Christopher Hopkins v. State

Opinion issued February 2, 2012.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-01098-CR

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Christopher Hopkins , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 263rd District

Harris County, Texas

Trial Court Case No. 1238886

MEMORANDUM OPINION

Christopher Hopkins was charged by

indictment with the felony offense of possessing more than one gram and less

than four grams of crack cocaine. Hopkins filed a pre-trial motion to suppress

the evidence against him, claiming the arresting officer lacked probable cause

to search his vehicle. The trial court

held a hearing and denied the motion to suppress. After a jury found him guilty, Hopkins

pleaded true to four prior felony convictions, and the trial court assessed a

punishment of twenty-five years’ imprisonment.

On appeal, Hopkins contends that the trial court erred in denying his

motion to suppress, and that the evidence presented at trial was legally and

factually insufficient to support his conviction. We affirm.

Background

On October 28, 2009, Deputy M.

Alvarado, with the Harris County Sheriff’s Office, was operating radar when he

detected Hopkins, the sole occupant of his car, driving ten miles over the

speed limit. Alvarado activated his emergency

lights and attempted to stop Hopkins.

Hopkins continued driving for approximately four blocks before turning

into the parking lot of an apartment complex.

When Alvarado entered the parking lot, Hopkins had already parked and stepped

out of his car.

Alvarado testified, both at the

hearing on the motion to suppress and at trial, that Hopkins was walking toward

Alvarado, near the rear bumper of Hopkins’s car, when Alvarado got out of his

car and asked Hopkins for identification.

According to Alvarado, Hopkins was on his cell phone at the time and began

nervously searching his pockets for identification. Alvarado patted down Hopkins to ensure he was

not carrying any weapons. Having confirmed

Hopkins was not carrying any weapons, Alvarado walked to the front of Hopkins’s

car to conduct a visual inspection of the car.

Hopkins called Alvarado to the rear of the car and pointed out that the

lights around his license plate were not working. Alvarado, suspecting this was an attempt to

distract him, returned to the front of the car, looked through the window, and

saw a bag that appeared to contain crack cocaine rocks. Alvarado then opened the driver’s side door,

which he said was ajar, secured the bag, and placed Hopkins under arrest. According to Alvarado, after he told Hopkins

that he was under arrest, Hopkins volunteered, “[Y]ou might as well put me in

the back of the patrol car, I owe a lot of money to drug dealers.”

The State also offered the

testimony of Scott Vajdos, a drug chemist with the Harris County Institute of

Forensic Sciences. Vajdos testified that

the substance recovered from Hopkins’s car showed the presence of cocaine and

weighed 3.72 grams.

Hopkins testified

both at the suppression hearing and at trial, offering testimony that

conflicted with Alvarado’s testimony in several respects. Hopkins denied speeding and denied that

Alvarado’s emergency lights were on when Alvarado pulled into the apartment complex. He also testified that he was no longer

standing by his car when Alvarado approached him; rather, according to Hopkins,

he had walked some distance toward a staircase in the complex when Alvarado arrived

and asked him to return to his car. Hopkins

admitted he was nervous while talking to Alvarado but attributed his reaction to

the fact that he could not find his driver’s license and was panicked about the

prospect of getting a traffic ticket. According

to Hopkins, although the driver’s door was unlocked, it was shut, and Alvarado

opened it before he began to search the car.

Hopkins testified that he had not put any drugs in the car, and that he

did not see Alvarado pull any drugs from his car. Hopkins testified that many people, including

his friend Taquilla Earnest, Earnest’s child’s father, and Hopkins’s co-workers,

all use his car on a regular basis, but he could not remember if anyone else

had driven his car that day.

Hopkins offered the testimony of Earnest,

who testified that she observed Alvarado’s and Hopkins’s interactions on the

day of the arrest. Earnest testified that

she was in the parking lot while Hopkins spoke with Alvarado. She saw Alvarado look through the windows of

Hopkins’s car and open the driver’s side front door. Earnest testified that she did not see

Alvarado remove any items from the car, but did see Alvarado handcuff

Hopkins. Earnest testified that Hopkins

let other people drive his car and that she had driven the car the day before

the arrest but had not seen any drugs in the car.

