Opinion issued May 20, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-01217-CR
MARSHALL ALEXANDER THOMPSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Cause No. 897099
MEMORANDUM OPINION
Appellant, Marshall Alexander Thompson, pleaded not guilty to the felony offense of possession of a controlled substance, namely cocaine, weighing less than one gram by aggregate weight including adulterants and dilutants. A jury found appellant guilty, and the trial court assessed punishment at 14 months’ confinement in state jail. In three issues, appellant contends that the evidence is legally and factually insufficient to sustain his conviction and that the trial court erred by refusing to allow a defense witness to testify that a codefendant admitted ownership of the cocaine. We affirm.
Background
In response to complaints regarding illegal drug activity, Metropolitan Transit Authority (“Metro”) Police Officers Swainson, Ford, and Jefferson, were conducting an undercover surveillance operation on a Metro bus-stop shelter on December 18, 2001. The shelter was located at 5500 Martin Luther King Boulevard in Houston, Harris County, Texas, and the officers positioned themselves in a parking lot approximately two to three car-lengths away from the shelter. Using binoculars, the officers observed two men in the shelter passing a marijuana cigar between themselves. Shortly thereafter, an Oldsmobile sedan pulled up alongside the bus shelter. Two men were seated in the front seat of the sedan and two women and one man were seated in the back seat. The officers saw the two women leave the back seat of the sedan, interact with the two men in the shelter, and then return to the back seat of the sedan. The officers then saw the two men in the front seat of the sedan pass a marijuana cigar back and forth.
The officers detained the two men in the bus-stop shelter and approached the sedan. Officer Swainson saw appellant sitting in the front passenger seat. Appellant attempted to get out of the sedan, but Swainson ordered him back inside. When the officers subsequently ordered appellant out of the vehicle, both Swainson and Ford saw a plastic bag containing six marijuana cigars and two crack cocaine rocks. The plastic bag was in plain view on the front passenger seat where appellant had been sitting.
The officers searched the sedan and found a still-burning marijuana cigar on the front passenger floorboard and approximately 15 crack cocaine rocks in a baggie beneath the front floormat on the driver’s side. The officers arrested appellant and Warren Allison, the driver of the sedan, and charged them with possession of a controlled substance. The officers found $1,740 in cash money in small denominations in appellant’s possession during their search of his person.
Legal Sufficiency
In his first issue, appellant claims that the evidence is legally insufficient to support his conviction for possession of a controlled substance, namely cocaine, weighing less than one gram.
In assessing legal sufficiency, we determine whether, based on all of the record evidence, viewed in the light most favorable to the verdict, a rational jury could have found the accused guilty of all of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). In conducting our review of the legal sufficiency of the evidence, we do not reevaluate the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).
In a possession-of-a-controlled-substance case, the State must prove that the defendant (1) exercised care, custody, control, or management over the controlled substance and (2) knew that the substance in his possession was a controlled substance. Tex. Health & Safety Code Ann. §§ 481.002(38), 481.115(a) (Vernon 2003 & Supp. 2004); see King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995); Roberson v. State, 80 S.W.3d 730, 734-35 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). When, as here, a defendant is not in exclusive possession of the place where the controlled substance is found, the State must prove sufficient, additional independent facts and circumstances that affirmatively link the defendant to the contraband to warrant a finding that the defendant had knowledge of the contraband and exercised control over it. See Roberson, 80 S.W.3d at 735. Circumstances that have been held to indicate an affirmative link include (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) drugs found in an enclosed place. State v. Derrow, 981 S.W.2d 776, 779 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d). Each case is examined on its own facts, and a factor that contributes to the sufficiency of the evidence in one case may be of little or no value in a different case. Roberson, 80 S.W.3d at 736. It is not the number of affirmative links present that is important, but rather the “logical force” that they create to prove that the defendant committed the crime. Id. at 735.
We conclude that appellant had the following affirmative links to the cocaine that was found on the passenger seat: (1) appellant was seated in the sedan on top of the cocaine and some marijuana cigars; (2) the officers found the cocaine in plain view after appellant got out of the sedan; (3) the officers observed appellant in possession of other contraband as he shared a marijuana cigar with the driver; (4) the still-burning cigar was on the front passenger floorboard near appellant; (5) appellant attempted to get out of the sedan when police officers initially approached him; (6) officers smelled burning marijuana when they approached the sedan; and (7) consistent with Officer Swainson’s testimony that crack cocaine rocks are often sold for $10 or $20 and that marijuana cigars are sold for less, appellant possessed a large quantity of cash in small denominations.
Appellant contends that the evidence is legally insufficient because other individuals in the sedan could have placed the narcotics on his seat without his knowledge. As Officer Ford testified, however, during a routine traffic stop, it is common for a passenger in an automobile to hide narcotics under his leg, as here, because the officer usually deals only with the driver. Moreover, as Officer Ford explained, the cocaine rocks and marijuana cigars found in the front passenger seat were packaged differently from the narcotics found under the driver’s-side floormat, which suggested that the narcotics belonged to different people.
Appellant also contends that he could have been exiting the vehicle in response to the officers’ commands to the men in the shelter to get on the ground. But as Officer Ford explained, suspects often attempt to exit cars and flee when approached by police officers. Appellant’s contentions, therefore, concern the weight to give the testimony from Officers Swainson and Ford. We do not reevaluate the weight and credibility of the evidence in our sufficiency-of-the-evidence review. See Muniz, 851 S.W.2d at 246.
