Anthony, Mark v. The State of Texas--Appeal from 263rd District Court of Harris County

 Affirmed and Opinion filed  July 18, 2002.

In The

Fourteenth Court of Appeals

____________

NO. 14-01-01190-CR

____________

MARK ANTHONY, Appellant

V.

 THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

 Harris County, Texas

Trial Court Cause No. 857,739

O P I N I O N

A jury found appellant, Mark Anthony, guilty of marijuana possession and sentenced him to five years imprisonment. In a single issue, Anthony contends the evidence was insufficient for a conviction. We affirm.

BACKGROUND

Police conducting narcotics surveillance observed what appeared to be a drug transaction between the occupants of a Honda Accord car and a Suburban truck parked at a carwash. During a search of the car, in which Anthony was a passenger, police found a black bag containing 30.8 pounds of marijuana in the trunk. Anthony denied participation in the drug transaction. In one issue, Anthony contends the evidence affirmatively linking him to the marijuana is insufficient. Accordingly, we address whether the evidence is legally or factually insufficient to support the conviction.

STANDARD OF REVIEW

When reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000). If a reviewing court determines the evidence is insufficient under the Jackson standard, it must render a judgment of acquittal because if the evidence is insufficient, the case should never have been submitted to the jury. See Jackson, 443 U.S. 318 19. In a legal sufficiency challenge, we do not weigh the evidence again. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).

In reviewing factual sufficiency, we do not view the evidence in the light most favorable to the prosecution. Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997). We examine the evidence that tends to prove an elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Although we may disagree with the verdict, our factual sufficiency review must be appropriately deferential to avoid our substituting our judgment for that of the fact finder. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Roberts v. State, 987 S.W.2d 160, 163 (Tex. App. Houston [14th Dist.] 1999, pet. ref d). We will reverse for factual insufficiency if the proof of guilt 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, 23 S.W.3d at 11.

POSSESSION OF MARIJUANA

When a defendant is charged with unlawful possession of marijuana, 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). An accused must not only have exercised actual care, control, or custody of the substance, but must also have been conscious of his connection with it and have known what it was; thus, evidence which affirmatively links him to it suffices for proof that he possessed it knowingly. Id. It makes no difference whether this evidence is direct or circumstantial; in either case, the State must establish to the requisite level of confidence the defendant s connection with the drug was more than fortuitous. Id.

When the accused is not in exclusive possession of the place where the contraband was found, it cannot be concluded that appellant had knowledge of or control over the contraband unless there are additional independent facts and circumstances that affirmatively link appellant to the contraband. Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). The facts and circumstances must create a reasonable inference that appellant knew of the controlled substance s existence and exercised control over it. See Dickey v. State, 693 S.W.2d 386, 389 (Tex. Crim. App. 1984). Mere presence is insufficient to show that a person possessed the drug. Chavez v. State, 769 S.W.2d 284, 288 (Tex. App. Houston [1st Dist.] 1989, pet. ref d).

There is no rigid formula by which we may find an affirmative link sufficient to support an inference of knowing possession. Id. Rather, affirmative links are established by a totality of the circumstances. Sosa v. State, 845 S.W.2d 479, 483 84 (Tex. App. Houston [1st Dist.] 1993, pet. ref d) (finding the totality of the circumstances was of such a character that the jury reasonably could conclude the defendant was aware of the contraband and exercised control over it).

In this case, an officer conducting the narcotics surveillance, Officer Engelhardt, testified Anthony participated in a drug transaction at the carwash with persons in the Suburban. He observed the drug transaction at dusk through the tinted windows of an unmarked car parked across the street from the carwash. Officer Engelhardt testified he could easily observe the drug transaction with his naked eyes. Nonetheless, he used binoculars to observe details, such as physical descriptions and license plates. In particular, Officer Engelhardt observed Anthony in the car s passenger seat, and he noted Anthony s clothing and physical description. Further, Officer Engelhardt observed Anthony exit the car, walk to the Suburban, remove a black bag from the back seat, and put the bag in the car s trunk. Anthony then returned a smaller, unknown object to the Suburban. The car then left, with Anthony sitting in the passenger seat once again.

A few moments after the car left, a marked police car stopped it. Anthony exited from the passenger seat. One of the officers who stopped the car testified that Anthony and his brother-in-law (who was the driver) were acting nervously. Anthony even asked if he had been videotaped. After Anthony s brother-in-law consented to a search, the police opened the car trunk and smelled a very, very strong odor of marijuana. The officers found two plastic wrapped bricks of marijuana, weighing 30.8 pounds, inside a black bag in the trunk. Two identifiable prints were found on the plastic wrapping, however none of them belonged to Anthony, his brother-in-law, or the Suburban s two occupants.

