Opinion issued December 22, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-08-00138-CR
____________
JAMES BLACKMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1121171
DISSENTING OPINION
I respectfully dissent. I would hold that the evidence was legally and factually sufficient to establish affirmative links showing that appellant exercised “care, custody, control or management” over the cocaine at issue in this case. Therefore, I would overrule appellant’s first issue rather than reversing and rendering judgment acquitting him.
Facts
To obtain a conviction of a defendant for possession of contraband with intent to deliver, under Chapter 481 of the Texas Health and Safety Code, as here, the State must prove that the defendant had “possession” of the contraband, i.e., exercised “actual care, custody, control, or management.” This case deals with the standard of review of the affirmative links required by Texas law to establish the “actual care, custody, control, or management” of controlled substances by professionals engaged in large-scale drug operations. Because I believe the testimony of drug enforcement agents as to the characteristic behavior of professional drug operatives and the circumstances under which a defendant in such a case is apprehended is material to the logical force of the affirmative links between the defendant and the controlled substance, I would state the material facts of this case differently from the majority, and I would give weight to evidence the majority disregards and much less weight to evidence the majority credits as material to its analysis.
Here, among the officers who testified was Pasadena Police Department (“PPD”) Officer W.R. Kelly. Officer Kelly testified to his 17 years experience as a narcotics officer doing investigation and undercover work, primarily pricing narcotics. He testified that Houston is a major distribution center for narcotics due to the intersections of “major interstates that you can get it into through the port system.” He further testified that a typical kilo of cocaine costs $100,000 on the street in Houston and would not be for personal use and that the three kilos found in the van in which appellant was a front seat passenger was a large amount of cocaine.
Officer Kelly testified that he was part of the team that investigated appellant and two other men on June 14–15, 2007. While he was conducting surveillance at a Super 8 Motel on June 14, 2007, he saw three men, including appellant, arrive in a Chrysler mini-van with North Carolina plates after 9:00 p.m. and check into the motel for the night. Their behavior was typical of persons here to make a narcotics transaction. Specifically, Officer Kelley testified that in a typical narcotics transaction he looks for certain characteristics, including “[o]ut of state cars, people paying by cash, a lot of foot traffic in and out of the rooms.” Characteristics of dealers are that they are “constantly moving about” and “on cell phones in and amongst each other.” They are “coming and going from rooms, going to different parts of town, always on the phone, continuing looking around as though they might be waiting for something.” Here, appellant and the other two men were friends; they did not separate much; “whenever they were on the phone, they were in among each other on the phone.” Officer Kelly left the motel when it became apparent that no transaction was to take place that night, but the next day, June 15, he followed the van when it left the motel and continued his surveillance throughout the day. Appellant was the front seat passenger.
Detective T. Neilon of the PPD testified that he had been in narcotics investigation for just under two years, had attended a number of narcotics and weapons schools, and had done numerous surveys. On June 14, 2007, he was at the Super 8 Motel and conducted surveillance on a crossover SUV-type van with North Carolina plates. He checked the van’s license plate and found it had been rented in St. Petersburg, Florida. None of the occupants was the owner. Detective Neilon testified that he continued surveillance the next morning and saw the men come out of the motel, load the van together, and check out. They then got in the car, with one man in the back seat and appellant as the front seat passenger. They entered Interstate I-10 (I-10) West towards downtown Houston, exited around the Yellowstone and Old Spanish Trail exit off of Highway 288, and went to a tire shop. They milled around talking on cell phones while they had a tire repaired. They then drove to a car wash, where all three got out of the car, approached a group of men who appeared to be loitering around, and appeared to give them money. The men then spent about 45 minutes washing the car and talking on their cell phones, after which they pulled the van into a stall, unloaded it completely, and vacuumed it, staying close to their luggage. After vacuuming the van, they reloaded the luggage and drove to an End Zone store, entered, and came back to the van about 25 minutes later without appearing to have bought anything.
