Kimberly Kay Doyel v. State

• Court: Court of Appeals of Texas
• Decided: September 4, 2003
• Docket: 11-03-00045-CR
• Status: Published

Opinion

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Kimberly Kay Doyel

Appellant

Vs.                   No. 11-03-00045-CR B Appeal from Dallas County

State of Texas

Appellee

The trial court convicted Kimberly Kay Doyel of the Class B misdemeanor offense of possession of marihuana and assessed her punishment at confinement in the Dallas County Jail for  120 days and a $500 fine.  The trial court suspended the imposition of the sentence and placed appellant on community supervision for 12 months.  We affirm.

In two points of error, appellant contends that the trial court erred in overruling her motion to suppress and in convicting her.  Appellant does not dispute that marihuana was recovered from the car in which she was a passenger but, instead, argues that Athere was no connective link@ between the marihuana and her.  We disagree.

Dallas Police Officers William Vick and George Morales testified that, while they were walking to a restaurant, they observed a Anear-miss accident@ or collision.  Both officers described how the Camaro in which appellant was the passenger  swerved Asideways@ in the street.  The driver Asquealed@ the tires and took off at a high rate of speed.  As the car passed the two officers, appellant Astuck her finger out the window...her middle finger@ at the officers.  The officers returned to their cars and followed the Camaro.  When they stopped the car, Officer Vick approached the driver while Officer Morales approached appellant.  Both the driver and appellant were determined to be intoxicated.  While they were waiting for the DWI squad to arrive, appellant put her knees in the passenger seat, turned around, looked at both officers through the back window of the car, and Agave [them] two fingers.@   

The driver remained outside of the car, and appellant remained inside of the car until after the DWI squad arrived.  As he removed her from the car, Officer Morales saw a bag of marihuana on the passenger seat.  The marihuana was located on the seat where it would have been covered by appellant=s right thigh. 

The record before this court does not contain a motion to suppress.   There is only one reference at trial to the search.  When State=s Exhibit No. 1 (the marihuana) was offered into evidence, appellant stated:  AI=m going to object to the search, so we have no objections.@  Appellant did not elaborate on her objections to the search.  Appellant=s complaint in her first point of error has not been properly preserved for appellate review and is overruled.  TEX.R.APP.P. 33.1. 

Appellant contends that the evidence is insufficient to support her conviction.  In order to determine if the evidence is legally sufficient, we must 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000).  In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).

It was necessary for the State to prove that appellant was affirmatively linked with the marihuana found on the seat where she had been sitting.  Brown v. State, 911 S.W.2d 744 (Tex.Cr.App.1995); Pollan v. State, 612 S.W.2d 594 (Tex.Cr.App.1981).   The affirmative link may be shown by evidence of facts and circumstances indicating knowledge and control.  Martin v. State, 753 S.W.2d 384 (Tex.Cr.App.1988); Deshong v. State, 625 S.W.2d 327 (Tex.Cr.App.1981).  The trial court, as the trier of fact, was the sole judge of the weight and credibility of the witnesses= testimony and could accept or reject any or all of a witness=s testimony.  Adelman v. State, 828 S.W.2d 418 (Tex.Cr.App.1992).

It was uncontroverted at trial that the driver and appellant were the only two people in the car and that marihuana was recovered from appellant=s seat.  It was further uncontroverted that the marihuana was located where it would have been concealed by appellant=s right thigh.  

We believe that any rational trier of fact could have found that appellant was affirmatively linked to the cocaine and that she knowingly and intentionally possessed it with the intent to deliver it.  The evidence is both legally and factually sufficient.  The second  point of error is overruled.

The judgment of the trial court is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

September 4, 2003

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.