Alejandro Uriosteju Berrum v. State of Texas--Appeal from 203rd District Court of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Alejandro Uriosteju Berrum

Appellant

Vs. No. 11-01-00011-CR B Appeal from Dallas County

State of Texas

Appellee

Appellant pleaded not guilty to the offense of possession with intent to deliver cocaine and waived his right to a jury trial. The trial court found appellant guilty and assessed punishment at 5 years confinement with a $500 fine. Appellant argues in two points of error that the evidence is legally and factually insufficient to affirmatively link him to the cocaine. We affirm.

Background Facts

Richardson Police Officer Larry David Miller testified that he executed a search warrant at an apartment in Dallas on March 13, 1999, after an informant had purchased cocaine from 2 individuals in the apartment. Officer Miller stated that he had been employed with the Richardson Police Department for 8 years; that he had been assigned to the narcotics section for the last 2 years; that, prior to joining the Richardson Police Department, he had been an undercover officer with the Abilene Police Department for 7 years; and that he had over 400 hours of training in the detection and investigation of narcotics. When he entered the apartment, Officer Miller found appellant in the living room downstairs with several other individuals. Appellant told another officer that he and his wife lived there but that his wife was not home at the time.

The apartment consisted of a living room and kitchen downstairs and two bedrooms upstairs. According to the testimony of Officer Miller, the officers found: (1) a AMetallica@[1] backpack containing 11 blue baggies of rock cocaine that was in a closet underneath the stairs approximately 7 to 8 feet from where appellant and the other individuals were being detained in the living room; (2) several small blue baggies of rock cocaine in an uncovered cardboard jewelry box that was inside a closed dresser drawer in the upstairs north bedroom; (3) other blue baggies of rock cocaine underneath a towel on top of the same dresser in the north bedroom; (4) a paycheck stub dated July 12, 1998, to July 18, 1998, with the name AAlejandro Berrun@ and social security number 460-42-9838 in the same dresser drawer as the uncovered cardboard jewelry box containing the cocaine; (5) a diaper containing numerous razor blades and empty blue baggies behind the door in the north bedroom; (6) another paycheck stub with a payroll date of May 16, 1998, with the name AAlejandro Verrum@ and the same social security number as the other pay stub, on top of a refrigerator in the kitchen downstairs.

Officer Michael Shane Harris of the Richardson Police Department testified that he assisted Officer Miller in the search of the apartment. Officer Harris testified that he searched the kitchen and living room downstairs and found the AAlejandro Verrum@ pay stub and the AMetallica@ backpack. Officer Harris further testified that the blue baggies found inside the backpack matched the other blue baggies found elsewhere in the apartment. Officer Harris explained that appellant=s name was probably misspelled on the pay stub found on top of the refrigerator because the letters V and B are adjacent on the keyboard.

At the time of his arrest, appellant was only wearing a pair of shorts. Appellant asked for a shirt and some shoes before leaving with the police. Officer Miller brought appellant a shirt and a pair of tennis shoes from the north bedroom where the drugs and pay stub were located. The shirt and shoes fit appellant, and he did not state that the clothes and shoes were not his.

At trial, appellant testified through an interpreter that he had lived in the apartment for about four months. He stated that he was an occasional resident of the apartment in 1999, that he worked two jobs, and that he was only in the apartment for short periods of time to rest. Appellant claimed that he resided in the living room downstairs. Despite the fact that the front door opened into the living room, appellant claimed that he had seen no one entering the apartment to buy drugs and that he had seen only residents of the apartment coming in. He further testified that the shirt and shoes given to him by Officer Miller from the north bedroom were not his. Appellant also denied telling the police that he, his wife, and his child lived in the apartment. Appellant acknowledged that the pay stubs went back to the previous year, a period longer than four months. However, appellant explained that he brought his pay stubs with him when he moved into the apartment.

Legal and Factual Sufficiency of the Evidence

Evidence is legally sufficient when, viewed in the light most favorable to the prosecution, it is sufficient to permit a rational trier of fact to find all the essential elements of the charged crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). In order to determine if the evidence is factually sufficient, we must review all the evidence and determine whether the verdict is so against the great weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). The reviewing court should reverse the fact finder=s determination only if a manifest injustice has occurred. Clewis v. State, supra at 128-29. In conducting this analysis, the appellate court must defer to the fact finder=s determination concerning the weight given contradictory testimony because the fact finder determines the credibility of the witnesses. Johnson v. State, supra at 8.

Affirmative Links

To support a conviction for unlawful possession of a controlled substance, the State must prove that the accused intentionally or knowingly exercised actual care, custody, control or management over the substance and knew that the substance he possessed was contraband. Brown v. State, 911 S.W.2d 744, 747 (Tex.Cr.App.1995); see TEX. HEALTH & SAFETY CODE ANN. ' 481.002(38) (Vernon Pamph. 2002). Absent evidence of actual possession, a defendant may be affirmatively linked with the drugs. Brown v. State, supra at 748. The affirmative-links doctrine is a shorthand expression of what must be proven to establish that a person knowingly or intentionally possessed contraband and that his contact with the contraband was not merely fortuitous. Brown v. State, supra at 747. It is well settled that an accused may jointly possess dangerous drugs or narcotics with another or others and that such possession need not be exclusive. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Cr.App.1985). Thus, facts and circumstances may be sufficient to show an accused and others acted together in possessing an illegal drug, but there must be some affirmative link existing between the person accused and the illegal drug. McGoldrick v. State, supra at 578.

The State established the following affirmative links: some of the drugs were in a closet conveniently accessible to appellant; two pay stubs having a name similar to appellant=s were in the apartment with one being found in the same drawer as the uncovered cardboard jewelry box with drugs; appellant=s admission that he brought his pay stubs to the apartment when he moved in; the shirt and pair of shoes from the north bedroom fit appellant and he did not state that the clothes were not his; and appellant told the officers during the search that he, his wife, and child lived in the apartment. The trial court was free to reject appellant=s testimony that he never told the officer that he, his wife, and child lived there or that the clothes from the north bedroom were not his.

Having reviewed all the evidence in the light most favorable to the verdict, we conclude that the evidence is legally and factually sufficient to affirmatively link appellant to the cocaine. The two points of error are overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

January 10, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]AMetallica@ is the name of a heavy-metal rock-and-roll band.