Affirmed and Memorandum Opinion filed September 4, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00504-CR
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JOEL ALFRED DIXON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District
Harris County, Texas
Trial Court Cause No. 1014439
M E M O R A N D U M O P I N I O N
Appellant Joel Alfred Dixon was found guilty by a jury of the offense of possession of marihuana in an amount fifty pounds or less but more than five pounds. Tex. Health & Safety Code Ann. ' 481.121(a),(b)(4) (Vernon 2003). The jury assessed punishment at five years= incarceration in the Institutional Division of the Texas Department of Criminal Justice, and a $10,000 fine. In three issues, appellant contends the evidence is legally and factually insufficient to sustain his conviction, and the marihuana admitted into evidence at trial was obtained by police as a result of an illegal search conducted without a warrant or appellant=s consent. We affirm.
Factual and Procedural Background
On January 25, 2005, Barbara Jones gave appellant a ride to the Amtrak train station in downtown Houston. Jones parked her vehicle and helped appellant carry his luggage into the train station. Appellant and Jones entered the train station with three bags. Jones was carrying a black suitcase, and appellant was carrying a black duffel bag and a blue duffel bag. The black duffel bag contained appellant=s clothing and personal items. The blue duffel bag and black suitcase contained marihuana with a combined weight of 18.6 pounds. Appellant approached the ticket counter with the black duffel bag while Jones stood next to the blue duffel bag and black suitcase.
Houston Police Department (AHPD@) Officers Rudolph Gomez, Jr., Pedro Lopez, and Allen Heinle, members of the HPD narcotics interdiction squad, were present in the train station when appellant and Jones arrived. Gomez testified he was looking for an individual named Nixon or Dixon who reserved a one-way ticket to Washington, D.C. on January 24, 2005 and failed to show up to purchase the ticket. Appellant approached the ticket counter and stated that he wanted to check in his black duffel bag. Appellant had a reservation for a one-way trip to Washington, D.C. Gomez testified appellant was nervous and appeared to be Ascanning the area@ for people watching him. When Gomez approached appellant and identified himself as a police officer, appellant began shaking and would not look directly at Gomez. Gomez told appellant he was looking for narcotics and requested permission to search appellant=s luggage. Appellant consented to a search of his luggage and opened the black duffel bag to show its contents to Gomez. Gomez asked appellant if he had any more luggage, and appellant stated he had two more bags. When police officers approached Jones, she verified that the blue duffel bag and black suitcase belonged to appellant. Officer Heinle searched the two bags and found marihuana. Appellant was charged by indictment with possession of marihuana. After a jury trial, appellant was convicted and sentenced to five years= incarceration.
Discussion
I. Issues Presented
In his first and second issues, appellant argues the evidence is legally and factually insufficient to show that he knowingly or intentionally possessed marihuana. As part of his first issue, appellant contends the accomplice witness testimony of Barbara Jones is not sufficiently corroborated and therefore should not be considered in our analysis of the sufficiency of the evidence. We first determine whether Jones= testimony is sufficiently corroborated, and then we review the legal and factual sufficiency of the evidence. In his third issue, appellant argues he did not consent to the warrantless search of the two bags in which the marihuana was found.
II. Accomplice Witness Testimony
An accomplice witness is a person who participated before, during, or after the commission of an offense and could be prosecuted for the same offense with which the defendant was charged, or a lesser-included defense. See Blake v. State, 971 S.W.2d 451, 454B55 (Tex. Crim. App. 1998). Because Jones was indicted for the same offense as that with which appellant was charged, her status as an accomplice is established as a matter of law.[1] See DeBlanc v. State, 799 S.W.2d 701, 708 (Tex. Crim. App. 1990).
Article 38.14 of the Texas Code of Criminal Procedure provides: AA conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.@ Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). Under this rule, the reviewing court eliminates all of the accomplice testimony from consideration and then examines the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime. Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). The corroborating evidence need not be sufficient by itself to establish guilt beyond a reasonable doubt, nor must it directly link the appellant to the crime. Id. There must simply be some non-accomplice evidence which tends to connect the appellant to the commission of the offense alleged in the indictment. Id. The mere presence of the accused in the company of the accomplice before, during, and after the commission of the offense is insufficient by itself to corroborate the accomplice testimony. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). Evidence of such presence, however, coupled with other suspicious circumstances, may tend to connect the accused to the offense. Id. Following is a summary of the key non-accomplice testimony.
