Borders v. StateBorders v. State
- Reporters:
- ,
- Before:
- Whitham
OPINION
WHITHAM, Justice.Appellant, Louis T. Borders, appeals a conviction for unlawful delivery of cocaine. We find no merit in any of appellant’s seven points of error. Accordingly, we affirm.
In his first point of error, appellant contends that the trial court erred in denying appellant’s motion for a new trial because the auxiliary court/drug court that heard the trial of appellant did not have criminal jurisdiction under article 4.01 of the Texas Code of Criminal Procedure. We begin by noting that the forum description used by appellant “the auxiliary court/ drug court” is but an administrative “place” designation of the courtroom space
We conclude, therefore, that Judge Thornton had the identical legal authority to hear appellant’s case, as did the elected judges of the district courts, to which he was assigned. The judges of district courts in the same county may, in their discretion, exchange benches or districts or transfer any case. Id. § 24.303(a). It is not necessary that either the docket sheet or the minutes state a reason for exchange of benches by district judges, and a formal order need not be entered. Mata v. State, 669 S.W.2d 119, 121 (Tex.Crim.App.1984). This rationale empowered the visiting judges of the old “annex” courts to hear cases. See Peach v. State, 498 S.W.2d 192, 194-95 (Tex.Crim.App.1973), overruled on other grounds, Jackson v. State, 548 S.W.2d 685 (Tex.Crim.App.1977). To paraphrase Peach, by using the name of the assigned judge and Dallas County district court numbers, the Court of Criminal Appeals instructs us that “whether Judge [Thornton] was assigned by administrative order to sit in the [204th] District Court or in the [265th] District Court would not matter under the circumstances presented.” Peach, 498 S.W.2d at 195. Therefore, if assigned to either the 204th or the 265th, Judge Thornton would certainly be able to preside in the 292nd Judicial District Court. Peach, 498 S.W.2d at 195. We conclude, therefore, that during the week of August 12, 1990, the judge of the 204th (Judge Thornton) exchanged benches with the judge of the 292nd, and during the week of August 19, 1990, the judge of the 265th (Judge Thornton) exchanged benches with the judge of the 292nd. In sum, we hold that no such court known as “The Auxiliary Court/Drug Court” exists within the judicial system of the State of Texas. Instead, we conclude that names of, or directions or reference to, places such as “Auxiliary Court # 7, Dallas County, Texas,” are nothing more than courtroom place designations where disposition of the various matters in cases pending in the lawfully constituted district courts of Dallas County shall be made. It follows that the trial court did not err in denying appellant’s motion for a new trial grounded on the assertion that an asserted “court” named “the auxiliary court/drug court” heard appellant’s trial. Consequently, we affirm the judgment of the 292nd Judicial District Court of Dallas County, Texas, which appears in our record as the trial court’s judgment in the present case. We overrule appellant’s first point of error.
In his second point of error, appellant contends that the trial court erred in denying appellant’s motion for a new trial because the auxiliary court/drug
In his third point of error, appellant contends that the trial court erred in denying his motion for a new trial because the verdict and sentence rendered against appellant were fundamentally defective. Appellant asserts that the sentence and verdict were not rendered by an impartial judicial officer, but instead, by a judicial officer paid by District Attorney John Vance, counsel for the opposing party. Vance is also the project director of the Adjudication of Drug Offenders and Asset Forfeiture Project that created the asserted “drug court” and directly funds twenty-five percent of the asserted “court’s” expenses and the judge’s salary. In short, appellant insists that the district attorney pays the judge and, therefore, commands decisions favorable to the State. Appellant introduced testimony at the hearing on his motion for a new trial that a federal grant pays seventy-five percent of the expenses connected with operating the asserted “drug courts”. Dallas County must then pay the remaining twenty-five percent as “matching funds.” To meet this requirement, the district attorney advances the necessary capital from a drug forfeiture asset account into the county’s general revenue account. We conclude that at this point the district attorney loses control over this money. We reach this conclusion because the county auditor pays the local share of the asserted “drug court” expenses including the services of the visiting judges. (Thus, in the present case, it is undisputed by the State that twenty-five percent of Judge Thornton’s compensation is attributable to these matching funds.) However, the evidence also discloses that the presiding judge of the administrative judicial region approves the payments to the visiting judges. The district attorney’s office has no voice in this matter. The presiding administrative judge exclusively authorizes the payments. The presiding administrative judge assigns the visiting judges from a pool of qualified former district judges. The main criteria for the assignment is the availability of the judges. An administrative assistant occasionally advises the presiding judge of complaints from the prosecutors, defense attorneys, court reporters, and bailiffs; but only the presiding administrative judge himself decides which retired judges to use again. The presiding administrative judge has instructed his assistant that lawyers have no say in who hears their case. We read “lawyers” to include the district attorney.
Due process of law precludes the subjection of a defendant’s liberty or property to the judgment of a court where the judge has an adverse interest in the outcome of defendant’s case.
See Tumey v. Ohio,
278 U.S. 510, 523, 47 S.Ct. 437, 441, 71 L.Ed. 749 (1927). The test is whether the situation is one that offers a possible temptation to the average person as a judge to forget the burden of proof required to convict, or one that might lead him not to hold the proper balance between the State and the accused.
See Connally v. Georgia,
429 U.S. 245, 249, 97 S.Ct. 546, 548, 50 L.Ed.2d 444 (1977);
See also Ward
In his fourth point of error, appellant contends that the trial court erred in sentencing appellant without allowing a punishment hearing. Appellant argues error in the trial court’s failure to follow “the custom” in Dallas County. We quote appellant’s brief: “Even though the defendant could not afford a jury trial and this was a trial before the court, it is the custom in Dallas County to hold a separate punishment hearing.” In the present case, appellant waived the right to a jury and pleaded not guilty. Appellant overlooks the fact that article 37.07, section 2(b) of the Texas Code of Criminal Procedure is applicable only to pleas of not guilty before a jury.
Duhart v. State,
668 S.W.2d 384, 387 (Tex.Crim.App.1984). In the present case, the trial court assessed punishment, without objection, immediately after finding appellant guilty. Appellant cites no authority for the privilege of a bifurcated nonjury trial, but merely refers to this as the “custom” in Dallas County. Consequently, appellant fails to preserve this question.
See McWherter v. State,
607 S.W.2d 531, 536 (Tex.Crim.App.1980). As a general rule, an appellant may not assert error pertaining to his sentence or punishment where he failed to object or otherwise raise such error in the trial courts.
See Mercado v. State,
718 S.W.2d 291, 296 (Tex.Crim.App.1986);
see also
In his fifth, sixth, and seventh points of error, appellant contends that the trial court erred in granting a verdict contrary to the law and evidence:
(a) in that there was no evidence that appellant exercised care, custody and control over the cocaine and that appellant knew he possessed contraband;
(b) in that the evidence is factually insufficient to support a finding of care, custody and control of the cocaine; and
(c) in that the circumstantial evidence used to prove an affirmative link was not proved by competent evidence beyond a reasonable doubt, and the un-controverted competent evidence was inconsistent with the conclusion that appellant’s proximity could only be concluded as possession.
We must now determine whether, after viewing the evidence in the light most favorable to the prosecution,
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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979);
Moreno v. State,
755 S.W.2d at 867. This is true in both direct and circumstantial evidence cases.
Marroquin v. State,
746 S.W.2d 747, 750 (Tex.Crim.App.1988). In order to prove possession of a controlled substance the State must prove two elements: (1) that the accused exercised care, control and management over the contraband, and (2) that the accused knew the matter possessed was contraband.
McGoldrick v. State,
682 S.W.2d 573, 578 (Tex.Crim.App.1985). Possession means more than being where the action is; it involves the exercise of dominion and control over the thing actually possessed.
