Frederick D. Wilkins v. The State of Texas--Appeal from 114th District Court of Smith County

NO. 12-04-00118-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

FREDERICK D. WILKINS, APPEAL FROM THE 114TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Frederick D. Wilkins appeals his conviction for possession of four hundred grams or more of cocaine. Appellant raises two issues on appeal. We affirm.

Background

On July 16, 2003, Highway Patrol Officer Corporal Wayne Hellen stopped a vehicle on Interstate 20 in Smith County, Texas for following too closely to a tractor-trailer rig. The car was a rental vehicle. The driver of the vehicle was Berdell Willis. Willis was listed as the renter on the rental agreement he showed to Hellen. Appellant, who was riding in the front passenger seat, was listed on the rental agreement as an authorized driver. The rental agreement indicated that Willis had rented the car the day before.

According to Hellen, Willis appeared very nervous his hands were trembling and the artery in his neck was visibly throbbing. Although Appellant appeared to be sleeping, Hellen stated that he thought Appellant was feigning sleep to avoid having to talk to him.

Willis told Hellen that he was returning home to Mississippi after having taken Little Raymond, his eight-year-old nephew, to visit his grandmother in Dallas. Willis further stated that he and Appellant had only been in Dallas a few days. Appellant told Hellen that he and Willis had gone to Dallas to pick up Little Raymond to take him to his mother in Mississippi. However, according to Appellant, when he and Willis could not find Little Raymond, they left Dallas and headed for Mississippi.

After noticing a strong air freshener smell emanating from the car, Hellen asked Willis for consent to search the vehicle. When Willis declined, Hellen called dispatch to have a drug dog sniff the car for narcotics. Subsequently, Smith County Deputy John Smith and his drug dog arrived on the scene. Upon Smith s arrival, Hellen asked Willis and Appellant to get out of the vehicle. Hellen noted that when Appellant exited the vehicle, tears began running down his face. // Smith s dog then sniffed the vehicle and alerted to it, indicating the presence of narcotics, which prompted Hellen and Smith to conduct a search of the vehicle. During the search, Smith located a brick of cocaine with four plastic bags over it underneath the front passenger seat. The cocaine weighed more than four hundred grams and was very pure.

Appellant was charged with possession of four hundred grams or more of cocaine and pleaded not guilty. The matter proceeded to jury trial, and, ultimately, the jury found Appellant guilty as charged and assessed Appellant s punishment at imprisonment for ten years. This appeal followed.

Evidentiary Sufficiency

In his first issue, Appellant argues that the evidence was legally insufficient to support the jury s verdict. In his second issue, Appellant contends that the evidence was factually insufficient to support the jury s verdict.

Legal Sufficiency

Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-787, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App. San Antonio 1999, no pet.). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the jury s verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-218, 72 L. Ed. 2d 652 (1982).

The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would include one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State s burden of proof or unnecessarily restrict the State s theories of liability, and adequately describes the particular offense for which the defendant is tried. Id.

To support a conviction for possession of a controlled substance, the State must show (1) that the accused exercised actual care, control, or custody of the substance, (2) that he was conscious of his connection with it, and (3) that he possessed the substance knowingly or intentionally. See Tex. Health & Safety Code Ann. 481.103(3)(D), 481.115(f) (Vernon 2003 & Supp. 2004 05); Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). The evidence used to satisfy these elements can be either direct or circumstantial. Id.

Be it by direct or circumstantial evidence, the State must establish that the accused s connection with the substance was more than just fortuitous. Id. However, when the contraband is not found on the accused s person or is not in the accused s exclusive possession, additional facts must affirmatively link the accused to the contraband. See Jones v. State, 963 S.W.2d 826, 830 (Tex. App. Texarkana 1998, pet. ref d). The affirmative link ordinarily emerges from an orchestration of several factors and the logical force they have in combination. Id.

Among the non-exclusive factors that may be considered when evaluating affirmative links are (1) whether the contraband was in plain view or recovered from an enclosed place; (2) whether the accused was the owner of the premises or had the right to possess the place where the contraband was found or was the owner or driver of the automobile in which the contraband was found; (3) whether the accused was found with a large amount of cash; (4) whether the contraband was conveniently accessible to the accused or found on the same side of the vehicle as the accused was sitting; (5) whether the contraband was found in close proximity to the accused; (6) whether a strong residual odor of the contraband was present; (7) whether the accused possessed other contraband when arrested; (8) whether paraphernalia to use the contraband was in view or found on the accused; (9) whether the physical condition of the accused indicated recent consumption of the contraband in question; (10) whether conduct by the accused indicated a consciousness of guilt; (11) whether the accused attempted to escape or flee; (12) whether the accused made furtive gestures; (13) whether the accused had a special connection to the contraband; (14) whether the occupants of the premises gave conflicting statements about relevant matters; (15) whether the accused made incriminating statements connecting himself to the contraband; (16) the quantity of the contraband; and (17) whether the accused was observed in a suspicious place under suspicious circumstances. See Lassaint v. State, 79 S.W.3d 736, 740 41 (Tex. App. Corpus Christi 2002, no pet.).

