Victor Koadinita Utomi v. State

Opinion issued July 6, 2007 In The Court of Appeals For The First District of Texas NO. 01-05-00653-CR VICTOR KOADINITA UTOMI, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 1006912 O P I N I O N A jury found appellant, Victor Koadinita Utomi, guilty of the offense of possession of a controlled substance in an amount over four grams and less than 200 grams with intent to deliver. (1) The indictment included enhancement paragraphs for two prior felony convictions. After finding both enhancement paragraphs true, the trial court assessed appellant's punishment at 40 years' confinement. In three issues, appellant argues that (1) the evidence is legally and factually insufficient to prove that he (a) possessed cocaine (b) with the intent to deliver and (2) the trial court committed reversible error by making an improper comment during voir dire. We affirm. Background In 2004, Houston Police Officer C. Riggs was assigned to investigate narcotics complaints. Riggs frequently worked with confidential informant Michelle Johnson. In November 2004, Johnson contacted Riggs and informed him that she had learned that someone was dealing drugs out of an apartment located at 9445 Concourse in Southwest Houston. On November 8, 2004, Riggs arranged for Johnson to make a controlled buy from the apartment and provided her with $50 to do so. Johnson approached the apartment and knocked on the door. A man, whom Johnson identified in open court as appellant, answered the door, told Johnson to wait outside, and returned moments later with $50 worth of crack cocaine, which he sold to Johnson. Riggs remained in his automobile during the transaction. Although he was able to see Johnson from his vantage point, Riggs testified that he could not identify the man who opened the door to the apartment and sold the drugs to Johnson. Johnson described the man to Riggs as being a black male between approximately 6'1" and 6'3" tall and weighing between 200 and 230 pounds. On November 9, 2004, Riggs obtained a warrant to search the apartment from which Johnson had purchased the cocaine. The warrant described the apartment as being "in control of a black male, whose name is unknown, more fully described as 25-28 years old, 6'00" to 6'03" tall, weighing 200 to 220 pounds, dark brown complexion and short black hair." The following day, Riggs and a team of police officers executed the search warrant. After knocking and receiving no answer, the officers used a metal ramming device to gain entry through the front door. Inside, they found appellant alone in the apartment sleeping on the living room floor. Riggs testified that a small amount of marijuana was found in an envelope on the floor next to appellant. Flakes of marijuana were also found lying about the apartment. A search also uncovered approximately 35 grams of cocaine stored inside a kitchen cabinet next to the sink. According to Officer Riggs, the cocaine was visible to anyone who opened the cabinet. In addition, a small amount of PCP (phencyclidine) was found inside the refrigerator. Appellant stated that the cocaine and PCP did not belong to him and that he was unaware of their presence inside the apartment. Riggs testified that he found clothing in the living room, bedroom, and bedroom closet that appeared to be appellant's size. At trial, the apartment's lessee, Alicia Kadiri, testified that appellant was an acquaintance and had come to her apartment to rest at approximately 5:00 a.m. on November 10, the day Riggs executed the warrant. Kadiri stated that at the time of the search, she was dating a man named Saboo who went by the nickname "Boo." According to Kadiri, Boo is a black male who is roughly six feet tall and weighs over 200 pounds, approximately the same size as appellant. Kadiri stated that she had a falling out with Boo shortly before appellant's arrest and had neither seen nor heard from Boo since the day Officer Riggs executed the warrant. Kadiri indicated that she frequently had large groups of people over to her apartment for social occasions, sometimes as many as 10 to 12 people at a time. She further testified that on the evening of November 9, she had retrieved some items from the cabinet where the cocaine was found. Kadiri stated that she did not observe any cocaine in the cabinet when retrieving the items and was surprised to learn of its discovery. She indicated that, in addition to appellant, three individuals had visited her between the time she last looked in the cabinet and the execution of the search warrant on November 10. Possession In his first issue, appellant contends that the evidence presented at trial is legally and factually insufficient to prove that he possessed the cocaine. More specifically, appellant contends that the State failed to prove that he exercised care, custody, control, or management over the cocaine. Legal Sufficiency We review the legal sufficiency of the evidence by viewing 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 crime beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Although our analysis considers all the evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. King, 29 S.W.3d at 562. Appellant was charged with the knowing possession of more than four grams but less than 200 grams of cocaine with the intent to deliver. See Tex. Health & Safety Code Ann. § 481.112(a), (d) (Vernon 2003). To prove unlawful possession of a controlled substance, the State must prove that the accused (1) exercised care, custody, control, or management over the contraband, (2) was conscious of his connection with it, and (3) knew what it was. See id. §§ 481.002(38), 481.112(a) (Vernon 2003); Swarb v. State, 125 S.W.3d 672, 684 (Tex. App.