11th Court of Appeals
Eastland, Texas
Opinion
Morris Landon Johnson, II
Appellant
Vs. No. 11-04-00047-CR -- Appeal from Erath County
State of Texas
Appellee
The jury convicted appellant, Morris Landon Johnson, II, of the offense of possession of methamphetamine in the amount of 4 grams or more but less than 200 grams. The jury assessed punishment at 20 years confinement and a $5,000 fine. In a single issue, appellant challenges the sufficiency of the evidence to support his conviction. We affirm.
Background Facts
Appellant was charged with two possession of methamphetamine offenses, both occurring on April 1, 2003. In Cause No. 11,747, the indictment charged that appellant intentionally and knowingly possessed methamphetamine in an amount of one gram or more but less than four grams. In Cause No. 11,748, the indictment charged that appellant intentionally and knowingly possessed methamphetamine in an amount of 4 grams or more but less than 200 grams. Cause No. 11,747 arose out of an incident that occurred during the morning of April 1, 2003. Appellant pleaded guilty in Cause No. 11,747, and the jury assessed punishment at 10 years confinement. Appellant does not appeal from his conviction in Cause No. 11,747. Cause No. 11,748 arose out of an incident that occurred during the afternoon of April 1, 2003. Appellant appeals from his conviction in Cause No. 11,748.
Summary of the Evidence
The State called six witnesses at the guilt/innocence phase of the trial: (1) Curtis Lee Dees, an officer with the Stephenville Police Department; (2) Jeffrey David Koplin, an officer with the Stephenville Police Department; (3) Holly Bays, a detective with the Stephenville Police Department assigned to the S.T.O.P. Narcotics Task Force (Task Force); (4) Jay Stubbs, a deputy with the Johnson County Sheriff’s Office assigned to the Task Force; (5) Chris Youngkin, a criminalist with the Texas Department of Public Safety Crime Laboratory in Garland; and (6) William L. Todsen, a criminalist with the Texas Department of Public Safety Field Crime Laboratory in Abilene. Appellant called two witnesses at the guilt/innocence phase of the trial: (1) Melissa Beth Horton; and (2) appellant.
Officer Dees testified that, during the morning of April 1, 2003, he and Officer Koplin arrested appellant for outstanding DPS warrants. Officer Dees searched appellant for weapons and contraband and found a plastic bag containing a white substance in the right front pocket of appellant’s blue jeans. Officer Dees thought that the bag contained methamphetamine. Appellant told him that the substance was MSM, which was a product for headaches. Officer Dees took appellant to the county jail in connection with the DPS warrants. Field tests on the substance found in appellant’s pocket revealed that it was methamphetamine. Officer Dees sent the substance to the DPS laboratory in Abilene for further testing.
Officer Dees and Officer Koplin obtained a felony warrant for appellant’s arrest in connection with the methamphetamine. They went to the jail to serve appellant with the warrant, but appellant had already been released from the jail. Officer Dees and Officer Koplin went to appellant’s father’s house looking for appellant. Appellant’s father told them that appellant had gone to Horton’s house to return her vehicle to her. Officer Dees and Officer Koplin went to Horton’s house at 1086 West Oak Street and saw Horton’s vehicle parked at the house. Officer Coots also went to the house.
Officer Dees and Officer Koplin went to the front door of Horton’s house. Officer Coots went to the back of the house. Officer Dees and Officer Koplin could hear several people talking and laughing inside the house. When they knocked on the door, it got quiet inside; and then the officers heard shuffling around and a lot of activity going on inside the house. Horton opened the door, told the officers that appellant was inside the house, and let Officer Dees inside the house. Officer Dees looked to his left and saw appellant sitting on a couch with two other subjects. Officer Dees arrested appellant for the methamphetamine warrant.
Officer Dees looked around the room when he placed appellant under arrest. He saw drug paraphernalia on a small table in the room, including syringes and two spoons containing a white residue. Officer Dees believed that the spoons had been used to cook methamphetamine and that the syringes had been used to inject the cooked methamphetamine into the body. Appellant was probably within five to eight feet of the drug paraphernalia. Officer Dees took appellant to his patrol car. Based on the drug paraphernalia that he had seen, Officer Dees asked Horton for consent to search the house. Horton denied consent. Officer Dees requested Detective Bays to obtain a search warrant for the house. Officer Dees said that Angela Babkowski, Harold Nichols, Jerry Stewart, Christopher Mayhall, Amanda Carpenter, and Shawn Brooks were also present inside the house. The officers handcuffed each of the persons and took them to the front yard to secure the house until Detective Bays arrived with a search warrant. Members of the Task Force conducted the search of the house.
