Johnson, Kemrick v. The State of Texas--Appeal from 363rd District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

KEMRICK JOHNSON,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

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No. 08-01-00423-CR

Appeal from

363rd District Court

of Dallas County, Texas

(TC# F-0151999-UW)

O P I N I O N

Kemrick Johnson appeals his jury conviction of unlawful possession, with intent to deliver cocaine. He was sentenced by the court to ten (10) years= imprisonment and fined $1200. Johnson argues two issues, legal and factual insufficiency. We will affirm.

I

At a little after 8 p.m., April 28, 2000, uniformed Dallas Police Officers noted, from 50 yards away, suspicious activity near Avenue B and 11th Street in Dallas. The area was said to be a high crime area known for drugs. Suspicious, the officers approached a vehicle stopped in the middle of the street with its parking lights on. They turned off their driving lights and pulled behind the car in the middle of the street and it left. Officers then turned on their bright lights and spot lights. The vehicle in the middle of the street left and Johnson moved from the driver=s side of the stopped vehicle to the curbed parked vehicle. Johnson seemed somewhat excited. The officers observed Johnson cupping something yellow in his right hand. According to police testimony, Johnson then bent down next to the parked car then came back up, but his hand was empty. Officer Ortiz approached Johnson, grabbed both of his hands, but found nothing. One of the officers reached down and found a clear plastic baggie that contained 41 smaller yellow baggies of rock cocaine. Both the field test and lab tests indicated the presence of cocaine. The seized cocaine, including adulterants was determined to be 4.39 grams. After his arrest, police found $188 in small denominations on Johnson. Expert testimony indicated that possession of the amount of cocaine and cash in a high crime and drug trafficking area indicated an intent to sell as opposed to personal consumption. Defense witnesses contradicted much of the police testimony and will be reviewed in our sufficiency analysis.

II

When we review the legal sufficiency of the evidence, we review the proof in the light most favorable to the prosecution 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, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). This standard applies in both direct and circumstantial evidence cases. 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). The legal sufficiency of the evidence is measured by the elements of the offense as defined by the hypothetically correct jury charge that is authorized by the indictment. Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App. 1997).

In determining the factual sufficiency of the elements of an offense, the reviewing court "views all the evidence in a neutral light, and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). The 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. Id. We are authorized to disagree with the fact finder's determination. Id. (citing Clewis 922 S.W.2d at 133). This review, however, must employ appropriate deference to prevent an appellate court from substituting its judgment for that of the fact finder, and any evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). The complete and correct standard a reviewing court must follow to conduct a Clewis factual sufficiency review of the elements of a criminal offense, asks whether a neutral review of all the evidence, both for and against the finding, demonstrates that the 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. Johnson, 23 S.W.3d at 11.

A conviction was authorized under the evidence if the jury found beyond a reasonable doubt that Johnson intentionally or knowingly possessed cocaine with an intent to deliver, in an amount of four grams or more. See Howard v. State, 972 S.W.2d 121, 124 (Tex. App.--Austin 1998, no pet.). "[A] person commits an offense if the person knowingly or intentionally manufactures, delivers, or possesses with intent to manufacture or deliver a controlled substance . . . if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 200 grams." Tex. Health & Safety Code Ann. ' 481.112(a)(d) (Vernon 2001). As correctly argued by Johnson, to sustain a conviction for possession, the State must affirmatively link the accused to the contraband. Travis v. State, 638 S.W.2d 502, 503 (Tex. Crim. App. 1982). An affirmative link is established by showing facts and circumstances that indicate the accused's knowledge and control of the contraband. Id.

