RICKY ABOHOSH,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-87-01146-CR
 
RICKY ABOHOSH,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
BEFORE JUSTICES WHITHAM, HECHT AND LAGARDE
OPINION BY JUSTICE LAGARDE
DECEMBER 30, 1988
        Abohosh appeals a conviction for unlawful possession of a controlled substance, heroin. Punishment, enhanced by two prior felony convictions, was assessed at thirty-five years' confinement in the Texas Department of Corrections. In his sole point of error, Abohosh contends that the evidence is insufficient to support the conviction. We disagree and affirm the trial court's judgment.
        Acting on information available to the Dallas Police Department, the police obtained a narcotics search warrant for a house located at 10331 Desdemona. On October 30, 1986 at about 1:00 p.m., the police executed the search warrant. Investigator Jack Williams went to the back bedroom, where he found Abohosh and a woman, Elizabeth FN:1 Clonniger, lying on the bed, partially clothed. Marihuana and narcotics paraphernalia were in plain sight in the room. The narcotics paraphernalia included bent spoons and syringes. Williams testified that these items were used to cook and inject narcotics and that the paraphernalia was consistent with the use of heroin. Most of the used syringes were in the trash can, but one or two were on the floor beside the bed. At the time Williams entered the bedroom, one of the spoon cookers was on the nightstand, one or two feet away from Abohosh. Williams also found, in the trash and on the floor, several empty capsules of the type used to store heroin. The door to the closet in Abohosh's bedroom was open when Williams entered the room. A plastic-type plate which looked like it had narcotics residue on it was in the closet. Williams found a brown powdery substance, which he believed to be heroin, on the floor of the closet. The brown powdery substance was later confirmed to be heroin. FN:2 Williams also found a small pill bottle that contained what he believed to heroin. Williams stated that the closet in which he discovered these items contained men's clothing. There was no women's clothing in the closet or the room. No heroin was found on Abohosh's person; however, Williams saw "fresh" needle marks on Abohosh's hand and legs, and Williams testified that these marks were consistent with those found on a heroin abuser. He also testified that the drug heroin is commonly used by cooking down the powder to liquid and then injecting it.
        At the time Abohosh was arrested, the other people in the house were Clonniger (the woman on the bed with Abohosh), Harry Abohosh (Abohosh's father and the owner of the house), Gary Moore (Abohosh's cousin), John Mudryke, and Debra Crow. With the exception of Harry Abohosh, all of the occupants were arrested.
        In his sole point of error, Abohosh argues that the evidence is insufficient to support his conviction. Abohosh contends that he must at least be aware that his conduct or the circumstances surrounding his conduct constitute possession of a controlled substance to establish the required mens rea of knowingly or intentionally. See Baty v. State, 734 S.W.2d 62, 63 (Tex. App.--Dallas 1987, pet. ref'd); Tex. Rev. Civ. Stat. Ann. art. 4476-15, § 4.04(a) (Vernon Supp. 1989). Abohosh also argues that in the present case, the State seeks to circumstantially establish an affirmative link between him and the heroin found in the house. Abohosh concludes that an inference that he was guilty only of being present "where the action was" is as strongly supported by the evidence as a finding that he exercised care, control, and management over the contraband.         Where an accused is charged with unlawful possession of a controlled substance, the State must prove two elements: (1) that the accused exercised care, control, and management over the contraband; and (2) that the accused knew the matter was contraband. Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). Moreover, it is not necessary to prove that the accused had exclusive possession of the narcotics in question; evidence showing that the accused possessed it jointly with others is sufficient. See id. Mere presence alone at a place where the contraband is being used or possessed by others does not justify a finding of joint possession or constitute one a party to an offense. Id. The evidence must affirmatively link the accused to the contraband in such a manner that a reasonable inference arises that the accused knew of its existence and whereabouts. Curtis v. State, 519 S.W.2d 883, 885 (Tex. Crim. App. 1975).
