No. 05-02-01210-CR
Opinion Filed August 1, 2003. Do Not Publish Tex.R.App.P. 47
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F90-03544-MK AFFIRMED
Before Justices JAMES, FRANCIS, and LANG.
Opinion By Justice Lang.
A jury convicted Clifton Allen of unlawful possession of cocaine in an amount less than twenty-eight grams. The trial court found one enhancement paragraph to be true and sentenced appellant to twenty years' confinement. In a single point of error, appellant contends the evidence is factually insufficient to support the conviction. We affirm the trial court's judgment.
The Texas Court of Criminal Appeals granted appellant an out-of-time appeal.
Background
Dallas police officer James Pool testified that on April 5, 1990, he and officer Kevin Ellis were dispatched to a fire station to talk with Bonnie Hunter who claimed to be a victim of assault. Pool testified that when he met Hunter, her face was swollen and she had several facial contusions and cuts. The officers and Hunter returned to Hunter's residence. She stood on the front porch and pointed to appellant, her common-law husband whom she alleged had beaten her. Appellant was sitting in a chair in the living room. When Pool entered the house, he saw two or three other people sitting on a couch in the living room. Pool told appellant to get up because he was under arrest for assault. Both Pool and Ellis testified that as appellant stood up, he immediately put his left hand into his pants pocket. Ellis watched the men sitting on the couch while Pool tripped appellant to the floor and handcuffed him. Pool searched appellant and found a brown prescription bottle in appellant's left front pocket. Pool testified the bottle contained capsules filled with a substance that field-tested positive for cocaine. At trial, both the State and appellant stipulated that lab analysis showed the bottle contained thirty capsules totaling 1.64 grams of cocaine. Pool further testified he did not believe the bottle belonged to any of the other people in the living room, and he did not search any of the rooms in the house before he took appellant to jail. Hunter explained that she and appellant had lived together off and on for about five years. She stated that whenever appellant would "jump" on her, she would leave for a while and then come back. Hunter testified that on April 5, 1990, she returned home from a three-day visit with a friend. Appellant came to her house, demanded to know where she had been, then he hit her in the face and head repeatedly. She left the house and drove to a nearby fire station to call the police. Officers Pool and Ellis returned with her to the house. Hunter testified her brother and his friend were sitting on the couch and appellant was sitting in a chair in the living room. She stood on the front porch and pointed to appellant. The officers went inside and brought appellant out about ten minutes later. Hunter testified that her brother also lived in the house, her brother did not use drugs, and she never saw a brown prescription bottle in the house. Further, Hunter testified appellant did not pick up a bottle from a dresser, nor did appellant ask her about a prescription bottle he allegedly found. Appellant admitted he confronted Hunter about her whereabouts and that he hit her several times. Appellant testified that during the argument, he found a brown prescription bottle on the dresser of the bedroom he shared with Hunter. He questioned Hunter about the bottle, but she was too upset and crying to answer him. Hunter ran from the room and left the house. Appellant put the bottle into his pocket to keep it out of reach of his two-year-old child, and then he went to the living room to wait for Hunter to return. Appellant testified that when he first arrived at the house, Hunter's brother and two or three friends were already sitting on the couch in the living room. Appellant testified he thought the bottle contained "something illegal," but he did not know it contained cocaine. Appellant also thought the bottle might belong to Hunter's brother or one of the other men in the living room. Appellant testified he had possession of the bottle for only fifteen minutes. Applicable Law
In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The jury is the exclusive judge of the facts provided and of the weight to be given to the testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). While the reviewing court has some authority to disregard evidence that supports the verdict, it may not substitute its own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). The State was required to prove beyond a reasonable doubt that appellant knowingly or intentionally possessed cocaine in an amount less than twenty-eight grams. To do this, the State must establish an affirmative link between appellant and the contraband. See Gabriel v. State, 842 S.W.2d 328, 331 (Tex.App.-Dallas 1992), aff'd, 900 S.W.2d 721 (Tex.Crim.App. 1995). If the accused does not have exclusive possession of the place where the contraband was found, the State must affirmatively link the accused to the contraband. See Brown v. State, 911 S.W.2d 744, 748 (Tex.Crim.App. 1995). Among the factors to be considered in determining whether an affirmative link exists are: (1) the defendant's proximity to and accessibility of the contraband; (2) whether the contraband was in plain view; (3) whether other contraband or drug paraphernalia was present; (4) whether the defendant made incriminating statements when arrested; and (5) whether the defendant owned or had the right to possess the place where the contraband was found. See Pettigrew v. State, 908 S.W.2d 563, 571, (Tex.App.-Fort Worth 1995, pet. ref'd). The number of factors present is not as important as the logical force or the degree to which the factors, alone or in combination, tend to affirmatively link the accused to the contraband. See Wallace v. State, 932 S.W.2d 519, 524 (Tex.App.-Tyler 1995, pet. ref'd). Moreover, the link need not be so strong as to preclude every other reasonable explanation except his guilt. See Brown, 911 S.W.2d at 748. Discussion
Appellant argues the evidence is factually insufficient because he did not know the bottle contained cocaine and no drug paraphernalia was found on him or in the apartment. Appellant further argues the evidence showed he had a reasonable explanation for having the bottle, which was not rebutted by other evidence. The State responds the evidence is factually sufficient to show appellant intentionally possessed the cocaine. We agree with the State. Pool found a bottle that contained thirty capsules of cocaine in appellant's front pants pocket. Appellant admitted he put the bottle in his pocket, but he claimed he did not know cocaine was inside the bottle. Appellant testified he found the bottle on the dresser in a bedroom he shared with Hunter, and that he questioned Hunter about the bottle. Hunter testified she had never seen the bottle in the house, she did not see appellant pick up the bottle while they were in the bedroom arguing, and appellant never asked her about the bottle. It was the jury's responsibility to resolve any conflicts in the evidence. See Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997). Having reviewed all the evidence under the appropriate standard, we conclude the evidence is factually sufficient to support the conviction. See Johnson, 23 S.W.3d at 11. Accordingly, we overrule appellant's sole point of error. We affirm the trial court's judgment. DOUGLAS S. LANG, JUSTICE