The men then returned to the car wash, parked the van in one of the stalls as rain began to fall, and waited inside the van. After forty or fifty minutes, they pulled out. A green Toyota Camry pulled up directly in front of the van, stopped in traffic, and then began rolling. The van pulled out onto Old Spanish Trail, and the two vehicles proceeded together through traffic onto Loop 610, “bumper locking” and staying less than a car length apart. They exited the South Loop of 610 onto Yosemite. The Toyota then stopped in front of the van, and Detective Nielon, who was following on a parallel street, saw the driver of the Toyota walk back towards the van. Appellant was at the back of the van with the hatch open reaching in with both arms. Detective Nielon then lost sight of the van. When contact was reinstated, the van was facing in the opposite direction, almost directly across the street from the initial stop. It remained parked there for 15–20 minutes. Nielon then moved away. When he came back, the Toyota was pulling out onto Crestmont with the van directly behind it again. Detective Nielon lost them but found them again eastbound on Loop 610, driving erratically and getting on and off the freeway.
After Detective Neilon called for additional surveillance, a marked patrol unit stopped the van at Allen Genoa and Highway 225. The occupants were already out of the van when Detective Neilon arrived. Three kilos of cocaine were found in a shoebox with a flip-top lid wrapped in a blanket on the floorboard behind the front passenger seat. The wrapping was “what we come into contact with the wrapping from shipping from generally South Texas up to Houston.” The cell phones were on the gear shift and in the back passenger seat. Detective Nielon testified that the behavior he observed was consistent with narcotics transactions. He testified that three kilos of cocaine were found in the shoebox and that this was a “very large amount of cocaine” worth “a lot of money.”
Officer C. Scott, a PPD police officer temporarily assigned to the narcotics narcotics division for the night shift patrol and also assigned to patrol duty, testified that he was in a marked patrol vehicle that was called to aid in the surveillance about 4:00 p.m. on July 15. He caught up with the van as it was traveling eastbound on Loop 610 and stopped it for changing lanes without signaling and for failing to yield. The driving was very erratic and unsafe. Officer Scott instituted his lights and signals when he thought it safe and stopped the van off the freeway at a service station. He asked the passengers to step out, and they cooperated. The cocaine was in a shoebox with a flip-type lid under a blanket within arm’s reach of the backseat passenger.
Officer C.D. Williams, likewise a PPD officer, testified that he was just starting his second two-year tour in the narcotics division after 25 years in the department. He was also on the scene during the surveillance and ultimately during the arrest and had the responsibility to collect evidence. He testified that items found in the van included an invitation to “Wright’s and Smith’s Annual Family Reunion,” undated and with no address, and a Bible placed on the dashboard where it could be seen through the window and that both items were typical of drug dealers seeking a cover story. The only person in the van with any significant money at the time of the stop was appellant, who had $600. All of the occupants of the van said they were from St. Petersburg. Officer Williams further testified that it is common for narcotics officers to work I-10 east regarding narcotics activity because it is consider a “pipeline for both money and drugs going east and west coast to coast.”
Discussion
The majority acknowledges that the State relies on Robinson v. State, 174 S.W.3d 320 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d), and Fields v. State, 932 S.W.2d 97 (Tex. App.—Tyler 1996, pet. ref’d.), to support its argument that the evidence in the case established affirmative links between the cocaine and appellant. Blackmon v. State, No. 01-08-00138-CR, Slip Op. at 10, 12 (Tex. App.—Houston [1st Dist.], Aug. ___, 2009). However, after surveying the affirmative links relied upon in Fields to support a finding that the appellant exercised “care, custody, control or management,” over the cocaine, the majority concludes that “[o]f the seven links that the Tyler Court of Appeals relied upon, only the first link has any possible similarity to this case, which also involves a rented vehicle.” Id. at 11. The majority also surveys the factors used to establish care, custody, control, or management in Robinson and concludes that “the ‘logical force’ created by the evidence in Robinson is absent in the instant case.” Id. at 12 (citing Robinson, 174 S.W.3d at 326-30).
