Opinion
Nos. 05-03-01713-CR, 05-03-01714-CR
Opinion filed August 19, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-53171-Pr F02-53172-PR. Affirmed.
Before Justices MOSELEY, FITZGERALD, and LANG.
OPINION
On a plea of not guilty, a jury convicted Levon Milton Williams of unlawful possession with intent to deliver a controlled substance, cocaine, in an amount of four grams or more, but less than 200 grams, in trial court cause number F02-53171-PR, and unlawful possession of a controlled substance, 3, 4 methylenedioxy methamphetamine (ecstasy), in an amount of one gram or more, but less than four grams, in trial court cause number F02-53172-PR. Appellant was sentenced to thirty years' confinement for each offense. Arguing both cases together, appellant contends in two issues that the evidence is legally and factually insufficient to support his convictions and, in a third issue, that the trial court erred in overruling his objection to the State's improper closing argument, which interjected a statement of personal opinion. For the reasons below, we resolve appellant's issues against him and affirm the trial court's judgments.
I. FACTUAL AND PROCEDURAL BACKGROUND
At trial, Michael Morgan, a Dallas police office, testified that, on July 22, 2002, at about 8:20 p.m., he and Victor Cartagena, police officer in training, noticed a Dodge Durango SUV without a front license tag, which is a traffic violation. The officers were in uniform and in a marked police car. The SUV pulled into a service station, and officers pulled in behind the SUV. Morgan testified that he did not see any quick or furtive movements by the passenger towards the driver's side. The passenger and appellant, the driver, got out of the SUV. The passenger went into the service station store, and appellant stood by the SUV. Morgan went to the passenger's side and saw a green bag, which looked like it had something in it, on the floorboard of the driver's side. According to Morgan, appellant "definitely" appeared to be nervous when Morgan was looking at the green bag. Appellant showed the officers a rental agreement for the SUV and a Texas identification card, but did not produce a Texas driver's license or proof of insurance. Morgan warned appellant that he could be jailed for three traffic violations. Appellant then ran away, but Morgan and Cartagena apprehended appellant a short time later. In the green bag were a "microtech" scale, a clear plastic baggie containing what was field-tested as a rock of crack cocaine, and another clear plastic baggie containing several smaller crack cocaine rocks, which, according to Morgan, were usually for individual sale. Further search revealed, between the green bag and the driver's seat, a blue plastic baggie containing eight pills, later identified as "ecstasy." Also, the officers found, in the cup holder in the center console, a large rock, believed to be crack cocaine, that had burn marks on it. Also in the center console was a cigar box with black residue, possibly burn material. A search of appellant revealed $888 in cash. Donald J. Cooper, Jr., a police officer who responded to Morgan's call for back-up, testified that he arrived while Morgan and Cartagena were apprehending appellant and he saw the green bag on the driver's floorboard. He did not see anyone around the SUV. A forensic chemist testified that the large rock, identified as from the green bag, had a total aggregate weight of 24.2 grams, including cocaine and adulterants or dilutants. The single rock found in the console had an aggregate weight of 2.3 grams, including cocaine and adulterants or dilutants. The chemist also testified that the pills contained 2.1 grams aggregate weight, including 3, 4 methylenedioxy methamphetamine and adulterants or dilutants. Anthony Gipson, a police expert on drug trafficking, testified that 26.5 grams of crack cocaine would "break out" to 265 individual uses with a value of $2,650. Gerald Harding testified for the defense that he was the passenger in the SUV. According to Harding, on July 22, 2002, he saw appellant in the neighborhood selling clothes from his car and asked appellant to take him to the store. Unbeknownst to appellant, Harding had the drugs and paraphernalia on his person. Harding saw the police car. Harding and appellant got out of the SUV and started walking toward the service station store. Harding testified that, when he got out of the car, he was scared and left his possessions in the car. The police officers got out of their car and hailed appellant, who returned to the SUV. Appellant did not know about the drugs, and, even though Harding came out of the store and pumped gas while the police were there, he left without saying anything about the drugs or being questioned by anyone. Also introduced was Harding's previous written statement, in which he stated that, while he was still in the SUV, he decided to hide the drugs in the vehicle. He tried to shove them under the driver's seat, but they "kind of stuck out from under the driver's seat area." (Out of the presence of the jury, Harding was arrested for possession of cocaine.) Gavis Moseley testified for the defense that she and appellant were partners in a business selling "hip hop" clothing. On July 22, 2002, Moseley had rented the SUV, and she and appellant had made their first purchase of clothes. The car lease agreement was introduced into evidence, showing appellant as an additional driver. However, according to Moseley, they had not sold any clothes, and this incident happened after appellant had taken Moseley home and was returning to his home. The two jury charges included the law of parties. The jury returned guilty verdicts. Appellant pled true to two enhancement paragraphs in each indictment, and the trial court pronounced the sentences. Appellant timely filed his notices of appeal.II. SUFFICIENCY OF THE EVIDENCE
