Affirmed and Memorandum Opinion filed April 5, 2011.
In The
Fourteenth Court of Appeals
NO. 14-09-00771-CR
GREGORY KEITH PERKINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 1169762
MEMORANDUM OPINION
A jury convicted appellant, Gregory Keith Perkins, of possession of phencyclidine (“PCP”) weighing between four and two-hundred grams. In his first, second, and fourth issues, appellant contends the evidence is legally and factually insufficient to support his conviction and the trial court erred by denying his motion for a directed verdict. In his third issue, appellant contends the trial court erred by admitting evidence of an extraneous bad act. We affirm.
I. Background
In June 2008, Houston Police Department Officers Kelly V. Berg and James M. Crawford were sitting in a patrol car and monitoring an apartment complex known for narcotics activity, specifically PCP sales. The officers observed a person leaning against the passenger-side window of a vehicle parked in the apartment complex parking lot. Officer Berg suspected “hand-to-hand activity” was occurring, meaning a drug sale. The vehicle was then driven off the lot. After observing the driver of the vehicle fail to stop at a stop sign, the officers activated their patrol car emergency lights and pulled behind the vehicle. There were three occupants inside the vehicle: the driver, a front-seat passenger, and a back-seat passenger on the passenger side. The back-seat passenger was identified as appellant. The driver of the vehicle did not stop immediately but drove for another hundred meters during which time “[t]here was a lot of movement around inside the vehicle by all persons that were inside the vehicle.” When the car came to a complete stop, the driver and front-seat passenger were motionless. However, appellant continued to move. Officer Berg testified that he observed appellant “leaning forward, motioning like this with his hand (indicating). . . . And when he does that, I’m looking at the vehicle and I see something fall out of the vehicle.” Officer Berg did not actually observe appellant drop the item. Officer Crawford witnessed appellant lean forward but did not observe anything fall from the vehicle. When he approached the vehicle, Officer Berg saw that the discarded item was a vanilla extract bottle. It was later determined the bottle contained PCP.
Appellant and the other occupants were removed from the vehicle and handcuffed. Appellant initially lied to the officers regarding his name. After determining appellant’s real name, the officers learned there was an outstanding warrant for his arrest. Appellant was arrested and transported to jail where he was searched. A bag of powder was discovered in appellant’s shoe. The powder was later identified as cocaine.
II. Sufficiency of the Evidence
In his first and second issues, appellant contends the evidence is legally and factually insufficient to support his conviction. In his fourth issue, appellant contends the court erred by overruling his motion for a directed verdict. The crux of each of these issues is appellant’s contention that there is insufficient evidence to support the possession element of the charged offense.
A. Applicable Law and Standard of Review
In a prosecution for possession of a controlled substance, the State must prove beyond a reasonable doubt that the defendant (1) exercised actual care, custody, control, or management over the substance, and (2) knew that the substance was contraband. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). Whether the evidence is direct or circumstantial, it must establish that the defendant’s connection with the drug was more than fortuitous. Id. Mere presence at the location where drugs are found is thus insufficient, by itself, to establish actual care, custody, or control of those drugs. Id. at 162. However, presence or proximity, when combined with other evidence, either direct or circumstantial (e.g., affirmative links), may be sufficient. Id. An affirmative link generates a reasonable inference that the accused knew of the contraband’s existence and exercised control over it. See Washington v. State, 902 S.W.2d 649, 652 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d). However, the link need not be so strong that it excludes every other reasonable hypothesis except the defendant’s guilt. Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995). Further, it is not the number of links that is dispositive, but rather it is the logical force of all of the evidence, direct and circumstantial. Evans, 202 S.W.3d at 162. Relevant factors that may affirmatively link an accused to contraband include, but are not limited to, whether the defendant made furtive gestures and whether the conduct of the defendant indicated a consciousness of guilt. Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
While this appeal was pending, five judges on the Texas Court of Criminal Appeals held that only one standard should be employed to evaluate whether the evidence is sufficient to support a criminal conviction beyond a reasonable doubt: legal sufficiency. See Brooks v. State, 323 S.W.3d 893, 894–95 (Tex. Crim. App. 2010) (plurality op.); id. at 926 (Cochran, J., concurring). Accordingly, we review appellant’s challenge to factual sufficiency of the evidence under the legal-sufficiency standard. See Pomier v. State, 326 S.W.3d 373, 378 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (applying a single standard of review required by Brooks); see also Caddell v. State, 123 S.W.3d 722, 726–27 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (explaining that this court is bound to follow its own precedent).
