William Cook v. State

William Cook v. State

IN THE

TENTH COURT OF APPEALS

No. 10-96-182-CR

     WILLIAM COOK,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

 

From the 54th District Court

McLennan County, Texas

Trial Court # 95-581-C

                                                                                                                 

O P I N I O N

                                                                                                                       A jury convicted William Cook of the felony offense of possession of cocaine in an amount of four grams or more but less than 200 grams. See Tex. Health & Safety Code Ann. § 481.115 (Vernon Supp. 1997). The state alleged two prior felony convictions to enhance Cook to the level of a habitual offender. The court assessed punishment at life in the Texas Department of Criminal Justice, Institutional Division.  

      Cook alleges in his first point of error that the evidence was legally insufficient to affirmatively link him to the cocaine. Cook’s second point of error asserts that the evidence was factually insufficient to establish that Cook possessed the cocaine.

FACTUAL BACKGROUND

      This case arose out of an execution of a search warrant at the residence of Carolyn Washington on February 10, 1995. Officers entered the residence and found Cook in the bathroom standing over a running toilet. Upon a search of the residence, officers discovered 16.18 grams of cocaine in the bathroom underneath a white bowl in the towel closet. Officers also found 4.7 grams of cocaine in the left side of Washington’s bra and a Crown Royal bag in Washington’s possession which contained $2,485.00 in cash. As a result of the search, Cook was charged with possession of cocaine.

      Officer Rhudy testified that he kicked in the bathroom door and found Cook fully clothed standing over the commode. According to Rhudy, water was on the floor and around the rim of the commode and “[t]he commode was running as if it had just been flushed.” Rhudy testified that Cook appeared nervous and was sweating. Rhudy testified that Cook did not seem to be engaged in normal bathroom activities and he believed Cook had flushed something down the commode.

      Testimony showed that Washington and Cook were boyfriend and girlfriend and that Cook had been living with her since September 1994. The officers found men’s clothing in Washington’s closet. They also found a prescription pill bottle in Cook’s name in the house.

POSSESSION

      When an accused is charged with possession of a controlled substance, the State must prove: (1) the accused exercised care, control, or management over the contraband, and (2) the accused knew the matter was contraband. Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). If the contraband is discovered in a place where the accused does not have exclusive possession, the State must show additional facts and circumstances which affirmatively link the accused to the contraband. Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). Whether the evidence is direct or circumstantial, the state must establish “to the requisite level of confidence, that the accused’s connection with the drug was more than just fortuitous.” Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).

      We have used the following list of affirmative links to consider when determining possession: (1) the defendant’s presence when the search warrant was executed; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and the accessibility of the contraband; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia was present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; and (12) whether the place the drugs were found was enclosed. Collins v. State, 901 S.W.2d 503, 506 (Tex. App.—Waco 1994, pet. ref’d); accord Villarreal v. State, 865 S.W.2d 501, 503-504 (Tex. App.—Corpus Christi 1993, pet. ref’d); “The numbers of factors present is less important than the logical force of those factors, alone or in combination, establishing the elements of the offense.” Martinets v. State, 884 S.W.2d 185, 188 (Tex. App.—Austin 1994, no pet.).LEGAL SUFFICIENCY

      Cook’s first point of error asserts that the evidence is insufficient to affirmatively link him to the cocaine found in Washington’s bathroom. In reviewing a claim of legal insufficiency, the court reviews the evidence in the light most favorable to the verdict to 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, 318-319, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996).

      Looking only at the evidence favorable to the verdict, we find that Cook was present when the search warrant was executed. Testimony revealed that Cook was living with Washington and men’s clothes were found in the bedroom closet. Cook’s prescription medicine and notice for past due child support were also discovered in Washington’s house. Rhudy’s testimony provides circumstantial evidence that Cook exhibited furtive gestures by flushing narcotics down the commode. The officers promptly found the cocaine in the bathroom towel closet in close proximity to where Rhudy found Cook. Although Cook did not make any incriminating statements, Rhudy testified that he appeared nervous and was sweaty. A razor blade, which is often used to break the cocaine into rocks, was in plain view on the kitchen table.

      Based on this evidence, a rational trier of fact could have found beyond a reasonable doubt that Cook was in possession of the cocaine. Therefore, we find the evidence legally sufficient. 