Officer Gomez testified he has been part of the HPD narcotics interdiction squad for thirteen years and has made hundreds of arrests during that time. The narcotics interdiction squad specializes in intercepting people using public transportation to transport narcotics. Gomez testified people transporting narcotics on public trains often make last-minute travel arrangements, purchase one-way tickets, pay cash, reserve sleeping compartments, and arrive shortly before their scheduled departure time. Gomez testified that on January 24, 2005, an individual named Nixon or Dixon reserved a one-way ticket to Washington, D.C. two hours before the scheduled departure time and failed to show up to purchase the ticket. Gomez went to the Amtrak station on January 25 dressed in plain clothes to conduct surveillance and look for an individual named Nixon or Dixon. Gomez testified appellant and Jones arrived at the train station together in an automobile. Jones retrieved a black suitcase from the trunk of the vehicle and carried it into the station. Appellant retrieved a black duffel bag and a blue duffel bag (containing marihuana) from the trunk of the vehicle and carried them into the train station. Jones and appellant entered the train station together and both appeared nervous. Jones stopped and stood near the entrance doors. Appellant placed the blue duffel bag on the floor next to Jones, and approached the ticket counter. Gomez testified appellant fit the profile of someone transporting narcotics because he purchased a one-way ticket, reserved a sleeping compartment, and appeared very nervous. Gomez testified that when he spoke to appellant, appellant Avisibly started shaking and really wouldn=t look [Gomez] square in the eyes.@ Gomez asked appellant if he had any luggage, and appellant pointed to the black duffel bag. Gomez told appellant he observed appellant entering the train station carrying the blue duffel bag and asked appellant if he had any other luggage. Appellant responded, AYeah, I have two other ones.@ Gomez testified appellant consented to a search of his bags, and marihuana was discovered in both the black suitcase and the blue duffel bag.
Officer Pedro Lopez testified appellant and Jones arrived at the train station together in an automobile. Lopez testified appellant carried two bags into the station, one of which contained marihuana. Officer Allen Heinle testified he recovered the drug evidence and sealed it in an evidence bag. Rosa Rodriguez, a chemist employed by the HPD Crime Lab, testified she analyzed the drug evidence identified as State=s Exhibit 13 and determined that it was 18.6 pounds of marihuana.
The non-accomplice testimony described above includes evidence that appellant carried a duffel bag containing marihuana into the train station while in the company of the State=s accomplice witness, Barbara Jones. Two police officers testified appellant and Jones arrived at the train station together with three pieces of luggage, two of which contained marihuana. Officer Gomez testified appellant fit the profile of someone transporting drugs because appellant reserved a ticket for a one-way trip with a sleeping compartment, appeared very nervous, and started shaking when Gomez approached him. Gomez further testified appellant stated he had Atwo other@ bags in addition to the black duffel bag appellant was attempting to check in when Gomez approached him. This non-accomplice evidence tends to connect appellant with the offense of possession of marihuana and therefore provides sufficient corroboration for the accomplice witness testimony of Barbara Jones. See Tex. Code Crim. Proc. Ann. art. 38.14; McAffee v. State, 204 S.W.3d 869, 871B72 (Tex. App.CCorpus Christi 2006, pet. ref=d) (finding police officers= testimony tended to connect defendant to possession of narcotics).
III. Legal and Factual Sufficiency of the Evidence
Appellant argues the evidence is legally and factually insufficient to show that he knowingly or intentionally possessed marihuana. Appellant contends the two bags containing marijuana belonged to Barbara Jones, and appellant was merely helping Jones to carry her luggage into the train station when he was arrested.
A. Standards of Review
In a legal sufficiency review, we view all 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, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness=s testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).
In a factual sufficiency review, we consider all the evidence in a neutral light. Prible v. State, 175 S.W.3d 724, 730B31 (Tex. Crim. App. 2005). The evidence may be factually insufficient in two ways. Id. at 731. First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust. Id. Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. In conducting a factual sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
B. Applicable Law
The State was required to prove beyond a reasonable doubt that appellant knowingly or intentionally possessed marihuana in a useable quantity fifty pounds or less but more than five pounds. See Tex. Health & Safety Code Ann. ' 481.121(a),(b)(4). 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. Crim. App. 2005). Whether the evidence is direct or circumstantial, it must establish an affirmative link showing that the accused=s connection with the contraband was more than just fortuitous. Id. at 405B06. The Aaffirmative links rule@ is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else=s contraband. Id. at 406. In deciding whether the evidence is sufficient to link the contraband, the trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. Id.
Courts consider the following non-exclusive list of factors in determining whether there is an affirmative link between the defendant and the contraband: (1) the defendant=s presence when the search was conducted; (2) whether the contraband was in plain view; (3) the defendant=s proximity to and accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed narcotics or other contraband when arrested; (6) whether the defendant made incriminating statements; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of narcotics; (10) whether other contraband or drug paraphernalia was present; (11) whether the defendant owned or had the right to possess the place where the contraband was found; (12) whether the place where the contraband was found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt. Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.CHouston [14th Dist.] 2005, no pet.). The number of linking factors present is not as important as the Alogical force@ they create to prove the crime was committed. Id.
