BRYAN WAYNE CASON, Appellant v. THE STATE OF TEXAS, Appellee

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Reversed and Acquitted and Opinion filed March 16, 1992.
 
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-91-00080-CR
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BRYAN WAYNE CASON, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F90-19500-I
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O P I N I O N
Before Justices Stewart, Chapman, and Rosenberg
Opinion By Justice Stewart
        Brian Wayne Cason appeals his jury conviction of the offense of possession of cocaine with intent to deliver. The jury assessed punishment at twelve years' confinement and a $2000 fine. In three points of error, he argues that the (1) evidence is insufficient to support the conviction because the State failed to affirmatively link him to the cocaine, (2) evidence is insufficient to prove he possessed cocaine with the intent to deliver, and (3) trial court erred in admitting, during the punishment phase, testimony of drug offenses that had not resulted in final convictions. Because we agree with appellant's first point of error, we reverse the trial court's judgment and order an acquittal.
BACKGROUND FACTS
        Grand Prairie Police Officer Paul R. Berg testified that, as a member of the tactical team serving high risk warrants, he served as the entry person on March 9, 1990 during the execution of a search warrant to the house addressed 502 West Ferndale.         The team entered and secured the house making sure that the persons inside did not have access to weapons. He stated that fifteen people were inside when the team entered the house.
        Berg testified that he saw appellant exit the third bedroom. Berg placed appellant on the floor and handcuffed him. He explained that the narcotics detective, Sergeant Shaw, found cocaine in the third bedroom in a sock underneath a baby crib. The bedroom contained a bed, the baby crib, a workbench, and boxes. Berg testified that there was also another man in the third bedroom who seemed to be looking for a way to escape. Berg also found a police scanner used for intercepting radio frequencies in the living area.
        Grand Prairie Narcotics Detective Gary Reed testified that the search warrant for controlled substances specifically named appellant. Reed testified that, during the search of the house, Sergeant Shaw found powder cocaine in nine individual plastic bags in a sock in the third bedroom. Reed searched the closet in the first bedroom and found a black vinyl zipper bag containing appellant's driver's license, a balance scale with measurements in grams and ounces, and a plastic bag of marijuana. Reed stated that Sergeant Shaw also discovered thirteen plastic bags of marijuana in a purple pouch behind the sofa in the living room. Reed testified that the police scanner had an access card coded for the Dallas Police Department and Grand Prairie Police Department. He explained that when the access card is inserted in the scanner it enables one to listen to police transmissions. He also stated that he found a rifle in the third bedroom on top of the bed that was later released to appellant's brother, Mike Cason.
        Reed also stated that they found appellant carrying $400 in cash and that drug transactions are always conducted in cash. Reed testified that the quantity of cocaine and the way it was packaged signalled that the cocaine was for resale rather than for personal use. He stated that the nine individual bags of cocaine weighed 1/8 of an ounce each and, on the street, were known as "eight balls" valued at $275 to $350. Reed explained how powdered cocaine is consumed and the paraphernalia associated with the use of cocaine. He stated that they did not recover drug paraphernalia during the search of the house.
        Reed testified that prior to the execution of the search warrant, he had been to the house several times because of citizen complaints about the high degree of traffic in and out of the area. He stated that the visitors would stay at the house for short periods of time and that this was consistent for a pattern associated with drug transactions. Reed testified that appellant lived at the house searched because appellant listed it as his residence on his driver's license, on a complaint filed with the police relating to vandalism of the house, and neighbors and appellant's brother told him appellant lived there. Reed stated that appellant's parents are the actual owners of the house and the utilities are listed in the name of J.L. Cason.
