No. 14-08-00618-CR
Opinion filed April 28, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 159th District Court, Angelina County, Texas, Trial Court Cause No. 27,001-A.
Panel consists of Justices FROST, BROWN, and BOYCE.
JEFFREY V. BROWN, Justice.
Willie Earl Porter was convicted of possession of a controlled substance and sentenced to confinement for one year in the State Jail Division of the Texas Department of Criminal Justice. Porter challenges his conviction asserting that the evidence is legally and factually insufficient to support the verdict. We affirm.
Background
Porter was indicted for possession of less than one gram of cocaine. He waived a jury trial and proceeded to a bench trial at which Officer Travis Strickland of the Lufkin Police Department was the sole witness. Officer Strickland testified that on October 3, 2006, he and a team from the narcotics division executed a search warrant at 1927 Keltys Street in Lufkin. The warrant directed the officers to search for crack cocaine and any other type of controlled substances. Upon arriving at the home, the officers looked inside and saw two women sitting at a kitchen table and Porter sitting on a sofa in the living room. As the officers announced their presence and opened the door, one of the women ran into a bedroom. The officers ordered Porter to the ground and detained him while Officer Strickland pursued the woman who had fled. After the occupants of the house were secured, the officers searched for crack cocaine and other controlled substances. They found three different types of crack pipes with cocaine residue, a water and sewer bill in Porter's name, a metal crack cocaine pushrod, a brown wallet with cocaine residue, a clear plastic bag and a red plastic bag containing cocaine residue, a green medicine bottle with cocaine residue, and a police scanner. Porter told Officer Strickland that he lived in the house, but did not own it. Another gentleman, nicknamed "A.D.," was reputed to live in the house, but his residence was not confirmed. The police found the green bottle on the floor within Porter's reach next to the sofa where he was sitting. Officer Strickland believed the brown wallet was Porter's because it was found on a nightstand in the bedroom of the house where he was living. On cross-examination, he admitted that the wallet contained no identification. He further testified that in his experience, police scanners were commonly used in houses where drugs were being sold and delivered so the occupants could obtain advance warning of the execution of a search warrant. On cross-examination, Officer Strickland admitted that the house did not appear to have working electricity so the scanner was most likely not being used at the time the warrant was executed. Before executing the search warrant, officers conducted surveillance on appellant's house and observed a high volume of traffic, vehicles in the driveway, heavy foot traffic, and known prostitutes coming and going from the residence. The trial court found Porter guilty of possession of a controlled substance and assessed punishment at one year in state jail. In a single issue, Porter contends the evidence is legally and factually insufficient to sustain a conviction. Analysis
A. Standard of Review
In a legal-sufficiency review, we view all the evidence in the light most favorable to the verdict and determine whether a trier of fact could not have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, (1979); Bigon v. State, 252 S.W.3d 360, 366 (Tex.Crim.App. 2008). The trier of fact is the exclusive judge of the credibility of witnesses and of the weight to be given to their testimony. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998). Likewise, reconciliation of conflicts in the evidence is within the exclusive province of the fact finder. Id. We must resolve any inconsistencies in the testimony in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). When reviewing a factual-sufficiency challenge, we view all the evidence neutrally. See Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997). We may set aside the verdict if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or if the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). We must not, however, intrude upon the fact finder's role as the sole judge of the weight and credibility given to any witness's testimony. See Fuentes v. State, 991 S.W.2d 267, 271-72 (Tex.Crim.App. 1999). We may disagree with the fact finder's conclusions; however, we must avoid substituting our judgment for that of the fact finder, particularly in matters of credibility. See Watson, 204 S.W.2d at 417. B. Possession
To establish unlawful possession of a controlled substance, the evidence must show appellant knowingly exercised care, control, or management over the controlled substance, was conscious of his connection with it, and knew what it was. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995); Tex. Health Safety Code § Ann. 481.002(38), 481.115 (Vernon 2003). Evidence that affirmatively links the accused to the controlled substance suffices for proof that he possessed it knowingly. Brown, 911 S.W.2d at 748. The element of possession may be proved by circumstantial evidence. Moreno v. State, 195 S.W.3d 321, 325 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd). Because Porter was not in exclusive possession of the residence where the contraband was found, the State must affirmatively link him to the contraband. See Evans v. State, 202 S.W.3d 158, 161-62 (Tex.Crim.App. 2006). The following factors are evidence of affirmative links between a defendant and contraband: (1) the defendant's presence when a search is conducted; (2) whether the contraband was in plain view; (3) how close and accessible the drugs were to the defendant; (4) whether the defendant was under the influence of narcotics when arrested; (5) the defendant's possession of other contraband or narcotics when arrested; (6) any incriminating statements the defendant made when arrested; (7) whether the defendant made furtive gestures or attempted to flee; (8) an odor of contraband; (9) the presence of other contraband or drug paraphernalia; (10) the defendant's ownership or right to possess the place where the drugs were found; (11) whether the place where the drugs were found was enclosed; (12) the defendant's possession of a large amount of cash; (13) any conduct by the defendant indicating a consciousness of guilt. Olivarez v. State, 171 S.W.3d 283, 291 (Tex.App.-Houston [14th Dist.] 2005, no pet.). Affirmative links are established by the totality of the circumstances. Hyett v. State, 58 S.W.3d 826, 830 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). "The affirmative links rule' is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else's drugs." Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005). "This rule simply restates the common-sense notion that a person — such as a father, son, spouse, roommate, or friend — may jointly possess property like a house but not necessarily jointly possess the contraband found in that house." Id. citing United States v. Smith, 930 F.2d 1081, 1086-87 (5th Cir. 1991)). Porter argues the evidence is insufficient because he was not in exclusive control of the premises; therefore, the State did not sufficiently link him to the contraband, specifically, the green medicine bottle, which contained cocaine residue. While Porter indeed did not exclusively possess the residence, there was evidence of several additional facts and circumstances that demonstrate his knowledge and control over the medicine bottle. The medicine bottle was in plain view on the floor and readily accessible to him. See Poindexter, 153 S.W.3d at 409 (an affirmative link exists when contraband is in plain view). Porter's name was on a utility bill found at the house and he admitted he lived at the house. This indicates that Porter had a right of possession to the place where the contraband was found. See id. at 411 (utility bill addressed to defendant along with photograph of defendant found in the house supported inference that defendant lived in the house). Further, drug paraphernalia consisting of three crack pipes and a metal pushrod used in smoking cocaine were present at the house in plain view. See Joseph v. State, 897 S.W.2d 374, 376 (Tex.Crim.App. 1995) (presence of drug paraphernalia in home with contraband supported conclusion that defendant knew he possessed cocaine). Officer Strickland also testified that he observed activity at the house that, in his opinion, was consistent with narcotics trafficking. Viewing the evidence in the light most favorable to the verdict, we conclude that the factors affirmatively linking Porter to the cocaine and the logical inferences that may reasonably be drawn from these factors together provide legally sufficient evidence that appellant possessed the cocaine. We further conclude that the verdict is not so against the great weight and preponderance of the evidence as to be manifestly unjust, and the proof of guilt is not so weak as to undermine confidence in the court's determination. Porter's sole issue is overruled. The judgment of the trial court is affirmed.