Opinion filed March 26, 2015




                                     In The


        Eleventh Court of Appeals
                                  __________

                               No. 11-13-00060-CR
                                   __________

           ASHLEY JACK CODY HENDERSON, Appellant

                                        V.

                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 39th District Court
                            Haskell County, Texas
                          Trial Court Cause No. 6547


                     MEMORANDUM OPINION
      The jury convicted Ashley Jack Cody Henderson of the offense of
possession of a controlled substance, oxycodone, in an amount of four grams or
more but less than 200 grams. The second-degree felony offense was enhanced by
a prior felony conviction, and the trial court assessed Appellant’s punishment at
confinement for sixty years. On appeal, Appellant first claims that the trial court
erred when it overruled his objections to the introduction of evidence seized in the
search of a vehicle. In his second issue on appeal, Appellant claims that, because
the State failed to link him to the drugs, the evidence is insufficient to show that he
knowingly and intentionally possessed oxycodone. We affirm.
      Undercover Dallas police officers suspected Appellant was responsible for
burglaries in the Dallas area. On October 19, 2011, they obtained a warrant to
attach a mobile tracking device to a black Acura that they had seen Appellant
drive. Appellant was named as the owner/possessor of the Acura. After the
officers placed the tracking device on the Acura, they began to monitor its location.
      In the early morning hours of November 4, 2011, the tracking device
showed that the Acura had been driven to a location in Haskell. Later that evening,
Dallas officers telephoned Haskell authorities and determined that a burglary had
occurred at that location early that morning; a drugstore known as “The Drug
Store” had been burglarized.
      The Drug Store is equipped with an “audio box” that allows the Haskell
County dispatcher to hear voices in the store. The audio box is activated when
employees leave the store. The store is also equipped with an alarm. The alarm
beeps at first until someone enters the alarm code, and if no one enters the code,
the alarm sounds.
      Christina Stevens was working as a dispatcher for the Haskell County
Sheriff’s Department in the early morning hours of November 4. The audio box in
the drugstore had been activated, and from it, she heard the beeping of the alarm
and then the alarm sound. She also heard a voice ask something like, “Did you get
it all?” She heard another voice answer, “Yes.” She dispatched an officer to The
Drug Store.
      Officer Daniel Kaszuba was dispatched to The Drug Store. He arrived
around 5:45 or 6:00 a.m. Officer Kaszuba noticed that the lock had been removed
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from the front door and was lying in the parking lot. Officer Kaszuba called for
assistance and then secured the building.
      Jeffrey Caparoon was a sergeant with the Haskell Police Department at the
time of the burglary. He was one of the officers who responded to assist at The
Drug Store that morning. He obtained and viewed DVDs from the continuously
recording eight video cameras that were located in various places inside the store.
      Lonnie Meredith, the owner of The Drug Store, was notified of the burglary
around 6:00 a.m. on November 4. When Meredith arrived at the store, he noticed
that a trash can was missing. He also noticed that a cabinet where controlled
substances, such as Oxycontin, were kept had been opened and that most of the
contents had been removed. The Drug Store kept an inventory, and from that
inventory, Meredith always knew the amount of inventory “to the tablet.” Among
the missing inventory were 537 15-milligram tablets of oxycodone (a generic form
of Oxycontin) and 300 60-milligram tablets of Oxycontin.
      When the Dallas officers telephoned Haskell authorities on the evening of
November 4, they also told them that, after the Acura had stopped at The Drug
Store, it stopped for twenty-two minutes on Marrs Road about eight miles outside
Haskell and for eight minutes at an Allsup’s convenience store in Throckmorton.
      The record reflects that Haskell law enforcement officers went to the Marrs
Road location to which the Dallas police had directed them. There, the officers
found a white trash can like the one taken in the burglary, and they also found
papers related to The Drug Store. Because the tracking device showed a stop at
Allsup’s in Throckmorton, they also obtained surveillance videos from the
Allsup’s store.
      By this time, Haskell officers had been told that Appellant was the person in
the vehicle that the Dallas officers had been tracking. Officers had also received a
photo ID from Appellant’s drivers license.
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      Winston Stephens, Chief Deputy with the Haskell County Sheriff’s
Department, testified that the DVDs from The Drug Store showed that one of the
men in the video wore a distinctive cap, tennis shoes, and “hoodlum mask.”
      Haskell County law enforcement officers obtained arrest warrants for
Appellant and a man named Wheelis.             Although arrested, Wheelis was later
eliminated as a suspect.
      Law enforcement officers from Haskell County requested that Dallas
officers assist them in locating Appellant. After Dallas police located Appellant,
Sergeant Caparoon and Deputy Stephens traveled to Dallas to execute the warrant.
      Dallas police officers found the black Acura at an extended stay motel; they
were the ones who executed the warrant. Upon entry into Appellant’s motel room,
Deputy Stephens noticed, among other things, a hat, shoes, and mask like those
depicted in the video from The Drug Store surveillance DVDs. These items were
later admitted into evidence at Appellant’s trial.
      The black Acura was parked in the parking lot at the motel.          Officers
searched the Acura and found pills, tools, and a pair of gloves. These items were
also admitted into evidence.
      Prior to Appellant’s trial, Shawn Barber pleaded guilty to burglary of The
Drug Store and to possession of oxycodone taken from there. He received a
twelve-year plea bargain in exchange for his testimony against Appellant. At
Appellant’s trial, Barber testified that he participated in the burglary of The Drug
Store on November 4, 2011, along with Appellant; they came from Dallas. In his
testimony, Barber basically confirmed the physical evidence, the video evidence,
and the mobile tracking device evidence. Barber admitted that he and Appellant
possessed the drugs that they took from The Drug Store at least from the time they
took them until they returned to Dallas.


