Lewis, Donald Wayne v. The State of Texas--Appeal from 337th District Court of Harris County

Affirmed and Memorandum Opinion filed July 5, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01185-CR

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DONALD WAYNE LEWIS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 935,629

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

Donald Lewis appeals a conviction for possession with the intent to deliver a controlled substance[1] on the grounds that: (1) the evidence was legally and factually insufficient to support the verdict; and (2) the trial court erred in denying his motion to suppress evidence obtained during a vehicle search. We affirm.

Appellant=s first issue contends that the evidence of affirmative links was legally and factually insufficient to prove that appellant was in possession of the cocaine.

In reviewing legal sufficiency, we look at all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). In a factual sufficiency review, we view all the evidence in a neutral light, compare the evidence supporting guilt with that disproving it, and set aside the verdict if the proof of guilt is either: (1) so obviously weak as to undermine confidence in the jury=s determination; or (2) greatly outweighed by contrary proof. Id. at 510.

A conviction for unlawful possession of a controlled substance requires proof that the accused: (1) exercised control, management, or care over the substance; and (2) knew it was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). Whether the evidence is direct or circumstantial, it must establish that the accused=s connection to the substance was more than fortuitous. Id. at 405-06. Therefore, where the accused is not in exclusive possession of the place where the substance is found, additional facts must affirmatively link the accused to the substance, i.e., beyond those merely linking him to the place. Id. at 406. However, the affirmative links evidence need not prove that the accused had sole possession of the contraband, but only that he knew of the drugs and constructively possessed them. Id. at 412.

In this case, officers found over 50 grams of cocaine in a blue box on the floor of a car appellant was driving as the sole occupant. Appellant had not stopped immediately when the officers turned on their emergency lights to pull him over for a traffic violation, and was nervous and evasive when they asked him for his driver s license and the name of the owner of the car. When officers patted appellant down, they found $3855, which a drug dog later alerted as having a scent odor of narcotics. Appellant told the officers that there was only $800 in cash and that he had gotten it from his job at United Rentals. However, the evidence showed that appellant had not worked there for roughly four months. While appellant was seated in the patrol car, he asked whether the officers had gotten the blue box, but would not respond when officers asked what was inside it. This evidence is legally sufficient to prove that appellant was in possession of the cocaine in the blue box.

In challenging factual sufficiency, appellant relies on evidence that the vehicle did not belong to him, he was just test driving it, there was no contraband in plain view or on appellant=s person, the blue box did not have his fingerprints on it, and he did not know what was inside it. Although there is conflicting evidence regarding appellant=s knowledge of the cocaine in the blue box, the contrary evidence does not so greatly outweigh the supporting evidence as to render it factually insufficient. Accordingly, appellant=s first and second issues are overruled.

Issues three, four, and five contend that the trial court erred in denying appellant=s motion to suppress the contraband because it was obtained in an illegal search of the blue box. However, appellant did not request or obtain a ruling on his motion to suppress until nearly the end of the State=s evidence. By that time, two investigating officers and a canine officer had testified extensively (and without objection) that the substance in the blue container had been field tested positively as cocaine.[2] In addition, although the motion to suppress was denied, the record does not reflect that the cocaine was ever offered or admitted into evidence. Under these circumstances, appellant=s third, fourth, and fifth issues fail to show that the denial of the motion to suppress resulted in any evidence being admitted that was not already before the jury. Accordingly, those issues are overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed July 5, 2005.

Panel consists of Justices Yates, Edelman, and Guzman.

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

[1] A jury found appellant guilty and assessed punishment of twelve years confinement. See Tex. Health & Safety Code Ann. ' 481.112 (Vernon 2003).

[2] See, e.g., Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (reciting that any error in the admission of evidence is cured when the same evidence comes in elsewhere without objection).