No. 01-09-00224-CR
Opinion issued January 14, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 3rd District Court, Anderson County, Texas, Trial Court Cause No. 29191.
Panel consists of Justices JENNINGS, HIGLEY, and SHARP.
TERRY JENNINGS, Justice.
A jury found appellant, Austin White, guilty of the offense of possession of a controlled substance in the amount of less than one gram and assessed his punishment at confinement for ten years and a fine of $7,000. In two issues, appellant contends that the evidence is legally and factually insufficient to support his conviction. We affirm.
This appeal, originally filed in the Twelfth Court of Appeals, Tyler, Texas, was transferred to the First Court of Appeals, Houston, Texas. See TEX. GOV'T CODE ANN. § 73.001 (Vernon 2005) (giving Texas Supreme Court authority to transfer cases from one court of appeals to another for good cause).
Background
Palestine Police Department ("PPD") Corporal G. Rayford testified that while he was on patrol on November 2, 2006, he observed a car, in which Julie Henry, the driver, and appellant, the only passenger, were riding, make a left turn without signaling. After Rayford activated the emergency lights on his patrol car, Henry promptly pulled over and stopped her car. When Rayford approached Henry to get her documents, he noticed a "slight smell of burnt marijuana." After Rayford returned to his patrol car to check Henry's driver's license and for outstanding warrants, PPD Sergeant R. Johnson arrived to assist Rayford. Rayford explained that after Johnson approached the passenger side of the car, he heard Johnson say "'spit it out' several times in a raised voice." Rayford then saw Johnson struggling with appellant, who was in the front seat, so he went to help Johnson. Johnson told Rayford that appellant had "something in [his] mouth." Both Rayford and Johnson testified that they were concerned that appellant would damage or destroy whatever was in his mouth. After a brief struggle, they removed appellant from the car and handcuffed him, but Johnson did not find anything in appellant's mouth. Rayford placed appellant in the back of his patrol car and sent Henry to wait at the front of his patrol car while Johnson searched the car for the discarded item. Johnson testified that he arrived on the scene to assist Rayford, and when he went to make contact with appellant to ensure that he did not have a weapon, he saw appellant "making sudden movements and just moving around a lot in the [car]," but that "he could not tell where [appellant] was reaching." When Johnson began talking to appellant, he noticed that appellant had "some foreign object in his mouth." He ordered appellant to "spit it out." Appellant told Johnson that "he had nothing in his mouth," but he then pulled what "appeared to be marijuana wrapped in something like clear plastic" out of his mouth and immediately stuck it back in and began chewing. Johnson ordered appellant out of the car, but appellant did not exit immediately. Johnson testified that appellant "turned his whole body towards the driver . . . and reached in his mouth and appeared to extract the marijuana," at which point Johnson assisted appellant out of the car. After removing appellant from the car, Johnson found marijuana in a "clear wrapper" that was "wet" "between the driver's seat and the console" "within arm's reach in the area where [appellant] turned." Continuing his search, Johnson found "under[neath] the back right portion of the passenger seat, . . . [a] tan, small, little, ziplock type [baggie] that . . . contained a white powdered substance" that was "within arm's reach of [appellant]." He indicated that if the "door was opened and you [scanned] that area, . . . [the baggie] was visible from that point." Johnson also found "under the front left corner of the driver's seat," "not within arm's reach of [appellant],""a small green [baggie] similar to the tan one" that contained "a white powder substance." The substance in both baggies field tested positive as cocaine, and laboratory tests confirmed the substance to be cocaine. On cross-examination both Rayford and Johnson testified that they did not see appellant physically possess the cocaine or exercise any custody, control, or management over the baggie of cocaine found underneath the back right corner of the passenger seat. Johnson further testified that "if somebody is just getting into the vehicle, [he would not] have noticed [the baggie of cocaine under the passenger's seat]." He also admitted that the car was not appellant's car; appellant was not operating the car; and a non-cocaine user or non-police officer would not "automatically know what was in [the baggie]." However, Johnson then explained that "because [the baggie] was in [appellant's] close proximity, due to his furtive movements, . . . it was believed he attempted to conceal it from officers. He had already exhibited an attempt to destroy or conceal the marijuana that he had in his mouth." Standard of Review
