Opinion
No. 05-08-01098-CR
Opinion issued May 29, 2009. DO NOT PUBLISH TEX. R. APP. P. 47.
On Appeal from the 196th Judicial District Court, Hunt County, Texas, Trial Court Cause No. 24236.
Before Justices WRIGHT, BRIDGES, and FRANCIS. Opinion By Justice FRANCIS.
OPINION
A jury convicted Sidney Don Johnson of possession of cocaine in an amount less than one gram. The trial court assessed punishment, enhanced by a prior felony conviction, at seven years imprisonment. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). The standard is the same for both direct and circumstantial evidence cases. See Burden v. State, 55 S.W.3d 608, 613 (Tex.Crim.App. 2001); Bates v. State, 155 S.W.3d 212, 215 (Tex.App.-Dallas 2004, no pet.). We review all the evidence in the light most favorable to the verdict and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App. 2007). In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.), cert. denied, 128 S.Ct. 282 (2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). The State was required to prove beyond a reasonable doubt that appellant intentionally and knowingly possessed cocaine in an amount less than one gram. See Tex. Health Safety Code Ann. § 481.115(a), (b) (Vernon 2003). To do so, the State had to prove appellant exercised actual care, control, or management over the cocaine and knew it was contraband. See Taylor v. State, 106 S.W.3d 827, 830 (Tex.App.-Dallas 2003, no pet.). The control over the contraband need not be exclusive, but can be jointly exercised by more than one person. See id. at 831. Links between appellant and the contraband may be established by either direct or circumstantial evidence. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005). However, no set formula of facts exists to dictate a finding of links sufficient to support an inference of knowing possession. See Taylor, 106 S.W.3d at 830. It is the logical force of the evidence, and not the number of links, that supports a fact-finder's verdict. See Evans v. State, 202 S.W.3d 158, 166 (Tex.Crim.App. 2006). On July 28, 2006, Greenville police officer Jason Whitten saw appellant and Larry Wade sitting on the front porch of a house located at 1607 Gibbons Street. Whitten testified he knew appellant from previous contacts, and he knew appellant had outstanding municipal warrants. When Whitten tried to talk to appellant, appellant stood up, put a hand into his left pocket, and turned away from Whitten. Whitten grabbed appellant's waistband and belt as appellant tried to run away. Whitten and appellant "went around in circles." Other officers arrived to help Whitten, and forced appellant down to the ground. Appellant continued struggling, placing his hands beneath him. Whitten testified he could not see what was in appellant's hands because appellant was lying on them. Whitten struck appellant in the side three times with an open hand to force appellant to pull out his hands. After the officers handcuffed appellant, Whitten searched him and the surrounding area. Another officer saw a glass crack pipe between appellant's feet. Whitten retrieved the pipe and placed it into a sealed bag. Lab analysis showed the pipe contained 0.05 grams cocaine. Whitten arrested appellant and transported him to the county jail. A recording of appellant's arrest taken from Whitten's in-car camera was shown to the jury. Whitten testified only appellant and Wade, the home owner, were on the front porch when he arrived. No one else was present in the immediate vicinity, but other people came to watch the scuffle with appellant. Whitten did not search any of the other people. When officer Gregory Hughes arrived at the Gibbons Street house, he saw Whitten and appellant in the front yard. Hughes testified Whitten held onto appellant's belt and "tried to gain control of him" because appellant was trying to get away from Whitten. Hughes and Officer Garner Cross, a trainee, tackled appellant to the ground. Appellant put his hands underneath him and continued struggling with them. The officers eventually got appellant under control. Hughes testified that when they pulled appellant's hands from underneath him, he did not see anything in appellant's hands or see appellant throw anything on the ground. Whitten and Cross searched the area where appellant had been sitting and found a crack pipe containing crack cocaine. Appellant did not present evidence during the trial. Appellant contends the evidence is legally and factually insufficient because there is nothing that links him to the drugs found on the ground. Appellant asserts that the evidence is insufficient because Wade was never questioned as a suspect, no one saw appellant with anything in his hand, no one saw him drop anything on the ground, and no fingerprints linked him to the cocaine. The State responds the evidence is legally and factually sufficient to support appellant's conviction. The evidence presented shows several links between appellant and the cocaine. Appellant was at the scene when the cocaine was found; he tried to flee from the officers; he resisted arrest; he made furtive gestures when he put his hand in his pocket as Whitten approached him, then put his hands underneath him while he continued struggling with the officers; the cocaine was in close proximity and accessible to him; the cocaine was in plain view on the ground between his feet; and according to Whitten and Hughes, although there were other people at the scene, no one was around the area of the struggle until after they had tackled appellant. It was the jury's function to resolve any conflicts in the evidence, and the jury was free to accept or reject any and all of the evidence presented by either side. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). Viewing all of the evidence under the proper standard, we conclude it is legally and factually sufficient to support appellant's conviction. See Roberts, 220 S.W.3d at 524; Lane, 151 S.W.3d at 191-92; Porter, 873 S.W.2d at 732. We resolve appellant's two issues against him. We affirm the trial court's judgment.