Hopkins’s wife, Dusti Hopkins, also

testified. According to Dusti, Earnest

called her and asked her to bring Hopkins’s license to the parking lot. Dusti stated that she did not see Alvarado

remove anything from Hopkins’s car, but admitted that she did not arrive until

after Alvarado had begun his search. Dusti

also testified that many people drove Hopkins’s car on a regular basis.

Motion to Suppress

In his

first point of error, Hopkins contends that the trial court erred in denying his

motion to suppress the State’s evidence against him because Alvarado had no

probable cause to search Hopkins’s vehicle.

A.

Standard of Review

In reviewing a trial court’s ruling on a

motion to suppress evidence, we apply a bifurcated standard of review. Carmouche

v. State , 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Blake v. State , 125 S.W.3d 717, 722 (Tex. App. — Houston [1st Dist.] 2003,

no pet.). We give almost total deference

to the trial court’s determination of historical facts that depend on

credibility, while we conduct a de novo review of the trial court’s application

of the law to those facts. Carmouche , 10 S.W.3d at 327 . In a hearing on a motion to suppress, the

trial court is the sole trier of fact and judge of the credibility of the

witnesses and the weight to be given their testimony . State v. Ross , 32 S.W.3d

853, 855 (Tex. Crim. App. 2000). Accordingly, a trial court may choose to

believe or to disbelieve all or any part of a witness’s testimony. Id . “This

is so because it is the trial court that observes first hand the demeanor and

appearance of a witness, as opposed to an appellate court which can only read

an impersonal record.” Id . Unless a trial court abuses its discretion by

making a finding unsupported by the record, we defer to its findings and will

not disturb them on appeal. Flores v. State , 177 S.W.3d 8, 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 findings. Gutierrez v. State , 221 S.W.3d 680, 687

(Tex. Crim. App. 2007).

B.

Applicable law

A traffic stop is a detention and, therefore, must be reasonable. Magana

v. State , 177 S.W.3d 670, 673 (Tex. App — Houston [1st Dist.] 2005,

no pet.) (citing Davis v. State , 947 S.W.2d 240, 244 (Tex. Crim. App.

1997)). The decision to stop an

automobile is reasonable when the police have probable cause to believe that a

traffic violation has occurred. Whren

v. United States , 517 U.S. 806, 810 , 116 S. Ct. 1769, 1772 , (1996); Walter

v. State , 28 S.W.3d 538, 542 (Tex. Crim. App. 2000). Speeding and failure to control speed are

traffic violations. See Tex. Trans. Code Ann . § 545.351 (West 2011).

Although warrantless searches are per se unreasonable, seizing

contraband in plain view does not violate the Fourth Amendment protection

against unreasonable search and seizure.

Walter , 28 S.W.3d at 541 . A police officer may seize an item in “plain

view” if he (1) is legally present when he sees the item and (2) it is

immediately apparent that there is probable cause to “associate the item with

criminal activity.” Id. 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. See Texas

v. Brown , 460 U.S. 730 , 739 – 40, 103 S. Ct. 1535, 1542 (1983); Walter , 28 S.W.3d at 544 – 45.

For it to be immediately apparent that an item is evidence of criminal

activity, a police officer need not have actual knowledge that the item is

contraband, but he must have “probable cause to associate the [item] with

criminal activity.” Brown , 460 U.S. at 741 – 42, 103 S. Ct. at 1543 ; see Joseph

v. State , 807 S.W.2d 303, 308 (Tex. Crim. App. 1991). A police officer may use his training and

experience in determining whether an item in plain view is contraband. Brown ,

460 U.S. at 746 , 103 S. Ct. at 1545 –46 (Powell, J. concurring) (citing to United States v. Cortez , 449 U.S. 411,

418 , 101 S. Ct. 690, 695 (1981)); see Joseph ,

807 S.W.2d at 308 .

C.

