Evans, Keith Bernard v. The State of Texas--Appeal from 161st District Court of Ector County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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KEITH BERNARD EVANS, ) No. 08-00-00393-CR

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Appellant, ) Appeal from

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v. ) 161st District Court

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THE STATE OF TEXAS, ) of Ector County, Texas

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Appellee. ) (TC# B-28,046)

O P I N I O N

Keith Bernard Evans was charged by indictment with possession of a controlled substance, to-wit: cocaine, in the amount of four grams or more, but less than 200 grams. A jury found him guilty and assessed punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of thirty years, with a fine of $5,000. We affirm.

FACTUAL SUMMARY

Appellant was charged by indictment with possession of a controlled substance, to wit: cocaine, in an amount, by aggregate weight, including any adulterants and dilutants, of four grams or more, but less than 200 grams. The indictment also contained an enhancement paragraph for a previous offense of robbery. Appellant pled not guilty.

At trial, Officer Chris Aguilar testified he was working surveillance with the Street Crimes Unit of the Odessa Police Department on January 22, 2000 at a residence on 311 East 44th Street in Ector County. He began surveillance at 7 p.m. and sat in a tree in the backyard of 306 East 35th Street. At roughly 7:10 p.m., Aguilar observed Appellant and Kissie Green walk out of the back door. Appellant walked to the fence on the west side of the residence next door, knelt down by the fence and appeared to be digging in the ground. Officer Aguilar observed this conduct from approximately 300 feet away. As he dug, Appellant looked back over his right shoulder and Kissie handed him something which he buried. Appellant stood up, walked to the back door of the residence, and appeared to converse with another individual. He then walked toward the alley and Kissie followed him. Appellant eventually disappeared from view. Officer Aguilar recognized Appellant because the officer had dealt with him before. Aguilar notified the other officers on surveillance that he had seen Appellant bury something in the backyard. Surveillance was set up in the front yard and on the side of the house.

Katherine Green, whom Officer Aguilar believed to be the owner of the home, then walked out of the house. She approached the same location where Officer Aguilar had seen Appellant digging. She appeared to retrieve something from the ground and walked back to the house. Aguilar and another officer then moved to a dumpster behind the residence to get a closer look. Kissie Green reappeared from the alley and entered the residence. Two other men walked toward the house from the alley, knocked on the back door, entered, and then re-emerged from the house. Believing that his position had been compromised, Officer Aguilar proceeded to the area where he had seen Appellant digging. Aguilar dug into the ground and uncovered a black film cannister. He opened the cannister and found a hard rock substance wrapped in cellophane. The substance field-tested positive for cocaine.

While Officer Aguilar conducted surveillance behind the residence, Officer Toby Julian was located about forty yards away in a field across the street. Officer Julian noticed four or five vehicles at the residence. He observed each drive up and park on either side of the street. One or two subjects stepped out of each vehicle and ran to the door. A few minutes later, they ran back out of the house and drove away. This activity indicated narcotics trafficking or sales. Officer Julian also observed a small brown pickup parked in the direction of oncoming traffic directly in front of the residence. The male passenger stepped out of the vehicle, ran to the front door, and knocked. He was in the house for two minutes, emerged from the residence, looked both ways, and stepped back into the pickup and drove away. Officer Julian observed Appellant four or five times during the surveillance and recognized him because of past encounters.

Officer Ricky George was involved in the surveillance of the residence as a part of a perimeter unit. He was contacted by Officer Aguilar who requested that he detain Appellant who was seen leaving the residence. Officer George found Appellant about a block away. Appellant accompanied Officer George back to the house where he was arrested by Officer Aguilar. Officer George searched Appellant and found approximately $1,800 on his person which was largely in denominations of twenty dollar bills. According to Officer George, this was significant because crack cocaine is usually sold in twenty dollar increments. Officer Aguilar testified that his observation of a vehicle pulling up to the front of the house and Katherine Green walking out of the back door to retrieve something from the yard was one of the reasons he arrested Appellant. The coming and going of pedestrians and vehicular traffic was another factor. Aguilar also explained that in his experience as a police officer, people will bury drugs in their backyards.