Officer Koplin testified that he and Officer Dees arrested appellant for outstanding DPS warrants during the morning of April 1. At that time, Officer Koplin noticed several track marks on appellant’s arms. Officer Koplin believed that the track marks were caused by the injection of a needle into the vein. Officer Koplin also testified about appellant’s arrest at Horton’s house. When he and Officer Dees got to the front door, they could hear several voices and laughter from inside the house. When they knocked on the door, it got quiet inside the house; and then they could hear scuffling from inside the house. About a minute later, Horton answered the door. She told the officers that appellant was inside. The officers followed Horton inside the house. Officer Koplin saw appellant sitting on a sofa with two other subjects. Officer Koplin saw cook spoons and other drug paraphernalia on a table in the room where appellant was sitting. Officer Dees took appellant to the patrol car, and Officer Koplin stayed in the house with the other people who were present. The officers secured the house until Detective Bays arrived with the search warrant.
Detective Bays testified that she obtained the search warrant for Horton’s house and participated in the search. She seized and took possession of the physical evidence that was located in the house. Other Task Force officers also participated in the search. Detective Bays took photographs of the house and the contraband found during the search. The house had an open living room area, one bedroom (Horton’s room), another room that had been converted to a second bedroom (identified as Courtney’s room), a bathroom, a kitchen, and a hallway. Appellant had been sitting on a couch in Courtney’s room before he was arrested. The vast majority of contraband seized during the search came out of Courtney’s room, including a blue box with syringes in it, digital scales with methamphetamine on them, a Coke can with a marihuana roach on top of it, spoons with methamphetamine residue in them, other syringes, and bags to store drugs. The scales were on a pillow in the middle of the room and had a white substance on them. The white substance was not stuck to the scales. It was a loose, powdery-type substance. The scales would have had to have been set down on the pillow for the substance to stay on the scales. Detective Bays took the substance off of the scales, packaged it, and sent it to the laboratory for testing. The Task Force officers also found syringes and a bag of methamphetamine under a mattress in Horton’s bedroom. In the living room, they found a syringe on the couch, a firebox containing a bag with syringes, a cook spoon and a needle in the couch cushions, and a bag of methamphetamine just inside the front door of the house. Detective Bays sent the contraband that they seized to the DPS laboratory for testing. The testing revealed methamphetamine and a marihuana roach.
Detective Bays knew that Horton’s house was frequented by drug users and traffickers. She described the house as a crack house or a place to go to buy or use dope.
Deputy Stubbs provided chain of custody testimony about the drug exhibits that Detective Bays seized from Horton’s house.
Youngkin examined the drugs that Detective Bays sent to the DPS laboratory for testing. Youngkin tested five substances. Four of the substances contained methamphetamine and weighed, including adulterants and dilutants, as follows: (1) .46 grams; (2) .03 grams; (3) .01 grams; and (4) 3.59 grams. The other substance was .08 grams of marihuana. The aggregate weight of all of the methamphetamine was 4.09 grams. The evidence established: (1) that the .46 grams of methamphetamine came from the bag that was found just inside the front door of the house; (2) that the .03 grams of methamphetamine came from a spoon that was found on a dresser in Courtney’s room; (3) that the .01 grams of methamphetamine came from the scales that were found in Courtney’s room; and (4) that the 3.59 grams of methamphetamine came from the bag that was found under the mattress in Horton’s bedroom.
Todsen testified that he tested the substance that Officer Dees sent to the DPS laboratory in Abilene for testing. The substance weighed 1.44 grams and contained methamphetamine.
Horton testified that she and appellant had been pretty good friends for years. Horton described her house as a dope house. Spoons with dope and other various drug paraphernalia were present all over the house. The house was very messy and had trash all over the floor.
Horton testified about the April 1, 2003, incident. Nichols was a dope dealer and brought close to a gram of methamphetamine to Horton’s house on April 1. On the same day, Brooks brought three to four grams of methamphetamine with him. Brooks tried to sell some of his methamphetamine while he was at the house. Brooks was also sharing some of the methamphetamine. Nichols and Brooks went into the middle bedroom (Courtney’s room) and started mixing up a shot of methamphetamine. Appellant had borrowed Horton’s vehicle. Appellant brought Horton’s vehicle to her and then waited for her to give him a ride home. While he waited, appellant sat on a couch in Courtney’s room. The police officers came to the house looking for appellant. At about that time, Brooks and Stewart came out of the back bedroom (Horton’s room). The officers arrested appellant and took everyone out into the front yard. Horton did not believe that appellant possessed any methamphetamine while he was at her house on April 1.
