No. 14-05-00534-CR
Memorandum Opinion filed August 1, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 209th District Court, Harris County, Texas, Trial Court Cause No. 987,349. Affirmed.
Panel consists of Justices HUDSON, FOWLER, and SEYMORE.
WANDA McKEE FOWLER, Justice.
Andrew Jackson, appellant, was indicted for the felony offense of possessing more than four, but less than two hundred, grams of cocaine with the intent to deliver. A jury convicted appellant and the trial court assessed punishment at seven years' confinement in the Texas Department of Corrections. Appellant raises six issues on appeal; three issues challenge the legal sufficiency of the evidence, and the remaining three challenge the factual sufficiency of the evidence. We affirm.
Factual and Procedural Background
Deputies Chris Mullins and Mark Thomas, of the Harris County Sheriff's Department, were providing private security services to Sterling Grove apartments on May 11, 2004. At approximately 1:00 a.m., the deputies encountered three men walking in the complex. According to the deputies' accounts, when they announced they were law enforcement and ordered the men to stop, one of them turned and fled. The deputies agreed that it was appellant who turned and began to run. Deputy Mullins pursued appellant for approximately 300 yards, weaving around the apartment complex. Deputy Mullins continued to announce himself as a member of the sheriff's department and commanded appellant to stop. Appellant was carrying a baseball sized "baggie" with a white substance that Deputy Mullins instantly believed was cocaine. While in pursuit, Deputy Mullins noticed appellant discard the baggie. Deputy Mullins noted the location of the discarded baggie and continued pursuit. It was not long after appellant discarded the baggie that he stopped and submitted to Deputy Mullins. Deputy Thomas, who could not run in pursuit due to a foot injury, found appellant and Deputy Mullins. While Deputy Mullins retrieved the baggie, Deputy Thomas maintained control over appellant. The deputies escorted appellant to the apartment complex's main office where they awaited transportation for appellant. Off-duty deputies are not allowed to transport suspects. While awaiting transport, Deputy Mullins questioned appellant and field-tested the substance in the baggie, which tested positive for cocaine and weighed 71.92 grams. Deputy Mullins also confiscated $1,021.76 from appellant. Appellant, cocaine, and money were all turned over to the sheriff's department. According to Deputy Mullins's report, appellant claimed to have a job earning $6.50 an hour. Deputy Mullins also reported that appellant claimed the money belonged to him, but the drugs did not. However, Deputy Mullins testified that the money, which included over 60 different bills, was consistent with drug dealing given the number of bills and way it was organized and carried. Other testimony showed that a drug dog alerted to the money — indicating the money had residue of illegal narcotics. Appellant and his witnesses gave a very different account. Appellant's theory of the case revolved around a serious debilitating illness he suffered from the previous year. The State did not dispute that appellant had been hospitalized and, as a result, had been homebound for months. According to appellant and his witnesses, this illness had left him incapable of caring for himself over a period of months. In fact, appellant had begun to drive again only in April 2004. With the exception of various small jobs for individuals, appellant had not been working, and never told deputies he had a job. Also, appellant had not ventured away from home by himself until the night he was arrested. Given his physical state, he could not have run at all, much less attempted to evade deputies as they testified. Concerning the money found in his pockets, both appellant and his mother — with whom he had been living since his illness — testified that it was the mother's money. Appellant was to take the money to purchase money orders to pay bills. Appellant was going to buy the money orders after picking up a female friend and her nephew at the Sterling Grove apartments. The friend, Lashonda Henderson, testified that appellant was supposed to pick her up that evening; appellant testified he left his house between 9:30 and 10:00 p.m., made a brief stop, and then drove to the apartments. According to appellant, he arrived at the apartments, which were a twenty-minute drive from his mother's house, and was searching for Henderson's apartment. However, he had trouble locating her apartment, and enlisted the help of an acquaintance and his friend. The three were walking and talking when the deputies approached. They ordered the three to stop, at which point appellant halted and the other two men ran. The deputies attempted to chase the runners, but were unsuccessful. Appellant continued searching for the apartment, but the deputies returned and apprehended him. The deputies returned with the baggie of cocaine and proceeded to attribute the entire event to him alone because they were angry about not catching the true perpetrators. Thus, according to appellant's version of events, it is impossible that he was involved with the drugs in any way. The jury convicted appellant, and the trial court assessed his sentence. Appellant timely filed notice of appeal. On appeal, he raises legal and factual sufficiency challenges. Although divided into six issues, his challenges allege only legally and factually insufficient evidence to prove the substance recovered was cocaine, that appellant knew the substance was cocaine, or to prove that appellant exercised control over the cocaine. We will affirm. Analysis
I. Legal Sufficiency In a legal-sufficiency challenge, we employ the familiar standard of viewing the evidence in the light most favorable to the verdict. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). If any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, we will affirm. Id. We will not re-weigh the evidence and substitute our judgment for that of the jury. Id. The evidence was legally sufficient to establish the substance appellant was carrying was cocaine, appellant knew it was cocaine, and appellant had sufficient control over the drugs. One of appellant's arguments is an attack on the State's proof of chain of custody for the cocaine; the other two of his arguments are an attack on the proof of "affirmative links," see Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995) (explaining that "affirmative link" is merely shorthand for what must be proven in a prosecution for possession of illegal drugs, such as awareness and control). We will address each in turn to explain that the State adequately proved chain of custody and affirmative links. We will address first appellant's issue that the State did not prove chain of custody. Appellant's chief argument is that the State did not prove that the cocaine tested and offered into evidence was actually the substance Deputy Mullins obtained the night of appellant's arrest. However, appellant ignores the testimony regarding chain of custody. The State introduced a witness whose sole