No. 05-02-01497-CR
Opinion Filed June 27, 2003 Do Not Publish
On Appeal from the 382nd Judicial District Court, Rockwall County, Texas, Trial Court Cause No. 2-01-444. AFFIRM
Before Justices MORRIS, WRIGHT, and MOSELEY.
Opinion By Justice Wright.
A jury convicted Weissinger Newberry, III, of possession of cocaine in an amount of 400 grams or more, and the trial court sentenced appellant to twenty-five years' confinement. In a single point of error, appellant contends the evidence is factually insufficient to support the verdict. We affirm the trial court's judgment.
Background
On November 1, 2001, at approximately 5:30 a.m., Rockwall County deputy sheriff Hank Havens stopped a Jeep Cherokee that was traveling along Interstate 30 with no license plate light on the rear of the vehicle. Havens activated the patrol car's videotape as he pulled the vehicle over. Appellant was driving the vehicle, and a woman passenger was in the front seat. Havens asked appellant to get out of the vehicle and walk to the front of the patrol car. Havens testified he explained to appellant why he was pulled over and asked appellant where he had been that morning. Appellant gave evasive answers. When appellant mentioned something about knowing there was drug trafficking along that part of the highway, Havens became suspicious. He told appellant to stand in front of the patrol car while he talked to the woman, who was still sitting inside the vehicle. When Havens went to the passenger side of the vehicle and spoke to the woman, he saw appellant walk to the rear of the patrol car. Havens shined his flashlight toward the patrol car and saw appellant "make a quick, furtive, downward movement with his left hand, then he walked back to the front of the patrol car." Havens testified he believed appellant threw down a small amount of marijuana, but he continued interviewing the woman and made a mental note to check for the contraband later. Havens asked appellant if he could search the vehicle. Appellant told Havens that as long as Havens wrote something that said he searched appellant's vehicle, then appellant would consent to the search. Havens testified that often people who carry drugs ask officers to write on a ticket that the vehicle was searched so they can show that ticket the next time they get stopped down the road. When Havens searched appellant's vehicle, he did not find any drugs or paraphernalia. Havens wrote appellant a warning ticket and let him go. As appellant was driving away, Havens remembered the gesture he saw appellant make while standing at the rear of the patrol car. Havens walked to the back of the patrol car and looked near the wheel and into the grassy median. Havens saw a yellow plastic bag lying on the grass about fifteen feet from the rear of the patrol car. When he retrieved the bag and looked inside, he saw a "half kilo" of cocaine. Later lab analysis showed the bag contained 500.54 grams of cocaine. Havens testified the cocaine would cost about $10,000. Havens stopped appellant a second time and arrested him. Havens testified that because the videotape in his patrol car had reached the end, he did not question appellant until he rewound the tape. When Havens searched appellant at the scene, he found $3700 cash in appellant's pockets. Havens testified he did not see the bag with cocaine on appellant's person or in appellant's hands. Havens further testified the videotape made of both stops was accurate. The videotape was published to the jury. Rockwall County jailer Mark Clark testified that when he searched appellant at the jail, he found two stacks of money tied with rubber bands inside one of appellant's boots. Appellant was shaking his head "no" as Clark pulled the money out. Appellant shut the door to the room they were in and told Clark, "Put it in your pocket." Clark immediately opened the door and took appellant outside to a table. Clark counted out the money, which totaled $10,000, and had appellant sign for it. Clark gave the money to Havens. Clark further testified he did not find any drugs or paraphernalia on appellant. Appellant did not testify during the guilt/innocence phase of the trial. Applicable Law
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 400 grams or more. See Tex. Health Safety Code Ann. § 481.115(a), (f) (Vernon 2003). To do this, the State must establish an affirmative link between the 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 defendant's proximity to and accessibility of the contraband; 2) the quantity of contraband found; 3) whether the contraband was in plain view; 4) whether other contraband or drug paraphernalia was present; and 5) whether the defendant 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 factually insufficient because the State did not prove he had care, custody, or control over the cocaine. Appellant argues he had no knowledge of the cocaine; no contraband was found in his vehicle or on his person; and the place where the contraband was found, the median area of a public highway, was not even accessible to appellant. Appellant further argues there was no evidence showing whether the cocaine was there before appellant arrived, where it came from, or how long it had been there. The State responds the evidence is factually sufficient to affirmatively link appellant to the contraband. We agree with the State. The videotape confirms Havens's testimony that appellant mentioned drug trafficking to Havens at the beginning of the first traffic stop, and that although Havens instructed appellant to stand at the front end of the patrol car while Havens interviewed the female passenger, appellant walked to the rear of the patrol car. The videotape shows Havens shined his flashlight in appellant's direction, then appellant walked back to the front of the patrol car. Havens testified that he did not see anything in appellant's hands, but he did see appellant make a downward gesture with his left hand. Havens later found over 500 grams of cocaine inside a yellow plastic bag located only fifteen feet from the rear of the patrol car. The bag was in plain view and in close proximity to where appellant had been standing moments before. Havens testified the amount of cocaine found represented a cost of approximately $10,000. When appellant was arrested, Havens found $3700 in cash in appellant's pockets, and Clark found $10,000 in cash in appellant's boots. Clark also testified appellant wanted Clark to keep the money, which the jury could infer was an attempted bribe. The resolution of conflicts was the jury's responsibility. Having reviewed all the evidence under the appropriate standard, we conclude the evidence is factually sufficient to support the conviction. See Johnson, 23 S.W.3d at 11. Accordingly, we overrule appellant's sole point of error. We affirm the trial court's judgment.