                               MEMORANDUM OPINION
                                       No. 04-10-00862-CR

                                       Benny Ray ODEM,
                                           Appellant

                                                v.

                                      The STATE of Texas,
                                            Appellee

                    From the 186th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2009CR2994
                          Honorable Maria Teresa Herr, Judge Presiding

Opinion by:      Marialyn Barnard, Justice

Sitting:         Sandee Bryan Marion, Justice
                 Phylis J. Speedlin, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: November 16, 2011

AFFIRMED

           A jury convicted appellant Benny Ray Odem of intentionally or knowingly possessing

cocaine with intent to deliver and knowingly possessing cocaine in the amount of four grams or

more but less than two hundred grams. Odem elected to have the trial court assess punishment,

and it did so at forty years’ confinement in the Texas Department of Criminal Justice–

Institutional Division. The court also assessed a $5,000 fine. On appeal, Odem contends: (1) the

evidence was legally insufficient to prove beyond a reasonable doubt he knowingly possessed
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the cocaine found in the jacket; (2) the trial court erred by denying Odem’s motion to suppress

because the search of Odem’s vehicle was unconstitutional; and (3) the trial court erred by

refusing to instruct the jury as to whether the evidence was illegally obtained. We affirm the trial

court’s judgment.

                                          BACKGROUND

       According to San Antonio Police Officer Emilio Mascorro, he and Officer Lance Perez

pulled Odem over because Odem failed to use his turn signal. Odem was pulling into the Alamo

Lodge parking lot, an area that had many prior complaints about prostitution, narcotics deals, and

assaults. Officer Perez approached the vehicle on the driver’s side while Officer Mascorro

approached on the passenger side. Odem was asked for his driver’s license but claimed he did

not have one. Officer Mascorro then asked Odem if he was staying at the Alamo Lodge, and

Odem stated he was. When asked to show his room key, Odem stated he had not yet rented a

room but was going to. Officer Mascorro then asked Odem why he had not parked by the office,

and Odem replied that he was just there to visit someone. Officer Mascorro testified he could

smell a “faint odor” of marijuana emanating from the vehicle.

       After confirming Odem did not have a driver’s license, Odem was arrested for driving

without a license. Officer Mascorro then conducted a search incident to arrest of Odem’s person

and found a working digital scale. Officer Mascorro believed there was residue on the scale.

Officer Mascorro testified that in his training and seven and a half years’ experience, these

digital scales are often used to weigh illegal narcotics. Officer Mascorro testified he and Officer

Perez arrested Odem because of the digital scale, Odem’s inconsistent answers, the smell of

marijuana, and the fact that the Alamo Lodge had a reputation for criminal activity.




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       Officer Perez then searched Odem’s vehicle. Officer Mascorro testified Officer Perez

found some empty sandwich baggies under the driver’s side visor that smelled of marijuana.

Officer Mascorro explained that in his experience, these baggies are often used to package illegal

narcotics. Officer Perez then found cocaine and marijuana in a leather jacket that was sitting in

the passenger side of the front seat. Officer Mascorro testified that in the jacket pocket, Officer

Perez found five baggies of cocaine, as well as two baggies of marijuana.

       Odem filed a motion to suppress the cocaine, which the trial court overruled. Thereafter,

the jury convicted Odem of intentionally or knowingly possessing cocaine with intent to deliver

and knowingly possessing cocaine in the amount of four grams or more but less than two

hundred grams. Odem perfected this appeal.

                                            ANALYSIS

                                   Sufficiency of the Evidence

       In his first issue, Odem contends the evidence was legally insufficient to support his

conviction. More specifically, Odem contends the evidence did not demonstrate he was aware of

and controlled the jacket containing the illegal narcotics. We disagree.

       Under the legal sufficiency standard, we review all of the evidence and reasonable

inferences in the light most favorable to the jury’s verdict to determine whether any rational trier

of fact could have found Odem guilty beyond a reasonable doubt. See Jackson v. Virginia, 443

U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). We must

therefore defer to the jury’s weighing of the evidence, resolution of conflicts in the testimony,

and assessment of credibility. Brooks, 323 S.W.3d at 899. Any inconsistencies in the evidence

will be weighed in favor of the jury’s verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.

