Affirmed and Memorandum Opinion filed February 27, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00089-CR
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DARRELL VICK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 1029457
O P I N I O N
Appellant, Darrell Vick, was charged by indictment with possession of cocaine weighing more than four grams and less than 200 grams. The indictment also contained two enhancement paragraphs alleging previous felony convictions. After considering the evidence, the jury found appellant guilty as charged in the indictment. Thereafter, the jury found the enhancement allegations to be Atrue@ and assessed his punishment at confinement in the state penitentiary for a term of 45 years. In two points of error, appellant contends: (1) the evidence is legally and factually insufficient to support the conviction; and (2) the trial court erred in denying his request for a jury instruction on the lesser included offenses of possession of one to four grams of cocaine, and possession of less than one gram of cocaine. We affirm.
Officers Bryant and Burleson of the Houston Police Department attempted to stop a car with an expired registration. The driver initially refused to stop, but after a short pursuit, the car pulled into the parking lot of a motel. The officers identified Michael McKay as the driver; appellant was a passenger. As appellant exited the car, Bryant saw a sandwich bag containing what appeared to be crack cocaine fall from the inside of appellant=s pants leg. The officers gathered the substance and field tested it. The substance tested positive for cocaine. Appellant was arrested. In a subsequent search of appellant=s person, Bryant discovered a crack pipe. The officers placed the crack pipe and cocaine together in an evidence bag. The crime lab determined the substance was 6.2 grams of crack cocaine, worth approximately $50 on the street.
In his first point of error, appellant contends the evidence is legally and factually insufficient to support his conviction because he never Apossessed@ the cocaine. Appellant testified that McKay tossed an object to him when the police attempted to stop their vehicle. Thus, appellant contends his momentary control over the object falls short of a Aknowing@ possession of illegal contraband.
In assessing the legal sufficiency of the evidence, the reviewing court considers 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 offense beyond a reasonable doubt. Threadgill v. State, 146 S.W.3d 654, 663 (Tex. Crim. App. 2004) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The Jackson standard of review A>gives full play to the jury=s responsibility fairly to resolve conflicts in the evidence, to weigh the evidence, and to draw reasonable inferences from the evidence.=@ Id. (quoting Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001)). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the evidence. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
To establish unlawful possession of a controlled substance, the State must prove: (1) appellant exercised control, management, or care over the substance; and (2) appellant knew the substance possessed was contraband. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). Regardless of whether the evidence is direct or circumstantial, it must establish appellant=s connection with the contraband was more than fortuitous. Id. When the accused is not in exclusive possession of the place where contraband is found, the State must show additional affirmative links between the accused and the contraband. Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.CHouston [14th Dist.] 2005, no pet.). An affirmative link generates a reasonable inference that the accused knew of the contraband=s existence and exercised control over it.[1] Johnson v. State, 658 S.W.2d 623, 627 (Tex. Crim. App. 1983). In deciding whether the evidence is sufficient to link the accused to 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. Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). An affirmative link can be established when the contraband is hidden in a place tied to the accused. Id. at 410B11.
Here, the crack cocaine was not found in the car, which appellant shared with McKay,[2] but, instead, was hidden on appellant=s person. When appellant exited the car, Officer Bryant observed the crack fall from inside the right leg of appellant=s pants. Appellant admitted he hid the crack cocaine in his pants. Bryant further testified appellant attempted to cover the cocaine with his foot. In fact, appellant tried to grind the crack cocaine rocks into dust, to allow the wind to blow the evidence away. Appellant testified he saw McKay selling drugs and asked for a ride. When a police car pulled in behind them, appellant said McKay threw something in his lap and told him to hold it. Appellant claims he panicked when McKay threw the crack in his lap. Appellant testified he knew Ait had to be crack,@ and that he needed to hide it from the police. Appellant further testified he realized Aif I don=t try to hide it and they catch me with it, then I=m going to jail.@ Thus, appellant=s own testimony establishes his knowing possession of the contraband.
