Opinion
Nos. 01-07-00785-CR, 01-07-00786-CR
Opinion issued January 29, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 344th District Court Chambers County, Texas, Trial Court Cause Nos. 12934 and 13422.
Panel consists of Justices JENNINGS, HANKS, and BLAND.
MEMORANDUM OPINION
A jury convicted appellant, Nathan Norwood, of unlawful possession with intent to deliver a controlled substance, namely cocaine, in an amount of 400 grams or more and bail jumping/failure to appear. See TEX. HEALTH SAFETY CODE ANN. § 481.112 (Vernon 2003) and TEX. PEN. CODE ANN. § 38.10 (Vernon 2003). The cases were consolidated for trial. The trial court assessed punishment at 15 years in prison for unlawful possession with intent to deliver a controlled substance and eight years in prison for bail jumping/failure to appear. In four points of error, appellant challenges the legal and factual sufficiency of the evidence supporting his convictions. We affirm.
Background
On December 10, 2003, during the course of a traffic stop of a car for failure to properly display a license plate, Texas Department of Public Safety Trooper Jason Taylor noticed that the driver of the car and his two passengers were behaving suspiciously, and Taylor asked for permission to search the car. Appellant's twin brother, who was the driver, and appellant both gave their consent. Trooper Taylor and Cleveland Police Officer Kevin Cook searched the car (the "Grand Am") and found three bundles of cocaine and digital scales within the rear door panels of the car. The trooper and the officer also found a pair of pliers in appellant's pocket. While the trooper and the officer were looking into the door panels, appellant attempted to flee. After the trooper and the officer subdued appellant, they placed him and his brother in the back of Trooper Taylor's car. A microphone mounted in the police car captured appellant and his brother talking to each other. One of them said, "Can't you see they got us, man?" The other said, "We still probably would have got caught, but you still done [sic] the wrong thing." The State's drug interdiction expert testified that the amount of cocaine found, 402.29 grams, was "definitely a trafficker's volume of cocaine" and not for personal use. In the second case, appellant was convicted for failing to appear as ordered in court in Chambers County on February 2, 2005. Appellant had previously signed an order of setting, which informed him of his obligation to appear. The instanter bond under which appellant was released ordered appellant to appear in Orange County rather than Chambers County. The Chambers County bailiff testified that he saw appellant in the Chambers County courthouse but that appellant "disappeared" without being excused by the judge.Standard of Review
We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict and determining whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Cruz v. State, 238 S.W.3d 381, 386 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd) (citing King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000)). The trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). Thus, when performing a legal sufficiency review, we may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Brown v. State, 212 S.W.3d 851, 859 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd) (citing Ladd v. State, 3 S.W.3d 547, 557 (Tex.Crim.App. 1999)). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Brown, 212 S.W.3d at 859 (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000)). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Brown, 212 S.W. 3d at 859 (citing Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006)). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. Brown, 212 S.W.3d at 859 (citing Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003)). We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King, 29 S.W.3d at 562. The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder's evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n. 5.Possession of a Controlled Substance
Legal Sufficiency
In his first point of error, appellant contends that the evidence is legally insufficient to support his conviction for possession with intent to deliver cocaine. A person commits the offense of possession with intent to deliver a controlled substance if he knowingly possesses with intent to deliver a controlled substance listed in Penalty Group one, which includes cocaine. See TEX. HEALTH SAFETY CODE ANN. §§ 481.112(a) (Vernon 2003); 481.102(3)(D) (Vernon Supp. 2008) (listing cocaine in Penalty Group 1). In a possession with intent to deliver case, the State must prove that the defendant (1) exercised care, custody, control, or management over the controlled substance; (2) intended to deliver the controlled substance to another; and (3) knew that the substance in his possession was a controlled substance. Id. §§ 481.002(38), 481.112(a) (Vernon 2003 Supp. 2008); Nhem v. State, 129 S.W.3d 696, 699 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (citing King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995)). When a defendant is not in exclusive possession of the place where the controlled substance is found, the State must prove additional independent facts and circumstances that affirmatively link the defendant to the contraband. See Roberson v. State, 80 S.W.3d 730, 734-35 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). An affirmative link generates a reasonable inference that the defendant knew of the contraband's existence and exercised control over it. Id. at 735; Johnson v. State, 658 S.W.2d 623, 627 (Tex.Crim.App. 1983), overruled on other grounds, Woods v. State, 956 S.W.2d 33 (Tex.Crim.App. 1997). Courts have identified a non-exhaustive list of factors that may help to show an affirmative link to the controlled substance. Some relevant factors that may affirmatively link an accused to contraband include: (1) the defendant's presence when a search is conducted; (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 or narcotics 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 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 drugs were found; (12) whether the place where the drugs were 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 Olivarez v. State, 171 S.W.3d 283, 291 (Tex.App.