Shane Ray Jones v. The State of Texas--Appeal from 142nd District Court of Midland County

Opinion filed March 15, 2007

In The

Eleventh Court of Appeals

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   No. 11-05-00391-CR

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SHANE RAY JONES, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 142nd District Court

Midland County, Texas

Trial Court Cause No. CR30201

O P I N I O N

Shane Ray Jones appeals his conviction of the offense of possession of cocaine in an amount of less than one gram. After a bench trial, the trial court sentenced appellant to two years in the Texas Department of Criminal Justice, State Jail Division. However, the trial court suspended the imposition of the sentence and placed appellant on community supervision for two years. In two points of error, appellant contends that the evidence was legally and factually insufficient to establish that he possessed the cocaine. We affirm.

Sufficiency of the Evidence

In order to determine if the evidence is legally sufficient, we must review all of 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. The trial court, as the trier of fact, is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995).

Testimony at Trial

In appellant=s two points of error, he argues that the evidence was legally and factually insufficient to affirmatively link appellant to the cocaine. We disagree.

Officer Greg McCright of the Midland Police Department testified that the department had received complaints of drug activity at certain apartments of the Renaissance Apartments. Sitting in an unmarked police car, he and Officer Daniel Espinosa were watching those apartments late in the evening of August 25, 2004. They saw a new black Dodge pickup pull into the parking lot and pick up a man who came out of one of the apartments they were watching. They followed the Dodge pickup into the 2600 block of Mariana. The officers passed the pickup and turned on Kimbough Street to be out of view of the pickup. Officer McCright walked back to the corner and observed the man from the Renaissance Apartments come back to the pickup and get in.

Officer McCright then said that the driver of the pickup failed to use the turn signal when pulling back into the street. The officers stopped the pickup based on that traffic violation. Officer Espinosa contacted the driver while Officer McCright stood on the passenger=s side where the bed of the pickup and the cab connect. Officer McCright testified that he could see that a woman was driving, appellant was sitting in the front passenger seat, and the man from the Renaissance Apartments was in the backseat. The officers checked with radio dispatch and learned that there was a warrant outstanding for the arrest of appellant. Based on the warrant, Officer Espinosa placed appellant under arrest.

The woman gave her consent to a search of the pickup, and the officers called for a canine unit to assist them. The dog reacted to the front passenger seat, and Officer Espinosa found a beer can with a crack pipe sticking out of it. Officer McCright testified that the pickup had bucket seats in the front with a center console and that the can was at the front of the passenger=s seat between that seat and the console. The can was fizzing, and the officers found what appeared to be a crack cocaine rock in the can. The officers field-tested the rock, and it tested positive for cocaine. Appellant was then arrested for possession of cocaine.

During cross-examination, Officer McCright said that the driver could not have as easily reached over and picked up the can as appellant could. When asked if the person in the backseat could Ain some way have touched or possessed@ the can, Officer McCright said that he could have.

Officer Espinosa=s testimony was similar to that of Officer McCright. Officer Espinosa stated that the beer can was not readily accessible to either the person sitting in the backseat or the driver. According to Officer Espinosa, the person in the backseat could not have placed the can where Officer Espinosa located it, and the driver was too short to reach over the console to place the can. Officer Espinosa identified the crack pipe, the beer can, and the field-test swab as exhibits. Officer Espinosa stated that the location of the beer can was within appellant=s reach and that, in his opinion, the cocaine was appellant=s. Both officers testified they had not seen any of the three people in the pickup make any moves to place the can. However, Officer Espinosa said that, because of appellant=s height, it would have required only a slight movement by him to place the can but that the other two people would have had to make a drastic movement to do so.

Dennis Hambrick, a chemist with the state, testified that the rock removed from the beer can was cocaine. Christopher McPherson testified that he was the person who was picked up by the driver of the black pickup and that he was the person who went into a house on Mariana Street. McPherson said that he used money from Kimberly Moore (the driver of the pickup and sister of appellant) to purchase the crack cocaine, and after purchasing the cocaine and returning to the pickup, he handed the crack cocaine to appellant.

In a possession-of-a-controlled-substance case, the State must prove, either directly or circumstantially, that the accused exercised actual care, custody, control, or management over the contraband. Tex. Health & Safety Code Ann. ' 481.002(38) (Vernon Supp. 2006); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). The State does not have to prove the accused had exclusive possession of the contraband; joint possession is sufficient to sustain a conviction. See Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). When there is no evidence appellant was in exclusive control of the place where the contraband was found, the State must offer additional, independent facts and circumstances affirmatively linking him to the contraband. See Poindexter, 153 S.W.3d at 406. The purpose of affirmatively linking the accused to the contraband is to protect innocent bystanders from conviction based solely on their fortuitous proximity to the contraband. See Poindexter, 153 S.W.3d at 406. Poindexter lists possible affirmative links, including the factor of whether the contraband was conveniently accessible to the accused. Poindexter, 153 S.W.3d at 411.

The officers testified that the beer can, with its contents of rock cocaine, was easily accessible to appellant and that it was not easily accessible to the other two passengers. That testimony, coupled with McPherson=s testimony that he handed the crack cocaine to appellant, was probative evidence that appellant exercised care, custody, and control over the cocaine. We find that the evidence was legally and factually sufficient to support appellant=s conviction.

This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

March 15, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.