No. 09-06-072-CR
Submitted on December 18, 2006.
Opinion Delivered January 31, 2007. DO NOT PUBLISH.
On Appeal from the Criminal District Court, Jefferson County, Texas, Trial Cause No. 92839.
Before GAULTNEY, KREGER, and HORTON, J.J.
DAVID GAULTNEY, Justice.
A jury convicted Jessie Wallace Adams of the offense of possession of a controlled substance (cocaine) enhanced by two prior felony convictions. The trial court sentenced him to five years in prison.
Background
Officers McBride and Sheehan were on patrol when they saw that a front-seat passenger in a vehicle was not wearing a seat belt. The officers activated their emergency lights and followed the vehicle. Both McBride and Sheehan testified they observed the driver of the vehicle lean forward in his seat. Even after McBride made the traffic stop and got out of the patrol vehicle, the driver, Adams, was "still leaning forward, going back and forth in the vehicle real squirmish in the seat." McBride indicated this type of movement causes an officer to be concerned for his safety. Sheehan explained the driver could be hiding a gun. As Officer McBride approached the car, he noticed "crack on [Adams'] shirt." McBride testified that as a trained and experienced narcotics officer, he was familiar with crack. McBride described the events as follows: And, I asked [Adams] to step out of the vehicle and the crack rock falls from him on to the ground as he's exiting the vehicle." . . . . As [Adams] gets out, [the crack rock] falls to the ground and I looked down. [Adams] immediately attempts to destroy the crack by stepping on it. At that time Officer Sheehan and myself have to get him out of the way, try to keep him from destroying the evidence. . . . . [Adams] was cuffed and moved out of the way where he couldn't destroy the rock. I reached down and picked up the remaining crack — maybe half a rock at that time and put it in a plastic bag and retrieved it at that time. Sheehan testified he also "observed a small off-white rock fall from up in [Adams'] torso area, I guess, his lap torso area on to the ground as he was standing up straight out of the vehicle." Based on his experience as an officer, Sheehan immediately suspected the substance was crack cocaine. Like McBride, Sheehan testified that as soon as the substance hit the ground, Adams "tried to stomp on it with one of his feet . . . smashing it on the ground where it couldn't be retrieve[d]." McBride and Sheehan testified they found no other drug evidence in the car; they also indicated they searched the passenger and did not find anything illegal on him. Karrington Scott, the passenger in the vehicle, testified for the defense. He indicated he had his seat belt on when the officers stopped the vehicle. Scott testified Adams never moved around in the car while the officers were making the stop. Scott explained that as soon as Adams stepped out of the car, the officers "proceeded to manhandle him." They were "punching him and slamming his head on the hood — on the dashboard — windshield." Scott testified that after the officers beat Adams up, Officer McBride walked in front of the car and "picked up something." Scott also testified he and Adams had grown up together and had been friends for fifteen years; he acknowledged he did not want his friend to get in trouble. The officers found no contraband on Scott or in the vehicle. Adams' Issues
Adams argues the evidence was legally and factually insufficient to support his conviction. In a legal sufficiency review, the appeals court assesses all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005). As the sole judge of the witnesses' credibility and the weight to be given their testimony, the trier of fact is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). In a factual sufficiency review, an appellate court views all the evidence in a neutral light and considers "whether the evidence introduced to support the verdict, though legally sufficient, is nevertheless `so weak' that the jury's verdict seems `clearly wrong and manifestly unjust[.]'" Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006) (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000)); see also Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The court also asks "whether, considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence." Watson, 204 S.W.3d at 415 (citing Johnson, 23 S.W.3d at 11). To support a conviction for possession of a controlled substance, the State must prove two elements: (a) the accused exercised actual care, custody, control or management over the substance, and (b) the accused knew the matter possessed was contraband. See Tex. Health Safety Code Ann. § 481.115(a) (Vernon 2003); Tex. Health Safety Code Ann. § 481.002(38) (Vernon Supp. 2006); Poindexter, 153 S.W.3d at 405. Adams challenges the first element: exercise of actual care, custody, control or management. He questions the officers' credibility. Pointing to Scott's testimony, Adams asserts the officers were incorrect when they testified Scott, the passenger, did not have his seat belt on. Adams also infers the officers must have been incorrect when they testified he was leaning forward and moving back and forth in the vehicle prior to the stop. Adams argues it is unreasonable to believe that after his alleged movement in the car he would actually leave the crack in his lap or on his shirt. He further argues that the officers' failure to find any contraband in the vehicle belies any suggestion that he had some crack on his shirt. The jury believed the officers' account of the stop and rejected the passenger's account. Viewing all the evidence in the light most favorable to the verdict, a rational jury could have found Adams exercised "actual care, custody, control or management over" the substance: he had the crack on his person and he tried to destroy the evidence. Viewing all the evidence in a neutral light, we cannot say, with any objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Issues one and two are overruled. The judgment of the trial court is affirmed. AFFIRMED.