NO. 07-10-0347-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
OCTOBER 25, 2011
______________________________
GREGORY WAYNE WILSON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 57,774-E; HONORABLE DOUGLAS WOODBURN, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Gregory Wayne Wilson, was convicted by a jury for possession of a
controlled substance1 enhanced by two prior state jail felonies2 and assessed
punishment at ten years confinement and a $7,500 fine. In a single point of error,
1
See Tex. Health & Safety Code Ann. § 481.115(b) (West 2010). An offense under this section is a state
jail felony. Throughout the remainder of this opinion, provisions of the Texas Health and Safety Code will
be cited as “section ___” and/or “§ ___.”
2
See Tex. Penal Code Ann. § 12.42(a)(1) (West 2011). If it is shown on the trial of a state jail felony that
a defendant has previously been convicted of two state jail felonies, on conviction the defendant shall be
punished for a third-degree felony.
Appellant contends the State’s evidence was legally insufficient to establish that
Appellant intentionally and knowingly possessed a controlled substance. We modify the
trial court’s judgment to clarify that payment of $2,200 in court-appointed attorney’s fees
is not a part of the court costs ordered in the case and affirm the judgment as modified.
Background
On July 10, 2008, a Potter County Grand Jury returned an indictment alleging
that, on or about April 26, 2008, Appellant intentionally or knowingly possessed a
controlled substance, cocaine, in an amount of less than one gram by aggregate weight
including any adulterants and dilutants.
On August 2 and 3, 2010, a jury trial was held. Rudolph Moreno testified he went
to Appellant’s house to buy crack cocaine. Appellant told Moreno that he did not have
any cocaine at his residence but he could buy some elsewhere. Moreno gave Appellant
twenty dollars and the keys to his car so that Appellant could go and purchase the
cocaine. Moreno testified there were no drugs, drug paraphernalia or passengers in his
car when he lent it to Appellant.
Officer Will Dempsey of the Amarillo Police Department ("APD") testified that, on
April 26, 2008, he was answering service calls and attempting to make traffic stops of
vehicles leaving known narcotics houses. Officer Dempsey was in the area of 602
North Washington Street3 when he spotted Moreno’s car parked in the driveway. The
car backed out of the driveway and he followed. When the car exceeded the speed
3
Officer Dempsey had received information that residents were selling narcotics out of this house. APD
officers had made traffic stops of other vehicles leaving the house and found narcotics on occupants
thereof.
2
limit, he turned on his overhead lights and stopped the car. As he approached the car,
he observed Appellant and a passenger. Because he had stopped Appellant several
times before and written him tickets, Dempsey’s supervisor had given him permission to
arrest Appellant on sight for driving without a license. He arrested Appellant,
handcuffed him and placed him in the back of his patrol car. Before placing him in the
backseat, he patted Appellant down and found nothing. Having determined the car was
owned by Moreno, Officer Dempsey called for a wrecker to impound the car.4
APD Officer Thomas Newton testified that he arrived after Officer Dempsey had
initiated the traffic stop and witnessed Officer Dempsey escort Appellant to his patrol
car. Officer Newton then approached the passenger and removed her from the car.5
While Officer Dempsey was finishing his paperwork on the arrest and impoundment,
Officer Newton conducted an inventory search incident to impoundment. From the
outside of the car, he observed a white rock on the floorboard of the car on the driver’s
side. He believed the white rock was cocaine. Upon closer examination of the area
surrounding the white rock, he discovered small pieces of Brillo6 imbedded in the car’s
carpet. He testified that, based on his experience, the white rock was the size of a
4
Prior to impounding a car, Officer Dempsey testified police procedure required that a vehicle slip be filled
out with a description of everything found in the vehicle. He testified that the inventory lists everything in
the car so that, if it is broken into at the impound lot, the owner cannot allege that something was missing
when the item was not in the car to begin with.
5
The passenger was not arrested. She told Officer Newton that she was attempting to persuade
Appellant to take her to the hospital; however, when Officer Newton offered to call an ambulance or take
her to the hospital himself, she refused.
6
Officer Newton testified that Brillo was often used as a filter when smoking crack cocaine. Upon further
inspection, Officer Newton also found Brillo fragments on the car seats in the front and rear of the car.
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twenty dollar rock of cocaine – a typical unit dosage for a user.7 Judging from its
appearance, he testified the rock had recently been placed there.
At the trial’s conclusion, the jury found Appellant "guilty" and also found the two
enhancement paragraphs in the indictment “true.” The trial court subsequently issued
its judgment wherein Appellant was sentenced to ten years confinement and fined
$7,500. In its judgment, the trial court also ordered payment of court costs. The
attached Bill of Costs included court-appointed attorney’s fees of $2,200 as a part of
those costs.