        As in any other case, in deciding sufficiency of the evidence questions on appeal, the standard is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Castillo v. State, 739 S.W.2d 280, 287 (Tex. Crim. App. 1987), cert. denied, 108 S. Ct. 2889 (1988), citing Jackson v. Virginia, 443 U.S. 307, 319 (1979). This standard for review of sufficiency of the evidence is the same in both direct and circumstantial evidence cases. Castillo, 739 S.W.2d at 287. In a circumstantial evidence case, if there is a reasonable hypothesis other than the guilt of the accused, then it cannot be said that guilt has been shown beyond a reasonable doubt. Martin, 753 S.W.2d at 387. However, the rules of circumstantial evidence do not require proof to a moral certainty that the circumstances presented actually exclude every hypothesis that the criminal act may have been committed by another person; it must only exclude every reasonable hypothesis raised by the evidence that would tend to exculpate the accused, and it is enough that the conclusion of guilt is warranted by the combined and cumulative force of all the incriminating evidence. Brandley v. State, 691 S.W.2d 699, 703 (Tex. Crim. App. 1985).
        Abohosh relies on Ex Parte Stowe, 744 S.W.2d 615, 617 (Tex. App.--Houston [1st Dist.] 1987, no pet.), to confirm that the evidence fails to support his guilt beyond a reasonable doubt. The court in Stowe listed the following factors implemented by the Court of Criminal Appeals to determine if a sufficient link exists between the accused and the contraband: (1) whether appellant was at the place searched at the time of the search; (2) whether there were other persons present at the time of the search and whether they were shown to be living on the premises so that appellant was not actually in exclusive possession; (3) whether the contraband if found in a bedroom closet, was in a closet that contained appellant's personal belongings or men's clothing if the appellant is male; (4) whether appellant had contraband on him at the time of his arrest; (5) whether appellant was then under the influence of any narcotic; (6) whether appellant made an incriminating statement; (7) whether appellant was in close proximity to the drugs when they were found; (8) whether there is any other evidence establishing appellant's occupancy of the premises; (9) whether the contraband was in plain view of the accused; (10) whether the amount of contraband found was large enough to indicate that appellant knew of its presence; (11) whether appellant was closely related to other persons in joint possession of the contraband or to other persons who owned the premises; (12) whether conduct of appellant with respect to the contraband was such as to indicate his knowledge or control. Stowe, 744 S.W.2d at 617. While these factors are helpful in ascertaining whether a sufficient link exists between the accused and the contraband, we may find that a sufficient link exists if less than all twelve of these factors are present. See generally Langford v. State, 632 S.W.2d 650, 651-52 (Tex. App.--Houston [14th Dist.] 1982, no pet.).
        We note that several of the Stowe factors are not present in the instant case. Abohosh did not make an incriminating statement, and he did not possess contraband at the time of his arrest. In addition, there is no evidence that Abohosh was under the influence of any narcotic at the time of his arrest, and the amount of contraband seized was not extremely large. However, Abohosh had "fresh" needle marks on his hands and legs, and the police found Abohosh in a bedroom littered with marihuana and drug paraphenalia -- on the dresser, on the nightstand, on the floor, and in the closet.
        We also note that several of the Stowe factors are present in this case. Abohosh was at the place searched at the time of the search. He was not only in the house, but in the very room in which heroin was found. The contraband was found in a bedroom closet that contained men's clothing and not women's. Abohosh was in relatively close proximity to the heroin, and the paraphernalia was within his immediate reach. The contraband, paraphernalia, and used drug capsules were all in plain view of Abohosh. Abohosh was closely related to the owner of the house, had a bedroom "fixed up" for him, and used the address on Desdemona as his present address. Although there was conflicting evidence and testimony regarding where Abohosh actually lived, the credibility of a witness is for the trier of fact to decide and the trial court, as trier of fact, is free to accept or reject any testimony. Thorn v. State, 651 S.W.2d 39, 41 (Tex. App.--Dallas 1983, pet. ref'd); see also Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1978). It is not the function of this Court to reweigh the evidence at trial. Thorn, 651 S.W.2d at 41.
        Viewing the evidence in the light most favorable to the verdict, we hold that there is sufficient evidence to link Abohosh to the contraband found in the bedroom where Abohosh was found. The facts of this case demonstrate that Abohosh exercised care, custody, control, and management over the contraband and that he knew the objects were contraband. Accordingly, Abohosh's sole point of error is overruled. We affirm the trial court's judgment.
 
 
SUE LAGARDE
JUSTICE
 
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
87-01146.F
 
FN:1 Williams initially testified that "Mary" Clonniger was found in the bedroom with Abohosh.
FN:2 A capsule found in the house was also confirmed as containing heroin. However, the State was unable to prove that this capsule was one recovered from the bedroom in which Abohosh was discovered.
File Date[01-02-88]
File Name[871146]