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Opinion filed January 17, 2008
In The
Eleventh Court of Appeals
_________
No. 11-06-00101-CR
________
ROBIN EUGENE OLIVER JR., Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 3rd District Court
Anderson County, Texas
Trial Court Cause No. 27195
O P I N I O N
Robin Eugene Oliver Jr. appeals his conviction by a jury of the offense of possession of marihuana in an amount of five pounds or less but more than four ounces. The trial court assessed his punishment at two years in the Texas Department of Criminal Justice, State Jail Division. He contends in three issues that the evidence is legally and factually insufficient to support his conviction; that the trial court erred in permitting hearsay testimony during the punishment phase of trial, outside any appropriate exception provided by law; and that the verdict and sentencing were invalid as he was not provided effective assistance of counsel. We affirm.
Oliver contends in issue one that the evidence is legally and factually insufficient to support his conviction. In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines 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, 319 (1979). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.
To prove the unlawful possession of contraband, the State must prove that the accused exercised control, management, or care over the contraband and knew that the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). When the accused is not in exclusive possession of the place where the contraband is found, it cannot be concluded that the accused had knowledge of and control over it unless there are additional facts and circumstances that affirmatively link the accused to the contraband. Id. at 406.
After officers responded to a call at the home of Sharon Fletcher, Oliver=s mother, they searched the house pursuant to a search warrant. When the search warrant was executed, officers found a quantity of marihuana in a large bag located in a white box under the bed in one of the bedrooms. A few photographs of Oliver were found in that bedroom, as well as correspondence addressed to him. Men=s clothing was also found in the room. We hold that the evidence is legally and factually sufficient to support the conviction. See Curtis v. State, 519 S.W.2d 883, 886 (Tex. Crim. App. 1975).
Oliver contends that the evidence showing that the bedroom was his was ambiguous and that, even if it were his bedroom, the contraband was discovered under his bed, not on his person. We hold that a rational jury could reasonably find that the bedroom was Oliver=s and that he exercised control, management, or care over the marihuana and knew that it was contraband. Oliver does not cite any authority to support his contention that the evidence must show that contraband was found on the defendant=s person rather than under his bed before it will be found to be sufficient, and we are not aware of any. His contention is refuted by Curtis. Id. We overrule issue one.
Oliver insists in issue two that the trial court erred by permitting hearsay testimony during the punishment phase of trial, outside any appropriate exception provided by law. The testimony to which he refers are State=s Exhibits Nos. 85, 86, and 87. Contrary to assertions by Oliver, each of these exhibits was admitted into evidence without objection. There being no objection at trial to any of those exhibits, nothing is presented for review. Tex. R. App. P. 33.1(a). We overrule issue two.
Oliver asserts in issue three that his verdict and sentencing were invalid as he was not provided effective assistance of counsel. He urges that his attorney=s representation of certain co-defendants created an actual conflict of interest. The possibility of a conflict of interest is insufficient to impugn a criminal conviction. Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). In order to demonstrate a violation of his or her Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer=s performance. Id. Oliver=s effort to demonstrate that there was an actual conflict of interest is conclusory and vague. We hold that he has failed to establish that there was an actual conflict of interest or that, if there were, it adversely affected his lawyer=s performance. Oliver relies on Cuyler, but we find nothing in that case inconsistent with this opinion. We overrule issue three.
The judgment is affirmed.
PER CURIAM
January 17, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill, J.[1]
[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.