Discussion
Even though Appellant was driving and exercising care, custody, control and
management over the car where the cocaine was found, Appellant asserts the State’s
evidence was insufficient to establish he knew the white rock laying on the car’s
floorboard was there, much less that he knew it was a controlled substance. Appellant
also asserts the State's evidence is insufficient because (1) there was a third-party
present who could have possessed the cocaine, and (2) there was some evidence that
Appellant did not have any cocaine on his person when he left his residence and he
never made a stop prior to being pulled over by Officer Dempsey.
I. Legal Sufficiency
The only standard that a reviewing court should apply in determining whether
the evidence is sufficient to support each element of a criminal offense the State is
7
Brandon Conrad, manager of the Texas Department of Public Safety Crime Laboratory, testified that he
tested the rock and determined it to be crack cocaine.
4
required to prove beyond a reasonable doubt is the standard set forth in Jackson v.
Virginia, 443 U.S. 307, 33 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Brooks v. State, 323
S.W.3d 893, 912 (Tex.Crim.App. 2010). Under that standard, in assessing the
sufficiency of the evidence to support a criminal conviction, this Court considers all the
evidence in the light most favorable to the verdict and determines whether, based on
that evidence and reasonable inferences to be drawn therefrom, a rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. See
Jackson, 443 U.S. at 319; Brooks, 323 S.W.2d at 912. This standard gives full play to
the responsibility of the trier of fact to resolve conflicts in testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319. See Hooper v. State, 214 S.W.3d 9, 15 (Tex.Crim.App.
2007).
Further, the trier of fact is the sole judge of the weight of the evidence and
credibility of the witnesses; Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979);
Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000), and we may not re-
evaluate the weight and credibility determinations made by the factfinder. Dewberry v.
State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). Reconciliation of conflicts in the
testimony is within the exclusive province of the jury, Losada v. State, 721 S.W.2d 305,
309 (Tex.Crim.App. 1986), and a jury may choose to believe some, all, or none of the
testimony presented. Id. Thus, we resolve any inconsistencies in the evidence in favor
of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000).
5
A. Possession of a Controlled Substance
To support the verdict rendered in this case, the State was required to prove that
Appellant knowingly possessed a controlled substance, cocaine, in an amount of less
than one gram. To prove possession, the State was required to show that Appellant (1)
exercised “actual care, custody, control, or management” of the substance and (2) knew
the matter possessed was contraband. See § 481.115(b). See also Poindexter v.
State, 153 S.W.3d 402, 405-06 (Tex.Crim.App. 2005).
Where, as here, the accused does not have actual possession of the controlled
substance or exclusive possession of the locale where the controlled substance was
found, it cannot be concluded or presumed that the accused had possession over the
contraband unless there are independent facts or circumstances that tend to connect or
link8 the accused to the knowing possession of the contraband. Poindexter, 153
S.W.3d at 406; Evans v. State, 202 S.W.3d 158, 161-62 (Tex.Crim.App. 2006).
Numerous nonexclusive factors have been recognized as contributing to an
evaluation of whether an accused is linked to the contraband. See Triplett v. State, 292
S.W.3d 205, 208 (Tex.App.—Amarillo 2009, pet. ref’d). Those links include, but are not
limited to: (1) whether the contraband was in plain view or recovered from an enclosed
place or container; (2) whether the defendant was the owner of the premises or had the
right to possess or control the place where the contraband was found; (3) whether the
contraband was conveniently accessible to the defendant; (4) whether the defendant
8
A link is a fact or circumstance which generates a reasonable inference that the defendant knew of the
contraband’s existence and exercised control over it. Lair v. State, 265 S.W.3d 580, 600 (Tex.App.—
Houston [1st Dist.] 2008, pet. ref’d). The evidence demonstrating such links may be direct or
circumstantial. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995).
6
had a special connection with the contraband; and (5) whether any forensic evidence
(e.g., fingerprints, DNA, etc.) connects the defendant to the contraband and its
container; see id.; Evans, 202 S.W.3d at 162 n.12; (6) whether the defendant was
present when the search was conducted; (7) whether the defendant possessed other
contraband or narcotics when arrested; (8) whether the defendant made incriminating
statements when arrested; (9) whether the defendant attempted to flee; (10) whether
other contraband or drug paraphernalia were present; (11) whether the defendant was
found with a large amount of cash; and (12) whether the conduct of the defendant
indicated a consciousness of guilt. Figueroa v. State, 250 S.W.3d 490, 500 (Tex.App.--
Austin 2008, pet. ref’d), cert. denied, ___ U.S. ___, 129 S.Ct. 1340, 173 L.Ed.2d 609
(2009) (citing Brown v. State, 911 S.W.2d 744, 745 (Tex.Crim.App. 1995)).
There is no set formula that an appellate court can use to determine if there are
sufficient links to support an inference of knowing possession of drugs. Taylor v. State,
106 S.W.3d 827, 831 (Tex.App.—Dallas 2003, no pet.). Each case must be reviewed
according to its own facts on a case-by-case basis; Roberson v. State, 80 S.W.3d 730,
736 (Tex.App.—Houston [1st Dist.] 2002, pet. ref’d), and the number of links is not as
important as the combined logical force of all the evidence tending to link the accused to
the contraband. Evans, 202 S.W.3d at 162, 166.
