LONNIE JAMES SANDERS, Appellant v. THE STATE OF TEXAS, Appellee

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Affirmed and Opinion filed November 6, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01329-CR
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LONNIE JAMES SANDERS, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 283rd District Court
Dallas County, Texas
Trial Court Cause No. F88-86041-VT
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O P I N I O N
Before Chief Justice Enoch and Justices Baker and Onion FN:1
Opinion By Justice Onion
        This appeal is taken from a conviction for unlawful possession of a controlled substance, to wit: cocaine less than 28 grams, with intent to deliver. The jury found appellant, Lonnie James Sanders, guilty as charged in the indictment and assessed his punishment at confinement in the Department of Corrections for 50 years and one day and a fine of $20,000. On appeal appellant contends that (1) the "jury erroneously considered and applied the parole laws in assessing the appellant's punishment" and (2) the evidence is insufficient to support the jury's verdict.
        Appellant bases his first point of error on a jury note and the court's answer thereto. During deliberations at the penalty stage of the trial the jury sent the court a note reading:
        Please advise the jurors on the amount of time served if a punishment of 50 years and 1 day is given versus 50 years. This question arises due to the parole system and how it affects time imprisened [sic].
 
                                                          Timothy G. Wilson
        To this question, without objection, the trial court gave the following answer:
        I cannot answer this question.
 
