1 AK A To m m y Le e Ha ll. NO. 07-01-0014 -CR

IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A SEPTE MBE R 18, 2001

______________________________ TOMMY L. HALL, APP ELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 137 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2000-432992; HON ORABLEMACK EY HA NCOCK, JUDGE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. Following a ple a of

not guilt y, a ppe llant

Tom m y L. Hal l 1 was convicted by a jur yof possession of a controlled substance, tw ice enhanced, and punishment was as sessed at confinement

for life. Presenting tw

o points of error, appellant contends (1) the trial court2

erred in denying his motion to suppres s the search w arrantand evidence obtained a s a res ult of the warrant, and (2) the evid ence is lega llyinsufficient to support his conviction. Ba se d u po n t he ra ti on al e e xp re ss ed he re i n, we w i l l affi rm. Through a confidential informant using an audio tape, on J anuary 24, 2000, the Lubbock Police Departm ent coordinated a purchase of c rack cocaine at 1935 Avenue N, Duplex A. After the purchase was m ade, the confidential informant gavethe crack cocaine to Officer G erber, a narcotics investigator. After searching theinfo rm ant to m akecer

tain thathe had surrendered all the cocaine he had purchased a nd ob taining a physical description of the residence, Officer Ger ber was issued a search and arrest warrant. The warrant wasexecuted by Officer Gerber and m embers of the SWAT team on J anuary 27, 2000. As they app roached the residence, they observed M ichael Deway ne Moss k nocking
on the front door. Ger ber secured and patted down Moss for weapons and found a crack pi pe on hi m. Upon entering the duplex, Office r Koontz observed appellant sitting alone on a couch along the no r th wall and two female s sitt ing i n chai rs al ong the west wall. As appellant raised himself off the couch, Ko ont z ob ser ved him“fidgeting” with a m ale’s long, dark, wool, trench coat on the couch. After securing appellantand the other occupants of the residence, Gerber and another officer entered and checked the coat. Upon searching the pockets of the coat, Gerbe r disc overed cocai ne, a crack pip e, appell ant’s driver ’s license, his car keys, and a pay s tub bearing his name.3

The two fem ales were w earing warmclothing and disclaimed ow nership of the coat. Although the outside tem perature was approxim at el y 35 degrees and appellant was wearing only a short-sleeved shirt, he disclaimed ow nership of the coat despite the fact thathis driver’s license, pay stub, and car keys were found in the pockets. Appellant was arrested at the scene for possession of crack cocaine. Byhis first point of error, app ellan t co nte ndsthetria l cou rt e rre d in d eny ing h is mot ion to sup press t he searc h wa rra nt and e vidence obtained as result of the w arrant. Appellant asserts that the affi davit i n support of the sear ch warrant is insu fficie nt because i twas bas ed solely on hearsay, unaided by independent corroboration, surveillanc e, o r personal knowledge. We disagree. Appellate review of a trial court’s denial of a motion to suppress is de novo when the decisi on is not based on an evaluat ion of credi bili ty and demeanor. Hernandez v. State, 957 S.W.2d 851, 852 (Tex.Cr.App. 1998), citing Guzm an v. State, 955 S.W.2d 85, 89 (Tex.Cr.A pp. 1997). Appellate review of an affidavit in support of a s earc h warrant, however, is not de novo , but rather, gr eat deference i s g iv en to the magistrate’s determ ination of prob able cause. I ll inoi s v. Gate s, 462 U. S. 213, 230-31, 103 S.Ct. 2317, 76 L.E d.2 d 52 7 (1 983 ). P rob ablecau se is determ ined from the four corners of theaff idav it and the reasonable inferences drawn therefrom . Cassias v. S tate, 719 S.W.2d 585, 587- 88 (Tex.Cr.A pp . 1986) (on reh’g). The m agistrate’s task in evaluating an affidavit is to makea pr

act ical, com mon sense decision whether, given the totality of the circum stances4

set forth in the affidavit, there is a fair probability that contraband or evidence of a cr i me
w ill be found in a par ticul ar place. Henn essyv. State, 66 0 S.W.2d 87 (Tex .Cr.A pp. 1983 ), citing Gates

. W hen information is suppl ied by an i nformant, the determination of probabl e cause i s based upon t he totality of the circum stances. Gates , 46 2 U. S. at 2 38- 39. While pro bab le cause may be based on hearsay, the hea rsa y m ust be c red ited at e ach leve l in order to m eet constitutional requirements. Hennessy , 660 S.W.2d at 91. An unnam ed informant’s information ma y be credited by show ing that the informant has given reliable,
cre dibleinformation in the past. W right v. State, 646 S.W.2d 460, 46 1 (Tex .Cr.A pp. 1983 ); Cerda v. State, 84 6 S.W.2d 533, 535 (Tex.App.–Cor pus C hristi 1993, no pet.). Officer Gerber’s affidavit provided: [w ]ith in the past forty-ei ght hours, a confidential informant ma de a controlled purchase of a substance that tested pos itive for cocaine using a scott field test kit. Said confidential informant is able to recogn ize cocaine and other controlled substances. S aid confidential informant has given iinformat ion [sic] in the past to th e So ut h Pl ai ns Reg io na l [ N]a rc ot ic s T as k F or ce on two occasio ns t hat has proven to be t rue and correct. Sa id confidential informant has

