NO. 07-04-0379-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
DECEMBER 8, 2005
______________________________
MICHAEL ERWIN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 114TH DISTRICT COURT OF SMITH COUNTY;
NO. 114-1933-03; HONORABLE CYNTHIA STEVENS KENT, JUDGE
_______________________________
Before QUINN, C.J., and REAVIS and HANCOCK, JJ.
MEMORANDUM OPINION
Following a plea of not guilty, appellant Michael Erwin was convicted by a jury of
possession of a controlled substance and sentenced to 60 years confinement and a
$10,000 fine. Presenting three issues, appellant challenges the (1) legal and (2) factual
sufficiency of the State’s evidence and (3) contends the trial court erred in allowing the
State to present enhancement evidence at the punishment phase.1 We affirm.
Appellant managed a car wash and detail business. He was arrested and charged
with possession of a controlled substance after officers discovered 19.4 grams of crack
cocaine hidden underneath the business.
Police officers obtained and executed a search warrant for appellant’s business
after surveillance revealed a number of vehicles arriving and leaving the business in a short
period of time without being washed. Appellant’s business consisted of a lot with a
padlocked building and several wash bays. Upon obtaining entry into the building, the
officers observed a plastic pill bottle containing white crumbs and powder on a glass shelf
and white crumbs, Zig-Zag rolling papers, and a set of handheld scales on a wooden
counter. The officers also discovered a locked closet in the front room. The key to the
closet was obtained from appellant. Inside the closet, officers found a set of digital scales,
a portion of a glass crack pipe, a razor blade with a white residue, a plastic baggie
containing a green leafy substance, and a doctor’s bill with appellant’s name on it.
The officers next searched the perimeter of the building. Outside, officers
discovered several empty plastic baggies in various locations and two plastic baggies
hidden beneath a traffic cone that contained several “off-white colored chunks.” While
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The State did not favor us with a brief.
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searching the perimeter, one of the officers observed a portion of the underpinning pulled
away from the side of the building. Suspicious, the officers searched the opening leading
beneath the house and observed two large plastic baggies containing off-white chunks.
The substance was sent to a crime lab for testing and was determined to be 19.4 grams
of crack cocaine.
The officers also conducted a canine search of appellant’s Lincoln Navigator vehicle.
The dog alerted officers to two locations in the vehicle; however, no narcotics were found.
The dog’s handler testified that the dog was capable of detecting the scent of narcotics in
a vehicle for a period of time even after any narcotics had been removed.
Appellant and two other individuals were present during the search. Following the
search, appellant was arrested for possession of the cocaine found beneath the building,
and the other two individuals were released. At the time of his arrest, appellant had more
than $500 in cash in his pockets and wallet.
By his first and second issues, appellant maintains the evidence was legally and
factually insufficient to prove beyond a reasonable doubt that he possessed the cocaine
found beneath his business. We disagree.
When both the legal and factual sufficiency of the evidence are challenged, we must
first determine whether the evidence is legally sufficient to support the verdict. Clewis v.
State, 922 S.W.2d 126, 133 (Tex.Cr.App. 1996). It is a fundamental rule of criminal law
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that one cannot be convicted of a crime unless it is shown beyond a reasonable doubt that
the defendant committed each element of the alleged offense. U.S. Const. amend. XIV;
Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 2005); Tex. Pen. Code Ann. § 2.01
(Vernon 2003).
In conducting a legal sufficiency review, we must determine whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979). This
standard is the same in both direct and circumstantial evidence cases. Burden v. State, 55
S.W.3d 608, 612-13 (Tex.Cr.App. 2001). We conduct this analysis by considering all the
evidence before the jury—whether proper or improper—so that we can make an
assessment from the jury's perspective. Miles v. State, 918 S.W.2d 511, 512 (Tex.Cr.App.
1996). We must uphold the jury's verdict unless it is irrational or unsupported by more than
a mere modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988).
After conducting a legal sufficiency review under Jackson, we may proceed with a
factual sufficiency review. Clewis, 922 S.W.2d at 133. Under this standard, we view all the
evidence without the prism of “in the light most favorable to the prosecution” and set aside
the verdict only if it is so contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Cr.App. 2000). We must
determine after considering all the evidence in a neutral light, whether the jury was
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rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d
477, 484 (Tex.Cr.App. 2004). In our review, we do not resolve any conflict of fact, weigh
any evidence, or evaluate the credibility of the witnesses, as this was the function of the
trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Cr.App. 1992).
First, in determining whether the evidence was sufficient to support appellant’s
conviction, we must review the elements the State was required to prove. Appellant was
charged with possession of cocaine of four grams or more but less than 200 grams. Tex.
Health & Safety Code Ann. § 481.115(d) (Vernon 2003). To prove unlawful possession of
a controlled substance, the State was required to prove by direct or circumstantial evidence
that the accused (1) exercised actual care, custody, control, or management over the
substance and (2) knew the matter he possessed was contraband. Id. at § 481.002(38);
Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Cr.App. 2005). The evidence must
establish the accused's connection with the controlled substance was more than just
fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex.Cr.App. 1995).