Dennis Hambrick, a chemist with the Texas Department of Public Safety in Midland, analyzed the substance and found that it tested positive for cocaine and weighed 13.3 grams. Officer Aguilar also looked for shoe prints at the scene. Appellant=s shoes were removed and compared to shoe prints in the area where Officer Aguilar found the cannister. The prints and the shoes matched. After the State rested, Appellant moved for an instructed verdict which the trial court overruled. During the punishment phase, and as the trial court addressed the jury, Appellant initiated a disturbance with law enforcement personnel in the courtroom. Appellant made verbal outbursts, struck one of the courtroom officers, and put up a struggle before he was subdued and handcuffed.[1] The jury witnessed the disturbance but was immediately instructed by the trial judge to go into the jury room. When court resumed the next morning, defense counsel moved for mistrial based on the prior day=s disturbance, requested that Appellant be given a psychiatric examination prior to sentencing, and asked for a continuance to allow Appellant to replace his trial counsel. The trial court overruled each of the motions. Following deliberation, the jury found the allegation of a prior conviction as alleged in the indictment to be true and assessed Appellant=s punishment at thirty years in the Institutional Division of the Texas Department of Criminal Justice, with a fine of $5,000. For the egregious conduct in the courtroom during the punishment phase, the trial court assessed an additional punishment of six months in the Ector County Jail to be served consecutively to the jury=s punishment. Appellant timely filed a notice of appeal.

LEGAL SUFFICIENCY

In Point of Error No. One, Appellant contends the trial court erred by failing to grant his motion for instructed verdict. While he frames the complaint in terms of factual sufficiency, a challenge to the denial of a motion for instructed verdict is actually a challenge to the legal sufficiency of the evidence. Madden v. State, 799 S.W.2d 683, 686 (Tex.Crim.App. 1990), cert. denied, 498 U.S. 1301, 111 S. Ct. 902, 112 L. Ed. 2d 1026 (1991). Accordingly, we analyze his claim as a legal sufficiency complaint. We view the evidence in the light most favorable to the verdict and 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, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560, 573 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991), cert. denied, 502 U.S. 870, 112 S. Ct. 202, 116 L. Ed. 2d 162 (1991); Hernandez v. State, 946 S.W.2d 108, 110-11 (Tex.App.--El Paso 1997, no pet.). We use the same standard in reviewing the sufficiency of both direct and circumstantial evidence cases. Geesa v. State, 820 S.W.2d 154, 159-61 (Tex.Crim.App. 1991). We do not resolve conflicts of fact or assign credibility to witnesses, as it is the function of the trier of fact to accept or reject any, part, or all of any witness=s testimony. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Lucero v. State, 915 S.W.2d 612, 614 (Tex.App.--El Paso 1996, pet. ref=d). We determine only if the explicit and implicit findings of the trier of fact are rational by viewing all the evidence in a light most favorable to the verdict. See Lucero, 915 S.W.2d at 614.

Appellant maintains that the State failed to prove he possessed the cocaine because Officer Aguilar never saw him with physical possession of the black cannister. To support a conviction for unlawful possession, the State must prove that the accused (1) exercised care, control, and management over the contraband, and (2) knew the matter possessed was contraband. See Martin v. State, 753 S.W.2d 384, 386 (Tex.Crim.App. 1988); Davila v. State, 930 S.W.2d 641, 644-45 (Tex.App.--El Paso 1996, pet. ref=d). Mere presence at the scene is not sufficient to establish unlawful possession of a controlled substance, but evidence which affirmatively links the defendant to the controlled substance will suffice to prove that he possessed it knowingly. McGoldrick v. State, 682 S.W.2d 573, 578-79 (Tex.Crim.App. 1985). The affirmative link must raise a reasonable inference that the accused knew of and controlled the contraband, Christian v. State, 686 S.W.2d 930, 932 (Tex.Crim.App. 1985); Levario v. State, 964 S.W.2d 290, 294 (Tex.App.--El Paso 1997, no pet.), and may be shown by either direct or circumstantial evidence establishing Ato 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). Factors that may provide an affirmative link include, among others, (1) the contraband was conveniently accessible to the accused,[2] and (2) the accused had cash and weapons. King v. State, 710 S.W.2d 110, 113 (Tex.App.--Houston [14th Dist.] 1986, pet. ref=d), cert. denied, 484 U.S. 829, 108 S. Ct. 99, 98 L. Ed. 2d 59 (1987). One factor alone does not support a finding of an affirmative link. Herndon v. State, 787 S.W.2d 408, 409 (Tex.Crim.App. 1990). The number of factors present is less important than the logical force the factors have alone or in combination in establishing the elements of the offense. Whitworth v. State, 808 S.W.2d 566, 569 (Tex.App.--Austin 1991, pet. ref=d).

