Nos. 04-04-00485-CR, 04-04-00486-CR
Delivered and Filed: January 19, 2005. DO NOT PUBLISH.
Appeal from the 218th and 81st Judicial District Courts, Atascosa County, Texas, Trial Court Nos. 03-03-0104-Cra 03-03-0105-Cra, Honorable Donna S. Rayes, Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
CATHERINE STONE, Justice.
Appellant, Guadalupe Ramirez, Jr., was charged with possession of a controlled substance and possession of a firearm by a felon. The causes were tried together before a jury which found Ramirez guilty. After pleading true to seven enhancement paragraphs as a repeat offender, Ramirez was sentenced by a jury to twenty years confinement and a $10,000 fine for the offense of possession of a controlled substance, and sixty-one years confinement and a $10,000 fine for the offense of possession of a firearm by a felon. Ramirez appeals on four issues, contending the evidence presented at trial was legally and factually insufficient to support his convictions. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgments in this memorandum opinion under Tex.R.App.P. 47.4.
Background
Upon receiving a tip from a confidential informant that Ramirez had been selling cocaine from his residence, the narcotics task force conducted an investigation. The task force obtained a search warrant for Ramirez's residence after one of its confidential informants successfully purchased cocaine from Ramirez, and executed the search warrant. Ramirez, his wife, Sarah Esparza, and his daughter were present at the time of the search. During the search, officers found a scale with less than one gram of cocaine in it, drug paraphernalia, and two firearms — an unloaded .22 pistol and a loaded .357 pistol — between the mattress and the boxspring in a bedroom that Ramirez shared with his wife. The bedroom also contained mail addressed to Ramirez, a wallet with Ramirez's ID in it, the trace amount of cocaine in the scale, $450 cash, and a notebook with "Cacho" written on the back of it. Esparza testified that "Cacho" is Ramirez's nickname. The notebook contained notes of various transactions (e.g. "They owe me" followed by a dollar amount) in more than one handwriting, and also contained listings of debts. Officer Ward testified that in his experience as a narcotics agent, the notations found in the notebook, such as "1G, 1G, one 20, one 20, 1G, one 20, 1G" were ledgers of drug transactions, with "G" reflecting that a gram of cocaine had been sold on the occasion. The State also argued that a notation found in the notebook, "Nick-20 for 357," indicated that an individual named Nick had sold Ramirez the .357 pistol for $20 worth of drugs. The notation was later crossed out and "paid" was written next to it, indicating the transaction had been completed. Two witnesses testified why the firearms were located under Ramirez's mattress: Esparza, and Nicholas Lopez, a friend of the family. Lopez testified that he, not Ramirez, possessed the firearms. Lopez stated that he purchased the .22 pistol from a man in a convenience store parking lot, and that he was in possession of the .357 pistol because he was interested in purchasing it. Lopez testified that two to three days before the search, he was on his way to a shooting range when Ramirez's daughter phoned him, asking for a ride to San Antonio. Lopez stopped by the Ramirez residence to pick up Ramirez's daughter and stated that he left the firearms on an end table near the couch. Lopez testified that both firearms were unloaded, the only person home at the time was Ramirez's mother, and he did not talk to anyone about leaving the firearms there. Sarah Esparza testified, however, that Lopez had not been truthful about his ownership of the firearms. She testified that he had owned the firearms for some time because he had brought them to the house on previous occasions. Esparza also testified that she was home when Lopez stopped by, Lopez asked her permission to leave the firearms on the table, and that this occurred the evening before the search. Esparza explained that she planned to keep the firearms because she was addicted to cocaine and wanted to pawn them for drugs. Esparza testified that the firearms were under the mattress because she hid them there while Ramirez was sleeping. When asked how the .357 pistol became loaded, Esparza said she must have loaded it when she was high. With regard to the cocaine found in the scale on the dresser, Esparza testified that the scale belonged to her and that she used the scale when she was doing cocaine. Esparza testified that Ramirez knew she was addicted to cocaine and had tried to convince her to seek help from a rehabilitation center. Esparza stated that she "hid" the scale so Ramirez would not know she was continuing to use cocaine. Legal and Factual Sufficiency
In four issues on appeal, Ramirez contends the evidence is legally and factually insufficient to support his convictions for possession of a controlled substance and for possession of a firearm by a felon. We disagree. A. Standard of Review
