Juan Hoza Johnson v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00078-CR

Juan Hoza Johnson,

Appellant

v.

The State of Texas,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2005-660-C

MEMORANDUM Opinion

Appellant Juan Hoza Johnson was convicted of Possession with Intent to Deliver a Controlled Substance and, as a repeat offender, was sentenced to 80 years in prison. Johnson brings three issues on appeal. We will affirm the judgment of the trial court.

Background

On the evening of December 9, 2004, Johnson and Billy Joe Nichols were riding in Johnson s car when they picked up fourteen-year-old Shannon. She testified that they drove around for approximately one hour before picking up sixteen-year-old, Rachel.[1] They then traveled to a parking lot across the street from a night club. Shannon testified that a car drove up to their car, Johnson broke off a piece of crack from a rock he had in his pocket, and Johnson handed the crack to Nichols who sold it to an occupant of the other car.

They left the parking lot and traveled to a gas station. Although Shannon and Rachel both testified that they went with the men to a gas station, Shannon testified that Johnson drove the car to the station and Rachel testified that Nichols was driving the car at that time. They agreed, however, that while Johnson pumped the gas, Shannon who had been sitting in the back seat, climbed into the front seat and Nichols joined Rachel in the back seat. Officer Ben Rush of the Waco Police Department testified that as he drove through the gas station parking lot he saw Nichols get into the car. Rush knew that an arrest warrant had been issued for Nichols. As he approached the car to make the arrest, Nichols locked the door, threw several small bags of crack at Shannon and Rachel, and told them to hide the bags.

Rush handcuffed Nichols in the backseat of the car and saw a bag of crack cocaine on the seat. After a further search of the car, he found a total of three bags of crack cocaine which contained 7.48 grams, 14.89 grams, and 13.98 grams of crack respectively. One of these bags was wedged under the front seat. Rush arrested both Johnson and Nichols for possession of a controlled substance with the intent to deliver.

Sufficiency of the Evidence

In his first and second issues, Johnson alleges that the evidence was legally and factually insufficient to show that he possessed the drugs found in the car.

Standard of Review

When reviewing a challenge to the legal sufficiency of the evidence, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, 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, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). We do not resolve any conflict of fact or assign credibility to the witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). Inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); Matson, 819 S.W.2d at 843.

The Court of Criminal Appeals articulated the standard of review for a factual sufficiency claim in Watson v. State, 204 S.W.3d. 404 (Tex. Crim. App. 2006). We, as the reviewing court, ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the jury's verdict clearly wrong and manifestly unjust. Watson, 204 S.W.3d at 414-15; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). AThe court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact.@ Johnson, 23 S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). The appellate court Adoes not indulge in inferences or confine its view to evidence favoring one side of the case. Rather, it looks at all the evidence on both sides and then makes a predominantly intuitive judgment. . . .A Id. (quoting William Powers and Jack Ratliff, Another Look at ANo Evidence@ and AInsufficient Evidence,@ 69 Texas L. Rev. 515, 519 (1991)).

The nature of a factual sufficiency review authorizes an appellate court, although to a very limited degree, to act as the so-called thirteenth juror to review the fact finder=s weighing of the evidence and disagree with the fact finder=s determination. Watson, 204 S.W.3d at 417 (citing Tibbs v. Florida, 457 U.S. 31, 42-3, 102 S. Ct. 2211, 2218, 72 L. Ed. 2d 652 (1982), and Meraz v. State, 785 S.W.2d 146, 156 (Tex. Crim. App. 1990)). If an appellate court concludes that the evidence is factually insufficient, however, it must clearly state why it has reached that conclusion. Johnson, 23 S.W.3d at 7 (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)).

Analysis

Johnson was indicted for knowingly possessing with the intent to deliver a controlled substance. See Tex. Health & Safety Code Ann. 481.112(a) (Vernon 2003). Possession means actual care, custody, control, or management. Id. 481.002(38) (Vernon Supp. 2006).

[W]hen the accused is not in exclusive possession of the place where [a controlled] substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) (quoting Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981)). This affirmative links rule . . . simply restates the common-sense notion that a person . . . may jointly possess a place but not necessarily jointly possess the contraband found in that place. Poindexter, 153 S.W.3d at 406. Evidence of possession must establish, to the requisite level of confidence, that the accused s connection with the drug was more than just fortuitous. Id. (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)).

This Court has considered the following factors in the affirmative links analysis:

1. Presence when the search was executed;

2. contraband in plain view;

3. proximity to and accessibility of the contraband;

4. accused under the influence of contraband when arrested;

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;

11. accused s right to possession of the place where contraband was found; and

12. drugs found in an enclosed place.

Rischer v. State, 85 S.W.3d 839, 843 (Tex. App. Waco 2002, no pet.). Courts have also considered whether the accused was found with a large amount of cash, the occupants of the premises gave conflicting statements about relevant matters, the accused made incriminating statements connecting himself to the contraband, and the quantity of the contraband. Poindexter v. State, 115 S.W.3d 295, 299 (Tex. App. Corpus Christi 2003), rev d on other grounds, 153 S.W.3d 402 (Tex. Crim. App. 2005).

Courts do not require any specific combination of these factors to support a conviction for drug possession. Bethancourt-Rosales v. State, 50 S.W.3d 650, 656 (Tex. App. Waco 2001, pet. ref d). Rather, affirmative links are established by considering the totality of the circumstances. Rischer, 85 S.W.3d at 843.

