Gerardo Felan v. The State of Texas--Appeal from 63rd Judicial District Court of Val Verde County

No. 04-98-00468-CR
Gerardo FELAN,
Appellant
v.
The STATE of Texas,
Appellee
From the 63rd Judicial District Court, Val Verde County, Texas
Trial Court No. 8278
Honorable George M. Thurmond, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: December 30, 1998

AFFIRMED

Gerardo Felan was convicted by a jury of possession of less than one gram of monoacetylmorphine in a drug-free zone. The trial court sentenced him to five years in prison. On appeal, Felan argues the evidence is legally and factually insufficient, there is a fatal variance between the indictment and the proof at trial, and the jury charge was improper. We affirm.

Sufficiency of the Evidence

1. The Standards of Review

In analyzing the legal sufficiency of the evidence, this court must view the evidence in the light most favorable to the verdict to determine whether a rational jury could have found beyond a reasonable doubt all the essential elements of the offense charged. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). In analyzing the factual sufficiency of the evidence, this court must view all the evidence as a whole, without viewing it in the light most favorable to either party. See Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We may 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." Clewis, 922 S.W.2d at 129. We are not free to reweigh the evidence. See Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 135; Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). Similarly, determining the credibility of the evidence is within the sole province of the jury. See Cain, 958 S.W.2d at 408-09; Muniz, 851 S.W.2d at 246.

2. The Elements of the Offense

Felan was indicted for possessing monoacetylmorphine in a drug-free zone. See Tex. Health & Safety Code Ann. 481.102(2), 481.115, 481.134(d) (Vernon Supp. 1998). In his first and second points of error, Felan argues that the evidence is legally and factually insufficient to establish possession.

To prove the unlawful possession of a controlled substance, the State must prove: 1) the accused exercised control, management, and care over the substance; and 2) the accused knew the matter possessed was contraband. See Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995). Possession of the controlled substance need not be exclusive; evidence showing that the accused jointly possessed it with another is sufficient. See Martin v. State, 753 S.W.2d 384, 386 (Tex. Crim. App. 1988). But mere presence in the vicinity of a controlled substance is insufficient. See id.; de la Garza v. State, 898 S.W.2d 376, 379 (Tex. App.--San Antonio 1995, no pet.). The evidence must affirmatively link the accused to the controlled substance in such a manner that it can be concluded that he had knowledge of and control over the substance. See Martin, 753 S.W.2d at 386; de la Garza, 898 S.W.2d at 379.

Circumstances that may affirmatively link an accused to a controlled substance include: 1) the accused's presence when the search was executed; 2) the substance was in plain view; 3) the accused was in proximity to and had access to the substance; 4) the accused was under the influence of the substance; 5) the accused possessed other contraband when arrested; 6) the accused made incriminating statements; 7) attempted flight; 8) furtive gestures; 9) odor of the substance; 10) presence of other contraband or drug paraphernalia not included in the charge; 11) the accused's ownership or right of possession of the place where the controlled substance was found; and 12) drugs found in an enclosed space. See de la Garza, 898 S.W.2d at 379. The number of the "affirmative links" that are present is not as important as the degree to which they tend to link the accused to the substance. See Williams v. State, 906 S.W.2d 58, 65 (Tex. App.--Tyler 1995, pet. ref'd).

3. The Evidence

Gerardo Hernandez, a Del Rio police officer, testified that on January 9, 1997, he was investigating a theft when he came upon Armando Mendoza and Gerardo Felan sitting on a bench behind Mendoza's house facing each other. Hernandez could not remember which one of the men was facing him when he approached, but he recognized Felan because they went to school together. Hernandez testified that when Mendoza and Felan saw him they both made a "sweeping move." During cross-examination, Hernandez repeated that both Mendoza and Felan made the sweeping move. Although he could not specifically describe what gestures each man made, the gestures appeared to be made in an attempt "to conceal whatever they had on the bench."

