Johnnie Lee Franks v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00542-CR
Johnnie Lee FRANKS,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-8234
Honorable Mary Rom n, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: April 7, 2004

AFFIRMED

Johnnie Lee Franks appeals his conviction for possession of cocaine. Franks contends that the evidence is legally and factually insufficient to support his conviction and that the trial court abused its discretion in admitting the cocaine as evidence because the State failed to properly establish its chain of custody. We overrule Franks's points of error and affirm the trial court's judgment.

Background

Officer Kyle Goodwin and Officer Ruben Salda a were parked near a house that was a known narcotics location. Officer Goodwin testified that he saw an individual in a car back out onto the roadway around midnight. The driver, who Officer Goodwin identified as Franks, did not turn on the car's lights, which is a traffic violation. Officer Goodwin stopped the vehicle. When Franks exited the car, Officer Goodwin instructed him to get back inside the car. Franks said, "I can't; I've got warrants," and ran away. After Officer Goodwin chased Franks for some distance, Franks jumped over a chain link fence into the backyard of a home, where he fell down. As Officer Goodwin was jumping over the fence, he saw Franks reach down and throw two different objects. Officer Goodwin could positively identify one object as a pack of cigarettes. The other object appeared to be a small object in a baggie. After Franks threw the objects, Officer Goodwin handcuffed him. Officer Goodwin located the box of cigarettes and proceeded to search for the other object with his flashlight. Another officer showed up with a bigger light, and the baggie was located. The baggie appeared to contain crack cocaine.

Officer Salda a testified that he observed a car exit the driveway of a house that was a known drug location and proceed down the street with its headlights off. The officers stopped the car for a traffic violation. The driver exited the vehicle. In response to the officers' command that the driver get back inside the car, the driver said, "I can't, I've got warrants," and he started to run. Officer Salda a identified Franks as the driver. Officer Salda a testified that he stayed with their car until Officer Goodwin returned.

Officer Brian Burke testified that he was notified by dispatch that Officer Goodwin was chasing a suspect on foot. Officer Goodwin already had Franks handcuffed when Officer Burke arrived. The officers were using their flashlights to search for an object when Officer Burke noticed a small baggie. Officer Goodwin took the baggie into his possession.

Brian Cho, a senior drug analyst at the Bexar County Forensic Science Center, testified that a San Antonio Police Department evidence technician brought an item to be tested involving Franks as the subject. Cho testified that the item tested positive for cocaine.

Sufficiency of the Evidence

To determine the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict and ask if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). For a factual sufficiency review, an appellate court looks at all the evidence to determine whether it is so weak as to make the verdict clearly wrong and manifestly unjust or whether the adverse finding is against the great weight and preponderance of the available evidence. Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003). Appropriate deference must be given to the jury's decision to "prevent an appellate court from substituting its judgment for that of the fact finder." Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). "[A]ny evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony." Id.

Franks challenges the sufficiency of the evidence to support the jury's finding that Franks was in possession of the cocaine. Franks contends that the evidence is insufficient to prove that he had care, custody, or control over the cocaine, which was not found on his person but was lying in the backyard.

"Possession" is statutorily defined as "actual care, custody, control, or management. Tex. Health & Safety Code Ann. 481.002(38) (Vernon Supp. 2004). In order to show that Franks was in possession of the cocaine, the State must provide evidence of affirmative links between Franks and the cocaine. See De la Garza v. State, 898 S.W.2d 376, 379 (Tex. App.--San Antonio 1995, no pet.). Circumstances that may link an accused to contraband include: (1) presence when the search was executed; (2) contraband in plain view; (3) proximity to and the accessibility of the contraband; (4) accused under influence of the contraband; (5) accused's possession of other contraband when arrested; (6) accused's incriminating statements when arrested; (7) attempted flight; (8) furtive gestures; (9) odor of the contraband; (10) presence of other contraband or drug paraphernalia not included in the charge; (11) accused's ownership or right of possession of the place where the controlled substance was found; (12) drugs found in an enclosed place. Id. In this case, Franks was present at the location where the cocaine was found. Although a flashlight was needed to find the cocaine, it was in plain view. Officer Goodwin saw Franks throw two objects after he fell, and the cocaine was in the proximity of where Franks fell. The cocaine was recovered after Officer Goodwin chased Franks, who ran away after being stopped for a traffic violation. This evidence is legally and factually sufficient to affirmatively link Franks to the cocaine and to prove that Franks was in possession of the cocaine. Franks's first and second points of error are overruled.

Chain of Custody

In his third point of error, Franks contends that the trial court abused its discretion in admitting the cocaine into evidence because the State failed to establish a proper chain of custody. We will not reverse the trial court's decision to admit the cocaine into evidence absent an abuse of discretion. Foster v. State, 101 S.W.3d 490, 498 (Tex. App.--Houston [1st Dist.] 2002, no pet.). If a substance is properly identified, most questions concerning care and custody, including gaps and minor theoretical breaches, go to the weight to be given the evidence, not to its admissibility, unless there is a showing that the substance was tampered with or changed. DeLeon v. State, 505 S.W.2d 288, 289 (Tex. Crim. App. 1974); Foster, 101 S.W.3d at 498; Avila v. State, 18 S.W.3d 736, 739 (Tex. App.--San Antonio 2000, no pet.). Evidence is generally admissible if the State shows the beginning and the end of the chain of custody. Foster, 101 S.W.3d at 498.

In this case, Officer Goodwin tagged the cocaine at the scene, and identified his initials and badge number on the bag and box containing the cocaine. Officer Goodwin logged the evidence into the evidence room and placed it in the secure evidence drop box. Cho testified regarding his testing of the cocaine. Although Cho admitted that he did not interact with the evidence technician who brought the cocaine from the evidence room to the laboratory for testing, the absence of the evidence technician's testimony is a minor gap that goes to the weight of the evidence, not its admissibility. Cho identified the cocaine by the crime lab investigation number that was assigned to it. Cho also identified his initials and the date the evidence was subsequently sealed after testing on the evidence tape. Franks did not present any proof to show that the cocaine had been tampered with or changed. Because the evidence sufficiently established the chain of custody, the trial court did not abuse its discretion in admitting the cocaine as evidence.

Conclusion

The judgment of the trial court is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH