DONNIE TYRONE HAYNES AKA DONNIE TYRONE HAYES v. THE STATE OF TEXAS--Appeal from 329th District Court of Wharton County

 NUMBER 13-04-492-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  - EDINBURG

DONNIE TYRONE HAYNES

A/K/A DONNIE TYRONE HAYES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 329th District Court of Wharton County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Castillo and Garza

Memorandum Opinion by Justice Garza

Appellant, Donnie Tyrone Haynes, was convicted of possession of a controlled substance and was assessed punishment at eight years= imprisonment. See Tex. Health & Safety Code Ann. ' 481.002 (Vernon Supp. 2004-05), ' 481.115 (Vernon 2003). For the reasons that follow, we affirm the judgment of the trial court.

On October 9, 2003, at about 3:00 a.m., Sergeant Justin Moran of the Wharton City Police saw appellant walking down a street by town square. Appellant noticed the patrol car and began to walk faster towards a trash can. Appellant allegedly brought his hands toward the waist area of his pants, extended his hands toward the opening of the trash can, pulled them back as if he was throwing something away, then walked away at a faster pace.[1] Moran became suspicious and pulled over to speak to appellant. Moran looked in the trash can and found at the top of the heap a small brown bottle. Appellant denied having thrown anything in the trash can and was allowed to leave. Moran had the contents of the bottle sent for testing. The results indicated that the bottle contained 9.3 grams of phencyclidine or APCP.@ Appellant was charged with possession of an illegal substance. Appellant pled not guilty to the offense. A jury found appellant guilty, and the trial court sentenced him to eight years=imprisonment. This appeal ensued.

By two issues, appellant asserts that the evidence is legally and factually insufficient to sustain his conviction.

I. Relevant Law

In this case, appellant was convicted for possession of a controlled substance, PCP, in the amount of four grams or more, but less than 200 grams. The elements of the offense are that (1) a person (2) knowingly or intentionally (3) possesses (4) a controlled substance listed in Penalty Group 1, which includes PCP. Tex. Health & Safety Code Ann.' 481.102(8) (Vernon Supp. 2004-05), Tex. Health & Safety Code Ann. ' 481.115(a).

II. Standard of Review

When reviewing the legal sufficiency of the evidence, we view 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, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). This standard of review is applicable in both direct and circumstantial evidence cases. Chambers v. State, 711 S.W.2d 240,244 (Tex. Crim. App. 1986). We are not fact finders; our role is that of a due process safeguard, ensuring only the rationality of the trier of fact=s finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).

In a factual sufficiency review, the evidence is viewed in a neutral light, favoring neither party. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In this neutral light, we determine whether Athe proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.@ See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). A clearly wrong and unjust verdict occurs where the jury=s finding Ashocks the conscience@ or Aclearly demonstrates bias.@ Santellan v. State, 939 S.W.2d 155, 164-65 (Tex. Crim. App. 1997). We are authorized to disagree with the fact finder=s verdict even if probative evidence exists that supports the verdict. Id. at 164; see also Johnson, 23 S.W.3d at 7.

In a criminal conviction, sufficiency of the evidence is determined by the elements of the crime as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The correct charge "would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.

To support a conviction for possession of a controlled substance, the State must prove (1) that the accused exercised care, control, or custody over the substance, and (2) that the accused was conscious of his connection with the substance and knew what it was. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). The evidence may be direct or circumstantial. Id. Regardless, the evidence must establish that "the accused's connection with the drug was more than just fortuitous." Id.

III. Analysis

Appellant asserts that the evidence is legally insufficient because no evidence was presented that appellant ever possessed the controlled substance. In support of his argument, appellant contends that (1) the officer never saw appellant with a bottle in his hands, (2) appellant=s fingerprints were not found on the bottle, and (3) the officer could not say what was in that trash can prior to 3:00 a.m. or how long the item had been in the trash can.

Among the non exclusive factors that may be considered to establish a defendant=s possession of contraband are (1) whether the contraband was found in close proximity to the accused, (2) whether conduct by the accused indicated a consciousness of guilt, (3) whether the accused attempted to escape or flee, (4) whether the accused made furtive gestures, and (5) whether the accused was observed in a suspicious place under suspicious circumstances. See Lassaint v. State, 79 S.W.3d 736, 740 41 (Tex. App.BCorpus Christi 2002, no pet.). The number of factors present is not as important as the logical force they have in establishing the elements of the offense. Corpus v. State, 30 S.W.3d 35, 37 38 (Tex. App.BHouston [14th Dist.] 2000, pet. ref'd). Incriminating connections may be shown by direct or circumstantial evidence. Brown, 911 S.W.2d at 747. The evidence need not exclude every reasonable hypothesis other than the defendant's guilt, but it must show facts and circumstances that, viewed in the totality of the circumstances, indicate the defendant's knowledge and control over the drugs. See id. at 748; State v. Derrow, 981 S.W.2d 776, 778 (Tex. App.BHouston [1st Dist.] 1998, pet. ref'd).

Appellant states that Athe officer found the controlled substance in a trash can where he found appellant . . . .@ Appellant=s statement places appellant in the trash can with the bottle; however, our review of the record reveals that appellant was actually found in the area near the trash can and not actually inside the trash can. Officer Moran testified that he saw appellant walking down the street at 3:00 a.m. He noticed that when appellant saw him driving down the street, appellant began walking at a faster pace. Appellant then approached a trash can, reached down towards his waist and extended his hands toward the trash can. Appellant then walked away at a fast pace. After approaching appellant, Moran looked in the can and found the bottle containing PCP on top of the heap.

Examining the aforementioned evidence in the light most favorable to the jury's verdict and in light of the nonexclusive factors set forth above, we conclude that the jury could have reasonably determined beyond a reasonable doubt that appellant knowingly and intentionally possessed the PCP, that he exercised actual care, custody, or control of the PCP, and that he was conscious of his connection with it. Therefore, we hold that the evidence was legally sufficient to support the jury's verdict. Appellant's first issue is overruled.

In his second issue, appellant contends that the evidence in this case was factually insufficient to support a conviction. Specifically, appellant contends the evidence is insufficient because Moran never saw the bottle in appellant=s hands and because Moran did not look in the trash can before stopping him.

We have reviewed the record in its entirety. We iterate that our evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. See Santellan, 939 S.W.2d at 164. We further note that there is no absolute criteria for finding possession in circumstantial cases; such offenses must necessarily be established by a consideration of a totality of the circumstances. See Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.BHouston [14th Dist.] 2001, pet. ref'd).

Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury's finding, does not reveal any evidence that would cause us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render appellant's conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the jury's verdict. Appellant's second issue is overruled.

We affirm the judgment of the trial court.

_______________________

DORI CONTRERAS GARZA,

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 6th day of October, 2005.

[1] Appellant=s statement of facts is as follows AAppellant was seen walking in the street by a Wharton police officer at 3:00 in the morning. Appellant began to walk away from the officer towards a trash can. Appellant extended both hands over the trash can. The officer never saw anything in [a]ppellant=s hands. The officer later found a medicine bottle with phencyclidine.@