Gipson, Cornelius v. The State of Texas--Appeal from 344th District Court of Chambers County

Affirmed and Opinion filed _____________, 2002

Affirmed and Opinion filed October 17, 2002.

In The

Fourteenth Court of Appeals

____________

NO. 14-01-00760-CR

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CORNELIUS GIPSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 344th District Court

Chambers County, Texas

Trial Court Cause No. 11,471

 

O P I N I O N

A jury convicted appellant Cornelius Gipson for possession of cocaine weighing between four and two-hundred grams with intent to deliver and assessed punishment at thirty years incarceration. In four points of error, appellant argues the evidence was legally and factually insufficient. We affirm.

Statement of Facts

Appellant was a passenger in a pickup truck headed east on Interstate 10 when Trooper Pablo Chavez stopped the truck for weaving across traffic lanes. Before Chavez could approach the pickup, the driver got out and stood between the patrol car and the pickup. Chavez testified the driver acted very nervous, hesitant, and fidgety. When Chavez spoke with appellant, he noted appellant did not make eye contact. Both the driver and appellant told Chavez they were returning from Port Arthur, though they were actually traveling towards that town. Each had a different reason for being in Port Arthur and gave inconsistent descriptions of their relationship and appellant s occupation.

The two men became increasingly more nervous as Chavez s questioning continued. Both gave verbal consent for him to search their persons and the pickup. When Chavez did so, he noticed a small box on the top of the back seat. Chavez opened the box and saw a plastic baggie containing what he suspected to be crack cocaine. He then instructed the driver to get on the ground, but the driver ran off into the woods. Chavez then directed his attention to appellant, who took a couple of steps back and started to turn. When Chavez told appellant to get on the ground, appellant hesitated for a moment, and then followed Chavez s instruction. The substance in the baggie tested positive for cocaine.

Standards of Review

We apply different standards when reviewing evidence for legal and factual sufficiency. For legal sufficiency, we view the evidence in the light most favorable to the verdict and ask whether any rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781 (1979); Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000). In a factual sufficiency review, the appellate court considers all of the evidence without the prism of in the light most favorable to the prosecution and reverses only if the conviction is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Westbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 10 (Tex. Crim. App. 2000).

Intentional or Knowing Possession

In the first and second points of error, appellant argues the evidence is legally and factually insufficient to show intentional or knowing possession. To establish the offense of unlawful possession of a controlled substance, the State must show the accused exercised care, control, or management over the contraband, and that he knew what he possessed was contraband. Linton v. State, 15 S.W.3d 615, 619 (Tex. App. Houston [14th Dist.] 2000, pet. ref'd). Control need not be exclusive and may be exercised jointly. Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). If control is jointly exercised, the State must show additional affirmative links between the accused and the contraband that raise a reasonable inference of the accused s knowledge and control of the contraband. Id.

[A]ffirmative links are established by a totality of the circumstances. Hyett v. State, 58 S.W.3d 826, 830 (Tex. App. Houston [1st Dist.] 2001, pet. ref d). Texas courts have considered numerous factors, though none is necessarily determinative: the amount of contraband found, whether the amount was large enough to indicate the defendant knew of its existence, the proximity of the defendant to the contraband, whether the defendant had convenient access to the contraband, conflicting statements given about relevant matters by occupants of an automobile, and conduct of the accused indicating a consciousness of guilt. See e.g. Valencia v. State, 51 S.W.3d 423 (Tex. App. Houston [1st Dist.] 2001, pet. ref d) (finding that large bag of easily accessible cocaine in hatchback of car and suspicious behavior constituted some evidence of affirmative links); Corpus v. State, 30 S.W.3d 35, 38 (Tex. App. Houston [14th Dist.] 2000, pet. ref d) (finding that appellant s furtive gestures supported an inference of guilt); Fields v. State, 932 S.W.2d 97, 104 (Tex. App. Tyler 1996, pet. ref d) (finding affirmative links when appellant and driver appeared nervous and failed to make eye contact); Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App. Houston [1st Dist.] 1994, pet. ref d) (finding that cocaine and razors discovered in plain view on seat of vehicle within appellant s reach were affirmative links); Cooper v. State, 788 S.W.2d 612 (Tex. App. Houston [1st Dist.] 1990, rev. ref'd) (finding affirmative links when officer observed clear plastic bag in the seat passenger had just left). When examining the affirmative links, it is not the number of factors present, but the logical force they have in establishing the offense. Gilbert, 874 S.W.2d at 298. Because knowledge is subjective, it must always be inferred absent an admission of guilt by the accused. Grant v. State, 989 S.W.2d 428, 433 (Tex. App. Houston [14th Dist.] 1999, no pet.).

Here, Trooper Chavez found the cocaine sitting in a small box on top of the middle of the backseat, well within arm s reach of the appellant. A chemist for the Texas Department of Public Safety testified the substance taken by Chavez from the pickup truck was approximately five ounces of cocaine. An officer trained in undercover operations and narcotics testified that such an amount would be worth $9,000 to $10,000.

Once stopped, appellant and the driver told Chavez they had come from Port Arthur when, in fact, they were heading toward Port Arthur. Appellant and the driver gave conflicting testimony about what they did while in Port Arthur, their relationship to each other, and appellant s occupation. Chavez testified that appellant seemed nervous, would not make eye contact, and began to turn when Chavez prepared for arrest.

For the foregoing reasons, we find the evidence legally and factually sufficient to show affirmative links between appellant and the contraband, such that he knowingly possessed the cocaine. Appellant s first and second points of error are overruled.

With Intent to Deliver

In his third and fourth points of error, appellant asserts the evidence was legally and factually insufficient to prove he intended to deliver the cocaine. Appellant s main argument is he was unaware of any intentions the driver had regarding the cocaine. Appellant contends the driver may have intended to use the cocaine for personal consumption.

Participation in a criminal offense may be inferred from the circumstances. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). The actions and words of the parties can show an understanding and common design to do a certain act. Segura v. State, 850 S.W.2d 681, 684 (Tex. App. Corpus Christi 1993, no pet.). Intent to deliver may be proven by circumstantial evidence, such as evidence surrounding possession and the quantity of contraband found. Reece v. State, 878 S.W.2d 320, 325-26 (Tex. App. Houston [1st Dist.] 1994, no pet.) (finding that officer s testimony that individually wrapped contraband was consistent with selling rather than personal use was sufficient to show appellant possessed cocaine with intent to deliver).

At trial, a narcotics officer testified that transportation of such a large amount of cocaine would usually involve more than one person; the owner would want someone else along for protection and to share the driving. He also testified that dealers from other states come to Houston to get narcotics to take back, as the price increases further east. Appellant is a Louisiana resident, and Trooper Chavez stopped the pickup heading east on Interstate 10. The narcotics officer further stated that based on his experience, individuals with this much cocaine would not possess it for personal consumption. He testified that the cocaine was packaged, in transport, and ready for delivery.

When the record supports conflicting inferences about whether the contraband was possessed for personal use or delivery, we presume the fact-finder resolved this conflict and defer to that resolution. Reece, 878 S.W.2d at 325-26. Appellant s contention that the driver may have intended to personally consume the cocaine over a long period of time is without merit. We find the evidence was both legally and factually sufficient that appellant intended to deliver the cocaine. Appellant s third and fourth points of error are overruled.

The judgment is affirmed.

/s/ Scott Brister

Chief Justice

Judgment rendered and Opinion filed October 17, 2002.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish Tex. R. App. P. 47.3(b).