In his first and second issues, appellant contends the evidence is legally and factually insufficient to support his convictions. Specifically, appellant contends the evidence was insufficient to affirmatively link him to possession of any of the drugs and Harding admitted the drugs were his, not appellant's.A. Applicable Law and Standard of Review
When reviewing the legal sufficiency of the evidence to support a criminal conviction, the critical inquiry is whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Chambers v. State, 866 S.W.2d 9, 15 (Tex.Crim.App. 1993). The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995). We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). In conducting a factual sufficiency review, we determine whether, considering all of the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence may be factually insufficient in two ways. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, weighing the evidence both supporting and contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id. Thus, even if the evidence of guilt predominates in favor of conviction, it may still be insufficient to prove the elements of the offense beyond a reasonable doubt. Id.; see Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000). We may not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996). Although there may be some conflicting testimony, reconciling those conflicts is within the exclusive province of the jury. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). A person commits the first degree felony offense of possession with intent to deliver a controlled substance, cocaine, if the person knowingly possesses with intent to deliver cocaine in an amount by aggregate weight, including adulterants or dilutants, of four grams or more but less than 200 grams. Tex. Health Safety Code Ann. § 481.102(3)(D) (Vernon Supp. 2004-05), § 481.112(d) (Vernon 2003). A person commits the third degree felony offense of possession of "ecstasy" if the person knowingly or intentionally possesses the controlled substance in an amount, by aggregate weight, including adulterants or dilutants, of one gram or more, but less than four grams. Id. § 481.103(a)(1) (Vernon Supp. 2004-05), § 481.116(c) (Vernon 2003). To prove unlawful possession of a controlled substance, the State must establish the defendant (1) exercised care, control, and management over the substance, and that (2) he knew the substance he possessed was contraband. Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App. 1988). The control need not be exclusive, but can be jointly exercised with one or more persons. Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App. 1986). However, the evidence must affirmatively link the defendant to the contraband if the defendant does not exclusively control or possess the place where the substance is found. Id.; Porter v. State, 873 S.W.2d 729, 732 (Tex.App.-Dallas 1994, pet. ref'd). Because each case is fact-specific, there is no set formula of facts to affirmatively link the defendant to the contraband. Porter, 873 S.W.2d at 732. However, we have set forth a nonexclusive list of possible affirmative links, including: (1) whether the defendant was present when the drugs were found; (2) whether the drugs were in plain view; (3) the defendant's proximity to and the accessibility of the drugs; (4) whether the defendant was under the influence of drugs when arrested; (5) whether the defendant possessed other contraband; (6) whether the defendant made any incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of drugs; (10) whether the defendant owned or had the right to possess the place where the drugs were found; (11) whether the place the drugs were found was enclosed; (12) the amount of drugs found; (13) whether the defendant possessed weapons; and (14) whether the defendant possessed a large amount of cash. See id. at 732-33. The key is the logical force of the factors which, alone or in combination, tend to affirmatively link the defendant to the drugs. Gilbert v. State, 874 S.W.2d 290, 298 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd).B. Discussion
