No. 05-02-01761-CR
Opinion Filed June 30, 2003 Do Not Publish
On Appeal from the 366th District Court, Collin County, Texas, Trial Court Cause No. 366-80702-02. AFFIRM
Before Justices WHITTINGTON, RICHTER and MALONEY.
The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice Richter.
Appellant, Jonathan Merchant Harris, was convicted of possession of marihuana in an amount of less than fifty pounds, but more than five pounds. Appellant was tried before the court without a jury. The trial court found appellant guilty and the enhancement paragraphs true, and accordingly sentenced appellant to the 25-year minimum period of confinement for a habitual offender. Appellant appeals his conviction, contending in two issues that the evidence is legally insufficient to prove appellant possessed the controlled substance, and the trial court committed error in the rendition of sentence. We affirm the judgment of the trial court.
Factual Background
On January 24, 2002, appellant was a right front seat passenger in a vehicle that was stopped for speeding. The police officer testified that he smelled an odor of fresh, as opposed to burned, marihuana. The driver gave consent to search the vehicle and just under seven pounds of marihuana were discovered inside a duffle bag. The officer noted that six air fresheners were in the vehicle, and that marihuana residue, including flakes and seeds, were present on the front and rear floorboards. Appellant provided several false names as his own to officers at the scene and at the jail. Legal Sufficiency of the Evidence
In his first issue, appellant contends the evidence is legally insufficient to establish he knowingly possessed a controlled substance. Specifically, he argues the evidence fails to establish independent facts creating an affirmative link between appellant and the controlled substance. For the following reasons, we disagree and overrule appellant's first issue. When reviewing the legal sufficiency of evidence, we review the evidence in the light most favorable to the verdict. Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). We 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); Chambers v. State, 866 S.W.2d 9, 15 (Tex.Crim.App. 1993). This standard leaves with the fact finder the responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Dumas v. State, 812 S.W.2d 611, 615 (Tex.App.-Dallas 1991, pet. ref'd). The fact finder is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon Supp. 2000); Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984). Accordingly, the fact finder is free to accept or reject any or all of the evidence presented by either side. Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). To establish the unlawful possession of a controlled substance, the State must prove appellant exercised care, custody, control and management over the contraband and knew the substance was contraband. Guiton v. State, 742 S.W.2d 5, 8 (Tex.Crim.App. 1987); Porter v. State, 873 S.W.2d 729, 732 (Tex.App.-Dallas 1994, pet. ref'd). The accused's mere presence at a place where contraband was used or possessed by others does not alone justify a finding of joint possession or prove the accused is a party to the offense. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App. 1985). If the accused does not have exclusive possession of the place where the contraband was found, the State must establish independent facts that affirmatively link the accused to the contraband. Brown v. State, 911 S.W.2d 744, 748 (Tex.Crim.App. 1995). No set formula exists to establish a finding of an "affirmative link" sufficient to support an inference of the knowing possession of contraband. Porter, 873 S.W.2d at 732. The number of links present is not as important as the "logical force" or the degree to which the factors, standing alone or in combination, tend to affirmatively link the defendant to the contraband. Hall v. State, 86 S.W.3d 235, 241 (Tex.App.-Austin 2002, pet. ref'd); Whitworth v. State, 808 S.W.2d 566, 569 (Tex.App.-Austin 1991, pet. ref'd). Possible affirmative links include whether (1) the defendant was present when the drugs were found; (2) the drugs were found in plain view; (3) the defendant was in proximity to and had access to the drugs; (4) the defendant was under the influence of drugs when arrested; (5) the defendant possessed other contraband when arrested; (6) the defendant made incriminating statements; (7) the defendant attempted to flee; (8) the defendant made furtive gestures; (9) there was an odor of drugs; (10) the defendant owned or has the right to possess the place where the drugs were found; (11) the place where the drugs were found was enclosed; (12) there was a significant amount of drugs found; (13) the defendant possessed weapons; and (14) the defendant possessed a large amount of cash. See Pettigrew v. State, 908 S.W.2d 563, 571 (Tex.App.