In The
Court of Appeals
For The
First District of Texas
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NOS. 01-02-00140-CR
01-02-00141-CR
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DEWAYNE LEE WALDRUP, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause Nos. 882444, 882445
MEMORANDUM OPINIONA jury found appellant, Dewayne Lee Waldrup, guilty of possession of a controlled substance, namely (1) cocaine weighing more than 4 grams and less than 200 grams, in trial court cause number 882444, and (2) a compound containing not more than 200 milligrams of codeine weighing more than 400 grams in aggregate weight, in trial court cause number 882445. The jury assessed punishment at 5 years’ confinement in cause no. 882444, and 15 years’ confinement in cause number 882445. In his first and second points of error, appellant challenges the legal sufficiency of the evidence to support his convictions in cause numbers 882444 and 882445, respectively. In his third point of error, appellant contends that if the evidence was sufficient in cause number 882445 under a “hypothetically correct” charge, then there was harmful charge error. In his fourth point of error, appellant contends that the trial court erred in stacking the sentences. We modify, and as modified, affirm.
Background
Undercover narcotics officers of the Houston Police Department, Darren Fuller and Carl Smith, were working in a neighborhood known for having a high incidence of narcotics transactions when they observed a blue Intrepid stop, and a man run up and get into the passenger side of the car. After the driver, appellant, and the passenger turned their bodies toward the console, they looked down and made some questionable gestures. Officer Fuller thought that he was observing an illegal narcotics transaction. The Intrepid drove away, and Officers Fuller and Smith followed in an unmarked car. Another Houston Police Officer, James Gratz, also began to follow the Intrepid in a marked car. All the officers then observed the Intrepid drive through an intersection without stopping at a stop sign.
Based on this violation, Officer Gratz stopped the Intrepid, and the other officers stopped behind Gratz’s vehicle. Officers Smith and Gratz testified that appellant made several movements. Upon request, appellant got out of the Intrepid and accompanied Officer Gratz to the rear of the car. Officer Fuller then observed the passenger pick up a medicine bottle from the floorboard and try to push it into the glove compartment. Upon request, the passenger got out of the Intrepid, and Officer Smith retrieved the bottle that appeared to contain crack cocaine from the glove compartment. When the passenger left the Intrepid, a bottle with a Big Red label fell to the floorboard.
Officer Fuller then conducted a more extensive search of the Intrepid. He found another medicine bottle, with its label scratched off, lying on the driver’s side floorboard. Officer Fuller opened up the bottle, smelled its contents, and concluded that it contained codeine. He also testified that he smelled crack cocaine in the vehicle and subsequently found a metal box under the driver’s seat containing crack cocaine, (State’s Exhibit 3), and a baby bottle full of codeine, (State’s Exhibit 2).
Appellant was arrested, and Officer Gratz found $1,830.00 in his right front pants pocket and $85 in the center console of the Intrepid. At police headquarters, a narcotic detector dog alerted to the currency.
The passenger testified that he pled guilty to possession of the cocaine and codeine that he was seen handling, and that he did not put any narcotics on the driver’s side floorboard or under the driver’s seat. The passenger also testified that appellant did not know about the narcotics in the passenger’s possession. The passenger further testified that the police recovered the $85.00 from his pocket, not from the center console.
A chemist with the Houston Police Department Crime Lab, Rick Viser, testified that he had conducted a spot test on the medicine bottle found under appellant’s seat and the baby bottle and that both contained codeine. The chemist testified that the mixture in the medicine bottle weighed 148 grams, and the mixture in the baby bottle weighed 297.5 grams. A spot test conducted on State’s Exhibit 3 revealed 10 grams of crack cocaine.
The Intrepid driven by appellant was rented from Alamo Rent-a-Car. An administrative clerk for Alamo Rent-a-Car, Barbara Slaughter, testified that cars returned to Alamo are cleaned and vacuumed, including under the seats, before they are rented again. She said that no items were found in the Intrepid before its rental to appellant’s friend.
Legal Sufficiency
Standard of Review
In his first and second points of error, appellant challenges the legal sufficiency of the evidence to support his convictions in the two causes. We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).
Appellant was charged with possession of a controlled substance, namely cocaine, weighing more than 4 grams and less than 200 grams by aggregated weight, in cause number 882444, and with possession of a controlled substance, namely a compound containing not more than 200 milligrams of codeine, weighing more than 400 grams in aggregate weight, in cause number 882445. Appellant argues that the evidence was insufficient to prove beyond a reasonable doubt that he knowingly or intentionally possessed the cocaine and the codeine.
