Opinion
No. 4-05-00357-CR
Delivered and Filed: February 15, 2006. DO NOT PUBLISH.
Appeal from the 274th Judicial District Court, Guadalupe County, Texas, Trial Court No. 03-1881-CR, Honorable Gary L. Steel, Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Geremy Adrian Arevalo was convicted of possession of a controlled substance (cocaine) and was sentenced to ten years imprisonment. His sentence was suspended, and he was placed on community supervision for a period of five years. Arevalo appeals, arguing that the evidence was legally insufficient to prove that he had "possession" of a controlled substance. We disagree and affirm the judgment of the trial court.
Background
Larry Brothers and Keith Majors, narcotics investigators with the Guadalupe Sheriff's Department, worked for the Seguin Housing Authority ("SHA") during their off-duty hours, assisting with calls and patrolling the various projects owned by SHA. Because of the high number of family disturbances, graffiti, burglaries, thefts, and narcotics in the area, SHA had received a grant to employ off-duty officers. On September 8, 2003, at around 9:00 p.m., Brothers and Majors patrolled an area known as Pradera Housing that was specifically experiencing problems with narcotics such as marijuana and paint sniffing. While patrolling the area, Majors drove at about eight to ten miles an hour while Brothers sat in the passenger seat with the window down, listening for any kind of noises or problems. Brothers then noticed a strong odor of burning marijuana and asked Majors to stop the car. When Majors stopped the car, Brothers could not smell the odor anymore and asked Majors to put the car in reverse and back up. While Majors was backing the car, Brothers observed two men sitting on a swing in the yard to his right, and Majors noticed the lit end of a cigarette. When Majors stopped the car, Brothers again smelled the odor of burning marijuana. Majors turned the wheel so that the headlights illuminated Arevalo and Herrera in the swing. As the officers exited the vehicle, Brothers noticed Arevalo make a suspicious movement: Arevalo leaned back and stretched one arm behind his head. Majors approached the two men, asked for their identification, and stated that the officers had stopped because they smelled marijuana. Believing Arevalo may have disposed of narcotics or other evidence when he made the motion with his hand, Brothers walked around and searched the ground behind the swing. There, Brothers found a plastic baggy containing crack cocaine lying on top of the grass directly behind Arevalo. Majors pointed to a partially smoked marijuana cigarette lying on the ground a little to the right and in front of Arevalo. Brothers picked up the marijuana cigarette and kept it along with the baggy of crack cocaine. After patting down Arevalo and Herrera to ensure that they did not have any weapons or drugs, the officers called two back-up officers who arrived within a few minutes. The officers placed Arevalo and Herrera under arrest for possession of cocaine and marijuana. Brothers discovered that Arevalo and Herrera had attempted to visit a friend who was not home and had decided to wait on the swing in front of the friend's house. When asked whose car was parked in front of the house, Herrera admitted that the vehicle belonged to him. Brothers then made contact with Cynthia Zamora, the owner of the home, and asked if she knew either Herrera or Arevalo. Zamora informed Brothers that they were friends of her son and she did not want them on the property. When asked about her son, she explained that he smoked marijuana occasionally and agreed to allow the officers to search her residence. The officers performed a walk through but did not observe any type of narcotics in plain view. The officers then inventoried Herrera's automobile and located a pistol under the passenger seat as well as razor blades, a number of little "baggies," and a small marijuana bud in the center console. Brothers and Majors both testified that, in their experience as narcotics officers, razor blades are often used to cut off smaller pieces from a larger rock of crack cocaine which are then placed in the "baggies" to sell. Legal Sufficiency In his sole issue, Arevalo argues that the evidence is legally insufficient to support the jury's finding that he "possessed" the controlled substance. A. Standard of Review When deciding whether evidence is legally sufficient to uphold a conviction, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998). Because the fact finder makes all decisions regarding the weight and credibility of the evidence, we cannot reassess the credibility of the evidence and substitute our judgment for that of the trier of fact. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Harris v. State, 173 S.W.3d 575, 577 (Tex.App.-Fort Worth 2005, no pet.). "We must resolve any inconsistencies in the evidence in favor of the verdict." Harris, 173 S.W.3d at 577. B. Possession To prove unlawful possession of a controlled substance, the State must establish that: (1) the accused exercised control, management, or care over the substance; and (2) the accused knew that the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005); see Tex. Health Safety Code Ann. § 481.115 (a)(d) (Vernon 2003). The accused's mere presence in the same place as the controlled substance alone is not sufficient to justify a finding of possession. Harrison v. State, 555 S.W.2d 736, 737 (Tex.Crim.App. 1977). When the accused is not in exclusive possession of the place where contraband is found, there must be additional independent facts and circumstances which affirmatively link the person to the contraband in such a way that it can be concluded that the accused had knowledge of the contraband and exercised control over it. Roberson v. State, 80 S.W.3d 730, 735 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). "Whether