-Fort Worth 1995, pet. ref'd); Washington v. State, 902 S.W2d 649, 652 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd); Green v. State, 892 S.W.2d 220, 222 (Tex.App.-Texarkana 1995, pet. ref'd); Frierson v. State, 839 S.W.2d 841, 849 (Tex.App.-Dallas 1992, pet. ref'd); Chavez v. State, 769 S.W.2d 284, 288-89 (Tex.App.-Houston [1st Dist.] 1989, pet. ref'd). Appellant asserts the evidence presented at trial shows that although he was in the vehicle that was stopped, no other independent evidence links appellant to the contraband. Appellant contends his lack of knowledge, care, custody and control is demonstrated in the record by the lack of any evidence tending to affirmatively link appellant to the contraband. We disagree. Appellant was present where the contraband was located. Marihuana debris was present on the floorboards of the vehicle, and the odor of fresh marihuana was strong despite the presence of six air fresheners. Appellant was seated in the right passenger seat, and the marihuana was located behind the driver. It would be far easier for appellant, rather than the driver, to access the marihuana in this position. Finally, appellant lied about his true identity, and he and the driver gave conflicting stories about their ultimate destination. These facts affirmatively link appellant to the contraband. Viewing the evidence in the light most favorable to the jury's verdict, we conclude the evidence is legally sufficient to affirmatively link appellant to the contraband allowing the jury to reasonably infer appellant's knowing possession of the contraband. We overrule appellant's first issue. Sentencing error
In his second issue, appellant asserts the trial court erred when it changed his ten year sentence to a term of twenty-five years. During the plea proceedings, on October 28, 2002, the Court stated the charged offense and noted evidence of prior felony convictions, and sentenced appellant to a ten year term of confinement. The next day, on October 29, 2002, appellant was brought to court whereupon the trial judge informed appellant that the ten year sentence was not permissible under the law, and the court then sentenced appellant to the twenty-five year minimum sentence for a habitual offender. Tex. Pen. Code Ann. § 12.42(d) (Vernon 2003). The appellant asserts that the trial court lost jurisdiction to alter the sentence due to the fact that the defendant had accepted the sentence imposed. As appellant was charged with a third degree felony, the punishment range was two to ten years and up to a ten thousand dollar fine. Tex. Health Safety Code Ann. § 481.121(b)(4) (Vernon 2003) (possession offense); Tex. Pen. Code Ann. § 12.34 (Vernon 2003) (punishment range). If the trial judge found the two enhancements to be true, the minimum term of confinement would be twenty-five years. Tex. Pen. Code Ann. § 12.42(d) (Vernon 2003). If the trial judge found only one enhancement — or even no enhancements — to be true, then the punishment range would include a ten year sentence. Tex. Pen. Code Ann. § 12.42(a)(3); 12.33; 12.34 (Vernon 2003). The October 28th record does not specifically indicate that the trial judge actually found the enhancement paragraphs to be true, or to be not true, prior to announcing the ten year sentence. However, during the October 29th proceedings, the judge stated that he had found the enhancement allegations to be true. In addition, the judgment reflects that the enhancements were found true. In this situation, the presumption of regularity that attaches to all judgments must be considered. It is a "cardinal rule" of appellate procedure in Texas that an appellate court "must indulge every presumption in favor of the regularity of the proceedings and documents" in the trial court. Murphy v. State, 95 S.W.3d 317, 320 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (emphasis original) (quoting McCloud v. State, 527 S.W.2d 885, 887 (Tex.Crim.App. 1975)). "The presumption of regularity is a judicial construct that requires a reviewing court, 'absent evidence of impropriety,' to indulge every presumption in favor of the trial court's judgment." Id. (emphasis original) (quoting Light v. State, 15 S.W.3d 104, 107 (Tex.Crim.App. 2000)). The burden is on the defendant to overcome the presumption. Id. The presumption of regularity created by recitals in the judgment can be overcome only when the record otherwise reflects that error occurred. Breazeale v. State, 683 S.W.2d 446, 450 (Tex.Crim.App. 1984). This means that the recitations in the records of a trial court, such as a formal judgment, are binding in the absence of direct proof of their falsity. Id. Considering the presumption of regularity and the burden appellant has to overcome it, as well as the statements of the trial judge that he had found the enhancements true, we conclude that no reversible error occurred during the sentencing procedure that took place in this case. We overrule appellant's second issue. We affirm the judgment of the trial court.