Thomas Jr., Chester v. State

Opinion of February 19, 2004, Withdrawn, Affirmed and Corrected Memorandum Opinion filed February 24, 2004 Opinion of February 19, 2004, Withdrawn, Affirmed and Corrected Memorandum Opinion filed February 24, 2004. In The Fourteenth Court of Appeals _______________ NO. 14-03-00209-CR _______________ CHESTER THOMAS, JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 178th District Court Harris County, Texas Trial Court Cause No. 920,016 M E M O R A N D U M   O P I N I O N In two issues, appellant, Chester Thomas, Jr., contends the evidence is legally and factually insufficient to support his conviction for possession of a controlled substance. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4. Background On the evening of August 4, 2002, Marcus Romero, a Houston police officer, and Tory Anderson, an officer in training, stopped appellant=s vehicle because he was driving with one headlight out. Using the computer in their patrol car, they discovered appellant had outstanding warrants for traffic citations. While waiting for verification of the warrants, Officer Romero instructed appellant to exit his vehicle, and Officer Romero performed a Apat down@ search. He then placed appellant in the backseat of the patrol car. After the warrants were verified, appellant was arrested, handcuffed, and transported to the police station. At the station, appellant was removed from the patrol car, and Officer Romero escorted him into the station. Meanwhile, Officer Anderson searched the back of the patrol car and found a small, plastic bag containing a white powder, later determined to be cocaine, on the floor. A jury found appellant guilty of intentionally and knowingly possessing less than one gram of cocaine. Appellant elected to have the trial court assess punishment. He pled true to two enhancement paragraphs concerning prior convictions for possession and delivery of a controlled substance. The trial court sentenced him to two years= confinement in the Texas Department of Criminal Justice, Institutional Division. Analysis A person commits an offense if the person knowingly or intentionally possesses cocaine. See Tex. Health & Safety Code Ann. ' 481.102 (Vernon Supp. 2004); Tex. Health & Safety Code Ann. ' 481.115 (Vernon 2003). To establish the unlawful possession of a controlled substance, the State must prove that the accused (1) exercised actual care, control, or custody over the substance; and (2) was conscious of his connection with it and knew what it was. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). Evidence which affirmatively links the accused to the contraband suffices for proof that he possessed it knowingly. Id. This evidence can be either direct or circumstantial. Id. In either case, the evidence must establish that the accused=s connection with the drugs was more than just fortuitous. Id. However, the evidence need not be so strong that it excludes every other outstanding reasonable hypothesis except the defendant=s guilt. Id. at 748. Affirmative links may include (1) appellant=s presence when the contraband was discovered; (2) whether the contraband was in plain view; ( 3) appellant=s proximity to and accessibility of the narcotic; (4) whether appellant was under the influence of narcotics when arrested; (5) whether appellant possessed other contraband when arrested; (6) whether appellant made incriminating statements when arrested; (7) whether appellant attempted to flee; (8) whether appellant made furtive gestures; (9) whether there was an odor from the contraband; (10) whether other contraband or drug paraphernalia was present; (11) whether the place where the drugs were found was enclosed; and (12) whether appellant owned or had the right to possess the place where the drugs were found. Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). However, there is no set formula of facts necessary to support an inference of knowing possession. Id. Rather, affirmative links are established by a totality of the circumstances. Id. The number of affirmative links is not as important as the logical force they have in establishing the offense. See Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d). Legal Sufficiency In his first issue, appellant contends the evidence is legally insufficient to prove he knowingly possessed a controlled substance because the State failed to affirmatively link him to the cocaine found in the patrol car. In a legal sufficiency challenge, we review the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). We consider all evidence presented at trial; however, we do not re‑weigh the evidence or substitute our judgment for that of the fact finder. Id. Here, the testimony of Officers Romero and Anderson affirmatively links appellant to the cocaine. Officer Romero explained that before going on duty, officers are required to perform a Aroll call@ on their patrol car. In particular, they check the oil, check for any damage, and search the back of the car to make sure there is no contraband. Officer Romero testified that before going on duty the evening of appellant=s arrest, he checked the oil, and Officer Anderson checked the back of their patrol car. In contrast, Officer Anderson testified that both he and Officer Romero checked the back of the car during the Aroll call,@ and neither officer checked the oil. Nevertheless, Officer Anderson explained that he pulled out the detachable backseat and found no contraband or weapons.[1] He testified the lighting was Avery good@ in the garage where the Aroll call@ was performed, and he also used a flashlight.[2] The officers further testified that appellant was their first arrest after going on duty that evening and the first person placed in the patrol car after the Aroll call.