C. Analysis
Barbara Jones testified appellant came to Houston to purchase marihuana. Jones testified appellant arrived in Houston and rented a hotel room approximately two days before he was arrested. Jones testified she went to appellant=s hotel room on January 24, 2005 and helped appellant package his marihuana in preparation for his trip. Jones testified she brought a vacuum sealing device, typically used for packaging food, to appellant=s hotel room and helped appellant use the device to package his marihuana in plastic bags. Jones testified that her boyfriend was supposed to receive some benefit in exchange for her helping appellant. Jones testified appellant called her on January 25 and asked her to give him a ride to the train station. Jones drove her automobile to appellant=s hotel room, and appellant loaded three pieces of luggage into her vehicle. All three of the bags belonged to appellant. Jones recognized two of the bags as the same ones she had seen appellant loading with marihuana the previous day. Jones testified appellant knew that two of the bags contained marihuana. Jones testified that all of the marihuana and luggage containing marihuana belonged to appellant, and appellant was planning to carry the bags containing marihuana with him onto the train. Jones further testified she helped appellant carry one of his three bags into the train station, but she was merely dropping appellant off at the train station and did not have a ticket to travel anywhere.
Appellant testified that the two bags containing marihuana belonged to Jones, and he did not know that the bags contained marihuana. Appellant testified he traveled to Houston from Virginia to visit friends, and had been in Houston for approximately one week prior to his arrest. Appellant testified he stayed at a friend=s house while visiting Houston, and denied renting a hotel room, purchasing marihuana, or packaging marihuana. Appellant testified he called Jones= boyfriend, Joseph Alcock, and asked for a ride to the train station. Appellant testified that Jones and Alcock lived together, and when appellant called their home, Jones told appellant that she was already planning to go to the train station and could give appellant a ride. Appellant testified he had only one piece of luggage, a black duffel bag, and the two bags containing marihuana belonged to Jones. Appellant testified that when he and Jones arrived at the train station, he helped Jones carry one of her bags into the train station, but he did not know the bag contained marihuana. Appellant was the only witness to testify for the defense.
As the sole judge of the credibility of the witnesses and the weight to be given to their testimony, the jury was free to believe the testimony of Barbara Jones, despite the conflicting testimony offered by appellant. See Jones, 984 S.W.2d at 257. Jones= testimony provided evidence of appellant=s intent to possess marihuana, and appellant=s exercise of management and control over the marihuana with which he was arrested. Officer Gomez= testimony, described in Section II of this opinion, provides evidence of appellant=s conduct indicating a consciousness of guilt. Gomez testified appellant was scanning the area inside the train station, appeared to be very nervous, and began physically shaking when approached by Gomez. Gomez further testified appellant entered the train station carrying a bag containing marihuana and fit the profile of a person transporting narcotics. Viewing all the evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt that appellant knowingly or intentionally possessed marihuana. See Muniz, 851 S.W.2d at 246. Accordingly, the evidence is legally sufficient and appellant=s first issue is overruled.
In support of his factual sufficiency challenge, appellant relies on the same evidence and arguments raised in his legal sufficiency challenge. Appellant contends the testimony of Jones is not sufficiently corroborated and, aside from Jones= testimony, the evidence is insufficient to show that appellant knowingly possessed marijuana. Appellant also points to his own testimony as evidence undermining the jury=s verdict. After reviewing all the evidence in a neutral light, we hold the evidence supporting the verdict is not so weak that the verdict is clearly wrong and manifestly unjust, nor is the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. See Prible, 175 S.W.3d at 730B31. Accordingly, the evidence is factually sufficient to prove appellant knowingly or intentionally possessed marihuana. See id. Appellant=s second issue is overruled.
IV. Consent to Search
In his third issue, appellant argues he did not consent to the warrantless search of the two bags in which the marihuana evidence was found. The State contends appellant failed to preserve this issue for appellate review. To preserve error for appellate review, the complaining party must make a specific, timely objection and obtain a ruling on the objection. Tex. R. App. P. 33.1; Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). In addition, the point of error on appeal must comport with the objection made at trial. Id. An objection stating one legal basis may not be used to support a different legal theory on appeal. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). Even constitutional errors may be waived by failure to object at trial. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).
Appellant did not move to suppress the drug evidence discovered by police as a result of the search of appellant=s luggage. Appellant contends, however, this issue has been preserved for appellate review because his trial counsel objected to the admission of the drug evidence at trial. Our review of the record shows that when the State offered the marihuana (State=s Exhibit 13) into evidence, appellant=s trial counsel made the following objection: AObject that the chain of custody hasn=t been shown.@ The trial court ruled, AWell, I will admit it, subject to chain of custody.@ At the conclusion of the State=s case-in-chief, counsel for the State re-offered the marihuana into evidence. The court admitted the marihuana into evidence, and appellant=s counsel did not object. Because appellant did not object to the admission of the marihuana on the grounds that appellant did not consent to the warrantless search of the bags in which the marihuana was found, we conclude appellant has failed to preserve this issue for appellate review. See Wilson, 71 S.W.3d at 349. Appellant=s third issue is overruled.
Conclusion
Having considered and overruled each of appellant=s issues on appeal, we affirm the judgment of the trial court.
/s/ John S. Anderson
Justice
Judgment rendered and Memorandum Opinion filed September 4, 2007.
Panel consists of Justices Anderson, Fowler, and Frost.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Jones testified she was charged as a co-defendant in appellant=s case and entered into a plea agreement with the State.