TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-98-00547-CR
v.
The State of Texas, Appellee
NO. A-98-0066-S, HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING
BACKGROUND
On November 20, 1997, officers from the Rio Concho Multi-Agency Drug Enforcement Task Force applied for, received, and executed a search and arrest warrant for the arrest of Gary Gray and Dwain Clemons and the search of Gray's residence. While conducting surveillance of Gray's residence, officers observed a vehicle depart the premises. Unsure if Gray was in the vehicle, the officers followed it to a transmission shop. An individual exited the vehicle and entered the shop. As the individual re-entered the vehicle to depart, one of the officers conducting the surveillance identified him as Gray. The officers stopped the departing vehicle, which contained three passengers: Gray, Jacquelynn Goodloe (Gray's wife), and Clemons. Goodloe was seated in the passenger seat, and as an officer approached her side of the car, he noticed a white cloth in her hands. After Goodloe was removed from the car, a rolled-up white sock was found on the ground next to the passenger door. The sock contained three plastic bags of cocaine totaling approximately twenty grams, a bag of marihuana, an empty pill bottle, and a package of rolling papers. Goodloe had been seated inches away from Gray, the driver. Officers found $1,314 in cash on Gray and $602 in cash on Clemons, who had been seated in the back of the car. Of the cash seized from Gray and Clemons, $1,200 was in twenty-dollar denominations, for a total of sixty twenty-dollar bills. The average price of rock cocaine in San Angelo was twenty dollars. Drug paraphernalia used for rocking cocaine was also seized, namely a test tube and a razorblade. Additionally, Clemons and Goodloe both had crack pipes in their possession. No drugs or drug paraphernalia were found in Gray's physical possession.
Gray was tried and convicted by a jury of knowingly possessing approximately twenty grams of cocaine. See Tex. Health & Safety Code Ann. § 481.115. Gray was also found to be a repeat offender, which elevated the offense to a felony of the first degree. See Tex. Health & Safety Code Ann. § 481.107 (West 1992 & Supp. 1999). Gray appeals his conviction in two points of error arguing (1) the evidence is legally insufficient to support the conviction, and (2) the evidence is factually insufficient to support the conviction. Specifically, Gray argues that the evidence affirmatively linking him to the cocaine was legally and factually insufficient to prove the knowledge element of the crime of possession beyond a reasonable doubt.
DISCUSSION
Gray argues the evidence is legally and factually insufficient to prove beyond a reasonable doubt he knowingly possessed the cocaine found in his car. In order to prove Gray knowingly possessed the cocaine found in the sock, the State was required to prove: (1) he exercised care, control, and management of the cocaine; and (2) he knew the substance he possessed was cocaine. See Martinets v. State, 884 S.W.2d 185, 187 (Tex. App.--Austin 1994, no pet.) (citing Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988) and Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986)).
Because Gray was not in exclusive control of the cocaine, the State must prove independent facts and circumstances affirmatively linking Gray to the cocaine. See Martinets, 884 S.W.2d at 187 (citing Cude, 716 S.W.2d at 47). Some factors that have been found to provide affirmative links of knowing possession are: (1) presence of the accused when the search was executed; (2) the contraband was in plain view; (3) the contraband was found in a place controlled by the accused; (4) the contraband was found in a vehicle driven by the accused; and (5) the accused's proximity, or access, to the contraband. See Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981); State v. Derrow, 981 S.W.2d 776, 779 (Tex. App.--Houston [1st Dist.] 1998, pet. ref'd). The purpose of demonstrating these affirmative links is to show that the accused's connection with the contraband is more than simply fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). In demonstrating the affirmative links between the accused and the contraband, we are mindful that each case must be reviewed and considered on its own facts. See Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.--Austin 1991, pet. ref'd).
Legal Sufficiency
We first examine the legal sufficiency of the evidence. When reviewing legal sufficiency, the relevant question for this Court is, after viewing the evidence in the light most favorable to the verdict, could a rational trier of fact have found beyond a reasonable doubt that Gray knowingly possessed the cocaine. See Martinets, 884 S.W.2d at 187 (citing Jackson v. Virginia, 443 U.S. 307 (1979) and Geesa v. State, 820 S.W.2d 154, 156 (Tex. Crim. App. 1988)).
