No. 13-06-098-CR
Filed October 18, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On appeal from the 329th District Court of Wharton County, Texas.
Before Justices Rodriguez, Garza, and Benavides.
NELDA V. RODRIGUEZ, Justice.
Memorandum Opinion by Justice Rodriguez
A jury found appellant, Donnie Tyrone Hayes a/k/a Donnie Tyrone Haynes, guilty of possession of a controlled substance in a drug-free zone, see Tex. Health Safety Code Ann. §§ 481.115(a), (c), 481.134(c)(1) (Vernon 2003), and assessed punishment at 35 years' confinement in the Texas Department of Criminal Justice-Institutional Division and a fine of $2,500.00. By three issues, appellant challenges the sufficiency of the evidence and the admissibility of certain testimony for which he alleges the State should have been reprimanded and a mistrial granted. We affirm. I. Background
At trial, Officer Jeremy Eder testified he was on uniform patrol near Dawson Elementary School when he heard loud music coming from a car parked in the driveway of a residence located approximately 150-200 feet from the school. Officer Eder observed appellant standing by the car. When Officer Eder approached the car to investigate the source of the loud music, he saw appellant shove something into his right-front pant pocket. Officer Eder testified that he conducted a pat down of appellant's outer garment for weapons. After finding no weapons, Officer Eder told appellant that he was under arrest for violating the city's loud-music ordinance. Officer Eder stated that before appellant could be restrained, appellant fled on foot. He began pursuit of appellant and called for back up. Officer Eder saw appellant look over his shoulder and stick his hand in his right-front pocket as though "trying to get something out of his pocket to get rid of." During his flight, appellant tripped and fell, but he got up and continued to run. Officer Eder drew his taser gun and ordered appellant to stop and lie on the ground. Appellant complied and lay with his left arm outstretched and his right arm underneath his body. Appellant claimed his shoulder was dislocated. Officer Cristina Resendez testified that when she and Sergeant Ben Evans, Sergeant Coleman, and Officer Whitlock arrived, appellant was sitting on the ground. Officers Eder and Whitlock retraced appellant's steps while Sergeant Coleman, Sergeant Evans and Officer Resendez waited with appellant. Detective Evans asked appellant to move onto the porch of the residence where he was being detained. Officer Resendez testified that when appellant stood up and took a step toward the porch, she noticed a clear baggie on the ground where appellant had been. She identified the substance as "crack." Laboratory results revealed that the substance in the baggie consisted of approximately 4.84 grams of cocaine. Appellant was charged with possession and intent to deliver a controlled substance. The jury acquitted appellant of the charge of intent to deliver a controlled substance, but found him guilty of possession of a controlled substance in a drug-free zone. See Tex. Health Safety Code Ann. §§ 481.115(a), (c), 481.134(c)(1). The jury sentenced appellant to 35 years of confinement in prison and assessed a $2,500 fine. II. Prosecutorial Misconduct
By his first issue, appellant contends the trial court erred by failing to reprimand the State for soliciting allegedly inadmissable witness responses and for failing to declare a mistrial. Specifically, appellant claims two questions asked by the State elicited responses that were highly prejudicial and calculated to inflame the jury. We construe appellant's contentions as a complaint of prosecutorial misconduct. To preserve error for prosecutorial misconduct, the appellant must make a timely and specific objection, request an instruction to disregard the matter improperly placed before the jury, and move for a mistrial. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996) ; see Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App. 1993); see also Jimenez v. State, No. 03-05-00633-CR, 2007 Tex. App. LEXIS 7372, at *44-45 (Tex.App.-Austin August 31, 2007, no pet. h.) (designated for publication); see also Ortega v. State, No. 13-04-393-CR, 2005 Tex. App. LEXIS 8406, at *15 (Tex.App.— Corpus Christi October 13, 2005, no pet.) (mem. op., not designated for publication) ("The proper method to preserve error regarding improper argument or prosecutorial misconduct is to (1) make a timely objection and secure a ruling; (2) if the objection is sustained, request the trial court to instruct the jury to disregard the statement; and (3) if the instruction is given, move for mistrial."). Appellant complains that the State elicited allegedly inadmissible evidence when the prosecutor asked Officer Eder, "What kinds of complaints do you get [about appellant]?" and when he asked Detective Grady Smith, "What does [appellant] do for a living?" Appellant objected to the questions when both witnesses answered that appellant was selling drugs. However, in a third instance, the prosecutor again asked Officer Eder the question "What kind of complaints?" Officer Eder responded, "Loud music, that he's out selling drugs in Wharton." Appellant did not object to the question, or to the prosecutor's conduct. Because the State asked the question an additional time without objection, any error was harmless. Mathis v. State, 67 S.W.3d 918, 926-27 (Tex.Crim.App. 2002) (holding "[a]ppellant failed to object to the prosecutor's arguments . . . and therefore forfeited his right to complain about this issue on appeal."); Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998) (en banc) ("Our rule, therefore, is that overruling an objection will not result in reversal when other such evidence was received without objection, . . .") ; Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991) (en banc) (providing that each time the objectionable evidence is offered, the party must continue to object); see Howard v. State, 153 S.W.3d 382, 385 (Tex.Crim.App. 2004) (en banc) ("In light of the jury's previous exposure to these similar arguments, suggesting the potential for the appellant's participation in gang-related activities in prison, any error is harmless.") ; see also Jimenez v. State, 2007 Tex. App. Lexis 7372, at *47-48. Accordingly, because appellant did not object to the improper question or the prosecutor's conduct each time it occurred, we overrule appellant's first issue. III. Sufficiency of the Evidence
