Delvin Wayne Jackson v. State of Texas

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-00-495 CR ____________________ DELVIN WAYNE JACKSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 252nd District Court Jefferson County, Texas Trial Court No. 81284 O P I N I O N Delvin Wayne Jackson was convicted of third degree felony possession of a controlled substance. Tex. Health & Safety Code Ann. § 481.115(c) (Vernon Supp. 2002). His sentence, enhanced by a prior felony conviction, was twenty years. On appeal he raises two points of error: the admissibility of expert testimony and the legal sufficiency of the evidence to support the conviction. We will address first his challenge to the legal sufficiency of the evidence. In evaluating the legal sufficiency of evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We consider all evidence presented at trial, although we may not re-weigh the evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). In order to sustain a conviction for possession of a controlled substance, the State must prove that appellant exercised actual care, control, or management over the contraband and that appellant knew that the substance in his possession was contraband. Tex. Health & Safety Code Ann. § 481.002(38) (Vernon Supp. 2002); see also King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). Jackson contends that the State completely failed to meet this burden. Jackson was a passenger in a car stopped by police. The arresting officer testified that when the driver stepped out of the car, he dropped a chunk of "off- white colored rock," suspected of being crack cocaine. When the officer examined the front seat of the car, there were "shavings" and a small "rock," also suspected to be crack, on the front bench seat, between where Jackson and the driver had been sitting. A forensic analyst confirmed that the substance seized by the officer was cocaine, "indicative of the base form" with a weight of 2.37 grams. It appears from the arresting officer's testimony that the amount of cocaine for which Jackson was indicted -- more than one but less than four grams -- includes both the cocaine found on the car seat and the larger chunk dropped by the driver. Underneath the passenger seat where Jackson had been seated, the officer also found three boxes of cigars, one of which was opened. The opened box contained a plastic bag containing 14.93 grams of marijuana. A razor blade was also found in the open cigar box. On his person, Jackson had $1,180.00 in cash, including eight separate $140 "sets," each consisting of one $100 dollar bill and two $20 bills. The jury also heard testimony from Jim Huebel, an investigator with the Jefferson County District Attorney's Office. Huebel, testifying as an expert witness, was asked whether he had ever encountered "two individuals possessing or working together to possess crack cocaine[.]" He replied "Yes." He further testified: In that scenario, which is very common, you'll have one person who is maybe -- you call him the leader of the two . . . . Usually that person will maintain the money -- the profits made off of the sales, but he'll have a lower level dealer who he's working in concert with actually handle the drugs . . . at the direction of the other person who is carrying the money. Huebel also testified as follows, based on his professional experience: [I]t's very common to find people that have cash along with drugs have their money bundled -- usually divided up into say, as an example, if it's $1,000, usually $100 increments. They'll have say five twenties with a rubber band around it and then another, another and another total of one thousand. And I think this is done so that person has quick access to see how much money he's got whereas maybe you and I would have to look in our wallets and dig around to see how much money we've got. Huebel was then asked a hypothetical question that mirrored the arresting officer's testimony about the drugs and money found in the car during Jackson's arrest. He replied that: [G]iven that you've got drugs and you've got a large amount of money on the other person, I would feel that they're related. Q. Okay. Particularly if that money is packaged in the way that you described. A. Especially if the money is that way. Huebel also testified that crack cocaine was usually cut up with razor blades. The jury had heard testimony that the opened cigar box underneath Jackson's seat contained a razor blade. Possession of narcotics need not be exclusive possession; evidence that the accused possessed the drugs jointly with another is sufficient to support conviction. See Watson v. State, 861 S.W.2d 410, 412 (Tex. App.--Beaumont 1993, pet. ref'd). However, when the accused is not in exclusive possession of the premises, for example, where contraband is found, additional facts and circumstances must affirmatively link the accused to the contraband. See Herndon v. State, 787 S.W.2d 408, 409-410 (Tex. Crim. App. 1990). This court relies on a list of factors to evaluate whether evidence in drug possession cases in which the defendant is not in exclusive possession of the premises meets the Jackson v. Virginia standard. We consider whether (1) the contraband was in plain view; (2) the accused was the owner of the car in which the contraband was found; (3) the accused was the driver of the automobile in which the contraband was found; (4) the contraband was conveniently accessible to the accused; (5) the contraband was found on the same side of the car seat as the accused was sitting; (6) the strong odor of the drug was present; (7) paraphernalia to use the contraband was in view of or found on the accused; (8) the physical condition of the accused indicated recent consumption of the contraband found in the car; (9) conduct by the accused indicated a consciousness of guilt; (10) the accused had a special connection to the contraband; (11) the place where the contraband was found was enclosed; (12) occupants of the automobile gave conflicting statements about relevant matters; (13) affirmative statements connect the accused to the contraband. See Dixon v. State, 918 S.W.2d 678, 681 (Tex. App.