--Houston [1st Dist.] 2003, pet. dism'd). When contraband is not found on the accused's person or when the accused is not in exclusive possession of the place where the contraband is found, we cannot conclude that the accused had knowledge of and control over the contraband unless the State establishes a link (2) between the accused and the contraband--i.e., independent facts and circumstances that link the accused to the contraband so as to suggest that the accused had knowledge of the contraband and exercised control over it. (3) Rhyne v. State, 620 S.W.2d 599, 601 (Tex. Crim. App. 1981); Robinson v. State, 174 S.W.3d 320, 325 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd); Swarb, 125 S.W.3d at 684. The link may be established through either direct or circumstantial evidence. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). The link terminology does not constitute a unique legal rule, but is only a shorthand way of expressing what must be proven to establish that drugs were possessed knowingly or intentionally. Id. at 747. Texas courts have identified several factors that may help to establish a link between the accused and the contraband, including whether (1) the defendant was present when the drugs were found; (2) the contraband was in plain view; (3) the defendant was in proximity to the drugs and had access to them; (4) the defendant was under the influence of drugs when arrested; (5) the defendant possessed other contraband; (6) the defendant made incriminating statements when arrested; (7) the defendant attempted to flee; (8) the defendant made furtive gestures; (9) the odor of the drug found was present; (10) the defendant owned or had the right to possess the place where the drugs were found; (11) the drugs were found in an enclosed place; (12) the amount of drugs found was significant; (13) the defendant possessed a weapon; and (14) the defendant possessed a large amount of cash. Swarb, 125 S.W.3d at 684. Although several factors relevant to establishing the necessary link have been identified, the number of factors supported by the evidence is not as important as the "logical force" they collectively create to prove that a crime has been committed. Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd) (quoting Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.--Austin 1991, pet. ref'd)). Evidence that links the accused to the drugs must establish a connection that was more than fortuitous. Brown, 911 S.W.2d at 747. When police raided the apartment, appellant was asleep on the living room floor; no one else was present in the apartment. Police searched the apartment and found approximately 35 grams of crack cocaine hidden in a kitchen cabinet next to the sink. Officer Riggs testified that 35 grams of crack cocaine has a street value of approximately $3,500 and is not an amount consistent with personal use. Police also found a bottle of PCP in the refrigerator and an envelope containing marijuana on the floor next to appellant. A few flakes of marijuana were also found lying about the apartment. Officer Riggs further testified that appellant appeared to be living in the apartment because he found clothing in the living room, bedroom, and bedroom closet that was consistent with appellant's size. Although appellant's name was not on the apartment's lease, Officer Riggs explained that very few drug dealers sell drugs out of their own house or apartment, but rather sell out of a house or apartment in someone else's name. Moreover, Johnson testified that she had purchased $50 worth of crack cocaine at this apartment from a man whom she identified in open court as appellant only a few days before police raided the apartment. Appellant contends, however, that "to determine the sufficiency of the evidence, this [c]ourt must first eliminate the testimony of the informant [Michelle Johnson] and ask whether other inculpatory evidence tends to connect . . . [a]ppellant to the commission of the offense." See Tex. Code Crim. Proc. Ann. art. 38.141 (Vernon 2005). Appellant confuses the standards of proof for the sufficiency of corroborating evidence and for legal and factual sufficiency of the evidence to support the verdict as a whole. A challenge of insufficient corroboration is not the same as a challenge of insufficient evidence to support the verdict. See Cathey v. State, 992 S.W.2d 460, 462-63 (Tex. Crim. App. 1999); Simmons v. State, 205 S.W.3d 65, 72 (Tex. App.--Fort Worth 2006, no pet.); Cantelon v. State, 85 S.W.3d 457, 460 (Tex. App.