Johnson argues that the location of the bags of crack cocaine found in the car can be explained by the fact that Nichols threw the bags at both girls in an attempt to hide them from Rush. Johnson also argues that the affirmative-links test fails because the bags were accessible to all other occupants of the car, Johnson did not act in a way consistent with guilt, there was conflicting testimony concerning whether Johnson was the only person to drive the car, there was no odor of drugs in the car, there was no drug paraphernalia in the car, none of the occupants of the car testified that Johnson possessed one of the three bags, he had no special connection to the bags, and no traces of drugs were found on Johnson.

The State argues that the evidence presented at trial established that Johnson was affirmatively linked to the contraband. Both Shannon and Rachel testified that he was in the front seat when they arrived at the gas station (although they disagreed as to whether he was driving the car) and that he was pumping gas when Rush approached the vehicle. The drugs for which Johnson was indicted were located under the front seat and easily accessible to Johnson. Further, Rush testified that Johnson owned the car in which the drugs were found.

Allen Thompson, an investigator for the Waco Police Department who testified as the State s expert, stated that in his opinion the drugs found in Johnson s car were not intended for personal use. He stated that an individual who possesses crack cocaine for personal use generally has no more than one gram. However, the bag found under Johnson s front seat contained approximately 14 grams of crack cocaine. Shannon testified that Johnson had crack cocaine in his pocket earlier in the evening and the men had stated that they needed to get their dope off (i.e., sell the rest of the drugs they had). In addition to the bags found in the car, traces of cocaine were also detected throughout the interior of the car.

Further, Rush testified that drug dealers often carry large amounts of cash in assorted denominations. At the time of his arrest, Johnson had $516 in the following denominations: one 50 dollar bill, eighteen 20 dollar bills, five 10 dollar bills, nine 5 dollar bills, and eleven 1 dollar bills.

The State also introduced an incriminating audio recording of a telephone call made to Crystal Ray, Nichol s girlfriend, from Nichol s cell block at the McLennan County Jail. The recording contained three voices, two of the voices were identified as Nichols and Ray. However, there was conflicting testimony as to the third voice which made various incriminating statements.[2] Shannon testified that she believed the third voice was Johnson s although she stated that the District Attorney gave her a clue that it might be Johnson s voice on the recording. Shannon stated that she smiled when she heard the tape because she immediately recognized the voices. Rush and Rachel also testified that the individual on the recording was Johnson. However, Gwendolyn Johnson, the defendant s mother, and Erika Montgomery, the mother of Johnson s child, both testified that it was not his voice on the tape.

Rachel also testified Johnson made a potentially incriminating statement to her after the incident. She was in a parked car with her cousin, and Johnson approached the car and asked to speak to her alone. Although her cousin protested, she walked with Johnson to an abandoned lot near the parked car. Once they were alone, Johnson said: You know we ve got to go to trial for this. B. Joe has already gone. He already got his time. All I need you to do is to tell the people that you don t know me and you don t know nothing about me and I don t sell no drugs.

In viewing the evidence in the light most favorable to the verdict, we cannot say that a rational trier of fact could not have found guilt beyond a reasonable doubt or that the jury was not rationally justified in finding guilt. Curry, 30 S.W.3d at 406. Accordingly, we find that the evidence is legally sufficient to support a finding that Johnson knowingly possessed crack cocaine as alleged.

In viewing the evidence in a neutral light, we find that the jury was justified in finding Johnson guilty. Watson, 204 S.W.3d. at 415. The record shows that one bag of crack cocaine was found in Johnson s car underneath the front seat where he was sitting, he had a large amount of cash on him at the time of his arrest, and there was evidence that he made incriminating statements. We do not find this evidence so weak as to render the verdict manifestly unjust.

We overrule Johnson s first and second issues.

Extraneous Act

In his third issue, Johnson argues that the trial court erred in overruling his objection to the admission of evidence pertaining to the drug transaction earlier in the evening. He contends that the evidence is improper character evidence admitted in violation of Texas Rule of Evidence 404(b). See Tex. R. Evid. 404(b). The State argues Rule 404(b) is not applicable because this act is not a separate and distinct offense, but evidence of his exercise of custody over the crack cocaine found in the car. In the alternative, the State argues that the act was properly admitted as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id.

Evidence of other crimes, wrongs or acts other than those for which the defendant is on trial is not admissible to prove the character of a person in order to show conformity therewith. Tex. R. Evid. 404(b). Generally, evidence of extraneous offenses may not be used against the accused in a criminal trial. Daggett v. State, 187 S.W.3d 444, 450 (Tex. Crim. App. 2005). A trial court s ruling on the admissibility of extraneous offenses is reviewed under an abuse of discretion standard. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). As long as the trial court s ruling is within the zone of reasonable disagreement, we will not interfere with the ruling. Graff v. State, 65 S.W.3d 730, 739 (Tex. App. Waco 2001, pet. ref d).

We find that Shannon s testimony that Johnson had possessed crack cocaine earlier in the evening was circumstantial evidence that he intentionally or knowingly possessed at least one bag of crack cocaine found in the car at the gas station, and was admissible to rebut the defensive theory that Johnson did not have the requisite knowledge or intent. See Wingfield v. State, 197 S.W.3d 922, 925 (Tex. App. Dallas 2006, no pet.). Accordingly, we find that the trial court did not abuse its discretion in admitting Shannon's testimony, and we overrule Johnson s third issue.

Conclusion

Having overruled Johnson s three issues, we affirm the judgment of the trial court.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed March 14, 2007

Do not publish

[CR25]

[1] Shannon and Rachel are pseudonyms used to protect the identity of minors.

[2] The State argued that Johnson stated the following on the recording: I only had one bag I will take credit or I ll snatch the one that belongs to me. But I didn t have the other or I wouldn t have lost 14 grams.