LATONYA GASTON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion issued February 16, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00739-CR
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LATONYA GASTON, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 422nd District Court
Kaufman County, Texas
Trial Court Cause No. 23255-422
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OPINION
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Bridges
        Latonya Gaston appeals her possession of a controlled substance with intent to deliver conviction. A jury convicted appellant, and the trial court sentenced her to ten years' confinement and a $2500 fine. In two points of error, appellant argues the trial court erred in overruling her Batson objection, and the evidence is legally insufficient to support her conviction. We affirm the trial court's judgment.
        On the morning of August 11, 2004, Texas highway patrolman Brad Brewer was walking back to his patrol car after issuing a traffic citation when he observed a brown four-door vehicle pass by without slowing down or vacating the lane nearest him. Brewer pursued the vehicle and pulled it over. Appellant was driving the vehicle, and Brewer approached her window and noticed the smell of burnt marijuana coming from inside appellant's vehicle. Appellant had a female passenger and a male passenger who was placed under arrest for an outstanding warrant for unpaid child support. Brewer asked appellant to step out of the vehicle to speak with him, and she complied. Appellant was “pretty nervous” and “shaking,” and the artery in her neck was “pounding.” Brewer explained that he had smelled the odor of burnt marijuana coming from inside the vehicle, and he was going to conduct a probable cause search.
        As he began his search under the driver's seat, Brewer immediately noticed several marijuana seeds in the floorboard and a paper bag under the seat. Appellant's purse was pushed under the driver's seat from the front. Brewer reached under the driver's seat from the rear and pulled out the bag, which contained many small brown bottles and two taller bottles containing clear liquid. Based on his experience and training, Brewer believed the clear liquid was Phencyclidine (PCP), and subsequent analysis confirmed the bottles contained 45 milliliters of Phencyclidine. Brewer read appellant her rights and placed her under arrest. Brewer asked appellant “why the stuff was in the vehicle,” and she replied that “poor people have to make money, too, and sometimes we do things that we don't want to do.” Appellant was charged with possession of a controlled substance with intent to deliver. A jury convicted her, and this appeal followed.
        In her first point of error, appellant argues the trial court erred in overruling her Batson objection. Specifically, appellant argues the trial court abused its discretion in accepting the State's race-neutral explanation of the State's decision to strike three potential jurors. At the conclusion of voir dire, appellant objected that there were no African Americans on the jury, and the State struck three African Americans from the venire: numbers three, eight, and eighteen. After hearing the State's explanations for the use of its peremptory strikes, the trial court overruled appellant's objection. See Batson v. Kentucky, 476 U.S. 79 (1986). Under Batson, there is a three-step process for evaluating an objection to peremptory strikes. See Hernandez v. New York, 500 U.S. 352, 358 (1991). First, the defendant must make a prima facie showing of discrimination. Purkett v. Elem, 514 U.S. 765, 767 (1995). The burden of production then shifts to the prosecutor to articulate a race- neutral explanation for the strikes. Id. If the prosecutor gives a race-neutral explanation, the trial court must decide whether the defendant has proven purposeful discrimination. Id. at 767. The ultimate burden of persuasion rests with, and never shifts from, the opponent of the strike. Id. at 768.
        The trial court's determination on the issue of intentional discrimination is a finding of fact entitled to great deference on appeal. See Herndandez, 500 U.S. at 364-65; Chamberlain v. State, 998 S.W.2d 230, 236 (Tex. Crim. App. 1999); Whitsey v. State, 796 S.W.2d 707, 726 (Tex. Crim. App. 1990) (op. on reh'g). In reviewing the trial court's determination, we view the record in the light most favorable to the trial court's ruling. Kemp v. State, 846 S.W.2d 289, 304 (Tex. Crim. App. 1992). We cannot reverse merely because we would have weighed the evidence differently had we been sitting as the trier of fact. Mandujano v. State, 966 S.W.2d 816, 819 (Tex. App.-Austin 1998, pet. ref'd). Rather, we reverse only if the trial court's determination is clearly erroneous. Whitsey, 796 S.W.2d at 726. A finding is clearly erroneous, even if evidence exists to support it, if our review of the record leaves us with the definite and firm conviction the trial court made a mistake. Whitsey, 796 S.W.2d at 721.
        The jury in appellant's case and the jury in another drug-related case against another defendant were chosen from a common pool. Here, after appellant made her Batson objection, the prosecutor explained that she struck venireperson number three, an African American woman, because she had said during voir dire that she knew the other defendant. This concerned the prosecutor because she knew the other defendant had an extensive criminal history, and she believed venireperson number three might be tolerant of the other defendant's drug activities. Further, although venireperson number three eventually “vacillated” and said she could judge other people, she initially “raised her hand and shook her head she did not feel like she could judge other people.”