III

In essence Johnson argues he was not found in exclusive possession, custody or control of the contraband and no additional facts affirmatively link him to the drugs. Defense witnesses testified that, contrary to police testimony, others besides Johnson were at the scene. Barbara Garrett encountered police and had them release her daughter, who had been handcuffed. Others were standing about and saw the police handcuff several people, including Appellant=s brother Robert. Johnson=s father saw the police handcuff three people, then officers shined lights under the car and said Aoh, there it is.@ According to his father, the police said Athis is yorn@ and Johnson replied: AYou ain=t putting this here on me.@ A friend and visitor to the Johnson home, testified he saw police retrieve drugs along the passenger side of the parked car where Johnson=s brother Robert stood. He also testified he had seen the drugs in the same outer wrapper in Robert=s possession earlier but that the smaller baggies were red, not yellow. He noted police kicked, pushed, and slammed Johnson on the hood of the car when he struggled against being handcuffed.

The evidence clearly establishes the presence of over 4 grams of a controlled substance, at the scene. Police testimony placed a yellow object in Johnson=s cupped hand and then, upon the police approach, Johnson bent down placing the object near the parked vehicle. Police immediately apprehended Johnson, recovered the yellow object where, by inference, Johnson placed the contraband. The contraband was determined to contain over 4 grams of crack cocaine. Circumstantially, Johnson acted suspiciously when he departed the car in the middle of the street, went around the curbed parked car with the yellow object in his right hand, bent over, and came up empty handed. Johnson was said to be somewhat excited. Johnson was further circumstantially and inferentially linked by his proximity to the drugs, his handling of the drugs, his placement of the drugs, and his possession of $188 cash in a known drug trafficking area. Viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that Johnson exercised care, control and management over the contraband and that he knew the substance was contraband. The totality of the facts and circumstances are sufficient to affirmatively link Johnson to the contraband and circumstantially indicate his intent to deliver. We thus conclude the evidence is legally sufficient. See Jackson 443 U.S. at 318-19. Appellant=s first issue is overruled.

IV

Johnson argues he did not have exclusive possession of a controlled substance, that nothing was found on his person including drug paraphanelia, the drugs were on a public street, and $188 is insufficient to deal in drugs. Robert was near where the drugs were found not Johnson. Further Johnson was not under the influence of drugs, denied having possession, did not attempt to flee, nor was he acting suspiciously. However, the State points out that Johnson went to the front of the curbed parked vehicle when he bent down and rid himself of the yellow object. The yellow baggies of cocaine were found under the front corner of the car=s bumper. Although Johnson=s brother may have been closer to the contraband when found, the brother was not seen with the yellow object nor was he seen stooping near the front of the automobile. Still against the prosecution=s=s evidence of guilt, the defense produced witnesses who placed multiple people at the scene. The car originally in the middle of the street was Johnson=s father=s car, who lived nearby. Some evidence indicated the drugs belonged to Johnson=s brother Robert, but the baggies seized were a different color than Robert was said to have. The $188 cash can also be a circumstance of guilt. See Gabriel v. State 842 S.W.2d 328, 331 (Tex. App.--Dallas 1992, aff=d 900 S.W.2d 721 (Tex. Crim. App. 1995) (possession of $80 can be among other circumstances of guilt of possession of contraband). Id. From the perspective of a cold record, the defense certainly raises strong arguments and inferences favoring Johnson. However, all the defense witnesses were relatives or friends of Appellant.

In a case of conflicting testimony between the officers and the family and friends of Johnson, the jury should follow its solemn oath to base its verdict solely on the evidence leaving aside, sympathy, bias and prejudice. We are enjoined to employ appropriate deference to prevent an appellate court from substituting its judgment for that of the fact finder, and any evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Jones 944 S.W.2d at 648. It is neither our obligation nor our prerogative to interfere with the fact finders= sacred duty or to substitute our findings for the that of the jury. Given the laws= deference to the jury, particularly in considering credibility, we cannot say the evidence is factually insufficient. Appellant=s second issue is overruled.

The judgment of the trial court is affirmed.

November 26, 2002

DON WITTIG, Justice

Before Panel No. 5

Barajas, C.J., Larsen, and Wittig, JJ.

(Wittig, J., sitting by assignment)

(Do Not Publish)