in Re Christopher Jones

IN THE TENTH COURT OF APPEALS No. 10-08-00265-CV In re Christopher Jones Original Proceeding MEMORANDUM Opinion Christopher Jones has filed an application with this Court for issuance of a writ of mandamus against the Honorable Joyce Batson, District Clerk of Madison County, and against the “Chief Justice of the 12th Judicial District Court” of Madison County. We presume the latter reference is to the Honorable William L. McAdams, Judge of the 12th District Court of Madison County. The essence of Jones’s complaint is that Batson has refused to “file, process, or service the legal papers” Jones has tendered for filing. This Court has recently dismissed a petition making similar allegations which Jones filed solely against Batson because this Court “has no jurisdiction to issue a writ of mandamus against a district clerk except to protect its jurisdiction.” In re Jones, No. 10-08-00242-CV, 2008 Tex. App. LEXIS 5753, at *1 (Tex. App.—Waco July 30, 2008, orig. proceeding).[1] The primary distinctions between the mandamus petition we dismissed and the petition Jones has filed in this proceeding are: (1) Jones named Judge McAdams as an additional respondent; and (2) Jones includes general allegations that “Respondents” are “blocking Relator from accessing the courts” and have “wholly failed to ensure Relator is afforded his right to access the court.” However, there is nothing in Jones’s petition and supporting documentation to indicate that he has taken the steps necessary to obtain mandamus relief when a trial court clerk has refused to file pleadings. See In re Bernard, 993 S.W.2d 453, 454-55 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding) (O’Connor, J., concurring). Accordingly, we deny the petition. PER CURIAM Before Chief Justice Gray, Justice Vance, and Justice Reyna Petition denied Opinion delivered and filed August 13, 2008 Do not publish [OT06] [1] As with the prior mandamus proceeding, Jones has failed to provide proof of service indicating that he served copies of the petition and accompanying pleadings on the other parties to this proceeding. See Tex. R. App. P. 9.5. We apply Rule 2 and suspend the service requirement to expedite a decision in this matter. Id. 2. he evidence presented by the State showed only two affirmative links: 1) that he was in the vicinity of the contraband; and 2) that the testimony of Paxton, an accomplice witness, indicated that he was knowledgeable about the drugs and its purpose. Medina contends that in light of the possible affirmative links that the State failed to show, his conviction must be reversed. When reviewing a challenge to the legal sufficiency of the evidence to establish the elements of a penal offense, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Our duty is to determine if the finding of the trier of fact is rational by viewing all of the evidence admitted at trial in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992). In doing so, 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). To prove drug possession, the State must show 1) a defendant exercised care, custody, control, or management over the drugs, and 2) that he knew he possessed a controlled substance. Rischer v. State, 85 S.W.3d 839, 843 (Tex. App.—Waco 2002, no pet.). A defendant's knowing possession of narcotics may not be proved merely by his presence at the scene when the drugs were found, unless the defendant had been in exclusive possession of that location. See Hudson v. State, 128 S.W.3d 367, 374 (Tex. App.—Texarkana 2004, no pet.). Affirmative Links When a defendant is not in exclusive possession or control of the place where the drugs are found, the State must affirmatively link the defendant with the drugs. Id. Factors which have been considered affirmative links include: 1) presence when the search was executed; 2) contraband in plain view; 3) proximity to and accessibility of the contraband; 4) the accused being under the influence of contraband when arrested; 5) the accused's possession of other contraband when arrested; 6) the accused's incriminating statements when arrested; 7) attempted flight; 8) furtive gestures; 9) odor of the contraband; 10) presence of other contraband; 11) the accused's right to possession of the place where contraband was found; and 12) drugs found in an enclosed place. Id. The number of factors present is not as important as the "logical force" or the degree to which the factors, alone or in combination, tend affirmatively to link the accused to the contraband. See Bellard v. State, 101 S.W.3d 594, 599 (Tex. App.—Waco, 2003, pet. ref’d). Furthermore, the defendant must be affirmatively linked to the contraband itself rather than the area where it was found. Mendoza v. State, 583 S.W.2d 396, 399 (Tex. Crim. App. 1979). When narcotics are secreted, the State must address whether the defendant knew of the existence of the secret place and its contents. Vargas v. State, 883 S.W.2d 256, 263 (Tex. App.