Analysis

Although Hopkins’s brief does not

specify which “evidence” should have been suppressed, we construe his complaint

as one relating to both the trial court’s refusal to suppress the crack cocaine

and its refusal to suppress the oral statement Hopkins made after his arrest,

to the effect that he owed lots of money to drug dealers.

1.

Waiver of objection to admissibility of

crack cocaine

“When a pretrial motion to suppress evidence is overruled,

the defendant need not subsequently object at trial to the same evidence in

order to preserve error on appeal.” Lemons

v. State , 135 S.W.3d 878, 882 (Tex. App.—Houston [1st Dist.] 2004, no pet.)

(citing Moraguez v. State ,

701 S.W.2d 902, 904 (Tex. Crim. App. 1986)).

“However, when the defendant affirmatively asserts during trial that he

has ‘no objection’ to the admission of the complained of evidence, he waives

any error in the admission of the evidence, despite the pretrial ruling.” Id. ; see also Swain v. State , 181 S.W.3d 359, 368 (Tex.

Crim. App. 2005) (by stating he had no objection to evidence he previously

argued was inadmissible fruit of illegal arrest, appellant affirmatively

accepted previously challenged evidence and waived any error in its admission);

Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992) (appellant’s

response during trial that he had “no objection” waived his claim to

inadmissibility of challenged evidence that had been subject of suppression

hearing).

At trial, the State offered the crack cocaine into evidence through

Vajdos, a drug chemist with the Harris County Institute of Forensic

Sciences . When the State tendered the evidence to the

Court, Hopkins’s counsel responded “No objection, Your Honor.” By affirmatively stating that he had no

objection to the admission of the crack cocaine into evidence at trial, Hopkins

waived his complaint to the admissibility of the crack cocaine, despite the

pretrial ruling. See Swain , 181 S.W.3d

at 368 ; Moody v. State,

827 S.W.2d at 889 ; Lemons v. State , 135 S.W.3d at 882 .

2.

Admissibility of Hopkins’s oral

statement

Our analysis of whether the trial court erred in refusing to

suppress Hopkins’s oral statement as fruit of an illegal search requires us to

examine whether Alvarado’s detention of Hopkins and seizure of the crack

cocaine were permissible. Alvarado

testified that he followed and ultimately detained Hopkins because he saw

Hopkins commit a traffic violation, i.e., drive ten miles over the speed

limit. This made Alvarado’s decision to

stop Hopkins reasonable. See Walter , 28 S.W.3d at 544 – 45 ( officer acted reasonably by stopping defendant when he had probable

cause to believe that a traffic violation has occurred); Tex. Trans. Code Ann . § 545.351

(speeding is a traffic violation). It also satisfied the requirement

that Alvarado be legally present at the time he saw the bag containing

cocaine. See Walter , 28 S.W.3d at 5 45 (police officer conducting traffic stop could lawfully look into

appellant’s truck).

Alvarado further testified that the cocaine he seized from Hopkins’s

car was in plain view. Specifically,

Alvarado testified that he saw the baggie that contained the crack cocaine on

the floorboard of Hopkins’s car when he was standing outside the car looking

through the car window. He further

testified that based on his years of experience, he recognized the bag as the

kind of bag in which drugs commonly are stored and suspected that it, in fact,

contained drugs. See id. at

544 . Alvarado’s testimony was disputed,

as Hopkins denied the

presence of any drugs in his car, and Hopkins’s counsel, during cross-examination

of Alvarado attempted to call into doubt Alvarado’s testimony that the drugs

found on the floorboard could have been visible from outside the car. However, the trial court was the sole judge

of the weight and credibility of the witnesses’ testimony, and we give great

deference to its findings of historical facts as long as the record supports

them. See Carmouche , 10 S.W.3d

at 327 . We conclude that the record

supports the trial court’s finding that Alvarado’s detention of Hopkins was

reasonable and that his seizure of the drugs was permissible because the crack

cocaine was in plain view. See

Walter , 28 S.W.3d at 545 ; Ramos , 934

S.W.2d at 365. Because we conclude that

the detention of Hopkins and seizure of the crack cocaine were valid, we reject

Hopkins’s contention that his oral statement concerning his debts to drug

dealers was inadmissible fruit of an illegal search.