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      We will first address Appellant’s second issue in which he challenges the
sufficiency of the evidence to link him to the drugs found in the Acura. He argues
that the absence of any affirmative evidence that linked him to the drugs in the
Acura “mitigates against a finding that he possessed the contraband [made] the
basis of his charged offense. Appellant then concludes that, although a rational
jury could have determined that he burglarized The Drug Store, “it did not
necessarily follow that he exercised care, custody, control or management of
narcotics found in his automobile four days later or that he knew the very same
narcotics were in that automobile when it was searched.”              “Accordingly,”
Appellant concludes, “the evidence was insufficient to support [Appellant’s]
conviction for possession of a controlled substance.”
      To convict Appellant of unlawful possession of a controlled substance, the
State was required to prove that Appellant exercised control, management, or care
over the substance and that Appellant knew the thing possessed was contraband.
See Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). The
“affirmative links” rule is related to proof of control, management, care, and
knowledge in connection with the contraband that an accused is charged with
possessing. The rule protects an “innocent bystander from conviction based solely
upon his fortuitous proximity to someone else’s drugs.” Id. at 406.
      In its brief, the State correctly notes that Appellant was not charged with
possession of the drugs found in the Acura. Appellant was charged in Haskell
County for possession of drugs as shown in the video taken during the burglary
and confirmed by Meredith’s testimony, the information recorded by the mobile
tracking device, the evidence found in Appellant’s motel room when the Dallas
officers arrested him, and Barber’s testimony. There has been no challenge to the
sufficiency of that evidence other than the argument that the failure to link
Appellant to the drugs found in the Acura “mitigates against a finding that he
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possessed the contraband [made] the basis of his charged offense.” We overrule
Appellant’s second issue on appeal.
      In his first issue on appeal, Appellant argues that “[t]he denial of [his]
objection to the introduction of evidence obtained from [the] search of his car was
error because there was no probable cause to believe the vehicle contained
evidence of criminal activity.” Specifically, Appellant complains of the admission
of State’s Exhibit No. 2 (mechanic’s gloves), State’s Exhibit No. 4 (a pill bottle),
and State’s Exhibit No. 33 (burglary tools). Dallas police obtained all of those
items when they searched the black Acura in Dallas.
      When the State offered the gloves and the pill bottle into evidence,
Appellant objected that the State had not established a proper chain of custody.
The trial court overruled the objection and admitted the two exhibits. Later,
Appellant asked the trial court to “unadmit” the two exhibits. The basis for his
request to “unadmit” the two exhibits was that there had been no showing of
probable cause to search the Acura; that is also an argument that he makes on
appeal. However, as the State argues, this objection was not timely in the trial
court, and it cannot be made for the first time on appeal. See TEX. R. APP. P.
33.1(a)(1)(A); see also TEX. R. EVID. 103(a)(1); Wilson v. State, 71 S.W.3d 346,
349 (Tex. Crim. App. 2002). Further, the legal basis of a complaint raised on
