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Opinion filed May 29, 2008
In The
Eleventh Court of Appeals
__________
No. 11-06-00202-CR
__________
JOHNNY PAUL BROCATO, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR18218
M E M O R A N D U M O P I N I O N
The jury convicted Johnny Paul Brocato of possession of a controlled substance with intent to deliver. The trial court assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of forty years. Appellant challenges his conviction and punishment in five issues. We affirm.
Background Facts
Sergeant Dennis Weathermon of the Brownwood Police Department testified that appellant=s bonding company contacted the department to advise it that appellant had an outstanding warrant and that he was staying at the Best Value Inn in Brownwood. Based upon this information, Brownwood police officers attempted to contact appellant in his motel room. After a lengthy period of time, a female opened the door of the motel room. Sergeant Weathermon observed a man=s leg with a knife nearby when the female opened the door. Sergeant Weathermon entered the room upon making this observation. The room was occupied by appellant and his wife, Brenda Kay Brocato. Appellant initially informed Sergeant Weathermon that he was Michael Johnston, but he later admitted his identity when confronted with a photo. Appellant=s wife also lied to the police about her identity. Sergeant Weathermon testified that the motel room Awas littered with narcotics paraphernalia and narcotics.@ He observed numerous pipes used for consuming methamphetamine, cocaine, and marihuana. Sergeant Weathermon also observed a police scanner and small plastic bags commonly used for packaging drugs.
Agent Billy Bloom of the West Central Texas Interlocal Crime Task Force subsequently collected evidence from the motel room. He obtained written consent to search the room from appellant=s wife. She surrendered, at the outset of the search, a small canister containing a substance that Agent Bloom suspected to be methamphetamine. She also handed Agent Bloom a plastic tub containing suspected crack cocaine. Appellant=s wife told Agent Bloom that the methamphetamine belonged to her and that the crack cocaine belonged to appellant. Agent Bloom also observed small Aziplock@ bags that he testified were consistent with drug distribution, along with a tray to package methamphetamine, a bulking agent to be added to drugs for distribution, scales, and equipment for manufacturing drug pipes. Agent Bloom also testified that the radio frequency for the Brownwood Police Department had been keyed into the scanner found in the motel room.
Officers seized over five and one-half grams of methamphetamine from the motel room along with approximately fifteen grams of marihuana and over one gram of cocaine. With regard to the amount of methamphetamine recovered from the room, Agent Bloom testified that the amount exceeded what a person would normally possess for personal use. He concluded that the large amount of methamphetamine possessed by appellant and his wife indicated that they were distributing the drug. Agent Bloom additionally testified as follows:
Based on the evidence seized in the room and the proximity of the evidence, various places in the room, the packaging baggies, the scales, the quantity of methamphetamine, the quantity of the crack cocaine, the various pipes, the apparatuses and materials to make the paraphernalia, I charged them both with the manufacture and delivery of a controlled substance, which also has the title of possession [of] a controlled substance with intent to distribute.
Appellant called his wife as a defense witness at trial. She testified that she purchased seven grams of methamphetamine in Fort Worth on the day before appellant=s arrest without appellant=s knowledge and that he did not know that she had methamphetamine in the room.[1] She additionally testified that she was addicted to methamphetamine and that appellant only used cocaine and marihuana. Appellant=s wife also testified that the small baggies were used to store her jewelry.
Issues
In his first issue, appellant complains that he was required to appear before the jury in jail clothes. In his second issue, appellant contends that he was not permitted to be represented by counsel of his own choosing. In his third and fourth issues, appellant attacks the sufficiency of the evidence. In his fifth issue, he argues that the trial court denied his right to review the presentence investigation report at least forty-eight hours prior to sentencing.
Jail Attire
Appellant=s presentation of an issue about wearing jail attire in the presence of the jury is the result of an error in the record. The original reporter=s record filed in this case indicated that appellant was present in open court when the trial court qualified the jury panel. The original reporter=s record also appeared to indicate that appellant was wearing jail clothes at this stage of the proceedings. Accordingly, appellate counsel presented an issue in appellant=s brief regarding appellant wearing jail attire in the presence of the jury. See Estelle v. Williams, 425 U.S. 501, 512 (1976) (Requiring a defendant to be tried in jail clothing infringes upon the fundamental right to a presumption of innocence.).
