No. 05-08-01533-CR
Opinion issued June 17, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause No. 401-80655-08.
Before Chief Justice WRIGHT and Justices O'NEILL and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice LAGARDE.
Appellant David Bennie Magers appeals his sentence for possession of methamphetamine in an amount of between one and four grams. See Tex. Health Safety Code Ann. § 481.115(a), (c) (Vernon Supp. 2009). After a jury rejected appellant's not guilty plea and found him guilty, the trial court found several enhancement paragraphs true and assessed appellant's punishment at twenty-five years' imprisonment. Appellant's motion for new trial was overruled by operation of law. This appeal ensued. In one "ground of error" appellant contends the evidence presented to the jury was both legally and factually insufficient to support his conviction. After reviewing the record in this case, we conclude the evidence is both legally and factually sufficient to support the jury's verdict. We affirm.
Factual Procedural Background
Police officer John Dalton was on routine patrol on Highway 75 in Melissa, Texas, when his attention was drawn to a 1989 Ford single-cab pickup. Dalton determined the vehicle had an expired registration. Dalton stopped the vehicle. A woman later identified as Peggy Edwards was in the driver seat, and appellant was in the passenger seat. When Dalton approached Edwards, she could not produce a driver license or proof of insurance. Dalton determined the registration sticker on the truck's windshield belonged to another vehicle. Although Edwards said she had recently obtained the truck, her statements about the vehicle were inconsistent. Dalton testified he smelled the odor of alcohol coming from appellant's direction. Dalton went to his patrol car to check the occupants' driver licenses. Both Edwards and appellant had the same address on their driver licenses. While awaiting a response from dispatch, Dalton returned to the truck to request more information. After Dalton arrested the driver, Dalton turned to appellant to determine whether it would be safe to release the vehicle to him. Dalton noted that appellant's eyes were bloodshot, and appellant's speech was slurred. Appellant had a "glazed" look about him, there were open beer bottles at his feet, and he poured beer into a Styrofoam cup from which he was drinking. Appellant said he had "only three drinks." Believing that appellant was intoxicated, Dalton asked him to step out of the truck. He informed appellant he was being arrested for public intoxication. After he was handcuffed, appellant said, "[I]f I tell you what's in the vehicle, will you let me go?" Appellant said there was illegal contraband in the truck, and he explained that Edwards had just sold a vehicle and had a large amount of cash on her person. Appellant also said Edwards had bought "dope" from a person named "Steve" on White Rock Road. Dalton agreed to nothing, but he told appellant that he was listening. After Dalton put appellant in the back of the patrol car, he arrested Edwards and put her in the patrol car next to appellant. Dalton returned to Edwards's truck to conduct an inventory search before impounding it. Dalton followed the department's impound procedures. Officer Michael Petrone arrived at the scene to assist Dalton. Petrone testified he searched the passenger side of the truck. The truck's cab had a single bench seat with space behind it for storage. When Petrone leaned the seat forward, he saw a silver cigarette case behind the seat. The case contained a half-dollar-sized piece of folded aluminum foil. Inside the foil was an off-white crystal substance that field-tested positive for methamphetamine. Petrone testified that because there was a crack where the back of the seat met the cushion, a person could reach through that crack to retrieve an item behind the seat. Lab analysis later confirmed there were 1.53 grams of methamphetamine, including adulterants or dilutants, inside the foil. Dalton's patrol car was equipped with an operational in-car video recorder. Dalton testified the videotape shows appellant and Edwards talking to each other while Dalton searched Edwards's truck. When appellant talked with Edwards, he said, "[I] hope they don't find that shit. If they do, I've lost a $100 just like that." After speculating that the officers would not find the drugs, appellant worried aloud that if the officers did find them, they would take the money from both him and Edwards. When appellant saw several officers on the passenger side of the truck, he expressed concern that they would find the drugs. When Dalton returned to the patrol car, he asked Edwards who owned the truck. Edwards said, "[M]y cousin borrowed it." Dalton read both Edwards and appellant their rights and told them they were being charged with possession of methamphetamine, a controlled substance. Appellant asked Dalton if there was any way to avoid charges against both of them. Appellant said "Steve Wilton" had borrowed the truck and Wilson was "a drug dealer." Dalton left the patrol car without showing any interest in negotiating with appellant. After Dalton had gone, Edwards and appellant began discussing their situation. Edwards suggested that she should offer to work with the officers; appellant said he would tell them what time the "big dealer" was coming to Steve's house that night. Appellant urged Edwards to tell the officer that the $100 was his "so [the officer] don't get my money." Edwards reminded appellant that she had told him earlier to put the methamphetamine "down his pants," and that if he had done so, he would have been arrested only for public intoxication. Appellant responded that the officer's thorough search of his person would have revealed the methamphetamine, and that if he had put it down his pants, it would have fallen out because he had not worn underwear. After Dalton came back to the patrol car again, appellant continued to try to negotiate with him by stating that Steve had a meeting that evening with a "dealer from Dallas" about "red dope." Appellant said he would like to see "something done with" Steve, and that he would help "accuse Steve." Appellant insisted the "dope" was not his, but that "Steve does sell [it]." The videotape was admitted into evidence and played for the jury. The trial court instructed the jury it could find appellant guilty as a principal actor to the offense, guilty as a party to the offense, or not guilty. After the jury returned a guilty verdict, the trial court found six enhancement paragraphs true and assessed appellant's punishment at twenty-five years' imprisonment, the minimum punishment range for habitual offenders. See Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 2009). Under the indictment in this case, the State was required to prove that appellant exercised care, custody and control over the methamphetamine and that he knew the matter possessed was contraband. Evans v. State, 202 S.W.3d 158,164 (Tex. Crim. App. 2006); Taylor v. State, 106 S.W.3d 827, 830 (Tex. App.