No. 05-02-00785-CR
Opinion Filed August 8, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-37307-MP. AFFIRM
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
Opinion By Justice O'NEILL.
Appellant appeals his conviction for possession of cocaine. After a jury found appellant guilty, the trial court assessed punishment at five years' confinement and a $2,000 fine. In three points of error, appellant generally contends (1) the evidence is legally and factually insufficient to support his conviction, and (2) the prosecutor made an improper remark during voir dire. For the following reasons, we affirm the trial court's judgment.
Factual Background
At about 2 a.m. on September 16, 2002, Officer Chris Williams was patrolling in Irving, Texas when he observed a black truck in the parking lot of the Classic Inn, a motel where drug activity is common. A pedestrian was standing beside the passenger window of the truck speaking to the passenger. When the pedestrian observed Williams in his patrol car, he said something to the occupants of the truck, and the truck drove off. Williams followed the truck and stopped it shortly thereafter for failing to maintain a single lane. Williams then approached the passenger side of the truck. There were three people in the front seat. Appellant was seated in the far-right passenger seat. When Williams approached appellant, appellant's hands were behind his back, either reaching for something or stuffing something behind his back. Appellant appeared nervous and was sweating profusely. The other two occupants appeared calm, were not making any covert movements, and their hands were in front of them. The officer then asked all the occupants to put their hands where he could see them. After the occupants exited the vehicle, Williams searched the vehicle. Williams found four small baggies of cocaine on the floorboard, directly underneath the seat where it appeared appellant had been stuffing something. Williams explained that the truck had a bench seat, and if something was pushed under the seat, it would fall to the floorboard. Williams arrested appellant for possession of the cocaine. Adrian Hernandez testified he is appellant's brother and was with appellant the night he was arrested. To his knowledge, appellant did not have any drugs on him that night. According to Hernandez, the driver, not appellant, was the person that spoke to the pedestrian just before appellant's arrest. Moreover, Hernandez saw the driver hand something to the pedestrian and the pedestrian handed the driver cash. Hernandez only knew the driver as "Sammy" and has not spoken to him since appellant's arrest. Furthermore, Hernandez claimed appellant's hands were not behind his back when the officer approached the vehicle. In his first and second points of error, appellant contends the evidence is legally and factually insufficient to support his conviction. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). A jury is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex.App.-Dallas 1998, pet. ref'd). When reviewing the factual sufficiency of the evidence, we view all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In conducting this analysis, our duty is to examine the jury's weighing of the evidence. Scott v. State, 934 S.W.2d 396, 398 (Tex.App.-Dallas 1996, no pet.). We must, however, be appropriately deferential to the jury's findings so as to avoid substituting our judgment for that of the jury. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). We reverse only if: (1) the evidence is so weak that the verdict is clearly wrong and unjust, or (2) the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 11. To establish unlawful possession of contraband, the State must prove two elements: (1) that the accused exercised care, control and management over the contraband, and (2) that the accused knew the matter possessed 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). If the defendant 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). No set formula of facts exists which would dictate an "affirmative link" sufficient to support an inference of knowing possession. See Porter, 873 S.W.2d at 732. Affirmative links include (1) whether the defendant was present when the contraband was found, (2) whether the defendant owned or had the right to possess the place where the contraband was found, (3) whether the defendant made furtive gestures, (3) the defendant's proximity to and the accessibility of the contraband, (4) whether the contraband was in plain view, and (5) whether the defendant possessed other contraband. See Armstrong v. State, 82 S.W.3d 444, 449 (Tex.App.-Austin 2002, pet. ref'd); Rivera v. State, 59 S.W.3d 268, 274 (Tex.App.-Texarkana 2001, pet. ref'd). The number of links 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. Hyett v. State, 58 S.W.3d 826, 833 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd); Wallace v. State, 932 S.W.2d 519, 524 (Tex.App.-Tyler 1995, pet. ref'd); Gilbert v. State, 874 S.W.2d 290, 298 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). After reviewing the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could find sufficient facts and circumstances existed to affirmatively link appellant to the contraband. The record shows appellant and two others were in the truck where the drugs were found. According to Officer Williams, appellant was the person that had been speaking to the pedestrian at the motel, in a high drug area, just before the search. Shortly thereafter, Williams found the cocaine on the floorboard, directly underneath the seat where it appeared appellant had been stuffing something. Of the three occupants, appellant was the only one that made furtive gestures. Appellant, who was sweating profusely, was also the only one that appeared nervous. We conclude a rational trier of fact could conclude beyond a reasonable doubt that appellant knowingly possessed the contraband. Appellant also asserts the evidence is factually insufficient to support his conviction. He relies on evidence that (1) the officer did not see what appellant stuffed beneath his seat, (2) appellant's brother testified the driver, not appellant, was the person that spoke to the pedestrian at the motel, (3) appellant's brother testified he did not see appellant with any contraband, (4) appellant did not operate the vehicle, (5) appellant did not flee, and (6) the contraband could have been on the floorboard for sometime. We have viewed all the evidence in a neutral light. While appellant has directed us to some conflicting evidence, we cannot conclude: (1) the evidence is so weak that the verdict is clearly wrong and unjust, or (2) the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 11. We overrule appellant's first and second points of error. In his third point of error, appellant complains of an allegedly improper remark the prosecutor made during voir dire. During voir dire, the prosecutor told the venire that appellant's trial attorney was an experienced trial attorney and was in "drug court" a lot. According to appellant, the prosecutor's remark improperly struck at appellant over counsel's shoulders. However, appellant did not object to the remark. Therefore, he waived any error. Tex.R.App.P. 33.1(a); Beltran v. State, 99 S.W.3d 807, 811 (Tex.App.-Houston [14th Dist.] 2003, no pet.); Valdes-Fuerte v. State, 892 S.W.2d 103, 109 (Tex.App.-San Antonio 1994, no pet.). We overrule appellant's third point of error. We affirm the trial court's judgment. MICHAEL J. O'NEILL, Justice.