No. 05-09-01356-CR
Opinion Filed October 25, 2010. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause No. 401-80490-09.
Before Justices O'NEILL, RICHTER, and LANG-MIERS.
Opinion By Justice O'NEILL.
William Alexander Ordesch waived a jury and pleaded not guilty to possession of heroin. After finding appellant guilty, the trial court assessed punishment at seven years' imprisonment. In a single point of error, appellant contends the evidence is legally and factually insufficient to support his conviction. We affirm.
Background
On December 20, 2008, Sergeant Chris Meehan, an officer with the Collin County Sheriff's Office, was working off-duty patrolling a strip-center parking lot when he saw a Tahoe SUV parked in the fire lane at the front door of a Circuit City store. Meehan testified he watched the vehicle a short time, then he saw a man exit the store and jumped into the front passenger seat of the SUV. Meehan identified appellant as the person in the driver's seat, and said a third man sat in the back seat on the passenger side. Meehan noticed there was no rear license plate on the SUV. As appellant drove slowly from the fire lane, Meehan followed him. Appellant stopped at the northwest corner of the parking lot, got out of the SUV, and began putting a license plate on the front of the vehicle. The back seat passenger got out and began putting a license plate on the rear of the vehicle. Meehan stopped his patrol car at the front of the SUV. When Meehan got out of the patrol car, the man at the rear of the SUV ran from the scene. Meehan approached appellant, took a screwdriver from appellant's hand, and escorted appellant back to the SUV's driver's side door, which was standing open. The front seat passenger remained in the vehicle. Appellant put his hand in his left pocket. As Meehan grabbed appellant's left hand, appellant tried to turn away, positioning himself between the open door and the driver's seat. Appellant pulled his hand from his pocket and "dropped something out of his hand" that landed near the door jam directly behind the driver's seat. Meehan testified he could not tell what appellant had dropped from his hand at that time. Meehan grabbed appellant's hands, positioned him at the side of the SUV, then called for Plano police officers for backup. Meehan testified that when the officers arrived, he told them what he had seen and done, then he "stood back and let them handle it." Plano police officer Larry Going testified he arrived on the scene at about 6:10 p.m. Meehan told him there were three men inside the vehicle, but one ran from the scene, and that two of the men had been changing the license plates. Going testified he observed another officer searching appellant and finding a tablespoon in appellant's pants pocket. When asked about the spoon, appellant told them it was "from his girl's cereal that morning . . . picked it up off the floorboard of his car." At some point, appellant asked Going to get his jacket from the back seat of the SUV because he was getting cold. Going opened the driver's side rear door, grabbed a jacket off the seat, then saw a used syringe laying on the floor behind driver's seat in plain view. When Going asked appellant if he was a diabetic or had any medical conditions, appellant said no. Plano police officer Joe Cabezuela testified that when he arrived at the scene, Meehan was standing at the side of the SUV with appellant. Meehan said he had observed the SUV initially parked in the fire lane without a license plate. He saw a man run out of the store and jump into the SUV. Appellant then drove the SUV to the northwest corner of the parking lot, got out of the vehicle, and began putting a license plate on the front of the vehicle. Meehan also said he saw appellant throw something in the car, but he did not look in the car after appellant threw the item. Cabezuela testified he saw Meehan open the SUV's rear door and grab a jacket from the back seat. Cabezuela saw a syringe in plain view on the floor behind the driver's seat, and he saw a cigarette box in plain view on the floorboard behind the driver's seat near the door jam. When Cabezuela picked up the box and opened the lid, he saw a baggie that contained a substance that appeared to be "black tar heroin." Later analysis showed the baggie contained 1.14 grams of heroin. Appellant did not present any evidence during the guilt-innocence phase of the trial. Applicable Law
In a single point of error, appellant challenges the legal and factual sufficiency of the evidence. The Texas Court of Criminal Appeals has overruled Clewis v. State, holding that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *1 (Tex. Crim. App. Oct. 6, 2010). Therefore, we will address appellant's points under the Jackson v. Virginia standard. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a 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); Brooks, No. PD-0210-09, 2010 WL 3894613, at *1. We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326 ("a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution"). The State was required to prove beyond a reasonable doubt that appellant intentionally and knowingly possessed heroin in an amount of one gram or more, but less than four grams. See Tex. Health Safety Code Ann. § 481.115(a), (c) (West Supp. 2010). To do so, the State had to prove appellant exercised actual care, control, or management over the heroin and knew it was contraband. See Taylor v. State, 106 S.W.3d 827, 830 (Tex. App.-Dallas 2003, no pet.). The control over the contraband need not be exclusive, but can be jointly exercised by more than one person. See id. at 831. Links between appellant and the contraband may be established by either direct or circumstantial evidence. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). However, no set formula of facts exists to dictate a finding of links sufficient to support an inference of knowing possession. See Taylor, 106 S.W.3d at 830. It is the logical force of the evidence, and not the number of links, that supports a fact-finder's verdict. See Evans v. State, 202 S.W.3d 158, 166 (Tex. Crim. App. 2006). Discussion
Appellant contends the evidence is insufficient because he did not own the vehicle where the drugs were found, there were two other individuals in the vehicle, he had no knowledge there were drugs in the vehicle, and he did not make any furtive gestures or attempt to flee. Appellant asserts he did not have access to the location where the drugs were found because he was driving the vehicle and the drugs were found in a rear passenger compartment and not in plain view. The State responds that the evidence is sufficient to support the conviction. The evidence presented to the trial court showed appellant was driving the vehicle in which the heroin was found. Appellant made furtive gestures when he put his hand in his pocket, then took his hand out of his pocket and tossed an object into the vehicle. Sergeant Meehan saw appellant drop something from his hand into the SUV, stating the item landed behind the driver's seat near the door jam. Officer Cabezuela retrieved a cigarette box that contained heroin from the floorboard behind the driver's seat near the door jam. The officers found a used syringe on the floor behind the driver's seat, and they found a spoon in appellant's pocket. Although appellant argues that he did not own the SUV, the State was not required to prove appellant owned the vehicle where the drugs were found. See Tex. Health Safety Code Ann. § 481.115(a), (c). And, more than one person could have exercised control over drugs found inside the cigarette box, including appellant or either of his two passengers. See Taylor v. State, 106 S.W.3d at 831. Viewing the evidence under the proper standard, we conclude a rational trier of fact could find beyond a reasonable doubt that appellant possessed the heroin. Thus, the evidence is sufficient to support the verdict. See Brooks, No. PD-0210-09, 2010 WL 3894613, at *1. We overrule appellant's point of error. We affirm the trial court's judgment.