Henry Clay Avington, Jr. v. State

Affirmed and Memorandum Opinion filed November 25, 2008 Affirmed and Memorandum Opinion filed November 25, 2008. In The Fourteenth Court of Appeals _______________ NO. 14-08-00122-CR _______________ HENRY CLAY AVINGTON, JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 149th District Court Brazoria County, Texas Trial Court Cause No. 52,121 M E M O R A N D U M   O P I N I O N Appellant, Henry Clay Avington, Jr., challenges his conviction by a jury for possession of less than one gram of a controlled substance in a drug-free zone. The trial court assessed punishment at confinement for 25 years after appellant pleaded true to two enhancement paragraphs. Appellant contends that the evidence was legally insufficient to prove that he (1) possessed a controlled substance; and (2) was affirmatively linked to a controlled substance. We affirm. Background On the evening of April 17, 2006, Officer Joseph King of the Clute Police Department was patrolling in an unmarked patrol unit when a gray Nissan Altima nearly struck his vehicle as the Altima was backing out of a driveway. After nearly striking Officer King=s car, the Altima pulled back into the driveway. Officer King continued driving, momentarily losing sight of the Altima, then stopped and parked approximately one-quarter mile from the driveway. After waiting in the driveway for approximately 10 minutes, the Altima re-entered the roadway and drove past Officer King=s car. Officer King followed the Altima. The Altima=s driver did not signal when making a left turn at an intersection. Officer King stopped the Altima near the intersection of McKee Street and Lois for the traffic violations of backing unsafely out of a driveway and failure to signal a turn at an intersection. The location where Officer King stopped the Altima was 462 feet from Clute Intermediate School. Officer King approached the Altima and began speaking with appellant, who was the driver. Officer King noticed that a female was sitting in the car=s passenger seat. Neither appellant nor his passenger owned the Altima. Officer King asked appellant to step out of the car. Once appellant stepped out of the car, Officer King observed Aseveral small white rock-like substances believed to be crack cocaine@ on the driver=s seat cushion. Officer King then escorted appellant to the rear of the car and had another officer remove the passenger. After checking appellant for weapons, Officer King asked for and received appellant=s consent to search the car. Officer King examined the substance in the driver=s seat more closely and arrested appellant for possession of cocaine. Officer King then began to inventory the vehicle pursuant to standard Clute Police Department procedure. During this inventory, Officer King discovered that the driver=s door panel was not completely secured. Officer King pulled the door cover back; inside the door panel, he found a crack pipe, a towel, and a clear plastic bag containing a white powder he suspected to be cocaine. Officer King collected the plastic bag as evidence and took it to the Brazoria County Crime Lab for testing. Tests revealed that the white powder was cocaine. At trial, Officer King described appellant as very nervous, talkative, and apologetic when he was stopped. He stated that this behavior was unusual for one who had been pulled-over for a traffic violation. Officer King also testified that he recognized appellant when he drove past King=s parked patrol car, and that he knew appellant did not have a valid driver=s license. Officer King stated that this knowledge and the two traffic violations committed in his presence gave him reasonable suspicion to stop appellant. Officer King=s unmarked patrol unit was not equipped with video recording equipment, and he had no audio or video recording equipment with him during this stop. Moreover, Officer King did not take photographs of any evidence. Two other officers were at the scene and dealt with the passenger. Officer King stated that he could see the rock-like substances clearly when appellant exited the vehicle in the light provided by nearby streetlights, his flashlight, and the Altima=s interior light even though the stop occurred after midnight. Officer King testified that, based on years of training and experience, his close inspection of the substance found in the driver=s seat gave him reasonable suspicion the substance was crack cocaine. Finally, Officer King testified that he and another officer destroyed the crack pipe found in the door panel of the car pursuant to their exercise of discretionary authority prescribed by the Clute Police Department. Appellant=s passenger testified that she was with appellant during the April 17, 2006 traffic stop and was arrested for possession of a crack pipe. She also testified that the drugs in the car were not hers, and that she did not place any drugs on appellant=s seat or in the driver=s door panel. She admitted to prior convictions for misdemeanor theft, and that the State instructed her to be truthful in her testimony. She admitted to having failed to complete probation in the past. Appellant=s passenger testified that the area where the stop occurred was dark, and that she did not remember nearly backing into Officer King=s patrol unit. The owner of the Altima testified that she and appellant lived together for nearly two years, and that appellant often borrowed the car. She testified that she did not use cocaine or keep it in her car, and that appellant was Apretty much@ the only person she allowed to borrow her car. She also testified that the console and driver=s door panels were loose when she took possession of her car from the police, and that she did not recall them being loose beforehand. The director of the Brazoria County Crime Lab testified about the tests performed on the substance he received from Officer King. The director opined that the substance was cocaine, but he did not determine whether it was crack cocaine or powder cocaine. The director testified that the