Opinion
No. 11-07-00254-CR
Opinion filed September 25, 2008. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the 104th District Court Taylor County, Texas, Trial Court Cause No. 16497B.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
The jury convicted Carrie Elaine Johnson of possession of less than one gram of cocaine. Johnson pleaded true to two prior felony convictions, and the trial court assessed her punishment at eight years confinement. We affirm. I. Background Facts On August 17, 2006, Abilene police officers executed a search warrant on an apartment in Abilene. There were three people in the living room area. Johnson was lying on a couch along the east wall, and Kenneth Hampton and Dawn Renee Zimmerlee were on a couch on the opposite wall. Drug paraphernalia was in plain sight, and during their search, the officers found traces of cocaine, a crack pipe, and pieces of a Chore Boy. Johnson admitted that she had smoked cocaine that morning and that the drug traces and paraphernalia were hers. II. Issues on Appeal Johnson challenges her conviction with three issues. Johnson argues that the evidence is legally or, alternatively, factually insufficient, and that the trial court erred by refusing to allow her to challenge the legality of the search. III. Analysis A. Sufficiency of the Evidence. Johnson argues that the evidence was insufficient because the State did not adequately link her to the cocaine found in her apartment. The State was required to prove that Johnson exercised control, management, or care over the cocaine found in the apartment and that she knew it was contraband. Brown v. State, 243 S.W.3d 141, 148 (Tex.App.-Eastland 2007, pet. ref'd). The State also must establish that Johnson's connection with the cocaine was more than fortuitous. Texas courts utilize an affirmative link rule that is designed to protect innocent bystanders from conviction merely because of their proximity to someone else's drugs. Evans v. State, 202 S.W.3d 158, 161 (Tex.Crim.App. 2006). This rule is not an independent test of legal sufficiency, but a shorthand catchphrase for a large variety of circumstantial evidence that may be considered. Id. at 161-62 n. 9. It is not the number of factors that link the defendant to the contraband but the logical force of all the evidence, direct and circumstantial, that must be considered. Id. at 162. 1. Standard of Review. To determine if the evidence is legally sufficient, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex.Crim.App. 2000). The factfinder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). The factfinder may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Id. at 414-15. 2. The Evidence. Abilene Police Officer Les Bruce testified that he was assigned to the department's Narcotics Division. On August 17, he obtained a search warrant for Johnson's apartment. When the officers entered the apartment, they found three people in the living room. Johnson was lying on a couch. Her brother, Hampton, and his girlfriend, Zimmerlee, were sitting on another couch. A fourth individual was spotted walking away from the apartment and was also detained. Officer Bruce noticed some drug paraphernalia in plain sight, and during their search, officers found traces of white powder and white rock-like substances, a crack pipe, and Chore Boy pads. Johnson repeatedly told Officer Bruce that she was just a crack smoker, that she did not sell cocaine, and that everything in the apartment belonged to her. Neither Hampton nor Zimmerlee claimed possession of any item seized for testing. Lab testing confirmed that white powder found on a coffee table in the living room was cocaine, that a clear plastic ziplock bag found under the couch Johnson was lying on contained traces of cocaine, and that a trace amount of cocaine was in Johnson's bedroom. During cross-examination, Officer Bruce acknowledged that no cocaine was found on Johnson's body, in her clothes, or on her person. Officer Bruce testified that the three people in the living room were all approximately the same distance from the coffee table and that they found a crack pipe in Zimmerlee's purse. Officer Bruce also testified that he had known Hampton for years and that he knew Hampton had been on parole. When the evidence is viewed in the light most favorable to the verdict, it is legally sufficient. The jury heard evidence that the apartment belonged to Johnson, that drug paraphernalia was in plain sight, that cocaine was found under the couch on which she was lying, that cocaine was found in her bedroom, that Johnson admitted smoking cocaine earlier that morning, and that she claimed ownership of the drugs and drug paraphernalia in her apartment. Issue One is overruled. When the evidence is viewed in a neutral light, it is factually sufficient. Johnson notes that two other people were present in the apartment, that no cocaine was found on her but Zimmerlee had a crack pipe in her purse, and that she made no attempt to escape or flee. Johnson acknowledges the testimony that she claimed possession of the drugs and paraphernalia found in her apartment but suggests that, because Hampton was on parole, she had a reason to falsely claim them. While we view the evidence in a neutral light, we must give the evidence whatever weight and probative value it could rationally convey to a jury. See Moff v. State, 131 S.W.3d 485, 489 (Tex.Crim.App. 2004). Ultimately, determining whether Johnson was being truthful or was covering for someone else is for the jury to decide. See TEX. CODE CRIM. PROC. ANN. art. 36.13 (Vernon 2007) (jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony). Because Johnson was indicted for possession of less than one gram, it was unnecessary for the jury to conclude that all of the cocaine traces found in her apartment belonged to her. The jury could have reasonably determined that Johnson was telling Officer Bruce the truth when she claimed possession of the drugs, that she owned the cocaine found under her couch, or that she owned the cocaine found in her bedroom. Issue Two is overruled. B. Challenge to the Legality of the Search. Officer Bruce testified that he obtained his search warrant based upon information he received from a confidential informant. Johnson asked him if the informant had a criminal record, and Officer Bruce objected. The trial court asked the State if Officer Bruce's statement reflected its position. The State adopted Officer Bruce's objection, and the court excused the jury to conduct a hearing. The State argued that any objection to the search warrant was untimely. Johnson responded that she was not trying to challenge the search warrant itself but was merely trying to raise an issue of credibility concerning the initial search. She indicated that the informant's motive might be suspect. The trial court held that the confidential informant's identity, including information that could help identify the informant, was inadmissible and sustained the State's objection on that basis. Johnson phrases her third issue as: "The trial court erred in refusing to allow Appellant to challenge the legality of the search during trial." The State responds that this issue was not preserved. We agree. Trial counsel specifically advised the court that she was not challenging the warrant itself. Johnson cannot now take the opposite position before this court. See TEX. R. APP. P. 33.1 (to preserve error, there must be a timely, specific request, objection, or motion). Moreover, the trial court's ruling merely prevented Johnson from eliciting information that would identify the confidential informant. It did not prevent her from challenging the informant's reliability and veracity. Johnson was allowed to ask Officer Bruce if the informant had provided him with good information before, about the informant's experience with cocaine, and whether the informant used drugs personally. Issue Three is overruled. IV. Holding The judgment of the trial court is affirmed.
See Olivarez v. State, 171 S.W.3d 283, 291 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (listing fourteen possible affirmative links that can establish possession of contraband).