Opinion issued November 10, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-01104-CR
DEREK MAURICE ANDERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 975387
MEMORANDUM OPINION
Appellant, Derek Maurice Anderson, was convicted by a jury of the third degree felony offense of possession of a controlled substance weighing more than four grams and less than two hundred grams. See Tex. Health & Safety Code Ann. § 481.115(d) (Vernon 2003). The jury assessed his punishment at six years confinement and a $5,000 fine. See id. at § 481.115(f). In two points of error, appellant argues that the evidence presented at trial was legally and factually insufficient to support his conviction because the State failed to affirmatively link him to the contraband.
We affirm.
Background
In January 2004, several Houston Police Officers participated in a narcotics investigation that resulted in appellant’s arrest. A confidential informant, C. Boeing, assisted the police by calling appellant and setting up a drug deal. Originally, the transaction was supposed to take place at the Hot Shots Billiards and Arcade; however, appellant changed the meeting place to an Eckerd’s drug store. Boeing and his car were searched prior to leaving the police station and prior to leaving Hot Shots. No narcotics were found at either time.
The plan was for Boeing to get inside the truck appellant was driving and ask to see the $600.00 worth of cocaine he had asked to buy. Once he had seen the drugs, Boeing was to have appellant follow him to a check cashing location so Boeing’s roommate could give him money to buy the drugs. The police were going to pull appellant over for a routine traffic violation while he was en route to the store and arrest him for the cocaine. However, once appellant met Boeing, he told Boeing that he would wait in the Eckerd’s parking lot while Boeing went to meet his roommate and get the money. After Boeing left the parking lot, he met Officer Full about two blocks away. Boeing told Officer Full that appellant had pulled a bag of cocaine from his pants pocket and showed it to Boeing. Officer Full then radioed the other officers waiting nearby. The officers immediately approached appellant’s truck and arrested him.
Officers Opperman and Novak were the first to reach appellant’s truck. As Opperman approached the driver’s side of the car, he saw appellant’s hands moving near the center console. Appellant consented to a search of the vehicle, and Opperman entered the truck and opened the center console from the driver’s seat. He found 7.2 grams of crack cocaine in the center console.
At trial, appellant attempted to argue that Boeing planted the drugs in question. E. Harvey, appellant’s common law wife, testified that Boeing owed her $600 as a result of a used car deal. She stated that she had threatened to sue Boeing several times in order to recover the $600 debt. Harvey also testified that the console where the drugs were found could only be opened from the passenger side of the vehicle, although she admitted that the console could be adjusted to open from the driver’s side.
Discussion
In two points of error, appellant contends that the State did not affirmatively link him to the drugs; thus, he argues that the evidence was legally and factually insufficient to sustain his conviction.
Proof of Possession
To prove unlawful possession of a controlled substance, the State must establish that (1) the accused exercised actual care, custody, control, or management over the contraband and (2) the accused knew the matter was contraband. Tex. Health & Safety Code Ann. §§ 481.002, 481.115; King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995); Reynolds v. State, 981 S.W.2d 926, 928 (Tex. App. —Houston [1st Dist.] 1998, no pet.). However, the defendant’s mere presence in the same place as the contraband is not sufficient, in and of itself, to justify a finding of possession. Harrison v. State, 555 S.W.2d 736, 737 (Tex. Crim. App. 1977). When, as here, contraband is not found on the appellant’s person, the evidence must affirmatively link it to the defendant so that it can be reasonably inferred he knew about it and exercised control over it. Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Affirmative links are facts and circumstances that create a reasonable inference that the accused was conscious of his connection with the contraband and knew that it was contraband. See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).
