FALMON HILL, FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00372-CR
 
FALMON HILL,                                        FROM A DISTRICT COURT
 
 
        APPELLANT,
 
 
v.
 
 
THE STATE OF TEXAS,
 
 
        APPELLEE.                                          OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, BAKER AND THOMAS
OPINION BY JUSTICE THOMAS
FEBRUARY 27, 1989
        Falmon Hill appeals a trial court conviction for possession of cocaine with punishment assessed at ten years confinement. Hill's sole point on appeal is that the evidence was insufficient to support the conviction. We disagree and affirm the trial court's judgment.
        The standard for appellate review of the sufficiency of the evidence in both direct and circumstantial evidence cases is whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Houston v. State, 663 S.W.2d 455, 456 (Tex. Crim. App. 1984); Wilson v. State, 654 S.W.2d 465, 471 (Tex. Crim. App. 1983) (opinion on rehearing). When charging a defendant with unlawful possession of a controlled substance, the State must prove: (1) that the defendant exercised actual care, control, custody or management of the contraband; and (2) that the defendant knew that what he possessed was contraband. Humason v. State, 728 S.W.2d 363, 365 (Tex. Crim. App. 1987); Payne v. State, 480 S.W.2d 732, 734 (Tex. Crim. App. 1972); Baty v. State, 734 S.W.2d 62, 63 (Tex. App.--Dallas 1987, pet ref'd). See also TEX. REV. CIV. STAT. ANN. art. 4476-15, § 1.02(34) (Vernon Supp. 1989). Further, when a defendant is not in exclusive possession of a place, the evidence must "affirmatively link" the defendant to the contraband such that a reasonable inference may arise that the accused knew of the contraband's existence and of its whereabouts. Payne v. State, 480 S.W.2d at 734. This affirmative link is established by showing facts and circumstances which indicate an accused's knowledge and control. Hineline v. State, 502 S.W.2d 703, 705 (Tex. Crim. App. 1973).
        Michael Finley, a Dallas police officer, received a dispatch call to go to the Circle Inn. As Officer Finley was talking to other police officers in the parking lot, they heard a woman call for help from a second floor room. The officers went to room 202 where they observed a woman and Hill having an argument. They separated the two people, and the woman stated that she had earlier been robbed by Hill and now he was physically assaulting her. The officers observed red marks on her neck. Once the officers confirmed that a robbery had been reported earlier that day and that Hill had been listed as a suspect, Hill was arrested for robbery and assault. As the police were taking Hill out of the room, Officer Finley observed a broken mirror laying on a bedside table with a razor blade and a white powdery substance on the mirror. Beside these items was an blue envelope containing what was later determined to be cocaine. All of the items were located on the bedside table, in plain view, approximately five to six feet from the police officers. When the police asked for his address at the time of the arrest, Hill stated that he lived in room 202 of the Circle Inn.
        At trial, Hill testified that he shared the room with the woman (his girlfriend) and two other persons. According to Hill, Wayne Powell, Powell's girlfriend, and Hill's girlfriend had been staying in the room. On the day before his arrest, Hill paid the rent as a loan to Powell and the others. Hill and his girlfriend had an argument on that day and he left after being in the room less than one hour. Hill testified that the four people were sharing the room in order to store and change clothes.
        Hill stated that when he entered the room on the day of his arrest, the door was unlocked and that obviously someone had been in the room because the drawers had been emptied and clothes were scattered all over the floor. Hill did not know who had been in the room but did testify that two keys had been issued for the room and there was a pass key accessible through the manager's office. Hill acknowledged seeing a broken mirror in the room and explained that the razor blade probably had been removed from his briefcase which had been forcibly opened. Hill further testified that Powell was known to use drugs. As to the blue envelope, Hill insisted that he did not see it on the table. In explaining the blue envelope, Hill stated that he and these police officers had been involved in prior disagreements on separate occasions over outstanding traffic ticket warrants.
        Hill concedes that the State produced evidence establishing two affirmative links. First, the drugs were in plain view. Second, Hill signed the register, had a key and paid the rent. He argues however, that because other people had access to the room, this tended "to lessen the link" that he knew of the contraband and exercised control over it. We are unpersuaded. The evidence established that: (1) a blue envelope containing cocaine was located on a nightstand; (2) a broken mirror having a white powdery substance on it was also found on the nightstand; (3) a razor blade was sitting on top of the mirror; (4) the drugs and narcotic paraphernalia were in plain view; (5) the drugs and paraphernalia were within close proximity to Hill; (6) the room was rented to Hill, who had a key; (7) Hill had been in the room the day before his arrest, as well as the day of his arrest; and (8) Hill gave the room as his address. See Alvarez v. State, 750 S.W.2d 889, 890-891 (Tex. App.--San Antonio 1988, no pet.); Gonzalez v. State, 706 S.W.2d 764, 766-67 (Tex. App.--San Antonio 1986, pet. ref'd). Hill's defense was that other people had access to the room and that the police planted the drugs to incriminate him. The court, as the trier of fact, is the judge of a witness's credibility and the weight to be accorded his testimony. It may accept or reject all or any part of any witness's testimony. Aldridge v. State, 482 S.W.2d 171, 174 (Tex. Crim. App. 1972).
        We hold that the evidence, when viewed in the light most favorable to the verdict, is sufficient to support the conviction and affirm the trial court's judgment.
 
                                                          
                                                          LINDA THOMAS
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
88-00372.F
        
 
 
File Date[01-02-89]
File Name[880372]