Billy York Eppinger v. The State of Texas--Appeal from County Court at Law No. 2 of Bell County

Eppinger TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00669-CR
Billy York Eppinger, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 2 OF BELL COUNTY
NO. 2C94-1621, HONORABLE JOHN BARINA, JUDGE PRESIDING

A jury convicted appellant, Billy York Eppinger, of possessing less than two ounces of marihuana. See Tex. Health & Safety Code 481.121(a),(b)(1) (West Supp. 1996). (1) The court assessed punishment of imprisonment for 180 days and a fine of $750. On appeal, Eppinger contends that the trial court erred by admitting allegedly irrelevant evidence. Additionally, Eppinger contends that the evidence was insufficient to support his conviction. We will affirm the judgment of conviction.

On February 16, 1994, Eppinger was arrested for possession of marihuana during a search of his home conducted by Temple police officers. Following days of surveillance, the police officers executed the search warrant based on the purchase of marihuana by a confidential informant from appellant. As police officers entered the house, appellant fled the front room and attempted to leave through the back door. Officers apprehended appellant outside. A search of appellant revealed a list of individuals with dollar amounts next to each name, as well as cash totaling $6,621 in small bills. A search of the front room yielded a police scanner and rolling papers commonly used to smoke marihuana. In the middle room, the police found scales, a plastic bag containing seven smaller bags of marihuana, a marihuana cigarette on a chair, and photographs depicting appellant and others in front of a wall with "MERRY X-MAS" spelled out in twenty-dollar bills. In appellant's bedroom, officers recovered $200 worth of food stamps and more rolling papers.

Appellant challenges the trial court's admission of State's Exhibits 2 through 7, photographs of appellant and others in appellant's residence standing before a display of twenty-dollar bills tacked together to spell-out "MERRY X-MAS," contending that the photographs were not relevant to the marihuana possession charge. Additionally, appellant contends that the photographs should have been excluded because the danger of undue prejudice outweighed their probative value. At trial, appellant objected to the evidence only on the grounds of relevancy. Accordingly, that is the only issue this Court will consider. See Tex. R. App. P. 52(a).

Evidence is relevant if it has the tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Tex. R. Crim. Evid. 401. Rule 402 provides that irrelevant evidence is inadmissible. Tex. R. Crim. Evid. 402. Whether evidence is relevant to any issue in the case lies within the sound discretion of the trial court. Paz v. State, 749 S.W.2d 626, 629 (Tex. App.--Corpus Christi 1988, pet ref'd). A trial court does not abuse its discretion as long as its ruling lies within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d. 372, 391 (Tex. Crim. App. 1990).

In order to prove that appellant possessed the marihuana, the State was required to prove that (1) he exercised care, control, and management over the contraband; and (2) that he knew the substance was contraband. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985). When the State's evidence is mainly circumstantial, evidence tending to show an accused is dealing in drugs is admissible to show the essential element of knowledge in a possession of controlled substance prosecution. Arnott v. State, 498 S.W.2d 166, 176-177 (Tex. Crim. App. 1973). The photographs were used to show that appellant had been in possession of a large amount of money, which related directly to whether or not he was involved in trafficking drugs. Additionally, the pictures were not introduced in a vacuum. They were introduced following evidence of over $6,000 found on appellant's person, to which appellant did not object, and Officer Dorsey's testimony of the amount and denominations of money usually found in the possession of drug dealers. Further, appellant's brother testified that he alone had been trafficking in drugs. The pictures contradicted this testimony by showing appellant in possession of large amounts of money around Christmas, prior to his brother's arrival. We hold that the trial court did not abuse its discretion in admitting the pictures into evidence. Accordingly, we overrule appellant's first point of error.

Appellant contends in his second and third points of error that the evidence is legally and factually insufficient to support appellant's conviction for the possession of marihuana. In determining whether the evidence is legally sufficient to support the conviction, we will consider the evidence in the light most favorable to the jury's verdict and then determine whether any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 n.12 (1979); Valdez v. State, 776 S.W.2d 162, 165 (Tex. Crim. App. 1989), cert. denied, 495 U.S. 963 (1990). This standard of review is applicable in both direct and circumstantial evidence cases. Herndon v. State, 787 S.W.2d 408, 409 (Tex. Crim. App. 1990).

In conducting a factual sufficiency review, we view all of the evidence equally, including the testimony of defense witnesses and the existence of alternate hypotheses. We do not view the evidence in the light most favorable to the prosecution as in a legal-sufficiency review. We will sustain appellant's point of error only if the finding of the possession of controlled substance is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, No. 450-94, slip op. at 10, n.10, 11 (Tex. Crim. App. Jan. 31, 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd untimely filed).

