MARILYN EHLERS AKA MARYLIN EHLERS v. THE STATE OF TEXAS--Appeal from 105th District Court of Nueces County

NUMBERS 13-06-633-CR

 
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI EDINBURG

MARILYN EHLERS

A/K/A MARYLIN EHLERS, Appellant,

 

v.

 

THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court of Nueces County, Texas

MEMORANDUM OPINION

 
Before Justices Ya ez, Rodriguez, and Garza
Memorandum Opinion by Justice Garza

Appellant, Marilyn Ehlers a/k/a Marylin Ehlers, was indicted for possession of less than one gram of cocaine. See Tex. Health & Safety Code Ann. 481.102(3)(d) (Vernon Supp. 2006), 481.115 (Vernon 2003). Appellant pleaded not guilty. A jury found appellant guilty and the trial court sentenced her to two years' imprisonment, probated for four years' community supervision, and imposed a $1,000 fine. On appeal, appellant contends the evidence is legally insufficient to support her conviction. We affirm.

Factual and Procedural Background

On May 7, 2006, several police officers of the Corpus Christi Police Department were called out as back up by Officer Justin Evans. Evans testified that he saw appellant driving the car in question when she pulled up to the scene of a police investigation at a home. Appellant did not remain at the home. Evans testified that when he left the scene of the investigation at the home and came towards the middle of the street, he noticed the vehicle appellant had been driving parked on the wrong side of the street. Because Evans was in the middle of his own investigation, he called in the officers to investigate, and upon their arrival Evans returned to his investigation. Officer Daryl Anderson testified that he received the call to investigate a vehicle parked on the wrong side of the road obstructing traffic. He testified that he found appellant sitting on the passenger's side of the car and that she was the only person in the car. Officer Norman Wayne Morton testified that appellant was the only person in or around the car and that she was found sitting in the passenger seat of the car with car keys in her hand. Officer Morton further testified that, when he asked appellant to step out of the car to perform a sobriety test, he noticed what he believed to be a homemade crack pipe on the floorboard of the passenger side of the car. Morton explained that the glass crack pipe was burned on both ends, one end was broken off, a brillo pad was pushed all the way to the other side leaving scratches, the glass looked frosted, and the inside was coated with smoked cocaine. (1) After a further search of the vehicle, Officer Morton found two homemade crack pipes and a lipstick case containing residue of crack cocaine. Officer Morton also found a purse lying on the floorboard of the passenger side of the car with the lipstick case "[o]n the purse. It's, like, in and out." (2) Appellant admitted the purse was hers. Officer Morton also testified he considered the area where appellant was found to be dangerous and known for drug distribution.

Appellant was subsequently charged and found guilty of possession of a controlled substance. This appeal ensued. By one issue, appellant contends the evidence is legally insufficient to support her conviction.

Standard of Review

An appellate court reviews a challenge to the legal sufficiency of the evidence by viewing 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). When reviewing the legal sufficiency of the evidence, the reviewing court examines all the evidence on the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). When conflicting inferences can be made, the reviewing court presumes the trier of fact resolved any conflict in favor of the prosecution, and the reviewing court will defer to that resolution. Jackson, 443 U.S. at 326; Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The role of the reviewing court is not as an additional trier of fact, but instead a final, due process safeguard ensuring the rationality of the trier of fact. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988) (en banc).

Sufficiency of the evidence is measured 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 hypothetically correct charge "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.

Analysis

To support a conviction for possession of less than one gram of cocaine, the State must prove the accused: (1) exercised control, management, or care over the substance; and (2) had knowledge that the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005) (citing Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995); Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988)).

The State does not have to show that the accused had exclusive possession of the controlled substance. Damron v. State, 570 S.W.2d 933, 934 (Tex. Crim. App. 1978) (citing Collini v. State, 487 S.W.2d 132, 135-36 (Tex. Crim. App. 1972)). When the accused is not in exclusive possession of the location where the contraband is found, the State must establish additional independent facts and circumstances that affirmatively link the accused in such a manner that it can be concluded that the accused had knowledge of the contraband and exercised control over it. Poindexter, 153 S.W.3d at 406; Naquin v. State, 607 S.W.2d 583, 586 (Tex. Crim. App. 1980). Affirmative links may be proved with circumstantial evidence, but proof that creates only a strong suspicion or even a probability will not suffice. Jenkins v. State, 76 S.W.3d 709, 712 (Tex. App.-Corpus Christi 2002, pet. ref'd). Affirmative links protect the innocent bystander and establish "that the accused's connection with the drug was more than just fortuitous." Poindexter, 153 S.W.3d at 406; Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).