                                                          Jack Hampton FN:2
        Appellant argues he is entitled to a new trial based on jury misconduct. He relies upon the foregoing exchange only. Appellant filed a motion for new trial but he did not assert jury misconduct. See Tex. R. App. P. 30(b)(8); Sneed v. State, 670 S.W.2d 262, 264 (Tex. Crim. App. 1984). Failure to assert jury misconduct in a motion for new trial constitutes waiver. Trout v. State, 702 S.W.2d 618, 620 (Tex. Crim. App. 1985); Ables v. State, 519 S.W.2d 464, 467 (Tex. Crim. App. 1975). Even if appellant had timely and properly asserted his claim in a motion for new trial, he has failed to show jury misconduct. To show that a jury's discussion of parole law constitutes reversible error, it must be shown that the five requirements of Sneed, 670 S.W.2d at 266, were met. See also Kopanski v. State, 713 S.W.2d 188, 191 (Tex. App.--Corpus Christi 1986, no pet.). This the appellant has not done. Appellant's first point of error is overruled.
        In his second point of error appellant urges that the evidence is insufficient to support the jury's verdict that he possessed cocaine as charged. The record reflects that on August 9, 1988, about 8 p.m., Dallas police officers executed a combination arrest and search warrant at apartment 226, 2555 Webbs Chapel Road in Dallas. Officer Carillo, the first officer into the apartment, saw appellant in the kitchen two feet from the stove, saw appellant turn and leave via the back door, and attempt to slam the door, and saw appellant take "off running." Carillo apprehended appellant on the back porch. No contraband was found on appellant's person. It was shown, however, that crack cocaine was being "cooked on the top of the stove" in a large pot containing a wide mouth mayonnaise jar sitting in a water bath.
        Officer Turnidge found two bags of white powder lying on the floor close to the bar area that separated the kitchen from the apartment's living room. On the kitchen countertop next to the stove was found a tinfoil packet that contained cocaine. On top of the bar was found an electronic digital set of scales which the officers testified was commonly used to weigh narcotics. Also found on top of the bar was a black leather purse or bag containing $1,524 in cash and three gold chains, and papers belonging to appellant. Telling the officers the black bag was his, appellant asked the officers to safeguard the same for him.
        On cross-examination of Officer Wilson, who had obtained the search warrant, it was developed that Wilson's informant, who had been in the apartment the night before, told Wilson that appellant lived there. Papers belonging to appellant's son Darrell were also found in the apartment. In the living room Officer Wilson found a quantity of marihuana in a thermos, a gram scale, and a marihuana cigarette on the floor.
        Other evidence showed that there were eight people in the apartment at the time of the search, two of whom were in the small kitchen with appellant. Appellant was shown to be the oldest of the group present. A stipulation was entered into concerning the chemist's testimony to the effect that the items seized and submitted and suspected to be cocaine were shown by chemical analysis to be cocaine in an amount less than 28 grams.
        Appellant offered the testimony of his two sons. Greg, 19 years of age, testified that he and his father lived in apartment 225 which had been leased by appellant's sister; that his father had worked hauling pulp wood in Jefferson, Texas, but he did not know if his father had worked in Dallas during the summer of 1988; that apartment 226 was leased to a Floyd McKinley; that he (Greg) had been in said apartment about five minutes before his father or the police arrived. Darrell Sanders testified he also lived in apartment 225 with his father FN:3 ; that his father had worked in Dallas for a printing company for several months until "[t]hey had a mandatory drug test, and he -- they fined him for smoking a joint or something . . . ;" that he and his father had gone to apartment 226 to see his uncle (appellant's brother) who was there at the time, and that they arrived shortly before the police. Darrell denied his father possessed cocaine or marihuana, and he did not understand why he and his father were arrested because they did not have contraband on their persons and the lease was not in their names. Darrell admitted, however, that he had pleaded guilty to a charge of possession of cocaine growing out of the transaction, and that he had five other convictions for possession of cocaine.
        In order to establish the unlawful possession of a controlled substance the State must prove two elements: (1) that the accused exercised care, control and management over the contraband, and (2) that the accused knew the matter possessed was contraband. Guiton v. State, 742 S.W.2d 5, 8 (Tex. Crim. App. 1987); Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986); Rhyme v. State, 620 S.W.2d 599, 601 (Tex. Crim. App. 1981); Dubry v. State, 582 S.W.2d 841, 843 (Tex. Crim. App. 1979). Possession of contraband need not be exclusive and evidence which shows that the accused jointly possessed the contraband with another is sufficient. Dubry, 582 S.W.2d at 843; Damron v. State, 570 S.W.2d 933, 934 (Tex. Crim. App. 1978); Woods v. State, 533 S.W.2d 16, 18 (Tex. Crim. App. 1976). Proof of possession may be shown by direct or circumstantial evidence. Damron, 570 S.W.2d at 935; Collini v. State, 487 S.W.2d 132, 135-36 (Tex. Crim. App. 1972). However, where the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional facts and circumstances which affirmatively link the accused to the contraband. Wiersing v. State, 571 S.W.2d 188, 190 (Tex. Crim. App. 1978); Hill v. State, 755 S.W.2d 197, 200-01 (Tex. App.--Houston [14th Dist.] 1988, pet. ref'd).