After appellant filed his brief, the State initiated efforts for the reporter=s record to be corrected. In this regard, we abated the appeal so that the trial court could resolve the discrepancy in the reporter=s record. The trial court requested the court reporter, appellant=s trial counsel, and the prosecutor to prepare affidavits regarding appellant=s presence in the courtroom during the qualification of the jury panel. The trial court subsequently entered a written order finding that the original reporter=s record should be corrected to indicate that appellant was not present during juror qualification. The court reporter also filed a corrected reporter=s record stating that appellant was not present when the trial court qualified the jury panel. The actions by the trial court and the court reporter comply with the requirements of Tex. R. App. P. 34.6(e) for correcting errors in the reporter=s record. Consequently, the reporter=s record, as corrected, indicates that appellant was not present before the jury panel wearing jail attire. Appellant=s first issue is overruled.
Selection of Counsel
Prior to the commencement of voir dire, appellant advised the court that he wanted to be represented by an attorney who had purportedly been retained by his mother. Appellant informed the court as follows: AYesterday I talked to [my mother]. She said she called [the new attorney=s] office Friday and that B I=m assuming this morning she is making arrangements for his pay and everything. She is from Colorado.@ In response to a question by the trial court, appellant indicated that he was unsure if his mother had spoken with the new attorney. Appellant also expressed his dissatisfaction with his court-appointed attorney. The trial court informed appellant that it did not have enough information to believe that the new attorney had been hired to represent appellant. The trial court ultimately denied appellant=s motion for a new attorney.
Appellant complains in his second issue that the trial court=s ruling prevented him from being represented by an attorney of his own choosing. The right to assistance of counsel requires that the accused Ashould be afforded a fair opportunity to secure counsel of his own choice.@ Powell v. Alabama, 287 U.S. 45, 53 (1932); Ex parte Windham, 634 S.W.2d 718, 720 (Tex. Crim. App. 1982). The right to obtain counsel of one=s own choice, however, is not unqualified or absolute. Windham, 634 S.W.2d at 720. A defendant may not manipulate his or her right to secure counsel of defendant=s choice in a manner that obstructs the judicial process or interferes with the administration of justice. Rosales v. State, 841 S.W.2d 368, 374 (Tex. Crim. App. 1992); see King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). We review the record to determine whether the trial court could have reasonably concluded that the fair and efficient administration of justice weighed more heavily in favor of denying the motion. Greene v. State, 124 S.W.3d 789, 794 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d).
We conclude that the trial court did not act unreasonably in denying appellant=s request for a new attorney to represent him at trial. Appellant did not present his request for a new attorney until
the morning of trial. He was unable to confirm whether the new attorney had actually been retained to represent him. In this regard, the new attorney did not appear with appellant at trial or inform the trial court or appellant=s trial counsel of his willingness to serve as counsel in the case. Furthermore, appellant did not provide the court with any information as to the time that the new attorney would need in order to prepare for trial. Appellant=s second issue is overruled.
Sufficiency of the Evidence
In his third and fourth issues, appellant challenges the sufficiency of the evidence supporting his conviction. In order to determine if the evidence is legally sufficient, we must review all the evidence in the light most favorable to the verdict and 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 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10‑11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407‑08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414‑15; Johnson, 23 S.W.3d at 10‑11. The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses= testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979).
In cases involving unlawful possession of a controlled substance, the State must prove that the accused exercised care, custody, control, or management over the substance and that the accused knew that the matter possessed was contraband. Tex. Health & Safety Code Ann. ' 481.002(38) (Vernon Supp. 2007); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). The State does not have to prove that the accused had exclusive possession of the contraband; joint possession is sufficient to sustain a conviction. Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). When the accused is not in exclusive possession of the place where the substance is found, his knowledge of and control over the contraband cannot be established unless there are additional independent facts and circumstances that affirmatively link the accused to the contraband. Poindexter, 153 S.W.3d at 405‑06. Factors that may affirmatively link an accused to contraband include the following: (1) whether the accused was present when the search was conducted; (2) whether the contraband was in plain view; (3) whether the accused was in close proximity to and had access to the contraband; (4) whether the accused was under the influence of narcotics when arrested; (5) whether the accused possessed other contraband or narcotics when arrested; (6) whether the accused made incriminating statements when arrested; (7) whether the accused attempted to flee; (8) whether the accused made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia was present; (11) whether the accused owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the accused was found with a large amount of cash; and (14) whether the conduct of the accused indicated a consciousness of guilt. See Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006).