In addition to the crack cocaine, the officers also recovered a crack pipe from appellant. Appellant admitted the crack pipe belonged to him and that he is a crack cocaine addict. Moreover, appellant admitted he knows what crack cocaine looks like. Although he testified he did not actually look at the package McKay threw in his lap, appellant said he assumed it was crack based on what McKay said, how he acted, and the fact that McKay is a drug dealer. Appellant testified he knew Ait had to be crack.@
We hold a reasonable jury could conclude from the evidence presented here that appellant knowingly exercised control over the cocaine. Accordingly, the evidence is legally sufficient to support the verdict.
In conducting a factual sufficiency review, we view the evidence in a neutral light and will set aside the verdict only if the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. State, 958 S.W.2d 404, 407B08 (Tex. Crim. App. 1997). A clearly wrong and unjust verdict occurs where the finding is Amanifestly unjust,@ Ashocks the conscience,@ or Aclearly demonstrates bias.@ Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). 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). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure that the trier of fact reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).
There are two ways in which the evidence may be insufficient. Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be evidence both supporting, and contrary to, the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond‑a‑reasonable‑doubt standard could not have been met and the guilty verdict should not stand. Id. If there is evidence that establishes guilt beyond a reasonable doubt which the trier of fact believes, the judgment cannot be reversed on sufficiency of the evidence grounds. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). Our analysis must consider the evidence appellant claims is most important in allegedly undermining the verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Appellant contends the evidence that undermines the verdict concerns the crack pipe, time of possession, and the ownership of the crack cocaine recovered.
The trier of fact is the sole judge of the credibility of the witnesses and is free to believe or disbelieve all, part, or none of any witness= testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). A decision is not manifestly unjust merely because the trier of fact resolved conflicting views of the evidence in favor of the State. Cain, 958 S.W.2d at 410. First, as previously discussed, Officer Bryant testified the 6.2 grams of crack cocaine dropped from inside appellant=s pants leg and appellant attempted to grind the crack rocks into dust so the wind would blow it away. Appellant denied trying to cover the crack with his foot. Appellant admitted one of the crack pipes recovered belonged to him, but claimed the rocks of crack did not. Appellant admitted there was less than one gram of crack left in the crack pipe, and argues this proves possession of less than four grams of cocaine. We presume the jury believed Officer Bryant and disbelieved all or part of appellant=s testimony.
Next, appellant contends the crack was not in his possession long enough for him to exert control over the contraband because McKay threw the bag containing the 6.2 grams of cocaine into his lap only seconds before police arrested him in the motel parking lot. Appellant admitted hiding the package of crack cocaine in his pants. Duration or length of time that a controlled substance is under the control of the possessor does not determine the question of possession. Brewer v. State, 500 S.W.2d 504, 506 (Tex. Crim. App.1973). According to his own testimony, appellant consciously decided to hide the crack, and actually hid the crack cocaine in his pants.
Finally, appellant claims he did not own the contraband because he could not afford the $50 price and he had no money on him when he was arrested. However, the statutory element of possession is not ownership, but control, care, or management. Appellant confessed to such control, care, or management when he admitted he hid the crack cocaine in his pants and knew Ait had to be crack.@ Balancing all the evidence, the contrary evidence is not so strong that the reasonable-doubt standard could not have been met. We presume the State=s evidence was believed by the trier of fact and, thus, establishes guilt beyond a reasonable doubt. Thus, we find the evidence factually sufficient to support the conviction. Accordingly, appellant=s first point of error is overruled.
In his second point of error, appellant contends the trial court erred by denying his request for a jury instruction on the lesser included amounts of possession of a controlled substance. A two‑part test (ARoyster@ test) is used to determine whether a lesser‑included offense must be submitted to a jury.[3] Campbell v. State, 149 S.W.3d 149, 152 (Tex. Crim. App. 2004). First, to be considered a lesser‑included offense, the lesser offense must be included within the proof necessary to establish the offense charged. Id. This means that the offense must come within the dictates of Article 37.09 of the Texas Code of Criminal Procedure.[4] Id. Second, some evidence must exist in the record that would permit a jury to rationally find that if appellant is guilty, he is guilty only of the lesser offense. Id.
