Donald James Collins v. The State of Texas--Appeal from Criminal District Court of Jefferson County

MEMORANDUM OPINION
No. 04-03-00516-CR
Donald James COLLINS,
Appellant
v.
The STATE of Texas,
Appellee
From the Criminal Judicial District Court, Jefferson County, Texas
Trial Court No. 88051
Honorable Larry Gist, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: September 8, 2004

AFFIRMED

On May 14, 2003, a jury found Donald Collins guilty of possessing a controlled substance and, after consideration of past convictions, sentenced him to two and a half years imprisonment. On appeal, Collins argues that the evidence presented was legally insufficient to support his conviction.

Background

On the morning of October 8, 2002, Officers Reginald Boykin and John Wolford of the Jefferson County Sheriff's Department, Fugitive Warrant Division, were driving past Mike's Drive-In, a convenience store, when they noticed Collins and three of his companions, Marcus Mitchell, Joseph Ruben and Porshia Williams, in front of the store. According to the officers' testimony, Collins was seated in the rear passenger seat of a white Suburban behind the driver's side seat; Porshia Williams was seated in a white four-door car; and Mitchell and Ruben were standing between the two vehicles. Officer Boykin testified that he recognized Collins from an undercover drug deal during his employment with the Narcotics Task Force. Collins had sold him crack cocaine on that occasion. Thus, Officer Boykin was suspicious about whether a drug transaction was taking place. Additionally, Officer Boykin testified that the area around Mike's Drive-In was a high crime location for drug trafficking.

Believing that the suspects were engaged in questionable behavior, Officers Boykin and Wolford stopped their vehicle and approached the two cars. Officer Boykin moved toward the back seat of the Suburban where Collins was seated, and Officer Wolford ran between the two vehicles. As Officer Boykin neared the Suburban, he requested Collins to place his hands in plain view. Officer Boykin then saw Collins place an unknown object inside of his mouth and motion toward the center console. In response, Officer Boykin removed Collins from the white Suburban and searched the area behind the driver's side where he was seated. In the open center console of the Suburban, Officer Boykin found an empty, green, plastic bag next to the center console and another plastic bag of what appeared to be crack cocaine underneath. (1) Officer Boykin then placed Collins under arrest.

During this time, Officer Wolford was occupied with Mitchell and Ruben on the other side of the Suburban. According to Officer Wolford's testimony, when one of the men observed Officer Boykin take Collins into custody, he motioned toward the rear of the car. Concerned for the safety of himself and the suspects, Officer Wolford placed Mitchell and Ruben in handcuffs and detained them. Once everyone was secure, Officer Wolford conducted a search of the Suburban and found a chewed up piece of tin foil located by the door of the passenger seat behind the driver's side. Officer Wolford stated that the teeth marks were noticeable in the foil and a white substance was imbedded in the indentations.

Discussion

When conducting a legal sufficiency-of-the-evidence review as prescribed by Jackson v. Virginia, 443 U.S. 307, 319 (1979), we do not weigh the evidence tending to establish guilt against the evidence tending to establish innocence, nor do we assess the credibility of witnesses on each side.Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996). We review the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). If we determine that the evidence is legally insufficient, we must render a judgment of acquittal. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).

Under the Texas Controlled Substances Act, the accused commits an offense if he knowingly or intentionally possesses a controlled substance. Tex. Health & Safety Code Ann. 481.115(a) (Vernon 2003). A person possesses a substance when he exercises "actual care, custody, control, or management" over the substance. See Tex. Pen. Code Ann. 1.07(a)(39) (Vernon Supp. 2004). To prove drug possession, the State must show a defendant (1) exercised care, custody, control, or management over the drugs, and (2) had knowledge that the substance was contraband. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Armstrong v. State, 82 S.W.3d 444, 448 (Tex. App.--Austin 2002, pet. ref'd). When a defendant is not in exclusive possession or control of the place where the drugs are found, the State must affirmatively link the defendant with the drugs. Brown, 911 S.W.2d at 747-48; Armstrong, 82 S.W.3d at 449. More than the defendant's mere presence near the drugs is required, especially when several people are present or in possession of the place where the drugs are found. Armstrong, 82 S.W.3d at 449. The State's evidence need not exclude every reasonable hypothesis other than the defendant's guilt, but it must show facts and circumstances that, viewed in the totality of the circumstances, indicate the defendant's knowledge and control over the drugs. Id. Affirmative links between a defendant and illegal drugs may include: the defendant's presence when the drugs are found; whether the drugs or other contraband were in plain view; the defendant's proximity to and the accessibility of the drugs; whether the defendant was under the influence of drugs when the drugs were found; whether the defendant possessed other contraband or drug paraphernalia; whether the defendant made incriminating statements or furtive gestures or tried to flee; whether there was any noticeable drug odor; whether the defendant had the right to possess the place where the drugs were found; and whether that place was enclosed. Id. Notwithstanding the preceding laundry list of possible links, there is no set formula of facts that necessitate a finding of an affirmative link sufficient to support an inference of knowing possession. Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd). Rather, affirmative links are established by a totality of the circumstances. Id.

According to the testimony of Officers Boykin and Wolford, Collins was alone in the white Suburban when they initially stopped to investigate the situation. The only other individuals with access to the vehicle, Mitchell and Ruben, were standing outside the Suburban conversing with Porshia Williams when the officers arrived. When the officers approached the scene, Collins was seen motioning toward the center console and placing an empty green bag next to it. Subsequently, the bag of heroin was discovered underneath the green bag. Moreover, Officer Boykin observed Collins place an unidentified object in his mouth. Later, a chewed up piece of aluminum foil with a white substance located in the teeth marks was found in close proximity to the area where Collins had been seated. Thus, there is sufficient evidence to show Collins had exclusive possession of the contraband.

However, even if Collins did not have exclusive possession of the contraband, there are sufficient affirmative links to show that Collins knowingly controlled and managed the contraband. First, Collins was present when the Suburban was searched and the crack cocaine was discovered. Second, the bag of crack cocaine was located next to the center console, an area which was in close proximity to and easily accessed by Collins. Third, Collins made furtive gestures as the officers approached the vehicles, motioning toward the center console and placing an object in his mouth when asked to keep his hands in plain view. Finally, the Suburban was an enclosed area. Reviewing the evidence in the light most favorable to the verdict, we find that there was legally sufficient evidence to show that Collins knowingly and intentionally possessed the controlled substance.

We overrule Collins's sole issue.

Conclusion

Having overruled Collins's sole issue, we affirm the judgment of the trial court.

Karen Angelini, Justice

Do not publish

1. Sara Skiles, forensic analyst for the regional crime laboratory, testified that the substance in the bag was indeed crack cocaine.