The State offered evidence that Gray was the driver of the automobile from which the drugs were seized. The drugs were contained in a rolled-up sock that was clearly visible to Gray in the hands of his common-law wife Goodloe, who was seated in the passenger seat. Gray's proximity to Goodloe gave him easy access to the contraband. The State also showed that, upon their arrest, Gray and Clemons had in their possession $1,916 in cash, of which $1,200 was in twenty-dollar bills. The jury was informed that twenty dollars was the street price of crack cocaine in San Angelo. Additionally, the State entered into evidence Gray's statement to Goodloe upon their arrest to "don't say nothing," which could indicate guilty knowledge on Gray's part. Also, both passengers had crack pipes and drug paraphernalia in their possession. We agree with the State that the evidence viewed in the light most favorable to the verdict is legally sufficient to support the conviction. The affirmative links between Gray and the cocaine can be found in the nature of Gray and Goodloe's relationship, Gray's possession of a large amount of cash, his statement upon arrest, his control of the vehicle, and his access to the cocaine while he was in the vehicle. Accordingly, we overrule Gray's first point of error.
Factual Sufficiency
Gray's next point on appeal challenges the factual sufficiency of the evidence. In an analysis of factual sufficiency, we determine whether the jury's verdict is so contrary to the overwhelming weight of evidence as to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); see also Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd untimely filed). In reviewing factual sufficiency, we consider the evidence as a whole, not in a light favorable to either party. See Clewis, 922 S.W.2d at 129; see also Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We must be appropriately deferential to the original trier of fact so as to avoid substituting our own judgment for that of the jury. See Clewis, 922 S.W.2d at 133. Determining the credibility of witnesses and weighing the evidence are within the province of the jury as trier of fact. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). The possibility that reasonable minds could differ over the conclusions drawn from the evidence does not justify a reversal of the jury's verdict. See Richardson v. State, 973 S.W.2d 384, 387 (Tex. App.--Dallas 1998, no pet.).
To support his claim that the evidence of possession is factually insufficient, Gray offers the testimony of Clemons, who testified that the sock was his and that Gray had no knowledge it contained drugs. However, the State was able to show that even though Clemons claimed ownership of the sock, he was unable to correctly identify its contents. Gray also points to testimony by the arresting officers that it was impossible to determine the contents of the sock without unrolling it, arguing that this supports his claim that he had no knowledge of the sock's contents. The State counters that if Gray was truly ignorant of the sock's contents, common sense demands that a husband with a clear view of a rolled-up sock in his wife's hands would inquire what it was and why it was in her hands.
In further support of his contention that the evidence is factually insufficient, Gray directs this Court to testimony by the arresting officers that they could not identify the exact denominations of cash seized from Gray and Clemons individually; the officers only knew the total number of twenty-dollar bills seized from both individuals and could not indicate the exact number seized from Gray. Yet, a jury using simple mathematics could deduce that at least $600 of the $1,200 in twenty-dollar bills came from Gray because only $602 was seized from Clemons. Thus, at least thirty ($600) of the sixty twenty-dollar bills seized during the arrest of Gray and Clemons were Gray's. Gray further argues an alternative explanation for the large quantity of cash found in his and Clemons's possession; Clemons had received a $4,021 tax refund seven days before and had allegedly given Gray $1,200 as a down-payment for a car. However, the mere existence of an alternative hypothesis does not make the jury's verdict factually insufficient. See Richardson, 973 S.W.2d at 387. It is the jury's role to determine the credibility of witnesses and weigh the evidence. See Sharp, 707 S.W.2d at 614. The duty of this Court is to determine if the jury's finding that Gray knowingly possessed cocaine is so against the great weight of evidence as to be manifestly wrong and unjust. See Clewis, 922 S.W.2d at 129; see also Stone, 823 S.W.2d at 381.