App. 2000).



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       Both counts of the indictment charged Odem with knowingly possessing a controlled

substance, namely cocaine. Odem argues that because the jacket did not belong to him, he did

not knowingly possess the cocaine.

       To establish possession of a controlled substance, the State must prove: “(1) the accused

exercised control, management, or care over the substance; and (2) the accused knew the matter

possessed was contraband.” Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005).

Therefore, the accused’s link to the contraband must be more than fortuitous; there must be

independent facts and circumstances affirmatively linking the accused to the contraband. Id. at

406.

       At trial, Odem testified the vehicle he was driving did not belong to him, and because it

did not belong to him, the leather jacket did not belong to him. Odem further testified he did not

know the jacket was in the vehicle and alluded to the fact that the officers either planted the

jacket or planted the cocaine. On the other hand, Officer Mascorro testified that once the officers

placed Odem under arrest, Odem specifically asked for his “leather jacket” “because he was

going to be cold at the magistrate’s.” Bexar County Sheriff Deputy Mark Padilla, who works at

the Bexar County Jail, then testified. Officer Padilla testified that when Odem arrived at the jail,

he came in with a black jacket, a pair of socks, a pair of tennis shoes, a t-shirt, and two pairs of

shorts; Odem indicated to Officer Padilla that he owned these items. Once Odem was released,

he signed for the same property to be released to him. After Officer Padilla testified, Odem

testified once more. Odem claimed he did not enter or leave the jail with a jacket and claimed

Officer Padilla lied about the jacket being part of Odem’s property.

       Based on the above evidence, we hold there was legally sufficient evidence to establish

Odem knowingly exercised control, management, and care over the jacket, and therefore, the



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cocaine. First, Odem was within arm’s reach of the jacket in the vehicle. Second, when Odem

was searched, a digital scale was found in his pocket with residue on it, and baggies typically

used to package illegal narcotics were found in the vehicle. Third, Odem asked for the jacket

once he was arrested, referring to it as “his” jacket. Fourth, Odem signed the jacket in at the jail.

And finally, when Odem retrieved his property from the jail, he retrieved the jacket. Because

there was conflicting evidence regarding the jacket and whether Odem claimed it was his, we

must defer to the jury’s determination of that issue. See Brooks, 323 S.W.3d at 899. It is clear

from the jury’s verdict how they resolved that issue.

       Considering all of the evidence in favor of the jury’s verdict, any rational trier of fact

could have found Odem knowingly exercised control, management, and care over the jacket, and

therefore, the cocaine. Accordingly, Odem’s first issue is overruled.

                                        Motion to Suppress

       In his second issue, Odem contends the trial court erred by denying his motion to

suppress because the search of his vehicle was unconstitutional. Odem argues the automobile

exception to the warrant requirement did not apply because the officers lacked probable cause to

search the vehicle.

       A trial court’s ruling on a motion to suppress is reviewed under a bifurcated standard.

Wilson v. State, 311 S.W.3d 452, 457-58 (Tex. Crim. App. 2010).                    The trial court’s

determination of historical facts is given almost total deference while the trial court’s application

of the law to those facts is reviewed de novo. Id. at 458. “As the sole trier of fact during a

suppression hearing, the trial court may believe or disbelieve all or any part of a witness’s

testimony.” Id. The evidence is then examined in the light most favorable to the trial court’s

ruling, but a trial court “abuses its discretion if it refuses to suppress evidence that is obtained in



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violation of the law and that is, therefore, inadmissible under article 38.23 [of the Texas Code of

Criminal Procedure].” Id.

       Under the automobile exception, a warrantless search of the vehicle is proper if there is

probable cause to believe the vehicle contains evidence of a crime. Keehn v. State, 279 S.W.3d

330, 335 (Tex. Crim. App. 2009). Probable cause amounts to reasonably trustworthy facts and

circumstances within the officer’s knowledge that would lead a person of reasonable prudence to

believe that evidence of a crime will be found. Gutierrez v. State, 221 S.W.3d 680, 685 (Tex.