Appellant testified that he had methamphetamine in his pocket when he was arrested during the morning of April 1, 2003. Appellant and Horton had been friends for years. Appellant went to Horton’s house during the afternoon of April 1, and then he waited for Horton to give him a ride home. Appellant went into Courtney’s room and sat down. He saw some spoons on the dresser when he walked into the room. Nichols and Carpenter were in the room with him. The house smelled like trash and was a wreck. Appellant said that he did not know about the methamphetamine that was in the back bedroom (Horton’s room). Appellant knew that you could get dope at Horton’s house. Appellant said that a lot of people were doing drugs at Horton’s house on the date of the incident. Appellant said that, when he was being arrested, he saw Brooks pull scales out of his pocket and throw them. The scales landed on a pillow in Courtney’s room, and the methamphetamine stuck on top of the scales.Sufficiency of the Evidence at Trial
Appellant contends that the evidence is legally and factually insufficient to support his conviction for possession of methamphetamine. Specifically, appellant contends that the evidence is insufficient to link him to the 3.59 grams of methamphetamine that was found under the mattress in the back bedroom. In order to determine if the evidence is legally sufficient, we must review all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex. Cr.App.2004); Ross v. State, 133 S.W.3d 618 (Tex.Cr.App.2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). We review the fact finder’s weighing of the evidence and cannot substitute our judgment for that of the fact finder. Cain v. State, supra; Clewis v. State, supra. Due deference must be given to the jury’s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000); Jones v. State, 944 S.W.2d 642 (Tex.Cr.App.1996), cert. den’d, 522 U.S. 832 (1997). This court has the authority to disagree with the fact finder’s determination “only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.” Johnson v. State, supra at 9.
To prove unlawful possession of a controlled substance, the State must prove that (1) the accused exercised control, management, or care over the substance and (2) the accused knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Cr.App.2005). When, as in this case, the accused was not in exclusive possession of the place where the contraband was found, the evidence must affirmatively link the accused to the contraband. Brown v. State, 911 S.W.2d 744, 748 (Tex.Cr.App.1995). The “affirmative links rule” is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else’s drugs. Poindexter v. State, supra at 406.
In deciding whether the evidence is sufficient to link the defendant to contraband, the trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. Poindexter v. State, supra at 406. The factors that establish affirmative links between an accused and contraband include (1) whether the accused was present when the contraband was discovered; (2) whether the contraband was in plain view; (3) whether the accused was in close proximity to and had access to the contraband; (4) whether the accused was under the influence of narcotics when arrested; (5) whether the accused possessed other contraband when arrested; (6) whether the accused made incriminating statements when arrested; (7) whether the accused attempted to flee; (8) whether the accused made furtive gestures; (9) whether there was an odor of the contraband; (10) whether other contraband or other drug paraphernalia was present; (11) whether the place where the drugs were found was enclosed; and (12) whether the accused owned or had the right to possess the place where the drugs were found. See Swarb v. State, 125 S.W.3d 672, 684 (Tex.App. - Houston [1st Dist.] 2003, pet’n dism’d); Hyett v. State, 58 S.W.3d 826, 830 (Tex.App. - Houston [14th Dist.] 2001, pet’n ref’d). The number of factors present is of less import than the “logical force” or the degree to which the factors, alone or in combination, tend to affirmatively link the accused to the contraband. Hurtado v. State, 881 S.W.2d 738, 743 (Tex.App. - Houston [1st Dist.] 1994, pet’n ref’d)(citing Whitworth v. State, 808 S.W.2d 566, 569 (Tex.App. - Austin 1991, pet’n ref’d). Each case must be reviewed on its own facts for evidence of affirmative links. Whitworth v. State, supra at 569.
The evidence established several affirmative links between appellant and the methamphetamine. Appellant was present in the house when the officers arrived and discovered methamphetamine and drug paraphernalia in the house. Appellant said that a lot of people were doing drugs at the house. Appellant was sitting on a couch in Courtney’s room when the officers arrived. Methamphetamine and drug paraphernalia were in plain view in Courtney’s room. Appellant was about five to eight feet away from the contraband. The officers secured the house before the task force members conducted the search. The scales containing methamphetamine were on the pillow on the floor in Courtney’s room. Detective Bays said that the officers found the vast majority of the contraband in Courtney’s room. Horton said that Nichols and Brooks had mixed up a shot of methamphetamine in Courtney’s room.
The evidence also established that there was drug paraphernalia all over the house. The house was a known drug house, and appellant knew that he could get drugs at Horton’s house. Appellant had access to all of Horton’s house. Horton did not answer the door until about a minute after the officers knocked on the door. The officers heard a lot of shuffling and activity going on in the house after they knocked. The jury may have believed that someone hid the bag of methamphetamine under the mattress in Horton’s bedroom after the police knocked.
The evidence was legally and factually sufficient to affirmatively link appellant to the methamphetamine. Appellant’s issue is overruled.
This Court’s Ruling
The judgment of the trial court is affirmed.
TERRY McCALL
JUSTICE
June 2, 2005
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.