-Dallas 2003, no pet.). Possession of a controlled substance need not be exclusive, and evidence showing that an accused jointly possessed the substance with another is sufficient. Martin v. State, 753 S.W.2d 384, 386 (Tex. Crim. App. 1988); Taylor, 106 S.W.3d at 831. When an accused is not in exclusive possession of the place where the substance is found, additional independent facts and circumstances must link the accused to the contraband to support the conclusion that the accused had knowledge of and control over the contraband. Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). Mere presence alone is not sufficient to sustain a conviction, but presence and proximity, along with other links, may well be sufficient to establish the sufficiency of the evidence. Id. Moreover, under the law of parties, a person is criminally responsible as a party if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. See id. § 7.01(a). A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he aids the other person in committing the offense. See id. § 7.02(a)(2). In determining whether the accused is guilty as a party, the fact finder may consider events occurring before, during, and after commission of the offense. Michel v. State, 834 S.W.2d 64, 67 (Tex. App.-Dallas 1992, no pet.). The only issue before us on appeal is the sufficiency of the evidence to support the jury's verdict. Sufficiency of the Evidence Legal Sufficiency
The well-known standard of legal sufficiency requires the reviewing court to examine the evidence in the light most favorable to the verdict. The appellant court must 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, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact "is the sole judge of the credibility of the witnesses and of the strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The reviewing court does not resolve conflicts of fact, weigh evidence, or evaluate the credibility of witnesses. See Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995). Appellant contends the evidence is legally insufficient because it shows only that he was present at a location where drugs were found, and mere presence alone is insufficient to establish care, custody and control over the drugs. Appellant argues that because there is no evidence he exercised care, control or custody over the drugs, the evidence is legally insufficient to sustain his conviction. We conclude that when the evidence earlier set out in this opinion is viewed in the light most favorable to the verdict, it is legally sufficient to support the judgment. We next consider the factual sufficiency of the evidence. Factual Sufficiency
A proper factual sufficiency review requires this court to examine all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404,414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997). The reviewing court considers (1) if the evidence supporting the jury's verdict, although legally sufficient, is nevertheless so weak that the verdict seems "clearly wrong and manifestly unjust," and (2) if the jury's verdict, in light of the conflicting evidence, is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 417. Analysis
Appellant contends it is "apparent" that the evidence is factually insufficient because the only link between him and the drugs is his presence in the truck, which alone is not sufficient. Citing Evans, appellant concedes that three other links, recognized by the court of criminal appeals as showing care, custody, and control, are arguably also present. See Evans, 202 S.W.3rd at 162 n. 12. Appellant, however, argues those links do not necessarily aid this court in determining whether he knowingly possessed the drugs. Those links include, (1) appellant's close proximity to the place where the drugs were found, although appellant contends he did not necessarily have access to it; (2) appellant's possession of other contraband, i.e., a Styrofoam cup of beer; and (3) appellant's incriminating statements to Dalton that he would tell him what was in the truck if Dalton would let him go. Appellant argues, however, that his statement to Dalton should be given no weight because Edwards could have told appellant the methamphetamine was there during the some twenty minutes Edwards and appellant were alone in the truck while Dalton was calling dispatch from the patrol car. Appellant asserts that Dalton admitted he did not know what went on inside the cab of the truck during the twenty minutes he was away from the truck. According to appellant, the remaining factors indicate he had no knowledge of the drugs. Those factors include, (1) the drugs were not in plain view, (2) appellant was not under the influence of anything but alcohol, (3) appellant did not attempt to flee, (4) appellant made no furtive gestures, (5) there was no odor of the drugs, (6) appellant did not own the truck where the drugs were found, (7) appellant did not have a large amount of cash, (8) and appellant's conduct was not indicative of a "consciousness of guilt." See id. We disagree. There is no set formula of facts that would 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, 202 S.W.3d at 166. After examining the record evidence in a neutral light, and being mindful of the trial court's charge to the jury on the law of parties, we conclude the evidence is factually sufficient to support the jury's verdict. The cigarette case containing the methamphetamine was found on the passenger side of the truck behind the seat where appellant had been sitting. Petrone said there was a space between the back of the seat and the cushion where appellant could have dropped the case. Moreover, the statements made by appellant while he and Edwards were alone in the patrol car reveal appellant's knowledge of the drugs and his complicity in obtaining them. The videotape showed that appellant told Dalton there was "dope" in the truck, how the drugs were obtained, and appellant worried aloud about losing $100 of his money if the drugs were found. Further, appellant's attempts to negotiate his release by offering Dalton information about a big drug dealer in Dallas also links him to the drugs. Considering "the logical force of all of the evidence, direct and circumstantial," we conclude the evidence is factually sufficient to support the jury's guilty verdict. see Evans, 202 S.W.3d at 164. We overrule appellant's sole ground of error. Having concluded the evidence is both legally and factually sufficient to support the jury's verdict, we affirm.