McGoldrick,
682 S.W.2d at 578. When the accused is not in exclusive possession of the place where the contraband is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Gui
ton v. State,
679 S.W.2d 66, 69 (Tex.App.—Dallas 1984),
aff‘d,
742 S.W.2d 5 (Tex.Crim.App.1987).
See McGoldrick,
682 S.W.2d at 578. Since the proof does not show that appellant was in exclusive possession of 2628 Pennsylvania,
(1) that the contraband was in plain view of the accused;
(2) that the contraband was in close proximity to the accused and readily accessible to him;
(3) that the amount of contraband found is large enough to indicate that the accused knew of its presence;
(4) that the accused was closely related to other persons in joint possession of the contraband or who owned the premises or vehicle in which the contraband was found;
(5) that the conduct of the accused with respect to the contraband was such as to indicate his knowledge and control.
Brunson v. State, 750 S.W.2d 277, 280 (Tex.App.—Houston [14th Dist.] 1988, pet. ref’d).
Other court opinions list factors relevant to the determination of whether an affirmative link exists. They include: the defendant’s presence when the search warrant was executed, Chavez v. State, 769 S.W.2d 284, 289 (Tex.App.—Houston [1st Dist.] 1989, pet. ref’d); the defendant’s attempted flight, Chavez, 769 S.W.2d at 288; and the presence of other contraband or drug paraphernalia not included in the charge. See Hughes v. State, 612 S.W.2d 581, 582-83 (Tex.Crim.App.1981); Alvarez v. State, 750 S.W.2d 889, 890 (Tex.App.—Corpus Christi 1988, pet. ref’d). The State is not required to prove a set formula of facts to show possession. See, e.g., Humason v. State, 728 S.W.2d 363, 366-67 (Tex.Crim.App.1987).
We conclude that, applying these factors to the present case, it is clear that there is an affirmative link between appellant and the cocaine which is sufficient to allow a rational trier of fact to find possession by appellant beyond a reasonable doubt. Appellant was present when the search warrant was executed. Appellant was seated at the head of the kitchen table where fifty-six baggies of crack cocaine, two loaded pistols, and twenty-seven packages of marijuana were found. Possession of the guns and the marijuana was not included in the charge. The baggies were price marked for sale, and the police discovered $4,025.00 cash, a part of which was lying in plain view on the table and a part of which was inside a briefcase situated on the table. Apparent customers were standing near the table. The plastic baggies on the kitchen table contained 109 grams of adulterated cocaine.
We conclude, therefore, that additional facts and circumstances, beyond simple presence at the apartment, affirmatively linked appellant to the cocaine. We conclude further that the evidence affirmatively links the appellant to the cocaine in such a manner and to such an extent that a reasonable inference may arise that appellant knew of the cocaine’s existence and that appellant exercised control over the cocaine. Consequently, we conclude further that a rational trier of fact could have found beyond a reasonable doubt that, at the time of his arrest, appellant knowingly and intentionally possessed -cocaine. We reason that the cumulative force of all the incriminating circumstances was sufficient for the trial court, as the trier of fact, to decide, as it did, that at the time of his arrest, appellant intentionally and knowingly possessed cocaine and exercised control over the cocaine. See Vaughn v. State, 607 S.W.2d 914, 921 (Tex.Crim.App. [Panel Op.] 1980). Indeed, we conclude further that in the present case the evidence of affirmative links between appellant and the cocaine excludes every other reasonable hypothesis except that-appellant knowingly possessed the cocaine. Thus, in the present case, we reason that we do not have before us proof which amounts only to a strong suspicion or mere probability. See Oaks v. State, 642 S.W.2d 174, 179 (Tex.Crim.App.1982). Hence, we conclude that the evidence is sufficient to prove appellant’s possession of cocaine. We overrule appellant’s fifth and seventh points of error.
In this connection, we are mindful that appellant’s sixth point of error as stated asserts that the evidence is “factual
Affirmed.