No. 05-06-00523-CR.
Opinion Filed December 13, 2006. Do Not Publish.
On Appeal from the 422nd Judicial District Court Kaufman County, Texas Trial Court Cause No. 23801-422.
Before Justices MORRIS, LANG, and LANG-MIERS.
Opinion By Justice LANG.
A jury convicted Ashley Chantell Smith of possession of cocaine in an amount of 200 grams or more, but less than 400 grams See Footnote and assessed punishment at five years' imprisonment and a $1000 fine. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Appellant was indicted for possession with intent to deliver cocaine in an amount of 200 grams or more but less than 400 grams. However, the jury convicted her of the lesser-included offense.
Background
On December 15, 2003, at approximately 12:00 p.m., State trooper Chris Armstrong pulled over a speeding vehicle on Interstate 20. Bradrick Blaylock was driving, and appellant was in the front passenger seat. No one else was in the car. Armstrong directed Blaylock to get out and walk to the rear of the car on the passenger side. When questioned by Armstrong, Blaylock said he had been in Dallas attending a movie and was driving back to Tyler. Because Blaylock appeared overly nervous, Armstrong went to the passenger window and talked with appellant. Appellant told Armstrong she was returning home to Tyler after visiting friends in Dallas, but did not mention going to the movies. Armstrong testified that while he talked with Blaylock at the rear of the car, appellant remained in the passenger seat. He did not see appellant make any gestures while he talked with Blaylock. After Armstrong found that appellant's driver's license had been suspended, he arrested appellant. Armstrong then asked appellant for her driver's license so he could release the car to her. Appellant did not have a driver's license. Blaylock "pleaded" with Armstrong to let appellant drive the car so it would not be towed. Appellant also asked why she could not drive the vehicle. Armstrong explained that because appellant had no driver's license, he could not release the car to her. As he prepared to quickly inventory the car before the wrecker arrived, Armstrong opened the passenger door and smelled the odor of burnt or stale marijuana and saw shredded tobacco on the floor boards. According to Armstrong, people often tear open cigars, peel out the tobacco, and place marijuana in the cigar. As Armstrong opened the door and looked down, he saw a partially-open plastic grocery sack under the passenger seat. When he knelt down to look inside the sack, he saw two plastic bags that contained a "yellowish rock-type substance" that Armstrong believed was cocaine. Armstrong placed appellant in custody, then locked the grocery sack and its contents in his patrol car's trunk. Based upon the location of the grocery sack inside the car, Armstrong believed appellant could not have entered or exited the car without seeing the sack. Lab analysis showed the bags contained 237.8 grams of cocaine. The grocery sack, two plastic bags of cocaine, chain of custody affidavits, and lab analysis report were offered into evidence without objection. Finally, Armstrong arrested both appellant and Blaylock because neither one took ownership of the cocaine and both were in care, custody, and control of the cocaine. Appellant did not testify during the guilt-innocence phase of the trial. 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); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, No. PD-469-05, 2006 WL 2956272, *7 (Tex.Crim.App. Oct. 18, 2006); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The State was required to prove beyond a reasonable doubt that appellant knowingly or intentionally possessed cocaine in an amount of 200 grams or more, but less than 400 grams. See Tex. Health Safety Code Ann. § 481.115(a), (e) (Vernon 2003). To do so, the State had to prove appellant exercised actual care, control, or management over the cocaine and knew it was contraband. See Taylor v. State, 106 S.W.3d 827, 830 (Tex.App.-Dallas 2003, no pet.). Affirmative links between appellant and the contraband must be established by either direct or circumstantial evidence. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005). However, it is the logical force of the evidence, and not the number of links, that supports a jury's verdict. See Evans v. State, 202 S.W.3d 158, 166 (Tex.Crim.App. 2006). The jury was instructed it could find appellant guilty of possession with intent to deliver cocaine, guilty of the lesser-included offense of possession of cocaine, or not guilty. The jury was also instructed it could find appellant guilty if it found she acted as a party to the offense. See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). A person is criminally responsible as a party to an offense if the offense is committed by her own conduct, by the conduct of another for which she 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, she solicits, encourages, directs, aids, or attempts to aid the other person to commit 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.). Discussion
Appellant argues the evidence is legally and factually insufficient because she was not the driver of the car, the State failed to prove the substance found in the car was cocaine, there is no evidence appellant knew the substance in the vehicle, and there is no evidence that links appellant to the substance. The State responds that the evidence is legally and factually sufficient to show appellant knowingly possessed the cocaine. Appellant was a passenger in a car where cocaine was found. Specifically, the cocaine was found in plain view under the seat where appellant was sitting, within reach of appellant. Armstrong testified that when he first opened the door and looked down, he could see a grocery sack under the passenger seat where appellant had been sitting. He saw two bags of cocaine inside the partially-opened sack. The lab analysis report recites that one bag contained 120.5 grams of cocaine and the other contained 117.26 grams of cocaine. Other circumstances tend to show appellant knew the cocaine was in the vehicle. Both appellant and Blaylock gave conflicting statements to Armstrong about where they had been, and the interior of their vehicle contained shredded tobacco and smelled of marijuana. However, neither appellant, nor Blaylock claimed the cocaine, and both asked Armstrong why the car could not be released to appellant even though appellant had no driver's license. We conclude the sum total of the evidence is sufficient to support a rational jury's finding beyond a reasonable doubt that appellant exercised actual care, custody, and control of the 237.8 grams of cocaine, and is legally and factually sufficient to support the conviction. See Lane, 151 S.W.3d at 191-92; Watson, 2006 WL 2956272, *7; Evans, 202 S.W.3d at 166. We resolve appellant's issues against her. The trial court's judgment is affirmed.