-Houston [14th Dist.] 2005, no pet.). It is not the number of linking factors present that is important, but rather the "logical force" that they create to prove that the defendant committed the crime. Roberson, 80 S.W.3d at 735. Each case is examined on its own facts, and a factor that contributes to the sufficiency of the evidence in one case may be of little or no value in a different case. Id. at 736. Here, appellant was present when the search was executed; appellant was close to and had access to the cocaine; appellant made incriminating statements during the arrest; appellant attempted to flee; other drug paraphernalia was present with the cocaine; the trooper and officer found a significant amount of contraband; and the cocaine was found in an enclosed place. See Olivarez, 171 S.W.3d at 291); Roberson, 80 S.W.3d at 740; State v. Derrow, 981 S.W.2d 776, 779 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd). Specifically, appellant attempted to flee when the officers began to look within the rear door panels of the Grand Am. A microphone mounted in Trooper Taylor's patrol car recorded appellant and his brother making statements to each other indicating that both men knew that there was cocaine in the Grand Am. Appellant had a pair of pliers in his pocket. The officers discovered a digital scale hidden in the right rear door panel with the cocaine. The cocaine was split into three bundles, which Trooper Taylor testified was significant because, in his opinion, it meant that "each individual [in the Grand Am] had their [sic] own cut" of the cocaine. The State's drug interdiction expert testified that the amount of cocaine found in the car was "definitely a trafficker's volume of cocaine" and not for personal use. Looking at this evidence in the light most favorable to the verdict, there are sufficient facts and circumstances linking appellant to the cocaine found in the car. Accordingly, we hold that the evidence is legally sufficient to support appellant's conviction. We overrule appellant's first point of error.Factual Sufficiency
In his second point of error, appellant argues that the evidence is factually insufficient to support his conviction for possession with intent to deliver because numerous linking factors that were present in other cases are absent in this case. Appellant points out that the cocaine was not in plain view; he did not have drugs, weapons, or a large amount of cash on his person; he did not appear to be under the influence of any drugs; he did not make any furtive gestures; there was no odor of drugs in the vehicle; he did not own the vehicle; and there was no evidence of his fingerprints on the cocaine packaging. As we noted in our discussion of legal sufficiency, the linking-factor analysis is extremely case-specific — the number of factors that are present, and even which factors are used, is less important than the "logical force" those factors create to prove that the defendant committed the crime. See Roberson, 80 S.W.3d at 735. The simple absence of particular factors does not indicate an absence of evidence. Appellant contends that the factors that are present do not provide sufficient evidence to sustain his conviction. In support, appellant relies on three cases in which a conviction for drug possession was reversed despite an attempt by the defendant to flee. See Herndon v. State, 787 S.W.2d 408 (Tex.Crim.App. 1990); Denbow v. State, 837 S.W.2d 235 (Tex.App.-Dallas 1992, pet. ref'd); Jackson v. State, 698 S.W.2d 764 (Tex.App.-Beaumont 1985, no pet.). He also relies on three cases in which a conviction was reversed despite a large amount of drugs being found. See Jenkins v. State, 76 S.W.3d 709 (Tex.App.-Corpus Christi 2002, pet. ref'd); Dixon v. State, 918 S.W.2d 678 (Tex.App.-Beaumont 1996, no pet.); Moreno v. State, 821 S.W.2d 344 (Tex.App.-Waco 1991, pet. ref'd). However, none of these cases is applicable. Here, the logical force of the combination of appellant's attempt to flee, his recorded statements indicating his knowledge of the presence of the contraband, and the large amount of narcotics hidden in an enclosed space to which the defendant was in possession of a means of access is overwhelming. Appellant further questions the probative value of some of the linking factors. Pointing out that a dead car battery was found in the Grand Am, appellant argues on appeal that the pliers found on his person could have been used to install a new car battery. Appellant also argues that his attempt to flee the scene could be attributed as easily to panic as to culpability. However, a decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State. See Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). Finally, in his reply brief, appellant contends that the police videotape containing incriminating statements made by appellant and his brother to each other lacks probative value because there is no evidence that appellant spoke. While it is true that, because of the angle from which the video was shot, the speakers are not visible, two different voices are clearly heard, and both make self-incriminating statements. Trooper Taylor testified that, at the time the statements were made, appellant and his brother were alone in the patrol car. Viewing the relevant evidence in a neutral light, favoring neither the State nor appellant, and with appropriate deference to the jury's credibility determinations, we conclude that the evidence supporting the verdict is not too weak to support the jury's finding of guilt beyond a reasonable doubt and that the weight of the evidence contrary to the verdict is not so strong that the State could not have met its burden of proof. See Pena v. State, 251 S.W.3d 601, 609 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd). We overrule appellant's second point of error.Bail Jumping
