Opinion
No. 05-01-00904-CR.
Opinion Issued January 22, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the County Court at Law No. 5, Collin County, Texas, Trial Court Cause No. 005-84202-00. AFFIRMED.
Before Justices WHITTINGTON, RICHTER, and FRANCIS.
OPINION
Richard Andrew Walker appeals his conviction for misdemeanor possession of four ounces or less but more than two ounces of marijuana. After finding appellant guilty, the trial judge assessed punishment at 180 days' confinement, probated for 180 days, and a $400 fine. In three points of error, appellant contends the evidence is legally and factually insufficient to support his conviction and his signed jury waiver bears an incorrect date. The facts of this case are known to the parties, and we do not recite them in detail here. We affirm the trial court's judgment. When reviewing challenges to the legal and factual sufficiency of the evidence, we apply well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). To support a conviction for unlawful possession of four ounces or less but more than two ounces of marijuana, the State must prove the accused (i) exercised actual care, custody, control, or management over the contraband; and (ii) knew the matter was contraband. See Tex. Health Safety Code Ann. § 481.121 (Vernon Supp. 2003); Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App. 1988); Porter v. State, 873 S.W.2d 729, 734 (Tex.App.-Dallas 1994, pet. ref'd). In his first point of error, appellant challenges the legal sufficiency of the evidence, claiming the State failed to prove he possessed four ounces or less but more than two ounces of marijuana. During trial, officer Chris Trevino testified he found marijuana in plastic baggies in a compartment on the passenger side of appellant's car. He testified the marijuana weighed 80.3 grams which he estimated to be between three and four ounces. Appellant did not dispute this testimony, nor did he challenge the conversion from grams to ounces. Officer Trevino's testimony was legally sufficient to establish appellant possessed four ounces or less but more than two ounces of marijuana. Accordingly, we overrule appellant's first point of error. In his second point of error, appellant claims the evidence is factually insufficient to support his conviction because the State failed to affirmatively link appellant to the marijuana. We disagree. When the accused is not in exclusive control or possession of the place where the contraband is found, the accused cannot be charged with knowledge and control over the contraband unless there are additional independent facts and circumstances affirmatively linking the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband's existence and that he exercised control over it. Porter, 873 S.W.2d at 732; see Brown v. State, 911 S.W.2d 744, 748 (Tex.Crim.App. 1995). Factors tending to establish an affirmative link include whether: the contraband was in plain view; the accused was the owner or driver of the car in which the contraband was found; the contraband was conveniently accessible to the accused; whether the strong odor of marihuana was present; other contraband was found in the vehicle; and traces of the contraband were found on the accused. Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App. [Panel Op.] 1981); Hall v. State, 2002 WL 1723641, *3 (Tex.App.-Austin 2002, pet filed). In addition, courts consider whether affirmative statements connect the accused to the contraband. Moulden v. State, 576 S.W.2d 817, 820 (Tex.Crim.App. [Panel Op.] 1978). Although appellant claims the evidence is factually insufficient because the evidence did not sufficiently link appellant to the marijuana, we disagree. In this case, officer Trevino testified he stopped appellant late at night. Appellant said the car belonged to him. He admitted he and his passenger, Steve Blevins, had been at a party. Appellant had consumed one beer and one glass of wine. Blevins was drunk and could not drive. Trevino told appellant he smelled "fresh marijuana, unburnt." Appellant denied having anything illegal in the car. When Trevino asked again, appellant hesitated, then indicated he was responsible for the car. According to Trevino, appellant said, "If there is anything, it is mine." Trevino went to the passenger side of the front seat where Blevins was sitting. Upon opening the front passenger door, Trevino saw marijuana in baggies sticking out of a small trash compartment at Blevins's feet. When asked, Blevins said the marijuana was not his and that they had picked it up in Carrollton for some of appellant's friends. The evidence established Trevino smelled the aroma of fresh marijuana when appellant opened his window, appellant owned the car in which the marijuana was discovered, appellant was driving the car, the marijuana was in plain view when Trevino opened the passenger side door, and appellant told Trevino if he found anything in the car, it was appellant's. This evidence affirmatively links appellant to the marijuana in such a manner and to such an extent that a reasonable inference may arise that appellant knew of the marijuana's existence and exercised control over it. See Deshong, 625 S.W.2d at 329; Moulden, 576 S.W.2d at 820. In contrast, appellant testified he owns and operates a funeral home in Commerce. At the time of the incident, Blevins was an employee. He asked Blevins to accompany him to a party in Carrollton because appellant does not see well at night. Blevins left the party to go "clubbing," and when he returned, he was drunk. Appellant was annoyed Blevins was drunk and drove home with Blevins in the passenger seat. Appellant testified he drove slower than usual because he did not see well at night and because Blevins was drunk. He did not disagree with officer Trevino's general description of the traffic stop although he testified he did not say that anything the officer found in the car was his. Rather, he told Trevino it was his car, and he would take responsibility for his car. He did not know Blevins had marijuana with him and testified he did not smell marijuana in the car because his "smeller is kinda' gone from [his] work, and [he doesn't] smell like [he used] to do." He also testified he confronted Blevins several days after his arrest. He told Blevins to go to the police and tell them it was Blevins's marijuana. When Blevins refused, appellant fired him. Although appellant's testimony differed from Trevino's, the trial judge was the factfinder in this case. As such, the judge could accept or reject any or all of the evidence presented by either side. Here, the trial judge chose to believe Trevino's version of events. We cannot substitute our judgment for that of the factfinder. See Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 133. Because we cannot conclude the trial judge's decision was so against the great weight of the evidence as to be clearly wrong and manifestly unjust, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's second point. In his final point of error, appellant contends his conviction must be reversed because the preprinted jury waiver form was dated 19 March 2000 instead of 19 March 2001. Texas Rule of Appellate Procedure 38.1 provides that a brief to this Court shall contain, among other things, a clear and concise argument for the contentions made, with appropriate citation to legal authority. Tex. R. App. P. 38.1(h). Appellant does not cite any authority in support of his argument. He offers no standard of review nor does he offer legal analysis of the purported error or the harm, if any, caused by the error. Failure to cite authority in support of a point of error presents nothing for this Court to review. McDuff v. State, 939 S.W.2d 607, 621 (Tex.Crim.App. 1997) (issue is inadequately briefed when appellant fails to present authority in support of argument); State v. Gonzalez, 855 S.W.2d 692, 697 (Tex.Crim.App. 1993). Because appellant failed to cite any authority in support of his argument, we conclude he failed to present his complaint for our review. We overrule appellant's third point of error. We affirm the trial court's judgment.