Reviewing the evidence in a light most favorable to the verdict, we conclude a rational jury could find the essential elements of possession of a controlled substance beyond a reasonable doubt. Appellant urges us to disregard the jury=s inference that he was in possession of the cocaine because at least one other person--Katherine Green--could have buried the cocaine. While Officer Aguilar did not see what object Kissie Green handed to Appellant, the jury could well have inferred that the object was the black cannister and that the cannister contained cocaine. Officer Aguilar dug up the cannister following his surveillance and Appellant was apprehended with a large amount of cash in denominations of twenty dollar bills. These facts support an inference that Appellant knew of and controlled the cocaine. Officer Julian observed pedestrian and vehicular traffic at the residence--activity commonly associated with drug trafficking. Moreover, in Officer Aguilar=s experience, people will often bury drugs. The logical force of all of this evidence, taken together, supports the elements of possession. Appellant=s arguments that Katherine Green could have placed the cannister in the ground or added cocaine to the cannister are simply additional competing theories of the case that the jury was entitled to reject. As an appellate court, our role is to determine whether the jury was rational in finding the elements of the offense under the theory most favorable to the verdict. Accordingly, we overrule Point of Error No. One.

COMPETENCY

In his second point of error, Appellant claims the trial court erred by failing to conduct a preliminary inquiry as to whether he was competent to stand trial. See Tex.Code Crim.Proc.Ann. art. 46.02, ' 2(b)(Vernon 1979). Section 2(b) of Article 46.02 provides that if during the trial evidence of the defendant=s incompetency is brought to the attention of the court, the court must conduct a hearing out of the presence of the jury to determine whether there is evidence to support a finding of incompetency to stand trial. See Tex.Code Crim.Proc.Ann. art. 46.02, ' 2(b). Such an inquiry is required only if the evidence is such as to raise a Abona fide@ doubt in the trial court=s mind as to the defendant=s competency. Collier v. State, 959 S.W.2d 621, 625 (Tex.Crim.App. 1997), cert. denied, 525 U.S. 929, 119 S. Ct. 335, 142 L. Ed. 2d 276 (1998). In general, a Abona fide@ doubt is raised only if the evidence indicates recent severe mental illness, at least moderate mental retardation, or truly bizarre acts by the defendant. Id., citing Mata v. State, 632 S.W.2d 355, 359 (Tex.Crim.App. 1982). We review the trial court=s ruling for abuse of discretion. Garcia v. State, 595 S.W.2d 538, 542 (Tex.Crim.App. 1980), appeal reinstated, 601 S.W.2d 369 (Tex.Crim.App. 1980).

Defense counsel argued that based on Appellant=s behavior during the disturbance, the trial court should conduct a psychiatric examination to determine his competency to stand trial. We find there was no evidence presented to the trial court to raise a bona fide doubt as to Appellant=s competency. While Appellant=s disruptive behavior revealed his contempt for the court and defense counsel, it is no indication of his incompetency to stand trial. We find no abuse of discretion. Point of Error No. Two is overruled and the judgment is affirmed.

August 15, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] The record reveals the following occurred during the Appellant=s disturbance in the courtroom:

THE COURT: All right. You will have to get this gentleman quiet now. Don=t take him out yet. I will need him here until -- sir, have a seat there and be quiet. Mr. Evans.

DEFENDANT: I am not in the mood to be sitting in a courtroom.

THE COURT: Mr. Evans, be quiet.

DEFENDANT: I am not in the mood to be sitting in the courtroom, I told you. I gave this man $3,500.00 and he sold me out. Fuck that. I don=t want to sit in the courtroom. I don=t want to sit in here. I don=t want to sit in here.

THE COURT: Ladies and gentlemen of the jury --

DEFENDANT: You fucked me up. Fuck that.

THE COURT: -- tomorrow morning at 9:00 --

DEFENDANT: I don=t want to sit in here. I don=t want to sit in here.

BUILDING SECURITY: Well, you don=t have a choice right now.

DEFENDANT: Oh, fuck you.

REPORTER=S NOTE: (At this point, a fight in the courtroom ensued between the Defendant and law enforcement personnel[.])

THE COURT: Ladies and gentlemen, please go into the juryroom. (The jury was retired from the Courtroom before the fight was over[.])

THE COURT: We will need to get him back seated in the chair. Mr. McLeaish, if you will come forward so we can -- we just need to --We just had a fight. We need to get back on the record. The Defendant has made a disturbance in the court and has struck one of the officers and then there was a struggle at which the Defendant was subdued. As soon as I could, I did order that the jury go into the jury room.

[2] See Guiton v. State, 679 S.W.2d 66, 69 (Tex.App.--Dallas 1984), aff=d, 742 S.W.2d 5, 8 (Tex.Crim.App. 1987).