this evidence is direct or circumstantial, `it must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous." Poindexter, 153 S.W.3d at 405-06 (quoting Brown, 911 S.W.2d at 747). This is the basis of the "affirmative links rule," which "is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else's drugs." Id. at 406. Factors to be considered in establishing an affirmative link include the following: (1) the defendant's presence when the search was executed; (2) whether the contraband was in plain view; (3) the defendant's proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) the presence of odor of the contraband; (10) the presence of other contraband or drug paraphernalia; (11) the defendant's ownership or right to possession of the place where the controlled substance was found; and (12) whether the place the drugs were found was enclosed. Harris, 173 S.W.3d at 579; Hyett v. State, 58 S.W.3d 826, 830 (Tex. App-Houston [14th Dist.] 2001, pet. ref'd). "The link, however, need not be so strong that it excludes every other reasonable hypothesis except the defendant's guilt." Harris, 173 S.W.3d at 579. "No set formula of facts exists that would dictate a finding of affirmative links sufficient to support an inference of knowing possession of contraband." Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.-Dallas 2003, no pet.). More important than the number of links is the "logical force" or degree to which the links, alone or in combination, tend to affirmatively link the accused to the contraband. Smith v. State, 176 S.W.3d 907, 916 (Tex.App.-Dallas 2005, no pet.); Taylor, 106 S.W.3d at 831. Here, five out of the twelve factors support the jury's finding that the appellant possessed the controlled substance. First, the officers detected a strong odor of burning marijuana in the proximate area where Arevalo was sitting. Second, the baggy containing the cocaine was located in plain view on the grass. Although Arevalo contends that the drugs were not found in plain view because it was dark, the evidence clearly shows that the officers had their headlights on and pointed at the swing and that two street lights lit the area that evening. Third, the cocaine was located directly behind Arevalo giving him easy access to the contraband. Fourth, at least one of the officers testified that he saw Arevalo stretch one arm behind his head which he believed to be a furtive or suspicious gesture motivated by Arevalo's desire to dispose of the drugs. Finally, the officers found the presence of other contraband or drug paraphernalia on the ground in front of Arevalo. Arevalo lists the remaining affirmative link factors which are not present in this situation to support his contention that there was no evidence to establish he was in fact in "possession" of the contraband. However, as noted previously, the number of factors present is not as important as the logical force the factors have in establishing the elements of the offense. Smith, 176 S.W.3d at 916; Taylor, 106 S.W.3d at 831. In looking at this record in the light most favorable to the verdict, the jury could have reasonably found the necessary elements to prove possession. Appellant relies on Tatum v. State, 836 S.W.2d 323 (Tex.App.-Austin 1992, pet. ref'd), in support of his argument that the evidence presented was insufficient to prove possession. His reliance on Tatum is misplaced, however, because the court in Tatum applied the "reasonable hypothesis" test, which, in a circumstantial evidence case, required a court to reverse a conviction unless the circumstances excluded every other reasonable hypothesis except the defendant's guilt. Id. at 324. The Texas Court of Criminal Appeals abandoned this test in Geesa v. State, because it proved to be too confusing and difficult to apply. Geesa v. State, 820 S.W.2d 154, 155-60 (Tex.Crim.App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000); see Brown v. State, 911 S.W.2d 744, 746-47 (Tex.Crim.App. 1995) (confirming that evidence establishing an affirmative link between defendant and the contraband establishes knowledge or intent and need not exclude all other possibilities). Because Tatum applied the abrogated reasonable hypothesis test, we do not find it persuasive. Similarly, appellant relies on Williams v. State, 859 S.W.2d 99 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). In Williams, the defendant ran behind a house and, after pacing near the tree where drugs were found, approached police officers with his hands out and began emptying his pockets. Id. at 100-01. The officers found drugs in a matchbox on top of the grass near an area where the defendant had been seen. Id. The court held that the evidence was insufficient to link the drugs to the defendant:[A]ppellant was not found to be in personal possession or exercising control over the cocaine, and there was no evidence of furtive gestures toward the cocaine. [The officer] testified this was a heavy drug traffic area and that other drug suspects had run this same way before. Appellant did not make any incriminating statements, and no contraband or drug paraphernalia was found on his person. Further, no testimony was presented describing what, if anything, appellant did when he was near the tree. There was no testimony, for example, that appellant hid behind the tree, dropped anything next to the tree, or made any suspicious or unusual movements while near the tree.Id. at 101. Williams, however, is distinguishable from the facts presented here. In Williams, the officers did not witness the defendant making any furtive gestures, nor was there an odor of drugs or additional drug paraphernalia present. Id. In contrast, here, the police officers detected the odor of marijuana and saw Arevalo make a gesture as if he were dropping something to the ground. We, therefore, hold that the evidence is legally sufficient.