Milton Carelle Kelley v. The State of Texas--Appeal from 178th District Court of Harris County

Affirmed and Memorandum Opinion filed December 16, 2008

Affirmed and Memorandum Opinion filed December 16, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-01001-CR

NO. 14-07-01002-CR

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MILTON CARELLE KELLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause Nos. 1091116 & 1133514

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

Appellant, Milton Carelle Kelley, challenges his convictions for possession of marijuana and possession of cocaine. The trial court assessed punishment at confinement for four years for the marijuana conviction and five years for the cocaine conviction. Appellant contends that the evidence was legally and factually insufficient to support his conviction. We affirm.

Background

On November 1, 2006, the Gulf Coast Violent Offenders Task Force[1] executed an arrest warrant at a residence located at 8026 Green River in Harris County. The task force received a tip from Crime Stoppers that a person or persons would be at the residence with narcotics and money. The warrant was for John Boutte, and was based on a parole violation on an aggravated robbery sentence.

Sergeant Lennie Rasberry of the Harris County Sheriff=s Department led a team of eight to ten officers who executed the warrant. Sergeant Rasberry approached the front of the residence while Officers Juan Johnson and Jeffrey Sparks approached the back door. The path to the back door was blocked by three pit-bull dogs who were chained to a dog house. As Officers Sparks and Johnson approached the door, they walked carefully around the dogs. As he walked toward the back door, Officer Sparks looked in a side window where an air conditioning window-unit was installed. The space around the window unit had been filled with clothing, which had shifted, so Officer Sparks could see inside the residence. He saw two men sitting at a table shuffling a white powdery substance between larger and smaller plastic bags. As Officers Sparks and Johnson took up their positions next to the back door, the two men came to the door and attempted to leave the residence. When the men saw the officers, they slammed the door, locked it, and ran through the house. Officers Sparks and Johnson immediately breached the door and chased the men through the house. The officers apprehended the men in the bathroom of the house where they were attempting to escape through the bathroom window.

Sergeant Rasberry and the other officers at the front door heard the running footsteps in the house and breached the front door. By the time Sergeant Rasberry entered the house, the two men were handcuffed. The men were later identified as John Boutte and appellant. The task force searched the house and found cocaine on the kitchen table and marijuana and a weapon on the coffee table in the living room. All three officers testified that the house was very small and the kitchen and living room were in one room.

At trial, a chemist testified that the cocaine recovered from the house weighed 6.2 grams and the marijuana weighed 8.9 ounces.

Appellant presented the testimony of two witnesses at trial. Diane Edmiston, the owner of the house at 8026 Green River, testified that Joseph Kelley, appellant=s uncle, lives in the house in exchange for maintenance and other odd jobs. Turshea Kossie, appellant=s fiancé, testified that on the day of his arrest, she drove appellant to the house to work with his uncle. Edmiston testified that she usually picks up appellant and Joseph Kelley from the residence in the afternoon and drives them to various locations where they perform odd jobs for her. Edmiston testified that the packing material around the window-unit air conditioner makes it impossible for anyone to see through that window.

Appellant was subsequently convicted of possession of cocaine and marijuana.

Analysis

Appellant challenges both the legal and factual sufficiency of the evidence to support the jury=s finding that he had care, custody and control over the controlled substances found in the house.

I. Legal Sufficiency of Evidence Supporting Finding of Possession

In reviewing legal sufficiency of the evidence, an appellate court will examine the evidence in the light most favorable to the verdict to determine whether any rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). When reviewing legal sufficiency of the evidence, the court does not sit as a thirteenth juror and may not re evaluate the weight and credibility of the record evidence or substitute its judgment for that of the fact finder. Dewberry, 4 S.W.3d at 740.

To prove the offense of possession of a controlled substance, the State was required to show that appellant (1) exercised actual care, control, and management over the controlled substance, and (2) was conscious of his connection with the controlled substance and knew what it was. See Tex. Health & Safety Code Ann. '' 481.002(38), 481.112(a) (Vernon 2003 & Supp. 2007); Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). Because appellant was not in exclusive possession of the residence where the contraband was found, the State must affirmatively link appellant to the contraband. Brown, 911 S.W.2d at 748. This proof must have established that his connection with the cocaine and marijuana was more than just fortuitous. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). Links to demonstrate that connection can include factors 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, and (5) found in an enclosed space. See Hurtado v. State, 881 S.W.2d 738, 743 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d). Another link can be whether the accused=s conduct indicated a consciousness of guilt. Id.

