Rodney Dewayne Butler aka Rodney Wayne Davenport v. The State of Texas--Appeal from 85th District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-93-240-CR

RODNEY DEWAYNE BUTLER,

AKA RODNEY WAYNE DAVENPORT,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 85th District Court

Brazos County, Texas

Trial Court # 21,712-85

O P I N I O N

Appellant Rodney DeWayne Butler was tried for aggravated possession with intent to deliver a controlled substance, namely, cocaine. Following a trial by jury, he was convicted and sentenced to fifty years of confinement in the Texas Department of Criminal Justice-Institutional Division, and was fined $10,000. See Tex. Health & Safety Code Ann. 481.102(3)(D); 481.112(c) (Vernon 1992).

He raises a single issue on appeal: whether his conviction is supported by sufficient evidence. We affirm.

In addressing a sufficiency of the evidence claim, we construe the facts adduced at trial in the light most favorable to the verdict. See Geesa v. State, 820 S.W.2d 154, 156-157 (Tex. Crim. App. 1991) (quoting Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 2789 (1979)). Once examined, a conviction will be reversed only if a rational trier of fact could not have found all the essential elements of the crime beyond a reasonable doubt. Id. at 156-157.

The elements of the unlawful possession of a controlled substance with the intention to distribute are: (1) the accused exercised care, custody, control and management over the contraband; (2) the accused knew the substance possessed was contraband; and (3) the accused intended to transfer the contraband. Daniels v. State, 853 S.W.2d 749, 750 (Tex. App. Houston [1st Dist.] 1993, no pet.); Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). Butler asserts the evidence is insufficient to establish his care, custody, control, and management over the contraband in question.

Butler argues that, when the accused is not in exclusive possession of the premises where the contraband was found, the prosecution must present additional independent facts and circumstances which affirmatively link the accused to the contraband. See Herndon v. State, 787 S.W.2d 408, 409-410 (Tex. Crim. App. 1990) (on rehearing). He contends these "affirmative links" are a necessary predicate to a conviction which the prosecution must establish to create a presumption of the defendant's guilt. Id. at 409. Several factors, asserts Butler, are to be used in determining whether affirmative links have been adequately established:

(1) the defendant's presence when the search warrant was executed; (2) whether the contraband was in plain view; (3) the defendant's proximity to and the accessibility of the narcotics; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia was present; (11); whether the defendant owned or had the right to possess the place where the drugs were found; and (12) whether the place the drugs were found was enclosed.

See Villareal v. State, 865 S.W.2d 501, 503-504 (Tex. App. Corpus Christi 1993, pet. ref'd); see also Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App. Austin 1991, pet. ref'd) (similar factors in relation to contraband found in an automobile).

Since Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991), several courts of appeals have reached divergent conclusions on the continued use and efficacy, if any, of the affirmative links analysis. This court recently clarified its position on affirmative links in Collins v. State, No. 10-94-119-CR (Tex. App. Waco, December 14, 1994, n.w.h.), where we held that "the affirmative links analysis is a convenient and logically sound method of applying the Jackson standard to determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the possession of illicit drugs beyond a reasonable doubt." Id. at 5. Accordingly, we will now undertake an analysis of the evidence adduced at trial, using the affirmative link factors as a guide, to determine whether a rational trier of fact could have found beyond a reasonable doubt that Butler exercised care, custody, control, and management over the cocaine found at Freeman's house.

A recitation of the facts is necessary for an analysis of Butler's sufficiency of the evidence argument: On September 9, 1992, Bryan Police Officer Dennis Thane, who was assigned to a street level narcotics enforcement squad known as the Street Crime Apprehension Team (SCAT), received a telephone call detailing an anonymous informant's tip that a person named "Rodney" had picked up some crack cocaine in Houston that day; that he had taken 38 "cookies" of crack cocaine to his residence at 1007 East 25th Street in Bryan; that he drove a 1985 burgundy Cadillac; that the Cadillac and a white Toyota were parked at 1007 East 25th; that he had recently left 1007 East 25th in a green and white Chevrolet S-10 pick-up truck with five of the 38 cookies to deliver them at another location; and that the remainder of the cookies were in a shoe box under a bed at 1007 East 25th.

