Evers Brown v. State

• Court: Court of Appeals of Texas
• Decided: May 10, 2007
• Docket: 08-05-00340-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

EVERS BROWN, Appellant, v. THE STATE OF TEXAS, Appellee.	§ § § § § §	No. 08-05-00340-CR Appeal from 384th District Court of El Paso County, Texas (TC # 20030D02536)

O P I N I O N

Evers Brown appeals his conviction of possession of marihuana, greater than fifty pounds but less than two thousand pounds. The trial court assessed punishment at four years' confinement in the Institutional Division of Texas Department of Criminal Justice. Finding the evidence to be both legally and factually sufficient, we affirm.

FACTUAL SUMMARY

On May 15, 2003, Sergeant Hugo Silex, Detectives Ruben Cardenas, Barry Alvarez, Joe Lucero, Frank Rios, and Border Patrol Agent Mike Riggins were working as part of the Alpha Unit. The Alpha Unit is a narcotics interdiction unit where assigned officers focus on the trafficking of illegal narcotics through the transportation system via buses, trains, freights, and the airport. On May 15, the Alpha Unit was assigned to the Amtrak train terminal. All of the officers were in street clothing.

At approximately 3:30 p.m., Sergeant Silex was observing passengers board the westbound train when he noticed Appellant walk by him. Appellant made eye contact for an unusually long period of time. He carried a light blue shoulder duffle bag and a navy blue rolling suitcase with leather handles which resembled a suitcase Sergeant Silex personally owned. Appellant was some five feet away from Sergeant Silex.

Ten to fifteen minutes later, the passengers finished boarding and the train departed. Usually, the only persons remaining at the passenger loading area were the officers, but Sergeant Silex noticed Appellant walking back toward him. This was unusual because persons who enter the passenger loading area are either boarding a train or dropping someone off. Appellant was only carrying the duffle bag and he no longer had the roll-away suitcase. ⁽¹⁾ He also avoided making eye contact.

Sergeant Silex asked Detectives Alvarez and Cardenas to walk the entire passenger loading area to search for the missing suitcase. During this time, Detectives Rios and Lucero approached Appellant, identified themselves as police officers, and asked Appellant where he was going, how long he had been in El Paso, and with whom he had been staying. Appellant replied that he had been in El Paso for two days, that he had been traveling for a week or two, and that he was headed for Missouri. He had a train ticket to Missouri purchased with cash, but the name of the passenger was Larry Harris.

Appellant then told the detectives he lived in Atlanta, Georgia and had been staying with some friends in northeast El Paso. When Detective Rios asked for details, Appellant could not recall the names of his friends or the address. Appellant then consented to the search of his small blue duffle bag which contained toiletries and clothing. Finding no narcotics, the officers let Appellant go.

Shortly thereafter, Detectives Alvarez and Cardenas found a dark blue suitcase approximately 200 yards from the passenger loading area. They contacted Border Patrol Agent Riggins. Agent Riggins arrived with the drug dog and the dog alerted to the suitcase. The detectives took the suitcase back to the train depot and Agent Riggins conducted a lineup using the suitcase and other bags from the luggage room. The dog alerted a second time.

Detectives Rios and Lucero then approached Appellant. Detective Lucero asked about the suitcase and Appellant told him that the light blue bag was the only bag he had. Appellant was eventually transported to the downtown police station while Detective Cardenas sought a search warrant. The suitcase was found to contain twenty-five bundles of usable marihuana weighing 52.65 pounds. Detective Cardenas, who has worked as an undercover drug buyer, testified he would pay $250 per pound. ⁽²⁾ The narcotics custodian for the El Paso Police Department testified his attempt to obtain fingerprints from the marihuana was unsuccessful.

SUFFICIENCY OF THE EVIDENCE

On appeal, Appellant challenges the sufficiency of the evidence to support the jury's verdict. In essence, he complains that the State failed to affirmatively link him to the drugs.

Standards of Review

In conducting a legal sufficiency review, we review the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). The trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). Thus, we may not re-evaluate the credibility of the evidence and substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000); Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999).

In reviewing the factual sufficiency of the evidence, we must view all the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997). When the evidence is so weak that the verdict is clearly wrong and manifestly unjust or the verdict is against the great weight and preponderance of the evidence, the evidence is factually insufficient and a jury's verdict should be set aside. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). In addition, we must give due deference to the fact finder's determinations. See id. at 8-9; Clewis v. State, 922 S.W.2d 126, 136 (Tex.Crim.App. 1996). The fact finder is the judge of the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991).

Possession of Marihuana

A person commits the offense of possession of marihuana if he knowingly or intentionally possesses a usuable quantity. See Tex.Health & Safety Code Ann. § 481.121 (Vernon 2003). The offense is a second-degree felony if the amount possessed is two thousand pounds or less but more than fifty pounds. Id. at § 481.121(b)(5). Possession is defined as "actual care, custody, control, or management." Tex.Health & Safety Code Ann. § 481.002(38)(Vernon Supp. 2006). In order to support a conviction for unlawful possession of a controlled substance, the State must prove through either direct or circumstantial evidence that the accused (1) exercised actual care, custody, control, and management over the contraband, and (2) the accused knew the substance he possessed was contraband. See Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex.Crim.App. 2005); Menchaca v. State, 901 S.W.2d 640, 651 (Tex.App.--El Paso 1995, writ ref'd).