Because Article 37.09 defines a lesser‑included offense both in terms of the offense charged and in terms of the facts of the case, the determination of whether an offense is a lesser‑included offense must be settled on a case‑by‑case basis. Id. Accordingly, we must analyze: 1) the elements of the offense actually charged, 2) the elements of the offense sought as a lesser‑included offense, and 3) the proof actually presented at trial to establish the elements of the charged offense to see if that proof showed the lesser‑included offense. Id. at 153. Article 37.09, in relevant part, states that an offense is a lesser‑included offense if Ait is established by proof of the same or less than all the facts required to establish the commission of the offense charged.@ Tex. Code Crim. Proc. Ann. art. 37.09(1).
A person commits a violation for simple possession, when Athe person knowingly or intentionally possesses a controlled substance . . .@ Tex. Health & Safety Code Ann. ' 481.115(a) (Vernon 2003).[5] The difference between offenses lies in the amounts possessed. Possession of less than four grams of a controlled substance may be a lesser-included offense of possession of more than four grams of a controlled substance. To determine whether an offense is a lesser‑included offense, we must evaluate the entire record and consider both the offense charged and the facts proven in this case. Campbell, 149 S.W.3d at 154.
Here, appellant admitted possessing the crack pipe while denying he Apossessed@ the baggie of crack cocaine. Appellant contends since the crack pipe was placed in the evidence bag with the crack cocaine, it is impossible to determine how much crack residue was contained in the pipe. However, appellant argues common street practice makes it unlikely there was more than one gram left in the pipe. Appellant then reasons that less than four grams of crack residue would be in the pipe, entitling him to a lesser-included offense instruction.
Appellant argues that if the jury believed his testimony that the crack pipe was his, and he used it to smoke crack, then the jury rationally could have found him guilty of only the lesser-included possession of either one to four grams, or less than one gram, of controlled substance. We do not agree. There are two ways in which the evidence may indicate that a defendant is guilty only of the lesser offense. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992). First, if there is more than a scintilla of evidence from any source that negates or refutes the element establishing the greater offense, or second, if the evidence is subject to more than one reasonable interpretation regarding the aggravating element and one of the interpretations negates or refutes the greater offense, the jury should be charged on the lesser‑included offense. Schweinle v. State, 915 S.W.2d 17, 19 (Tex. Crim. App. 1996).
Here, appellant unknowingly satisfied the legal definition of possession when he admitted hiding the contraband on his person. Thus, there is no evidence in the record before us that, if believed, would show appellant was guilty only of the lesser offense. Accordingly, we overrule appellant=s second point of error.
Having found appellant knowingly possessed the 6.2 grams of cocaine, and appellant was not entitled to a jury instruction on lesser-included charges, we affirm the judgment of the trial court.
/s/ J. Harvey Hudson
Justice
Judgment rendered and Memorandum Opinion filed February 27, 2007.
Panel consists of Justices Yates, Anderson, and Hudson.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] This court recently summarized a non-exclusive list of possible Aaffirmative links@ that Texas courts have recognized as sufficient, either singly or in combination, to establish a person=s possession of contraband. Olivarez, 171 S.W.3d at 291 (citing Washington v. State, 902 S.W.2d 649, 652 (Tex. App.CHouston [14th Dist.] 1995, pet. ref=d); Chavez v. State, 769 S.W.2d 284, 288‑89 (Tex.App.CHouston [1st Dist.] 1989, pet. ref=d)). The list included among others: the accused=s proximity to and the accessibility of the contraband; whether the accused owned or had a right to possess the place where the drugs were found; whether other contraband or drug paraphernalia were present; whether the accused made furtive gestures; and whether the conduct of the accused indicated a consciousness of guilt. Id.
[2] Both appellant and the State briefed affirmative links arguments. The State did not argue exclusive possession although the 6.2 grams of crack fell from appellant=s person. Thus, we will analyze the facts using an affirmative links analysis.
[3] Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981).
[4] An offense is a lesser included offense if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.
Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006).
[5] In the pertinent part, Section 481.115(a) reads:
(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 1, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.
(b) An offense under Subsection (a) is a state jail felony if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than one gram.
(c) An offense under Subsection (a) is a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams.
(d) An offense under Subsection (a) is a felony of the second degree if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 200 grams.
Tex. Health & Safety Code Ann. ' 481.115.