Considering the evidence as a whole, we do not find the jury's verdict to be manifestly wrong or unjust. Not only was the jury presented with the evidence discussed with regard to legal sufficiency that tended to support the State's case, but also the jury witnessed Clemons's seemingly contradictory testimony--claiming both ownership of the sock and that Gray had no knowledge it contained drugs, yet being unable to correctly identify the sock's contents. The evidence also allowed the jury to calculate that at least thirty of the sixty twenty-dollar bills seized by the police were from Gray. In weighing the evidence and judging the credibility of witnesses, the jury was free to discount Gray's claim of a legitimate source for the cash in the face of contradictory evidence. See Sharp, 707 S.W.2d at 614. We find the evidence against Gray factually sufficient to support his conviction for knowingly possessing cocaine, and we overrule his second point of error.
CONCLUSION
Having overruled both of Gray's points of error, we affirm the trial court's judgment of conviction.
Mack Kidd, Justice
Before Chief Justice Aboussie, Justices Kidd and Patterson
Affirmed
Filed: July 15, 1999
Do Not Publish
r own judgment for that of the jury. See Clewis, 922 S.W.2d at 133. Determining the credibility of witnesses and weighing the evidence are within the province of the jury as trier of fact. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). The possibility that reasonable minds could differ over the conclusions drawn from the evidence does not justify a reversal of the jury's verdict. See Richardson v. State, 973 S.W.2d 384, 387 (Tex. App.--Dallas 1998, no pet.).
To support his claim that the evidence of possession is factually insufficient, Gray offers the testimony of Clemons, who testified that the sock was his and that Gray had no knowledge it contained drugs. However, the State was able to show that even though Clemons claimed ownership of the sock, he was unable to correctly identify its contents. Gray also points to testimony by the arresting officers that it was impossible to determine the contents of the sock without unrolling it, arguing that this supports his claim that he had no knowledge of the sock's contents. The State counters that if Gray was truly ignorant of the sock's contents, common sense demands that a husband with a clear view of a rolled-up sock in his wife's hands would inquire what it was and why it was in her hands.
In further support of his contention that the evidence is factually insufficient, Gray directs this Court to testimony by the arresting officers that they could not identify the exact denominations of cash seized from Gray and Clemons individually; the officers only knew the total number of twenty-dollar bills seized from both individuals and could not indicate the exact number seized from Gray. Yet, a jury using simple mathematics could deduce that at least $600 of the $1,200 in twenty-dollar bills came from Gray because only $602 was seized from Clemons. Thus, at least thirty ($600) of the sixty twenty-dollar bills seized during the arrest of Gray and Clemons were Gray's. Gray further argues an alternative explanation for the large quantity of cash found in his and Clemons's possession; Clemons had received a $4,021 tax refund seven days before and had allegedly given Gray $1,200 as a down-payment for a car. However, the mere existence of an alternative hypothesis does not make the jury's verdict factually insufficient. See Richardson, 973 S.W.2d at 387. It is the jury's role to determine the credibility of witnesses and weigh the evidence. See Sharp, 707 S.W.2d at 614. The duty of this Court is to determine if the jury's finding that Gray knowingly possessed cocaine is so against the great weight of evidence as to be manifestly wrong and unjust. See Clewis, 922 S.W.2d at 129; see also Stone, 823 S.W.2d at 381.
Considering the evidence as a whole, we do not find the jury's verdict to be manifestly wrong or unjust. Not only was the jury presented with the evidence discussed with regard to legal sufficiency that tended to support the State's case, but also the jury witnessed Clemons's seemingly contradictory testimony--claiming both ownership of the sock and that Gray had no knowledge it contained drugs, yet being unable to correctly identify the sock's contents. The evidence also allowed the jury to calculate that at least thirty of the sixty twenty-dollar bills seized by the police were from Gray. In weighing the evidence and judging the credibility of witnesses, the jury was free to discount Gray's claim of a legitimate source for the cash in the face of contradictory evidence. See Sharp, 707 S.W.2d at 614. We find the evidence against Gray factually sufficient to support his conviction for knowingly possessing cocaine, and we overrule his second point of error.
CONCLUSION
Having overruled both of Gray's points of error, we affirm the trial court's judgment of conviction.
Mack Kidd, Justice