      Accordingly, we overrule Cook’s first point.

FACTUAL SUFFICIENCY

      Cook asserts in his second point of error that the evidence is factually insufficient to establish that Cook possessed the cocaine. When presented with a factual insufficiency claim, we discard the prism of the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We reverse “only if [the verdict] is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Id.

      All of the evidence in the record related to the contested issue is considered. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Evidence which tends to prove the issue is compared with evidence which tends to disprove the issue. Id. We give appropriate deference to the jury’s decision and do not substitute our judgment for theirs. Clewis, 922 S.W.2d at 135. We do not set aside the “verdict merely because [we] feel that a different result is more reasonable.” Id. (quoting Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986)).

      As shown above, evidence exists which tends to prove that Cook possessed the cocaine found in the towel closet. Evidence that the contraband was not in plain view tends to disprove possession. Further, no one testified that Cook was under the influence of drugs or possessed any other contraband. No evidence exists that there was any odor of contraband. Surveillance officers did not see Cook during the three days the house was under surveillance.

      The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Santellan, 939 S.W.2d at 164. We must give due deference to the jury on these issues. Id. at 166. After reviewing all the evidence, we cannot say the verdict “is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Clewis, 922 S.W.2d at 134. Thus, we conclude the evidence is factually sufficient to sustain the conviction. We overrule Cook’s second point.

      Therefore, we affirm the judgment.

 

 

 

                                                                               REX D. DAVIS 

                                                                               Chief Justice

 

Before Chief Justice Davis

        Justice Cummings and

        Justice Vance

Affirmed

Opinion delivered and filed September 24, 1997

Do not publish

  Bradden argues that the evidence is legally and factually insufficient to support either his conviction for robbery or his conviction for evading arrest.  When reviewing the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether 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, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979).  We review factual sufficiency by considering all of the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex. Crim. App. April 21, 2004).

          Bradden argues that a rational juror could not have found that the State proved, beyond a reasonable doubt, that Bradden was the robber.  Specifically, Bradden notes that the police never found the paper money taken from the store, no fingerprints connected him to any of the evidence, and the DNA evidence was not conclusive.  The state may prove identity with circumstantial evidence.  Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986); Wilson v. State, 9 S.W.3d 852, 855 (Tex. App.—Austin 2000, no pet.).  Smith identified Bradden in court as the driver of the vehicle he pursued.  He identified the shirt as the shirt Bradden was wearing at the time.  He identified the mask and Maxwell Books bags found in the vehicle Bradden abandoned.  Thomas identified Bradden as the man he encountered in the alleyway wearing the diamond-patterned shirt.  Lujan identified Bradden as the man she had seen outside the bookstore, and identified the mask and shirt worn by the robber.

          Considering all of the evidence in the light most favorable to the verdict, the jury could rationally have found beyond a reasonable doubt that Bradden was the robber.  Jackson, 443 U.S. at 318-319, 99 S. Ct. at 2788-89.  The evidence is legally sufficient.  Considering all of the evidence in a neutral light, we cannot say the jury was not rationally justified in finding that Bradden was the robber.  Zuniga, 2004 WL 840786, at *7.  The evidence is factually sufficient.  We overrule this issue.

          Bradden argues that the evidence was legally and factually insufficient to support his conviction for evading arrest.  Specifically, he contends that the evidence is insufficient to prove that he was the operator of the vehicle and that he knew that Smith was a police officer.  Smith identified Bradden both at the time of the arrest and in court as the driver of the vehicle.  He testified that when he turned on the lights and siren of his unmarked police car, Bradden continued to travel down several residential streets, stopping only when he reached a dead end.  Smith testified that Bradden bailed out of the car and escaped by jumping a nearby fence.  These events were videotaped from Smith’s vehicle, and the jury viewed the videotape.  The jury could rationally have found beyond a reasonable doubt that Bradden was the driver of the vehicle.  The jury could also have rationally determined beyond a reasonable doubt that Bradden knew the driver of the vehicle pursuing him was a police officer and that Bradden took evasive action.  Finding the evidence legally and factually sufficient, we overrule this issue.