We overrule Hopkins’s first point of error.

Sufficiency

of the Evidence

In his second and third

points of error, Hopkins contends that the evidence was insufficient to support

his conviction.

A.

Standard of Review

This court

reviews legal and factual sufficiency challenges using the same standard of

review. Ervin v. State , 331 S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.]

2010, pet. ref’d). Under this standard, evidence is

insufficient to support a conviction if considering all record evidence in the

light most favorable to the verdict, a factfinder could not have rationally

found that each essential element of the charged offense was proven beyond a

reasonable doubt. Gonzalez v. State , 337 S.W.3d 473, 478 (Tex.

App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Jackson v. Virginia , 443 U.S. 307, 319 , 99 S. Ct. 2781,

2789 (1979)). Evidence is insufficient

under this standard in four circumstances: (1) the record contains no evidence

probative of an element of the offense; (2) the record contains a mere

“modicum” of evidence probative of an element of the offense; (3) the evidence

conclusively establishes a reasonable doubt; and (4) the acts alleged do not

constitute the criminal offense charged. Gonzalez , 337 S.W.3d at 479 (citing Jackson, 443 U.S. at 314,

318, 320 , 99 S. Ct. at 2786 , 2789 n.11). If an appellate court finds the evidence

insufficient under this standard, it must reverse the judgment and enter an

order of acquittal. Gonzalez , 337 S.W.3d at 479 .

An appellate court

“determine[s] whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence viewed in the light most

favorable to the verdict.” Clayton v.

State , 235 S.W.3d 772, 778

(Tex. Crim. App. 2007) (quoting Hooper v. State , 214 S.W.3d 9 , 16–17 (Tex. Crim. App. 2007)). When the record supports conflicting

inferences, an appellate court presumes that the factfinder resolved the

conflicts in favor of the verdict and defers to that resolution. Id. (citing Jackson , 443 U.S. at 326 , 99 S. Ct. at

2793 ). “In deciding whether the evidence

is sufficient to link the defendant to contraband, the trier of fact is the

exclusive judge of the credibility of the witnesses and the weight to be given

to their testimony.” Poindexter v. State , 153 S.W.3d 402, 406

(Tex. Crim. App. 2005). In viewing the

record, a court treats direct and circumstantial evidence equally:

circumstantial evidence can be as probative as direct evidence, and

“circumstantial evidence alone can be sufficient to establish guilt.” Clayton , 235 S.W.3d at 778 (quoting Hooper , 214 S.W.3d at 13 ).

B.

Applicable law

To prove

unlawful possession of a controlled substance, the State must show that the accused

(1) exercised care, custody, control, or management over the contraband and (2)

knew the matter possessed was contraband. Evans v.

State , 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); see also Tex. Health &

Safety Code Ann . § 481.002(38) (West 2010). When determining whether the defendant knew

that he possessed narcotics, the jury may infer the defendant’s knowledge from

his acts, conduct, remarks, and from the surrounding circumstances. Krause

v. State , 243 S.W.3d 95, 111 (Tex. App. — Houston [1st Dist.] 2007, pet. ref’d).

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) (West 2011).

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. Roberson v. State , 80 S.W.3d 730, 735 (Tex. App. — Houston [1st Dist.] 2002, pet. ref’d); see Evans , 202 S.W.3d at 162 .

