Adams v. State

Full title: DEWAYNE WHITE ADAMS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: May 31, 2005

Nos. 05-04-01291-CR, 05-04-01292-CR (Tex. App. May. 31, 2005)

Opinion

Nos. 05-04-01291-CR, 05-04-01292-CR

Opinion Issued May 31, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-49166-Wm F03-72158-UM. Affirmed.

Before Justices WHITTINGTON, WRIGHT, and FITZGERALD.

OPINION

Opinion By Justice WHITTINGTON.

Dewayne White Adams appeals his convictions for unlawful possession of a firearm by a felon and possession of four grams or more but less than 200 grams of cocaine. See Tex. Pen. Code Ann. § 46.04(a) (Vernon Supp. 2004-05), Tex. Health Safety Code Ann. §§ 481.102(3)(D), 481.115(d) (Vernon 2003 Supp. 2004-05). After finding appellant guilty of both offenses, the jury assessed punishment, enhanced by a prior felony conviction, at ten years' and thirty years' confinement, respectively. In four points of error, appellant contends the evidence is legally and factually insufficient to support his convictions. We affirm the trial court's judgments.

Sufficiency of the Evidence

In four points of error, appellant contends the evidence is legally and factually insufficient to support his convictions because the State failed to affirmatively link appellant to the firearm and the cocaine or to prove appellant was conscious of his connection with the weapon or drugs. We disagree. When reviewing challenges to the legal sufficiency of the evidence, we apply well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001), cert. denied, 537 U.S. 1195 (2003). Viewing the evidence in the light most favorable to the verdict, we determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005); Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004), cert. denied, 125 S. Ct. 1697 (2005); Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim.App. 2003). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla, 143 S.W.3d at 817 (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). The question under a factual sufficiency challenge is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484. Evidence can be factually insufficient if (i) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (ii) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. In examining a factual sufficiency challenge, we defer to the factfinder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). A person who has been previously convicted of a felony commits an offense if he possesses a firearm:

(1) after conviction and before the fifth anniversary of the person's release from confinement following conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or

(2) after the period described by Subdivision (1), at any location other than the premises at which the person lives.