Impeachment

          Bradden argues that the trial court erred in allowing the State to impeach him with evidence of his 1972 convictions for robbery.  The State provided pre-trial notice that it may use two 1972 convictions for robbery, a 1978 conviction for aggravated robbery, and two 1979 convictions for aggravated robbery to impeach Bradden.  Texas Rule of Evidence 609(b) prohibits use of evidence of a conviction to impeach a witness if more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction substantially outweighs its prejudicial effect.  Tex. R. Evid. 609(b).  The trial court overruled Bradden’s objection to the use of the 1972 conviction.

          The Court of Criminal Appeals has identified five factors which the court should consider in balancing probative value against prejudicial effect: (1) the impeachment value of the prior conviction; (2) the temporal proximity of the prior conviction; (3) the similarity between the past crime and the offense being prosecuted; (4) the importance of the defendant’s testimony; and (5) the importance of the credibility issue.  Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992).  The trial court has “wide discretion” in determining the admissibility of a prior conviction under Rule 609.  Id. at 881.  We will set aside the court’s ruling if it “lies outside the zone of reasonable disagreement.”  Id.

Impeachment Value

          A crime involving deception has a higher impeachment value than a crime involving violence.  Id.  Crimes involving violence tend to be more prejudicial.  Id.  The State offered no evidence in the hearing concerning the facts of the prior convictions with regard to their impeachment value.  Robbery does not necessarily involve deception, but it does involve threats, force, or violence.  Based on the limited record before us, we hold that this factor weighs against admissibility.  See Jackson v. State, 50 S.W.3d 579, 592 (Tex. App.—Fort Worth 2001, pet ref’d).

Temporal Proximity

          Rule 609(b) renders a prior conviction presumptively inadmissible if it is one for which the witness had been released from custody more than ten years before trial.  Tex. R. Evid. 609(b); Jackson, 50 S.W.3d at 591; Butler v. State, 890 S.W.2d 950, 954 (Tex. App.—Waco 1995, pet. ref’d).  However, a trial court may nevertheless admit a conviction deemed too remote under this rule if the court determines that, under the “specific facts and circumstances,” the probative value of the conviction substantially outweighs its prejudicial effect.  Id.  The impeachment value of a “remote” prior felony conviction increases if the State offers evidence of the lack of reformation or subsequent felony and certain misdemeanor convictions.  See Lucas v. State, 791 S.W.2d 35, 51 (Tex. Crim. App. 1989); Jackson, 50 S.W.3d at 591.  The State introduced evidence that Bradden had aggravated robbery convictions in 1978 and 1979, and that Bradden had only recently been paroled for the 1978 conviction.  This constitutes evidence of a lack of reformation and subsequent felony convictions.  We hold that the facts and circumstances presented tend to support the trial court’s determination that the probative value of the 1972 conviction substantially outweighs its prejudicial effect.

Similarity to Charged Offense

          The fact that a prior conviction is similar to the present offense weighs against its admissibility because the similarity might lead a jury to “convict on the perception of a past pattern of conduct, instead of on the facts of the charged offense.”  Theus, 845 S.W.2d at 881.  Bradden’s 1972 conviction was for robbery, and he was on trial for robbery in this case.  Accordingly, this factor weighs against the admissibility of the prior conviction.

Importance of Defendant’s Testimony/Credibility

          When a case involves the testimony only of the defendant and the State’s witnesses, the importance of the defendant’s testimony and credibility escalates.  Id.  As the importance of the defendant’s credibility escalates, so does the need to allow the State the opportunity to impeach the defendant’s credibility.  Id.  These factors favor admissibility.

Summary

          We accord the trial court “wide discretion” in determining whether to admit a prior conviction for impeachment under Rule 609.  Id. at 881; White v. State, 21 S.W.3d 642, 646-47 (Tex. App.—Waco 2000, pet. ref’d).  Three of the five factors weigh in favor of admissibility.  Under these circumstances, we cannot say that the court’s decision “lies outside the zone of reasonable disagreement.”  See id.  We overrule the issue.

CONCLUSION

          Having overruled the issues, we affirm the judgment.

 

BILL VANCE

Justice

 

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

          (Chief Justice Gray concurs in the result without a separate opinion.)

Affirmed

Opinion delivered and filed December 8, 2004

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