When the accused in not in exclusive possession of the place where the substance is found, there must be additional independent facts and circumstances which affirmatively link the accused to the contraband, in order to conclude that the accused had knowledge of and control over the contraband. Poindexter, 153 S.W.3d at 406. The "affirmative links" rule is designed to protect the innocent bystander from conviction based solely upon the fortuitous proximity to someone else's drugs. Id. Therefore, by either direct or circumstantial evidence, the State "must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous." Levario v. State, 964, S.W.2d 290, 294 (Tex.App.--El Paso 1997, no pet.), citing Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995).

Factors To Consider

The following is a list of non-exclusive "affirmative link" factors which have been found sufficient to establish an accused was in possession of contraband: (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 v. State, 202 S.W.3d 158, 162 n.12 (Tex.Crim.App. 2006); see also Gregory v. State, 159 S.W.3d 254, 260 (Tex.App.--Beaumont 2005, pet. ref'd); Nguyen v. State, 54 S.W.3d 49, 53 (Tex.App.--Texarkana 2001, pet. ref'd); Hurtado v. State, 881 S.W.2d 738, 743 n.1 (Tex.App.--Houston [1st Dist.] 1994, pet. ref'd).

It is the logical force of the circumstantial evidence and not the number of links that establishes a defendant possessed the contraband. See Evans, 202 S.W.3d at 166; see also Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.--Dallas 2003, no pet.). There is no set formula to dictate a finding of affirmative links that is sufficient to support an inference of knowing possession of contraband. Taylor, 106 S.W.3d at 831. The presence of the accused at the location where the drugs are found -- when combined with either direct or circumstantial evidence -- may be sufficient to establish actual care, custody, or control of the drugs. See Evans, 202 S.W.3d at 162.

Legal Sufficiency

Appellant contends the evidence was legally insufficient because: (1) he did not make "furtive gestures," (2) there was no drug paraphernalia found on him or in plain view, (3) there was no fingerprint evidence, (4) there was no residual odor of marihuana, (5) there were no incriminating statements, (6) there was no attempt to escape, (7) there were no narcotics were found in plain view, (8) he was not intoxicated or under the influence of drugs, (9) there were no drugs found on his person, (10) there were no weapons found, and (11) he did not engage in suspicious "counter-surveillance."

The evidence established that Sergeant Silex and Detective Lucero saw Appellant with a dark blue rolling suitcase before the Amtrak train left the station. After the train departed, the officers saw Appellant walking away from the passenger loading area without the suitcase. See De la Garza v. State, 898 S.W.2d 376, 379 (Tex.App.--San Antonio 1995, no writ)(witness testimony that defendant was seen in possession of bag prior to arrest was factor considered in affirmative link analysis). The amount of marihuana found in the suitcase supports an inference that Appellant had knowledge of its existence. The suitcase contained 52.65 pounds of marihuana worth $13,000. See Robinson v. State, 174 S.W.3d 320, 328-29 (Tex.App.--Houston [1st Dist.] 2005, pet. ref'd)(courts may consider the amount of contraband found in determining whether an affirmative link exists). Appellant's failure to make eye contact as he left the loading area was evidence of his consciousness of guilt. He carried a ticket for an eastbound train to Missouri in someone else's name. Sergeant Silex testified most of the drugs from the Juarez corridor head to the northeastern part of the country. He also testified narcotics traffickers often purchase tickets in false names because they do not want the ticket to be traced back to them. See Bethancourt-Rosales v. State, 50 S.W.3d 650, 655 (Tex.App.--Waco 2001, pet. ref'd)(testimony of officers familiarity with the value of drugs and common patterns of drug transportation are factors to consider in affirmative links analysis). Finally, Appellant could not provide detailed information regarding his two-day stay in El Paso. Detective Rios testified it is common for drug traffickers to have a cover story, but when pressed for details, traffickers often tell stories that don't make sense, or they don't recall details about the story they're telling, or they change the details. See Bethancourt-Rosales, 50 S.W.3d at 655(an implausible story advanced by a defendant can provide circumstantial evidence indicating guilty knowledge). In viewing the evidence in the light most favorable to the verdict, there was legally sufficient evidence to affirmatively link Appellant to the suitcase.

Factual Sufficiency

Appellant contends the evidence is factually insufficient because: (1) there was no evidence he was "high"on drugs, (2) there were no drugs or drug paraphernalia found on his person, (3) he did not have a large sum of cash, (4) other people could have had access to the suitcase, and (5) he did not admit that the marihuana was his.

The jury was presented with numerous other factors to consider in affirmatively linking Appellant with the suitcase. Although Appellant denied possession of the bag, both Sergeant Silex and Detective Lucero saw Appellant with a blue rolling suitcase before the train departed. While they did not see Appellant actually leave the suitcase 200 yards away, the suitcase was similar to the bag they had previously seen in Appellant's possession.

Where there is conflicting evidence, we must give due deference to the jury's determinations. See Johnson, 23 S.W.3d at 11; see also Cain, 958 S.W.2d at 407 (the weight and credibility of the evidence and witnesses testimonies lies within the jury's discretion). In reviewing the evidence in a neutral light, we conclude it was factually sufficient to affirmatively link Appellant to the suitcase. We overrule the sole issue for review and affirm the judgment of the trial court.

May 10, 2007

ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.

(Do Not Publish)

1. Detective Jose Lucero presented similar testimony. After the Amtrak manager called for the westbound passengers, he saw Appellant walk towards the passenger loading area carrying a light blue shoulder duffle bag and a dark blue roll-away suitcase. Once all of the passengers boarded the train, only the detectives and Appellant remained. Appellant then walked towards Detective Lucero carrying only the light blue shoulder duffle bag.

2.

Based on Detective Cardenas' estimates, the marihuana was worth approximately $13,000 in El Paso County.