Opinion issued November 1, 2007
In The
Court of Appeals
For The
First District of Texas
No. 01-06-00522-CR
RUBEN VALENTINE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1066858
MEMORANDUM OPINION
Ruben Valentine appeals from a third degree felony conviction for possession of a controlled substance, crack cocaine, weighing more than one gram and less than four grams. See Tex. Health & Safety Code Ann. § 481.115(a) (Vernon 2003). Valentine contends his conviction should be reversed because (1) the evidence is legally and factually insufficient to sustain the conviction, (2) the prosecutor committed harmful error by commenting on his failure to testify, (3) he received ineffective assistance of counsel, and (4) the jury charge improperly varied from the indictment and failed to apply the law to the facts. We affirm.
Background
In December 2005, as part of an undercover drug bust, Ronald Burks, a confidential informant for the Pasadena Police Department, purchased some crack cocaine from Michael Gross. Valentine was in the driver’s seat of the car where the transaction occurred. Gross made the exchange while sitting in the passenger seat, and Burks sat in the back seat. During the punishment phase of trial, Burks testified that Valentine counted the money Burks used to pay for the drugs.
After the transaction, Burks exited the car and the suspects drove away. Burks signaled to Officers Garivey and Anderson who were participating undercover in the drug bust. Officer Anderson positioned his vehicle behind the suspects’ car and radioed to a waiting squad car to stop the suspects. Garivey made the stop. He approached the car and, with his weapon out, commanded the suspects to exit the vehicle. Garivey saw Valentine “making some kind of movement to the center between the two front seats.” He testified that he then “yelled at my partner, ‘Watch his hand’ as he is reaching in between the two seats.” This observation, however, does not appear in the police report. While approaching the car to take the suspects into custody, Anderson noticed a plastic bag appearing to contain crack cocaine sitting in plain sight on the console near the gear shift. Officer Anderson collected the substance. Officers searched the car, but found no additional contraband.
The grand jury returned an indictment charging Valentine with possession of cocaine with intent to deliver. The State later abandoned that charge and refiled the cause to charge Valentine only with simple possession of more than one gram and less than four grams of cocaine.[1] Valentine pleaded not guilty to this charge and was tried before a jury. The jury found him guilty as charged. Valentine pleaded not true to two punishment enhancement paragraphs, which the jury found true. Based on these findings, Valentine received a sentence of 40 years’ imprisonment. He timely appealed.
Discussion
Legal and Factual Sufficiency
In his first issue, Valentine contends that the evidence is legally and factually insufficient to support conviction for possession of cocaine with intent to deliver. As a preliminary matter, we note that the State refiled the indictment a few weeks before trial to abandon the intent to deliver element, and Valentine was convicted only of simple possession, as charged in the refiled indictment. Accordingly, we review the record to determine whether the evidence is legally and factually sufficient to support this conviction.
Standards of review
When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006). This standard applies to both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). We do not weigh any evidence or evaluate the credibility of any witnesses, as this was the function of the trier of fact. Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead, we determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict and resolving any inconsistencies in the evidence in favor of the verdict. See Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991).
“When conducting a factual sufficiency review, we view all of the evidence in a neutral light.” Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 405, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. In conducting a factual sufficiency review, we also must discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Roberts v. State, 221 S.W.3d 659, 665 (Tex. Crim. App. 2007).
We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997). As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407.
Possession of a controlled substance
A defendant is guilty of possession of a controlled substance if he intentionally or knowingly possesses cocaine. Tex. Health & Safety Code Ann. § 481.115(a) (Vernon 2003). The State must show that the accused (1) exercised care, control, or management over the contraband, and (2) knew that he possessed contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); Edwards v. State, 178 S.W.3d 139, 143 (Tex. App.—Houston [1st Dist.] 2005, no pet.). If the accused does not have exclusive possession of the place where the contraband is found, we may not conclude that the accused had knowledge of and control over the contraband unless additional independent facts and circumstances affirmatively link the accused to the contraband. Poindexter, 153 S.W.3d at 406; Edwards, 178 S.W.3d at 143. It is not enough to show the defendant was merely present in the vicinity of the controlled substance. Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Factors that may establish an affirmative link include whether:
· the contraband was in plain view;
· the contraband was conveniently accessible to the accused;
· the accused was the owner of the place where the contraband was found;
· the accused was the driver of the vehicle in which the contraband was found;
· the contraband was found on the same side of the car seat as the accused was sitting;
· the place where the contraband was found was enclosed;
· the odor of [the contraband] was present;
· paraphernalia to use the contraband was in view of or found on the accused;
· conduct by the accused indicated a consciousness of guilt;
· the accused has a special connection to the contraband;
· occupants of the automobile gave conflicting statements about relevant matters;
· the physical condition of the accused indicated recent consumption of the contraband found in the car; and
· 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); see also Edwards, 178 S.W.3d at 143. The number of affirmative links present is not as important as the logical force that they collectively create. Edwards, 178 S.W.3d at 144; Gilbert, 874 S.W2d at 298.