-Austin 2002, no pet.). When, as here, we are asked to review the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the judgment to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Wesbrook, 29 S.W.3d at 111. When asked to review factual sufficiency, we review all the evidence in a neutral light. See Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999). We do not eliminate the testimony of an informant when analyzing the legal and factual sufficiency of the evidence as a whole. See Smith v. State, No. 2-04-120-CR, 2005 WL 852144, at *5 (Tex. App.--Fort Worth Apr. 14, 2005, pet. ref'd) (not designated for publication) ("[W]hen reviewing the legal and factual sufficiency of the evidence, we consider all of the evidence, including accomplice-witness testimony."); see also Simmons, 205 S.W.3d at 71. Appellant does not challenge the sufficiency of the corroborating evidence but rather the legal and factual sufficiency of the evidence as a whole. Thus, in evaluating the legal and factual sufficiency of the evidence, we do not eliminate Johnson's testimony. Viewing all the foregoing evidence in the light most favorable to the verdict, we conclude that a jury could have found beyond a reasonable doubt that appellant exercised care, custody, control or management of the crack cocaine. See Wesbrook, 29 S.W.3d at 111; King, 29 S.W.3d at 562. (4) We overrule the legal sufficiency portion of appellant's first issue. Factual Sufficiency We begin the factual sufficiency review with the presumption that the evidence supporting the jury's verdict is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We view all of the evidence in a neutral light, (5) and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or the conflicting evidence is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000). Regarding the second basis for a finding of factual insufficiency, "an appellate court must . . . be 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 before [the court] is justified in exercising its appellate fact jurisdiction to order a new trial." Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) (emphasis omitted). Our evaluation may not intrude upon the fact finder's role as the sole judge of the weight and credibility accorded any witness's testimony. Cain v. State, 958 S.W.2d 404, 407 n.5 (Tex. Crim. App. 1997). What weight to be given contradictory testimonial evidence is within the sole province of the fact finder because it turns on an evaluation of credibility and demeanor. Id. at 408-09. The fact finder may choose to believe all, some, or none of the testimony presented. Hughes v. State, 897 S.W.2d 285, 289 (Tex. Crim. App. 1994). We must defer appropriately to the fact finder to avoid substituting our judgment for its judgment. See Johnson, 23 S.W.3d at 12. For a review of factual sufficiency, we must consider the most important evidence that appellant claims undermines the verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Appellant argues that the evidence is factually insufficient to support the verdict because Kadiri testified that several people had been in the apartment between the time of the controlled buy and the raid, including Saboo, whose description more closely matches that given by Johnson than appellant's description does. Appellant also cites White v. State, 890 S.W.2d 131 (Tex. App.--Texarkana 1994, pet. ref'd). In White, the police executed a search warrant for the appellant's house and found large quantities of marijuana. Id. at 134, 138. After searching the house, police searched a boat parked in a vacant lot next door and found cocaine hidden in a tackle box. Id. at 134. The Texarkana Court of Appeals held that the evidence was factually insufficient to support the appellant's cocaine conviction because "the jury's finding that [the appellant] had care, custody, and control of the cocaine in the vacant lot is . . . against the great weight and preponderance of the evidence." Id. at 139. In its analysis, the court observed that the State had not sufficiently shown that the appellant either owned or was linked to the vacant lot, the boat, the tackle box, or the cocaine found in the tackle box. Id. The only evidence connecting appellant was the fact that when police arrived to execute the search warrant for his house, appellant and several others were in the vacant lot. Id. While the facts of White are similar to those present here, we cannot ignore the facts that Johnson identified appellant in open court as the man who sold her crack cocaine during the controlled buy, appellant answered to the description given by Johnson and was asleep in the apartment when Officer Riggs entered, clothing in appellant's size was found in the apartment, and cocaine was found in a kitchen cabinet. The jury has the sole province to decide what weight is to be given to contradictory testimony, as the determination turns on an evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. A jury is free to believe any or all of the testimony of the State's witnesses. Hughes, 897 S.W.2d at 289. The jury's decision, therefore, is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State. Cain, 958 S.W.2d at 410. Here, the jury was free to discredit Kadiri's testimony and conclude that appellant was the man in the apartment who sold the crack cocaine to Johnson. Thus, after neutrally examining all the evidence, we find that the proof of guilt was not so weak that the verdict is clearly wrong