Opinion
No. 09-03-232 CR.
Submitted on January 27, 2004.
Opinion Delivered February 4, 2004. DO NOT PUBLISH.
On Appeal from the Criminal District Court, Jefferson County, Texas, Trial Cause No. 87651.
Before McKEITHEN, C.J., BURGESS, and GAULTNEY, JJ.
OPINION
A jury found L.B. Morris guilty of possessing a controlled substance, namely codeine (by aggregate weight, including any adulterants and dilutants, in an amount of four hundred (400) grams or more). See TEX. HEALTH SAFETY CODE ANN. § 481.118(e) (Vernon 2003). Morris pleaded true to enhancement allegations and was sentenced by the trial court to ten years in the Institutional Division of the Texas Department of Criminal Justice. In two issues, Morris challenges the legal and factual sufficiency of the evidence. We affirm. During a traffic stop of the vehicle Morris was driving, Officers Leland Keen and Jerry Dupree determined one of the passengers had an outstanding warrant, arrested that passenger and in conducting a search of the vehicle for weapons, found styrofoam cups in the backseat; the cups had residue and a codeine odor. The officers then conducted a full search and found two more cups in the front with the residue and codeine odor, one of which was found in the driver's area. Further, they found a plastic Sunkist bottle in between the driver's and front passenger's seats. The bottle contained a dark orange liquid with a strong odor of codeine. Also located was a baby food jar with a small amount of red liquid residue with a codeine odor. Puddles of liquid and ice were found on the back floorboard and front floorboard at the driver's position. We review Morris's challenges to the legal and factual sufficiency under well established standards. We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether, based on that evidence and reasonable inferences from it, a rational trier of fact could have found the accused guilty of the elements of the crime beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ladd v. State, 3 S.W.3d 547, 557 (Tex.Crim.App. 1999)). In reviewing the factual sufficiency of the evidence, we examine all the evidence in a neutral light and ask whether proof of guilt is so obviously weak or greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. Swearingen, 101 S.W.3d at 97. In conducting our analysis, we must avoid substituting our judgment for that of the fact-finder. Id. In our legal sufficiency review, we consider first Morris's argument that the testimony of the State's expert witness did not satisfy the evidentiary requirements of Section 481.105(1) of the Texas Controlled Substances Act ("Act"). Section 481.105(1) of the Act provides, in pertinent part, that Penalty Group 4 consists of "a compound, mixture, or preparation containing limited quantities of . . . [certain] narcotic drugs that includes one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer on the compound, mixture, or preparation valuable medicinal qualities other than those possessed by the narcotic drug alone[.]" TEX. HEALTH SAFETY CODE ANN. § 481.105 (Vernon 2003). Included in section 481.105 as a controlled substance is any mixture containing "not more than 200 milligrams of codeine per 100 milliliters or per 100 grams. . . ." Id. Morris complains the State's expert never identified either the nonnarcotic substance or the nature of its medicinal quality. Further she did not testify as to the sufficiency of the proportion of this nonnarcotic substance "as required by statute." He also complains that she did not scientifically measure the amount of codeine but testified only generally that the codeine was in a substance that typically had no more than 200 milligrams of codeine per 100 milliliters of syrup. The State's expert witness, a forensic analyst testified that the contents of the bottle offered into evidence, State's exhibit 1, was "902.4 grams, or approximately 860 milliliters, of codeine — let's see — with one or more nonnarcotic active medicinal ingredients commonly found in cough syrup preparations which typically contain not more than 200 milligrams of codeine per 100 milliliters of syrup." When asked whether she was able to scientifically and reliably determine that the substance contained in State's exhibit 1 contained codeine in an amount of not more than 200 milligrams per 100 milliliters, she answered "yes." She further testified the weight of the substance was more than 400 grams. Defense counsel neither objected to any of the expert's testimony nor asked her any questions. As defined by the Act, "controlled substance" includes the "aggregate weight" of any substance containing a controlled substance, regardless of what percentage of the substance may be a prohibited drug. See TEX. HEALTH SAFETY CODE ANN. § 481.002(5), 481.118 (Vernon 2003 and Supp. 2004); see Melton v. State, 120 S.W.3d 339, 344 (Tex.Crim.App. 2003). As Melton explains, "the State is no longer required to determine the amount of controlled substance and the amount of adulterant and dilutant that constitute the mixture." Id. Rather the "State has to prove only that the aggregate weight of the