In reviewing the legal sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998), cert. denied, 526 U.S. 1070 (1999). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. When performing a legal sufficiency review, we may not act as a thirteenth juror, reevaluating the weight and credibility of the evidence and substituting our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1131 (2000). In contrast, when reviewing the factual sufficiency of the evidence to support a conviction, we view all of the evidence in a neutral light, favoring neither party. Zuniga v. State, 144 S.W.3d 477, 482 (Tex.Crim.App. 2004). 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 finding guilt beyond a reasonable doubt? Id. at 484. There are two ways in which evidence may be factually insufficient. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id. at. 485. In a factual sufficiency review, we give deference to the jury's determinations, including determinations involving the credibility and demeanor of witnesses. Id. at 484; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). We may not substitute our judgment for that of the jury. Zuniga, 144 S.W.3d at 482. We will not set aside the judgment unless the jury's verdict was clearly wrong and manifestly unjust, i.e., where the jury's finding "shocks the conscience" or "clearly demonstrates bias." Id. at 481. B. Possession of a Controlled Substance
In his first and second issues, Ramirez contends the evidence was legally and factually insufficient to support his conviction for possession of cocaine. Ramirez argues that because he did not have exclusive control over the bedroom where the cocaine was found, the State was required to affirmatively link him to the cocaine, and failed to do so. Under the Texas Controlled Substances Act, a person commits an offense if he knowingly or intentionally possesses a controlled substance other than a valid prescription. Tex. Health Safety Code Ann. § 481.115(a) (Vernon 2003). The offense constitutes a state jail felony if the amount of the controlled substance is less than one gram. See id. § 481.115(b). A person possesses a controlled substance if he: 1) exercises care, control, and management of the substance; and 2) knows that the substance is contraband. Martin v. State, 753 S.W.2d 384, 386 (Tex.Crim.App. 1988). Control over the contraband need not be exclusive, but can be exercised jointly by more than one person. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App. 1985); Puente v. State, 888 S.W.2d 521, 526 (Tex.App.-San Antonio 1994, no pet.). However, if the accused is not in exclusive possession of the place where the contraband is found, it cannot be concluded that the accused had knowledge of or control over the contraband; additional independent facts and circumstances must affirmatively link the accused to the contraband. Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App. 1986). The affirmative links between the accused and the contraband must establish that the accused's connection with the contraband was more than just "fortuitous." Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). Numerous factors that constitute affirmative links have been identified by the courts and include whether the defendant was present when the search warrant was executed; whether the contraband was in plain view; whether the defendant physically possessed narcotics or appeared to be under the influence of narcotics; whether the amount of contraband found is enough to indicate the defendant knew of its presence; whether items found in a room may link the defendant to that room; whether the defendant owned or had the right to possess the place where the drugs were found; whether the place where the drugs were found was enclosed; whether the defendant made incriminating statements, furtive gestures, or tried to flee; and the defendant's proximity to and accessibility to the drugs. See, e.g., Armstrong v. State, 82 S.W.3d 444, 448 (Tex.App.-Austin 2002, pet. ref'd); Chisum v. State, 988 S.W.2d 244, 248 (Tex.App.-Texarkana 1998, pet. ref'd); Pettigrew v. State, 908 S.W.2d 563, 571 (Tex.App.-Fort Worth 1995, pet. ref'd). However, there is no set formula of facts that necessitate a finding of an affirmative link sufficient to support an inference of knowing possession. Hyett v. State, 58 S.W.3d 826, 830 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). The State's evidence need not exclude every reasonable hypothesis other than the defendant's guilt, but it must show facts and circumstances that, viewed in the totality of the circumstances, indicate the defendant's knowledge and control over the drugs. See Brown, 911 S.W.2d at 748; Hyett, 58 S.W.3d at 830. The State presented several affirmative links to show Ramirez knowingly possessed and controlled the cocaine. Ramirez resided in and was present at the house when the search warrant was executed. Mail addressed to Ramirez, a wallet with his ID in it, and a notebook with his name written on it were found in the same bedroom as the cocaine. In addition, other drug paraphernalia was located in the house, which supports the jury's conclusion that Ramirez knew the substance was contraband. See Joseph v. State, 897 S.W.2d 374 (Tex.Crim.App. 1995) (presence of drug paraphernalia in home with trace amounts of cocaine supported conclusion the defendant knew he possessed cocaine). According to Esparza, Ramirez knew she was addicted to cocaine, and cocaine was often in the house because she was "always high." Although Esparza testified she "hid" the scale, the cocaine was found in open view in Ramirez's bedroom, on the same dresser with his ID and wallet. Viewing this evidence in a light most favorable to the jury's verdict, a rational jury could have found sufficient affirmative links between Ramirez and the cocaine to find the essential elements of the offense beyond a reasonable doubt. Puente, 888 S.W.2d at 526. A neutral review of the evidence likewise demonstrates that there is factually sufficient evidence to support the jury's verdict. Zuniga, 144 S.W.3d at 482. Ramirez's first and second issues are therefore overruled. C. Unlawful Possession of a Firearm by a Felon