Hernandez further testified that both men called out his name and asked him how it was going. He then asked them what they were doing, and they stated they were "taking a leak." Hernandez replied that he thought it was strange for them to be "taking a leak" while sitting down facing each other. He then noticed two cut-off bottoms of aluminum cans and a bottle cap on the bench. The can bottoms had been burned, and the cap had water in it. Hernandez surmised that Mendoza and Felan had been "cooking" drugs. With Mendoza's permission, Hernandez investigated the area further and found a blood-stained rag covering a syringe containing brown liquid near the bench. He arrested both Mendoza and Felan. According to Hernandez, Mendoza later pled guilty to possession of monoacetylmorphine. Hernandez did not recall whether Felan appeared to be under the influence of drugs at the time of the arrest. He also did not see any fresh or recent needle marks on Felan's arms. But another officer on the scene testified that both Mendoza and Felan had needle marks on their arms, although he could not say whether the marks were fresh.

Macon Garcia, the ID technician for the Del Rio Police Department, testified that he compared latent fingerprints lifted from one of the aluminum can bottoms to Felan's prints and found that they matched. Aricela Silva, a DPS drug chemist, testified on direct examination that the substance in the syringe was monoacetylmorphine and that the aluminum can bottom with Felan's fingerprint contained a trace amount of morphine. She explained that monoacetylmorphine is a decomposition product of morphine or heroin. When morphine is mixed with water and heated, it decomposes into monoacetylmorphine. On cross-examination, Silva stated that in addition to containing a trace of morphine, the can also contained morphine byproducts, including monoacetylmorphine. She had not mentioned in her report that the can contained monoacetylmorphine. Silva also stated that it was not possible to determine that the can contained the drug residue simply by viewing it with the naked eye. She added methanol to the can and extracted the residue with a pipette.

Felan did not present any evidence.

4. Discussion

Felan notes that there is no evidence of some of the affirmative link factors in this case. For example, Felan did not own or have a right of possession of the place where the monoacetylmorphine was found; there was no evidence that he was under the influence when arrested; he did not make any incriminating statements; he did not attempt to flee; there was no evidence of an odor; there was no fingerprint or other scientific evidence linking him to the syringe or the blood-stained rag; and the syringe was not in plain view because it was underneath the rag. Furthermore, Felan argues that Mendoza's guilty plea indicates that he was the only one who possessed the monoacetylmorphine. Felan also questions the accuracy of the scientific evidence. He notes: 1) the fingerprint analysis was done over a year after the evidence was collected and after Silva had extracted the drug residue from the can; 2) Hernandez said he was told of a fingerprint match a week before trial, but Garcia testified that the first fingerprint analysis was not done until the day before trial; and 3) contrary to her testimony at trial, Silva's report does not state that she found monoacetylmorphine in the can.

Although not all of the affirmative link factors are present in this case, the factors that are present are legally and factually sufficient to support the jury's finding that Felan possessed monoacetylmorphine. Both Mendoza and Felan acted suspiciously by making the "taking a leak" comment and making "sweeping moves." Felan was in proximity to, and had access to, the syringe. Other contraband and drug paraphernalia were present at the scene, namely, the cap and the aluminum can bottoms. Felan's fingerprints were on one of the cans. It was for the jury to decide whether the delay in lifting the prints and the conflicting testimony regarding when the prints were lifted lessened the credibility of the fingerprint evidence. The aluminum can with Felan's print contained traces of morphine, and the jury could infer from Silva's testimony that the monoacetylmorphine in the syringe was cooked in that can. Silva also testified that traces of monoacetylmorphine itself were found in the can. The fact that she did not include this finding in her report created a credibility question for the jury, not this court, to resolve. Finally, the testimony that Felan had needle marks is evidence of knowing possession. Cf. Joseph, 897 S.W.2d at 376 (no requirement that substance be visible to the naked eye); Caballero v. State, 881 S.W.2d 745, 748-49 (Tex. App.--Houston [14th Dist.] 1994, no pet.) (fact that drug was found in item closely associated with drug use and that defendant has prior experience with drug use constituted evidence of knowing possession). The first and second points of error are overruled.