controlled substance mixture, including adulterants and dilutants, equals the alleged minimum weight." Id. Here, the minimum weight is 400 grams. See TEX. HEALTH SAFETY CODE ANN. § 481.118(e). And the expert testified the bottle containing the controlled substance mixture weighed 902.4 grams and that the mixture included codeine with "one or more nonnarcotic active medicinal ingredients commonly found in cough syrup preparations which typically contain not more than 200 milligrams of codeine per 100 milliliters of syrup." The State proved that the aggregate weight of the controlled substance mixture equals the alleged minimum weight. We overrule Morris's argument regarding the expert witness's testimony. To complete our legal sufficiency analysis, we next consider the State's burden in proving the charged offense. To prove drug possession, the State must show (1) a defendant exercised care, custody, control, or management over the drugs, and (2) he knew he possessed a controlled substance. See Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). An illegal drug can be jointly possessed with others. See Martin v. State, 753 S.W.2d 384, 386 (Tex.Crim.App. 1988). But mere presence at the scene does not establish possession; there must be evidence that affirmatively links the accused to the contraband and shows he had knowledge of and control over it. Id. Although the evidence used to satisfy these elements may be direct or circumstantial, the State must establish that the accused's connection with the controlled substance was more than just fortuitous. Brown, 911 S.W.2d at 747. Affirmative links are established by the totality of the circumstances. See Hyett v. State, 58 S.W.3d 826, 830-31 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). In determining whether the evidence is sufficient here to affirmatively link the accused with the controlled substance, we consider certain nonexclusive factors: (1) whether the contraband was in plain view; (2) whether the accused was the owner of the premises or had the right to possess the place where the contraband was found, or was the owner or driver of the automobile in which the contraband was found; (3) whether a strong residual odor of the contraband was present; and (4) whether the contraband was conveniently accessible to the accused, or found on the same side of the vehicle as the accused was sitting. See, e.g., Jenkins v. State, 76 S.W.3d 709, 712-13 (Tex.App.-Corpus Christi 2002, pet. ref'd) (footnotes omitted). The number of the factors is not as important as the logical force the factors have in establishing the elements of the offense. Jones v. State, 963 S.W.2d 826, 830 (Tex.App.-Texarkana 1998, pet. ref'd). The evidence here shows that Morris had multiple affirmative links to the codeine. Morris was driving the vehicle in which the codeine was found. The styrofoam cups containing residue were in plain view, as was the bottle containing the codeine mixture. The bottle of codeine mixture was in close proximity to Morris; it was found on the front seat, between the driver and passenger. A codeine odor was present in the cups, including the one found in the driver's area, and a codeine odor was present in the bottle, as well as in the liquid/ice mixture that had been poured on the car floorboard at the driver's position. Further, as additional factors not enumerated in Jenkins, we note that one of the officers observed Morris take a drink from a styrofoam cup, and then abnormally dump the contents on the car floor, and that the contraband was found in a small, enclosed place. The evidence links Morris to the codeine mixture in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the codeine's existence and that he exercised actual care, control, or custody of it. Brown, 911 S.W.2d at 747. Viewing the factors in a light most favorable to the verdict, we conclude the evidence was legally sufficient to support the conviction. We overrule issue one. Having found the evidence legally sufficient, we next review Morris's factual sufficiency claim. In addition to the evidence that we considered under the legal sufficiency point of error, we now consider Morris's factual sufficiency arguments and review all of the evidence in a neutral light that favors neither party. Warren Sheppard, one of Morris's co-defendants, was the only defense witness. He had already pleaded guilty and been sentenced. Sheppard stated he was sitting in the front passenger's seat at the time of the traffic stop. He also testified he had a two-liter bottle containing a codeine syrup/soda mixture. Sheppard maintained he was the only one with a cup so far as he knew at the time and he did not see the others' cups until the officers pulled them out of the car. He stated he did not pour any of the mixture into anyone else's cup or offer any of it to anyone. When he got into Morris's car, Sheppard put the bottle under his seat. According to Sheppard, no one else in the car knew he had the codeine mixture, and he did not tell the officers that no one else knew about the mixture because he was "full of codeine. . . ." Morris argues