Jim Battle Brown v. The State of Texas--Appeal from 122nd District Court of Galveston County

Opinion issued November 10, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00780-CR

JIM BATTLE BROWN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Cause No. 04CR0132

MEMORANDUM OPINION

Appellant, Jim Battle Brown, was convicted by a jury of possession of cocaine in the amount of one gram or more but less than four grams. // The jury found the enhancement paragraph alleging a prior conviction for possession of a controlled substance true and assessed his punishment at six years confinement.

Appellant s court-appointed counsel filed a motion to withdraw as counsel and a brief in which he concludes that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967), in that it comprises a complete evaluation of the record and addresses all possible grounds for appeal. See High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. 1978); Moore v. State, 845 S.W.2d 352, 353 (Tex. App. Houston [1st Dist.] 1992, pet. ref d).

After an attorney files an Anders brief, which should be accompanied by a motion to withdraw from the case, an appellant is afforded an opportunity to respond. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). The court of appeals must conduct its own investigation of the record to discover whether there are arguable grounds on appeal. Id. Appellant filed a pro se response in which he argues that the evidence presented at trial was insufficient to sustain his conviction. Based on our review of the record, we affirm.

Background

One evening in January 2004, while Sergeant Casso was patrolling the East District of Galveston Island, he encountered appellant walking southbound on 27th Street. Casso, knowing appellant by name and sight, remembered that another officer had filed several traffic warrants for appellant s arrest. After pulling over and confirming this with the dispatcher, Casso relocated appellant on Avenue P. Casso got out of his patrol car and told appellant to come over to him. As appellant turned towards the officer, appellant dropped something onto the ground, which Casso testified was a beige, white-colored object. Casso pretended not to see appellant drop the object. He then arrested appellant for the outstanding warrants and placed him in the patrol car. After Officer Teague arrived as backup, she and Casso went to the spot where Casso had seen appellant drop something. They found two objects, one wrapped in plastic, which tests later confirmed were two rocks of crack cocaine.

Discussion

In his only issue, appellant argues that the evidence presented at trial was insufficient to sustain his conviction for possession of cocaine. Although he fails to specify legal or factual insufficiency, we will review the record for both.

Legal SufficiencyWhen an appellant challenges both the legal and factual sufficiency of the evidence, we must first determine whether the evidence was legally sufficient to support the verdict. Harmond v. State, 960 S.W.2d 404, 406 (Tex. App. Houston [1st Dist.] 1998, no pet.). We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).

Intentionally or knowingly possessing a controlled substance is an offense under the Texas Controlled Substance Act. See Tex. Health & Safety Code Ann. 481.115(a) (Vernon 2003). To prove the offense of possession of a controlled substance, the State must show that the accused (1) exercised actual care, custody, control, or management of the controlled substance and (2) was conscious of his connection with the controlled substance and knew what it was. See id. 481.002(38), 481.112(a) (Vernon 2003); Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). These elements may be established by either direct or circumstantial evidence. Id.

When the accused is not in exclusive possession of the place where the contraband is found, we cannot conclude that the accused had knowledge of and control over the contraband unless the State established an affirmative link between the accused and the contraband i.e. independent facts and circumstances which affirmatively link the accused to the contraband so as to suggest that the accused had knowledge of the contraband and exercised control over it. Rhyne v. State, 620 S.W.2d 599, 601 (Tex. Crim. App. 1981); Roberson v. State, 80 S.W.3d 730, 735 (Tex. App. Houston [1st Dist.] 2002, pet. ref d). In other words, the State must establish that the accused s connection with the substance was more than just fortuitous. Brown, 911 S.W.2d at 747.

The Court of Criminal Appeals has identified several factors that may help to establish an affirmative link between the accused and the contraband, including whether: (1) the contraband was in plain view; (2) the contraband was conveniently accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the accused was the driver of the automobile in which the contraband was found; (5) the contraband was found on the side of the car where the accused was sitting; (6) the place where the contraband was found was enclosed; (7) the odor of the drug found was present in the vehicle; (8) paraphernalia for use of the contraband was in view of or found on the accused; (9) conduct by the accused indicated a consciousness of guilt; (10) the accused had a special connection to the contraband; (11) occupants of the vehicle gave conflicting statements about relevant matters; (12) the physical condition of the accused indicated recent consumption of the contraband found in the vehicle; and (13) affirmative statements by the accused connect the accused to the contraband. // Courts have also considered (14) traces of the contraband found on the accused, (15) a large sum of money found on the accused, and (16) the amount of contraband found. Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App. Austin 1991, pet. ref d); Roberson, 80 S.W.3d at 740, 742;Poindexter, 153 S.W.3d at 412. Although several factors relevant to establishing an affirmative link may have been identified, the number of factors actually supported by the evidence is not as important as the logical force they collectively create to prove that a crime has been committed. Roberson, 80 S.W.3d at 735 (quoting Whitworth, 808 S.W.2d at 569).

Here, when Casso got out of his vehicle and told appellant to come to him, appellant dropped a beige, white-colored object onto the ground that Casso, relying on his experience, suspected was crack cocaine. Casso testified that appellant did this in such a manner as to try to conceal the drop. After Casso arrested appellant for outstanding warrants, he went over to the spot where appellant had dropped something and found two objects, one wrapped in plastic. Tests later confirmed that the objects were two rocks of crack cocaine. Remembering that it had rained earlier in his shift, Casso noted that even though the grass was still wet, the rocks and the plastic were dry, indicating to him that they had just been dropped on the ground.

Viewing all this evidence in the light most favorable to the verdict, we conclude that the jury could have found beyond a reasonable doubt that appellant exercised actual care, custody, control, or management of the cocaine and that he was conscious of his connection with it, and knew it was cocaine. See Brown, 911 S.W.2d at 747.

We overrule the legal sufficiency portion of appellant s sole point of error.

Factual Sufficiency

We begin the factual sufficiency review with the presumption that the evidence supporting the jury s verdict is legally sufficient. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996). We view all the evidence in a neutral light, and we will set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 483 (Tex. Crim. App. 2004)). Our evaluation may not intrude upon the fact finder s role as the sole judge of the weight and credibility to be accorded any witness s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). What weight to give to contradictory testimonial evidence is within the sole province of the fact finder because it turns on an evaluation of credibility and demeanor; the fact finder may choose to believe all, some, or none of the testimony presented. Id. at 407 09. We must defer appropriately to the fact finder to avoid substituting our judgment for its judgment. Zuniga, 144 S.W.3d at 481 82.

Here, we find no evidence presented at trial that could undermine the verdict. Thus, after neutrally examining all the evidence, we conclude neither that the proof of guilt was so obviously weak as to undermine confidence in the jury s determination nor that the contradictory evidence was so strong that the standard of proof beyond a reasonable doubt could not have been met. See Escamilla, 143 S.W.3d at 817.

We overrule the factual sufficiency portion of appellant s sole point of error.Conclusion

We have carefully reviewed the record, counsel s brief, appellant s pro se brief, and the State s briefs. We conclude that appellant has not identified a truly arguable ground on appeal.

We grant counsel s motion to withdraw. // See Stephens v. State, 35 S.W.3d 770, 771 (Tex. App. Houston [1st Dist.] 2000, no pet.).

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Taft, Keyes, and Hanks.

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