The record in this case reflects that on the night of the incident, Valentine was in the car during the illicit transaction between Gross and Burks. Several officers identified Valentine as the driver of the vehicle that they stopped on suspicion of drug possession. Garivey, the arresting officer, testified that as he approached the vehicle, he saw Valentine “make some kind of movement towards the center console.” Officer Anderson found what he believed to be crack cocaine in plain view near the gear shift. Anderson also testified that while searching the car he sat in the driver seat—the same location that Valentine was sitting—and from that location, the center console was easily accessible to him. These facts collectively create sufficient logical force to support Valentine’s conviction. See Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981) (affirming conviction for possession after concluding that marijuana in open view on floorboard directly in front of driver’s seat was conveniently accessible to defendant); Robinson v. State, 174 S.W.3d 320, 326 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (affirming possession conviction of defendant who was passenger and had keys to truck containing cocaine in factory compartment in back wall, which could be seen and accessed only by folding down truck’s back seat); Hawkins v. State, 89 S.W.3d 674, 677 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (upholding conviction for possession of firearm where gun was found in plain view in backseat of car driven by defendant and was within easy reach of defendant); Coonradt v. State, 846 S.W.2d 874, 876 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d) (affirming conviction for possession where defendant was driver of vehicle, crack cocaine pipe was found lying in plain view between passenger and driver, and duffel bag containing marijuana and cocaine was in car).
Valentine contends that Garivey’s statement about seeing Valentine move toward the console was not credible because that observation does not appear in Anderson’s police report. The jury, however, found to the contrary. As sole determiner of Garivey’s credibility, the jury was free to accept or reject his testimony, and we may not disturb its finding. See Taylor v. State, 945 S.W.2d 295, 297 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d).
Valentine also asserts that Burks’s testimony cannot support the conviction because it is inconsistent and uncorroborated. A defendant may not be convicted by an informant’s testimony unless it is corroborated by other evidence tending to connect the defendant with the offense committed. Tex. Code Crim. Proc. Ann. art. 38.141(a), (b) (Vernon 2005). Specifically, Valentine points to Burks’s uncorroborated punishment-phase testimony that, after Burks handed over the money, Valentine counted it while Gross gave Burks the crack cocaine. The jury did not hear this testimony in the guilt-innocence phase, so it has no bearing on the legal sufficiency of the conviction. Valentine does not challenge the lack of corroboration on any other matter.
Viewing the evidence in the light most favorable to the verdict, and applying the relevant factors, we hold that a rational trier of fact could have found beyond a reasonable doubt that Valentine was in possession of a controlled substance. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). Viewing the evidence in a neutral light, we further hold that the evidence is not so weak that the verdict is clearly wrong and manifestly unjust, nor is it against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 417; Johnson, 23 S.W.3d at 11; Ladd, 3 S.W.3d at 557. The evidence is therefore legally and factually sufficient to support the jury’s finding that Valentine was in possession of a controlled substance.
Propriety of the State’s Closing Argument
In his second issue, Valentine contends that, during closing argument, the State improperly commented on Valentine’s right to remain silent and failure to testify. Specifically, Valentine complains of the following portion of the State’s jury argument:
The Defendant didn’t jump up and down and say, hey, let me get out of this car. He didn’t do that. He didn’t say, oh, where did that come from? Let me get out of the car . . . [a]t no point did the defendant Ruben Valentine say, nope, let me out.
Generally, to preserve jury argument error, a party must make a contemporaneous objection and obtain an adverse ruling. Tex. R. App. P. 33.1. When the defendant fails to object to a jury argument or pursue an objection to a jury argument to an adverse ruling, he forfeits his right to complain about the jury argument on appeal. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).
Valentine concedes that defense counsel failed to object to the State’s jury argument, but asserts that, under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984), we must review the alleged error under the egregious-harm standard. We disagree. The standard set out in Almanza applies to fundamental errors in the jury charge, not unobjected-to statements in closing argument. See id. By failing to make a timely objection to the State’s closing argument, Valentine waived any alleged error. See Tex. R. App. P. 33.1; Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007) (holding that, in objecting to prosecutorial argument, defendant must pursue objection to adverse ruling or waive any error that would have been curable by instruction; motion for mistrial alone is sufficient to preserve claim of error incurable by instruction); Cockrell, 933 at 89 (Tex. Crim. App. 1996) (holding that defendant forfeits right to complain about incurable prosecutorial argument by failing to timely object to argument or pursue objection to adverse ruling); see also Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004) (citing Cockrell and holding that defendant waived objection to prosecutor’s conduct in striking at defendant over shoulders of his counsel during closing argument by failing to object); Mathis v. State, 67 S.W.3d 918, 926–27 (Tex. Crim. App. 2002) (refusing to overrule Cockrell and holding that defendant waived argument that prosecutor committed reversible error when he referred to defendant in final argument as “despicable piece of human trash” because defendant failed to object and request mistrial).