I disagree with the majority’s application of the standard of review, its analysis of Robinson and Fields, and its conclusion that these cases do not support a finding of affirmative links in this case. I would hold that the evidence was both legally and factually sufficient to establish appellant’s “care, custody, management, or control” over the cocaine in this case under the standard of review as set out in Fields and Robinson, as well as in the Court of Criminal Appeals cases, Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006), and Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005).
In Robinson, this Court pointed out that the State need not prove the accused’s exclusive possession of contraband to convict him as a principal, but when the accused is not in exclusive possession of the place where the contraband is found the State must establish an “affirmative link” between the accused and the contraband through independent facts that suggest that the accused had knowledge of the contraband and exercised control over it. 174 S.W.3d at 325. An affirmative link may be established by either direct or indirect evidence. Id.
In Robinson, a Department of Public Safety (DPS) trooper pulled over the truck in which Robinson, the defendant, was the front seat passenger for following another vehicle too closely while traveling east on I-10 just outside of Houston. Id. at 323. The driver, who could not produce identification, told the police that he and Robinson had been in Houston for four days to see a friend and had been staying at a Super 8 Motel and that no one else had come with them. Id. Robinson, who likewise carried no identification, stated that they had been in Houston for two days and that they had driven his cousin to Houston, but he could not name the cousin. Id. The officer smelled marijuana and noticed the magazine for a semi-automatic weapon in the truck console’s cupholder. Id. He asked Robinson where he could find the weapon. Id. When Robinson reached down to the floorboard, the officer grabbed him and ordered him out of the truck. Id.at 323–24. He then found a semi-automatic handgun under a shirt on the floorboard where Robinson had reached. Id. at 324. Upon searching the truck, he found two large, vacuum-sealed packages in a factory compartment built into the back wall of the truck, which he cut into, finding cocaine. Id. At trial, a DPS officer testified that the amount of cocaine found, two kilos, was too large for personal use and was possessed with the intent to deliver. Id. He further testified that Houston is a major distribution center for cocaine, cocaine is usually transported by vehicle, and I-10 is a major highway running between Houston and Gulfport, Mississippi, where the registered owner of the truck lived. Id.
In Robinson, the State argued that several factors affirmatively linked the defendant to the cocaine, specifically: “(1) the cocaine was conveniently accessible to appellant; (2) the cocaine was found in an enclosed space; (3) there was a strong odor of marijuana in the truck; and (4) appellant and the driver of the truck gave conflicting statements to [the police].” Id. at 326. This court agreed. Id. at 326–29. We concluded that the admission of the driver that he had stayed in a Houston motel with Robinson for at least two days after arriving in a borrowed truck that turned out to be registered in Mississippi, the discovery of the cocaine in a factory compartment that could be seen and accessed only by folding down the truck’s back seat, the fact that the driver and Robinson both had keys to the truck, and the driver’s statement that Robinson was supposed to be driving “taken together, offer strong support for the conclusion that [Robinson] had control over the truck and its contents and that the cocaine was within the vicinity of and easily accessible to appellant.” Id. at 327. We also concluded that “the location of the cocaine in an enclosed space helps to establish the requisite affirmative link between appellant and the cocaine,” as did the driver’s and Robinson’s conflicting statements. Id. at 327. In addition, we considered the large amount of contraband found in the truck, namely two kilos of cocaine with a high street value and found the amount “strongly indicative of an affirmative link between it and [Robinson].” Id. at 328–29.