        Whether the theory of prosecution is sole or joint possession, the evidence must affirmatively link the accused to the contraband by a showing which indicates the accused's knowledge and control of the contraband. Waldon v. State, 579 S.W.2d 499, 501 (Tex. Crim. App. 1979), and cases there cited. The burden of showing an affirmative link or links rests upon the State. Damron, 570 S.W.2d at 935. In order to meet this burden of proof the State must show something more than the accused's presence at the location where the contraband is found. Oaks v. State, 642 S.W.2d 174, 177-79 (Tex. Crim. App. 1982); Caldwell v. State, 686 S.W.2d 363, 365 (Tex. App.--Houston [1st Dist.] 1985, no pet.). See also Damron, 570 S.W.2d at 935, and cases there cited.
        Relevant facts linking an accused to the contraband have been noted in several opinions. See, e.g., Guiton, 742 S.W.2d at 8; Earvin v. State, 632 S.W.2d at 920, 924 (Tex. App.--Dallas 1982, pet. ref'd); Caldwell, 686 S.W.2d at 365. See also Oaks, 642 S.W.2d at 177-179. It has been determined that the finding of the contraband in open or plain view of the accused can establish an affirmative link. Pollan v. State. 612 S.W.2d 594, 596 (Tex. Crim. App. 1981); Hill, 755 S.W.2d at 201; Earvin, 632 S.W.2d at 924 n.1. If the contraband was in close proximity to the accused and readily accessible to him, it is an additional fact indicating the accused's knowledge of and control of the contraband. Pollan, 612 S.W.2d at 596; Hughes v. State, 612 S.W.2d 581, 582 (Tex. Crim. App. 1981); Hawn v. State, 502 S.W.2d 724, 725 (Tex. Crim. App. 1973); Brazier v. State, 748 S.W.2d 505, 508 (Tex. App.--Houston [1st Dist.] 1988, pet. ref'd). Another affirmative link could be the accused's attempt to flee. Caldwell, S.W.2d at 365. Flight alone will not support a guilty verdict, but evidence of flight from the scene of a crime is a circumstance from which an inference of guilt may be drawn. Markam v. State, 761 S.W.2d 553, 560 (Tex. App.--San Antonio 1988, no pet.), citing Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1981).
        The issue before this court is whether the State established such independent facts and circumstances to affirmatively link appellant to the crack cocaine. Appellant was present in the kitchen of the apartment when the police entered. Appellant ran out the back door before he was apprehended. He was shown to have been two feet from the stove where the crack cocaine was cooking, the individual nearest the stove. Next to the stove on the counter was a tinfoil packet of cocaine. On the floor of the bar area nearby were two bags of white powder shown to be cocaine. On top of the bar was a set of scales commonly used to weigh narcotics and appellant's purse or bag containing $1,524 in cash. All the items of contraband were in plain view of appellant and were in close proximity to him and readily accessible to him. By his own defense testimony this unemployed appellant with a large amount of cash was no stranger to the use of narcotics. It would certainly appear that the State had established the required affirmative links.
        The standard for review for the sufficiency of evidence is "whether, after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 312 n.12 (1979). The preceding standard is to be employed in both direct and circumstantial evidence cases. See Chambers v. State, 711 S.W.2d 240, 245 (Tex. Crim. App. 1986); Christian v. State, 686 S.W.2d 930, 934 (Tex. Crim. App. 1985); Houston v. State, 663 S.W.2d 455, 456 (Tex. Crim. App. 1984); Carlsen v. State, 654 S.W.2d 444, 449 (Tex. Crim. App. 1983) (opinion on rehearing).
        A conviction based upon circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypotheses except that of the defendant's guilt. Burns v. State, 676 S.W.2d 118, 120 (Tex. Crim. App. 1984); Carlsen, 654 S.W.2d at 449. Any alternative hypothesis must be reasonable, consistent with the facts proved and the circumstances, and not out of harmony with the evidence. Autry v. State, 626 S.W.2d 758, 761 (Tex. Crim. App. 1982). See also Brown v. State, 748 S.W.2d 258, 262 (Tex. App.--Dallas 1988, no pet.), citing Russell v. State, 665 S.W.2d 771, 776 (Tex. Crim. App. 1983), cert. denied, 465 U.S. 1073 (1984).
        The jurors are the triers of fact, the judges of the credibility of the witnesses and the weight to be given to their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). The jurors may believe or disbelieve all or any part of a witness' testimony. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). Reconciliation of any contradictions or conflicts in evidence of a circumstantial evidence case is within the province of the jury, and such conflicts will not call for reversal if there is enough evidence to support the conviction. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982).
        Given the facts and circumstances of the instant case, viewed in the light most favorable to the prosecution, we conclude in applying the "rational trier of fact" test that the evidence was sufficient to support the jury's verdict in this circumstantial evidence case, and to show that appellant was a primary actor as charged in the indictment. Appellant's second point of error is overruled.
        The judgment of the trial court is affirmed.
 
 
                                                          
                                                          JOHN F. ONION, JR.
                                                          PRESIDING JUDGE, ASSIGNED
Do Not Publish
Tex. R. App. P. 90
881329.U05
 
FN:1 The Honorable John F. Onion, Jr., Presiding Judge, retired, Court of Criminal Appeals, sitting by assignment.
FN:2 The main charge did not contain the usual cautionary admonitory instruction. See Janecka v. State, 739 S.W.2d 813, 833 (Tex. Crim. App. 1987); Williams v. State, 668 S.W.2d 692, 701 (Tex. Crim. App. 1983); Garza v. State, 764 S.W.2d 843, 845 (Tex. App.--Corpus Christi 1989, no writ). Not having given it earlier it would have been better practice to have given it in response to the jury's note in order to guard against jury misconduct.
FN:3 Appellant has also called attention to the fact that a receipt found among his papers listed his address as apartment 225.
File Date[11-06-89]
File Name[881329]

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