@ Officer Anderson testified that after they arrived at the station and removed appellant from the car, he immediately checked the backseat for contraband as is customary. He found the bag on the floorboard of the middle of the backseat where appellant had been sitting. Because the officers found no contraband in the back of the patrol car during the Aroll call,@ appellant was the only occupant of the backseat after the Aroll call,@ and the cocaine was found in the area where he had been sitting, the totality of the circumstances affirmatively links him to the cocaine. See Williams v. State, 784 S.W.2d 428, 429_30 (Tex. Crim. App. 1990) (finding sufficient evidence defendant possessed cocaine found in back of patrol car after his arrest considering officers checked the back of the car before their shift, defendant was the first occupant of the backseat during the shift, and he was fidgeting and reaching while being transported to the police station). Therefore, the jury could have found beyond a reasonable doubt that appellant knowingly possessed the cocaine. Accordingly, the evidence is legally sufficient to support the verdict. Appellant=s first issue is overruled. Factual Sufficiency In his second issue, appellant challenges factual sufficiency of the evidence supporting the verdict. When conducting a factual sufficiency review, the evidence is not viewed in the light most favorable to the verdict, and the verdict is set aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 6_7 (Tex. Crim. App. 2000). We determine whether a neutral review of all the evidence establishes that (1) the proof of guilt is so obviously weak as to undermine confidence in the fact finder=s verdict; or (2) the proof of guilt, even if sufficient standing alone, is greatly outweighed by contrary proof. Id. at 11. Although we review the fact finder=s weighing of the evidence, and we are authorized to disagree with the fact finder=s determination, our evaluation should not substantially intrude upon the fact finder=s role as the sole judge of the weight and credibility given to witness testimony. Id. at 7. Appellant contends several facts support his factual sufficiency challenge. First, he asserts that he was thoroughly searched before being placed in the patrol car. However, Officer Romero testified he did not perform a complete search because they were stopped in a dangerous traffic location. Instead, he did a Apat check@ of appellant=s pockets for keys, which could be used as a weapon. Officer Romero also did a Acheck down@ of appellant=s ankles and grabbed his groin area. Officer Romero explained he was looking for weapons, not Asmall, minuscule articles@ during this search. Therefore, a jury could reasonably conclude that appellant possessed the cocaine when he was placed in the patrol car although nothing was discovered during the Apat down@ search. See Williams, 784 S.W.2d at 429B30 (noting defendant was patted down before being placed in patrol car, yet finding sufficient evidence he possessed cocaine subsequently found there). Further, appellant asserts he was cooperative with the officers and was not moving or fidgeting after being placed in the patrol car. Officer Romero testified that appellant was in the backseat approximately fifteen to twenty seconds before he was handcuffed. During this time, Officer Romero stood outside by the door and did not see any movement on appellant=s part.[3] However, while movement or fidgeting may support a finding of possession, see id., the lack of movement or fidgeting does not negate a finding of possession. The jury could reasonably conclude that it would not take much detectable movement for appellant to slip a small bag of cocaine off his person and onto the floor of the patrol car. See Logan v. State, 1993 WL 196834, at *2_3 (Tex. App.CHouston [14th Dist.] June 10, 1993, no pet.) (not designated for publication) (finding sufficient evidence defendant possessed cocaine found in back of patrol car although he made no incriminating gestures; because he was not handcuffed, he could have rid himself of the cocaine without noticeable movement). Finally, appellant contends that the officers= Ainconclusive@ testimony regarding the Aroll call@ supports his factual sufficiency challenge. However, we have already negated this argument. Therefore, the finding that appellant knowingly possessed the cocaine is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. The evidence is factually sufficient to support the verdict. Appellant=s second issue is overruled. Accordingly, the judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Memorandum Opinion filed February 24, 2004. Panel consists of Justices Fowler, Edelman, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Appellant maintains that the officers= testimony regarding who checked the backseat of the car is contradictory and suspect. However, contradictions between witnesses= testimony do not render the evidence insufficient. Weisinger v. State, 775 S.W.2d 424, 429 (Tex. App.CHouston [14th Dist.] 1989, pet. ref=d). Rather, they go to the weight and credibility to be given such testimony by the fact finder. Id. Reconciliation of the conflicts is within the exclusive province of the jury. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). Further, any conflict here concerns Officer Romero=s activities in connection with the Aroll call.@ The testimony establishes that at least Officer Anderson checked the back of the car before the officers went on duty and found no contraband. [2] Appellant also maintains Officer Anderson did not remember checking this specific car. He cites Officer Anderson=s Ano@ answer to the following question on cross-examination: AAnd you described to the jury pulling the seat out. Do you remember specifically this particular patrol vehicle?@ However, it appears Officer Anderson meant he did not remember the particular car, as opposed to the search that evening, because this question was followed with questions regarding the particular car, including its age and previous use. In the rest of his testimony, Officer Anderson specifically recalled the search that evening, and the jury was allowed to reconcile his answer to this question with the rest of his testimony. See Heiselbetz, 906 S.W.2d at 504. [3] The record is silent regarding any movement by appellant after he was handcuffed and while he was transported to the station.