In Fields, a DPS trooper stopped a Lincoln Continental Towncar for driving at a high rate of speed on Interstate 30 (I-30). 932 S.W.2d at 100. The car had an Avis rental sticker. Id. at 100–01. The driver was unable to produce personal identification when asked for it, although he conducted a cursory search of the glove compartment and the trunk, rifling nervously through the contents without finding anything. See id. at 101. The defendant, Fields, who was a passenger in the car, produced a Tennessee driver’s license that turned out to be suspended. Id. He stated that his girlfriend had rented the Lincoln for them. Id. The officer placed Fields under arrest for driving with a suspended license and, suspecting drugs were being transported in the car, called for backup. Id. The driver and Fields gave conflicting stories as to where they had been, the driver testifying that they had been in Grand Prairie for five days helping his uncle level a house and Fields stating that they had been in Grand Prairie looking for a site for his home. Id. Fields attempted to show the officer a set of plans. Id. When back-up support arrived, the officer informed Fields and the driver that he suspected they were carrying drugs. Id. The car was transported to the Hopkins County Sheriff’s Office, where drugs were found by troopers in a bag under the hood of the Lincoln. Id. Air freshener, beepers, and luggage were also found in the car. Id. at 102.
The Tyler Court of Appeals held that Fields was linked to the contraband by a number of factors, including the fact that the Lincoln had been rented by Fields’ girlfriend; he and the driver had had possession of the vehicle for the preceding five days or more while they had been in Grand Prairie; the drugs were found concealed beneath the closed hood of the Lincoln, and the hood latch was controlled from inside the car; a can of air freshner was located under the seat occupied by Fields and matched the odor of the contraband when found; Fields untruthfully denied prior drug offenses; Fields and the driver gave conflicting stories regarding their purpose for coming to Texas and their activities in Texas; Fields carried inadequate clothing for a five day trip; and he “exhibited unnatural equanimity and lack of concern” when detained and throughout the investigation. Id. at 104.
The court held that testimony by a narcotics expert regarding drug trafficker patterns and characteristics was also relevant to the issue of the defendant’s knowledge that cocaine was present under the hood of the car in which he was a passenger. 932 S.W.2d at 108. Testimony as to the wholesale and $900,000 street values of the 6.6 pounds of cocaine found was also relevant to the issue of the parties’ knowledge that the drug was present under the hood. Id. The court concluded that the jury could also have found that the presence of drugs in an automobile under the circumstances was often the result of team work and thus tended to negate the possibility that either defendant was unaware of the contraband’s presence under the hood. Id.
In my view, Fields and Robinson are virtually identical to the instant case. The same type of factors relied on to establish affirmative links between the appellant and the controlled substance are present in this case and should be weighted similarly in our review of the evidence. This conclusion is further strengthened by the instructions for applying the standard of review given the intermediate appellate courts by the Court of Criminal Appeals in Poindexter, 153 S.W.3d 402, and Evans, 202 S.W.3d 158.
In Poindexter, the Court of Criminal Appeals observed that, in deciding whether evidence is sufficient to link a defendant to contraband, as required to support his conviction for possession of a controlled substance, the trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. 153 S.W.3d at 406. “Thus, once the trier of fact has weighed the probative value of . . . evidence in its fact finding process, an appellate court cannot deny that evidence probative value or ignore it in its review of the sufficiency of the evidence.” Id. The appellate court may determine only whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt on the basis of all of the evidence admitted at trial. Id. at 406–07. The court pointed out that a person, including a friend, as in this case, may jointly possess the place where contraband is found but not necessarily jointly possess the contraband found in that place unless additional independent facts and circumstances affirmatively link him to the contraband. Id. at 406. An affirmative link can be established, however, when the contraband is in plain view or is hidden in a place tied to the accused. Id. at 409 n.24.
In Poindexter, the Court of Criminal Appeals disagreed with the court of appeals that the evidence was insufficient to establish affirmative links between the defendant, Poindexter and the crack cocaine at issue. Id. at 405. The court of appeals had concluded that because there was some evidence indicating that another person was present in the house when a confidential informant (C.I.) bought cocaine, the State had failed to prove possession of the house. Id. The court of appeals had also found the links between the defendant and the drugs and drug distribution materials found in the house insufficient to justify a rational trier of fact in finding the evidence legally sufficient to support the defendant’s conviction. Id.
