Nos. 05-08-01014-CR, 05-08-01015-CR
Opinion Filed January 27, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause Nos. F-0559680-J and F-0559681-J.
Before Justices MORRIS, O'NEILL, and FILLMORE.
Opinion By Justice O'NEILL.
Appellant Roderick Kata Fuery was indicted for possession with intent to deliver cocaine (cause number F-0559680-J) and unlawful possession of marijuana (cause number F-0559681-J). A jury found appellant guilty of both offenses and made an affirmative finding that he used or exhibited a deadly weapon to facilitate commission of the offenses. The court sentenced appellant to ten years' confinement for the marijuana offense and twenty-four years' confinement for the cocaine offense. On appeal, appellant argues the evidence is legally insufficient to establish he was in possession of the drugs, and the trial court erred by allowing the State to collaterally inform the jury he was on probation for another drug offense. We affirm the trial court's judgments.
Legal Sufficiency of the Evidence
In his first issue, appellant contends the evidence is legally insufficient to support his convictions. Specifically, he claims despite his presence in the house where officers found the narcotics, other people were present at the time and no other evidence connects him to the narcotics. The State responds the jury had legally sufficient evidence to find the narcotics were in appellant's care, custody, control, or possession. In assessing the legal sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The fact finder is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.). In a possession of a controlled substance prosecution, the State must prove that: (1) the accused exercised control, management, or care over the substance; and (2) the accused knew the matter possessed was contraband. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). Regardless of whether the evidence is direct or circumstantial, it must establish the defendant's connection with the drug was more than fortuitous. Id. Mere presence at the location where drugs are found is thus insufficient, by itself, to establish actual care, custody, or control of the drugs. Id. at 162. However, presence or proximity, when combined with other evidence, either direct or circumstantial (e.g., "links"), may well be sufficient to establish that element beyond a reasonable doubt. Id. It is not the number of links that is dispositive, but rather the logical force of all of the evidence, direct and circumstantial. Id. In determining whether sufficient evidence links the appellant to the contraband, the appellate court may consider a variety of factors, including: (1) the defendant's presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant's proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt. Evans, 202 S.W.3d at 162 n. 12. Circumstantial evidence may establish sufficient links. See Frierson v. State, 839 S.W.2d 841, 849 (Tex.App.-Dallas 1992, pet. ref'd) (court can examine circumstantial factors to determine if sufficient affirmative links exist). Reviewing the facts in the light most favorable to the verdict, the following evidence establishes the legal sufficiency of appellant's convictions. On November 15, 2005, several officers from the Dallas Police Department's narcotics division were investigating a home at 1960 Pueblo Street. Officer James Lewis observed approximately fourteen people, in the span of thirty minutes, enter the home, stay a few minutes and then leave. He saw appellant answer the door each time. He testified that based on his training and experience, appellant was controlling access to the house. Based on the foot traffic in and out of the house, Officer Lewis contacted Officer Patrick Starr and Officer Jason Jarc to approach the house. When Officers Starr and Jarc got within fifteen feet of the front door, appellant slammed it. The officers then heard steel bars and cages being locked. Officer Lewis testified the house was one of the most heavily barricaded he had ever witnessed. After the door was barricaded, the officers heard people running towards the back of the house. Officer Christopher Lowe and Officer Todd Haecker were the "cover" officers during the investigation. Once they learned people were trying to escape out the back, they ran to the back and jumped the fence. They saw three people running out the back door and towards a shed. Officer Haecker detained two people in the shed. Appellant ran towards the fence once he saw the officers; however, Officer Lowe caught him. Officer Lowe then found over $1,000 in appellant's pocket. Officer Starr conducted a protective sweep of the house. He observed in plain view gallon-sized Ziploc bags of marijuana and a bag of crack cocaine that was dropped by the back door. The house smelled strongly of crack cocaine, and the kitchen was set up to cook the drug. Crack cocaine was on the counter waiting to be packaged along with stacks of money. Officer Starr also found crack cocaine, stacks of money, and guns in plain view in the living room. After officers secured the house, they contacted Officer Barry Ragsdale to obtain a search warrant. While executing the warrant, Officer Ragsdale found more marijuana, crack cocaine, scales, packaging material, weapons, bulletproof vests, and a VCR tape labeled "Gator Boys' Birthday Bash." The Gator Boys were a known gang involved in drugs. Officer Ragsdale testified the amount of drugs found was more than that associated with personal use and, along with the other items found, indicated the person running the operation was possessing drugs with intent to deliver. Despite appellant's arguments that the evidence is legally insufficient because he was not in exclusive possession of the Pueblo Street house and he was not in personal possession of the drugs, he ignores the additional independent facts and circumstances linking him to the drugs. The evidence shows appellant participated in the drug operation and did not simply have a fortuitous presence at the time. Officers observed him working the door and controlling who entered the home. Appellant also tried to flee from police. See Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.-Houston [14th Dist.] 2005, no pet.) (noting a relevant factor linking a person to contraband is whether defendant attempted to flee). When Officer Lowe apprehended him, appellant had over $1,000 in his pocket. Id. (finding defendant with a large amount of cash is another factor linking him to contraband). Further, officers noticed the smell of drugs, saw scales and baggies for packaging, and observed large amounts of marijuana and crack cocaine in the house in plain view. Id. (holding contraband in plain view, odor of drugs, and presence of drug paraphernalia indicate links and reasonable inferences that the person knew of the contraband's existence and exercised control over it). Based on the record, we conclude the evidence is legally sufficient to support the jury's verdict on both counts. Appellant's first issue is overruled. Admission of Evidence of Appellant's Previous Drug Charge
In his second issue, appellant argues the trial court abused its discretion by allowing the State to introduce evidence that appellant was on probation for another cocaine offense. The State responds the trial court properly allowed the testimony to dispel any false impression left in the jury's mind and to establish his knowledge and intent. Alternatively, error, if any, was harmless. During the State's cross-examination, appellant was shown a picture of crack cocaine found at the house and asked if he recognized it. He responded that he recognized it to be a white substance and only recognized it to be crack "because of the testimony." Otherwise, he would not know exactly what it was. The State felt appellant was trying to bolster his earlier testimony that he had not recognized the presence of crack cocaine in the house and sought permission to introduce evidence of appellant's deferred adjudication, which arose from an incident in which he possessed cocaine. Both sides presented argument outside the presence of the jury. Appellant argued the State did not ask whether he was generally familiar with crack cocaine but whether he knew what "this" was, in reference to the powder substance in the picture. By answering he only knew based on the previous testimony, he was not leaving a false impression with the jury. Further, admission of his deferred adjudication was more prejudicial than probative. The court allowed the State to question appellant regarding his deferred adjudication. Assuming without deciding the trial court erred by allowing the testimony, we conclude any error was harmless. A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance the error did not influence the jury or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); see also Tex. R. App. P. 44.2(b). Further, the presence of overwhelming evidence supporting the finding in question can be a factor in the evaluation of harmless error. Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002). Given the evidence linking appellant to the drugs, we conclude the admission of appellant's deferred adjudication was insignificant and did not influence the jury's verdict. Despite appellant's attempt to argue the jury found him guilty in this case based on his previous deferred adjudication, we cannot agree based on the record before us. Appellant's second issue is overruled. Conclusion
After overruling appellant's two issues, we affirm the trial court's judgments.