proven to be credible and reliable.
The only witness at the heari ng on the motion to suppress was Office r Gerber. He testified that due to anonymous complaints rega rding dr ug activi ty from the residence searched, a confidenti al inf ormant was se n t to m ake a controlled purchase. Bas ed on information provided by the inform ant, Gerber obtained a search warrant. Relying on the5

information contained in the four corners of the af fidavit and the fact that Officer Gerber’s informant had provided credible and relia ble information on tw o prior occasions, we f ind the trial court did not abuse its discretion in den ying appellant’s motion to su ppress the search wa rrant and any evidence obtained as a resu lt.
Moreover, the State argues that appellant lacked standing to contest the validity of the search because he ha d no standing to do so. W e agree. A person who com plains that
a search and seiz ure is illegal becau se of e vidence o btained by a searc h of

a th ir d person’s prem ises or property has not had any of his Fourth Am endme nt rights violated. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978 ); Hughes v. State, 24 S.W.3d 833, 838 (Tex.Cr.App. 2 000), cert denied, 531 U.S. 98 0, 121 S .Ct. 430, 148 L.Ed.2d 438 (2000). The evidence established that appellan t was not a resident of the duplex in qu est ion a nd t hat

he d enie d ow ner

shipof the coat

containing the contraband. Thus, he did not have an expectation of pri vacyand his Fourth Am endme nt rights were not infringed at the tim e the warrant was ex ec uted. Therefore, because appellant failed to establi sh sta ndin g to c halle ngethesea rch , th e tr ial c our t did not err in overr uling his mot ion to suppress. See generally Calloway

v. Sta te, 743 S.W.2d 645, 647-49 (Tex.Cr.A pp. 1988). Point of error one is overruled. Byhis second point of error, appellantcontends the evidence is legally insufficient to sup por

t his con viction . We dis agr ee. It is a fun dam ental ru le of criminal law that one cannotbe convicted of a crim e unless it is shown beyond a reasonable doubt that the6

defendant

commi tt ed ea ch el emen t o f th e a ll eg ed of fe ns e. U.S . Co ns t. amen d. XIV ; T ex. Code Crim. Proc. Ann. art . 38.03 (Ve rnon Supp. 2001); Tex. P en. Code Ann. §2.01 (Vernon 1994). In conducti ng a legal sufficie ncyreview , we m ust determ ine wh ether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
cou ld have found the essential elementsof the crim e beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (19 79); Geesa
v. State, 820 S.W.2d 154, 157 (Tex.Cr.App. 1991), overruled on other grounds , Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App. 2000 ). As an a ppe llatecou rt, w e m ay n ot s it
as a thirteenth juror, but mus t uphold the jury's verdict unless it is irrational or unsupported by mo re than a m ere mo dicum of evidence. Moreno v. State, 755 S .W .2d 866, 86 7 (T ex.Cr.A pp. 1988). If a challenge to the legal sufficiency of the evidence is sus taine d , app ellant is en titled to acquittal. Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 72 L.Ed.2d 652 (1982); Cai n v. State, 976 S .W .2d 228, 233 (Tex .App.--San A ntonio 1998, no pet.).
B efore determ ining whether the evidence is legally sufficient to sustain the conviction, we m ust review the essential elements the State w as required to prove. In order to establish unlawful possession of acontrolled substance, the State w as required to prove that appel lant exercise d actual care , custody, co nt rol, or managem ent of the contraband and that he knew the substance he poss essed was contraband. SeeTe x. Pen. Code Ann. § 481.002 (37) (Ve rnon 199 2); Tex. Health & Safety Code Ann. § 481.112(e)7

(Vernon Supp. 2001); King v. State, 895 S.W.2d 701, 703 (Tex.Cr.App. 1995); Martin v. State, 753 S.W.2d 384, 387 (Tex.Cr.App. 1988). These elem ents m ay be proved by circumstantial evidence. McGoldrick v. S tate, 682 S.W.2d 573, 578 (Tex.Cr.A pp. 1985). Because appellant was not w earing the coat that con tained the contraband at the tim e of the search and two wom en were also in the sam e room of the duplex with him, he w as not in exclus iv e c ontrol of the drugs, thus the State w as required to show additional independentfacts and circum stances to affirm atively link appell ant to the contraband. Brown v. State, 911 S.W.2d 744, 747-48 (Tex.Cr.App. 1995 ).
The Stateestablis hed tha t th e ke ys to a ppe llant ’scar , his drivers license, a paystub bearing his name, and the contraband w ere all found in the pockets of the coat that was
on the couch nex

t to him. A lso, the day the w arrant was executed w as a cold day and appellant w as in a s hor t-s leeve sh irt. He w as t he o nly m ale in the duplex at that t ime and the two fem ales were dressed in warmclothing. Although circum sta ntia l, the evi dence presented linked appellant to the coat containing the contraband. Thus, we conclude, after viewing it in the light most favorable to theverdict, that any rationa l tri er of fact coul d have found the es se nt i al el eme nt s o f t he cr i me beyond a reasonable doubt. A ppellant’s second point of error is overruled. Accordingly, the j udgme nt of the trial court is affirmed.

Don H. Rea vis8 Justice

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