Courts have identified a number of factors that may help show an affirmative link to controlled substances. See, e.g., Poindexter, 153 S.W.3d at 406; Jenkins, 76 S.W.3d at 712-13; Lassaint v. State, 79 S.W.3d 736, 740 (Tex. App.-Corpus Christi 2002, no pet.); Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). The following is a non-exclusive list of factors that has been found to affirmatively link a defendant to contraband: (1) whether the contraband was in plain view or recovered from an enclosed place; (2) the accused was the owner of the premises or had the right to possess the place where the contraband was found, or was the owner or driver of the automobile in which the contraband was found; (3) the accused was found with a large amount of cash; (4) the contraband was conveniently accessible to the accused, or found on the same side of the vehicle as the accused was sitting; (5) the contraband was found in close proximity to the accused; (6) a strong residual odor of the contraband was present; (7) the accused possessed other contraband when arrested; (8) paraphernalia to use the contraband was in view, or found on the accused; (9) the physical condition of the accused indicated recent consumption of the contraband in question; (10) conduct by the accused indicated a consciousness of guilt; (11) the accused attempted to flee; (12) the accused made furtive gestures; (13) the accused had a special connection to the contraband; (14) the occupants of the premises gave conflicting statements about relevant matters; (15) the accused made incriminating statements connecting himself to the contraband; (16) the quantity of the contraband; and (17) the accused was observed in a suspicious area under suspicious circumstances. Jenkins, 76 S.W.3d at 712-13; Lassaint, 79 S.W.3d at 741. The court determines whether the evidence is sufficient to affirmatively link the accused to the contraband on a case by case basis. Jenkins, 76 S.W.3d at 713, Lassaint, 79 S.W.3d at 741; Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.-Austin 1991, pet. ref'd). The "logical force" the factors create to prove the defendant knowingly possessed the controlled substance is more important than the number of factors present. Jenkins, 76 S.W.3d at 713; Lassaint, 79 S.W.3d at 741; Jones v. State, 963 S.W.2d 826, 830 (Tex. App.-Texarkana 1998, pet. ref'd); Hurtado v. State, 881 S.W.2d 738, 743 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd); Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). The defendant's actions toward the contraband or the police may be considered an affirmative link. Payne v. State, 480 S.W.2d 732, 734 (Tex. Crim. App. 1972); Granados v. State, 843 S.W.2d 736, 740 (Tex. App.-Corpus Christi 1992, no pet.).

Appellant argues the evidence affirmatively linking her to the cocaine is legally insufficient to support her conviction because she did not exercise control, management, or care over the contraband. She argues that her mere proximity to the drugs is insufficient.

In the light most favorable to the verdict, the record shows the following affirmative links between appellant and the cocaine: appellant was seen driving the car; appellant was found with car keys in her hand; appellant was the sole occupant of the car; the lipstick case that contained cocaine residue was found "half in and half out" of appellant's purse; and two homemade crack pipes that were coated with smoked cocaine were found in the car, with one of them lying on the floorboard by appellant's feet. Appellant was also found with the cocaine and drug paraphernalia in an area known for drugs. Based on these facts, a rational trier of fact could have found beyond a reasonable doubt that appellant possessed cocaine. Accordingly, we conclude the evidence is legally sufficient to support appellant's conviction for possession. Appellant's sole issue is overruled.

Conclusion

The judgment of the trial court is affirmed.

 

_________________________

DORI CONTRERAS GARZA,

Justice

 

Do not publish.

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

Memorandum Opinion delivered and

filed this the 12th day of July, 2007.

1. Officer Cesario Perez testified that he had extensive experience and training concerning drug paraphernalia and that the two crack pipes introduced into evidence as State's exhibit number 1 appeared to be crack pipes, used to smoke cocaine or methamphetamine, and that one of them contained some white residue.

2. Officer Morton testified that the purse was lying on its side because it appeared to have fallen down. Officer Morton described a makeup case inside the purse as "sitting on top of the purse on the inside. It was half in and half out." Officer Morton testified that it appeared as if the contents of the purse were "spilling out" and the lipstick case was "in and out" of the purse.