Opinion
No. 09-08-00503-CR
Submitted on July 27, 2009.
Opinion Delivered August 26, 2009. DO NOT PUBLISH.
On Appeal from the 252nd District Court Jefferson County, Texas, Trial Cause No. 98571.
Before GAULTNEY, KREGER, and HORTON, JJ.
MEMORANDUM OPINION
A jury found Ernest Lamont Nelson guilty of possession of a controlled substance. See TEX. HEALTH SAFETY CODE ANN. § 481.115 (Vernon 2003). The judge sentenced Nelson to five years' confinement in prison. In two issues, Nelson challenges the legal and factual sufficiency of the evidence supporting his conviction and contends that the trial court erred by failing to grant his Batson challenge. We overrule Nelson's issues and affirm the judgment.
Factual Background
After observing a drug transaction between the back-seat passenger in a car and an informant with whom the Port Arthur Police had previously arranged to purchase drugs with marked cash, the police stopped the vehicle. Nelson was driving the car. Inside, the police located drugs, including a "clear plastic baggy that had some crack cocaine in it." The plastic baggy was located in plain view on top of the center console. According to the officer who recovered it, the cocaine was within reach of both the driver and the front-seat passenger. The officer who initially detained Nelson also recovered $40.00 in marked bills. All three of the car's occupants were arrested following the traffic stop. Nelson was indicted and then tried for possession of a controlled substance, namely cocaine, in an amount of at least one gram but less than four grams. The front-seat passenger testified at Nelson's trial. He stated that the cocaine and the other drugs in the car belonged solely to him. He also testified that he previously pled guilty to an indictment charging him with possession of these same drugs. He agreed that the cocaine was on the car's center console when the police seized it. The jury found Nelson guilty of possessing the cocaine in the car. Nelson appeals.Standard of Review
Nelson contends the evidence is legally and factually insufficient to support his conviction. When an appellant raises both legal and factual sufficiency on appeal, we first address the legal sufficiency of the evidence; if the evidence is legally sufficient to support the conviction, we then address factual sufficiency. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). With respect to the legal sufficiency of the evidence in a criminal case, we review all of the evidence in a light most favorable to the verdict, and we decide if 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); Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). In determining the evidence's factual sufficiency, we review the evidence in a neutral light. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S.Ct. 282, 169 L.Ed.2d 206, 76 U.S.L.W. 3165 (2007). "Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, and (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust." Id. (citing Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). The reviewing court may not reverse for factual sufficiency if "`the greater weight and preponderance of the evidence actually favors conviction.'" Id. (quoting Watson, 204 S.W.3d at 417). While the appellate court may "second-guess the [fact finder] to a limited degree, the review should still be deferential, with a high level of skepticism about the [fact finder's] verdict required before a reversal can occur." Id. (citing Watson, 204 S.W.3d at 417; Cain v. State, 958 S.W.2d 404, 407, 410 (Tex. Crim. App. 1997)). In examining a factual sufficiency challenge, we "must give due deference to the fact finder's determinations concerning the weight and credibility of the evidence. . . ." Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003).Analysis
A person commits the offense of possession of a controlled substance "if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 1. . . ." TEX. HEALTH SAFETY CODE ANN. § 481.115(a). Cocaine is a controlled substance listed in Penalty Group 1. Id. § 481.102(3)(D) (Vernon Supp. 2008). "Possession" is defined as "actual care, custody, control, or management." Id. § 481.002(38) (Vernon Supp. 2008). The State may prove that a defendant knowingly possessed contraband by offering circumstantial evidence linking him to the contraband. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). The State need not prove exclusive possession of the contraband, since more than one person may jointly exercise control over contraband. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985). When an accused is not in exclusive possession of the location where contraband is found, additional independent facts and circumstances must link him to the contraband. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005); Nixon v. State, 928 S.W.2d 212, 215 (Tex. App.-Beaumont 1996, no pet.). Such links are established when the evidence shows that the accused's connection to the contraband is more than just fortuitous. Poindexter, 153 S.W.3d at 405-06. Some factors that may be considered in establishing links to the contraband are (1) whether the defendant was present when the search was conducted, (2) whether the contraband was in plain view, (3) whether the defendant had proximity to and accessibility to the contraband, (4) whether the defendant was under the influence of narcotics when arrested, (5) whether the defendant possessed other contraband or narcotics when arrested, (6) whether the defendant made incriminating statements, (7) whether the defendant attempted to flee, (8) whether the defendant made furtive gestures, (9) whether there was an odor of contraband, (10) whether other contraband or drug paraphernalia were present, (11) whether the defendant owned or had the right to possess the place where the contraband was found, (12) whether the place where the contraband was found was enclosed, (13) whether the defendant was found with a large amount of cash, and (14) whether the conduct of the defendant indicated a consciousness of guilt. See Evans, 202 S.W.3d at 162 n. 12. Evidence establishing the links may be direct or circumstantial. See Poindexter, 153 S.W.3d at 405-06. "Circumstantial evidence" has been defined as "direct proof of a secondary fact which, by logical inference, demonstrates the ultimate fact to be proven." Taylor v. State, 684 S.W.2d 682, 684 (Tex. Crim. App. 1984); Watson v. State, 861 S.W.2d 410, 412 (Tex. App.