Opinion
No. 10-06-00027-CR
Opinion delivered and filed June 20, 2007. DO NOT PUBLISH.
Appeal from the 40th District Court Ellis County, Texas Trial Court No. 28911CR/A. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
A jury convicted Patti Lee Toupal of possession of a controlled substance, and the court sentenced her to eighteen years in prison. Toupal presents three points of error challenging: (1) the factual sufficiency of the evidence; (2) the denial of her motion for instructed verdict; and (3) the denial of her motion to suppress. We affirm.
FACTUAL BACKGROUND
Officer Robert Siegmund observed a white truck exit the freeway and park partly on the shoulder and partly on the roadway. The area was known for drugs, public sex acts, and other criminal activities. Siegmund pulled up next to the truck. Richard Harrison was the driver and Toupal, the actual owner of the truck, was the passenger. However, Siegmund did not see Toupal until she lifted her head from Harrison's lap. Harrison and Toupal appeared "surprised." Siegmund suspected that Harrison and Toupal had been engaged in a public sex act. When Siegmund began asking questions, Harrison began driving away. Siegmund followed and Harrison pulled over. Siegmund conducted a pat down search of Harrison and discovered a crack cocaine pipe in Harrison's pocket. During this time, Toupal attempted to drive away. Siegmund placed Harrison in handcuffs, removed the keys from the truck's ignition, and performed a pat down search of Toupal. Siegmund received Harrison's consent to search the truck and discovered cocaine in the passenger door handle. During the search, Siegmund heard Toupal moving around behind him. He observed a glass crack pipe and lighter lying on the ground near Toupal. Toupal appeared to be trying to crush these items with her foot. Siegmund also located a Listerine breath strip packet and a floss container, both of which contained cocaine. Siegmund arrested both Harrison and Toupal.LEGAL AND FACTUAL SUFFICIENCY
In her first point, Toupal argues that the evidence is factually insufficient to support her conviction. Toupal's second point is a legal sufficiency argument in the form of a challenge to the court's denial of her instructed verdict. See Long v. State, 137 S.W.3d 726, 737 (Tex.App.-Waco 2004, pet. ref'd).Standards of Review
We apply the legal sufficiency standard of review to arguments challenging the denial of a motion for instructed verdict. See Canales v. State, 98 S.W.3d 690, 693 (Tex.Crim.App. 2003). Under legal sufficiency review, we determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). We do not resolve any conflict of fact or assign credibility to the witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999); see also Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Inconsistencies in the evidence are resolved in favor of the verdict. Curry, 30 S.W.3d at 406; Matson, 819 S.W.2d at 843. Under factual sufficiency review, we ask whether a neutral review of all the evidence, though legally sufficient, demonstrates that the proof of guilt is so weak or that conflicting evidence is so strong as to render the jury's verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Johnson, 23 S.W.3d at 7. We do not indulge in inferences or confine our view to evidence favoring one side. Rather, we look at all the evidence on both sides and then make a predominantly intuitive judgment. Id.Analysis
To support a conviction for possession of a controlled substance, the State must show that the defendant: (1) exercised actual care, control, or custody of the substance, (2) was conscious of his connection with it, and (3) possessed the substance knowingly or intentionally. Hardie v. State, 79 S.W.3d 625, 631 (Tex.App.-Waco 2002, pet. ref'd); Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995); see Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005). Toupal contends that the evidence is legally and factually insufficient to link her to possession of the cocaine. "Mere presence at the scene does not prove possession; there must be evidence `affirmatively linking' the accused to the contraband which shows the accused had knowledge of and control over the contraband." Hunter v. State, 92 S.W.3d 596, 600 (Tex.App.