No. 14-03-00874-CR.
Memorandum Opinion filed April 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 337th District Court, Harris County, Texas, Trial Court Cause No. 936,557. Affirmed.
Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.
EVA M. GUZMAN, Justice.
A jury convicted appellant, Armando Rodolfo Montoya, of possession of a controlled substance weighing less than one gram and assessed punishment at seventeen years' confinement, enhanced by two prior convictions for possession of a controlled substance. In two issues, appellant challenges the legal and factual sufficiency of the evidence. We affirm.
I. FACTUAL BACKGROUND
Harris County Deputy James Henry was working an extra job at Duster's nightclub when a patron informed him that three men were in the bathroom, apparently "doing" cocaine. Deputy Henry entered the bathroom, looked under the stall door and saw three people occupying the single stall. Using a knife to unlock the stall door, Deputy Henry opened it and found appellant and two other men inside. Appellant was standing over the toilet, angled toward co-defendant, Jesse James Barraza, who stood to the side with the third man, Hector Olivas. According to Deputy Henry, when he opened the stall door, there was sudden movement among the three men; appellant turned and acted as if he were urinating in the toilet, while Barraza wiped his nose and made a snorting sound. After the men stepped out of the stall, Deputy Henry asked them, "are you all snorting dope or are you all gay," and one of them responded, "well, dude, we ain't gay." Inside the stall, Deputy Henry found two small plastic baggies, one was on the ground and the other was in the toilet. The substance in both baggies tested positive for cocaine. Deputy Henry testified that based upon his experience, these men were "snorting cocaine" and that appellant had care, custody, and control over the contraband found that evening. Deputy Alberto Rivera transported the three men and the seized contraband to the police station. During this time, Barraza stated that the contraband was not his. Deputy Rivera testified that the baggie containing the larger amount of contraband was found in between Barraza and Olivas and the baggie containing the lesser amount was found in the toilet. He further testified that Deputy Henry had reported seeing appellant throw a baggie into the toilet. Two forensic chemists testified that the baggie found between Barraza and Olivas contained .75 grams of cocaine and the other baggie contained less than 10 milligrams of cocaine. Barraza testified that he entered the bathroom and was approached by a man who gave him a bail bondsman's card, stating that his friends were going to need it. Barraza then washed his face at the sink and used a paper towel to dry his face. He opened the stall door and showed appellant and Olivas the bondsman's card. As he turned to leave the stall — which Barraza testified was not locked, but slightly ajar — two police officers walked in. At trial, Barraza testified that he never saw appellant in possession of the cocaine. II. DISCUSSION
Appellant first argues the evidence is legally insufficient to support his conviction. Specifically, he contends that the evidence failed to prove he exercised care, custody, and control over the contraband We disagree. A. Legal Sufficiency of the Evidence
In a legal sufficiency challenge, we review the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000); McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). This standard is applied to both direct and circumstantial evidence. McMillon v. State, 940 S.W.2d 767, 768 (Tex. App.-Houston [14th Dist.] 1997, pet. ref'd). In conducting our review, we consider all evidence presented at trial; however, we do not re-weigh the evidence or substitute our judgment for that of the fact finder. King, 29 S.W.3d at 562; Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998) (stating appellate courts are not fact-finders and may not reevaluate the weight and credibility of the record evidence in determining the sufficiency of evidence). To establish possession of a controlled substance, the State must prove the defendant (1) exercised actual care, control, management, or custody of it, and (2) knew the object he possessed was contraband Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd). When a defendant is not in exclusive possession of the contraband, the defendant can nonetheless be found guilty based upon the law of parties. See TEX. PEN. CODE ANN. § 7.02(a)(2) (Vernon 2003). However, mere presence at the scene of a crime is insufficient to support a conviction. Wooden v. State, 101 S.W.3d 542, 546 (Tex. App.-Fort Worth 2003, pet. ref'd). The evidence must show that the parties acted together at the time of the offense, each contributing some part towards the execution of their common purpose. Id. Evidence is legally sufficient to convict under the law of parties when the defendant is physically present at the commission of the offense and encourages its commission through acts, words, or other agreement. Id. When the contraband is not found on the accused's person or is not in the exclusive possession of the accused, as is the case here, evidence that affirmatively links the defendant to the offense must be established. See McMillon, 940 S.W.2d at 768-69. Circumstantial evidence may be used to prove possession of the contraband as long as such evidence affirmatively links the defendant to the offense so that a reasonable inference can be made the defendant knew of the contraband's existence and exercised control over it. Hyett, 58 S.W.3d at 830. Circumstantial evidence relevant to establish an affirmative link between a defendant and the contraband includes: (1) whether the contraband was in [a] plain view, [b] conveniently accessible to the accused, [c] found in an enclosed space; and (2) whether [a] paraphernalia to use the contraband was in view of or found on the accused, [b] conduct of the accused indicated consciousness of guilt, [c] affirmative statements connect the accused to the contraband Hurtado v. State, 881 S.W.2d 738, 743 n. 1 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). Such affirmative links are established by a totality of the circumstances. Hyett, 58 S.W.3d at 830; see Sosa v. State, 