appeal must comport with the complaint raised in the trial court. Wilson, 71
S.W.3d at 349. Appellant’s probable cause complaint leveled at the admission of
the gloves and pill bottle is overruled.
      In the trial court, Appellant did object, on probable cause grounds, to the
admission of the burglary tools found in the Acura. When the totality of the
circumstances allows for a conclusion that there is a fair probability that
contraband or evidence will be found at a particular location, then probable cause
to search exists. Illinois v. Gates, 462 U.S. 213 (1983); Dixon v. State, 206 S.W.3d
                                           6
613, 616 (Tex. Crim. App. 2006). There was no search warrant in this case.
Searches conducted without a warrant are per se unreasonable absent a few
specific well-delineated exceptions. One of those exceptions is the “automobile
exception.”     Neal v. State, 256 S.W.3d 264, 282 (Tex. Crim. App. 2008);
Barnes v. State, 424 S.W.3d 218, 224 (Tex. App.—Amarillo 2014, no pet.). Under
the automobile exception, officers “may conduct a warrantless search of a vehicle
if it is readily mobile and there is probable cause to believe that it contains
contraband.” Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009). The
court in Neal wrote that police “may lawfully search an automobile if they have
probable cause to believe that the vehicle contains evidence of a crime. Probable
cause to search exists when there is a ‘fair probability’ of finding inculpatory
evidence at the location being searched.” Neal, 256 S.W.3d at 282 (footnote
omitted).
         There is no question but that the Acura was readily mobile; Dallas officers
had been tracking it for some time in connection with burglaries in Dallas.
Further, officers knew that the Acura was at The Drug Store around the time that
the store was burglarized, and they had the DVD recordings of the burglary. They
also knew that, after the burglary, the Acura had been driven to the location on
Marrs Road where officers found items connected to The Drug Store.
Additionally, when officers entered Appellant’s motel room, they noticed a hat,
shoes, and a mask that resembled the hat, shoes, and mask worn during the
burglary of The Drug Store as depicted in the surveillance DVDs from The Drug
Store.    Dallas officers also knew that, not long after the burglary, the Acura
stopped at an Allsup’s convenience store in Throckmorton, the town through
which the officers had tracked the Acura as it was being driven to and from
Haskell on November 4. When a court determines whether probable cause to
search exists, it considers the totality of the circumstances. Fineron v. State, 201
                                          7
S.W.3d 361, 367 (Tex. App.—El Paso 2006, no pet.). The combined information
known to all the officers at the time of the search is to be considered in a probable
cause determination. Id.
      We hold that the totality of the circumstances that we have outlined above
allows for a conclusion that there was a fair probability that contraband or evidence
would be found in the Acura. For all of those reasons, we believe that the officers
had probable cause to search the Acura without a warrant.              We overrule
Appellant’s first issue on appeal.
      We affirm the judgment of the trial court.




                                                    JIM R. WRIGHT
                                                    CHIEF JUSTICE


March 26, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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