or manifestly unjust; nor is the verdict against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 10-11. We overrule the factual sufficiency portion of appellant's first issue. Intent to Deliver In his second issue, appellant argues that the evidence is insufficient to prove that he intended to deliver the crack cocaine. Although appellant does not distinguish between legal and factual sufficiency, we will review the record for both. Legal Sufficiency To prove the offense of possession of a controlled substance with the intent to deliver, the State must prove, in addition to possession, that the accused intended to "transfer, actually or constructively, to another a controlled substance . . . ." Tex. Health & Safety Code Ann. § 481.002(8) (Vernon 2006), § 481.112(a). Intent to deliver a controlled substance can be proved by circumstantial evidence, including evidence regarding an accused's possession of the contraband. Mack v. State, 859 S.W.2d 526, 528 (Tex. App.--Houston [1st Dist.] 1993, no pet.). An oral expression of intent is not required. Robinson, 174 S.W.3d at 331. Additional factors that courts have considered in determining whether the accused had the intent to deliver include (1) the nature of the location at which the accused was arrested; (2) the quantity of contraband in the accused's possession; (3) the manner of packaging; (4) the presence, or lack thereof, of drug paraphernalia for either use or sale; (5) the accused's possession of large amounts of cash; and (6) the accused's status as a drug user. Williams v. State, 902 S.W.2d 505, 507 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd). Expert testimony by experienced law enforcement officers may also be used to establish an accused's intent to deliver. See Mack, 859 S.W.3d at 529 (relying, in part, on police officer's testimony "that circumstances logically indicated appellant's intent to deal, rather than use, the crack cocaine he possessed"). In support of his legal sufficiency argument, appellant cites Garrett v. State, 161 S.W.3d 664 (Tex. App.--Fort Worth 2005, pet. ref'd). That case, however, is distinguishable from the instant case. In Garrett, police observed the appellant and Aikeysha Callandret, a resident of the house where the appellant was arrested, attempting to flush several bags of cocaine down the toilet. Id. at 671. On two previous occasions, Callandret had sold crack cocaine to an informant. Id. at 667. The appellant was present at the house during both controlled buys. Id. The appellant was subsequently convicted of possession with intent to deliver the cocaine. Id. at 667-68. On appeal, however, the Fort Worth Court of Appeals held that the evidence was legally insufficient to prove that the appellant intended to deliver the cocaine. Id. at 671. The court noted that the State had offered no evidence linking the appellant to the residence, other than his mere presence, or to any of the drugs or drug paraphernalia found throughout the house; nor was there any evidence that the appellant had money or contraband on him when he was arrested; nor was there any evidence that he was involved in selling drugs. Id. at 671. The evidence that the appellant had attempted to destroy the cocaine and was and had been present in a house from which drugs were sold was sufficient to show that he possessed the cocaine, not that he intended to deliver it. Id. Here, as in Garrett, the State presented no evidence that appellant possessed a large amount of cash or that any contraband or paraphernalia for the personal consumption of the crack cocaine was found on his person. However, unlike the appellant in Garrett, who did not sell the crack cocaine to the informant, Johnson testified that she purchased $50 worth of crack cocaine from a man whom she identified in open court as appellant only a few days before police raided the apartment. Additionally, police confiscated approximately 35 grams of crack cocaine, which, according to Officer Riggs, has a street value of approximately $3,500 and is not an amount consistent with personal use, and the record does not reflect that police found paraphernalia for the personal consumption of crack cocaine anywhere in the apartment. Officer Riggs further testified that, although the apartment had been rented to Kadiri, drug dealers do not commonly sell drugs out of their own house or apartment, but rather sell from a house or apartment in someone else's name. Viewing all the foregoing evidence in the light most favorable to the verdict, we conclude that a jury could have found beyond a reasonable doubt that appellant intended to deliver the crack cocaine. See Wesbrook, 29 S.W.3d at 111; King, 29 S.W.3d at 562. We overrule the legal sufficiency portion of appellant's second issue. Factual Sufficiency The only contradictory evidence presented was Officer Riggs's testimony that appellant, during his arrest, stated that the drugs found in the apartment were not his. Again, we cannot ignore that Johnson identified appellant in open court as the man in the apartment who sold her the crack cocaine. As we stated above, the jury has the sole province to decide what weight is to be given to contradictory testimony. Cain, 958 S.W.2d at 408-09. Hence, the jury was