845 S.W.2d 479, 483-84 (finding the totality of the circumstances could lead to the jury reasonably concluding that the defendant was aware of the contraband and exercised control over it). Appellant asserts that discrepancies in Deputy Henry's testimony and his report to Deputy Rivera on the date of the offense support his argument that appellant did not have the requisite care, custody, and control over the contraband discovered at the scene. In viewing the evidence in a light most favorable to the verdict, we find sufficient evidence establishing affirmative links connecting appellant to the contraband The record shows Deputy Henry received information from a patron at Duster's nightclub that three men were using cocaine in a bathroom stall. When Deputy Henry investigated the scene, he found three men standing in a locked stall. After Deputy Henry opened the stall door, appellant immediately turned away from him and pretended he was urinating. Deputy Henry testified that he saw something fall from appellant as he turned toward the toilet. Barraza, who was also in the stall, began to rapidly wipe his nose with a paper towel and made a snorting sound. Deputy Henry observed two plastic baggies containing cocaine, one on the floor and the other in the toilet. Deputy Henry testified that based on his years of experience as a law enforcement officer, he determined the men were "snorting cocaine." In addition, Deputy Rivera's report states that Deputy Henry told him on the night in question that he had seen appellant "chunk a bag" of cocaine. Finally, an indirect admission was made when Deputy Henry asked the men whether they were "snorting dope" or were "all gay" and one of the men replied, "well, dude, we ain't gay." Because appellant did not testify, the factual affirmative links that establish control also may be used to show appellant's knowledge. Hyett, 58 S.W.3d at 832. Based on the testimony and evidence presented, a rational trier of fact could have found the essential elements of the offense of possession of a controlled substance. B. Factual Sufficiency of the Evidence
In appellant's second issue, he argues the evidence is factually insufficient to support his conviction. In reviewing factual sufficiency of the evidence, we view all the evidence in a neutral light, both for and against the finding. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Such evidence will not be deemed factually insufficient unless (1) it is so weak as to be clearly wrong and manifestly unjust, or (2) the adverse finding is against the great weight and preponderance of the available evidence. Zuliani v. State, 97 S.W.3d 589, 593 (Tex.Crim.App. 2003); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim. App. 2000). Even if we disagree with the verdict, our factual sufficiency review must be appropriately deferential to avoid substituting our judgment for that of the fact finder. Clewis, 922 S.W.2d at 133. Our evaluation should not intrude upon the fact-finder's role as the sole judge of the weight and credibility given to any witness's testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). When evaluating a factual sufficiency challenge, we must address the evidence appellant claims is the most important in allegedly undermining the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim. App. 2003); Wootton v. State, ___ S.W.3d ___, 2004 WL 438651, at *6 (Tex. App.-Houston [14th Dist.] 2004, no pet. h.). Here, appellant argues the following facts do not support the jury's finding that he possessed the contraband: (1) he was in the stall to urinate; (2) urine was found in the toilet; (3) appellant's fingerprints were not found on either of the two baggies; and (4) appellant did not attempt to escape or make gestures indicating he was aiding or abetting a criminal activity. It is undisputed that urine was indeed in the toilet, and nothing in the record establishes that appellant's fingerprints were on either baggie. However, the other evidence appellant cites to in support of his factual insufficiency argument conflicts with probative evidence that appellant had custody, care, and control of the cocaine. In instances where there are inconsistencies in the evidence, due deference must be accorded to the jury's determination regarding the weight and credibility of the evidence. Clewis, 922 S.W.2d at 133. We cannot sustain a factual-sufficiency challenge simply because the record contains conflicting evidence upon which the fact-finder could have reached a different conclusion. Wootton, 2004 WL 438651, at *6 (citing Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997)). Only when it is necessary to prevent a manifest injustice may a reviewing court disagree with the fact finder's resolution of conflicting evidence. Santellan, 939 S.W.2d at 164-65; Wootton, 2004 WL 438651, at *6. Based upon the evidence presented at trial, we cannot conclude the jury's verdict was manifestly unjust. Specifically, Deputy Henry testified that appellant was pretending to urinate in the toilet because appellant was originally facing the two other men in the stall and only turned toward the toilet when Deputy Henry opened the door. Appellant's sudden movement, coupled with the falling or throwing of the baggie into the toilet, are indicative of furtive gestures that affirmatively link appellant to the contraband Warren v. State, 971 S.W.2d 656, 661 (Tex. App.-Dallas 1998, no pet.) (holding that evidence of appellant's furtive gestures and proximity to the cocaine was factually and legally sufficient to support a conviction); Lemons v. State, Nos. 14-93-00408-CR, 14-93-00409-CR, 1995 WL 283832, at *2 (Tex. App.-Houston [14th Dist.] May 11, 1995, no pet.) (not designated for publication) (holding evasive action of dropping container when police arrived was some evidence to show possession of cocaine). We do not find any evidence in the record that greatly outweighs the evidence supporting the jury's verdict. Accordingly, the jury's decision was not so contrary to the weight of the evidence as to be clearly wrong or manifestly unjust. Therefore, we conclude the evidence is factually sufficient to support appellant's conviction and overrule appellant's second issue. Having overruled appellant's two issues, we affirm the trial court's judgment.