No. 05-04-01003-CR
Opinion Filed March 10, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F04-34112-IL. Affirm.
Before Justices WRIGHT, MOSELEY, and LANG.
Opinion By Justice WRIGHT.
A jury convicted Dewayne Lawrence Cornish of unlawful possession of cocaine in an amount less than one gram. During the punishment phase, the jury found two enhancement paragraphs true and assessed punishment at four years' confinement. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
At 1:00 a.m. on January 5, 2004, Irving police officer Stacy Smith was patrolling in the area in the 1100 block of Rock Island Road in response to two alarms that had gone off. Smith saw appellant come out of the dark and cross the street. Because it was cold outside, Smith stopped appellant and asked if he needed a ride. Smith told appellant that he did not have to accept the ride and could continue walking. Appellant accepted Smith's offer and told Smith he had come from South Dallas with friends. Appellant gave Smith his name and identification. Pursuant to procedure, Smith ran a check on appellant's identification and found that appellant had outstanding warrants based upon traffic violations. Smith radioed for a backup officer, then told appellant he was arresting him on the outstanding warrants. When the backup officer arrived, Smith handcuffed appellant, quickly patted him down for weapons, then transported him to the jail. Smith performed a thorough search of appellant when they arrived at the jail. Smith found a cigarette wrapper that contained several rocks of crack cocaine in appellant's left sock. Later analysis showed the wrapper contained 0.31 grams of cocaine. Smith testified that when he initially approached appellant, appellant did not try to run away and was cooperative. Further, appellant did not struggle with Smith when appellant realized he would be arrested. Smith testified that when he initially patted down appellant before placing appellant in the patrol car, he did not find anything on appellant that would suggest appellant was trying to commit a burglary. Smith searched appellant a second time while they were in the sally port area at the entrance to the jail. Smith testified there are cameras in the patrol car and the sally port, but the videotapes from those cameras are kept for only thirty days. Smith did not check to see if audio or video recordings of his conversation with appellant or his search of appellant were made. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine 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); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). In examining a factual sufficiency challenge, we defer to the fact finder's determination of the credibility of the evidence. See Johnson, 23 S.W.3d at 11. The State was required to prove beyond a reasonable doubt that appellant knowingly or intentionally possessed cocaine in an amount less than gram. See Tex. Health Safety Code Ann. § 418.115(a), (b) (Vernon 2003). To do so, the State had to prove appellant exercised care, control, or management over the cocaine and knew it was contraband. See Guiton v. State, 742 S.W.2d 5, 8 (Tex.Crim.App. 1987); Taylor v. State, 106 S.W.3d 827, 830 (Tex.App.-Dallas 2003, no pet.). Discussion
Appellant argues the evidence is legally and factually insufficient because he did not try to flee when the officer arrested him on the outstanding warrants nor did he attempt to hide any drugs. Appellant contends that although the jail area where he was searched had recording equipment available, the officer made no attempt to obtain the videotape of the search. The State responds the evidence is legally and factually sufficient to support the conviction. We agree with the State. The evidence shows Smith found cocaine in a cigarette wrapper inside appellant's sock. Smith testified that during his initial search of appellant, he was only looking for weapons before placing appellant in the back of the patrol car. Smith found the cocaine on appellant's person when conducting a more thorough search before taking appellant into the jail. Appellant essentially asks us to find the police officer's testimony was not credible. However, credibility issues were for the jury to resolve. See Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997); see also Empty v. State, 972 S.W.2d 194, 196 (Tex.App.-Dallas 1998, pet. ref'd). Having reviewed all of the evidence under the proper standards, we conclude it is legally and factually sufficient to support the conviction. See Sanders, 119 S.W.3d at 820; Zuniga, 144 S.W.3d at 484. We overrule appellant's points of error. We affirm the trial court's judgment.