Tex. Pen. Code Ann. § 46.0(a); Hawkins v. State, 89 S.W.3d 674, 677 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd); Martinez v. State, 986 S.W.2d 779, 780 (Tex.App.-Dallas 1999, no pet.). A person commits an offense if he knowingly or intentionally possesses four grams or more but less than 200 grams of cocaine. Tex. Health Safety Code Ann. §§ 481.102(3)(D), 481.115(d). To support a conviction for unlawful possession of a firearm or cocaine, the State must prove the accused (i) exercised actual care, custody, control, or management over the contraband; and (ii) knew the matter or item was contraband. See Tex. Pen. Code Ann. § 1.07(a)(39), 6.01(b) (Vernon 2003 Supp. 2004-05); see also Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App. 1988); Porter v. State, 873 S.W.2d 729, 732 (Tex.App.-Dallas 1994, pet. ref'd). When the accused is not in exclusive control or possession of the place where the contraband is found, he cannot be charged with knowledge and control over the contraband unless there are additional independent facts and circumstances affirmatively linking him to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband's existence and that he exercised control over it. Porter, 873 S.W.2d at 732; see Brown v. State, 911 S.W.2d 744, 748 (Tex.Crim.App. 1995). The State may accomplish this by proving an "affirmative link," that demonstrates the defendant was conscious of his connection with the contraband and knew what it was. Hawkins, 89 S.W.3d at 677 (citing Brown, 911 S.W.2d at 747 and Gill v. State, 57 S.W.3d 540, 545 (Tex.App.-Waco 2001, no pet.)). Evidence used to satisfy these elements can be either direct or circumstantial. Brown, 911 S.W.2d at 747; Hawkins, 89 S.W.3d at 677. In determining whether sufficient affirmative links exist, we examine such circumstantial factors as whether the defendant was present when the search was executed; the amount or type of contraband found; its location in relationship to the defendant's personal belongings; whether the defendant owned or had the right to possess the place where the contraband was found; the defendant's relationship to other persons with access to the premises; incriminating statements; whether the place the contraband was found was enclosed; and proximity of the defendant to the contraband. See Bates v. State, 155 S.W.3d 212, 216-17 (Tex.App.-Dallas 2004, no pet.); Frierson v. State, 839 S.W.2d 841, 849 (Tex.App.-Dallas 1992, pet. ref'd) (citing Pollan v. State, 612 S.W.2d 594, 596 (Tex.Crim.App. [Panel Op.] 1981) and Earvin v. State, 632 S.W.2d 920, 924 (Tex.App.-Dallas 1982, pet. ref'd) (en banc)); Smith v. State, 56 S.W.3d 739, 747 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd); Nguyen v. State, 54 S.W.3d 49, 53 (Tex.App.-Texarkana 2001, pet. ref'd). The number of factors present is not as important as the logical force the factors have in establishing the elements of the offense. Hawkins, 89 S.W.3d at 677. Although appellant claims the evidence is legally and factually insufficient to support his convictions because the State failed to affirmatively link him to the firearm or cocaine, we cannot agree. Dallas police officer Stanley Verbal testified he was on patrol March 5, 2003 when he stopped a Chevrolet Caprice pulling out of the Lawnview Motel parking lot. According to Officer Verbal, the Lawnview Motel is a "real hot spot for narcotics and felony crimes, [where] a lot of robberies take place, [and] a lot of prostitution." Because the entire car windshield and all the windows had auto tint, both a "traffic violation and an officer safety hazard," Officer Verbal stopped the car and asked the occupants to step out of the car because he could not see inside. Appellant was driving but did not have a license. He gave Officer Verbal an identification card with his name and birth date which, when entered into the computer, showed appellant had several warrants out of Garland. When Sergeant Martin arrived, the two officers arrested appellant on the outstanding warrants and handcuffed appellant's passenger for officer safety. They then performed an inventory search of appellant's car. During the search, Sergeant Martin discovered a handgun and some white rocks which appeared to be crack cocaine. Upon seeing the officer with the contraband, the passenger seemed surprised and became very agitated. Appellant said to Officer Verbal, "[L]ook, I know I'm going to jail. Can you just call my wife and have her come get my car, have her come get the baby stuff out of the back?" When appellant's wife arrived, the officer helped her remove the baby seat, clothes, formula, and backpack from the car. Officer Verbal also testified that to the best of his knowledge, the police laboratory was unable to find any fingerprints on the handgun although the clip had one unidentified fingerprint on it. Sergeant Martin testified that when he began the inventory search of appellant's car, the first thing he noticed was a box of ammunition in the passenger compartment. While he searched the glove box, he noticed something behind the dash of the car, toward the center of the floorboard. Upon closer inspection, he saw what appeared to be plastic baggies. He pulled on the dash, which was loose and pulled away easily. A gun and the drugs fell out. In Sergeant Martin's opinion, the gun was accessible to appellant who had been driving the car. All appellant would have to do is to "just lean forward, put [his] hand out like that, and [he] can have the gun, with the correct configuration." Sergeant Martin described the gun as a Charles Daly .45, a "high dollar gun." When asked whether he determined who owned the car, he replied appellant did. Appellant's wife asked if the officers would release the car to her because "it was the only way to get the kids back and forth." Matthew Lambing, the supervisor of the drug analysis laboratory at Southwestern Institute of Forensic Sciences, testified the substance forwarded to the laboratory from the police in this case was cocaine. It had a total weight of 31 grams and the amount of cocaine was 25.7 grams. Deputy Brian Rayburn of the Dallas County sheriff's department testified he took appellant's fingerprints before trial and compared them to the fingerprints on the certified copy of a July 12, 2000 final conviction for unlawful possession of cocaine, a third-degree felony. The fingerprints were made by the same person. Detective Anthony Gipson testified he was a narcotics detective on the Dallas police force. According to him, 31 grams of cocaine was not an amount for personal use, in part, because the street value of that amount was $3,100. The detective testified it was common for people involved in the drug trade to trade cars for drugs and to avoid transporting drugs in a car that is registered in the drug dealer's name. According to Detective Gipson, for the dealer to drive a vehicle in his name serves as a link between [the dealer] and the drugs in the vehicle when it comes to determining who possessed those particular drugs. So in order to avoid that, most of the times they do not drive vehicles which are registered to them. The other reason is they've also learned that if they're driving a decent vehicle, that the police might want to seize from them, and are transporting a quantity of narcotics where [sic] making sales out of that particular vehicle and they end up selling to a police officer or they just get stopped and there's a large enough quantity to be considered possession with intent to deliver inside that vehicle, that the police will file civil seizure against that vehicle and try to take it from them. One of the ways they can avoid losing the vehicle is to put it in [someone] else's name or to drive a family member's car that [is] not in their name or drive a friend's car that [is] not in their name. In contrast, Martha Gonzales testified appellant is her boyfriend and the father of her three children. The two of them have been together for five and one-half years and own two cars, a 1996 Buick LaSaber and a 1996 Crown Victoria. According to Gonzalez, she and her ten-year-old daughter drove to the location where appellant had been stopped and spoke to police. The officers told her appellant was being arrested for possession of a firearm. She denied retrieving any items from the car and stated she did not intend to take the car appellant had been driving because it belonged to someone named Romero. She conceded that at the time of appellant's arrest, she had a one-year old child and twins that were close to three years of age. In sum, the evidence in this case shows that appellant, a convicted felon, was leaving the parking lot of a known high-crime area in a car with dark tinted windows. After police stopped and arrested him on outstanding warrants, they searched the car, finding 31 grams of cocaine and a handgun. According to one of the officers, the handgun was accessible to appellant who had been driving the car. When he saw the gun and drugs, appellant asked if the officers would "just call my wife and have her come get my car, have her come get the baby stuff out of the back?" From these facts, we conclude a rational jury could find beyond a reasonable doubt that (i) the State presented sufficient evidence affirmatively linking appellant to the handgun and cocaine and (ii) appellant knowingly possessed the handgun and more than four grams but less than 200 grams of cocaine. After viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's convictions. We reach a similar conclusion with respect to appellant's second and fourth points in which he claims the evidence is factually insufficient to support his convictions. The jury was the factfinder in this case and, as such, was entitled to believe or disbelieve each witness's testimony. Giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we conclude, after reviewing the evidence in this case in a neutral light, that the jury was rationally justified in finding guilt beyond a reasonable doubt in each case. The State's evidence was not too weak to support the finding of guilt beyond a reasonable doubt. Furthermore, contrary evidence, strong enough that the beyond-a-reasonable-doubt standard could not have been met, does not exist. We therefore conclude the evidence is factually sufficient to support appellant's convictions. We overrule appellant's four points of error. We affirm the trial court's judgments.