We review the legal sufficiency of the evidence by considering all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979)). In doing so, we give deference to the responsibility of the fact-finder to fairly resolve conflicts in testimony, to weigh evidence, and to draw reasonable inferences from the facts. Id. To be legitimate or permissible, an inference must be deduced as a logical consequence of the facts presented in evidence, and there must be a logical and rational connection between the facts in evidence and the fact to be inferred. United States v. Michelena-Orovio, 702 F.2d 496, 504 (5th Cir. 1983). An inference, therefore, is a conclusion reached by considering other facts and deducing a logical consequence from them. Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007). Juries may draw "multiple reasonable inferences as long as each inference is supported by the evidence." Id. at 15. Whether the "necessary inferences are reasonable [is] based upon the combined and cumulative force of all the evidence when viewed in a light most favorable to the verdict." Id. at 17. Evidence in a knowing possession of contraband case must amount to more than mere conjecture. Dickey v. State, 693 S.W.2d 386, 389 (Tex. Crim. App. 1984). Thus, speculation and factually unsupported inferences are not allowed. Hooper, 214 S.W.3d at 15. Speculation, or conjecture, is mere theorizing or guessing about the possible meaning of facts and evidence presented. Id. at 16. If circumstantial evidence provides no more than a suspicion, a jury is not permitted to reach a speculative conclusion. Louis v. State, 159 S.W.3d 236, 246 (Tex. App.-Beaumont 2005, pet. ref'd). This is true because even though "[a] conclusion reached by speculation may not be completely unreasonable, . . . it is not sufficiently based on facts or evidence to support a finding beyond a reasonable doubt." Hooper, 214 S.W.3d at 16. Therefore, proof that amounts to only a strong suspicion or mere probability of guilt is insufficient to sustain a conviction. Urbano v. State, 837 S.W.2d 114, 116 (Tex. Crim. App. 1992); In re J.M.C.D., 190 S.W.3d 779, 781 (Tex. App.-El Paso 2006, no pet.); Hall v. State, 86 S.W.3d 235, 240 (Tex. App.-Austin 2002, pet. ref'd); Grant v. State, 989 S.W.2d 428, 433 (Tex. App.-Houston [14th Dist.] 1999, no pet.). Our duty requires us to "ensure that the evidence presented actually supports a conclusion that the defendant committed" the criminal offense of which he is accused. Williams, 235 S.W.3d at 750. If the undisputed facts allow only one logical inference, neither jurors nor the reviewing court may disregard those facts. Evans v. State, 202 S.W.3d 158, 162-63 (Tex. Crim. App. 2006). Although the parties may disagree about the logical inferences that flow from undisputed facts, "[w]here there are two permissible views of the evidence, the fact finder's choice between them cannot be clearly erroneous." Id. at 163 (quoting Anderson v. City of Bessemer, 470 U.S. 564, 574, 105 S. Ct. 1504, 1511 (1985)) (emphasis added). In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We note that a jury is in the best position to evaluate the credibility of witnesses, and we afford due deference to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Although we should always be "mindful" that a jury is in the best position to decide the facts and that we should not order a new trial simply because we disagree with the verdict, it is "the very nature of a factual-sufficiency review that . . . authorizes an appellate court, albeit to a very limited degree, to act in the capacity of a so-called 'thirteenth juror.'" Watson, 204 S.W.3d at 414, 416-17. Thus, when an appellate court is "able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury's verdict[,] . . . it is justified in exercising its appellate fact jurisdiction to order a new trial." Id. at 417. Sufficiency of the Evidence
In his first and second issues, appellant argues that the evidence is legally and factually insufficient "to prove beyond a reasonable doubt that [he] exercised care, control, or management over the cocaine and knew it was contraband" because "the State failed to connect him to the cocaine, and failed to prove he even knew the cocaine was in the car." An individual commits the offense of possession of a controlled substance in an amount of less than one gram if he knowingly and intentionally possesses the controlled substance in the prescribed amount, by aggregate weight, including adulterants or dilutants. See TEX. HEALTH SAFETY CODE ANN. §§ 481.002(5), 481.102(3)(D), 481.115 (Vernon Supp. 2009). To prove possession of a controlled substance, the State must prove that the accused (1) exercised control, management, or care over the substance and (2) knew that the matter possessed was a controlled substance. Evans, 202 S.W.3d at 161. Possession is a "voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control." TEX. PENAL CODE ANN. § 6.01(b) (Vernon 2003). When, as here, a defendant is not in exclusive possession of the place where contraband is found, additional independent facts and circumstances must link the defendant to the contraband in such a way that it can be concluded that the accused had knowledge of the contraband and exercised control over it. Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd). The evidence must demonstrate that the link between a defendant and the contraband generates a reasonable inference that the accused knew of the contraband's existence and exercised control over it. Id. In other words, the State must establish that the defendant's connection with the narcotics was more than just fortuitous. Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005). The Texas Court of Criminal Appeals has explained that the purpose of the "links" rule is to "protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else's [narcotics]." Id. at 406. The links rule "simply restates the common-sense notion that a person — such as a father, son, spouse, roommate, or friend — may jointly possess property like a house but not necessarily jointly possess the contraband found in that house." Id. (emphasis added). Thus, "[w]hen the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband." Id. (quoting Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981)). Texas courts have identified "many non-exhaustive factors" that may demonstrate a link to contraband. Roberson, 80 S.W.3d at 735. These factors include (1) the accused's presence when a search is conducted, (2) whether the narcotics were in plain view, (3) the accused's proximity to and the accessibility of the narcotics, (4) whether the accused was under the influence of narcotics when arrested, (5) whether the accused possessed other contraband or narcotics when arrested, (6) whether the accused made incriminating statements when arrested, (7) whether the accused attempted to flee, (8) whether the accused made furtive gestures, (9) whether there was an odor of contraband or narcotics, (10) whether other contraband or narcotic paraphernalia was present, (11) whether the accused owned or had the right to possess the place where the narcotics were found, (12) whether the place in which the narcotics were found was enclosed, (13) whether the accused was found with a large amount of cash, and (14) whether the conduct of the accused indicated a consciousness of guilt. Evans, 202 S.W.3d at 162 n. 12. These factors constitute "a shorthand way of expressing what must be proven to establish that [narcotics] were possessed knowingly." Roberson, 80 S.W.3d at 735. The number of linking factors present is not as important as the "logical force" they create to prove that an offense was committed. Id. In support of his legal sufficiency challenge, appellant emphasizes that neither Officer Rayford nor Sergeant Johnson saw him exercise custody, control, or management over the cocaine; they did not have any indication that he knew the baggie was in the car or what it contained; and "someone just getting into the vehicle would probably not have noticed the baggie[]." The State counters that (1) the cocaine was not completely concealed or hidden; (2) the cocaine was completely accessible to appellant and found under the outside portion of the seat in which he was seated and the cocaine was in close proximity to appellant; (3) an odor of marijuana was in the car; (4) appellant possessed marijuana when he was arrested; (5) appellant acted to destroy or conceal the marijuana, exhibiting a consciousness of guilt; (6) appellant made furtive movements in the car; and (7) appellant denied having anything in his mouth when he clearly had marijuana in his mouth. Location of the Cocaine
"An 'affirmative link' can be established when the contraband is in plain view . . . or when the contraband is hidden in a place tied to the accused." Poindexter, 153 S.W.3d at 409 n. 24 (citing to Hughes v. State, 612 S.W.2d 581, 582 (Tex. Crim. App. 1981) and Mendoza v. State, 583 S.W.2d 396, 397 (Tex. Crim. App. 1979)). Johnson found one of the baggies containing cocaine underneath the right back portion of the passenger's seat in which appellant was seated. Johnson saw the baggie only after appellant had exited the car and Johnson thoroughly scanned the area behind the seat with his flashlight. Although Johnson testified that "[i]f somebody is just getting in the vehicle, [he probably would not] have noticed it," Johnson found the baggie in a place tied to appellant — underneath the back corner of the seat in which he was sitting. We conclude that this factor provides a basis for a link between appellant and the cocaine. Proximity and Accessibility of Cocaine
Convenient access to contraband is an accepted factor that may affirmatively link an accused to contraband found in a vehicle. Deshong, 625 S.W.2d at 329. The baggie of cocaine was found within close proximity of appellant — within his arm's reach, just under the back corner of the seat in which appellant was sitting. We conclude that this factor provides a basis for a link between appellant and the cocaine. Odor of Marijuana The odor of contraband in a car is an accepted factor which may affirmatively link an accused to seized contraband. Hurtado v. State, 881 S.W.2d 738,743 n. 1 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). Here, Rayford smelled the odor of burnt marijuana when he first approached the car. This odor certainly links appellant to the marijuana found between the console and the driver's seat. However, appellant was not convicted of possessing marijuana, but cocaine. Neither officer testified that he smelled the odor of cocaine. We conclude that the odor of marijuana does not serve as a link between appellant and the cocaine. See Robinson v. State, 174 S.W.3d 320, 327 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd) (odor of marijuana did not constitute affirmative link between appellant and cocaine); Washington v. State, 215 S.W.3d 551, 556 n. 2 (Tex. App.-Texarkana 2007, no pet.) (linking appellant to cocaine via odor of marijuana is illogical and does not assist in assuring against convictions based on fortuitous proximity). Furtive Movements
