St. Julian, Roderick Earl v. The State of Texas--Appeal from 178th District Court of Harris County

Affirmedand Opinion filed June 27, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00496-CR

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RODERICK EARL ST. JULIAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris  County, Texas

Trial Court Cause No. 859,303

O P I N I O N

Appellant Roderick Earl St. Julian appeals from his conviction for possession of less than one gram of cocaine. The trial court sentenced him to ten years= confinement as enhanced by two prior felonies. Appellant presents one point of error, challenging the factual sufficiency of the evidence to support the judgment. We affirm.

Appellant=s vehicle was stopped by the police late at night for an expired inspection sticker. As the police officer approached the vehicle, he noticed appellant in the driver=s seat with one arm over the steering wheel, his hand resting on the dashboard. The officer testified that appellant was visibly shaking and appeared nervous. When the officer directed his flashlight beam toward the expired inspection sticker, he saw a chrome tube pipe on the dashboard, which he recognized to be a pipe used for smoking crack cocaine. The pipe tested positive for cocaine, and appellant was arrested. On appeal, appellant argues the evidence is insufficient to show that he knowingly possessed cocaine because he did not own the car, and as there was so little cocaine residue in the pipe that the amount could not be measured.

In reviewing the factual sufficiency of the evidence, we ask whether a neutral view of all the evidence, both for and against the finding, demonstrates the proof of guilt is either so obviously weak as to undermine confidence in the jury=s determination, or although adequate if taken alone is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We will set aside a verdict for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000). In conducting this analysis, we defer to the determination of the trier of fact as to the weight to be given contradictory evidence. Johnson at 8.

A person commits an offense if that person knowingly or intentionally possesses less than one gram of cocaine. See Tex. Health & Safety Code Ann. ' 481.115(b). When a person is charged with unlawful possession of cocaine, the State must prove that (1) the defendant exercised actual care, custody, control, or management over the contraband, and (2) the defendant knew the object he possessed was contraband. Linton v. State, 15 S.W.3d 615, 619 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). Evidence that affirmatively links the appellant to the cocaine suffices for proof that he possessed it knowingly. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). Potential affirmative facts linking an accused to contraband have been identified in numerous opinions. See, e.g., Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d).

Here, although appellant did not own the car and others allegedly had been in it earlier, he was its sole occupant at the time he was stopped. The officer found the pipe in plain view on the dashboard, within arm=s reach of appellant. When the officer first approached the car, appellant=s arm had been positioned over the steering wheel, resting on the dashboard. He was shaking and appeared nervous, and expressed no surprise when the officer found the pipe. Appellant presents no legal authorities in his two-sentence argument that this was insufficient to establish possession of the contraband, and we find the evidence sufficient to establish possession of the contraband knowingly. See Hyett at 831-32.

Appellant also argues the trace amount of residue found was insufficient to sustain the conviction as it could not be accurately measured. We disagree. The Harris County forensic chemist testified that the substance was a fine black powdery residue, less than 10 milligrams in weight, which is less than one gram. We find the evidence factually sufficient to support the conviction. See Hyett at 831; King v. State, 895 S.W.2d 701, 703-04 (Tex. Crim. App. 1995).

Appellant=s point of error is overruled, and the judgment is affirmed.

/s/ Scott Brister

Chief Justice

Judgment rendered and Opinion filed June 27, 2002.

Panel consists of Chief Justice Brister and Justices Anderson and Frost.

Do Not Publish CTex. R. App. P. 47.3(b).