Appellant, by his second and third issues, contends the evidence is legally and factually insufficient to sustain his conviction of possession of a controlled substance. A. Standard of Review and Applicable Law
In a legal sufficiency review, we view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The trier of fact is the sole judge of the facts, the credibility of the witnesses, and the weight given to testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Beckham v. State, 29 S.W.3d 148, 151 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). We do not reevaluate the weight and credibility of the evidence, whether circumstantial or direct, nor substitute our own judgment for the trier of fact. Mosley v. State, 141 S.W.3d 816, 821 (Tex.App.-Texarkana 2004, pet. ref'd) ; Beckham, 29 S.W.3d at 151. Instead, we consider whether the jury reached a rational decision. Beckham, 29 S.W.3d at 151. In a factual sufficiency review, we review the evidence in a neutral light to determine whether the evidence is so weak that the jury's verdict seems clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). After considering all of the evidence in the record related to appellant's sufficiency challenge, we compare the evidence weighed by the jury that tends to prove the elemental fact in dispute with the evidence that tends to disprove it. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997) (en banc). This Court will not reverse the jury's verdict unless we can say with some objective basis in the record that the great weight and preponderance of the evidence contradicts the verdict. Watson, 204 S.W.3d at 415. We measure the sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex.App.-Corpus Christi 2002, pet. ref'd). "Such a charge would accurately set out the law, would be authorized by the indictment, and would not unnecessarily increase the State's burden of proof." Malik, 953 S.W.2d at 240. The elements of the charged offense in this case are: (1) intentional or knowing, (2) possession of, (3) a controlled substance, namely cocaine, (4) in an amount of four grams or more but less than 200 grams. Tex. Health Safety Code Ann. § 481.115(a), (c) (Vernon 2003). To prove unlawful possession of a controlled substance, the State must show that appellant exercised control, management, or care over the substance and that he knew the matter possessed was contraband. Joseph v. State, 897 S.W.2d 374, 376 (Tex.Crim.App. 1995) (en banc); see Tex. Health Safety Code Ann. § 481.002(38) (Vernon 2003) (defining possession as "actual care, custody, control or management"). If the accused is not in exclusive possession and control of the place where the contraband is found or the contraband is not found on his person, the State must then affirmatively link the accused to the contraband through additional facts and circumstances. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005); Lassaint v. State, 79 S.W.3d 736, 740 (Tex.App.-Corpus Christi 2002, no pet.). This "affirmative links rule" provides that the evidence "must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous." Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995) (en banc). In determining whether the evidence is sufficient to affirmatively link the accused to the contraband, the following non-exclusive list of factors may be considered: (1) the contraband was in plain view, (2) the accused was found with a large amount of cash, (3) the contraband was conveniently accessible to the accused, (4) the contraband was found in close proximity to the accused, (5) conduct by the accused indicated a consciousness of guilt, (6) the accused attempted to flee, (7) the accused made furtive gestures, (8) the accused had a special connection to the contraband, (9) the quantity of the contraband, and (10) the accused was observed in a suspicious area under suspicious circumstances. Lassaint, 79 S.W.3d at 740-41. The number of factors is not as important as their logical force in establishing the elements of the offense. Lassaint, 79 S.W.3d at 741. The question of whether the evidence is sufficient to affirmatively link the accused to the contraband must be answered on a case-by-case basis. Id. B. Analysis
Appellant contends the evidence is legally and factually insufficient to support the second element of the charged offense — possession. See Tex. Health Safety Code Ann. § 481.115(a), (c). We disagree. The jury had sufficient evidence to link appellant to the cocaine and convict him based on the logical force of the following factors: appellant was present at the time and place that the controlled substance was found; appellant was questioned by Officer Eder for playing loud music, a ticketed offense; he attempted to flee from the scene; Officer Eder, while in pursuit of appellant, observed appellant reaching into his pocket, making furtive gestures, as if trying to hide something that was in his pocket; appellant tried to hide his right hand from the officer's view; Officer Eder testified that appellant appeared to be reaching for something underneath him; and the cocaine was found on the ground where appellant had been seen sitting immediately after he stood up-in close proximity to appellant. From these facts and circumstances, the jury could have concluded that appellant had knowledge and control of the cocaine. See Poindexter, 153 S.W.3d at 406. We conclude that any rational trier of fact could have found the essential elements of possession of a controlled substance beyond a reasonable doubt. See Tex. Health Safety Code Ann. §§ 481.002(38), 481.115(a), (c); Jackson, 443 U.S. at 319. Thus, the evidence is legally sufficient to support appellant's conviction. Further, viewing all of the evidence in a neutral light, the judgment is not so contrary to the overwhelming weight of the evidence as to be clearly wrong or manifestly unjust. Watson, 204 S.W.3d at 414-15, 417. We therefore conclude the evidence is factually sufficient to support appellant's conviction. Appellant's second and third issues are overruled. IV. Conclusion
We affirm the trial court's judgment.