Section 46.04 of the Texas Penal Code provides that it is unlawful for a convicted felon to possess a firearm "after conviction and before the fifth anniversary of [his] release from confinement following conviction of the felony." Tex. Pen. Code Ann. § 46.04(a) (Vernon Supp. 2004). The only element Ramirez contests is "possession." Ramirez contends the evidence was insufficient to support his conviction because he was not in exclusive possession of the bedroom where the firearms were located, and because additional facts and circumstances were insufficient to affirmatively link him to the firearms. "Possession" means "actual care, custody, control, or management." Id. § 1.07(a)(39). A person commits a possession offense only if he voluntarily possesses the prohibited item. See Tex. Pen. Code. Ann. § 6.01(a) (Vernon 2003). Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control. Id. § 6.01(b). When a defendant's possession of contraband is not exclusive, the State may prove knowing possession by evidence affirmatively linking the defendant to the contraband. Brown, 911 S.W.2d at 747. An affirmative link may be established through direct or circumstantial evidence. Id. Viewing the evidence in the light most favorable to the verdict, we find there was sufficient evidence affirmatively linking Ramirez to the firearms. Ramirez resided in the bedroom where the firearms were located. The firearms were located under the mattress where he slept and were easily accessible to him. Further, a notebook with Ramirez's nickname, "Cacho," written on it was also in the bedroom, with a notation "Nick-20 for 357." Although the notebook contained more than one handwriting, it was located in Ramirez's bedroom and had Ramirez's nickname written on it. The jury could reasonably infer that the notebook belonged to Ramirez, that the notation described purchase of the .357 pistol, and that Ramirez knew of the firearms' existence. There was sufficient evidence for the jury to reasonably conclude Ramirez knowingly possessed the firearms as alleged. See id. Ramirez's third issue is therefore overruled. A neutral review of the evidence also supports that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484. Upon review of all of the evidence, we hold the evidence was sufficient to affirmatively link Ramirez to the firearms and to show that he exercised care, custody, control, or management over the firearms. See Brown, 911 S.W.2d at 747. Lopez and Esparza testified that the firearms did not belong to Ramirez and that the guns were hidden under Ramirez's mattress without his knowledge, but the jury had to resolve inconsistencies in their testimony. Lopez and Esparza disagreed as to the date the firearms were left at the house, whether they were owned by Lopez, and whether Lopez spoke with Esparza about leaving them in the house. Esparza testified she remembered placing the firearms under the mattress, but she also admitted she had memory problems at that time, stating "I was always high from like the morning until night. I would stay up for days." As the fact finder, the jury may choose to believe or disbelieve all or any portion of the witness' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986), cert. denied, 488 U.S. 872 (1988). Moreover, the jury has the exclusive responsibility of reconciling conflicts in the testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832 (1997). Here, the jury chose not to believe the testimony of Esparza and Lopez, and we will not substitute our judgment for that of the jury. Cain, 958 S.W.2d at 407 (holding that under a factual sufficiency review, "[a] court of appeals may not reverse a jury's decision simply because it disagrees with the result; the appellate court must defer to jury findings"). The jury also considered evidence that the firearms were located under Ramirez's mattress, were easily accessible to him, and that the notebook contained the notation "Nick-20 for 357." The proof of guilt is not so obviously weak as to be manifestly unjust or shock the conscience. Zuniga, 144 S.W.3d at 481. Upon consideration of the evidence as a whole, we conclude the evidence is factually sufficient to support Ramirez's conviction. Ramirez's fourth issue is overruled. Conclusion
After a review of all of the evidence, we hold the evidence is legally and factually sufficient to support the jury's verdict. We overrule Ramirez's issues on appeal and affirm the trial court's judgments.