Reversing after setting out the standard of review, the Court of Criminal Appeals observed that the appellate court had “declined to consider the probative value of the C.I.’s unobjected-to out-of-court statements that appellant possessed cocaine, sold cocaine, and hid the cocaine in an open hall closet.” Id. The Court of Criminal Appeals also stated that it “defies logic,” when a narcotics officer has found crack cocaine hidden in the ceiling of a house where a confidential informant had told him the defendant kept his crack cocaine to conclude that the State’s evidence linked the defendant to the house but did not “establish that he knew of the secret stash of drugs hidden in the ceiling.” Id. at 410.
Similarly, the majority in the instant case ignores evidence that, in my view, is highly probative of appellant’s affirmative links to the three kilos of cocaine found in the shoe box on the floor of the van behind his seat, including evidence that the shoebox was transferred into the van in which appellant and two other men had traveled together from St. Petersburg, Florida to a Motel 8 on I-10 in Houston, along a known drug route, and that appellant had remained with the other men all day, loitering in and around the van, talking on cell phones, and otherwise engaging in behavior characteristic of drug operatives, at one point loading, unloading, vacuuming, and reloading the van, until contact was made with a green Toyota. The two vehicles then traveled together to a location where appellant was seen opening the back hatch of the van, after which the van was again seen by officers conducting surveillance as it left that location and was stopped after driving erratically on and off the freeway, and the shoebox was found under a blanket behind appellant’s seat within arm’s reach.
In Evans, the Court of Criminal Appeals chastised the court of appeals for analyzing each of the facts or links in isolation and, “[a]pparently relying on alternative inferences from or explanations for almost every piece of evidence, . . . disregard[ing] that evidence and conclud[ing] that nothing but appellant’s presence and proximity linked him to the drugs.” 202 S.W.3d at 164. The Evans court observed that “it is not the number of links between the defendant and the drug that is dispositive but, rather, the logical force of all of the evidence, direct and circumstantial,” and it went on to state that “[w]here there are two permissible views of the evidence, the fact finder’s choice between them cannot be clearly erroneous.” Id. at 163 (quoting Anderson v. City of Bessemer, 470 U.S. 564, 574, 105 S. Ct 1504, 1511 (1985)). The court stated:
The State argues that the single most important link or connection between appellant and the fourteen grams of cocaine rocks is the simple fact that he was sitting directly in front of them. They were within arm’s reach; the coffee table was less than a foot away. This evidence constitutes two extremely strong “presence” and “proximity” links. Appellant was not merely present in a house with drugs cached away somewhere, they were right under his nose. The drugs were in plain view—a third link. He was alone in the house—a fourth link. He immediately admitted that he knew why the police had walked in the door—“Drugs.” That is a fifth link. He received mail at 923 Lombrano, thus raising a reasonable inference that he lived there, which, in turn raises a reasonable inference that he had actual care, custody, and control of items found in plain view on the coffee table. This is a sixth link. He had $160 in twenties in his pocket, but he was apparently unemployed. This is a seventh, albeit weak, link. The State argues that the sum total of this circumstantial evidence is sufficient to support a rational jury’s finding, beyond a reasonable doubt, that appellant exercised actual care, custody, control, or management of the fourteen grams of cocaine on the coffee table. We agree.
Id. The majority’s approach to the instant case is, in my view, exactly like that of the court of appeals which the Court of Criminal Appeals specifically disapproved of in Evans.
I would hold that, under the criteria set out in Evans, Poindexter, Fields, and Robinson, the evidence in this case was both legally and factually sufficient to establish appellant’s possession of the cocaine at issue. Here, as in Fields, there was testimony by a narcotics expert regarding drug trafficker patterns and characteristics, which I would find relevant to the issue of appellant’s “care, custody, or control” over the cocaine present in the shoe box placed on the floorboard behind his seat in the car in which he was a passenger and which had not been there when appellant and the other two men had loaded luggage into the van, unloaded and vacuumed it and reloaded it, but was there when the van was stopped by officers after being parked beside the green Toyota it had followed.