Meanwhile, two additional officers stopped and searched the Suburban. They found a purse stuffed with money, partly wrapped in a black plastic bag, which they believed to be the unknown object Anthony carried to the Suburban. The money totaled $9,525, the approximate street value of 30 pounds of marijuana.

This evidence constitutes legally sufficient evidence of Anthony s knowledge and control over the marijuana. Knowledge and control can exist if contraband is in close proximity to a defendant and is readily accessible to him. See Abdel-Slater v. State, 852 S.W.2d 671, 676 (Tex. App. Houston [14th Dist.] 1993, pet. ref d); see also Valencia v. State, 51 S.W.3d 418, 423 (Tex. App. Houston [1st Dist.] 2001, pet. ref d). Officer Engelhardt saw Anthony carry the bag of marijuana from the Suburban to the car s trunk. Thus, although Anthony was a passenger in the car, he had access to the trunk and the marijuana. Additionally, when officers opened the trunk, the odor of marijuana was easily detected, even though the marijuana bricks were in the black bag. The strong odor is an affirmative link showing Anthony s knowledge of the contraband s existence. See Williams v. State, 859 S.W.2d 99, 101 (Tex. App. Houston [1st Dist.] 1993, pet. ref d). Additional affirmative links include (1) 30.8 pounds of marijuana in the bag, see Carjaval v. State, 529 S.W.2d 517, 520 (Tex. Crim. App. 1975) (unlikely that presence of large amount is accidental); Hill v. State, 755 S.W.2d 197, 201 (Tex. App. Houston [14th Dist.] 1988, pet. ref d) (large amount of contraband indicated defendant knew of its presence); and (2) Anthony s nervousness when police searched the car. See Hurtado v. State, 881 S.W.2d 738, 745 n.1 (Tex. App. Houston [1st Dist.] 1994, pet. ref d).

In examining factual sufficiency of possession, we examine all the evidence neutrally. In contrast to Officer Engelhardt s testimony, Anthony testified that he rode in the car with his brother-in-law only to buy dinner. On the way home, his brother-in-law (who is a rap promoter) decided to stop at a record store to pick up some compact discs for business. Because the record store parking lot was very crowded, his brother-in-law and the Suburban s driver decided to park across the street at a carwash. Once at the carwash, Anthony and his brother-in-law sat inside the Suburban, which contained big boxes of promotional compact discs. Anthony testified that the driver of the Suburban decided to do two deals in one: instead of simply providing compact discs, the driver also pulled out some marijuana. Anthony testified when he saw the marijuana, he got out of the Suburban and walked to the record store across the street, where he stayed until his brother-in-law picked him up. Thus, Anthony claims to have had no contact with the marijuana and no participation in any drug transaction.

In challenging the factual sufficiency of the evidence, Anthony criticizes Officer Engelhardt s sole identification of him as the man who transferred the marijuana from the Suburban to the car. He argues that the officer had an overwhelming interest to make the arrest result in a conviction. Additionally, Anthony testified that he asked about a videotape of the surveillance and arrest because he knew it would prove his innocence. He reasons that a one-man surveillance without a videotape is engineered to force juries to choose between a police officer and a citizen at trial. Further, he argues that the waning daylight and the dark windows in Officer Engelhardt s car cast doubt on the officer s ability to accurately identify Anthony as a participant in the drug transaction. Thus, Anthony contends the State failed to meet its burden of proving his guilt beyond a reasonable doubt.

According to Anthony s testimony, the marijuana was in the locked trunk of a car which was neither owned nor driven by him. He did not attempt to flee when the car was stopped, and he requested fingerprint testing on the marijuana wrapping and bag. None of the prints found were Anthony s.

We agree that there are discrepancies between the testimony of Officer Engelhardt and Anthony. The weight given to contradictory testimonial evidence, however, is within the province of the jury because they alone evaluate the witnesses credibility and demeanor. Cain, 958 S.W.2d at 408 09. The jury may believe or disbelieve all or any part of any witness s testimony. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). We agree that a police officer s testimony is not automatically more valuable than a citizen s. Nonetheless, in this case, the jury must not have believed Anthony s version. We cannot set aside a jury verdict merely because we may feel that a different result might be more reasonable. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). After a thorough review of all of the evidence, we hold the jury s verdict was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001).

Accordingly, we overrule Anthony s sole issue and affirm the trial court s judgment.

/s/ Charles W. Seymore

Justice

Judgment rendered and Opinion filed July 18, 2002.

Panel consists of Justices Yates, Seymore and Guzman.

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