-- Beaumont 1996, no pet.). The number of factors present is less important than the logical force the factors, alone or in combination, have in establishing the elements of the offense. Howell v. State, 906 S.W.2d 248, 253 (Tex. App.--Fort Worth 1995, pet. ref'd.). In addition, this list is not exclusive; "proof of intentional or knowing possession is an inference drawn by the trier of fact from all of the circumstances." See Eaglin v. State, 872 S.W.2d 332, 337 (Tex. App.-- Beaumont 1994, no pet.), overruled on other grounds, Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995). In Eaglin, for example, we held that $1,000 in cash found on Eaglin's person could be taken by the jury as evidence that Eaglin was "trafficking in, and therefore in control of, the contraband . . . ." Eaglin, 872 S.W.2d at 337. Other courts of appeals have agreed that possession of unusually large sums of cash can be considered an affirmative link with contraband. Dade v. State, 956 S.W.2d 75, 78-79 (Tex. App.--Tyler 1997, pet. ref'd); Ettipio v. State, 794 S.W.2d 871, 874 (Tex. App.--Houston [14th Dist.] 1990, pet. dism'd). Jackson was not in exclusive possession of the car. However, additional facts and circumstances affirmatively link him to the cocaine: the fact that the small rock and scrapings were in plain view; the fact that they were "conveniently accessible" to Jackson; and the fact that the front seat of the car was, obviously, an "enclosed area." See Dixon, 918 S.W.2d at 681. The jury heard Huebel's testimony that, when two people possess crack cocaine jointly, one will often hold the drug while the other holds the money and that the way Jackson's cash was sorted into "sets" was common among those found in possession of drugs. The jury also heard that crack cocaine was usually cut up with a razor blade, and that the cigar box under Jackson's seat contained a razor blade. This evidence, taken in the light most favorable to the verdict, affirmatively linked appellant to the knowing possession of the cocaine. Jackson's second point of error is overruled. Jackson's remaining point of error challenges the admissibility of Huebel's testimony. Before Huebel testified, Jackson objected to his proffered testimony as unreliable, citing Daubert v. Merrell-Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), E. I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995), and Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998). Jackson stated that he was challenging the relevance and reliability of Huebel's proffered testimony seeking to connect the money in Jackson's possession with the drugs. Outside the presence of the jury, Huebel was questioned extensively by both Jackson and the State. At the conclusion of this exchange, Jackson again objected to Huebel's proposed testimony on the grounds that the State had not established the reliability of Huebel's observations about drug possessors operating in pairs and sorting money by "sets." The trial court overruled the objection, but held that Huebel's testimony would be admissible only as it pertained to issues regarding drug possession, rather than delivery. Jackson later cross-examined Huebel as to whether his observations had "been published in books" or "treated with any scientific acceptability[.]" A trial court's decision to admit expert testimony will not be disturbed on appeal absent an abuse of discretion. Alvarado v. State, 912 S.W.2d 199, 216 (Tex. Crim. App. 1995). Police officers with pertinent training or experience may qualify to give testimony both under Rule 701 (opinion testimony by lay witnesses) and Rule 702 (expert testimony) of the Texas Rules of Evidence. See Thomas v. State, 916 S.W.2d 578, 580-581 (Tex. App.--San Antonio 1996, no pet.); see also Austin v. State, 794 S.W.2d 408, 410-411 (Tex. App.--Austin 1990, pet. ref'd). A witness may be qualified to testify both under Rule 702 because of his superior experiential capacity and under Rule 701 if his testimony and opinion are based on first hand knowledge. Yohey v. State, 801 S.W.2d 232, 243 (Tex. App.--San Antonio 1990, pet. ref'd). A police officer's hands-on experience can constitute the "special knowledge" required of an expert witness by Rule 702. Ventroy v. State, 917 S.W.2d 419, 422 (Tex. App.--San Antonio 1996, pet. ref'd). Thomas, Austin, Yohey, and Ventroy all affirmed the threshold relevance and reliability of expert testimony proffered by police officers who, like Huebel, based their testimony on street-level observations of criminal behavior. A trial court does not err in admitting testimony from police officers which is based on "their own personal observations and experiences as [police] officers." Southwick v. State, 701 S.W.2d 927, 930 (Tex. App.--Houston [1st Dist.] 1985, no pet.). Huebel's testimony was relevant because, as noted earlier, possession of unusual amounts of money can be considered an affirmative link with knowing possession of contraband. Dade, 956 S.W.2d at 78-79. Jackson's objection to the testimony -- for example, Jackson's observation that members of the general population also travel in pairs and organize money in their wallets -- goes to the weight, rather than the admissibility, of Huebel's testimony. Yohey, 801 S.W.2d at 243. Point of error one is overruled. The judgment of the trial court is affirmed. AFFIRMED. PER CURIAM Submitted on January 4, 2002 Delivered on March 13, 2002 Do Not Publish Before Walker, C.J., Burgess, and Gaultney, JJ.