When the accused is not in exclusive possession of the place where contraband is
found or the contraband is not on the accused's person, additional independent facts and
circumstances must affirmatively link him to the contraband. Deshong v. State, 625 S.W.2d
327, 329 (Tex.Cr.App. 1981). An affirmative link is used to evaluate the sufficiency of the
evidence and generates a reasonable inference that appellant knew of the contraband’s
existence and exercised control over it. Brown, 911 S.W.2d at 747. Affirmative links may
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include, but are not limited to, (1) appellant's presence when the contraband was found; (2)
whether the contraband was in plain view; (3) appellant's proximity to and the accessibility
of the contraband; (4) whether appellant was under the influence of narcotics when
arrested; (5) whether appellant possessed other contraband when arrested; (6) whether
appellant made incriminating statements when arrested; (7) whether appellant attempted
to flee; (8) whether appellant made furtive gestures; (9) whether there was an odor of the
contraband; (10) whether other contraband or drug paraphernalia was present; (11)
whether appellant owned or had the right to possess the place where the drugs were found;
(12) whether the place the drugs were found was enclosed; (13) the amount of contraband
found; and (14) whether appellant possessed a large amount of cash. See Taylor v. State.
106 S.W.3d 827, 832 (Tex.App.–Dallas 2003, no pet.); Trejo v. State, 766 S.W.2d 381, 384
(Tex.App.–Austin 1989, no pet.). It is the logical force of these factors, individually or
combined, which determines whether the State's evidence links appellant to the
contraband. Trejo, 766 S.W.2d at 385.
In the present case, the evidence provides several affirmative links that raise
reasonable inferences of appellant’s knowledge and control of the cocaine found beneath
his business. Appellant was present when the cocaine was found. He was the manager
of the business and had the right to possess the area where the cocaine was found.
Appellant possessed the key to the locked closet where officers discovered what appeared
to be marihuana and assorted drug paraphernalia. Officers found a pill bottle containing
white crumbs and residue, rolling papers, plastic baggies containing what appeared to be
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cocaine, and other evidence of contraband throughout the property. A narcotics dog
detected the scent of narcotics in two locations in appellant’s vehicle. The amount of
cocaine found beneath the business was substantial and testimony indicated it would have
a significant street value. At the time of his arrest, appellant possessed more than $500
in cash.
Notwithstanding the affirmative links establishing his knowledge and possession of
the substance, appellant contends it could have been placed there by someone else
because there were other persons with access to the property. He also directs us to
testimony that no officer observed him beneath the house or in actual possession of the
cocaine. However, considering the evidence, we find that a rational jury could have
reasonably reached the conclusion that appellant knew of and possessed the cocaine
beneath his business. An officer with the narcotics unit testified that it is “very common”
for individuals to stash narcotics beneath a house so as to avoid police detection.
Furthermore, the jury, as trier of fact, may choose to believe all, some, or none of any
witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Cr.App. 1986). A jury's
decision is not manifestly unjust merely because it resolved conflicting views of evidence
in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Cr.App. 1997).
Viewing the evidence in the light most favorable to the prosecution, we conclude a
rational trier of fact could have found beyond a reasonable doubt that appellant possessed
the cocaine beneath the business. We further conclude that the evidence is not so weak
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that the jury’s verdict was clearly wrong and unjust, nor is the verdict so against the
overwhelming weight of the evidence as to be clearly wrong and unjust. We find the
evidence is legally and factually sufficient to support appellant’s conviction. Appellant’s first
and second issues are overruled.
By his third point, appellant contends the trial court erred in allowing the State to
present enhancement evidence at the sentencing phase. We disagree. Appellant was
charged with possession of a controlled substance under section 481.115(d) of the Texas
Health & Safety Code, a second degree felony punishable by imprisonment for a term of
not more than 20 years or less than 2 years. Prior to the punishment phase, the State
provided appellant with a notice of intent to seek enhancement based on a prior conviction
pursuant to Brooks v. State, 957 S.W.2d 30, 31-34 (Tex.Cr.App. 1997). The enhancement
increased the punishment range up to a first degree felony punishable by imprisonment for
a term of not more than 99 years or less than 5 years. Appellant pleaded not true to the
enhancement provision; however, the jury subsequently found it to be true and sentenced
him to 60 years confinement.
In his argument, appellant relies on Apprendi v. New Jersey, 530 U.S. 466, 120 S.
Ct. 2348, 147 L. Ed.2d 435 (2000), and the recently decided case of Blakely v. Washington,
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed.2d 403 (2004), for the proposition that his prior
convictions should have been pled in an indictment and proven beyond a reasonable doubt.
This argument is without merit. Apprendi stands for the proposition that “[o]ther than the
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fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Apprendi, 530 U.S. at 490. Blakely broadened Apprendi’s holding to
include any fact “‘which the law makes essential to the punishment.’” Blakely, 124 S. Ct.
at 2537 (quoting 1 J. Bishop, Criminal Procedure § 87, p. 55 (2d ed. 1872)).
Here, appellant’s maximum range of punishment was increased on the basis of a
prior conviction, not unadjudicated facts. Neither Apprendi nor Blakely apply to
enhancements on the basis of prior convictions, and appellant fails to cite any case law to
the contrary. Appellant’s third issue is overruled.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
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Michael Erwin v. State
Combined Opinion