—Corpus Christi 1994, pet. ref’d). Medina contends that the evidence relied on by the State does not establish an affirmative link between him and the under-hood methamphetamine, arguing that the State’s reliance upon the items found in the vehicle fails to establish affirmative links. Those items were: (a) the scale in the backpack with an untested white substance; (b) the GHB liquid (which the jury found Medina not guilty of possessing); (c) a “blowtorch”; (d) methamphetamine in the driver’s purse. Medina claims that, independently, these items show very little in the way of affirmative links. First, the unknown substance on the scales cannot prove a connection to the methamphetamine. Second, the jury acquitted Medina of possessing the GHB. Third, the blowtorch created no direct link between Medina and drug usage or possession. Fourth, the methamphetamine in Paxton’s purse solidified her responsibility, not Medina’s, for the possession. Medina further argues that these “links” only revolve around his presence in the vehicle and that mere presence in the vicinity of drugs will not suffice to establish that a defendant knowingly possessed the controlled substance. Watson v. State, 752 S.W.2d 217 (Tex. App.—San Antonio 1988, pet. ref’d). The State counters that the evidence presented at trial is legally sufficient to convict Medina by pointing to several factors that establish an affirmative link; specifically, that: (1) Medina was present when the search was conducted, (2) there was other contraband and paraphernalia present, and (3) the place where the drugs were located was enclosed and Medina was inside the vehicle. Officer Busby found 48 grams of methamphetamine under Paxton’s hood. Officer Willis, a drug expert, testified that 48 grams of methamphetamine would be a delivery amount, not an amount for personal consumption. The State argues that because of the large amount of methamphetamine combined with Medina’s possession of scales commonly used for measuring methamphetamine, this satisfied the essential element that Medina possessed the drugs with the intent to deliver. We agree with the State. The record indicates that Medina was in possession of the backpack containing the scales and therefore was in possession of paraphernalia, an affirmative link factor, connecting a defendant to contraband. Bellard, 101 S.W.3d at 599. After reviewing this evidence in the light most favorable to the verdict, we find the evidence is legally sufficient to affirmatively link Medina to the methamphetamine. Adelman, 828 S.W.2d at 422. Accomplice Testimony Medina further argues that the evidence to sustain his conviction is legally insufficient because no independent evidence exists to corroborate the testimony given by Paxton. Medina cites the accomplice-witness rule, article 38.14 of the Texas Code Criminal Procedure, which provides: A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). Paxton testified that Medina picked her up from the apartment where she had purchased the methamphetamine and that he was aware of her purpose at the apartment. She also testified that Medina knew that she placed the drugs under the hood, and was in the backseat at the time. Under the accomplice-witness rule, the reviewing court eliminates all of the accomplice testimony from consideration and then examines the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime. Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). The corroborating evidence need not be sufficient by itself to establish guilt beyond a reasonable doubt, nor must it directly link the appellant to the crime. Id. There must simply be some non-accomplice evidence which tends to connect the appellant to the commission of the offense alleged in the indictment. Id. Medina argues that the corroboration evidence is insufficient. We disagree. Without Paxton’s testimony the trier of fact was still left with significant corroborating testimony. First, Officer Busby testified that Medina had possession of the backpack containing GHB and scales used for measuring drugs like methamphetamine in order to sell them. Second, Medina was in an enclosed place and in close proximity to the methamphetamine. Third, Medina was present when the search was conducted. Last, Officer Willis testified that the amount of methamphetamine recovered was intended for delivery purposes and would therefore require a scale, which was found in Medina’s possession. This non-accomplice evidence tends to connect Medina with the offense of possession of methamphetamine and therefore provides sufficient corroboration for the accomplice-witness testimony of Paxton. See Tex. Code Crim. Proc. Ann. art. 38.14; McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997). Conclusion Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found beyond a reasonable doubt that Medina possessed and intended to distribute methamphetamine. Accordingly, we overrule Medina’s sole issue and affirm the trial court's judgment. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed November 14, 2007 [CRPM]