Whether an accused made furtive gestures is a factor in showing that the accused had knowledge of the contraband, as well as control over it. See Guiton v. State, 742 S.W.2d 5 (Tex. Crim. App. 1987); Mills v. State, 847 S.W.2d 453, 455 (Tex. App.-Eastland 1993, pet. ref'd.). In Davis v. State, the defendant's furtive gestures specifically "going towards the bottom of the passenger's seat" linked the defendant to the contraband. 855 S.W.2d 855, 857 (Tex. App.-Eastland 1993, no pet.). In Presswood v. State, the defendant passenger's furtive gestures towards underneath the passenger seat linked him to a pistol found there. 548 S.W.2d 398, 399 (Tex. Crim. App. 1977). Here, Johnson testified that as he approached the car, he saw appellant "making sudden movements and moving around a lot in the vehicle . . . making a lot of quick sudden movements, which made [him] suspicious," but Johnson "could not tell where [appellant] was reaching at the time [he] approached." The video of the traffic stop shows appellant moving around in the car seat before Johnson arrived on the scene and as Johnson approached the passenger door of the car. Given that the cocaine was found underneath the back right edge of the passenger's seat and the marijuana was first seen in appellant's mouth and then later between the console and the driver's seat where appellant discarded it just before he exited the vehicle, one could reasonably infer that appellant's sudden and quick movements before Johnson approached the car were to conceal narcotics generally, and not only the marijuana. To conceal the marijuana in his mouth would not have required appellant to move "around a lot" in the car. We conclude that this factor provides a strong link between appellant and the cocaine found near his seat. Possession of Marijuana
When Johnson initially approached appellant, he noticed that appellant had something in his mouth that caused him to be suspicious that appellant was trying to destroy evidence. Appellant denied having anything in his mouth but immediately pulled out a clear plastic wrapper containing what Johnson identified as marijuana and stuck it back in his mouth. When Johnson then told appellant to exit the car, appellant turned towards the driver's seat and removed the item from his mouth. Johnson found the still-wet, plastic-wrapped marijuana between the console and the driver's seat. Certainly, appellant exercised care, custody, control, and management of the marijuana. Further, it has been held that possession of another type of contraband than that charged is one of the potential factors that may link an accused to the contraband in question. See Batiste v. State, 217 S.W.3d 74, 80 (Tex. App.-Houston [1st Dist.] 2006, no pet.); Chavez v. State, 769 S.W.2d 284, 288 (Tex. App.-Houston [1st Dist.] 1989, pet. ref'd); Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.-Houston [14th Dist.] 2005, no pet.). Here, appellant's possession of one narcotic, marijuana, along with his proximity to the cocaine in a place tied to him and his furtive movements, serve as a link between him and the cocaine found near his seat. Consciousness of guilt
A "consciousness of guilt" is perhaps one of the strongest kinds of evidence of guilt. It is a well accepted principle that any conduct on the part of a person accused of a crime subsequent to its commission, which indicates a "consciousness of guilt" may be received as a circumstance tending to prove that he committed the act with which he is charged. Torres v. State, 794 S.W.2d 596, 598 (Tex. App.-Austin 1990, no pet.). The making of false statements can be evidence of a consciousness of guilt. See Cuong Quoc Ly v. State, 273 S.W.3d 778, 782 (Tex. App.-Houston [14th Dist.] 2008, pet. ref'd). Actions indicating a consciousness of guilt can be considered as factors helping to affirmatively link one to contraband. Roberson, 80 S.W.3d at 740. In this case, appellant showed a consciousness of guilt by misrepresenting that he did not have anything in his mouth, attempting to destroy the marijuana by chewing it, and concealing the marijuana first in his mouth and then in the car. Here again, appellant's attempt to conceal the marijuana along with his other furtive movements and consciousness of guilt serve to link appellant to the cocaine found near his seat. Conclusion
Viewing the evidence in the light most favorable to the verdict, appellant was the front seat passenger in a car in which a baggie of cocaine was found underneath the back right corner of the seat in which appellant was sitting and after appellant had made furtive movements within the car as Sergeant Johnson approached. The cocaine was in close proximity to appellant, within his arm's reach, and was found in a place tied to appellant. Appellant, in addition to trying to conceal marijuana in his mouth, made other furtive movements, which indicated his consciousness of guilt for possession of narcotics generally, not just marijuana. From the logical force created by these factors, we conclude that a rational trier of fact could have found that appellant knowingly and intentionally possessed the cocaine beyond a reasonable doubt. Accordingly, we hold that the evidence is legally sufficient to support appellant's conviction. In support of his factual sufficiency challenge, appellant emphasizes the same evidence. Viewing all of the evidence neutrally, it is true that there is no testimony from either Officer Rayford or Sergeant Johnson that they actually saw appellant exercise care, custody, control, or management over the cocaine. However, strong circumstantial evidence supports the jury's finding that appellant knew of the cocaine and possessed it. Again, he made furtive movements within the vehicle as Johnson approached, and the cocaine was subsequently found in close proximity to appellant, hidden in a place tied to appellant — underneath the seat in which he was sitting — and easily accessible to appellant as he moved around. Accordingly, we hold that appellant's connection to the cocaine was more than just fortuitous such that appellant's conviction is not clearly wrong and manifestly unjust. See Poindexter, 153 S.W.3d at 405-06. We overrule appellant's first and second issues. We affirm the judgment of the trial court.