        The prosecutor explained she struck venireperson number eight, an African American woman, because she had a similar address and the same last name as individuals who had recently been indicted, and she thought venireperson number eight might be from the same “group.” Further, venireperson number eight defined the burden of proof on the State as to “take away all doubt that [appellant] might be innocent or guilty, might be innocent.” The prosecutor stated she struck venireperson number eight because this put a higher burden of proof on the State.
        The prosecutor explained she struck venireperson number eighteen, an African American woman, because she knew where the “Gas Pipe” was, a store that sells drug paraphernalia. Also, the prosecutor noted the State had recently prosecuted a manager at the business where venireperson number eighteen's husband worked, and she feared a “backlash against the State for those issues.” Finally, the prosecutor stated venireperson number eighteen was “almost completely nonresponsive” to the prosecutor's questioning during voir dire but “became engaged or responsive” only during questioning by appellant's counsel.
        In her brief, appellant argues that all of the explanations were merely a sham or a pretext for discrimination. However, as the party making the Batson challenge, appellant had the burden to show that the explanation given by the State was merely a pretext for discrimination. Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002). A party's failure to offer any real rebuttal to a proffered race-neutral explanation can be fatal to her claim. Id. Here, the State presented race- neutral reasons for its use of peremptory strikes, and appellant failed to show that the explanations given were merely a pretext for racial discrimination. See id. Further, we note that the State struck veniremembers four, ten, sixteen, twenty-one, twenty-four, twenty-seven, and twenty-eight, all of whom were not African Americans, and all of whom were stricken for reasons similar to the reasons the State offered to explain its decision to strike the three African American members of the venire. Under these circumstances, the record in this case does not leave us with a firm conviction that a mistake has been made. See Whitsey, 796 S.W.2d at 721. We conclude the trial court's decision to overrule appellant's Batson challenge was not clearly erroneous. We overrule appellant's first point of error.
        In her second point of error, appellant argues the evidence is legally insufficient to prove her guilt beyond a reasonable doubt. Specifically, appellant complains the evidence fails to establish enough affirmative links to connect her with the contraband. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. To establish the unlawful possession of a controlled substance, the State must prove the defendant exercised care, control, or management over the contraband, and she knew that what she possessed was contraband. Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). Whether this evidence is direct or circumstantial, it must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous. Poindexter v. State, 153 S.W.3d 402, 406-06 (Tex. Crim. App. 2005). This is the whole of the so-called “affirmative links” rule. Id. at 406.
        Courts have identified numerous factors that may establish affirmative links, such as whether the contraband was (1) in plain view; (2) conveniently accessible to the accused; (3) in a place owned by the accused; (4) in a car driven by the accused; (5) found on the same side of the car as the accused; (6) found in an enclosed space; and (7) conduct of the accused indicated a consciousness of guilt. See Hurtado v. State, 881 S.W.2d 738, 743 (Tex. App.-Hous. [1st Dist.] 1994, pet. ref'd). Although the accused must be affirmatively linked with the drugs he allegedly possessed, the link need not be so strong as to preclude every other reasonable explanation except his guilt. See Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995).
        Appellant argues the evidence fails to establish any affirmative links between her and the PCP. We disagree. Viewed in the light most favorable to the verdict, the evidence reveals several facts and circumstances which link appellant to the offense. The bag containing approximately 150 empty vials and two large bottles of PCP was found beneath appellant's driver's seat in appellant's car. Appellant was sitting in the seat and driving her car when pulled over by police. Appellant's car had an odor of burnt marijuana, and there were marijuana seeds in the floorboard beneath appellant's seat, indicating her familiarity with illegal drugs. Appellant's purse was pushed under her seat from the front, suggesting that appellant was trying to hide the contraband from the front view. When questioned by Brewer, appellant appeared “pretty nervous” and “shaking,” and the artery in her neck was “pounding.” When Brewer asked appellant “why the stuff was in the vehicle,” she replied that “poor people have to make money, too, and sometimes we do things that we don't want to do.” We conclude that these facts and circumstances sufficiently link appellant to the bag containing the PCP and the bottles. See Hurtado, 881 S.W.2d at 743. Consequently, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Turner, 805 S.W.2d at 427. We overrule appellant's second point of error.
        We affirm the trial court's judgment.
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
060739F.U05