-Beaumont 1993, pet. ref'd). "It is the logical force of the circumstantial evidence, not the number of links, that supports a jury's verdict." Evans, 202 S.W.3d at 166. Under the circumstances of Nelson's arrest, the jury could consider that (1) Nelson was at the scene when the police seized the cocaine; (2) the cocaine was in plain view on the center console of the vehicle between Nelson and the front-seat passenger, thus, placing Nelson in its proximity and in a position to access the cocaine; (3) drugs other than the cocaine were also recovered from the vehicle; and (4) Nelson was the car's driver, which is some evidence that he had the right to possess the vehicle in which the cocaine was found. Additionally, Nelson had some of the marked bills the informant used in the drug transaction that had occurred immediately prior to the search. When we view the evidence in a light most favorable to the verdict, multiple links exist to tie Nelson to the contraband at issue. While the front-seat passenger testified that he solely possessed all of the drugs found in the vehicle, the jury was free to believe all, some, or none of the witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Jaggers v. State, 125 S.W.3d 661, 672 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd). After reviewing the record, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Nelson knowingly possessed the cocaine. See Jackson, 443 U.S. at 319; Evans, 202 S.W.3d at 161. The totality of the evidence, both direct and circumstantial, coupled with reasonable inferences from it, point to Nelson's knowing possession of the cocaine in question. See Evans, 202 S.W.3d at 166. Accordingly, we hold that the evidence is legally sufficient to support the jury's verdict that Nelson knowingly possessed cocaine. When reviewed in a neutral light, the same evidence discussed above also provides a factually sufficient basis to support Nelson's possession of a controlled substance conviction. See Roberts, 220 S.W.3d at 524. Obviously, the jury rejected the passenger's testimony to the extent he attempted to convince them that the cocaine belonged exclusively to him. See Sharp, 707 S.W.2d at 614; Jaggers, 125 S.W.3d at 672. We conclude that the evidence is also factually sufficient to establish that Nelson knowingly possessed the cocaine. Accordingly, we overrule Nelson's first issue. Batson Challenge Nelson's second issue contends the trial court erred by failing to grant his Batson challenge with respect to the State's exercise of peremptory strikes to remove three specific members of the array. See TEX. CODE CRIM. PROC. ANN. art. 35.261 (Vernon 2006); Batson v. Kentucky, 476 U.S. 79, 86, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). "The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits race-based jury selection." Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (citing Batson, 476 U.S. at 85). The Texas Court of Criminal Appeals has explained the Batson procedure as follows:A Batson challenge generally gives rise to a three-step process. First, the defendant must make a prima facie case that a venire member was peremptorily excluded on the basis of race. Next, the prosecution must come forward with race-neutral reasons for the peremptory strike. Finally, the defendant has the opportunity to rebut the State's explanations. The burden of persuasion remains with the defendant to prove purposeful discrimination.Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003) (citations omitted). If the State proffers race-neutral explanations for its peremptory strikes, the defendant has the burden to convince the trial court that the prosecution's reasons were not race-neutral. Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999). The defendant's "failure to offer any real rebuttal to a proffered race neutral explanation can be fatal to his claim." Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002). Generally, we will uphold a trial court's ruling on a Batson challenge unless the trial court's ruling is clearly erroneous. See Jasper, 61 S.W.3d at 421-22. The prosecutor articulated her reasons for the strikes of the three venire members. The prosecutor struck one of them because she would apply "a hundred percent" or "no doubt" burden of proof. Another of the struck venire members had been previously arrested for public intoxication and was unemployed, and the prosecutor expressed concern about her as a result. As for the last venire member at issue, the prosecutor stated that she "didn't seem to be paying attention" during voir dire and did not appear interested "in being here." Because defense counsel did not question the prosecutor or provide the trial court with any evidence in rebuttal, the prosecutor's explanations for the strikes, which are race-neutral on their face, are not really rebutted based on the evidence that is before us. See Ford, 1 S.W.3d at 693. Consequently, the trial court's Batson rulings are not now shown to have been clearly erroneous. Issue two is overruled. Accordingly, the trial court's judgment, as reformed by its nunc pro tunc order of December 11, 2008, is affirmed. AFFIRMED.