        Jill Dupre, a chemist with the Forensic Consultant Services, explained that she performed the chemical analysis of the narcotics seized in the search of the house. She testified that the cocaine in the nine plastic bags weighed 28.71 grams and the marijuana weighed 91.08 grams.
        Grand Prairie Police Officer M. E. Shaw testified that he found the cocaine packaged in nine plastic bags underneath the baby crib in the third bedroom and that he found the marijuana in the thirteen plastic bags in the living area behind the sofa. Shaw testified that the amount of cocaine and the manner of packaging indicated the drug was for resale, as did the balance scales and lack of drug paraphernalia. He stated that he did not know who used the third bedroom where he found the cocaine.
        Johnnie L. Cason, appellant's father, testified that appellant and his brother, Mike, lived in the house. He testified that Mike used the third bedroom and appellant used the master bedroom. He explained that, on March 9, 1990, appellant had knee surgery and went to sleep in the master bedroom when he arrived home from the hospital. Appellant's father testified that the police scanner belonged to him and that he had purchased it when trying to establish a crime watch program with the Grand Prairie Police Department. He stated that the police scanner did not work because a special power cord was missing. He also testified that the balance scale was for a carburetor float for use on a race car he and his son Mike owned. He could not, however, be sure if the scale was the one purchased by him.
        Appellant testified that he was living with a friend and only stayed at the house on Ferndale occasionally. Appellant stated that several other individuals were living at the house on Ferndale. He testified that, on March 9, 1990, he was asleep in his room, the master bedroom. This is the room where Detective Reed discovered appellant's driver's license, the balance scales, and marijuana in the black vinyl bag. Appellant denied that the cocaine, marijuana, scales, and sock belonged to him. He admitted that the driver's license was his, but stated that it was one he had previously lost or the one stolen before his arrest.
        Mike Cason, appellant's brother, testified that he used the third bedroom. He also testified that several of appellant's friends had been staying at the house.
SUFFICIENCY OF THE EVIDENCE
        Appellant argues in his first point of error that the evidence is insufficient to support the conviction because the State failed to affirmatively link him to the cocaine seized during the execution of the search warrant. The State argues, in response, that there is sufficient evidence to affirmatively link appellant to possession of cocaine with intent to deliver.
        In reviewing the sufficiency of the evidence, the Court's inquiry is limited to determining 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. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App.), cert. denied, 112 S. Ct. 202 (1991). The evidence must establish more than a suspicion of guilt. Ford v. State, 571 S.W.2d 924, 926 (Tex. Crim. App. 1978). A conviction based on circumstantial evidence cannot be sustained if the evidence does not exclude every reasonable hypothesis other than the guilt of the defendant. Allen v. State, 651 S.W.2d 267, 270 (Tex. Crim. App. 1983). FN:1
        To show unlawful possession of a controlled substance, the State must prove that the accused (1) exercised care, control and management over the contraband, and (2) knew the matter was contraband. Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). When the accused is not in exclusive possession of the place where the substance is found, additional independent facts and circumstances must affirmatively link the accused to the contraband. Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). The affirmative link must establish the essential possession element of knowledge and control. Fontenot v. State, 792 S.W.2d 250, 256 (Tex. App.--Dallas 1990, no pet.); Smith v. State, 737 S.W.2d 933, 941 (Tex. App.--Dallas 1987, pet. ref'd). Some factors relevant to the determination whether an affirmative link exists include: (1) whether the contraband was in open or plain view. Guiton v. State, 742 S.W.2d 5, 8 (Tex. Crim. App. 1987); (2) whether the contraband was conveniently accessible to the accused. Id.; (3) whether the accused owned, rented, or controlled the place where the contraband was located. Id.; (4) whether the accused was in the place searched at the time of the search. Martin, 753 S.W.2d at 387. The State asserts that the following factors are also relevant to the determination whether affirmative links exist in this case: the presence of the contraband in the room from which the defendant emerged, Whitaker v. State, 660 S.W.2d 615, 617-18 (Tex. App.--Corpus Christi 1983, pet. ref'd); the presence of other contraband or drug paraphernalia not included in the charge, Hughes v. State, 612 S.W.2d 581, 582-83 (Tex. Crim. App. 1981); and the presence of pistols on the premises where drugs are found, King v. State, 710 S.W.2d 110, 113 (Tex. App.--Houston [14th Dist.] 1986, pet. ref'd), cert. denied, 484 U.S. 829 (1987).
