No. 05-04-00167-CR
Opinion issued October 28, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F02-48662-UI. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
Opinion By Justice WHITTINGTON.
Frank Joseph Johnson appeals his conviction for possession of cocaine in an amount of one gram or more but less than four grams. After a jury found appellant guilty, the trial judge assessed punishment at two years' confinement. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
Dallas police officers Christopher Webb and Tasha Tell were patrolling the Five Points area on March 3, 2002, at about 6:50 p.m., when they saw appellant cross the street in the middle of the block. A car had to stop to avoid hitting appellant. The weather was very cold that day, so the officers intended to just write appellant a citation for being a pedestrian in the roadway. Webb stopped appellant and asked for his identification. Appellant stared at Webb and said nothing. After repeatedly asking appellant for identification and getting no response, Webb told appellant he would be arrested and taken to jail. Appellant continued to stare silently. Webb handcuffed appellant, gave appellant a two-second "pat-down" for weapons, then put appellant in the back passenger-side seat of the patrol car. Tell sat behind the driver's seat and next to appellant. Webb drove appellant to the jail. During the ride to the jail, Tell saw appellant moving around in the seat, saw the top of a clear plastic bag in appellant's hands, and saw appellant stuff something into the crease of the seat. Tell told appellant to stop moving around in the seat. When they arrived at the jail, Webb took appellant out of the vehicle. Tell searched the back seat where appellant had been sitting and found a small plastic bag that contained 1.05 grams of cocaine in the crease of the seat. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any 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); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, *7 (Tex.Crim.App. Apr. 21, 2004). Evidence can be factually insufficient when: (1) considered by itself, the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or (2) contrary evidence exists that is strong enough the beyond-a-reasonable-doubt standard could not have been met. See id. The State was required to prove beyond a reasonable doubt that appellant knowingly or intentionally possessed cocaine in an amount of one gram or more but less than four grams. See Tex. Health Safety Code Ann. § 418.115(a), (c) (Vernon 2003). To do so, the State must prove appellant exercised care, control, or management over the cocaine and knew it was contraband. See Guiton v. State, 742 S.W.2d 5, 8 (Tex.Crim.App. 1987); Taylor v. State, 106 S.W.3d 827, 830 (Tex.App.-Dallas 2003, no pet.). Discussion
Appellant argues the evidence is legally and factually insufficient because Tell's testimony at trial contradicted her testimony at a previous hearing, and Tell and Webb gave contradictory testimony and they were not credible. Appellant asserts he was merely in the vicinity where cocaine was found, and the State failed to prove he exercised care, custody, or control over it. The State responds the evidence is legally and factually sufficient to prove appellant possessed the cocaine. We agree with the State. During the trial, Webb testified there was nothing in the back seat of the patrol car when he searched it at 3:00 p.m., the beginning of his shift. Webb arrested appellant on the street outside an apartment complex fence. After he arrested appellant, Webb found appellant's wallet and identification in appellant's back pocket. Webb did not go into appellant's pockets during the pat down because it was "bitterly cold" that day and Webb wanted to hurry and get appellant and himself in the patrol car. Webb patted appellant's coat and waist area for weapons, then put appellant in the back seat of the patrol car. Webb testified that as he drove appellant to jail, he heard his partner tell appellant to "quit moving." Webb did not recall whether appellant's coat was knee-length or short. Further, although Webb could not recall if he made any other drug arrests that day, there were no evidence bags or anything else in the back seat of the patrol car before appellant got into the vehicle. Tell testified that while Webb asked for appellant's identification, she waited in the patrol car because it was cold outside. When appellant did not respond to Webb's requests, Tell got out of the vehicle while Webb handcuffed appellant. Tell did not search appellant, but she watched Webb perform a quick "pat down" on appellant for weapons and place appellant in the back seat of the patrol car. Neither Webb nor Tell searched appellant's pockets at that time. Tell testified there was nothing in the back seat before appellant was placed in the vehicle. Tell did not see appellant take anything out of his pocket, but she did see a clear or white plastic bag in appellant's hands while appellant sat in the back seat. Tell could not see what was inside the bag. When they got to the jail, Tell immediately looked where appellant had been sitting and found a plastic bag that contained crack cocaine. Tell did not recall whether appellant's coat was knee-length or short. She did not remember testifying at a previous hearing that appellant put the bag between the crease of the back seat and the door jamb. Her testimony at a previous hearing that she had not searched the patrol car that day was correct because her partner had searched the car. Tell testified she did not recall any drug arrests that day except for appellant. However, even if there had been other drug arrests, it was not possible that drugs could have been left in the patrol car by other suspects. Appellant testified there were several evidence bags in the back seat of the patrol car when he was arrested, and he had to wait for the officers to clear out the back seat before he was put into the vehicle. Appellant testified he crossed the street in the middle of the block and had entered the gate code to the complex front gate when the police stopped him. Appellant had taken two steps inside the gate when he heard Tell say "Freeze." Appellant testified that while Webb was parking the patrol car, Tell had her gun halfway out of her holster. Tell said, "Don't make me have to shoot you on a Sunday." Appellant testified he gave the officers his passport when they asked for his identification. Webb started to write out a citation while Tell sat in the patrol car. Then Tell exited the vehicle and told appellant to place everything from his pockets on the trunk of the patrol car. Appellant testified that Tell searched him, took off his knee-length coat and hat, and turned appellant's pockets inside-out. After Tell thoroughly searched appellant, Webb also searched appellant. The officers then cleared evidence bags from the back seat before placing appellant inside the vehicle. Appellant testified he did not move around while in the back seat; he only leaned over to see his cellular telephone when it rang. Appellant testified he never possessed the cocaine and did not stick anything in the back seat of the patrol car. Conflicting evidence was presented in this case about the length of appellant's coat that day, what Tell and Webb said or heard while transporting appellant to the jail, and Tell's testimony at a previous hearing. Appellant essentially asks this Court to find that Tell's and Webb's testimony was less credible than his. However, the jury was the sole judge of the weight and credibility of the witnesses and their testimony, and it was the jury's function to resolve the conflicts in the evidence. See Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997); see also Empty v. State, 972 S.W.2d 194, 196 (Tex.App.-Dallas 1998, pet. ref'd). Viewed under the appropriate standards, we conclude the evidence is sufficient to support the jury's determination that appellant knowingly or intentionally possessed the cocaine. See Sanders, 119 S.W.3d at 820. And, after conducting a neutral review of the record, we conclude the evidence of guilt is not too weak to support a finding of guilt beyond a reasonable doubt, nor is the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 2004 WL 840786, at *7. We overrule appellants points of error. We affirm the trial court's judgment.