillo 2003, no pet.). Additionally, the trial court has broad discretion as to the division of marital property and, absent a clear abuse of that discretion, an appellate court will not disturb a lower court’s judgment. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); In re Marriage of Morris, 123 S.W.3d 864, 867 (Tex.App.–Texarkana 2003, no pet.). On appeal it is presumed that the trial court properly exercised that discretion, thereby obligating the appellant to show from the record that the division was so disproportionate as to constitute an abuse of discretion. Id. at 867-68. The mere fact that the Final Decree of Divorce does not mathematically correspond with the trial court’s Findings of Fact and Conclusions of Law does not establish an abuse of discretion.

                                                                  Conclusion

           Consequently, Appellant’s sole issue is overruled and the trial court’s Final Decree of Divorce is affirmed.

                                                                                  Patrick A. Pirtle

                                                                                        Justice

 

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NO.  07-09-0232-CR

                                                             

                                                   IN THE COURT OF APPEALS

 

                                       FOR THE SEVENTH DISTRICT OF TEXAS

 

                                                                 AT AMARILLO

 

                                                                     PANEL C

 

                                                              MARCH 31, 2010

                                            ______________________________

 

                                                                 ELI  CASTRO,

 

                                                                                                            Appellant

 

                                                                             v.

 

                                                         THE STATE OF TEXAS

 

                                                                                                            Appellee

                                           _______________________________

 

                       FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

 

                         NO. 57,898-E; HON. DOUGLAS WOODBURN, PRESIDING

                                           _______________________________

 

Memorandum Opinion

_______________________________

 

Before QUINN, C.J., and HANCOCK, and PIRTLE, JJ.

            Appellant, Eli Castro, appeals his conviction for possessing a controlled substance with the intent to deliver.  His two issues encompass the legal and factual sufficiency of the evidence.  We affirm.

Background

            Officer Callahan with the Amarillo Police Department testified that he had received a tip from a confidential informant regarding someone who would have approximately three-quarters of an ounce of methamphetamine on him.  The person at issue was appellant, and the officer was told by the informant that appellant would be in a particular area driving a blue “2001 Mercury Grand Marquis.”  The information was relayed to Officer Lavery, who proceeded to the location and found the vehicle parked by a curb.  Lavery watched as appellant, who was alone, began to drive away in it.  As he did so, appellant committed two traffic violations.  This resulted in Officer Lavery initiating a traffic stop. 

            Lavery discovered that appellant’s driver’s license had expired.  Furthermore, the address on it was incorrect.  Eventually, appellant consented to the search of the vehicle.  By that time, another officer had arrived at the scene and participated in the search.  Under the driver’s seat was found a “green coin purse” containing a metal spoon, a set of digital scales, “two plastic baggies of methamphetamine, one baggy of marijuana, [and] several other plastic baggies.”  According to various testifying officers, the plastic bags were of a type “commonly used to package narcotics” and the amount of methamphetamine found (16.96 grams) indicated a “dealer amount” as opposed to a quantum for personal use. 

            During trial, the defense called appellant’s mother to testify.  She stated that the vehicle and coin purse were hers, that the purse did not contain scales, baggies, or drugs in it the last time she used it, and that other people (in addition to appellant) had permission to use the car. 

Issues One and Two – Sufficiency of the Evidence

            Appellant contends that the evidence is both legally and factually insufficient to support his conviction. Purportedly, the State failed to prove that he knowingly possessed or exercised control over the methamphetamine.  We overrule the issues.

The standards by which we review the sufficiency of the evidence are well established.  We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L. Ed. 2d 560 (1979) and Watson v. State, 204 S.W.3d 404 (Tex.Crim.App. 2006) for their explanation.  Next, to convict appellant of possessing methamphetamine with intent to deliver, the State had to prove that 1) appellant, 2) intentionally and knowingly, 3) possessed, 4) methamphetamine of four grams or more but less than 200 grams, and 5) with the intent to deliver.   Tex. Health & Safety Code Ann. § 481.112(a) & (d) (Vernon Supp. 2009).   Irrespective of whether the evidence being proffered to establish these elements was direct or circumstantial, it had to illustrate, "to the requisite level of confidence, that [appellant’s] . . . connection with the drug was more than just fortuitous."  Brown v. State, 911 S.W.2d 744, 747 (Tex Crim. App. 1995).   Furthermore, his mere presence at the site where drugs were found, without more, is insufficient to establish actual care, custody, or control of the contraband.  See Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988).

In addressing this topic, the courts have developed numerous factors deemed useful in determining whether the accused's link to the contraband was more than mere fortuity.  Though not exclusive, they nevertheless include such things as whether 1) the accused was present when the search was conducted, 2) the contraband was plainly visible by those present, 3) the drugs were near the defendant, 4) the defendant was under the influence of the substance found, 5) the defendant possessed other contraband or drug paraphernalia when arrested, 6) the defendant made any incriminating statements, 7) the defendant attempted to flee, 8) the defendant made furtive gestures, 9) the contraband emitted a recognizable odor at the time, 10) other contraband or drug paraphernalia was present, 11) the defendant had the right to exclusive or joint possession of the locale at which the drugs were found, 12) the place where the drugs were found was enclosed, 13) the accused attempted to conceal the contraband, and 14) the accused was familiar with the type of contraband.  Kyte v. State, 944 S.W.2d 29, 31 (Tex. App.–Texarkana 1997, no pet.); Hurtado v. State, 881 S.W.2d 738, 743 n.1 (Tex. App.–Houston [1st Dist.] 1994, pet. ref'd).  Furthermore, the number of factors established is not as important as the degree to which they tend to affirmatively link the defendant to the contraband.  Wallace v. State, 932 S.W.2d 519, 524 (Tex. App.–Tyler 1995, pet. ref'd).  In other words, if evidence satisfying less than all the aforementioned indicia is produced, conviction may still be permitted if the evidence establishes, beyond reasonable doubt, appellant's knowing link to the drugs.

In the case at bar, the jury was told of 1) a tip from a confidential informant, 2) the informant disclosing that appellant would be possessing the methamphetamine in question, 3) the informant knowing this because he was engaged in “some sort of transaction with appellant,” 4) the informant directing the police to a particular area and car in which appellant could be found, 5) appellant being discovered in the area and car described, 6) no one else being in the vehicle, 7) the drugs and drug paraphernalia being found under the seat on which appellant sat, and 8) the coincidence between the quantum of methamphetamine described by the informant and the amount found under appellant.  This data constituted some evidence from which a rational jury could conclude, beyond reasonable doubt, that appellant intentionally and knowingly exercised control over the narcotics and paraphernalia. 

That appellant’s mother owned the car, gave several people permission to use it, and owned the coin purse are circumstances that the jury could have weighed in making its decision.  However, they do not negate the substance of the informant’s information or its accuracy.  Nor do they suggest that someone other than appellant had placed the drugs in the purse or car or that appellant did not possess the drugs.  Indeed, appellant’s mother denied having those items in the purse when she last used it.  So, we cannot say, given the entire record, that the verdict was either clearly erroneous or manifestly unjust. 

Concluding that the evidence was and is both legally and factually sufficient to support the verdict, we affirm the judgment of the trial court.

 

Brian Quinn

                                                                        Chief Justice

 

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