substance he tested was contained in a clear plastic bag, and that it was the only substance he received for testing. The substance tested by the crime lab _ consisting only of the white powder found in the door panel _ was admitted into evidence without objection. Appellant offered no witnesses or exhibits in his defense. No testimony was given regarding why the small rock-like substances found in the driver=s seat were not logged into evidence by police or given to the crime lab for testing. The record indicates that Officer King was prepared to testify that he tested these rocks at the scene using field tests and determined them to be cocaine. The record also indicates that the State chose not to elicit any testimony about this field testing _ including whether such testing left useable quantities of these rocks for testing by the crime lab _ because of a motion in limine filed by appellant regarding testimony about field testing. The jury found appellant guilty of possession of a controlled substance in a drug-free zone. Appellant pleaded true to two enhancement paragraphs during his sentencing by the trial court. The trial court sentenced appellant to confinement for 25 years. Analysis Appellant challenges legal sufficiency of the evidence to prove that he (1) possessed a controlled substance; and (2) was affirmatively linked to a controlled substance. Appellant does not challenge the jury=s findings regarding other elements of the offense charged. I. Legal Sufficiency of Evidence Proving That Appellant Possessed a Controlled Substance In reviewing legal sufficiency of the evidence, an appellate court will examine the evidence in the light most favorable to the State to determine whether any rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). When reviewing legal sufficiency of the evidence, the court does not sit as a thirteenth juror and may not re-evaluate the weight and credibility of the record evidence or substitute its judgment for that of the fact finder. Dewberry, 4 S.W.3d at 740. Reconciliation of conflicts in the evidence is within the fact finder=s exclusive province. See Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). The appellate court=s duty is not to reweigh the evidence, but to serve as a final due process safeguard ensuring only the rationality of the fact finder. See Williams v. State, 937 S.W.2d 479, 483 (Tex. Crim. App. 1996). An appellate court faced with a record of facts that supports conflicting inferences must presume _ even if not obvious from the record _ that the finder of fact resolved any such conflicts in favor of the State, and must defer to that resolution. Jackson, 443 U.S. at 326. A conviction for possession of a controlled substance may be based on the testing of a representative amount of a homogenous substance found in a container in the possession of a defendant. See Melton v. State, 120 S.W.3d 339, 342-44 (Tex. Crim. App. 2003). Expert testimony by a police officer, based upon visual observation and his training and experience, that a substance is a controlled substance constitutes proper evidence. See id. at 343. A jury may conclude based upon its own inspection of a substance in evidence that the substance is homogenous. See id. In Melton, the defendant was convicted of possession of between four and 200 grams of cocaine. Id. at 341. A bag containing 35-40 rocks of suspected crack cocaine was found on the defendant=s person. Id. at 340. The State=s chemist tested an unspecified number of the rocks, but did not test every single rock. Id. at 340-41. Each rock tested contained crack cocaine; the net weight of the rocks was 5.77 grams. Id. The defendant argued that he could not be found guilty for possessing more than four grams of cocaine because each rock was not tested to determine whether it contained cocaine. Id. at 341. The arresting officer testified that the rocks were crack cocaine, and the jury was allowed to inspect the rocks that were admitted into evidence. Id. at 343. The evidence was held legally sufficient to prove possession of between four and 200 grams of cocaine, and the trial court=s judgment was affirmed. Id. at 344. The facts here parallel those found in Melton. As in Melton, the arresting officer in this case testified that he recognized the substance found in the car seat and the door panel as cocaine. The bag containing the powder substance tested by the crime lab in this case, as in Melton, was submitted to the jury for its inspection. The substances in appellant=s seat and in the driver=s door were not found in one bag together, but they were in close proximity to one another and to appellant. Furthermore, appellant was charged with possession of less than one gram of a controlled substance listed in Penalty Group 1, which is the least serious offense for which he could be charged under the applicable statute regardless of whether the charges were based on the weight of one or both substances found. See Tex. Health & Safety Code Ann. _ 481.115(a), (b) (Vernon 2003). A rational jury, viewing this evidence in the light most favorable to the State, could have found beyond a reasonable doubt that appellant exercised actual care, control, and management over the substance found in his seat and in the door panel of the car he was driving, and that he knew the substance in his possession was contraband. We overrule appellant=s issue regarding legal sufficiency of the evidence to prove that he possessed a controlled substance.[1] II. Legal Sufficiency of Evidence Proving That Appellant Was Affirmatively Linked to a Controlled Substance Here, we apply here the same standard for legal sufficiency described in Part I. To establish possession of a controlled substance, the State must prove that the defendant exercised actual care, control, and management over the contraband, and that he knew the substance in his possession was contraband. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). If the defendant does not have exclusive possession of the contraband, independent facts and circumstances must link the defendant to the contraband. Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). Texas courts have recognized a non-exclusive list of affirmative links that may be used to determine whether a defendant possessed contraband. Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006) (citing Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.BHouston [14th Dist.] 2005, no pet.)). The number of linking factors present is not as important as the Alogical force@ they create to prove the crime was committed. Evans, 202 S.W.3d at 162; Olivarez, 171 S.W.3d at 291. Evans and Olivarez listed the following affirmative links which courts have recognized, either singly or in combination, as sufficient to establish possession of contraband: (1) defendant=s presence when a search is conducted; (2) whether contraband was in plain view; (3) defendant=s proximity to and accessibility of contraband; (4) whether defendant was under the influence of contraband when arrested; (5) whether defendant possessed other contraband when arrested; (6) whether defendant made incriminating statements when arrested; (7) whether defendant attempted to flee; (8) whether defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether defendant owned or had right to possess the place where contraband was found; (12) whether the place where contraband was found was enclosed; (13) whether defendant was found with a large amount of cash; and (14) whether defendant=s conduct indicated a consciousness of guilt. Evans, 202 S.W.3d at 162 n.12; Olivarez, 171 S.W.3d at 291. Numerous courts have concluded that facts similar to those present here suffice to affirmatively link the defendant to and prove possession of contraband. See, e.g., Valencia v. State, 51 S.W.3d 418 (Tex. App.BHouston [1st Dist.] 2001, pet. ref=d); Grant v. State, 989 S.W.2d 428 (Tex. App.BHouston [14th Dist.] 1999, no pet.); Davis v. State, 923 S.W.2d 781 (Tex. App.BBeaumont 1996, pet. granted), rev=d on other grounds, 947 S.W.2d 240 (Tex. Crim. App. 1997) (en banc). In Valencia, the defendant met another individual in a parking lot, each in their respective cars, while the two were being observed by a DEA agent who noticed them exhibiting suspicious driving behavior. Valencia, 51 S.W.3d at 419-21. The person the defendant met with opened the hatchback of the defendant=s car and removed a black bag from the car. Id. at 421. Fifteen minutes later, this individual was stopped by the DEA; the black bag was no longer in the car, but a female passenger who had not been in the car previously was present. Id. The black bag later was found in an apartment leased by the female passenger; it contained more than eight kilograms of cocaine. Id. No fingerprints were found on the bag, and scales and other packaging tools were found in the apartment. Id. The defendant in Valencia was arrested later at a grocery store. Id. Just one day earlier, the defendant had picked up a black bag and a large sum of money from the individual he met while under observation. Id. at 421, 423. The defendant provided incomplete information as to his whereabouts and produced a false driver=s license when he encountered police, which could be construed as indicative of guilt. Id. The evidence in the case was legally and factually sufficient to support the jury=s finding that the defendant was affirmatively linked to the cocaine. Id. at 423. The circumstances here parallel those in Valencia. The cocaine in Valencia was found in a bag recently removed from the defendant=s car. See id. In this case, the cocaine was found in the seat and driver=s door panel of a car being driven by appellant. The cocaine was immediately accessible both here and in Valencia. See id. In Valencia, the large quantity of cocaine made it unlikely that its presence was accidental; the location of the cocaine in this case _ inside the driver=s door panel with a crack pipe _ makes it unlikely that the cocaine was placed there accidentally. See id. Both appellant and the defendant in Valencia exhibited suspicious driving behavior. See id. at 420-21. Also, appellant=s nervous and apologetic reaction upon being stopped by Officer King may be viewed as indicative of guilt, similar to the incomplete information and false driver=s license produced in Valencia. See id. at 421, 423. Here, the evidence is sufficient to affirmatively link appellant to the cocaine seized by police. See id. at 419-23; see also Grant, 989 S.W.2d at 431, 434 (plastic bag containing marijuana seen sticking out from under driver=s seat of car defendant did not own but had been driving for the past couple of days legally sufficient to affirmatively link defendant to marijuana found); Davis, 923 S.W.2d at 786-87 (marijuana found in trunk of car not owned by defendant but that he and passenger had driven to New York and back legally sufficient to affirmatively link defendant to marijuana found). Viewing the evidence here against this backdrop of similar cases, we hold that a rational jury viewing this evidence in the light most favorable to the State could have found beyond a reasonable doubt that appellant was affirmatively linked to the cocaine found in the car he was driving when he was stopped by Officer King. Appellant=s legal sufficiency issue is overruled. Accordingly, the trial court=s judgment is affirmed. /s/ William J. Boyce Justice Judgment rendered and Memorandum Opinion filed November 25, 2008. Panel consists of Justices Yates, Seymore, and Boyce. Do not publish C Tex. R. App. P. 47.2(b). 1 Appellant suggests in his brief that there was no evidence to show what the substance was that gave rise to Officer King=s reasonable suspicion to arrest him, which appears to be an argument that the fruits of the arrest should have been suppressed. However, the record indicates that appellant neither asserted his motion to suppress evidence pre-trial nor objected when the cocaine was offered and admitted into evidence. Thus, appellant leaves us with nothing to review on this point. See Tex. R. App. P. 33.1(a).