To convict the accused of unlawful possession of a controlled substance, the State must prove two elements: (1) that the accused exercised care, custody, control, and management over the contraband; and (2) that the accused knew the matter was contraband. Gilbert v. State, 874 S.W.2d 290, 297 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d); see also Tex. Penal Code §1.97(39) (Vernon 1994). Mere presence in a location where narcotics are possessed does not necessarily establish possession; rather, evidence of knowledge of the contraband and control over the contraband must affirmatively link the accused to the contraband. Id.
We have held that the following circumstances are evidence of affirmative links: (1) presence when the search was executed, (2) contraband in plain view, (3) proximity to and accessibility of the contraband, (4) accused under the influence of contraband when arrested, (5) accused’s possession of other contraband when arrested, (6) accused’s incriminating statements when arrested, (7) attempted flight, (8) furtive gestures, (9) odor of the contraband, (10) presence of other contraband, (11) accused’s right to possession of the place where contraband was found, and (12) narcotics found in an enclosed place. State v. Derrow, 981 S.W.2d 776, 778 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d).
The number of affirmative links present is not as important as the logical force they have in establishing the elements of the offense. Corpus v. State, 30 S.W.3d 35, 37-38 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). We view the totality of the facts and circumstances. Sosa v. State, 845 S.W.2d 479, 483-84 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d).
The evidence shows that appellant had multiple affirmative links to the cocaine and the codeine in the medicine bottle and the baby bottle. First, appellant was present when the search was executed. Appellant was the driver of the vehicle that was searched. Second, appellant was in close proximity to the cocaine and the codeine which were found under the driver’s seat. Third, other contraband, codeine and cocaine, respectively, were also found on the driver’s side of the Intrepid. Fourth, Officer Smith testified that appellant made movements toward the floorboard and that the passenger did not make any movements that would suggest that he was putting something in the driver’s side. Officer Gratz gave similar testimony. Officers Fuller and Smith testified that as soon as the passenger got into the Intrepid, appellant and the passenger made movements toward the center console that aroused the officers’ suspicion. Fifth, while he was searching the driver’s side, Officer Fuller smelled the odor of crack cocaine. Sixth, the jury could have concluded that appellant had a right to possess the Intrepid where the contraband was found because his friend rented it and because he was driving it. Lastly, the contraband was found in an enclosed place, i.e., inside the Intrepid.
Moreover, a narcotic detection dog alerted to the currency found in appellant’s pocket and in the Intrepid. The rental car representative testified that there were no items under the driver’s seat before the Intrepid was rented to appellant’s friend. And, the passenger, who pled guilty to possession of controlled substance in connection with this transaction, stipulated that he and appellant committed the offenses of possession of cocaine and codeine.
Viewing the evidence in the light most favorable to the verdict, a rational jury could have found, beyond a reasonable doubt, that appellant knowingly and intentionally possessed more than four grams and less than 200 grams of cocaine and more than 400 grams of codeine.
We overrule appellant’s first and second points of error.
Because we hold that the evidence was legally sufficient to support the jury’s finding that appellant possessed over 400 grams of codeine, we do not address his third point of error.
Stacking Sentences
In his fourth point of error, appellant contends that the trial court erred in cumulating or stacking the sentences. After the jury assessed punishment in both cause numbers, the trial court ordered that the second sentence run only after the first sentence is completed.
Section 3.03(a) of the Penal Code provides:
When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, a sentence for each offense for which he has been found guilty shall be pronounced. Except as provided by Subsection (b), the sentences shall run concurrently.
Tex. Penal Code Ann. § 3.03(a) (Vernon Supp. 2002). The Penal Code defines “criminal episode” as (1) offenses committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan, or (2) offenses that are the repeated commissions of the same or similar offenses. Tex. Penal Code Ann. § 3.01 (Vernon 1994).
Appellant’s convictions for possession of cocaine and possession of codeine were offenses that arose out of the same criminal episode because he possessed the cocaine and codeine at the same time. He was prosecuted for both offenses in the same criminal action. None of the exceptions in Subsection (b) apply to this case. Therefore, appellant’s sentences shall run concurrently.
We sustain appellant’s fourth point of error and order that the judgment in cause number 882444 be reformed to delete the cumulation order.
Conclusion
We affirm the trial court’s judgment in cause number 882445. We modify the trial court’s judgment in cause number 882444 to delete the cumulation order. As modified, we affirm the judgment in cause number 882444.
Adele Hedges
Justice
Panel consists of Justices Hedges, Jennings, and Alcala.
Do not publish. Tex. R. App. P. 47.2(b).