Sheon Donovan Washington v. State

Affirmed and Memorandum Opinion filed February 7, 2006 Affirmed and Memorandum Opinion filed February 7, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00191-CR ____________ SHEON DONOVAN WASHINGTON, Appellant V. THE STATE OF TEXAS, Appellee ________________________________________________________ On Appeal from the 338th District Court Harris County, Texas Trial Court Cause No. 981,614 ________________________________________________________ M E M O R A N D U M   O P I N I O N Challenging his conviction of possession of a controlled substance weighing more than one gram and less than four grams, appellant Sheon Donovan Washington asserts in two issues that the evidence is legally and factually insufficient to support his conviction. We affirm. I. Factual and Procedural Background On March 22, 2004, at approximately 11:00 a.m., Officer Craig Green noticed a gold Chevrolet Cavalier that fit the description of the vehicle that was involved in a hit-and-run accident earlier that morning. The Cavalier also had an expired registration sticker. Officer Green activated his vehicle=s emergency lights and signaled for the car to pull over. The driver, later identified as appellant, continued to drive on for several blocks before finally pulling into a parking space at the Primary Heath Group Medical Center. Officer Green pulled his vehicle behind the Cavalier, but before he could exit and approach appellant, the car parked next to appellant attempted to leave and caused Officer Green to re-enter his car so that he could move it to the side. When Officer Green was moving his car, appellant got out of his vehicle. Meanwhile, Crystal Sherman had been watching the activity from her window inside the medical building. Caught up in the drama, she watched as appellant threw a plastic Abaggie@ from his car window before exiting his vehicle. The plastic bag landed in the grassy area in front of his vehicle. When Ms. Sherman told a co-worker what she had seen, that co-worker reported the information to the police. Officer John Almedarez then arrived on the scene while Officer Green questioned appellant. Officer Almedarez walked around appellant=s car and found two rolled up plastic bags near the front of the Cavalier. One of the bags held a cigar rolled with marijuana; the other held two rocks of cocaine. Appellant was then taken into custody and charged with possession of a controlled substanceCcocaineCweighing more than one gram and less than four grams. Appellant pleaded Anot guilty.@ A jury found him guilty as charged. Appellant and the State agreed to a sentence of confinement of twenty-seven years, which the trial court approved. II. Legal and Factual Sufficiency In two issues, appellant asserts that the evidence is legally and factually insufficient to support his conviction. More specifically, appellant alleges that there is no evidence to prove that he exercised care, custody, or control over the narcotics that were found near his vehicle. In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellant=s evidence outweighs the State=s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses= testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). A reviewing court may find the evidence factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a- reasonable-doubt standard could not have been met. Id. at 484B85. In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 481B82. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). In conducting a factual-sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). To establish unlawful possession of a controlled substance, the State must prove two elements: (1) that the accused exercised care, custody, control or management over the contraband, and (2) that the accused knew the matter possessed was contraband. Sinor v. State, 612 S.W.2d 591 (Tex. Crim. App. 1981); Dubry v. State, 582 S.W.2d 841 (Tex. Crim. App. 1979). Appellant contends that a rational jury could not have found beyond a reasonable doubt that he exercised care, custody, control, or management over the cocaine found in the grassy area in front of his car because the State=s circumstantial evidence failed to Aaffirmatively link@ him to the contraband. Appellant=s sufficiency complaint pertains only to the element concerning possession of the controlled substance, and we limit our appellate review to that element. When a defendant is not in exclusive possession of the place where the contraband is found, the State must prove additional independent facts and circumstances that affirmatively link the defendant to the contraband in such a way that it can be concluded that the defendant had knowledge of the contraband and exercised control over it. Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d). An affirmative link generates a reasonable inference that the defendant knew of the contraband=s existence and exercised control over it. Johnson v. State, 658 S.W.2d 623, 627 (Tex. Crim. App. 1983); Roberson, 80 S.W.3d at 735. Courts have identified a non‑exhaustive list of factors that may help to show an affirmative link to controlled substances. Roberson, 80 S.W.3d at 735. Each case is examined on its own facts, and a factor that contributes to the sufficiency of the evidence in one case may be of little or no value in a different case. Id. at 736. It is not the number of affirmative links present that is important, but rather the Alogical force@ that they create to prove that the defendant committed the crime. Id. at 735. Therefore, we examine any factors that possibly link appellant to the cocaine. See id. Several of the circumstances that have been held to indicate an affirmative link include: (1) presence when the search was executed; (2) contraband in plain view; (3) proximity to and accessibility of the contraband; (4) the accused is under the influence of contraband when arrested; (5) the accused is in possession of other contraband when arrested; (6) the accused makes incriminating statements when arrested; (7) attempted flight by the accused; (8) furtive gestures; (9) odor of the contraband; (10) presence of other contraband; (11) the accused has a right to possession of the place where contraband was found; and (12) contraband found in an enclosed place. State v. Derrow, 981 S.W.2d 776, 779 (Tex. App.CHouston [1st Dist.] 1998, pet. ref=d). This evidence may be direct or circumstantial. See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). The link between the defendant and the contraband need not be so strong that it excludes every other outstanding reasonable hypothesis except the defendant=s guilt. Id. at 748. The State contends that the cocaine found near appellant=s car, combined with appellant’s furtive gestures and the eyewitness testimony, affirmatively link appellant to the plastic bags containing contraband found in the grassy area in the front of his vehicle. One of the most significant links is the accessibility and proximity of the contraband to appellant. See Earvin v. State, 632 S.W.2d 920, 924 (Tex. App.CDallas 1982, pet. ref=d). There is no dispute that the narcotics were found in a close proximity to appellant. Appellant contends that because there were two plastic bags, one containing marijuana and the other containing cocaine, there is nothing to establish which substance was linked to appellant. We disagree with this argument. Despite appellant=s contentions, Ms. Sherman was confident in her testimony that she observed appellant discarding an object that looked like a plastic bag from his car window and two bags were found in front of appellant=s car by an officer. Even though, on cross-examination, Ms. Sherman stated that she could not specifically see what was in the bag and that she saw what appeared to be only one bag, the jury, as the factfinder, could have determined that she was mistaken or that both bags were stuck together when they concluded that appellant, in fact, had thrown the cocaine out of the car window. The jury, being the sole judge of the facts and credibility of the witnesses, could choose to believe or not believe Ms. Sherman, or any portion of her testimony. Esquivel v. State, 506 S.W.2d 613, 615 (Tex. Crim. App. 1974). Further, a witness may be believed even though some of her testimony may be contradicted and part of her testimony accepted and the rest rejected. See Jackson v. State, 505 S.W.2d 916, 918 (Tex. Crim. App. 1974). We may not substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Ms. Sherman=s testimony is a direct eyewitness account of the appellant=s link to the contraband, and it was well within the province of the fact finder to believe her testimony. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (stating that jury is sole judge of the weight and credibility of testimony); see also Terrell v. State, 949 S.W.2d 49, 50 (Tex. App.CTexarkana 1997, no pet.) (finding affirmative link when security guard witnessed the defendant dispose of cocaine); Blackmon v. State, 830 S.W.2d 711, 714 (Tex. App.CHouston [1st Dist.] 1992, pet. ref=d) (finding affirmative link when officer saw defendant throw a matchbox containing cocaine into the grass); Edwards v. State, 807 S.W.2d 338, 339 (Tex. App.CHouston [14th Dist.] 1991, pet. ref=d) (stating that eyewitness testimony of officer viewing appellant discard the drugs was sufficient to support the conviction of possession of a controlled substance); Dempsey v. State, 667 S.W.2d 801, 803 (Tex. App.CBeaumont 1983, pet. ref=d) (stating that the state may establish the affirmative link by eyewitness testimony tying the accused to the location where the contraband was found when the contraband was present). The testimony at trial showed that appellant possessed more than one gram and less than four grams of cocaine. We conclude that the Alogical force@ from the totality of the links is sufficient for a rational jury to have affirmatively linked appellant to the contraband and found that appellant exercised care, custody, control, or management over the contraband. See Blackmon, 830 S.W.2d at 714. Moreover, a rational jury could have found the element of possession beyond a reasonable doubt. See id. Under the applicable standards of review, we conclude that the evidence is both legally and factually sufficient to support appellant=s conviction. We overrule appellant=s two issues. Having overruled appellant=s issues, we affirm the trial court=s judgment. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed February 7, 2006. Panel consists of Justices Hudson, Frost, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b).