-Waco 2002, pet. ref'd); see Evans v. State, 202 S.W.3d 158, 162 (Tex.Crim.App. 2006). "[P]resence or proximity, when combined with other evidence, either direct or circumstantial (e.g., "links"), may well be sufficient to establish that element beyond a reasonable doubt." Evans, 202 S.W.3d at 162. Such "links" include: (1) presence when the search was executed; (2) contraband in plain view; (3) proximity to and accessibility of the contraband; (4) accused under the influence of contraband when arrested; (5) accused's possession of other contraband when arrested; (6) accused's incriminating statements when arrested; (7) attempted flight; (8) furtive gestures; (9) odor of the contraband; (10) presence of other contraband; (11) accused's right to possession of the place where contraband was found; (12) drugs found in an enclosed place; (13) accused was found with a large amount of cash; (14) the occupants of the premises [or vehicle] gave conflicting statements about relevant matters; (15) the accused made incriminating statements connecting himself or herself to the contraband; and (16) the quantity of the contraband. Rischer v. State, 85 S.W.3d 839, 843 (Tex.App.-Waco 2002, no pet.); Muckleroy v. State, 206 S.W.3d 746, 749 (Tex.App.-Texarkana 2006, pet. ref'd). "It is the logical force of the circumstantial evidence, not the number of links, that supports a jury's verdict." Evans, 202 S.W.3d at 166. Toupal heavily relies on Harrison's testimony claiming ownership of the cocaine. Harrison testified that Toupal was inside a gas station when he purchased the cocaine, smoked some of the cocaine, and hid the remaining cocaine in the passenger door handle, the Listerine packet, and the floss container. Harrison testified that Toupal had no knowledge of these events and never had possession of the cocaine or the containers. He further testified that he pocketed the containers and that he, not Toupal, discarded the containers during the traffic stop. Harrison admitted telling Toupal that he would take responsibility for the cocaine and that he would tell the police that he got the cocaine in the street. He also admitted that Patty asked him to "do this for me, honey." Harrison claimed ownership of all the cocaine. The videotape of the traffic stop reveals both Harrison and Toupal discarding items. The video captures Toupal constantly moving around, reaching under her shirt, and trying to grind something into the ground. The video also shows Siegmund locating the glass pipe, lighter, and floss container near Toupal's vicinity. Siegmund mistakenly labeled the floss container as belonging to both Harrison and Toupal, but testified that, based on the container's proximity to Toupal, he attributed its ownership to Toupal. While Harrison and Toupal waited in the patrol car, the tape recorded Harrison asking Toupal about the amount of cocaine and Toupal answering "about two grams." While in jail, Toupal engaged in a conversation with her mother, Shirley Watkins, wherein Toupal admitted to possessing cocaine:WATKINS: It was in his pocket?
TOUPAL: It was in both our pockets.
WATKINS: Oh, really?
TOUPAL: But the cops didn't find anything in my pocket. I threw it outside.
WATKINS: Well, you know that these calls are monitored?
TOUPAL: Well, that's alright.Watkins testified that Toupal's previous statements were inconsistent with this conversation. Watkins also received a letter from Harrison that she claimed was inconsistent with this conversation. Harrison testified that he sent the letter because he was "still willing to say that it was mine, the cocaine was mine." In light of the evidence, the record contains several links connecting Toupal to the cocaine: (1) her presence when the search was executed; (2) her proximity to and accessibility of the contraband; (3) her possession of other contraband when arrested; (4) her furtive gestures; (5) the presence of other contraband; and (6) her incriminating statements connecting her to the cocaine. See Rischer, 85 S.W.3d at 843; see also Muckleroy, 206 S.W.3d at 749. Viewing the evidence in a light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that Toupal possessed the cocaine as alleged in the indictment. See Curry, 30 S.W.3d at 406; see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. The court did not err by denying Toupal's motion for instructed verdict. Neither can we say that "a neutral review of all the evidence" demonstrates that the "proof of guilt is so weak" or the "conflicting evidence is so strong" that the verdict is "clearly wrong and manifestly unjust." Watson, 204 S.W.3d at 415; Johnson, 23 S.W.3d at 11. Because the evidence is legally and factually sufficient to support Toupal's conviction, we overrule her first and second points.