Appellant argues that the evidence is insufficient to link him affirmatively to possession of any of the drugs. Specifically, he argues that, because some of the drugs were in bags, their existence was not immediately apparent. However, a large crack cocaine rock was found in the console. Appellant also argues that he fled only after the police informed him he might be arrested for traffic violations and that the amount of money could be explained by the sale of clothing. However, Morgan testified that appellant appeared nervous when he, Morgan, was looking at the green bag on the floorboard on the driver's side. Moreover, the police expert testified that the quantity of drugs and the scales were evidence of sales, and thus the money found on appellant could have been the result of drug sales. Lastly, Moseley testified she and appellant had not sold any clothing. It was within the jury's province to accept or reject any part of appellant's or Harding's testimony. See Goodman, 66 S.W.3d at 287. Having considered the evidence in the record (including the above evidence) in the light most favorable to the verdicts, we conclude a rational trier of fact could have found the essential elements of the offenses, including possession, beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Mason, 905 S.W.2d at 574. Viewing all the evidence in a neutral light, we conclude the jury was rationally justified in finding guilt beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484-85. We need not further detail the rest of the evidence. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). We conclude the evidence is legally and factually sufficient to support the convictions. We resolve appellant's issues one and two against him.III. IMPROPER ARGUMENT
In his third argument, appellant argues that the trial court erred in overruling appellant's objection to the State's improper argument.A. Applicable Law and Standard of Review
The purpose of closing argument is to facilitate the jury's proper analysis of the evidence presented at trial so that it may arrive at a just and reasonable conclusion based on the evidence alone and not on any fact not admitted into evidence. Campbell v. State, 610 S.W.2d 754, 756 (Tex.Crim.App. [Panel Op.] 1980). Proper jury argument consists of: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to the argument of opposing counsel; and (4) a plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94-95 (Tex.Crim.App. 1992). A prosecutor may not interject personal opinion in statements to the jury or imply a special expertise about a contested factual matter. See Johnson v. State, 698 S.W.2d 154, 167 (Tex.Crim.App. 1985); Jackson v. State, 726 S.W.2d 217, 220 (Tex.App.-Dallas 1987, pet. ref'd). The rationale behind this prohibition is that such a statement may convey to the jury the idea that the prosecutor has a basis for such an opinion in addition to the evidence presented at trial. See Wyatt v. State, 566 S.W.2d 597, 604 (Tex.Crim.App. 1978). "The power and force of the government tend to impart an implicit stamp of believability to what the prosecutor says." Hall v. United States, 419 F.2d 582, 583-84 (5th Cir. 1969).B. Discussion
Appellant acknowledges that evidence was introduced that, if he had committed either of the two charged offenses, he did so either individually or as a party. The jury charges included both forms of criminal responsibility. The State made the following statement in closing argument:Judge Banner goes on to instruct you on the law of parties. And again, if you are convinced beyond a reasonable doubt, then there is no question in my mind that these two guys were working together than night.Appellant objected that the prosecutor was stating his personal belief in the matter. The trial court overruled the objection. Assuming without deciding that the prosecutor's statement was improper, we consider whether this argument constitutes reversible error. Erroneous rulings regarding improper comments during jury argument encompass non-constitutional "other error" within the purview of rule of appellate procedure 44.2(b). Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998). Under rule 44.2(b), we examine error in relation to the entire proceeding and disregard error that "does not affect substantial rights." Tex.R.App.P. 44.2(b). In analyzing the harm associated with improper jury argument and in determining whether reversal is required, we consider the following factors: (1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Mosley, 983 S.W.2d at 259; see Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App. 2000) (reiterating Mosley factors for determining harm under rule 44.2(b) standard in improper argument cases). The record shows that, shortly before making the comment above, the prosecutor, discussing the jury charges as to individual or joint possession, said, without objection, "I am going to tell you right now there is no question in my mind on July 22, 2002, Gerald Harding had cocaine on him." These comments were made in the context of arguing the elements of the offenses and the standard of proof. They amount to "figures of speech." They were not connected to the prosecutor's personal belief regarding a contested factual matter. Cf. Johnson, 698 S.W.2d at 167 (in capital murder case, prosecutor's statement concerned belief in provocation). We cannot conclude that these statements were prejudicial in light of their context. Although there were no cautionary instructions, the comments were not repeated after the objection. The evidence supporting the conviction was strong. Accordingly, we conclude that any error in the prosecutor's comment did not affect appellant's substantial rights, and thus any error was harmless. We resolve appellant's third issue against him.