In his third issue, appellant contends that the evidence was insufficient to establish that he knowingly possessed methamphetamine. He argues that the items containing methamphetamine were either surrendered by his wife or in her possession. While appellant=s wife testified that the methamphetamine belonged to her and that appellant did not know about it, the jury was free to disbelieve her testimony. Agent Bloom recovered the methamphetamine from a small motel room that appellant and his wife jointly occupied and controlled. Officers testified that the room was filled with drug paraphernalia that was in plain view, some of which included methamphetamine pipes. The State had to show only that appellant=s Aconnection with the drug was more than just fortuitous.@ Poindexter, 153 S.W.3d at 405‑06.
Appellant asserts in his fourth issue that the evidence was insufficient to establish that he possessed methamphetamine with an intent to deliver. ADeliver@ means to transfer, actually or constructively, a controlled substance to another. Tex. Health & Safety Code Ann. ' 481.002(8) (Vernon Supp. 2007). Intent to deliver a controlled substance can be proved by circumstantial evidence, including evidence that an accused possessed the contraband. Patterson v. State, 138 S.W.3d 643, 649 (Tex. App.CDallas 2004, no pet.); Mack v. State, 859 S.W.2d 526, 528 (Tex. App.CHouston [1st Dist.] 1993, no pet). Factors courts have considered include: (1) the nature of the location at which the accused was arrested; (2) the quantity of contraband in the accused=s possession; (3) the manner of packaging; (4) the presence or lack thereof of drug paraphernalia (for either use or sale); (5) the accused=s possession of large amounts of cash; and (6) the accused=s status as a drug user. Lewis v. State, 664 S.W.2d 345, 349 (Tex. Crim. App. 1984); Williams v. State, 902 S.W.2d 505, 507 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d). The number of factors present is not as important as the logical force the factors have in establishing the elements of the offense. Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d). An oral expression of intent is not required. AIntent can be inferred from the acts, words, and conduct of the accused.@ Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). Expert testimony by experienced law enforcement officers may be used to establish an accused=s intent to deliver. See Mack, 859 S.W.2d at 529.
As noted previously, Agent Bloom testified that the amount of methamphetamine recovered from the room exceeded the amount normally possessed by a drug user for personal use. Officers also found numerous items associated with drug distribution, including scales, packaging materials, Abulking@ agents, a police scanner, and drug paraphernalia. Additionally, appellant=s billfold contained over $3,800 in cash.
Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found the essential elements of the charged offense beyond a reasonable doubt. Jackson, 443 U.S. at 319. Furthermore, viewing all the evidence in a neutral light, favoring neither party, we also conclude that the evidence supporting the verdict, taken alone, is not so weak that the verdict is clearly wrong or manifestly unjust and that the contrary evidence is not so strong that the verdict is against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 414‑15. Appellant=s third and fourth issues are overruled.
Presentence Investigation Report
Appellant asserts in his fifth issue that the trial court erred by failing to give him forty-eight hours to review the presentence investigation report (PSI). After the jury returned its verdict on June 21, 2006, the trial court entered an order requiring the preparation of a PSI. The trial court subsequently sentenced appellant on the following day. The trial court made reference to the PSI at sentencing.
Unless waived by the defendant, the trial court shall permit the defendant or his attorney to read a PSI at least forty-eight hours before sentencing. See Tex. Code Crim. Proc. Ann. art. 42.12, ' 9(d) (Vernon Supp. 2007). The defendant or his attorney must be given the opportunity to Acomment on a presentence investigation or a postsentence report and, with the approval of the judge, introduce testimony or other information alleging a factual inaccuracy in the investigation or report.@ Tex.Code Crim. Proc. Ann. art. 42.12, ' 9(e) (Vernon Supp. 2007). Appellant did not object to the trial court about not having forty-eight hours to review the PSI. See Tex. R. App. P. 33.1(a) (To preserve a complaint for appellate review, a party must make a timely, specific objection and obtain a ruling from the trial court.). To the contrary, appellant=s trial counsel advised the trial court that he and appellant had sufficient time to review the PSI. Appellant informed the trial court of a correction that needed to be made to the PSI regarding his educational background. Accordingly, appellant waived his right to a review of the PSI forty-eight hours prior to sentencing. Appellant=s fifth issue is overruled.
This Court=s Ruling
The judgment of the trial court is affirmed.
TERRY McCALL
JUSTICE
May 29, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
[1]Appellant did not testify during the guilt/innocence phase. However, he admitted during his testimony at the punishment hearing that he knew about the methamphetamine being in the motel room.