Opinion issued July 18, 2013




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                               NO. 01-12-01077-CR
                           ———————————
                   ANGEL O. DIAZ-MORALES, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 180th District Court
                           Harris County, Texas
                       Trial Court Case No. 1344022


                         MEMORANDUM OPINION

      Appellant, Angel O. Diaz-Morales, was charged by indictment with

possession of cocaine. 1 Appellant pleaded not guilty. The jury found him guilty,

and the trial court assessed punishment at two years’ confinement. In two issues,

1
      See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), .115(a), (c) (Vernon
      2010).
appellant argues (1) the evidence was insufficient to support his conviction and (2)

the trial court abused its discretion by denying his motion to suppress based on

lack of probable cause to detain him.

      We affirm.

                                   Background

      Sergeant L Oviedo and Officer D. Dexter, both from the Houston Police

department, were working an extra job at Chula’s Sports Cantina on April 15,

2012. The officers received a tip from a patron that there was suspicious activity

in the men’s restroom. They went to investigate and encountered appellant and

another man leaving the restroom. Sergeant Oviedo asked to speak to appellant,

and appellant agreed. Feigning adjusting his pants, appellant reached into his back

pocket and dropped a small baggie containing what was later determined to be

cocaine onto the ground by his foot. Sergeant Oviedo observed this. The officers

arrested appellant.

      Appellant’s cousin, P. Diaz, also testified. Diaz testified that he was at a

table at the cantina and saw the sequence of events. He further testified that he saw

someone talk to the officers about something happening in the restroom, that the

officers went to the restroom and encountered appellant on the way out, and that

they immediately placed him against the wall and frisked him. Diaz asserted that




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the officers moved appellant to a different location in the cantina and did not find

the drug at the original location until later.

      Appellant also testified. He denied dropping any cocaine from his pants. He

testified that the officers found the cocaine on the ground and then began

questioning him about whether it was his. He also acknowledged that he was

seeking citizenship and that he would not get it if found guilty of the offense.

                             Sufficiency of the Evidence

      In his first issue, appellant argues that the evidence was insufficient to

support his conviction.

A.    Standard of Review

      This Court reviews sufficiency-of-the-evidence challenges applying the

same standard of review, regardless of whether an appellant presents the challenge

as a legal or a factual sufficiency challenge. See Ervin v. State, 331 S.W.3d 49,

53–54 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority

holding of Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)).                This

standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789 (1979). See Ervin, 331 S.W.3d at 54. Pursuant to this

standard, evidence is insufficient to support a conviction if, considering all the

record evidence in the light most favorable to the verdict, no rational fact finder

could have found that each essential element of the charged offense was proven


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beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; In re

Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275

S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007).     We can hold evidence to be insufficient under the

Jackson standard in two circumstances: (1) the record contains no evidence, or

merely a “modicum” of evidence, probative of an element of the offense, or (2) the

evidence conclusively establishes a reasonable doubt. See Jackson, 443 U.S. at

314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see also Laster, 275 S.W.3d

at 518; Williams, 235 S.W.3d at 750.

      The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). An appellate court presumes that the fact finder resolved any conflicts

in the evidence in favor of the verdict and defers to that resolution, provided that

the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. In

viewing the record, direct and circumstantial evidence are treated equally;

circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor, and circumstantial evidence alone can be sufficient to establish guilt.

Clayton, 235 S.W.3d at 778.         Finally, the “cumulative force” of all the


                                         4
circumstantial evidence can be sufficient for a jury to find the accused guilty

beyond a reasonable doubt. See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim.

App. 2006).

B.    Analysis

      Pursuant to section 481.115 of the Texas Health and Safety Code, except in

circumstances not relevant to this conviction, “a person commits an offense if the

person knowingly or intentionally possesses a controlled substance listed in

Penalty Group 1.” TEX. HEALTH & SAFETY CODE ANN. § 481.115(a) (Vernon

2010); see also id. § 481.102(3)(D) (Vernon 2010) (listing cocaine as a controlled

substance under Penalty Group 1). “‘Possession’ means actual care, custody,

control, or management.” Id. § 481.002(38) (Vernon 2010).

      Appellant argues that “the State failed to prove that Appellant had care,

control, or management over the cocaine in the area where Sergeant Oviedo found

it.” We disagree. Sergeant Oviedo testified that he actually saw appellant pull the

baggie from his back pocket and drop it on the ground. On more than one

occasion, Sergeant Oviedo testified, “I didn’t find it on the floor. I saw him drop

it.” This is sufficient evidence to establish possession. See Frazier v. State, 480

S.W.2d 375, 381 (Tex. Crim. App. 1972) (holding evidence of wearing clothing

containing drugs is sufficient to establish possession of drugs); Jackson v. State, 84

S.W.3d 742, 745 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (holding evidence


                                          5
legally sufficient based on single officer’s testimony despite controverting

testimony).

      We overrule appellant’s first issue.

                                Motion to Suppress

      In his second issue, appellant argues that the trial court abused its discretion

by denying his motion to suppress based on lack of probable cause to detain him.

The State argues this issue has been waived. We agree with the State.

      Appellant filed a motion to suppress before trial. He did not present the

motion to suppress until after the State presented its evidence and rested. In his

motion, appellant sought the suppression of all evidence seized as a result of his

detention and arrest. Specifically, he sought the suppression of the testimony of all

of the officers concerning his arrest as well as the cocaine.        At the time he

presented his motion, however, the State had sought and obtained admission of the

cocaine and the lab report identifying it as cocaine. For both exhibits, appellant

stated that he had no objection.        Multiple officers had also testified about

appellant’s detention, the recovery of the cocaine after appellant dropped it, and

the chain of custody over the cocaine up until the time of trial.

      A motion to suppress is “a specialized objection to the admissibility of

evidence.” Porath v. State, 148 S.W.3d 402, 413 (Tex. App.—Houston [14th

Dist.] 2004, no pet.).    As a result, it must meet all the requirements of an


                                           6
evidentiary objection, including timely objecting.        Id.   Filing the motion to

suppress is not sufficient to preserve error. Coleman v. State, 113 S.W.3d 496,

499–500 (Tex. App.—Houston [1st Dist.] 2003), aff’d on other grounds, 145

S.W.3d 649 (Tex. Crim. App. 2004). A motion to suppress that is urged after the

State has presented its evidence and rested is not timely. Nelson v. State, 626

S.W.2d 535, 536 (Tex. Crim. App. 1981). Accordingly, appellant has waived this

issue.

         We overrule appellant’s second issue.

                                      Conclusion

         We affirm the judgment of the trial court.




                                                 Laura Carter Higley
                                                 Justice

Panel consists of Justices Keyes, Higley, and Bland.

Do not publish. TEX. R. APP. P. 47.2(b).




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