Montego P. Robertson v. State

Opinion issued December 16, 2010 In The Court of Appeals For The First District of Texas ———————————— NO. 01-09-00861-CR ——————————— Montego P. Robertson, Appellant V. The State of Texas, Appellee On Appeal from the 176th District Court Harris County, Texas Trial Court Case No. 1220417 MEMORANDUM OPINION Appellant, Montego P. Robertson, appeals from a judgment sentencing him to 11 years in prison for possession of a controlled substance, namely cocaine weighing less than one gram. Tex. Health & Safety Code Ann. § 481.002(38) (Vernon 2010); Tex. Penal Code Ann. § 6.01(b) (Vernon 2003). The case was tried before a jury on a plea of not guilty in the 176th District Court of Harris County, Texas. Appellant pleaded true to enhancement paragraphs. After finding appellant guilty of possession of a controlled substance, and finding true the enhancement paragraphs of two prior felony convictions, the jury assessed a punishment at 11 years’ confinement. In appellant’s sole issue on appeal, he contends the evidence is factually insufficient to show he possessed a controlled substance. We affirm. BACKGROUND During one evening in June 2009, Houston Police Department Officers A. Ferrer and A. Olvera responded to an “assault in progress with a weapon” dispatch to an apartment complex in Harris County. The dispatcher described the suspect as wearing a white baggie shirt and do-rag. While traveling to the apartment complex, the officers saw appellant walking. Officers Ferrer and Olvera believed that appellant met the dispatcher’s primary description because he was wearing a white baggie shirt and do-rag. After determining that appellant met the description obtained from the radio, Officer Ferrer shined his spotlight on appellant and requested that appellant stop walking away. Appellant did not stop, but instead quickened his pace. Officer Olvera then started following appellant on foot, while Officer Ferrer continued to follow appellant in the patrol car. The officers then saw appellant reach into his waistband and drop a black do-rag on the ground. Officer Olvera picked up the discarded black do-rag and found crack cocaine inside the do-rag. SUFFICIENCY OF THE EVIDENCE In the sole issue raised on appeal, appellant challenges the factual sufficiency of the evidence used to convict him of possession of a controlled substance. A. Standard of Review An appellate court reviews both legal and factual sufficiency challenges using the same standard of review. Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *14, 21–22 (Tex. Crim. App. Oct. 6, 2010); Ervin v. State, No. 01-10-00054-CR, 2010 WL 4619329, at *3 (Tex. App.—Houston [1st Dist.] Nov. 10, 2010, no pet. h.). Under this standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational fact finder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Viewed in the light most favorable to the verdict, the evidence is insufficient under this standard in two circumstances: (1) the record contains no evidence, or merely a “modicum” of evidence, probative of an element of the offense; or (2) the evidence conclusively establishes a reasonable doubt. Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750. If an appellate court finds the evidence insufficient under this standard, it must reverse the judgment and enter an order of acquittal. See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S.Ct. 2211, 2218 (1982). An appellate court determines whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An appellate court presumes that the fact finder resolved any conflicting inferences in favor of the verdict and defers to that resolution. See Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; Clayton, 235 S.W.3d at 778. An appellate court may not re-evaluate the weight and credibility of the record evidence and thereby substitute its own judgment for that of the fact finder. Williams, 235 S.W.3d at 750. B. Possession of a Controlled Substance To prove unlawful possession of a controlled substance, the State must show that the accused (1) exercised care, custody, control, or management over the contraband and (2) knew the matter possessed was contraband. Tex. Health & Safety Code Ann. § 481.002(38); Pena v. State, 251 S.W.3d 601, 606 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Possession is voluntary “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). C. “Affirmative” Links[1] If, as here, the accused does not exclusively possess the place where the contraband is found, then independent facts and circumstances must link him to the drugs. Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005); Batiste v. State, 217 S.W.3d 74, 79–80 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Proof of a link between the accused and the contraband is mainly needed to establish knowledge or intent. Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). It is not sufficient to show the defendant was merely present in the vicinity of the controlled substance. Batiste, 217 S.W.3d at 80. Whether direct or circumstantial, the evidence must establish that the defendant’s connection with the drugs is more than fortuitous. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). Texas courts have set forth a non-exclusive list of possible links that can be sufficient, either alone or in combination, to establish a person’s possession of contraband. Id. at 162 n.12. Examples of these links include: (1) the defendant’s presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt. Id. Each case is examined on its own facts, and a factor that contributes to the sufficiency of the evidence in one case may be of little or no value in a different case. Roberson, 80 S.W.3d at 736. The number of links is not as important as the logical force that they collectively create. Batiste, 217 S.W.3d at 80. We need not consider linking factors that are absent from the evidence. Id. D. Analysis Appellant first asserts the evidence is insufficient because, he contends, Officer Ferrer was unable to determine if appellant was male or female. Appellant points to Officer Ferrer’s testimony during cross-examination. During cross-examination, Officer Ferrer testified that he was looking for a female after the initial dispatch; however, because the dispatch description was of a person in a white baggy shirt and do-rag, the description could fit either a male or female. Officer Ferrer testified that when the officers first saw appellant walking, appellant met the dispatch description of a person in white baggy shirt and do-rag, and it was for this reason that he and the other officers believed appellant might be the suspect. Even if this testimony qualified as evidence contrary to the verdict, we conclude it is not so strong that the State could not have met its beyond-a-reasonable-doubt burden of proof. Next, appellant contends the evidence of the cocaine should have been suppressed. Appellant appears to assert that he did not commit a crime because at “the time that [he] was hit with the Q-beam, he had committed no offense.” His contention that “the evidence of cocaine should [therefore] have been suppressed” appears to implicate, without further argument or explanation, broader search and seizure issues such as whether probable cause existed to arrest appellant. Appellant fails to cite federal or state case law to support or explain his contention, and does not cite to the record. Texas Rule of Appellate Procedure 38.1(i) requires an appellant’s brief to contain a “clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” See Tex. R. App. P. 38.1(i); see also Ladd v. State, 3 S.W.3d 547, 575 (Tex. Crim. App. 1999) (requiring appellants to abide by published briefing rules and to make reasonable arguments on their own behalf does not offend due process or traditional notions of fair play and substantial justice). Here, appellant has not provided a clear and concise argument for why the evidence of the cocaine should be suppressed and has not provided any case law authority or citation to the record. We, therefore, conclude this portion of his argument is waived for inadequate briefing. See Tex. R. App. P. 38.1(i); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (overruling points of error as inadequately briefed when appellant neglected to present argument and authorities as required by Texas Rule of Appellate Procedure 38.1(i)). Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that appellant unlawfully possessed a controlled substance. The record shows that (1) appellant fled officers after he was asked to stop; (2) appellant was alone and the only person fleeing the scene; (3) appellant pulled out a black do-rag cloth from his waistband in the presence of the police and tossed it to the ground; (4) the officer recovered the same do-rag; and (5) the do-rag contained crack cocaine. We hold the evidence is legally sufficient to prove appellant’s guilt. See Guy v. State, 160 S.W.3d 606, 613 (Tex. App.—Fort Worth 2005, pet ref’d) (holding that evidence was sufficient to prove appellant possessed cocaine because officer personally observed appellant dropping baggie containing cocaine out of his hand; officer maintained constant visual of appellant and baggie; and, officer identified baggie in court as same one he saw on day in question). We overrule appellant’s sole issue raised on appeal. CONCLUSION We affirm the judgment of the trial court. Sherry Radack Chief Justice Panel consists of Chief Justice Radack, Justices Massengale and Nuchia.[2] Do not publish. Tex. R. App. P. 47.2(b). [1] The Texas Court of Criminal Appeals has stated that the term “affirmative” adds nothing to the plain meaning of “link.” When the term “link” is used, it is clear that the evidence of drug possession is judged by the same standard as all other evidence. See Evans v. State, 202 S.W.3d 158, 162 n.9 (Tex. Crim. App. 2006). [2] The Honorable Sam Nuchia, Senior Justice, Court of Appeals for the First District of Texas, participating by assignment.