William Cook v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-96-182-CR

WILLIAM COOK,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 95-581-C

O P I N I O N

A jury convicted William Cook of the felony offense of possession of cocaine in an amount of four grams or more but less than 200 grams. See Tex. Health & Safety Code Ann. 481.115 (Vernon Supp. 1997). The state alleged two prior felony convictions to enhance Cook to the level of a habitual offender. The court assessed punishment at life in the Texas Department of Criminal Justice, Institutional Division.

Cook alleges in his first point of error that the evidence was legally insufficient to affirmatively link him to the cocaine. Cook s second point of error asserts that the evidence was factually insufficient to establish that Cook possessed the cocaine.

FACTUAL BACKGROUND

This case arose out of an execution of a search warrant at the residence of Carolyn Washington on February 10, 1995. Officers entered the residence and found Cook in the bathroom standing over a running toilet. Upon a search of the residence, officers discovered 16.18 grams of cocaine in the bathroom underneath a white bowl in the towel closet. Officers also found 4.7 grams of cocaine in the left side of Washington s bra and a Crown Royal bag in Washington s possession which contained $2,485.00 in cash. As a result of the search, Cook was charged with possession of cocaine.

Officer Rhudy testified that he kicked in the bathroom door and found Cook fully clothed standing over the commode. According to Rhudy, water was on the floor and around the rim of the commode and [t]he commode was running as if it had just been flushed. Rhudy testified that Cook appeared nervous and was sweating. Rhudy testified that Cook did not seem to be engaged in normal bathroom activities and he believed Cook had flushed something down the commode.

Testimony showed that Washington and Cook were boyfriend and girlfriend and that Cook had been living with her since September 1994. The officers found men s clothing in Washington s closet. They also found a prescription pill bottle in Cook s name in the house.

POSSESSION

When an accused is charged with possession of a controlled substance, the State must prove: (1) the accused exercised care, control, or management over the contraband, and (2) the accused knew the matter was contraband. Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). If the contraband is discovered in a place where the accused does not have exclusive possession, the State must show additional facts and circumstances which affirmatively link the accused to the contraband. Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). Whether the evidence is direct or circumstantial, the state must establish to the requisite level of confidence, that the accused s connection with the drug was more than just fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).

We have used the following list of affirmative links to consider when determining possession: (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 contraband; (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. Collins v. State, 901 S.W.2d 503, 506 (Tex. App. Waco 1994, pet. ref d); accord Villarreal v. State, 865 S.W.2d 501, 503-504 (Tex. App. Corpus Christi 1993, pet. ref d); The numbers of factors present is less important than the logical force of those factors, alone or in combination, establishing the elements of the offense. Martinets v. State, 884 S.W.2d 185, 188 (Tex. App. Austin 1994, no pet.).LEGAL SUFFICIENCY

Cook s first point of error asserts that the evidence is insufficient to affirmatively link him to the cocaine found in Washington s bathroom. In reviewing a claim of legal insufficiency, the court reviews 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. Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996).

Looking only at the evidence favorable to the verdict, we find that Cook was present when the search warrant was executed. Testimony revealed that Cook was living with Washington and men s clothes were found in the bedroom closet. Cook s prescription medicine and notice for past due child support were also discovered in Washington s house. Rhudy s testimony provides circumstantial evidence that Cook exhibited furtive gestures by flushing narcotics down the commode. The officers promptly found the cocaine in the bathroom towel closet in close proximity to where Rhudy found Cook. Although Cook did not make any incriminating statements, Rhudy testified that he appeared nervous and was sweaty. A razor blade, which is often used to break the cocaine into rocks, was in plain view on the kitchen table.

Based on this evidence, a rational trier of fact could have found beyond a reasonable doubt that Cook was in possession of the cocaine. Therefore, we find the evidence legally sufficient.

Accordingly, we overrule Cook s first point.

FACTUAL SUFFICIENCY

Cook asserts in his second point of error that the evidence is factually insufficient to establish that Cook possessed the cocaine. When presented with a factual insufficiency claim, we discard the prism of the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We reverse only if [the verdict] is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id.

All of the evidence in the record related to the contested issue is considered. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Evidence which tends to prove the issue is compared with evidence which tends to disprove the issue. Id. We give appropriate deference to the jury s decision and do not substitute our judgment for theirs. Clewis, 922 S.W.2d at 135. We do not set aside the verdict merely because [we] feel that a different result is more reasonable. Id. (quoting Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986)).

As shown above, evidence exists which tends to prove that Cook possessed the cocaine found in the towel closet. Evidence that the contraband was not in plain view tends to disprove possession. Further, no one testified that Cook was under the influence of drugs or possessed any other contraband. No evidence exists that there was any odor of contraband. Surveillance officers did not see Cook during the three days the house was under surveillance.

The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Santellan, 939 S.W.2d at 164. We must give due deference to the jury on these issues. Id. at 166. After reviewing all the evidence, we cannot say the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 134. Thus, we conclude the evidence is factually sufficient to sustain the conviction. We overrule Cook s second point.

Therefore, we affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis

Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed September 24, 1997

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