Fatal Variance

Due process is violated when the indictment alleges one offense but the State proves another. See Stevens v. State, 891 S.W.2d 649, 650 (Tex. Crim. App. 1995). Therefore, a variance between the indictment and the evidence at trial is fatal to a conviction. See id. In his fifth point of error, Felan argues that there was a fatal variance in this case because the evidence was insufficient to establish that he possessed monoacetylmorphine; at most, he asserts, the evidence establishes that he possessed morphine.

As explained in the discussion of the first and second points of error, there is legally and factually sufficient evidence to establish that Felan possessed monoacetylmorphine, the substance alleged in the indictment. Reversal is not required simply because the State may have proved Felan possessed another substance in addition to monoacetylmorphine. The fifth point of error is overruled.

Jury Charge

1. Omission of Mere Presence Instruction

In his fourth point of error, Felan argues that the trial court erred by refusing to charge the jury that "mere presence of a person at the scene of a crime is not evidence of guilt."

This instruction does not correctly state the law. As explained in the discussion of the first and second points of error, an accused's presence in the vicinity of a controlled substance may constitute some evidence of possession of the controlled substance. See, e.g., de la Garza, 898 S.W.2d at 379 (presence at scene is affirmative link that, combined with other evidence, may establish the accused's possession of a controlled substance). A correct statement of the law is that "[m]ere presence alone at a place where the contraband is being used or possessed by others does not justify a finding of joint possession ...." Martin, 753 S.W.2d at 384 (emphasis added). The cases cited by Felan do not support his requested charge. See McShane v. State, 530 S.W.2d 307, 308 (Tex. Crim. App. 1975) (trial court erred by refusing to instruct jury that mere presence at a place where contraband is found does not itself show possession where defendants' testimony raised that defensive issue); Musick v. State, 862 S.W.2d 794, 798 (Tex. App.--El Paso 1993, pet. ref'd) (charge tracking the language of Martin was sufficient). Because Felan's requested instruction did not correctly state the law, the trial court did not err by refusing to include it in the jury charge. The fourth point of error is overruled.

2. Charge on Knowledge of Monoacetylmorphine

In his third point of error, Felan argues that the trial judge included an erroneous instruction in the jury charge. The challenged instruction is as follows:

If you find from the evidence, or if you have a reasonable doubt thereof, that defendant not [sic] know that the alleged Monoacetylmorphine, if any, was on or under the bench where he had been seated, and that same was not the property of defendant, then you will acquit the defendant.

Felan argues that this instruction was erroneous because it required the jury to find that he did not know monoacetylmorphine was present in order to acquit him.

As Felan correctly notes, mere knowledge of an offense does not make one a party to joint possession. See Oaks v. State, 642 S.W.2d 174, 177 (Tex. Crim. App. 1982); Watson v. State, 752 S.W.2d 217, 222 (Tex. App.--San Antonio 1988, pet. ref'd). Assuming that the challenged instruction, viewed in isolation, implies that the jury must find that Felan did not know the monoacetylmorphine was present in order to acquit him, the instruction was not harmful when viewed in the context of the entire jury charge. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).

As Felan acknowledges, the remainder of the jury charge accurately states the law applicable to the case. It defines possession as "actual care, custody, control or management," and explains that "possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control." The charge then instructs the jury on the elements necessary to convict Felan and directs the jury to acquit Felan if it does not find those elements beyond a reasonable doubt:

Now, if you find from the evidence beyond a reasonable doubt that ... the defendant ... did intentionally possess a controlled substance, to wit, Monoacetylmorphine, in an amount ... of less than one (1) gram, and said offense was committed in a drug-free zone ... then you will find the defendant guilty as charged.

Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant.

The charge thus required the jury to acquit Felan if it had a reasonable doubt about whether Felan had "actual care, custody, control or management" of the monoacetylmorphine. The complained-of instruction merely provided the jury an alternative ground for acquittal: that Felan did not know the monoacetylmorphine was present and did not own it. Therefore, the instruction was not harmful. The third point of error is overruled.

Conclusion

The judgment of the trial court is affirmed.

Tom Rickhoff, Justice

DO NOT PUBLISH

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