In the case at hand, Hellen testified that Interstate 20 was a heavily traveled narcotics corridor and that most drug couriers use rental cars to avoid having their own vehicles subject to seizure if they are apprehended. Hellen further testified that Dallas has become a narcotics hub where people come from around the country to pick up drugs and take them back to their hometown. The record reflects that Appellant and Willis were stopped on Interstate 20 in a rental car and that Appellant s name appeared on the rental application as an authorized driver and that Appellant s driver s license number was typed onto the rental agreement. See, e.g., Mohmed v. State, 977 S.W.2d 624, 627 (Tex. App. Fort Worth 1998, pet. ref d). The application indicated that Willis had rented the car the day before. Willis and Appellant gave conflicting stories about the underlying reasons for their trip from Mississippi to Dallas. An overwhelming scent of air fresheners emanated from the car, which Hellen stated is an indicator of a common practice employed by drug traffickers to cut down the smell of the drugs. Hellen testified that Appellant appeared to be feigning sleep to avoid having to talk to Hellen. Moreover, when Appellant exited the vehicle, tears began running down his face. Hellen further stated that the cocaine Smith located was found underneath the passenger seat in which Appellant was sitting and was a large amount of cocaine with a high level of purity weighing two and one-half pounds.

Examining the aforementioned evidence in the light most favorable to the jury s verdict and in light of the nonexclusive factors set forth above, we conclude that the jury could have reasonably determined beyond a reasonable doubt that Appellant knowingly and intentionally possessed the cocaine located under the car seat in which he was traveling, that he exercised actual care, custody, or control of the cocaine, and that he was conscious of his connection with it. Therefore, we hold that the evidence was legally sufficient to support the jury s verdict. Appellant s first issue is overruled.

Factual Sufficiency

Turning to Appellant s contention that the evidence was not factually sufficient to support the jury s verdict, we must first assume that the evidence was legally sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Although we are authorized to disagree with the jury s determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d at 133, our evaluation should not substantially intrude upon the jury s role as the sole judge of the weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury s verdict on such matters is generally regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App. El Paso 1996, pet. ref d). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). //

A verdict will be set aside only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust. Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002); see Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003). A clearly wrong and manifestly unjust verdict occurs where the jury's finding shocks the conscience, or clearly demonstrates bias. Zuniga, 144 S.W.3d at 481.

As the court of criminal appeals explained in Zuniga, There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in its finding of guilt beyond a reasonable doubt? See id. at 484.

In the case at hand, in addition to the evidence already discussed, the record reflects that some factors tend to support that Appellant could not be affirmatively linked to the cocaine in question. For instance, as Appellant notes in his brief, (1) the cocaine was not in plain view, (2) Appellant had not signed or initialed the rental agreement, (3) Appellant did not have a large amount of cash on his person when he was arrested, (4) Hellen stated that he could not smell the cocaine when he was speaking to Willis and Appellant, (5) Appellant did not possess any contraband or drug paraphernalia at the time of his arrest, (6) Appellant was not impaired due to the consumption of narcotics, (7) Appellant did not attempt to escape, and (8) Appellant made no furtive gestures or incriminating statements.

We have reviewed the record in its entirety. We iterate that our evaluation should not substantially intrude upon the jury s role as the sole judge of the weight and credibility of witness testimony, see Santellan, 939 S.W.2d at 164, and where there is conflicting evidence, the jury s verdict on such matters is generally regarded as conclusive. See Van Zandt, 932 S.W.2d at 96. We further note that there is no set formula for finding an affirmative link, but rather affirmative links are established by a consideration of a totality of the circumstances. See Hyett v. State, 58 S.W.3d 826, 830 (Tex. App. Houston [14th Dist.] 2001, pet. ref d).

Given the circumstances in the instant case, we conclude that the jury was entitled to find that the evidence tending to link Appellant to the cocaine in question was of greater consequence than the evidence not tending to so link Appellant. As to evidence concerning whether Appellant or Willis cried prior to the search of the vehicle, the jury was entitled to find that the facts Hellen related concerning his observation of Appellant on the night in question more accurately portrayed the events that had, in fact, transpired as opposed to the observation noted by Smith in his testimony. See, e.g., Thompson v. State, 54 S.W.3d 88, 97 (Tex. App. Tyler 2001, pet. ref d). Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury s finding, has not revealed to us any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant s conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the jury s verdict. Appellant s second issue is overruled.

Disposition

Having overruled Appellant s issues one and two, we affirm the trial court s judgment.

SAM GRIFFITH

Justice

Opinion delivered August 3, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)