Dennis Orlanda Haynes v. The State of Texas--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-94-171-CR

DENNIS ORLANDA HAYNES,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 25,251-CR

O P I N I O N

A jury found Dennis Haynes guilty of possessing more than 400 grams of a controlled substance, cocaine, and assessed punishment of thirty years' imprisonment. See Tex. Health & Safety Code Ann. 481.102(3)(D), 481.115(c) (Vernon 1992). Haynes brings two points of error claiming that the evidence is insufficient and that the court erroneously allowed the arresting officer to relate his wife's statements over his hearsay objection. We will affirm his conviction.

In point one, Haynes claims that the evidence is insufficient to support his conviction. In resolving the sufficiency-of-the-evidence issue, we 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 offense charged beyond a reasonable doubt. See Humason v. State, 728 S.W.2d 363, 366 (Tex. Crim. App. 1987); Collins v. State, No. 10-94-119-CR, slip op. at 5 (Tex. App. Waco, December 14, 1994, pet. filed). Reconciliation of conflicts and contradictions in the evidence is for the jury. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). The jury may believe some witnesses and refuse to believe others, or accept portions of a witness' testimony and reject other portions. Losada, 721 S.W.2d at 309.

To obtain a conviction for possession of a controlled substance, the State had the burden of proving that (1) Haynes exercised care, custody, control or management over (2) what he knew to be contraband. See Martin v. State, 753 S.W.2d. 384, 387 (Tex. Crim. App. 1988). However, mere presence at the scene is not sufficient to establish possession of a controlled substance. McGoldrick v. State, 682 S.W.2d 573, 579 (Tex. Crim. App. 1985). Thus, when the accused is not in exclusive control of the place where the contraband is discovered, the state must show additional facts which "affirmatively link" him to the drugs. Herndon v. State, 787 S.W.2d 408, 409-10 (Tex. Crim. App. 1990). The continued vitality of the affirmative-links analysis is open to question in some courts of appeals. See Brown v. State, 878 S.W.2d 695, 699 (Tex. App. Fort Worth 1994, pet. granted); Eaglin v. State, 872 S.W.2d 332, 336-37 (Tex. App. Beaumont 1994, no pet.). However, we continue to use the analysis as a convenient and logically sound method of applying the rational-trier-of-fact standard. See Collins, No. 10-94-119-CR, slip op. at 5; also Martinets v. State, 884 S.W.2d 185, 188 (Tex. App. Austin 1994, no pet. h.).

At the trial, the State showed that Department of Public Safety Trooper Michael Turner stopped Haynes and his wife in a van travelling northbound on Interstate 45 because Haynes was not wearing his seatbelt. Haynes and his wife stated that they had been in Houston visiting for several days, although Haynes claimed to have been with his cousin while his wife stated that they had been visiting friends. Because they gave different accounts of their activities and because he could not see any luggage in the van indicating an extended trip, Turner became suspicious. After Turner asked Haynes if he had drugs in his van, which Haynes denied, Turner requested permission to search the van. Haynes consented to the search, but became "extremely nervous and shaking and started perspiring extremely bad."

When Haynes opened the back door of the van Turner "detected a strong odor of a substance that [he] believed to be cocaine." Turner found a locked briefcase, which he picked up and shook to determine its contents. Because of the odor, weight and sound of the contents, Turner formed the opinion that the briefcase contained a substantial amount of cocaine. Turner told Haynes that he suspected that the briefcase contained cocaine and Haynes "blurted out and quickly stated that the briefcase . . . belonged to his cousin, it was not his." Turner asked Haynes for the combination to the lock. Haynes "started to say something, and then he didn't say anything at all." Turner opined that Haynes "was going to give the combination to the briefcase."

Turner retrieved a screwdriver from his car and pried open the briefcase, discovering three kilogram-sized packages. Laboratory tests showed that the three packages weighed approximately 3000 grams and contained approximately 2000 grams of pure cocaine.

Using a traditional affirmative-links analysis, we find the State showed several factors that have been considered "affirmative links:" (1) behavior indicating a consciousness of guilt Haynes was "extremely nervous," he and his wife gave conflicting statements about relevant matters, and his outburst and then truncated statement upon Turner's inspection of the briefcase; (2) he was the driver of the van; and (3) according to the testimony at trial, which we must accept, a strong odor of cocaine was present in the van. See Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App. Houston [1st Dist.] 1994, no pet.); Villarreal v. State, 865 S.W.2d 501, 503-04 (Tex. App. Corpus Christi 1993, pet. ref'd). Additionally, other evidence, although not affirmative links in the traditional sense, supports a finding by a rational trier of fact that Haynes possessed the cocaine: there was no luggage in the van to indicate that Haynes had been on an extended trip, contrary to Haynes' statements; such a large amount of cocaine is extremely valuable, estimated by Turner to be worth between $1.5 million and $3 million, making it unlikely that an owner would misplace it or entrust it to another without obtaining the other's agreement; and Haynes' wife, the only other occupant of the van, was not nervous "at all" during the stop. See Hurtado v. State, 881 S.W.2d 738, 743 (Tex. App. Houston [1st Dist.] 1994, no pet.). Thus, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Haynes exercised care, custody, control, or management over the cocaine, knowing it to be drugs. See Collins, No. 10-94-119-CR, slip op. at 5. Point one is overruled.

In point two, Haynes complains that the court allowed Turner to relate his wife's statements at the scene over his hearsay objections. Hearsay is a statement, other than one made while testifying, offered to prove the truth of the matter asserted. Tex. R. Crim. Evid. 801(d). Trooper Turner testified that Haynes' wife stated that they had been in Houston visiting friends and that they did not have any relatives in Houston. These statements directly contradicted Haynes' statements regarding their journey. The State offered the evidence to show that she and Haynes gave conflicting statements, not to prove where or whom they had visited. Thus, the testimony by Turner was not hearsay, and the court did not err in overruling Haynes' objection. See id. Point two is overruled.

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed January 5, 1995

Do not publish