free to discredit appellant's statement to Officer Riggs that the drugs did not belong to him and conclude that appellant was the man in the apartment who sold the crack cocaine to Johnson and, therefore, possessed the cocaine with the intent to deliver it. Thus, after neutrally examining all the evidence, we find that the proof of guilt was not so weak that the verdict is clearly wrong or manifestly unjust; nor is the verdict against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 10-11. We overrule the factual sufficiency portion of appellant's second issue. Voir Dire In his third issue, appellant argues that the trial court committed reversible error during voir dire when it said that if appellant were found not guilty he would go home. Appellant contends that this comment was the equivalent of a judge commenting on the evidence and therefore improper and harmful because (1) appellant was on probation and would not likely go home even if found not guilty and (2) it left the venire members with the impression that, if found not guilty, appellant would go home at the same time they went home. In explaining to the venire members how the trial would proceed, the trial court stated, Then both lawyers get to make their closing statements . . . and then we send the 12 of you back to the jury room to deliberate the case. At this point your focus is: Did the State prove the defendant's guilt beyond a reasonable doubt? If they did, you find him guilty. If they didn't, you find him not guilty. If you find him . . . not guilty, that ends the trial. You go home, he goes home, end of trial. If you find him guilty, the punishment will be assessed by the Court. Appellant voiced no objection to this explanation. By failing to object, appellant has waived review of this issue on appeal. See Tex. R. App. P. 33.1(a) (requiring timely and reasonably specific objection followed by adverse ruling to preserve error for appellate review); Fuentes v. State, 991 S.W.2d 267, 276 (Tex. Crim. App. 1999) (holding that appellant's failure to object to trial court's improper comments during voir dire waived appellate review). We overrule appellant's third issue. Conclusion We affirm the judgment of the trial court. Evelyn V. Keyes Justice Panel consists of Chief Justice Radack and Justices Keyes and Higley. Publish. Tex. R. App. P. 47.2(b). 1. See Tex. Health & Safety Code Ann. § 481.112(a), (d) (Vernon 2003). 2. Although the necessary connection between the accused and the contraband was once referred to as an "affirmative link," we now simply refer to it as a "link." See Evans v. State, 202 S.W.3d 158, 161 n.9 (Tex. Crim. App. 2006). 3. This rule serves to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else's drugs; it restates the common-sense notion that even if a person jointly possesses property, such as a house or a car, he may not necessarily jointly possess contraband found in that house or car. Robinson v. State, 174 S.W.3d 320, 325 n.2 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd) (citing Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005)). 4. We note that the legislature has imposed the same standards of corroboration for an informant's testimony as for an accomplice's. See Cantelon v. State, 85 S.W.3d 457, 460 (Tex. App.--Austin 2002, no pet.); see also Simmons v. State, 205 S.W.3d 65, 71 (Tex. App.--Fort Worth 2006, no pet.) (noting that in interpreting article 38.141, courts have looked to article 38.14, a substantially similar statute that requires corroboration of accomplice witness testimony). To determine the sufficiency of the corroboration, we eliminate the testimony of the person acting covertly or with the accused and ask whether other inculpatory evidence tends to connect the accused to the commission of the offense, even if it does not directly link the accused to the crime. See McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997) (applying article 38.14 to accomplice testimony). All the law requires to corroborate accomplice or informant testimony is "some non-accomplice evidence which tends to connect the accused to the commission of the offense," even if it does not directly link the accused to the crime. Cantelon, 85 S.W.3d at 460-61 (emphasis in original); see also Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). We review the corroborating evidence in the light most favorable to the verdict. Cantelon, 85 S.W.3d at 461. Non-accomplice or non-informant testimony that generally tends to prove the truth of an accomplice's or informant's version of events is corroborative, even if it "concerns a mere detail, as opposed to a substantive link between the defendant and commission of the offense." Beathard v. State, 767 S.W.2d 423, 430 (Tex. Crim. App. 1989). Here, a number of details other than Johnson's testimony link appellant to the offense, including his presence in the same apartment when Officer Riggs searched it; his similarity to Johnson's physical description of the man who sold her the crack cocaine; the presence of cocaine in the apartment; and the presence of clothing that appeared to be appellant's size in the apartment living room, bedroom, and bedroom closet. 5. Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999).