Among the

many possible factors that we may consider in assessing the link between a

defendant and contraband are: (1) the defendant’s presence when a search is

conducted; (2) whether the substance was in plain view; (3) the defendant’s

proximity to and the accessibility of the substance; (4) whether the defendant

was under the influence of narcotics when arrested; (5) whether the defendant

possessed other contraband or narcotics when arrested; (6) whether the defendant

made incriminating statements when arrested; (7) whether the defendant

attempted to flee; (8) whether the defendant made furtive gestures; (9) whether

there was an odor of contraband; (10) whether other contraband or drug

paraphernalia were present; (11) whether the defendant owned or had the right

to possess the place where the substance was found; (12) whether the place

where the substance was found was enclosed; (13) whether the defendant was

found with a large amount of cash; and (14) whether the conduct of the

defendant indicated a consciousness of guilt.

Evans , 202 S.W.3d at 162 n.12. Not all of these factors must be proved;

rather, it is the cumulative logical force the factors have in proving

possession that we must consider. See James v. State , 264 S.W.3d 215, 219

(Tex. App. — Houston [1st Dist.] 2008,

pet. ref’d). Additionally, absence of

some of the factors is not evidence of innocence that must be weighed against

the factors that are present. Id. Rather, they are used to assess the sufficiency

of the evidence linking the defendant to knowing possession of contraband. See,

e.g., Roberson v. State , 80 S.W.3d at 735–36.

C. Analysis

Hopkins

contends his conviction cannot stand because he testified that he does not sell

drugs, that he did not put the crack cocaine in the car, that he never saw any

drugs in the car and did not know where the cocaine came from, and because he

and others testified that his wife, friends, and co-workers have access to his

car on a regular basis.

The jury heard

Alvarado testify that he found the bag containing crack cocaine in plain view on

the driver’s side floorboard in Hopkins’s car and that Hopkins had been driving

the car alone just moments before his arrest.

While Hopkins, Dusti Hopkins, and Earnest all testified that others drove

the car on a regular basis, it is undisputed that Hopkins owned the car and was

the sole occupant of the car immediately before the crack cocaine was seized. And Hopkins himself testified that he could

not say that anyone else had driven his car on the day of the arrest. In addition to hearing testimony that the

crack cocaine was in plain view and accessible to Hopkins in an enclosed space

that Hopkins owned and had a right to possess, the jury heard evidence of Hopkins’s

incriminating statement to Alvarado that he “owe[d] a lot of money to drug

dealers” and that Hopkins appeared nervous at the scene. Several links connecting Hopkins to the crack

cocaine are present. See Evans , 202 S.W.3d at 162 .

While Hopkins

correctly asserts that the jury heard testimony indicating that Hopkins did not

knowingly possess the crack cocaine, the jury was free to disbelieve or believe

the testimony presented at trial and was the exclusive judge of the credibility

of the witnesses and the weight to be given to their testimony. See Poindexter ,

153 S.W.3d at 406 . We conclude that the evidence

is sufficient to support the jury’s finding that Hopkins possessed the crack

cocaine. See Evans , 202 S.W.3d at 166 ; see

also Robinson v. State , 174

S.W.3d 320 , 329 –30 (Tex. App. — Houston [1st Dist.] 2005, pet. ref’d)

(affirming conviction for possession of front-seat passenger in truck where

cocaine was located in factory compartment in back wall of truck and easily

accessible to passenger); Harmond v.

State , 960 S.W.2d 404, 407 (Tex. App —Houston [1st Dist.] 1998, no pet.) (evidence sufficient to support

conviction for possession of controlled substance where appellant was sole

occupant of car and drug paraphernalia was within plain view and accessible to

appellant); Hyett v. State , 58 S.W.3d

826, 831 (Tex. App. —Houston [14th

Dist.] 2001, ref’d) (evidence sufficient to show knowing possession

where defendant was sole occupant of car in his control, and contraband was in

plain view and close proximity to appellant).

We overrule Hopkins’s second

and third points of error.

Conclusion

We affirm the judgment of the trial

court.

Justice

Rebeca Huddle

Justice

Panel

consists of Justice Jennings, Massengale and Huddle.

Do

not publish. Tex. R. App. P. 47.2( b).