There was testimony here, as in Fields and Robinson, that Houston is a major drug distribution center and that I-10 is a route used by drug traffickers. Cf. Robinson, 174 S.W.3d at 324. The experienced narcotics officers who conducted the surveillance and arrest of appellant and the other occupants of the van identified numerous indicia of narcotics trafficking in the behavior of appellant and the others. Cf. Fields, 932 S.W.2d at 108 (referencing “team work” as characteristic of narcotics traffickers). Appellant and his two companions arrived at the motel “in a rented van with North Carolina license plates.” Appellant spent the night of June 14, 2007 and the entire next day with his two companions in the motel and in and around the van, talking on cell phones. They “spent a notable amount of time waiting at the car wash until the Toyota pulled up in front of the van.” The van followed the Toyota sedan at a bumper-to-bumper distance for a long distance into a residential neighbor where the two vehicles stopped, the driver of the Toyota delivered a box to the van, and appellant was seen by Detective Neilon at the back hatch reaching into the van. The van and the Toyota stayed in the same neighborhood for a significant period of time, then left together, driving erratically and getting on and off the freeway, in a pattern Detective Neilon testified was characteristic of drug traffickers and Officer Scott testified was unsafe. Cf. Robinson, 174 S.W.3d at 323 (stopping vehicle for traveling too close). The cell phones officers had observed the van passengers using frequently all day were found in the van. Cf. Fields, 932 S.W.2d at 102.
As in both Robinson and Fields, a very large amount of cocaine, too great for personal use, namely three kilograms with a street value of approximately $300,000, was found in the van when it was stopped by officers and its occupants ordered out. See Robinson, 174 S.W.3d at 328–29 (two kilos of cocaine); Fields, 932 S.W.2d at 108 (6.6 pounds of cocaine). Moreover, the cocaine was found hidden in an enclosed space and the amount of cocaine indicated that it would not be used for personal use. Cf. Robinson, 174 S.W.3d at 327–29; Fields, 932 S.W.2d at 102, 104.
The cocaine was also “conveniently accessible” to appellant in that it was “within the close vicinity of the accused and easily accessible while in the vehicle so as to suggest that the accused had knowledge of the contraband and exercised control over it.” Cf. Robinson, 174 S.W.3d at 326; Fields, 932 S.W. 2d at 104. Specifically, the cocaine was within arm’s reach of the back seat passenger behind the front passenger seat in which appellant was seated. Cf. Robinson, 174 S.W.3d at 326–27 (finding link where container in which cocaine was located “was unlocked and unable to be closed completely because a shirt was stuffed in the opening”); Fields, 932 S.W.2d at 104 (finding link where drugs were found concealed beneath closed hood of care whose hood latch was controlled from interior).
Appellant had control over the van and its contents based on evidence that he had arrived in the van from St. Petersburg with the two other occupants, none of whom owned the rented vehicle, had access to the van during the entire time it was surveyed, and had loaded and unloaded the van with the other occupants and occupied it the entire day of the surveillance and arrest. Cf. Robinson, 174 S.W.3d at 327; Fields, 932 S.W.2d at 101, 104.
Additionally, the Bible, which contained the name of an unknown person, and the undated invitation to a family reunion with no identifying date or address, as well as the rented van with untraceable ownership suggested to officers familiar with narcotics trafficking that appellant and the other occupants of the van were, as in Robinson, “attempting to conceal their activities and to avoid revealing their identities, the ownership of the [vehicle] they were driving, and the real reason they had gone to Houston.” 174 S.W.3d at 328; cf. Fields, 932 S.W.2d at 101, 104.
For the foregoing reasons, I would hold that the evidence is legally and factually sufficient to establish appellant’s “care, custody, management, or control” over the three kilos of cocaine found behind his seat in the van in which he was traveling. I would, therefore, overrule appellant’s first issue and address his Batson issue.
Evelyn V. Keyes
Justice
Panel consists of Justices Jennings, Keyes, and Higley.
Keyes, J., dissenting.
Publish. Tex. R. App. P. 47.2(b).