In his third and fourth points of error, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction for bail jumping. A person commits the offense of bail jumping and failure to appear when he is lawfully released from custody on condition that he subsequently appear and intentionally or knowingly fails to appear in accordance with the terms of his release. See TEX. PEN. CODE ANN. § 38.10(a) (Vernon 2003). It is a defense to prosecution that the actor had a reasonable excuse for his failure to appear. See TEX. PEN. CODE ANN. § 38.10(c) (Vernon 2003). Appellant failed to appear for docket call in Chambers County on February 2, 2005. Appellant complains that there was insufficient evidence to sustain the conviction because the bond he was given upon release ordered him to appear in Orange County, not Chambers County. Generally, an instanter bond gives proper notice and, in the absence of evidence of a reasonable excuse, is sufficient to prove a defendant intentionally and knowingly failed to appear in accordance with the terms of his release. See Euziere v. State, 648 S.W.2d 700, 702 (Tex.Crim.App. 1983). Proof that the defendant was free pursuant to an instanter bond constitutes a prima facie showing that the defendant had notice of the proceeding at which he failed to appear. See Richardson v. State, 699 S.W.2d 235, 238 (Tex.App.-Austin 1985, pet. ref'd). This prima facie showing satisfies the State's burden of proving a culpable mental state in the absence of any evidence to the contrary. Id. However, when, as in the instant case, there is evidence that the defendant did not have proper notice of the proceeding in question, the State must do more than prove the terms of the bond in order to meet its burden of proving an intentional or knowing failure to appear. Id. In such cases, the State must offer evidence that the defendant had actual notice or engaged in a course of conduct designed to prevent him from receiving notice. Id. Appellant cites Fish v. State, where the Dallas Court of Appeals sustained a sufficiency challenge to a bail jumping conviction because the bond did not contain the name of the court in which the defendant was to appear. 734 S.W.2d 741 (Tex.App.-Dallas 1987, pet. ref'd). The Dallas court held that the bond itself, which contained blanks where the name of the court should have been, was evidence indicating that the appellant did not have actual notice that he was to appear before the 354th Judicial District Court of Hunt County. Id. at 742-44. Because there was no other evidence indicating that the appellant had actual notice of the hearing, the court concluded that no rational trier of fact could have found that the appellant intentionally and knowingly failed to appear in accordance with the terms of his release. Id.Fish is distinguishable, however, because here the State presented evidence apart from the bond that appellant had actual notice of the proceeding at which he was to appear. First, appellant signed an order of setting that properly instructed him to appear in Chambers County on February 2, 2005. Second, the bailiff of the Chambers County courthouse testified that appellant "showed up" in the Chambers County court on the date in question but "disappeared" without being excused by the judge. The bailiff further testified that other defendants who shared appellant's bail bondsman had been arrested that day. The State argued at trial that appellant fled because he was afraid of being taken into custody as well. More on point is Bell v. State, 63 S.W.3d 529 (Tex.App.-Texarkana 2001, pet. ref'd). In Bell, the appellant was released under a bond that was silent as to the location, date, and time of his appearance in court. Id. at 531. Nevertheless, the Texarkana Court of Appeals affirmed his bail jumping conviction, noting that the appellant signed an "Appearance and Announcement Form" containing the pertinent information and that two witnesses testified that the appellant knew of his court appearance. Id. at 532-33. Appellant contends, as did the appellant in Bell, that we may only look to the language of the instanter bond in ascertaining whether he had notice of his appearance date. Because the language of the bond ordered appellant to appear in Orange County, appellant argues, appellant could only have been justifiably found guilty of bail jumping for failing to appear in Orange County. We disagree with appellant and agree with the reasoning of the Bell court, which stated:To so hold would mean a defendant would never have notice of appearance when the instanter bond is blank, even if the defendant obtained subsequent knowledge, because that knowledge would not have been received pursuant to the terms of release. The caselaw clearly supports that when the instanter bond does not show prima facie evidence that the defendant had actual notice, the state must offer evidence of actual notice [citations omitted]. The instanter bond is not the only evidence of a defendant's actual notice.Id. at 532. Irrespective of the language of the bond, the trial court ordered appellant to appear in court in Chambers County, and appellant acknowledged the court's order by signing it. The State thus adduced evidence that appellant had notice of his obligation to appear in Chambers County. Appellant, on the other hand, produced no evidence that he even read, let alone relied on, the erroneous language on the instanter bond. We therefore hold that the evidence, viewed in a light most favorable to the verdict, supports the jury's finding that appellant intentionally or knowingly failed to appear and is thus legally sufficient to support appellant's conviction. See King, 29 S.W.3d at 562. We further conclude that the evidence supporting the verdict is not too weak to support the jury's finding of guilt beyond a reasonable doubt and that the weight of the evidence contrary to the verdict is not so strong that the State could not have met its burden of proof, and we accordingly hold that the evidence is factually sufficient to support appellant's conviction. See Pena, 251 S.W.3d at 609. We overrule appellant's third and fourth points of error.