Opinion issued October 9, 2003
In The
Court of Appeals
For The
First District of Texas
NOS. 01-02-01261-CR
01-02-01262-CR
ELIJAH MOE GIBSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Cause Nos. 890898, 890897
MEMORANDUM OPINION
The trial court found appellant, Elijah Moe Gibson, guilty of possession with intent to deliver cocaine weighing between four and 200 grams and possession of marihuana weighing between four ounces and five pounds. The trial court then assessed punishment at confinement for 12 years and one year, respectively. In two points of error, appellant challenges the legal and factual sufficiency of the evidence to support his convictions in both causes. We affirm.
Background
On October 14, 2001, at approximately 9:45 p.m., Texas Department of Public Safety Trooper Orlando Jacobs initiated a traffic stop of a car, because he noticed an inoperable license plate lamp and that neither of the two occupants in the car was wearing his seatbelt. After Jacobs stopped the car, he approached the driver’s side window where he smelled a strong odor of alcohol coming from the driver, John G. Curry. Jacobs also noticed that Curry had bloodshot eyes and slurred speech. Jacobs asked Curry to get out of the car. When Jacobs asked Curry how much he had had to drink, Curry replied that he did not know, but he just had a few beers. Curry told Jacobs he and his passenger were visiting in Houston, and he showed Jacobs a Mississippi driver’s license. Jacobs then performed field sobriety tests to determine whether Curry was able to drive. While Jacobs performed these tests on Curry, Jacobs asked appellant, the passenger, to sit in the back seat of Jacobs’s patrol car for safety reasons. After Curry failed the sobriety tests, Jacobs arrested Curry for driving while intoxicated and placed him in the back of Jacobs’s patrol car.
Trooper Jacobs then questioned appellant to determine if he could drive the car. Jacobs smelled alcohol on appellant and noticed that appellant’s eyes were bloodshot. Appellant, who also had a Mississippi driver’s license, failed the field sobriety tests and did not appear capable of driving.
When Trooper Jacobs questioned Curry and appellant separately about how long and where they had stayed in Houston, the two men gave conflicting answers. Jacobs asked appellant whether the car contained any alcohol. Instead of answering, appellant looked down and looked away. Jacobs asked again whether the car contained alcohol or contraband and appellant replied, “Why?” When Jacobs asked for consent to search the car, appellant refused. Jacobs then explained to appellant that Jacobs would ask for a canine unit to come out and perform a search. Appellant still refused to consent to the search. When the canine unit arrived, the dog alerted the troopers to the driver’s side door and to the rear passenger side. Trooper Jacobs and the dog handler searched the car and found a garment bag in the rear seat containing 386.86 grams of marihuana and 70.97 grams of cocaine, wrapped in individual baggies. SUFFICIENCY
In two points of error, appellant contends that the evidence was legally and factually insufficient to affirmatively link him to the marihuana and cocaine found in
the garment bag in his car.
Standards of Review
When evaluating the legal sufficiency of evidence, an appellate court must 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). When reviewing the factual sufficiency of the evidence, an appellate court will set aside a verdict if, after viewing all of the evidence, both for and against the verdict: (1) the evidence is so weak as to be clearly wrong and manifestly unjust, or (2) if the finding, although adequate if taken alone, is against the great weight and preponderance of the available evidence. Id. at 102. We may not substitute our judgment for that of the fact finder, and we may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Cedano v. State, 24 S.W.3d 406, 411–12 (Tex. App.— Houston [1st Dist.] 2000, no pet.).
Affirmative Links to Cocaine and Marihuana
To establish the unlawful possession of a controlled substance, the State must prove that a defendant: (1) exercised care, custody, control, or management over the contraband and (2) knew that what he possessed was contraband. Tex. Health & Safety Code Ann. § 481.112(a) (Vernon Supp. 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, 24 S.W.3d at 411. 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 v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d.).
Some relevant factors which may affirmatively link an accused to contraband include whether the: (1) contraband was in plain view; (2) accused had convenient access to the contraband; (3) accused owned the place where the contraband was found; (4) accused drove the vehicle where the contraband was found; (5) contraband was found on the side of the car seat where the accused sat; (6) place where the contraband was found was enclosed; (7) odor of the contraband was present; (8) paraphernalia to use the contraband was in view of or found on the accused; (9) conduct by the accused indicated a consciousness of guilt; (10) accused had a special relationship with the contraband; (11) occupants of the vehicle gave conflicting statements about relevant matters; (12) physical condition of the accused indicated 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. Roberson, 80 S.W.3d at 735.
In this case, the State presented the following circumstantial evidence: (1) the appellant, despite being seated in the passenger seat, owned the car where Trooper Jacobs found the cocaine and marihuana; (2) appellant had access to the garment bag where Jacobs found cocaine and marihuana; (3) appellant admitted ownership of the garment bag in which the contraband was found; (4) Jacobs found the contraband in an enclosed area—in appellant’s car; (5) appellant’s conduct indicated a consciousness of guilt when he refused permission to search and then asked Jacobs, “Why?”; (6) appellant and Curry both gave conflicting statements to Jacobs; and (7) the amount of narcotics in the garment bag, 70.97 grams of cocaine and 386.86 grams of marihuana, constituted a large enough quantity for appellant to be aware of their presence.
The logical force of these facts, when taken together, affirmatively link appellant to the contraband found in the garment bag. Viewing the evidence in the light most favorable to the verdict, we hold that the evidence was sufficient to enable a rational trier of fact to conclude that appellant exercised care, custody, control, or management over the cocaine and marihuana found in the garment bag, and that appellant knew that he possessed the narcotics. The evidence was legally sufficient to affirmatively link appellant to the marihuana and cocaine. We overrule point of error one.
Appellant argues that Trooper Jacobs’s testimony was unreliable. Appellant points out that Jacobs failed to include in his offense report the critical fact that appellant admitted the garment bag belonged to him and a description of the results of the field sobriety test which lead him to conclude that appellant was intoxicated. However, the fact finder is the sole judge of the witness’s credibility and may accept or reject any or all of the witness’s testimony. Cedano, 24 S.W.3d at 410. Appellant presented no evidence or credible theory that contradicted Jacobs’s testimony. The trial court, as the sole fact finder, was free to believe or disbelieve all or part of the testimony given. Dewberry v. State, 4 S.W.3d 735, 747 (Tex. Crim. App. 1999). When viewed in a neutral light, the evidence in the record does not demonstrate that the proof of appellant’s guilt was so weak as to undermine our confidence in the fact finder’s determinations that appellant exercised care, custody, control, or management over the cocaine and marihuana and appellant knew that what he possessed was contraband. Nor do we find that contrary proof outweighs proof of appellant’s guilt.
We hold that the evidence was factually sufficient to affirmatively link appellant to the marihuana and cocaine. Accordingly, we overrule appellant’s second point of error.
Conclusion
We affirm the judgments of the trial court.
George C. Hanks, Jr.
Justice
Panel consists of Justices Taft, Jennings, and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).