function in the trial was to explain how evidence is handled and delivered in the sheriff's department. He explained that he had personally delivered the sealed envelope into which Deputy Mullins placed the substance to the crime laboratory. The bag had a case number attached to it — the same case number as appellant's case. The State also presented testimony from the crime laboratory's chemist. She not only testified that the substance was cocaine, but also testified that it was delivered to her in sealed condition, and was labeled with a unique number indicating it was the same substance connected to appellant. Finally, Deputy Mullins testified that the substance field-tested positive for cocaine, that he had personally sealed the contraband in the appropriate bag, had properly labeled the bag with the appropriate case number, and then locked it in the appropriate location for transportation to the crime laboratory. This evidence was legally sufficient to prove that the cocaine tested was the same cocaine appellant discarded during the chase. Now, we must determine if the State met the rest of its burden. In a drug case, the State must prove affirmative links; it must prove that appellant (1) exercised actual care, control, or custody of the substance; and (2) knew the substance was contraband. See Brown, 911 S.W.2d at 747. When determining if the State established affirmative links, we examine factors such as the following: (1) the contraband was in plain view; (2) the contraband was accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the accused was the driver of the automobile in which the contraband was found; (5) the contraband was found on the same side of the vehicle seat as the accused was sitting; (6) the contraband was found in an enclosed place; (7) the odor of drugs was present; (8) paraphernalia to use the contraband was in view of or found on the accused; (9) conduct by the accused indicated a consciousness of guilt; (10) the accused had a special connection to the contraband; (11) occupants of the vehicle gave conflicting statements about relevant matters; (12) the accused appeared to be under the influence of drugs; and (13) affirmative statements connected the accused to the contraband. Reed v. State, 158 S.W.3d 44, 47 n. 1 (Tex.App.CHouston [14th Dist.] 2005, pet. ref'd). Appellant contends there is no evidence he knew he was carrying cocaine, and no evidence he exercised actual care, control, or custody of the substance for a sufficient period of time. We disagree. The testimony indicated that appellant fled immediately after making eye contact with the deputies. Additionally, he refused to comply with orders to halt. He also attempted to discard the cocaine in order to distance himself from the bag and its contents. Appellant was in sole possession of the baggie and it was in his hand, rather than concealed in a place so that he would not have known about it. A drug dog also alerted to the money found in appellant's pocket, indicating appellant had been in possession of an illegal drug. Finally, appellant never argued that he did not know what was in the baggie, or that he did not exercise control over it for a sufficient period of time so as to discard it. Rather, appellant disavowed any knowledge or possession of the cocaine at all. Viewed in the light most favorable to the verdict, the evidence was legally sufficient to prove affirmative links. Appellant's behavior and the fact that his money had residue of illegal narcotics indicates appellant knew exactly what he was carrying and that he had been carrying and handling the drugs for a sufficient amount of time to constitute exercising control. His sole possession of the cocaine and his attempts to distance himself from the drugs by fleeing, discarding, and then disavowing the drugs at the scene are all factors the jury could use to find him guilty. We overrule appellant's legal sufficiency issues. II. Factual Sufficiency
Appellant raises the same concerns as above through factual sufficiency issues. When conducting a factual sufficiency review, we view the evidence in a neutral light and will set the verdict aside only if the evidence is so weak as to make the verdict clearly wrong and manifestly unjust, or if the contrary evidence is so strong that the standard of proof, beyond a reasonable doubt, could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004), cert. denied, 544 U.S. 950 (2005). Although we have reviewed the entire record and have considered all evidence presented at trial, we cannot re-weigh the evidence and supplant the role of the jury to resolve conflicts in testimony and evaluate witness credibility. See Zuniga v. State, 144 S.W.3d 477, 482 (Tex.Crim.App. 2004) (stating that appellate courts are not to "find" facts or substitute their judgment for that of the jury). The evidence is factually sufficient as well. Concerning appellant's argument about chain of custody, there is no conflicting testimony or contrary evidence to consider. Appellant asks us to conclude that the State did not produce sufficient evidence, but fails to convincingly attack the evidence the State offered and that we detailed above. The evidence was factually sufficient, when viewed in a neutral light, to prove the cocaine presented at trial was the substance appellant was carrying and then discarded the night of his arrest. We now examine appellant's other arguments. Again, we must determine if the State properly linked appellant to the cocaine. The evidence we must weigh against the State's is appellant and his witnesses' testimony. As we have outlined, appellant based his theory of the case on his illness, his inability to run, and the deputies' anger at not apprehending the other two men who appellant claims evaded arrest. However, this testimony presents nothing more than a credibility determination. Appellant presented no medical testimony to prove he was unable to run the night of his arrest. Additionally, he was not able to explain why, if he arrived at the Sterling Grove apartments sometime between 10:00 and 10:30 p.m., he was still walking around the apartment complex looking for Henderson's apartment at 1:00 a.m. Although appellant contended at trial that perhaps he was arrested earlier, he provided no alternate time. He also provided no plausible explanation for why he had a different amount of money for purchasing money orders than his mother said was necessary, or an explanation for why the bank from which appellant's mother said she withdrew the money, would issue the money is such small denominations of bills — over 60 different bills. Finally, appellant provided no reasonable explanation for why a drug dog would alert to the money in his pocket. The jury was asked to determine which witnesses were credible and which were not. The jury concluded that appellant and his witnesses were not credible, and that the State's witnesses were credible. Its province is to make those determinations. The evidence we have detailed was sufficient to support the jury's verdict. We overrule appellant's factual sufficiency issues. Conclusion
Having overruled each of appellant's issues, we affirm the judgment of the trial court.