Opinion
No. 06-03-00230-CR
Submitted: July 14, 2004.
Decided: September 15, 2004. DO NOT PUBLISH.
On Appeal from the 188th Judicial District Court Gregg County, Texas, Trial Court No. 30034-A.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
As he sped down Interstate Highway 20 (I-20) on the morning of June 20, 2002, little did Lawrence Donaldson know he and his five passengers would soon encounter Tracy Freeman, a drug interdiction officer with the Gregg County Sheriff's Department, and that Freeman would stop their vehicle, find the cocaine in it, and link Donaldson to the cocaine. The relative strength of that linkage is the issue urged by Donaldson on appeal. During his search of the vehicle, Freeman found a pet carrier in the trunk. Inside that carrier, Freeman found cocaine. He also located a duffle bag in the trunk that contained a quantity of marihuana, which Donaldson admitted belonged to him. Freeman then arrested Donaldson for the drugs. On August 21, 2003, Donaldson waived his right to trial by jury and asked the trial court to determine whether he had possessed, with intent to deliver, cocaine in an amount greater than four grams but less than 200 grams, as charged in the indictment. After hearing evidence and argument, the trial court found Donaldson guilty and assessed punishment at seven years' imprisonment. In two points of error, Donaldson challenges the legal and factual sufficiency of the evidence to affirmatively link him to the cocaine. We overrule both points of error and affirm the trial court's judgment. The Affirmative Links Doctrine To support a conviction for possession of a controlled substance, the State must show that the accused exercised actual care, control, or custody of the substance; that the accused had a conscious connection with the substance; and that the accused possessed the substance knowingly or intentionally. Jones v. State, 963 S.W.2d 826, 830 (Tex. App.-Texarkana 1998, pet. ref'd). "The evidence used to satisfy these elements can be direct or circumstantial." Id. Regardless of whether direct or circumstantial evidence is used, the State must still establish that the accused's connection to the substance is something more than merely fortuitous. Id. Mere possession of a vehicle in which contraband is found, without additional facts and circumstances connecting the accused to the contraband, will not support a conviction for possession." Id. Similarly, when the contraband is not in the exclusive possession of the accused, the State must present additional facts that affirmatively link the accused to the controlled substance. Id. The affirmative links need not, however, be so strong as to exclude every other reasonable hypothesis except the guilt of the defendant. Id. Usually, evidence of one or more affirmative links between the accused and the substance "emerges from an orchestration of several factors and the logical force they have in combination." Id.
Factors to be considered when evaluating affirmative links include: 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 contraband; 4) whether the defendant was under the influence of a controlled substance 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) whether there was an odor of the contraband; 10) whether other contraband or drug paraphernalia was present; 11) whether defendant owned or had the right to possess the place where the drugs were found; and 12) whether the place the drugs were found was enclosed.Jones, 963 S.W.2d at 830 (citing Green v. State, 892 S.W.2d 220, 222 (Tex. App.-Texarkana 1995, pet. ref'd)). The State Sufficiently Linked Donaldson to the Cocaine Donaldson contends the evidence is legally and factually insufficient to link him to the cocaine found in the trunk of the vehicle he was driving. Considering the factors linking Donaldson with the cocaine, we disagree. When reviewing the evidence for legal insufficiency, we examine the relevant 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. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). In reviewing the factual sufficiency of the evidence, we must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 Tex.Crim. App. LEXIS 668, at * 20 (Tex.Crim.App. Apr. 21, 2004). There are two ways in which we may find the evidence to be factually insufficient. Id. First, if the evidence supporting the verdict, considered alone, is too weak to support the jury's finding of guilt beyond a reasonable doubt, then we must find the evidence insufficient. Id. Second, if — when we weigh the evidence supporting and contravening the conviction — we conclude the contrary evidence is strong enough that the State could not have met its burden of proof, we must find the evidence insufficient. Id. "Stated another way, evidence supporting guilt can `outweigh' the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard." Id. If the evidence is factually insufficient, then we must reverse the judgment and remand for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996). First, Donaldson was present when the search was executed. See Jones, 963 S.W.2d at 830 (first factor). Second, Donaldson admitted ownership of a quarter pound of marihuana during the arrest. See id. (fifth factor). Third, Donaldson had contraband on him at the time of the arrest. See id. (fifth factor). Fourth and fifth, as driver of the vehicle, Donaldson presumably had control over the car, and by possessing the keys to the trunk, he had control over access to the trunk where the cocaine was located. See id. (eleventh factor). And sixth, the cocaine was found inside the locked trunk. See id. (twelfth factor). But the seventh, most critical link between Donaldson and the cocaine was Donaldson's own admission regarding ownership. During cross-examination by the State, Donaldson was asked whether he remembered Freeman finding the cocaine during the traffic stop and inquiring of Donaldson to whom the cocaine belonged. Donaldson admitted, "I said [to Freeman] I would take responsibility for the controlled substance." The prosecutor then asked Donaldson, "However you want to say it happened, you admitted to Tracy Freeman that you were responsible for the cocaine that was found in your car?" Donaldson replied, "Yes." See id. (sixth factor). Even though the cocaine was found by Freeman inside an enclosed box in the trunk, and therefore was not in the officer's plain view, see id. (second factor); though the cocaine was not immediately and closely accessible to Donaldson, see id. (third factor); though there is no evidence of either furtive gestures or an attempt by Donaldson to flee, see id. (seventh and eighth factors); and though Freeman did not testify he had detected an odor of contraband before arresting Donaldson (ninth factor), we believe the balance of the remaining affirmative links sufficiently establish that Donaldson (1) exercised actual care, custody, or control of the cocaine, (2) had a conscious connection with the cocaine, and (3) possessed the cocaine knowingly or intentionally. See id. Accordingly, we hold the evidence is factually and legally sufficient to support Donaldson's conviction. We overrule Donaldson's points of error and affirm the trial court's judgment.
Freeman was operating stationary radar equipment along I-20 when he spotted Donaldson's car traveling seventy-five miles per hour in a seventy-mile-per-hour zone. Freeman stopped the car for the violation and identified the driver as Donaldson. Donaldson did not have a driver's license, nor did he possess proof of liability insurance.
During his routine questioning of Donaldson, Freeman came to believe Donaldson was unusually nervous. Freeman was also concerned about Donaldson's behavior because Donaldson "was constantly moving around." Freeman asked Donaldson if he had ever been arrested, to which Donaldson initially replied he had not; later, however, he admitted he had been arrested for aggravated assault ten years before. A subsequent prearrest, roadside check of Donaldson's criminal history also revealed he had been arrested for narcotics in California and Illinois. Freeman then asked Donaldson for consent to search the vehicle, which Donaldson gave.
Donaldson further testified at trial he also had a small amount of marihuana with him in the car.