Ineffective Assistance of Counsel
In his third issue, Valentine contends that his counsel rendered ineffective assistance by failing to (1) move for an instructed verdict, and (2) object during the State’s closing argument. To show ineffective assistance of counsel, a defendant must demonstrate both that his counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005). A defendant has the burden to establish these two prongs by a preponderance of the evidence, and failure to make either showing defeats his ineffective assistance claim. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).
A defendant cannot show that counsel’s conduct fell below an objective standard of reasonableness without overcoming the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. We will find counsel’s performance deficient only if it is so outrageous that no competent attorney would have engaged in it. Andrews, 159 S.W.3d at 101. We cannot speculate beyond the record, so the record affirmatively must demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
To argue successfully that his trial counsel’s failure to object to the State’s argument amounted to ineffective assistance, Valentine must show that the trial court would have erred in overruling such an objection. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996). In Vaughn, the Court of Criminal Appeals held that:
A prosecutor’s statements constitute a comment on the failure of a defendant to testify when the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant’s failure to testify. Language that can reasonably be construed to refer to a failure to present evidence other than from the defendant’s own testimony does not amount to a comment on the failure to testify.
Id. Here, the prosecutor’s argument is not reasonably construed as a comment on Valentine’s failure to testify, but rather, as a comment on Valentine’s conduct indicating a consciousness of guilt, a relevant factor in considering whether the acts and circumstances surrounding the illegal drug transaction affirmatively linked Valentine to the crack cocaine. See Gilbert, 874 S.W.2d at 298.
Further, because the record does not affirmatively reveal anything to the contrary, we must presume that defense counsel decided as a matter of sound trial strategy to refrain from objecting to the State’s closing argument. Henderson v. State, 29 S.W.3d 616, 624 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). We hold that Valentine does not satisfy the first prong of Strickland, and therefore reject his claim of ineffective assistance of counsel.
Jury Charge
In his final issue, Valentine maintains that the jury charge (1) fatally varied from the indictment and (2) failed to correctly apply the law to the facts. Valentine misapprehends the crime for which he was tried. Consistent with the trial court’s instructions to the jury, the refiled indictment charged Valentine with possession of a controlled substance. The charge did not vary from the indictment.
Valentine’s second charge error claim concerns the following instruction:
Possession of a controlled substance need not be exclusive and can be done by more than one person. Mere presence or knowledge alone at a place where a controlled substance is found does not constitute possession by more than one person of a controlled substance.
When reviewing a trial court’s jury instructions, we first determine whether the charge was erroneous. Nguyen v. State, 811 S.W.2d 165, 167 (Tex. App.—Houston [1st Dist.] 1991, pet. ref’d). Error occurs when the charge fails to directly apply the law to the facts. Harris v. State, 522 S.W.2d 199, 202 (Tex. Crim. App. 1975). Even if we determine that charge error exists, that determination, standing alone, does not automatically require reversal of a conviction. Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Almanza, 686 S.W.2d at 171. The error must also result in harm that requires reversal. Almanza, 686 S.W.2d at 171.
Moreover, because Valentine did not object to the charge, we may reverse only if we conclude that any alleged error is so egregious and created such harm that Valentine was denied a fair and impartial trial. See id. To determine whether a defendant has sustained egregious harm from an un-objected to instruction, we consider (1) the entire charge; (2) the state of the evidence, including contested issues; (3) arguments of counsel; and (4) any other relevant information. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).
Valentine maintains that this instruction erroneous and caused him egregious harm because it went to his entire defensive theory—that there was no joint possession and Valentine was not a party to possession of drugs. We disagree. The instruction is a substantially correct statement of the law. Possession need not be exclusive, and evidence that the accused jointly possessed narcotics with others is sufficient to sustain a conviction. Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). The evidence in this case included facts and circumstances that affirmatively link Valentine to the crack cocaine and, accordingly, justified the charge on joint possession.
Conclusion
For these reasons, we hold that: (1) the evidence is legally and factually sufficient to sustain the conviction, (2) Valentine waived any error relating to the prosecutor’s closing argument; (3) the record does not demonstrate that Valentine received ineffective assistance of counsel, and (4) the challenged jury instruction contained a substantially correct statement of the law relating to joint possession and was warranted by the evidence. We therefore affirm the judgment of the trial court.
Jane Bland Justice
Panel consists of Chief Justice Radack and Justices Alcala and Bland.
Do not publish. See Tex. R. App. P. 47.2(b).
[1] The district clerk assigned number 1066858 to the refiled cause, the same cause number that underlies this appeal.