We conclude that the “logical force” of the totality of affirmative links sufficiently connect the cocaine rocks found in the front passenger seat to appellant. See Roberson, 80 S.W.3d at 735. Accordingly, a rational jury could have found all of the elements of possession of a controlled substance beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2788-89; Swearingen, 101 S.W.3d at 95.
We overrule appellant’s first issue.
Factual Sufficiency
In his second issue, appellant asserts that the evidence is factually insufficient to support his conviction for possession of a controlled substance.
In reviewing the evidence on factual sufficiency grounds, all of the evidence as a whole must be reviewed neutrally, not in the light most favorable to the prosecution. Johnson v.State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The Court of Criminal Appeals has recently stated:
There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.
Zuniga v. State, No. 539-02, slip op. at 8 (Tex. Crim. App. Apr. 21, 2004) (footnote omitted). In a factual sufficiency review, the appellate court may not substitute its own judgment for that of the factfinder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim. App. 1996).
The jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to give the witnesses’ testimony. Jaggers v. State, 125 S.W.3d 661, 672 (Tex App.—Houston [1st Dist.] 2003, pet. ref’d). The jury may believe all, some, or none of any witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
Appellant contends that the evidence is factually insufficient because the evidence is equally probative of the theory that the bag of narcotics was placed on his seat by another occupant of the automobile without his knowledge. Appellant presented this theory at trial, and, based on the jury’s verdict, we conclude that the jury found the officers’ explanation of events more credible than appellant’s explanation. See Jaggers, 125 S.W.3d at 671. We defer to the jury’s determination of the weight and credibility of the evidence. See id.
After viewing the evidence in a neutral light, we conclude that the evidence supporting the verdict is not too weak to support the finding of guilt beyond a reasonable doubt and that the contrary evidence is not so strong that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, slip op. at 8. Therefore, the jury was rationally justified in finding guilt beyond a reasonable doubt. See id.
We overrule appellant’s second issue.
Evidentiary Ruling
In his third issue, appellant contends that the trial court erred by refusing to permit defense witness Rhoda Hearne to testify that a codefendant, Warren Allison, admitted that the crack cocaine in the car belonged to him.
To preserve a complaint for appellate review, a party must have presented a timely request, objection, or motion stating the specific grounds for the ruling desired, unless the grounds are apparent from the context of the objection. Tex. R. App. P. 33.1(a). A general objection preserves nothing for review. Safari v. State, 961 S.W.2d 437, 442 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d, untimely filed). To avoid waiver of a complaint on appeal, a party must let the trial court know what he wants and why he believes he is entitled to it, and he must do so clearly enough for the trial court to understand the nature of the objection at a time when the court is in a proper position to do something about it. Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).
Outside the presence of the jury, defense counsel questioned Rhonda Hearne whether Allison, her boyfriend, told her that all of the crack cocaine in the vehicle was his. Hearne testified that he did. The court, however, asked Hearne to state specifically what Allison told her. Hearne testified that, when she arrived at the scene after appellant and Allison had been arrested, Allison told her to go talk to the officers. She said that the police officers placed all of the items that they found inside the car on top of the car. According to Hearne, those items consisted only of the Newport bag that contained the cocaine rocks found beneath Allison’s floor mat, “a bag of Sweets and some money.” Hearne testified that Allison told her that everything in the Newport bag was his. Defense counsel asked Hearne what Allison said about appellant’s involvement, and Hearne responded:
He didn’t say anything that--the only thing he was saying that he didn’t have nothing to do with it because that was his stuff because he was just giving Marshall a ride.
The court ruled that Hearne could testify concerning what she observed and that Allison had told her that the Newport bag belonged to him. Defense counsel asked whether Hearne would be able to testify that Allison said that appellant had “nothing to do with it,” and the following dialog took place:
THE COURT:Well, in the context of her testimony, Mr. Coyne, that would be, I think, an inaccurate picture before the jury since he’s only referring to the Newport bag stuff.
DEFENSE:We don’t know that because he’s not testifying.
THE COURT:I’m not allowing the rest of the testimony, but she can testify that she saw the marijuana cigars and she didn’t see any crack cocaine in it. That’s the extent of it. Okay. All right.
DEFENSE:Objection.
THE COURT:It’s understood, recorded, and overruled.
On appeal, appellant contends that Allison’s statement that appellant “had nothing to do with it” was admissible under the statement-against-interest exception to the hearsay rule. See Tex. R. Evid. 803(24). Appellant’s trial objection, however, was general and did not assert that Allison’s statement was admissible under the statement-against-interest hearsay exception. Furthermore, it is not apparent from the context that appellant was making a rule 803(24) objection, particularly because the trial court allowed Hearne to testify that Allison told her that the Newport bag was his. The court did not rule that the statement was inadmissible because it was hearsay, but rather that it was inadmissible because the statement would be “an inaccurate picture before the jury since he’s only referring to the Newport bag stuff.” A court may exclude relevant evidence that is misleading to the jury, or whose probative value is outweighed by its prejudicial effect. Tex. R. Evid. 403. We conclude that because appellant failed to communicate his objection effectively, his general objection did not preserve error for review. See Tex. R. App. P. 33.1; Lankston, 827 S.W.2d at 909; Safari, 961 S.W.2d at 442.
We overrule appellant’s third point of error.
Conclusion
We affirm the judgment of the trial court.
Elsa Alcala
Justice
Panel consists of Chief Justice Radack and Justices Alcala and Bland.
Do not publish. Tex. R. App. P. 47.2(b).