Davis, Kinta Sadat v. The State of Texas--Appeal from 248th District Court of Harris County

Affirmed and Opinion filed May 16, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00543-CR

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KINTA SADAT DAVIS, Appellant

V.

THE STATE OF TEXAS  , Appellee

On Appeal from the 248th District Court

Harris  County, Texas

Trial Court Cause No. 860,548

O P I N I O N

Over a plea of not guilty, a jury convicted appellant of possession of less than one gram of a controlled substance, i.e., cocaine. See Tex. Health & Safety Code Ann. ' 481.115(b) (Vernon Supp. 2002). The trial court assessed punishment at eighteen months= confinement in the Texas Department of Criminal Justice, State Jail Division and ordered appellant to participate in a drug treatment program. Appellant argues the evidence is legally and factually insufficient to support his conviction. We affirm.

Factual Summary

During an undercover investigation, police observed appellant sell approximately one ounce of cocaine to an informant. When Harris County Deputy Constable Randy LaFaive attempted to arrest appellant, he ran. While in flight, appellant dropped a substance that was later field-tested as cocaine.

Officer LaFaive testified he was running about ten to fifteen feet behind appellant when he saw the package fall from appellant=s waistband area. Nonetheless, LaFaive continued to pursue appellant on foot. After a brief chase, appellant stopped and surrendered. Just several minutes after making the arrest, LaFaive returned to the area where appellant had dropped the package and discovered the package was a bag of cocaine. It appeared to have been run over by several cars, but a small quantity of the cocaine was salvageable for evidence. Appellant claims the evidence is legally and factually insufficient to affirmatively link him to the cocaine.

Standard of Review

When reviewing the legal sufficiency of the evidence, this court must view the evidence in the light most favorable to the prosecution and determine whether 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); Garrett v. State, 851 S.W.2d 853, 857 (Tex. Crim. App. 1993). We do not re-evaluate the weight and credibility of the evidence, but we consider only whether the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).

When we determine whether the evidence is factually sufficient, we employ one of the two factual sufficiency formulations recognized in Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000). In cases such as this, in which the appellant attacks the factual sufficiency of an adverse finding on an issue on which he did not bear the burden of proof, the appellant must demonstrate there is insufficient evidence to support the adverse finding. Id. at 11. Under a factual sufficiency challenge, the evidence is viewed without the prism of Ain the light most favorable to the prosecution@ but rather Ain a neutral light, favoring neither party.@ Id. at 6. A reversal is necessary only if the evidence standing alone is so weak as to be clearly wrong and manifestly unjust. Id. at 8. The Johnson court re-affirmed the requirement that in conducting a factual sufficiency review the appellate court must employ appropriate deference to avoid substituting its judgment for that of the fact finder. Id. at 7.

Affirmative Links Doctrine

To establish unlawful possession of a controlled substance, the State must prove (1) the defendant exercised actual care, custody, control, or management over the contraband and (2) the accused knew the object he possessed was contraband. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). Here, appellant contends the State did not affirmatively link him to the contraband because there was a significant break between the time he dropped the bag and the time the officer retrieved it.

To show possession, the State is required to prove the accused=s dominion and control over the contraband. Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). When contraband is not found on the accused=s person, or is not in the exclusive possession of the accused, additional facts must affirmatively link the accused to the contraband so that one may reasonably infer that the accused exercised control over it. Smith v. State, 56 S.W.3d 739, 747 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). Affirmative links may be established by facts and circumstances that indicate the accused=s control over the contraband. Grant v. State, 989 S.W.2d 428, 433 (Tex. App.CHouston [14th Dist.] 1999, no pet.). While the State must link the defendant to the contraband, the link does not have to be so strong so as to negate every other reasonable hypothesis other than the accused=s guilt. Brown v. State, 911 S.W.2d at 745 49.

Although flight is one of several factors supportive of a finding of affirmative links, Chavez v. State, 769 S.W.2d 284, 288 89 (Tex. App.CHouston [1st Dist.] 1989, pet. ref=d), there is no rigid set of factors that requires such a finding. Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). Instead, affirmative links are established by a totality of the circumstances. Id. at 830-31.

When contraband has been discarded and there is a lapse of time between when an officer sees contraband dropped and the time it is retrieved, the State must also show a sufficient nexus between the defendant and the contraband. Raleigh v. State, 740 S.W.2d 25, 27-28 (Tex. App.CHouston [14th Dist.] 1987, no pet.) (finding evidence sufficient to support conviction when accused discarded contraband while in flight from police).

Sufficiency of the Evidence

After observing appellant=s attempt to sell cocaine to an informant, the police attempted to arrest him, but he fled. While in pursuit, Officer LaFaive observed appellant drop a plastic bag in a busy intersection and continue to flee. Officer LaFaive retrieved a bag of cocaine from the area where he saw appellant drop a plastic bag. Although there was a lapse in time between the recovery of the cocaine and the moment Officer LaFaive observed its disposal, we find the evidence sufficient to link appellant to the recovered cocaine. See Blackmon v. State, 830 S.W.2d 711, 714 (Tex. App.CHouston [1st Dist.] 1992, pet. ref=d) (finding sufficient evidence when police observed appellant discard contraband while in flight and later returned to same location to recover it). Viewing the evidence in a light most favorable to the verdict, we conclude the evidence was legally sufficient to support appellant=s conviction beyond a reasonable doubt. See id. at 714.

Viewing the evidence in a neutral light, we conclude the evidence is factually sufficient to support the verdict. See Johnson v. State, 23 S.W.3d at 11. Appellant presented no evidence to contradict the State=s case. Thus, the State=s evidence adduced at trial is not so weak as to be clearly wrong or manifestly unjust, nor is the verdict against the great weight and preponderance of the available evidence. See id. Appellant=s point of error is overruled.

The judgment of the trial court is affirmed.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Opinion filed May 16, 2002.

Panel consists of Justices Hudson, Fowler, and Edelman.

Do Not Publish C Tex. R. App. P. 47.3(b).