According to appellant, the only evidence directly supporting the finding that appellant possessed the drugs was Officer Sparks= testimony. He testified that he saw two men Ashuffling@ the cocaine from a larger bag to small bags. Appellant contends that Officer Sparks= testimony Awas so riddled with inconsistencies it lacked credibility on its face.@ Specifically, appellant points out that the pictures from the house show there was no gap in the window so that Officer Sparks could not have seen into the house. Further, the weapon was found not on the kitchen table as described by Officer Sparks, but on the coffee table in the living room. Finally, appellant argues that the chemist testified that only one bag of cocaine was turned in to her for analysis, thus contradicting Sparks= testimony that appellant and Boutte were Ashuffling@ the cocaine from a larger bag to smaller bags.

Disregarding Officer Sparks= testimony, the record reflects the following facts:

$ Appellant was present at the house when the warrant was executed.

$ The cocaine and marijuana was on the kitchen table and a coffee table in plain view.

$ Appellant=s uncle was a tenant at the residence and appellant regularly came to the residence to work for the owner of the house.

$ When appellant saw the officers at the door, he locked the door and attempted to flee. Appellant was apprehended trying to escape from a bathroom window.

Even without Officer Sparks= testimony, the evidence is legally sufficient to support the conclusion that appellant had care, custody, and control over the cocaine and marijuana. After reviewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt

II. Factual Sufficiency of Evidence Supporting Finding of Possession

When conducting a factual sufficiency review, an appellate court must determine (1) whether the evidence introduced to support the verdict is Aso weak@ that the fact finder=s verdict seems Aclearly wrong and manifestly unjust,@ and (2) whether, considering conflicting evidence, the fact finder=s verdict is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App 2006). We give deference to the jury=s determinations, particularly those concerning the weight of the evidence and the credibility of witness testimony. See Johnson, 23 S.W.3d 1, 8B9 (Tex. Crim. App. 2000).

An appellate court should not substantially intrude upon the fact finder=s role as the sole judge of the weight and credibility of witness testimony. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Due deference still must be given to the fact finder=s determinations concerning the weight and credibility of the evidence, and reversal of those determinations is only appropriate to prevent the occurrence of a manifest injustice. Martinez v. State, 129 S.W.3d 101, 106 (Tex. Crim. App. 2004).

Reconciliation of conflicts in the evidence is within the exclusive province of the fact finder. See Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). The appellate court=s duty is not to reweigh the evidence, but to serve as a final due process safeguard ensuring only the rationality of the fact finder. See Williams v. State, 937 S.W.2d 479, 483 (Tex. Crim. App. 1996). An appellate court faced with a record of facts that supports conflicting inferences must presume that the finder of fact resolved any such conflicts in favor of the State, and must defer to that resolution. Jackson, 443 U .S. at 326.

Appellant argues that Officer Sparks= testimony was not credible, and it was contradicted by Mrs. Edmiston, the owner of the house. Appellant argues that Officer Sparks could not have looked into the window with the air conditioning unit because the window was sealed. Although the testimony of Mrs. Edmiston contradicted that of Officer Sparks, the jury acted appropriately within its role as fact finder in resolving that conflict in favor of Officer Sparks.

We do not find evidence in the record that greatly outweighs the evidence supporting the trial court's judgment. Accordingly, the jury=s decision was not so contrary to the weight of the evidence as to be clearly wrong and manifestly unjust. We overrule appellant=s issue regarding legal and factual sufficiency of the evidence to support his conviction.

The trial court=s judgment is affirmed.

/s/ William J. Boyce

Justice

Judgment rendered and Memorandum Opinion filed December 16, 2008.

Panel consists of Justices Yates, Seymore, and Boyce.

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

[1] The Gulf Coast Violent Offenders Task Force is a multi-department task force assigned to arrest violent offenders.