B. Analysis
Viewing the evidence in a light most favorable to the verdict, the evidence at trial
established at least five of the thirteen links listed above. Moreno went to Appellant’s
house looking to purchase cocaine. Appellant informed Moreno that he did not have the
7
cocaine on hand and needed to purchase the cocaine elsewhere. Appellant then
borrowed Moreno’s car and was given twenty dollars to purchase cocaine. Moreno
testified that, when Appellant left, the car contained no drugs and there was no
passenger. Later, Officer Dempsey spotted Appellant leaving another residence that
was a known narcotics house. After Appellant was stopped, Officer Dempsey searched
Appellant but did not find the twenty dollars intended for the cocaine purchase. When
Officer Newton conducted his inventory search of the car, however, he discovered
cocaine, in plain view, in an area of the car that was conveniently accessible to
Appellant who was present and the cocaine appeared to have been recently placed on
the floorboard. Further, the cocaine and the floorboard were located on the driver’s side
of the car. Officer Newton also testified that the cocaine was a twenty dollar rock – an
amount typically sufficient for a single dose. These circumstances tend to connect
Appellant to the knowing possession of the cocaine.
Accordingly, we cannot say that the evidence is so weak that it insufficiently links
Appellant to the cocaine, or that it fails to establish, to the requisite level of confidence,
that a rational trier of fact could have found Appellant knowingly possessed a controlled
substance, to-wit: cocaine, beyond a reasonable doubt. Appellant’s issue is overruled.
8
II. Court-appointed Attorney’s Fees
We also note an issue not raised by Appellant regarding the assessment of
attorney’s fees.9 The written judgment in this case reflects an assessment of court-
appointed attorney’s fees totaling $2,200, as court costs. In order to assess attorney’s
fees as court costs, a trial court must determine that the defendant has financial
resources that enable him to offset in part, or in whole, the costs of the legal services
provided. Tex. Code Crim. Proc. Ann. art. 26.05(g) (West 2009). Here, the clerk’s
record reflects the trial court found Appellant indigent and unable to afford the cost of
legal representation before trial in April 2008, and after trial in August 2010. Unless a
material change in his financial resources occurs, once a criminal defendant has been
found to be indigent, he or she is presumed to remain indigent for the remainder of the
proceedings. Tex. Code Crim. Proc. Ann. art. 26.04(p) (West Supp. 2010). Therefore,
because there is evidence of record demonstrating that immediately following rendition
of judgment Appellant was indigent and qualified for court-appointed counsel, we
presume his financial status had not changed, i.e., that he was indigent at the time the
trial court entered judgment.
Furthermore, the record must reflect some factual basis to support the
determination that the defendant is capable of paying attorney’s fees. Perez v. State,
323 S.W.3d 298, 307 (Tex.App.—Amarillo 2010, pet. ref’d). See Barrera v. State, 291
S.W.3d 515, 518 Amarillo 2009, no pet.); Perez v. State, 280 S.W.3d 886, 887
9
Courts of appeals may review unassigned error in criminal cases, particularly where the record discloses
error that should be addressed in the interest of justice. Hammock v. State, 211 S.W.3d 874, 878
(Tex.App.—Texarkana 2006, no pet.). Where, as here, the error appears on the face of the judgment and
does not involve the merits of the criminal trial, but instead solely addresses the clerical correctness of the
judgment, we find that the interest of justice allows us to address the issue. Perez v. State, 323 S.W.3d
298, 307 (Tex.App.—Amarillo 2010, pet. ref’d).
9
(Tex.App.—Amarillo 2009, no pet.). We note that the record in this case does not
contain a pronouncement, determination, or finding that Appellant had financial
resources that enable him to pay all, or any part of, the fees paid his court-appointed
counsel, and we are unable to find any evidence to support such a determination.
Therefore, we conclude that the order to pay attorney’s fees was improper. See Mayer
v. State, 309 S.W.3d 552, 555-56 (Tex.Crim.App. 2010). No trial objection is required to
challenge the sufficiency of the evidence regarding the defendant’s ability to pay. Id.
When the evidence does not support an order to pay attorney’s fees, the proper remedy
is to delete the order from the judgment. Id. at 557. See also Anderson v. State, No.
03-09-00630-CR, 2010 Tex. App. LEXIS 5033, at *9 (Tex.App.—Austin, July 1, 2010,
no pet.) (not designated for publication) (modifying judgment to delete court-appointed
attorney’s fees). Accordingly, we modify the judgment to delete the order to pay
attorney’s fees.
Conclusion
Having modified the trial court’s judgment to delete the order obligating Appellant
to pay $2,200 in court-appointed attorney’s fees, the judgment, as modified, is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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