When reviewing sufficiency of evidence, we view all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Brooks, 323 S.W.3d at 899 (plurality op.). We may not sit as a thirteenth juror and substitute our judgment for that of the fact finder by reevaluating the weight and credibility of the evidence. Id. at 899, 901; Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (expressing that jury may choose to believe or disbelieve any portion of the testimony). We defer to the fact finder’s resolution of conflicting evidence unless the resolution is not rational. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
A challenge to the denial of a motion for a directed verdict is equivalent to a challenge to the legal sufficiency of evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). Because the argument raised in appellant’s motion for a directed verdict is the same as his sufficiency argument on appeal, we address appellant’s first, second, and fourth issues together.
B. Analysis
After stopping the vehicle in which appellant was riding, Officers Berg and Crawford observed appellant lean forward while the other passengers were motionless. Although Officer Berg did not actually see the bottle drop from appellant’s hand, he did observe the bottle fall from the front passenger-side window of the vehicle at the “exact time” appellant reached toward the window. At trial, Officer Berg agreed, “[T]here’s no way [I] can specifically tell this jury as to whether or not it was the front passenger or the back seat passenger who dropped something out of that car.” However, Officer Berg’s testimony that he witnessed appellant lean toward the window at the “exact time” the bottle fell out of the window supports a rational inference that appellant possessed, and was discarding, the bottle in an attempt to avoid arrest.
Admittedly, Officer Berg’s police report contradicted certain portions of his testimony. In the report, Officer Berg wrote that appellant was the front-seat passenger. Further, Officer Berg wrote that he witnessed appellant extend his hand outside the vehicle and drop the bottle. Officer Berg testified that these portions of his report were incorrect. The jury apparently did not find that these inconsistencies rendered Officer Berg incredible, but instead chose to believe his testimony. We must defer to the jury’s resolution of conflicting evidence and witness credibility and demeanor. See Brooks, 323 S.W.3d at 899, 901; Clayton, 235 S.W.3d at 778.
Accordingly, we conclude the evidence, viewed in the light most favorable to the verdict, is legally and factually sufficient to support the jury’s finding that appellant exercised actual care, custody, control, or management over the bottle and knew the bottle contained a controlled substance. We overrule appellant’s first, second, and fourth issues.
III. Admission of Extraneous Acts
In his third issue, appellant contends the trial court erred by admitting evidence regarding cocaine found in his shoe, namely Officer Berg’s and a chemist’s testimony that the powder found in appellant’s shoe was cocaine and State’s Exhibit 3, the actual cocaine.
We conclude appellant failed to preserve his argument relative to Officer Berg’s and the chemist’s testimony because he failed to make a contemporaneous objection to the testimony. See Tex. R. App. P. 33.1; Penry v. State, 903 S.W.2d 715, 763 (Tex. Crim. App. 1995). Further, we conclude admission of the actual cocaine, even if erroneous, was harmless because it was duplicative of testimony that the substance was cocaine. See Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986) (“Inadmissible evidence can be rendered harmless if other evidence at trial is admitted without objection and it proves the same fact that the inadmissible evidence sought to prove.”). Accordingly, appellant’s third issue is overruled.
We affirm the trial court’s judgment.
/s/ Charles W. Seymore
Justice
Panel consists of Justices Seymore, Boyce, and Christopher.
Do Not Publish — Tex. R. App. P. 47.2(b).