The State was required to prove that appellant exercised care, control, and management over the contraband and that he knew the substance was contraband. Possession of the contraband need not be exclusive and evidence which shows the accused jointly possessed the contraband with another is sufficient to support a conviction. McGoldrick v. State, 682 S.W.2d at 578; Rodriguez v. State, 635 S.W.2d 552, 553 (Tex. Crim. App. 1982). The evidence must affirmatively link the accused to the contraband in such a manner that it can be concluded that he had knowledge of the contraband as well as control over it. McGoldrick, 682 S.W.2d. at 578; Rodriguez, 635 S.W.2d at 553. Mere presence alone at a place where the contraband is being used or possessed by others does not justify a finding that a person is a party to an offense. Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988).

The Court of Criminal Appeals has identified factors tending to affirmatively link the accused to the contraband. Factors relevant to the present case include whether: (1) the contraband was in plain view; (2) the contraband was conveniently accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the place where the contraband was found was enclosed; (5) the strong odor of marihuana was present; (6) paraphernalia to use the contraband was in view of or found on the accused; (7) conduct by the accused indicated a consciousness of guilt; and (8) the accused had a special connection to the contraband. Whitworth v. State, 808 S.W.2d 566, 569 (Tex. Crim. App. 1991). The number of factors present is less important than the logical force of the factors, alone or in combination, in establishing the elements of the offense. Trejo v. State, 766 S.W.2d 381, 385 (Tex. App.--Austin, 1989, no pet.).

In Eppinger's case, the evidence showed the following factors: (1) the marihuana was found in plain view on a chair in the living room; (2) appellant was present at the place searched, which was his residence; (3) scales, rolling papers and other paraphernalia associated with dealing marihuana were in view of appellant; (4) appellant sold marihuana to a confidential informant at the residence on the date the search warrant was executed, demonstrating a special connection with contraband; (5) appellant fled from the room where the marihuana was located when police entered his residence; and (6) "drug notes" were found on appellant's person as well as over $6,000 in small bills.

From these facts, the jury could conclude that appellant exercised actual care, custody, control or management over the marihuana and that he knew the substance was marihuana. The only evidence that directly contradicts this conclusion was offered by appellant's brother, presently serving a life sentence for murder, who testified that it was his marihuana and he was selling the drugs. The jury is entitled to accept or reject all or any part of the testimony by witnesses for the State or the accused. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 872 (1988). Reconciliation of evidentiary conflicts is solely a function of the trier of fact, and if a conflict exists in the inferences of evidence, this Court must presume that the jury resolved any conflict in favor of the prosecution. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1990); Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982). The jury could reasonably conclude that the testimony by appellant's brother was not credible based on this witness' prior convictions and testimony.

We hold the evidence legally and factually sufficient to support the jury's verdict that appellant possessed the marihuana. We therefore overrule appellant's second and third points of error.

Having overruled all of appellant's points of error, we affirm the trial court's judgment.

 

Bea Ann Smith, Justice

Before Justices Powers, Jones and B. A. Smith

Affirmed

Filed: June 12, 1996

Do Not Publish

1. This offense took place in 1994 and is governed by the law in effect at that time. Because subsequent changes to the Health and Safety Code have no impact on the issues raised by this appeal, we cite the current code for convenience.

oldrick v. State, 682 S.W.2d at 578; Rodriguez v. State, 635 S.W.2d 552, 553 (Tex. Crim. App. 1982). The evidence must affirmatively link the accused to the contraband in such a manner that it can be concluded that he had knowledge of the contraband as well as control over it. McGoldrick, 682 S.W.2d. at 578; Rodriguez, 635 S.W.2d at 553. Mere presence alone at a place where the contraband is being used or possessed by others does not justify a finding that a person is a party to an offense. Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988).

The Court of Criminal Appeals has identified factors tending to affirmatively link the accused to the contraband. Factors relevant to the present case include whether: (1) the contraband was in plain view; (2) the contraband was conveniently accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the place where the contraband was found was enclosed; (5) the strong odor of marihuana was present; (6) paraphernalia to use the contraband was in view of or found on the accused; (7) conduct by the accused indicated a consciousness of guilt; and (8) the accused had a special connection to the contraband. Whitworth v. State, 808 S.W.2d 566, 569 (Tex. Crim. App. 1991). The number of factors present is less important than the logical force of the factors, alone or in combination, in establishing the elements of the offense.