No. 05-03-00115-CR
Opinion issued November 12, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-50804-IW. AFFIRMED
Before Justices WHITTINGTON, WRIGHT, and BRIDGES.
Opinion By Justice WHITTINGTON.
A jury convicted Gary Lee McClanahan of unlawful possession of cocaine in an amount of four grams or more but less than 200 grams. During the punishment phase, appellant pleaded true to two enhancement paragraphs. The trial judge found the enhancement paragraphs true and sentenced appellant to thirty-eight years' confinement. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm.
Background
At 3:00 a.m. on May 9, 2002, Dallas police officers Jeffrey Eggleston and Albert Wagner spotted a vehicle at a motel on Harry Hines Boulevard that had been reported stolen. There was no one inside the vehicle. The officers parked and conducted surveillance on the vehicle. A few hours later, the officers saw the vehicle pull out of the motel's parking lot. The officers followed the vehicle and radioed for backup officers and the police helicopter. After driving only a few moments, the vehicle pulled into a parking lot and stopped. Eggleston pulled his patrol car behind the suspect vehicle, then activated the patrol car's spotlight, overhead lights, and take-down lights. Eggleston approached the vehicle on the driver's side, and Wagner approached on the passenger side. Eggleston testified the driver's side door was already open as he walked toward the vehicle. Eggleston ran to the door, pulled appellant out of the driver's seat, and handcuffed him. Simultaneously, Wagner took a female passenger from the front passenger seat and handcuffed her. Wagner and another officer who had arrived on the scene took a second female passenger from the back seat on the passenger side. Wagner testified that when he handcuffed the first female passenger, the second female passenger was inside the vehicle alone for five or ten seconds before she was also taken out and handcuffed. Eggleston testified that when he handcuffed appellant, he looked down and saw a plastic bag in the driver's seat where appellant had been sitting. The contents of the bag field-tested positive for cocaine. Eggleston searched appellant, but found no weapons or drug paraphernalia. Eggleston testified he could clearly see the occupants as he approached the vehicle because the patrol car's spotlight illuminated the interior of the vehicle. Eggleston did not see either passenger throw or toss anything into the driver's seat. The two female passengers were released at the scene. Lab analysis showed the plastic bag contained 4.3 grams of cocaine. Appellant did not testify during the guilt/innocence phase of the trial. Applicable Law
In reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the verdict, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). The standard is the same for both direct and circumstantial evidence cases. See Edwards v. State, 813 S.W.2d 572, 575 (Tex.App.-Dallas 1991, pet. ref'd). In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The jury is the exclusive judge of the facts provided and of the weight to be given to the testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). While the reviewing court has some authority to disregard evidence that supports the verdict, it may not substitute its own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). The State was required to prove beyond a reasonable doubt that appellant knowingly or intentionally possessed cocaine in an amount of four grams or more but less than 200 grams. SeeTex. Health Safety Code Ann. § 481.115(a), (d) (Vernon 2003). To do this, the State must establish an affirmative link between appellant and the contraband. See Gabriel v. State, 842 S.W.2d 328, 331 (Tex.App.-Dallas 1992), aff'd, 900 S.W.2d 721 (Tex.Crim.App. 1995). If the accused 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). Among the factors to be considered in determining whether an affirmative link exists are: 1) the accused's proximity to and accessibility of the contraband; 2) the quantity of contraband found; 3) whether the contraband was found in a car driven by the accused; 4) whether the contraband was in plain view; 5) whether accused owned or had the right to possess the place where the contraband was found; and 6) whether the accused made incriminating statements when arrested. See Pettigrew v. State, 908 S.W.2d 563, 571, (Tex.App.-Fort Worth 1995, pet. ref'd). The number of factors 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. See Wallace v. State, 932 S.W.2d 519, 524 (Tex.App.-Tyler 1995, pet. ref'd). Moreover, the link need not be so strong as to preclude every other reasonable explanation except his guilt. See Brown, 911 S.W.2d at 748. Discussion
Appellant argues the evidence is legally and factually insufficient because two female passengers in the vehicle could have placed the drugs in the driver's seat. Appellant argues the State did not produce any affirmative links to show appellant knew there were drugs in the vehicle; appellant did not own the vehicle, use drugs, or have drug paraphernalia on his person or in the vehicle; and appellant did not attempt to flee and was cooperative. The State responds the evidence is legally and factually sufficient to show appellant possessed the cocaine because the cocaine was found in the seat where appellant had been, and the passengers were removed from the vehicle and did not handle the cocaine. We agree with the State. The cocaine was taken from a vehicle that had been reported stolen and was being driven by appellant. The cocaine was found in plain view on the driver's seat moments after Eggleston took appellant out of the driver's seat. Wagner testified he removed a female from the front passenger seat at the same time that Eggleston removed appellant from the driver's seat, and a second female passenger in the back seat was inside the vehicle for only five to ten seconds before being removed from the vehicle. Eggleston testified the interior of the vehicle was illuminated by spotlights and he did not see either passenger make any movements as he approached the vehicle. Having reviewed the evidence under the appropriate standards, we conclude the evidence is legally and factually sufficient to support the conviction. See Jackson, 443 U.S. at 318-19; Johnson, 23 S.W.3d at 11; Brown, 911 S.W.2d at 747. Accordingly, we overrule appellant's two points of error. We affirm the trial court's judgment.