ALLEN LANE WHITTAKER, Appellant v. THE STATE OF TEXAS, Appellee

REVERSE and RENDER a Judgement of AQUITTAL and Opinion Filed July 10, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00938-CR
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ALLEN LANE WHITTAKER, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 196th Judicial District Court
Hunt County, Texas
Trial Court Cause No. 24,261
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OPINION
Before Wright, Bridges, and Mazzant
Opinion By Justice Wright
        Allen Lane Whittaker appeals his conviction for possession of one gram or more, but less than four grams of cocaine in a school zone. The jury found appellant guilty and assessed punishment, enhanced by two prior felony convictions, at 85 years' confinement. In three issues, appellant contends the evidence is legally and factually insufficient to support his conviction and his sentence was improperly enhanced. After reviewing the record, we conclude the evidence is legally insufficient to support appellant's conviction and render a judgment of acquittal.
 
Background
        Wesley Russell, a narcotics investigator for the Greenville Police Department, testified he obtained a search warrant for 5001 Pickett Street in Greenville. According to Russell, when officers executed the warrant, they found Mark Grisby in the yard and detained him. Russell saw appellant's brother, Billy Joe Whittaker, on the porch of his mother's house next door and detained him. A short time later, Russell saw Carla Renee Horton Andrews sitting in a black Ford Ranger pickup truck parked in the driveway of 5001 Pickett Street and brought her presence to another officer's attention. Whittaker and Russell then went into Whittaker and appellant's mother's house and found appellant lying in bed. Russell detained appellant and took both appellant and Whittaker back to 5001 Pickett Street.
        When Russell searched the backyard of 5001 Pickett Street, he found several small pieces of aluminum foil in a flower pot on the deck and on the rail of the deck. The foil did not contain cocaine or residue and was not seized. Russell also found a piece of aluminum foil hidden “in the crack of a wooden picket” of the back fence. It contained 2.61 grams of cocaine. The fence separated the backyard from a baseball field and railroad tracks.
        At Russell's request, appellant used his keys to open the burglar bars on the outside door to the northeast bedroom. Russell found two prescription bottles in appellant's name in the bedroom. Appellant also opened a combination safe located inside the bedroom for Russell. The safe contained 107 one-dollar bills. Russell testified he did not know if Whittaker, Grisby, or Andrews had keys to the house or knew the combination to the safe. He also admitted the house did not belong to appellant, did not have utilities, had other prescription bottles that were not in appellant's name, and that although there was mail found in the house, he did not know if any of it was addressed to appellant.
        Officer Mike Johnston testified he is a patrol officer for the Greenville Police Department. When the warrant was executed, Johnston helped form a perimeter until the house was secured. He was positioned in the driveway, and when he arrived, the gate to the backyard was open. After the house was secured, Johnston took a drug dog through the house and yard. The dog alerted in the dining room and in the northeast bedroom. Later, the dog had a “behavioral change,” but not an “alert” near the back fence area.
        Detective Victor Ray Petrea testified he assisted in executing the search warrant. Initially, he stayed in his patrol car and helped maintain a perimeter. When he got out of the car, he noticed Grisby lying on the ground in the yard. Later, Petrea helped search the northeast bedroom, and he saw Detective Darryl Cash find a sock behind a chest, untie it, and empty the contents onto the chest. The sock contained “coin money and a chunk of what is believed to be crack cocaine.” The suspected cocaine was not sent for testing, was not admitted at trial, and is not part of the amount appellant was charged with possessing. Petrea found 53 one-dollar bills in a dresser.
        After hearing this and other evidence, the jury found appellant guilty of possession of cocaine. This appeal followed.
Discussion
        In his first issue, appellant contends the evidence is legally insufficient to support his conviction. We apply well-known standards when reviewing such challenges. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). Viewing the evidence in the light most favorable to the verdict, we determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.2d 502, 509 (Tex. Crim. App. 2005).
        To support appellant's conviction, the State was required to prove beyond a reasonable doubt that appellant knowingly or intentionally possessed cocaine in an amount of one gram or more but less than four grams. See Tex. Health & Safety Code Ann. § 481.115(c) (Vernon 2003). To do so, the State had to prove appellant exercised actual care, control, or management over the cocaine and knew it was contraband. See Taylor v. State, 106 S.W.3d 827, 830 (Tex. App.-Dallas 2003, no pet.). The control over the contraband need not be exclusive but can be jointly exercised by more than one person. See id. at 831. Whether this evidence is direct or circumstantial, “it must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous.” Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005). No set formula of facts exists to dictate a finding of links sufficient to support an inference of knowing possession. See Taylor, 106 S.W.3d at 830. It is the logical force of the evidence, and not the number of links, that supports a fact-finder's verdict. See Evans v. State, 202 S.W.3d 158, 166 (Tex. Crim. App. 2006).
        Possible links include: (1) the defendant's presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant's proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt. Id. at 162 n.12.
        Applying these factors to this case, the record shows that when the search warrant was executed, appellant was not present but was in bed at his mother's house next door. Thus, appellant was not in close proximity to the cocaine and it was not easily accessible to him. However, both Grisby and Andrews were present, Grisby in the yard and Andrews in a pickup truck in the driveway. The contraband was not in plain view. To the contrary, the relatively small amount of cocaine (with respect to the search of a suspected drug dealer's home) was found hidden between the slats of a privacy fence that was easily accessible to the public. Appellant was not under the influence of drugs at the time he was arrested. Furthermore, appellant did not possess other contraband or narcotics when he was arrested. Nor did appellant attempt to flee, or make any incriminating statements or furtive gestures when he was arrested. Appellant did not possess a large amount of cash and his conduct did not in any way indicate a consciousness of guilt with respect to the cocaine found in the backyard. Rather, the record indicates appellant was cooperative throughout the search.
        The State presented sufficient evidence linking appellant to the house. That appellant had access to and may have resided in the house raises a suspicion he knew about the cocaine found in the backyard. And, evidence that there was what appeared to be crack cocaine in the house, together with several small pieces of foil similar to that in which the cocaine found in the backyard was wrapped, raises further suspicion that appellant knew about the cocaine found in the backyard. However, proof amounting only to strong suspicion or mere probability will not suffice to show appellant had knowledge and control over the cocaine appellant was charged with possessing. See Roberson v. State, 80 S.W.3d 730, 742 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd) (citing Dubry v. State, 582 S.W.2d 841, 844 (Tex. Crim. App. [Panel Op.] 1979); Williams v. State, 859 S.W.2d 99, 101-02 (Tex. App.-Houston [1st Dist.] 1993, pet. ref'd)).
        After reviewing the record under the appropriate standard, we conclude the factors relied on by the State are insufficient to create the logical force necessary to allow a rational juror to find, beyond a reasonable doubt, that appellant had knowledge and control over the cocaine that was found in the backyard. See Roberson, 80 S.W.3d at 742 (driver of car not adequately linked to 24 grams of cocaine found on passenger's side floorboard and ground near the passenger door). Thus, we conclude the evidence is legally insufficient to support appellant's conviction. We sustain appellant's first issue. When, as here, a legal sufficiency challenge is sustained, a judgment of acquittal must be rendered. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).
        Accordingly, we reverse the trial court's judgment and render a judgment of acquittal.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
070938F.U05