Anthony Carl Thomas v. State

• Court: Court of Appeals of Texas
• Decided: May 4, 2006
• Docket: 14-05-00754-CR
• Status: Published

Opinion

Affirmed and Opinion filed May 4, 2006

Affirmed and Opinion filed May 4, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00754-CR

ANTHONY CARL THOMAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 988,950

O P I N I O N

A jury found appellant Anthony Carl Thomas guilty of felony possession with intent to deliver a controlled substance, and the court sentenced him to thirty years= confinement in the Texas Department of Criminal JusticeCInstitutional Division.  In his sole point of error, appellant contends that the evidence is legally insufficient to support his conviction.  We affirm.

Background

On May 25, 2004, Officer Fred Wood, Jr. of the Narcotics Division of the Houston Police Department received a tip that appellant was dealing heroin in the Third Ward.  The informant provided a description of appellant, the car he was driving, and several locations where appellant might be.  Wood, who was not in uniform or driving a marked vehicle, located appellant=s red Cadillac, which matched the informant=s description, in the parking lot of a Jack In The Box fast food restaurant.  Wood testified that he saw a black male exit the car from the passenger=s side and walk into the restaurant; however, the man did not match the informant=s description of appellant.  According to Wood, a white male then climbed into the passenger=s side of the car and the driver pulled out of the parking lot.  Wood testified that he tried to follow the car but lost it in traffic.

According to Wood, the Cadillac returned to the Jack In The Box about five minutes later and the same white male exited from the passenger=s side.  Wood testified that the driver then pulled out of the lot heading west on

Richmond Avenue

but immediately made a U-turn.  Wood followed the car for about ten blocks, at which point it pulled over to a sidewalk where a young black male was standing.  Wood testified that the young man leaned into the passenger=s side window for several seconds and that after he walked away, the driver made another U-turn on Richmond, heading west past the Jack In the Box.  Wood testified that he suspected the white male and the young black male had bought drugs.

Wood testified that he continued to follow the Cadillac, which eventually parked by the front doors of a nearby office building.  Wood saw appellant exit the car and enter the building and testified that appellant matched the description he had received from the informant.  Wood also testified that after about five minutes, appellant circled the office building in the Cadillac and then drove back to the Jack In The Box.  According to Wood, appellant went inside the restaurant and emerged a few minutes later accompanied by his original passenger.  Wood testified that both men then got into the Cadillac and appellant drove back to the office building.                                    

According to Wood, appellant entered the office building and remained inside for about an hour, during which time Wood observed him through an upstairs window.  Appellant=s passenger stayed with the car but never sat in the driver=s seat.  Wood testified that when appellant got back in the car, he sat in the driver=s seat and drove east on Richmond.  Wood testified that by this time, several other narcotic officers had arrived on the scene and were tracking appellant in unmarked vehicles or hidden marked vehicles.  Wood testified that he asked a patrol officer in a marked car to stop appellant based on the information he had received from the informant and the two suspected drug transactions.

According to Wood, instead of pulling over when the patrol officer turned on his red lights, appellant remained in the center lane and began to drive extremely slowly.  Wood testified that he was concerned that appellant was not going to stop and that he was observing the Cadillac at all times.  Wood testified that the Cadillac nearly stopped in the center lane and that he suspected the occupants might attempt to run; ultimately, however, appellant pulled over very slowly to the right lane.  Wood stated that he did not see appellant make any furtive movements inside the car and that appellant was generally cooperative.  Wood also testified that when he questioned appellant, appellant denied that his nickname was ADirty,@ which contradicted what the informant and others had told Wood.  Wood also stated that appellant denied picking up the white male and interacting with the young black male on the sidewalk. 

