John Hardy Powell v. State

NUMBER 13-03-264-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG JOHN HARDY POWELL, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 347th District Court of Nueces County, Texas. M E M O R A N D U M O P I N I O N Before Chief Justice Valdez and Justices Rodriguez and Garza Opinion by Chief Justice Valdez A jury found appellant, John Hardy Powell, guilty of three counts of possession of a controlled substance. Appellant was sentenced to seven years imprisonment in the Institutional Division of the Texas Department of Criminal Justice for each count and assessed fines totaling $20,000. The trial court suspended appellant’s sentence and placed him on community supervision for five years. In a single issue, appellant contends the State failed to present sufficient evidence affirmatively linking him to the drugs. We affirm. I. FACTS Officer David Maldonado, Jr. stopped appellant’s vehicle after observing him commit a traffic violation. Maldonado testified that appellant’s vehicle had been under surveillance by the narcotics division of the Nueces County Sheriff’s Department for some time. Appellant and his passengers, Ruby Rios and her child, immediately exited the vehicle. Shortly after the stop, Lieutenant Johnny Oelschlegel arrived. Oelschlegel testified that appellant appeared nervous and would not look him in the eyes. Appellant gave Oelschlegel consent to search his vehicle. Oelschlegel found some syringes in the center console of the vehicle and a black box behind the driver’s seat that contained a Lone Star Card, drug paraphernalia, and what appeared to be various drugs. Later testing revealed that the suspicious substances in the black box were methadone, cocaine, and heroin. Officer Richard Ramirez searched the vehicle again at the Sheriff’s Department and found a small packet containing cocaine in the center console. Appellant testified that the syringes found in the center console were for vitamin injections. He denied ownership and knowledge of the black box and its contents, claiming that it was left in his car by Cruz, an acquaintance, to whom he had given a ride earlier that day. Vitamin injections were not found in the vehicle. The syringes were not sent to a lab for testing, and the owner of the Lone Star Card was not located. II. LEGAL SUFFICIENCY By his sole issue on appeal, appellant contends the evidence was insufficient to prove appellant guilty of possession of a controlled substance. Specifically, appellant asserts the State’s evidence was insufficient to establish an affirmative link between him and the contraband. Appellant does not specify whether he is challenging the legal or factual sufficiency of the evidence and does not discuss the applicable standards of review. However, in his prayer for relief, he requests an acquittal, which is consistent with a legal sufficiency challenge. See Chavero v. State, 36 S.W.3d 688, 693 (Tex. App.–Corpus Christi 2001, no pet.). Accordingly, we construe his sole issue as a challenge to the legal sufficiency of the evidence and do not review the record for factual sufficiency. See Cardenas v. State, 30 S.W.3d 384, 386 n.2 (Tex. Crim. App. 2000) (conducting only legal sufficiency review where defendant requested acquittal and did not adequately brief factual sufficiency). A. Standard of Review In evaluating the legal sufficiency of the evidence, we must review all the evidence in the light most favorable to the verdict in order to 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 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). The trier of fact, as the sole judge of the credibility of the witnesses and the weight to be given their testimony, is free to accept or reject all or any part of their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). As such, we must not judge the credibility of the witnesses, or sit as a thirteenth juror. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). Any inconsistencies in the testimony should be resolved in favor of the verdict. Id. We measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). This hypothetically correct jury charge is one that sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried. Id.; see also Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000) (“We believe the ‘law’ as ‘authorized by the indictment’ must be the statutory elements of the offense . . . as modified by the charging instrument.”). B. Applicable Law Under section 481.115 of the health and safety code, a person commits the offense of possession of a controlled substance “if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 1, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.” Tex. Health & Safety Code Ann. § 481.115(a) (Vernon 2003). Penalty Group 1 includes, among other substances, methadone, heroin, and cocaine. Id. § 481.102 (Vernon 2003). Thus, the State had to prove that appellant intentionally or knowingly possessed methadone, heroin, and cocaine. To establish the unlawful possession of a controlled substance, the State must prove that the accused: (1) exercised care, control, and management over the contraband; and (2) knew the matter possessed was contraband. Herndon v. State, 787 S.W.2d 408, 409-10 (Tex. Crim. App. 1990); Rodriguez v. State, 888 S.W.2d 211, 214-15 (Tex. App.–Corpus Christi 1994, no pet.). When an accused is not in exclusive possession of the place where the contraband is found, we cannot conclude that the accused exercised control or had the requisite knowledge unless there are additional independent facts and circumstances that affirmatively link the accused to the contraband. Herndon, 787 S.W.2d at 409-10. The evidence may be direct or circumstantial but “must establish, to the requisite level of confidence, that the accused’s connection with the drug was more than just fortuitous.” Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). Over the years, courts have developed a nonexclusive list of factors to determine whether the evidence is sufficient to affirmatively link the accused with the controlled substance. Lassaint v. State, 79 S.W.3d 736, 740 (Tex. App.–Corpus Christi 2002, no pet.). Factors relevant to this case include: (1) whether the accused was the owner or driver of the automobile in which the contraband was found; (2) whether the contraband was conveniently available to the accused or found on the same side of the vehicle as the accused was sitting; (3) whether the contraband was found in close proximity to the accused; (4) whether the paraphernalia to use the contraband was in view of or found on the accused; and (5) whether the conduct of the accused indicated a consciousness of guilt. Id. at 740-41; see Reid v. State, 749 S.W.2d 903, 905 (Tex. App.–Dallas 1988, pet. ref’d) (no set formula for sufficiency of affirmative links exists; determination depends on facts of each case). C. Analysis The State introduced evidence that appellant was both the owner and driver of the vehicle where the contraband was found. Appellant testified that the vehicle was his and that he used it in connection with his telecommunications business. The contraband was conveniently accessible to appellant. Oelschlegel testified that the black box was behind the driver’s seat, placing appellant in close proximity to the box containing the drugs. Other drug paraphernalia, including a scale, pills, a spoon, and “cut” (a substance used to dilute drugs) were found in the black box. The cocaine was found in the center console, which was located in between the front seats and in close proximity to where appellant had been seated. Syringes were also found in the center console. Appellant admitted the syringes were his. Oelschlegel testified that appellant appeared nervous and would not look him in the eye, indicating a consciousness of guilt. While appellant argues that the police should have checked the contents of the black box for appellant’s fingerprints and located the owner of the Lone Star Card, Ramirez testified at trial that he felt fingerprinting and locating the owner of the Lone Star Card were not necessarily important in this case. The jury, being the sole judge of the credibility of the witnesses and the weight to be given their testimony, was free to accept or reject all or any part of Ramirez’s testimony. Sharp, 707 S.W.2d at 614. Viewing the evidence in the light most favorable to the verdict, we conclude the State provided legally sufficient evidence affirmatively linking appellant to the drugs found in his car. We overrule appellant’s sole issue. III. CONCLUSION Accordingly, we affirm the judgment of the trial court. Rogelio Valdez, Chief Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this 30th day of September, 2004.