        Here, the State argues that the evidence affirmatively linked appellant to the cocaine found in the third bedroom because appellant lived at the house, was present during the execution of the search warrant, and was apprehended upon exiting the third bedroom. Moreover, the State maintains the marijuana found behind the sofa, the black vinyl bag containing the balance scales and more marijuana, the police scanner, and the high traffic at the house are characteristic of drug trade.
        While a trier of fact could conclude from the combination of these circumstances that appellant possessed the cocaine found in the third bedroom with the intent to deliver, it would also be rational for that same trier of fact to conclude that appellant was entirely unaware of the presence of that cocaine. Humason v. State, 728 S.W.2d 363, 366-67 (Tex. Crim. App. 1987). The record in the case before us reflects that the officer found the cocaine in a room partially used for storage and cluttered with clothes all over the floor. The cocaine was not in plain or open view; it was in a sock underneath a baby crib. Guiton, 742 S.W.2d at 8. The evidence does not establish that the cocaine was in close proximity or easily accessible to appellant while in the third bedroom since he was only seen exiting from that room. The fact appellant listed the house as his residence and stayed there on occasion does not in itself constitute an affirmative link to the cocaine found underneath a baby crib in one of the bedrooms. Brunson v. State, 750 S.W.2d 277, 279 (Tex. App.--Houston [14th Dist.] 1988, pet. ref'd). Several persons lived in the house and fifteen people were present when the officers executed the search warrant. One officer saw another man in the third bedroom running in circles trying to escape. Thus, it is arguable that the cocaine at issue belonged to the man trying to escape or to one of the other persons present that evening. Id. at 279-80. The officers did not know who used the third bedroom. Under the evidence, appellant's only link to the third bedroom was his emerging from it at the time of his arrest. Moreover, it was in the master bedroom where the officers discovered the black vinyl bag containing appellant driver's license, the scales and marijuana. The black vinyl bag and its contents do not link appellant to cocaine in a sock in a different room. Brunson, 750 S.W.2d at 279 (no affirmative link to narcotics found in different room); see also Mares v. State, 801 S.W.2d 121, 126 (Tex. App.--San Antonio 1990, no pet.). Mere presence at the scene during the execution of the search warrant does not make one a party to joint possession. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985).
        Under the foregoing facts, we conclude that the evidence at most establishes a mere suspicion of appellant's guilt as to the cocaine and does not exclude every reasonable hypothesis other than his guilt. Therefore, we conclude that no rational trier of fact could have found appellant guilty beyond a reasonable doubt of possession of cocaine with intent to deliver. Because we sustain appellant's first point of error, we do not address his remaining points.
         We reverse the judgment of the trial court and order an acquittal. Burks v. United States, 437 U.S. 1, 15-17 (1978); Greene v. Massey, 437 U.S. 19, 26 (1978).
 
 
 
 
                                                          
                                                          Annette Stewart
                                                          Justice
 
 
Do Not Publish
Tex. R. App. P. 90
910080F.U05
 
FN:1 The Court is aware of the Court of Criminal Appeals' opinion in Geesa v. State, No. 290-90 (Tex. Crim. App., November 6, 1991), which overrules Carlsen v. State, 654 S.W.2d 444, 449 (Tex. Crim. App. 1983) and eliminates the "reasonable hypothesis" appellate construct for determining sufficiency. However, Geesa expressly applies only to cases tried after the issuance of the opinion. Slip op. at 17-19. Since this case was tried prior to November 6, 1991, we will use the "reasonable hypothesis" construct.
File Date[03-16-92]
File Name[910080F]

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