While Wood was questioning appellant, another officer arrested his passenger, Billy Washington, after discovering that Washington was carrying powdered heroin in a small paper bag inside his shoe.  Appellant denied knowing anything about Washington=s contraband, and he gave his written and oral consent for officers to search the Cadillac.  Wood=s partner, Officer Frank Scoggins, searched the car and found a black 35-millimeter film canister in the driver=s side door pocket.  The canister contained seventeen plastic bags, each filled with a brown tar-like substance that tested positive for heroin.^[1]  Wood testified that he arrested appellant after Scoggins showed him the heroin.  Wood also testified that he found two rolls of cash, totaling $615, in appellant=s front pants pockets.   Scoggins testified that the Cadillac was registered to appellant and that he did not find any other contraband inside the car.  Officer Robert Cambric of the Houston Police Department testified that although no latent fingerprints were found on the film canister, the plastic bags, or the paper bag, prints are often undetectable on such surfaces.

Appellant called Washington as a defense witnesses, but Washington invoked his Fifth Amendment right not to testify.  Appellant did not testify in his own defense.  The jury found appellant guilty of possession with intent to deliver a controlled substance, as charged in the indictment.  Appellant pleaded Atrue@ to two enhancement allegations, and the trial court sentenced him to thirty years= incarceration.

Standard of Review

In evaluating the legal sufficiency of the evidence, we must view 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 offense beyond a reasonable doubt.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).  This standard of review applies to cases involving both direct and circumstantial evidence.  King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).  Although we consider all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the jury.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence.   Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).

Analysis

To prove unlawful possession of a controlled substance, 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.  Tex. Health & Safety Code Ann. ' 481.002(38), 481.112(a) (Vernon 2003); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005).  Whether this evidence is direct or circumstantial, it must establish that the accused=s connection with the drug was more than just fortuitous.  Poindexter, 153 S.W.3d at 405-06.  Thus, Texas courts have formulated the rule that

[w]hen the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband.

 Id. at 406 (quoting Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1995)).  The purpose of this so-called Aaffirmative links rule@ is to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else=s drugs.  Id. at 406.  The existence of an affirmative link generates a reasonable inference that the defendant knew of the contraband=s existence and exercised control over it.  Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).

Circumstances that may affirmatively link a defendant to contraband include: (1) the contraband was in plain view; (2) the contraband was conveniently accessible to the accused; (3) the accused owned the place where the contraband was found; (4) the accused was the driver of the automobile in which the contraband was found; (5) the contraband was found on the same side of the car as the accused was sitting; (6) the place where the contraband was found was enclosed; (7) paraphernalia to use the contraband was in view of or found on the accused; (8) conduct by the accused indicated a consciousness of guilt; (9) the accused had a special connection to the contraband; (10) occupants of the automobile gave conflicting statements about relevant matters; (11) affirmative statements connected the accused to the contraband; (13) there was an odor of contraband; and (14) other contraband was found.  Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d); Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d).  Because each case is fact specific, the number of factors present is not as important as the logical force to which the factors, alone or in combination, tend to affirmatively link the defendant to the contraband.  Gilbert, 874 S.W.2d at 298.

Appellant argues that the evidence is legally insufficient because there is no evidence that he exercised care, custody, control, or management of the heroin.  We disagree.  The circumstances affirmatively link appellant to the tar heroin because: (1) appellant owned and was driving the car in which Scoggins found the heroin; (2) the heroin was located on the same side of the car as where appellant had been sitting; and (3) the contraband was in an enclosed space and was easily accessible to appellant, since it was stashed in the pocket of the driver=s side door.  Viewing the evidence in the light most favorable to the verdict, we find that the jury could have found beyond a reasonable doubt that appellant exercised control, management, or care over the heroin.  Therefore, we hold that the evidence is legally sufficient to support appellant=s conviction and overrule his sole point of error.  We affirm the trial court=s judgment.

/s/        Adele Hedges

Chief Justice

Judgment rendered and Opinion filed May 4, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Wood testified that the results of a field test identified the tar-like substance as heroin, and criminalist Raynard Cockerell of the Houston Police Department Crime Laboratory testified that the substance was 5.9 grams of tar heroin.  Wood also stated that heroin is more commonly sold in powder form, which is derived from the tar form by blending or grinding it.  Wood opined that appellant likely possessed the heroin in tar form because he had not yet had a chance to convert it to powder.