Joe Allen Lewis v. State

In The Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-08-00395-CR _____________________ JOE ALLEN LEWIS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 258th District Court Polk County, Texas Trial Cause No. 19,964 MEMORANDUM OPINION A jury convicted appellant Joe Allen Lewis of felony possession of a controlled substance, cocaine. See Tex. Health & Safety Code Ann. § 481.115(b) (Vernon 2003). Lewis's sole issue on appeal challenges the legal sufficiency of the evidence to support the verdict. We affirm. After learning from a confidential informant that Lewis was selling drugs from room 112 of a motel in Livingston, a police lieutenant set up a sting operation. The lieutenant searched the informant for illegal contraband, gave him one hundred dollars, recorded the serial numbers of the bills, dropped the informant off at the motel, and instructed him to go to room 112 to make the purchase. The lieutenant parked down the street where he could maintain visual contact with the informant. The informant entered room 112, then exited the room, and returned to the officer with five rocks of cocaine. The lieutenant secured the rocks as evidence and prepared an affidavit for a search warrant. The informant, who had worked in that capacity for the Livingston Police Department on several occasions and was an admitted drug user, testified that he knocked on the motel room door. He asked Lewis if he had some crack and Lewis sold him some. The informant left, met back with the lieutenant, and gave him the cocaine. Approximately one hour after the informant purchased the cocaine, the lieutenant and additional officers arrived at the motel to execute the search warrant. The police attempted unsuccessfully to secure a room key from the motel management. The officers knocked on the door to room 112 and asked the occupants to open the door. After the occupants refused, the officers tried to kick the door open. The door was opened and the officers entered the room. Lewis was in the room with Marcus Green, Josh Dublin, and Lewis's son. The lieutenant asked the occupants to whom the room belonged, and Lewis told the lieutenant it was his room. The officers recovered a DVD case that contained razor blades and what appeared to be cocaine residue. They found marijuana and cellophane cigarette casing in the ashtray. Next to the toilet they found an open bottle containing what appeared to be cocaine residue. They found ledger sheets showing amounts owed and also found small plastic baggies and part of a digital scale. The officers also recovered $1537 in cash from the clothing Lewis was wearing, and from another pair of pants thrown over some other clothes in the room. Some of the bills used to buy the cocaine were retrieved from Lewis's front left pocket. Lewis said the money belonged to him. Lewis was arrested and the evidence was collected. Andrew Gardiner, a forensic scientist with the Texas Department of Public Safety Houston Crime Laboratory, testified the substance collected was approximately 0.86 grams of cocaine. Lewis testified he was inside room 112 that morning to see if he left money in some clothes he recently sold to Dublin. Lewis left and then returned with his son that afternoon. Approximately fifteen minutes later, the police arrived. Lewis said he did not know there was cocaine or marijuana in the room, he did not sell the informant cocaine, and he did not see Green or Dublin engage in any drug transactions while he was in the room. Lewis denied saying the room belonged to him, but admitted he stated the money was his. Although Lewis claimed he earned the money from work, he also said that the seized bills -- identified by the lieutenant as bills provided the informant for the drug transaction -- were given to him by Dublin. Lewis contends the evidence is legally insufficient to support his conviction. In a legal sufficiency review, an appellate court considers 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. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The trier of fact determines the facts and the weight to be given the testimony. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008) ("Appellate courts should afford almost complete deference to a jury's decision when that decision is based upon an evaluation of credibility."). Any inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000) (citing Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)). To prove unlawful possession of a controlled substance, the State must establish that the defendant exercised actual care, custody, control, or management over the substance, and that the defendant knew the substance was contraband. See Tex. Health & Safety Code Ann. §§ 481.002(38) (Vernon Supp. 2008), 481.115(a) (Vernon 2003); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). The State need not prove exclusive possession of the contraband for conviction; control over contraband may be jointly exercised by more than one person. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985); State v. Derrow, 981 S.W.2d 776, 779 (Tex. App.--Houston [1st Dist.] 1998, pet. ref'd). Mere presence in the vicinity of a controlled substance does not, by itself, support a finding that a person is in joint possession or is a party to an offense. Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd). If the accused is not in exclusive possession of the place where the contraband is found, additional independent facts and circumstances may affirmatively link the accused to the contraband. Poindexter, 153 S.W.3d at 406. An affirmative link may be established through either direct or circumstantial evidence, and must establish that the defendant's connection to the contraband was more than just fortuitous. Id. at 405-06. Circumstances which may indicate an affirmative link 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. Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.--Houston [14th Dist.] 2005, no pet.). The quantity of factors established is not as important as the degree to which they affirmatively link the defendant to the contraband. Wallace v. State, 932 S.W.2d 519, 524 (Tex. App.--Tyler 1995, pet. ref'd). The informant testified Lewis sold him cocaine. When executing the search warrant, the officers instructed the occupants to open the door and it was not until the officers attempted to use force that the occupants opened the door. The officers recovered cocaine and marijuana in plain view from the room in which Lewis was present at the time of the search. A large amount of money and drug paraphernalia were also recovered. The lieutenant testified Lewis acknowledged that the room and the money belonged to him. Several of the bills provided to the informant to purchase cocaine were found on Lewis. Reviewing all the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that Lewis was guilty of the offense charged. Appellant's sole point of error is overruled. AFFIRMED. ____________________________ DAVID GAULTNEY Justice Submitted on July 16, 2009 Delivered August 26, 2009 Do Not Publish Before McKeithen, C.J., Gaultney and Horton, JJ.