The information provided by the informant was later corroborated. Thane witnessed a 1986 burgundy Cadillac parked at 1007 East 25th. That same afternoon, Officer Sharean Gideon, also of Bryan's SCAT squad, observed a white Toyota arrive at 1007 East 25th and leave approximately an hour later. Gideon watched the Toyota stop at the residence of a known drug trafficker and pick up a passenger. She then witnessed the Toyota make stops in three different areas known for a high volume of drug trafficking. After the third stop, Commander Steve Hanel of the Brazos Valley Narcotics Task Force substituted for Gideon as the officer on surveillance of the Toyota. He observed the driver of the Toyota, Lejuanda Freeman, place something in a pedestrian's cupped hand. Hanel then ordered a stop of the Toyota.

Freeman gave consent to the officers for a search of the Toyota. No drugs were found in the car, but a cookie of crack cocaine and $764 in cash were found in the purse carried by the passenger, Sandra Stewart. Both women were arrested. A subsequent search of Freeman's purse revealed $188 in cash, a First City Bank safe deposit box key, and a birth certificate for Butler.

Also, that same afternoon, surveillance was conducted at 1007 East 25th. A narcotics detecting dog indicated the scent of narcotics on the Cadillac parked there, although no drugs were found during a subsequent search of the car. A search warrant was issued for the house. A briefcase was found in the master bedroom containing $1800 in cash, a 9 millimeter Beretta handgun, a Beretta handbook, hollow-tip ammunition, various land deeds and contracts with Butler's name on them, a cashier's check for $2000, a receipt from the sale of the Beretta, a receipt from Intercontinental for a BMW car part, a receipt from a used car dealership, and a matching key to the First City Bank safe deposit box mentioned above. Elsewhere in the house were found pharmaceutical beakers, one with a crack-cocaine cookie in it, shotguns, a pager, digital scales, various photographs of Butler and Freeman together, including one with them sitting together in a limousine, men's clothing and shoes, and a chantilly powder box with three crack-cocaine cookies in it.

A record check with First City Bank of Bryan revealed that Freeman and Butler signed a cash contract for a safe deposit box on July 31, 1992. A record's check with the Department of Public Safety indicated that Butler had been issued a driver's license with the address of 1007 East 25th on September 1, 1992.

James A. Hughes, the owner of the property at 1007 East 25th, testified that Butler lived there and that, three days after the search warrant had been executed, he found no men's clothing. Lynette Bounds, manager of the Tahoe Apartments, where Freeman lived before moving to 1007 East 25th, testified Freeman was a government-subsidized resident and was paying anywhere from nothing to $137 per month in rent from January 1990 to September 1992. She also testified that Freeman's estimated gross income for 1992 was $5,525.

Butler testified he started dating Freeman around July 4, 1992. He stated that he sometimes paid her rent, lent her money to buy clothes and furniture, and that he bought her a pager. He testified that he made approximately $20,000 per year between 1990-1992 as a rodeo hand, although he never filed any income tax forms during those years. He also stated he permitted the seller of a 1989 Ford Mustang to hold $7500 cash while he took the car for a test drive, and he finally purchased it for approximately $5500.

Bruce Jones, legal custodian of records for Enterprise Rent-A-Car, testified that he rented a Toyota Corolla to Freeman in August 1992 and that a "Rodney" was listed as an authorized driver.

Butler admitted to owning the briefcase found in Freeman's home, but testified that the Beretta belonged to a friend and he had simply put it in the briefcase so Freeman's children would not have access to it. The $1800 cash was part of a personal injury settlement check that he had received approximately one week earlier. Butler testified that neither he nor Freeman were involved in any way in the commerce of illegal drugs.

We conclude that there were sufficient facts adduced at trial which would allow a rational trier of fact to find Butler exercised care, custody, control and management over the cocaine; that he knew the substance he possessed was cocaine; and that he intended to transfer the cocaine. Accordingly, his point of error is overruled, and the judgment is affirmed.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed December 28, 1994

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