Crim. App. 2007). “When analyzing whether facts are sufficient to equal probable cause, we

should use a ‘common-sense’ approach and view the facts ‘as understood by those versed in the

field of law enforcement.’” Gutierrez v. State, 327 S.W.3d 257, 263-64 (Tex. App.—San

Antonio 2010, no pet.) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)).

       Thus, the question is whether Officers Perez and Mascorro had probable cause to conduct

a warrantless search of Odem’s vehicle.

       During the suppression hearing, Officer Mascorro testified there were many complaints

about criminal activity, including prostitution, narcotics, and assaults, around the Alamo Lodge

area. Officer Perez and Mascorro pulled Odem over for failing to use his turn signal. Officer

Mascorro then testified that while he was questioning Odem, he could smell a faint odor of

marijuana emanating from the vehicle. Officer Mascorro testified that once they placed Odem

under arrest for driving without a license, he searched Odem’s pockets and discovered a digital

scale, which appeared to have residue on it. Officer Mascorro explained that through his training

and experience, digital scales are often used to weigh illegal narcotics.




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       We hold that based on his training and experience, Officer Mascorro had probable cause

to believe Odem’s vehicle contained evidence of a crime. Accordingly, Odem’s second issue is

overruled.

                                         Jury Instruction

       In his final issue, Odem contends the trial court erred by failing to issue a jury instruction

under article 38.32 of the Texas Code of Criminal Procedure because there were disputed issues

of fact about whether the cocaine was illegally seized. Odem essentially contends that even

though he did not object to the jury charge, the trial court erred by not, sua sponte, including the

jury instruction.

       An article 38.32 instruction is warranted when there is an issue concerning the legality of

the seizure of the evidence. TEX. CODE CRIM. PROC. ANN. ART. 38.23(a). If an issue is raised,

“the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was

obtained in violation of the provisions of this Article, then and in such event, the jury shall

disregard any such evidence so obtained.” Id.

       Because the jury may resolve factual disputes over the whether the evidence was illegally

obtained, and therefore inadmissible, the court of criminal appeals has held that as long as a

defendant raises a factual dispute about whether the evidence was illegally obtained, the jury

charge must include an article 38.23 instruction. Pickens v. State, 165 S.W.3d 675, 680 (Tex.

Crim. App. 2005).

       But, because Odem failed to object to the jury charge, the error will only be reversed if it

resulted in egregious harm, and Odem was denied a fair and impartial trial. Id.; see Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (stating if timely objection at trial, error

reversible if “no more than . . . some harm to the accused from the error,” but if no proper



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objection, error reversible only if harm is egregious). An erroneous jury charge is egregious if it

“affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a

defensive theory.” Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006). In our

review, we must look to the entire record “which may illuminate the actual, not just theoretical,

harm to the accused.” Almanza, 686 S.W.2d at 174.

       At trial, Officer Mascorro testified Odem was pulled over because he turned left without

using his turn signal. Odem vehemently denied this, claiming he used his turn signal. Odem

testified he specifically remembered manually turning off the signal because it would “stick”; the

signal did not automatically turn off once the turn was complete.

       At trial, there were other disputed facts including whether Officers Mascorro and Perez

planted the jacket and cocaine in Odem’s vehicle, and whether Odem claimed the jacket as his

own. It is clear from the jury’s findings that they chose to believe Officer Mascorro as opposed

to Odem on those issues. It is, therefore, unlikely the jury would not believe Officer Mascorro

when he testified Odem did not use his turn signal. In this case, the jury either believed Officer

Mascorro or believed Odem. See Taylor v. State, 332 S.W.3d 483, 492-93 (Tex. Crim. App.

2011) (no egregious harm from jury-charge error because jury either believed appellant or the

victim).

       Accordingly, we conclude Odem was not egregiously harmed by the trial court’s failure

to, sua sponte, issue an article 38.23 instruction.

                                            CONCLUSION

       Based on the foregoing, we overrule Odem’s three points of error and affirm the trial

court’s judgment.

                                                      Marialyn Barnard, Justice
DO NOT PUBLISH

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