The factors used to establish affirmative links include the following: (1) the defendant was present when the drugs were found; (2) the drugs were in plain view; (3) the defendant was in proximity to the drugs and had access to them; (4) the defendant was under the influence of drugs when arrested; (5) the defendant possessed other contraband; (6) the defendant made incriminating statements when he was arrested; (7) the defendant attempted to flee; (8) the defendant made furtive gestures; (9) there was an odor of drugs; (10) the defendant had the right to possess the place where the drugs were found; (11) the drugs were found in an enclosed place; (12) the amount of drugs found was significant; and (13) the defendant possessed weapons. Hurtado v. State, 881 S.W.2d 738, 743 n.1 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Courts have also considered (14) any traces of the contraband found; (15) any large sum of money found on the accused; and (16) the amount of contraband found. Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.—Austin 1991, pet. ref’d); Roberson, 80 S.W.3d at 740, 742; Poindexter v. State, 153 S.W.3d 402, 412 (Tex. Crim. App. 2005). The number of factors is not as important as the logical force they have in establishing the elements of the offense. Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). To meet the standard, the affirmative links must show that the accused’s connection with the contraband was more than fortuitous. Brown, 911 S.W.2d at 747.
Standard of Review
We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. King, 29 S.W.3d at 562.
We begin a factual sufficiency review with the presumption that the evidence supporting the jury’s verdict is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 483 (Tex. Crim. App. 2004)). Our evaluation may not intrude upon the fact finder’s role as the sole judge of the weight and credibility to be accorded any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). What weight to give contradictory testimonial evidence is within the sole province of the fact finder because it turns on an evaluation of credibility and demeanor; the fact finder may choose to believe all, some, or none of the testimony presented. Id. at 407–09. We must defer appropriately to the fact finder to avoid substituting our judgment for its judgment. Zuniga, 144 S.W.3d at 481–82.
Evidence of Affirmative Links
Here, several factors affirmatively link appellant to the contraband, including: (1) appellant’s convenient access to the cocaine; (2) his lawful control and possession of the truck where the drugs were found; (3) Boeing’s testimony that appellant directly possessed the drugs shortly before being arrested; (4) Opperman’s observation of appellant reaching toward the console that housed the contraband; and (5) the fact that appellant was the driver of the truck at the time of his arrest. The logical force of these factors suffices to affirmatively link appellant to the drugs in question. See Roberson, 80 S.W.3d at 735.
Appellant cites Dixon v. State in support of his contention that the State failed to affirmatively link him to the cocaine. 918 S.W.2d 678 (Tex. App.—Beaumont 1996, no pet.). In Dixon, the defendant was a passenger in a car pulled over by the police. Id. at 679. Upon searching the vehicle, officers discovered contraband hidden in the trunk. Id. at 680. Though Dixon acted nervous and gave conflicting stories, the court reversed his conviction due to a lack of evidence affirmatively linking him to the contraband. Id. at 681–82. In attempting to harmonize the Dixon case with his own, appellant notes that he, like Dixon, did not make incriminating statements, did not attempt to flee, did not own the vehicle at issue, and did not appear to be using drugs or to be under the influence of drugs. Appellant fails, however, to account for critical distinctions. Unlike Dixon, appellant had convenient access to the drugs, was the vehicle’s sole occupant and driver, was observed by Boeing to be in direct possession of the drugs, and was witnessed by Opperman making furtive gestures toward where the drugs were ultimately located.
The crux of appellant’s challenge to the sufficiency of the evidence is his implied claim that Boeing planted the drugs in appellant’s truck in an effort to frame him. Appellant bolsters this claim by asserting that the console where the drugs were found could only be opened from the passenger side of the vehicle, and he notes that Boeing was the last person to sit in the passenger seat before appellant’s arrest. Appellant’s trial counsel vigorously cross-examined Boeing, and the jury chose to believe his testimony. We are not at liberty to substitute our judgment for that of the fact finder. See Cain, 958 S.W.2d at 407. Moreover, we note that Harvey testified that the console could be adjusted to open from the driver’s side, and that Opperman entered the truck from that side and experienced no difficulty accessing the cocaine. We conclude that the evidence was both legally and factually sufficient to affirmatively link appellant to the cocaine.
We overrule appellant’s first and second points of error.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Taft, Keyes, and Hanks.
Do not publish. See Tex. R. App. P. 47.2(b).