that, though Officer Keen testified the cups had ice and residue smelling of codeine, the liquid in the cups was not tested; instead it was poured out and all that was brought to trial was the cups. However, the cups were not the only evidence presented by the State. The bottle, which was found in the front of the car, also was introduced as evidence. The contents of the bottle were tested and determined to contain codeine. Next, Morris contends that Dupree's report stated he was the one who found the residue, which conflicts with Keen's testimony that he found it. Dupree's report was not in evidence, but defense counsel cross-examined Keen about the report. Assuming, without deciding, that Dupree's report stated he was the one who found the residue, Keen explained the discrepancy. "[W]e both were assisting each other. [The search] was conducted by both of us." Maintaining under cross examination that he was the first to see the residue, Keen stated "First and second is a matter of maybe half a second because we're both in there looking and [we] see it." As the State maintains, the officers were conducting a joint search and discovered the evidence almost simultaneously. Without record cites, Morris maintains Keen testified there was a large amount of liquid in the floorboard of the vehicle, but also testified he did not smell any strong odor coming from the car, even though codeine has a distinctive odor. We need not consider any argument that omits appropriate citations to the record. See TEX. R. APP. P. 38.1(h). Morris also complains that while Officer Hancock testified he saw Morris drink from a cup and then pour its contents out into the car, "[n]o testimony was elicited which states that any liquid with or without ice was found in the front floorboard or anywhere else in the front seat area." Morris is incorrect. Officer Keen clearly testified he observed liquid and ice on the front floorboard at the driver's position. Finally, Morris asserts that Officer Hancock and Officer Keen testified contradictorily regarding where the bottle was found. Officer Hancock testified the bottle was found on the floorboard of the front passenger's seat. But, Officer Keen testified he located a plastic Sunkist bottle in between the driver's and front passenger's seats; the front car seat was a bench seat, and the bottle was located on the seat where the armrest would go if it were pulled down. The State does not address this contradiction. However, while the testimony of the two officers differs on the precise location of the bottle, both clearly place the bottle in the front part of the car. While Sheppard's testimony contradicts that offered by the State and while there may be some contradiction in the officers' testimony, it is the jury's role to determine the weight and credibility of the witnesses' testimony. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996).
Unless the available record clearly reveals a different result is appropriate, an appellate court must defer to the jury's determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered.Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). Having considered all of the evidence, we find the proof of guilt is not so obviously weak or greatly outweighed by contrary proof so as to indicate a manifest injustice has occurred. Swearingen, 101 S.W.3d at 97. Issue two is overruled. The trial court's judgment and the conviction of L.B. Morris are AFFIRMED.
For the purpose of establishing criminal penalties under the statute, controlled substances (including any material, compound, mixture, or preparation containing the controlled substance) are divided into Penalty Groups 1 through 4. See TEX. HEALTH SAFETY CODE ANN. § 481.101 (Vernon 2003).
A person commits an offense if he "knowingly or intentionally possesses a controlled substance listed in Penalty Group 4, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of practice." TEX. HEALTH SAFETY CODE ANN. § 481.118(a) (Vernon 2003).
A Penalty Group 4 possession offense is punishable by imprisonment for life or for a term of not more than 99 years or less than five years, and a fine not to exceed $50,000, if the amount of controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 400 grams or more. TEX. HEALTH SAFETY CODE ANN. § 481.118(e) (Vernon 2003).
Other non-exclusive factors may include whether the accused: (1) was found with a large amount of cash; (2) possessed other contraband when arrested; (3) had paraphernalia to use the contraband that was in view, or found on the accused; (4) was in a physical condition indicating recent consumption of contraband in question; (5) indicated, through conduct, a consciousness of guilt; (6) attempted to flee; (7) made furtive gestures; (8) had a special connection to the contraband; (9) made incriminating statements connecting himself to the contraband; (10) was observed in a suspicious area under suspicious circumstances; and whether (11) the occupants of the premises gave conflicting statements about relevant matters. Jenkins v. State, 76 S.W.3d 709, 712-13 (Tex.App.-Corpus Christi 2002, pet. ref'd).