Scott, Tracy Lamont v. The State of Texas--Appeal from 228th District Court of Harris County

Affirmed and Memorandum Opinion filed June 23, 2005

Affirmed and Memorandum Opinion filed June 23, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00394-CR

____________

TRACY LAMONT SCOTT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 964,439

M E M O R A N D U M O P I N I O N

Appellant, Tracy Lamont Scott, was convicted of possession of cocaine with intent to deliver. In four issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction as a principal or as a party to the offense. We affirm.

I. Factual and Procedural Background

At the end of April 2003, a confidential informant notified undercover Drug Enforcement Administration agent Terrence Brown that appellant was able to supply interested buyers with cocaine. Over a period of two weeks, appellant and Agent Brown spoke on the phone to plan the exchange of cocaine for a negotiated payment. Following these initial discussions, appellant asked Lyn Earl Davis to set up a meeting between appellant and Forest Craig Cook in order to obtain the cocaine.

Appellant and Agent Brown met at noon on May 13, 2003, to make further arrangements for the exchange. They agreed to meet later that afternoon at a gas station to complete the transaction. After the noon meeting, Davis contacted Cook on behalf of appellant and accompanied appellant to Cook=s house to obtain the cocaine. Cook supplied the cocaine and negotiated how much profit appellant would realize from the sale. That afternoon appellant drove into the gas station parking lot with Davis in the front passenger seat and Cook in the back seat. Two kilograms of cocaine were wrapped inside a large garbage bag underneath the back seat.

After exchanging greetings with appellant, Agent Brown approached the car to examine the cocaine. The backseat passenger, Cook, retrieved the bag from underneath the seat, but refused to hand it over to appellant; instead, he placed it on the floor behind the driver=s armrest. Appellant reached back to grab the bag and placed it on his lap. Appellant opened the bag for Agent Brown to inspect the cocaine. Agent Brown touched one of the packages and smelled the cocaine. Agent Brown told appellant he was going to call someone to bring the money to the parking lot and walked away from the car while talking on his cell phone. The phone call signaled Agent Brown=s fellow law enforcement officers, who immediately approached the car to arrest the three passengers.

Appellant was charged by indictment with possession of cocaine with intent to deliver. See Tex. Health & Safety Code ' 481.112(a) (Vernon 2004). Appellant pleaded not guilty. The jury charge authorized the jury to convict appellant as a principal or as a party. The jury found appellant guilty, and the trial court assessed punishment at 38 years= confinement in the Texas Department of Criminal Justice, Institutional Division.

II. Analysis and Discussion

 Is the evidence legally and factually sufficient to support appellant=s conviction as a principal?

In his first and second issues, appellant contends the evidence is legally and factually insufficient to prove he exercised care, custody, and control over the cocaine found in his car. A person commits the offense of possession of cocaine with the intent to deliver if the person knowingly possesses cocaine with intent to deliver. Tex. Health & Safety Code ' 481.112(a) (Vernon 2004). To establish possession, the State must prove, among other things, that the defendant exercised actual care, custody, control, or management over the substance. See Tex. Health & Safety Code ' 481.002(38) (Vernon 2004); Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988).[1] Appellant asserts on appeal that the State had to prove that he exercised actual care, custody, control, and management over the substance. This is not correct; the State=s burden, as stated above, is to prove one of these items, not all of them. See Tex. Health & Safety Code ' 481.002(38) (Vernon 2004); Martin, 753 S.W.2d at 385.

In order to establish possession, the State does not have to prove that appellant exercised exclusive control over the substance. See Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). If possession is not exclusive, one or more persons may jointly exercise control. See id. However, when the accused does not have exclusive possession of the place where the contraband is found, the State must show additional independent facts and circumstances that demonstrate an affirmative link between appellant and the contraband. Id. The additional facts should indicate the accused=s knowledge of and control over the contraband; these factors include, among other things, his presence when the substance was discovered, his proximity and accessibility to the substance, whether the substance was in plain view, and appellant=s relationship to the place where the substance was found. See Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). The totality of additional facts and circumstances will determine whether the accused is affirmatively linked to the contraband. See Sosa v. State, 845 S.W.2d 479, 483 (Tex. App.CHouston [14th Dist.] 1993, pet. ref=d).

When evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellant=s evidence outweighs the State=s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses= testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

Appellant argues his mere presence in the car when the cocaine was found is not sufficient to establish that he exercised care, custody, and control over the substance. However, appellant was more than merely present when the cocaine was found. Appellant set up the transaction, negotiated the sale price, arranged the meetings, and drove his car to the gas station. When appellant was arrested, the bag of cocaine was in plain view, directly beside appellant in the driver=s seat of the car. Immediately before the arrest, appellant placed the bag on his lap and opened it up for Agent Brown to inspect the cocaine. Appellant concedes on appeal that he had momentary control over the cocaine. From these facts and circumstances, a rational trier of fact could reasonably infer that appellant possessed the cocaine. Viewing the evidence in the light most favorable to the verdict, we conclude that the evidence is legally sufficient to support appellant=s conviction as a principal. Accordingly, we overrule appellant=s first issue.

When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). A reviewing court may find the evidence factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484B85. In conducting the factual sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 481B82. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

Appellant argues he never had possession of the cocaine because he was only a middleman in the transaction between Agent Brown and Cook. Appellant also claims that because Cook maintained constant control over the cocaine during the exchange, appellant could not also have exercised control over it. As noted above, exclusive control is not necessary to establish possession when joint possession and additional circumstances affirmatively link the accused to the contraband. Cude v. State, 716 S.W.2d at 47. Knowledge of the cocaine=s existence and exercising control over it are sufficient affirmative links for a jury to infer possession. Avila v. State, 15 S.W.3d 568, 573B74 (Tex. App.CHouston [14th Dist.] 2000, no pet.).

Several law enforcement officers testified that during their surveillance of appellant, he actively sought possession of the cocaine through repeated travel to Davis=s apartment and to Cook=s house. Davis testified that appellant encouraged Cook to supply the cocaine and had to assuage Cook=s fears after Agent Brown changed the meeting location to convince Cook to complete the transaction. Taped phone conversations show appellant soliciting Agent Brown=s business. Forensic experts testified that appellant=s fingerprints were on the bag containing the bricks of cocaine. Under the applicable standard of review, we conclude the evidence is factually sufficient to support appellant=s conviction as a principal. Accordingly, we overrule appellant=s second issue.

In his third and fourth issues, appellant contends the evidence is legally and factually insufficient to support his conviction as a party to the offense. When the jury returns a general verdict, as it did in this case, and the evidence is sufficient to support a finding of guilt on either of the theories submitted for indictment, the conviction will be upheld. Fuller v. State, 827 S.W.2d 919, 931 (Tex. Crim. App. 1992). Because we conclude the evidence is legally and factually sufficient to sustain appellant=s conviction as a principal, we need not address appellant=s third and fourth issues.

We affirm the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed June 23, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] On appeal, appellant does not contend that the evidence is legally or factually insufficient to show that he was conscious of his connection with the cocaine or that he knew the cocaine was contraband.