No. 01-02-00486-CR.
Opinion issued October 30, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 338th District Court, Harris County, Texas, Trial Court Cause No. 871844.
Panel consists of Chief Justice RADACK and Justices KEYES and HIGLEY.
SHERRY RADACK, Chief Justice.
Appellant, Reginald Elon Sweed, was charged with possession of a controlled substance — codeine. Appellant pleaded not guilty to the offense. The jury found appellant guilty as charged, and the trial court assessed his punishment at 10 years' confinement and a $1,000 fine. In two points of error, appellant challenges the legal and factual sufficiency of the evidence to sustain his conviction. We affirm.
The weight of the codeine, including adulterants and/or dilutants [soda], was approximately 1,000 grams.
BACKGROUND
While Houston Police Department undercover narcotics officer T. Guinnshaver was conducting surveillance on a "target apartment" suspected of harboring narcotics dealers, she saw a car pull up and let appellant out. Appellant entered the target apartment, carrying an empty, or almost empty, Big Red soda bottle. A few minutes later, appellant left the target apartment with the soda bottle, which then appeared full. As appellant returned to the car, he attempted to conceal the soda bottle from a uniformed officer who happened to be nearby on an unrelated matter. Appellant then got back into the front passenger seat of the car driven by Anthony Long. Suspecting that she had just seen appellant in possession of a controlled substance, Officer Guinnshaver notified surveillance and patrol officers. Officer Guinnshaver transmitted the car's license plate number and a description of appellant and the bottle he was carrying. HPD Patrol Officers Guiffre and Richard responded, running the license plate number and initiating a traffic stop based on Long's outstanding warrants. Appellant was sitting in the front passenger seat, and a Big Red soda bottle was found at his feet on the floorboard. Officer Guiffre picked up the bottle and noticed it smelled like "cough syrup." The contents of the Big Red soda bottle appeared darker in color than that of a Big Red soda. Both officers also noticed a stain on the front of appellant's shirt that appeared consistent with the color of the bottle's contents. The bottle, in fact, contained codeine. DISCUSSION
In two points of error, appellant challenges the legal and factual sufficiency of the evidence to support his conviction for possession of a controlled substance. Legal Sufficiency
When both factual and legal sufficiency points of error are raised, we must first examine the legal sufficiency of the evidence. Roberson v. State, 80 S.W.3d 730, 734 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). When evaluating the legal sufficiency of evidence to support a conviction, we view the evidence in the light most favorable to the jury's verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003) (en banc); Roberson, 80 S.W.3d at 734. Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the jury. Roberson, 80 S.W.3d at 734. Appellant was convicted of possession of a controlled substance. To establish the unlawful possession of a controlled substance, the State must prove that appellant: (1) exercised care, custody, control, or management over the contraband, and (2) knew that what he possessed was contraband. Tex. Health Safety Code Ann. §§ 481.002(38); 481.115(a), (f) (Vernon 2003); Harmond v. State, 960 S.W.2d 404, 406 (Tex.App.-Houston [1st Dist.] 1998, no pet.). The State may prove knowing possession by presenting evidence that affirmatively links the defendant to the controlled substance. Valencia v. State, 51 S.W.3d 418, 423 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd). Although the State need not prove that the accused exercised exclusive control over the substance, the mere presence of the accused at a place where the contraband is found is not enough to establish possession. Cedano v. State, 24 S.W.3d 406, 411(Tex.App.-Houston [1st Dist.] 2000, no pet.). Instead, when the accused does not have exclusive control over the substance, the State must show additional affirmative links between the accused and the contraband. Id. An affirmative link generates a reasonable inference that the accused knew of the contraband's existence and exercised control over it. Roberson, 80 S.W.3d at 735. Some relevant factors that may affirmatively link an accused to the contraband include whether: (1) the contraband was in plain view; (2) the accused had convenient access to the contraband; (3) the accused owned the place where the contraband was found; (4) the accused drove to the place where the contraband was found; (5) the contraband was found on the side of the car seat where the accused sat; (6) the place where the contraband was found was enclosed; (7) the odor of the contraband was present; (8) paraphernalia to use the contraband was in view of or was found on the accused; (9) conduct by the accused indicated a consciousness of guilt; (10) the accused had a special connection to the contraband; (11) the occupants of the vehicle gave conflicting statements about relevant matters; (12) the physical condition of the accused indicated the recent consumption of the contraband found in the car; and (13) affirmative statements connect the accused to the contraband. Gilbert v. State, 874 S.W.2d 290, 298 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). The number of linking factors present is not as important as the "logical force" they create to prove the crime was committed by the accused. Roberson, 80 S.W.3d at 735. In this case, the State presented the following evidence: (1) appellant was seen carrying an empty, or almost empty, Big Red soda bottle into an apartment under surveillance for narcotics transactions; (2) appellant was seen leaving the apartment a few minutes later, carrying a full Big Red soda bottle; (3) appellant attempted to conceal the soda bottle from a nearby uniformed officer; (4) Officer Guiffre found the Big Red soda bottle on the floorboard at appellant's feet on the passenger side of the car where appellant was seated during a traffic stop initiated "in close proximity to the apartment"; (5) Officer Guiffre noticed that the contents of the bottle smelled like "cough syrup"; (6) both officers noticed a stain on the front of appellant's shirt consistent with the color of the bottle's contents; and (7) the substance in the bottle was identified as codeine. Taking the evidence in the light most favorable to the verdict, a rational fact finder could have found that appellant exercised care, custody, control or management over the contraband and that appellant knew the substance possessed was contraband. See Tex. Health Safety Code Ann. § 481.115(a), (d). We conclude that the evidence was legally sufficient. We overrule appellant's first point of error. Factual Sufficiency
In reviewing factual sufficiency, we examine all the evidence neutrally and ask whether proof of guilt is so obviously weak as to undermine confidence in the jury's determination or so greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex.Crim.App. 2003). When conducting our analysis, if there is probative evidence supporting the verdict, we must avoid substituting our judgment for that of the trier of fact, even when we disagree with the determination. King v. State, 29 S.W.3d 556, 563 (Tex.Crim.App. 2000) (en banc). The trier of fact is the sole judge of the weight and credibility of the witness's testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000) (en banc). Here, the State presented testimony from Officer Guinnshaver identifying appellant as the individual carrying the soda bottle in and out of the target apartment. Officers Guiffre and Richard identified appellant as the individual sitting in the front passenger seat of the car with the soda bottle at his feet. HPD chemist Connie Dieringer testified that the substance in the bottle was identified as codeine. Appellant argues that the testimony of the arresting officers during the trial was contradictory and inconsistent, and that it failed to prove appellant possessed a controlled substance. Specifically, appellant contends that the testimony from Officer Guinnshaver was "muddied" when she explained that she "mixed-up" her description of appellant's clothing with that of Long's clothing when writing the offense report. In court, however, Officer Guinnshaver identified appellant as the individual carrying the soda bottle in and out of the target apartment. Moreover, appellant admits that "the mix-up was clarified by the officer through her in-court identification of [a]ppellant." Appellant also complains that the testimony of the patrol officers was "full of doubts and inconsistencies since neither officer wrote an offense report on the case, neither could recall the facts of the actual case." In court, however, Officers Guiffre and Richard identified appellant as the individual sitting in the front passenger seat of the car, with the soda bottle at his feet. Moreover, appellant admits that, "[g]iven such testimony, the State proved through admittedly sloppy police work, the police were able to eventually link a bottle of codeine to [a]ppellant." (emphasis added). Mindful that the jury is charged with the responsibility of determining witness credibility and resolving conflicts in the evidence, we are to reverse only if, upon viewing all of the evidence and taking into account all reasonable inferences, we find the verdict is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust or proof of guilt is so obviously weak as to undermine confidence in the jury's determination. Harmond, 960 S.W.2d at 407; see Zuliani, 97 S.W.3d at 593-94. In this case, the jury weighed the credibility of the witnesses and judged the evidence as it saw fit. See id. Viewing the evidence neutrally, we conclude that the jury decided, in this case, to believe the arresting officers' testimony. Appellant has failed to show that the verdict is so contrary to the overwhelming weight of evidence as to be manifestly wrong or unjust or that proof of guilt is so obviously weak as to undermine confidence in the jury's determination. Accordingly, we overrule appellant's second point of error. CONCLUSION
We affirm the judgment of the trial court.