Larry Dwayne Robinson v. State

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

)

LARRY DWAYNE ROBINSON,

) No. 08-03-00032-CR )

Appellant,

) Appeal from )

v.

) 292nd District Court )

THE STATE OF TEXAS,

) of Dallas County, Texas )

Appellee.

) (TC# F-015883-SLV)

MEMORANDUM OPINION

Larry Dwayne Robinson appeals his conviction for possession of marijuana in an amount less than five pounds but more than four ounces. A jury found Appellant guilty and assessed punishment at two years' incarceration in a state jail facility. We affirm.

FACTUAL SUMMARY

Dallas police officer Thomas Peterson was on special assignment and handled drug complaints in South Dallas. While working the intersection of Silkwood and Jarvis, he observed Appellant for approximately two weeks and saw him make what appeared to be hand-to-hand drug transactions. When making these transactions, Appellant was in proximity to a house at 2723 Silkwood. Some transactions were made in the front yard, some on the front porch of the house, and others on the sidewalk. The typical transaction unfolded as follows. A car would pull up in front of the house and stop. Appellant would approach the vehicle and accept what appeared to be money. He would then go back inside the house and return, carrying what appeared to be plastic baggies of marijuana. Peterson conducted his surveillance from concealed positions across the street by either laying along a fence line adjacent to a vacant field or hiding in a vacant house. He was located approximately ten to fifteen feet away from the street when watching from the house and twenty yards away when watching from the field. At times, Marshun Robinson, Appellant's nephew, was also present during the drug transactions.

After his two-week surveillance, Peterson contacted Detectives Hight and Jackson from the narcotics division, informed them about his observations, and asked them to arrange a buy. On November 7, 2001, the officers made contact with a female standing in the 2700 block of Silkwood. They asked her where they could buy four bags of marijuana and she led them to 2723 Silkwood. The officers stood by the driveway while the female walked to the front door. Marshun answered the door, took the money, and handed the female four bags of marijuana. The officers never saw Appellant during the buy. They left the premises, contacted police to get a picture of Marshun, and having identified him, applied for a search warrant.

Officer Scott Sayers was part of the team of officers that executed the warrant the next day. Sayers had also been conducting surveillance of the neighborhood due to numerous drug complaints and had personally witnessed drug transactions involving both Appellant and Marshun at the Silkwood address. On the evening of November 8, Sayers approached the door of the residence and saw Appellant sitting inside on the couch. He knocked on the door and asked Appellant to come outside for a talk. Appellant opened the door and Sayers informed him of the search warrant. When asked to step outside the house, Appellant stood at the door asking what this was all about. Sayers took hold of Appellant's arm and told him to step outside. The officer smelled freshly burning marijuana and saw Marshun sitting in the back bedroom. Marshun and a female were asked to leave the house. The team members were assigned to different areas of the house to search and Sayers photographed the drugs where they were found.

Underneath the couch where Appellant had been sitting, officers discovered a brown sack containing ziplock bags of marijuana. They also found an ashtray in the living room containing smoked marijuana blunts. In the bedroom where Marshun was located, officers discovered two one-pound bags containing marijuana inside a dresser, a shoe box under the bed holding marijuana, and $399 in cash. Officers also found a red umbrella case holding empty bags, a small bag of marijuana and a blunt on a table near where Marshun was sitting, and a cloth bag holding a pair of scissors behind the chair. In the kitchen, marijuana was found in a coffee tin on top of the refrigerator. Sayers testified that while he did not see Appellant smoking dope, cutting dope, or bagging dope upon his arrival at the house, Appellant appeared to be high. No money was found on Appellant's person nor were any of his belongings found inside the house. However, Sayers explained that it was not uncommon for drug dealers to use a stash house or another property at which to sell their drugs. Marshun was also arrested, pled guilty to possession of marijuana, and received a five-year probated sentence. He testified that he was selling drugs out of the house and that he had bagged the marijuana, but he denied ownership of the marijuana found under the couch and in the kitchen. Appellant had come over that particular day to pick up Marshun for a haircut but Appellant did not know that Marshun sold drugs out of the house. Appellant never participated in drug transactions nor smoked marijuana with Marshun. The defense also offered evidence that Appellant did not live in the Silkwood house.

SUFFICIENCY OF THE EVIDENCE

In two points of error, Appellant challenges the legal and factual sufficiency of the evidence, arguing that the State failed to prove an affirmative link to the marijuana.

Standards of Review

In reviewing the legal sufficiency of the evidence to support a criminal conviction, an appellate court must review the evidence in a 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, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000); Levario v. State, 964 S.W.2d 290, 293-94 (Tex.App.--El Paso 1997, no pet.). We do not resolve any conflict of fact or assign credibility to the witnesses, as this is within the exclusive province of the finder of fact to do so. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Lucero v. State, 915 S.W.2d 612, 614 (Tex.App.--El Paso 1996, pet. ref'd). Instead, we determine only if the explicit and implicit findings of the jury are rational when the evidence admitted at trial is viewed in a light most favorable to the verdict. Adelman, 828 S.W.2d at 421-22. In doing so, we resolve any inconsistencies in the evidence in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991); Menchaca v. State, 901 S.W.2d 640, 651 (Tex.App.--El Paso 1995, pet. ref'd).

In reviewing factual sufficiency, we consider all of the evidence, but we do not view it in the light most favorable to the verdict. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996); Levario, 964 S.W.2d at 295. We will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Levario, 964 S.W.2d at 295. In conducting a factual sufficiency review, the reviewing court cannot substitute its conclusions for those of the jury. See id. It is not within the province of this court to interfere with the jury's resolution of conflicts in the evidence or to pass on the weight or credibility of the witness's testimony. See id. Where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. See id.

Unlawful Possession of Marijuana

Where an accused is charged with unlawful possession of a controlled substance, the State must prove that the accused exercised care, control and management over the contraband, and that the accused knew the substance was contraband. Martin v. State, 753 S.W.2d 384, 386 (Tex.Crim.App. 1988), citing Nunn v. State, 640 S.W.2d 304 (Tex.Crim.App. 1982). The evidence must affirmatively link the accused to the contraband by a showing which indicates the accused's knowledge and control of the contraband. Waldon v. State, 579 S.W.2d 499, 501 (Tex.Crim.App. 1979). What constitutes an "affirmative link" has no peculiar methodology typical of a legal rule; rather, it is "only a shorthand expression of what must be proven to establish that a person possessed some kind of drug 'knowingly or intentionally.'" Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). Where 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 connect the accused to the contraband. Menchaca, 901 S.W.2d at 651.

Factors to be Considered

In determining if a sufficient connection exists between the defendant and the contraband, a reviewing court can examine a variety of factors: the defendant's presence when the search was executed; whether the contraband was in plain view; the defendant's proximity and accessibility to the contraband; whether the defendant was under the influence of the contraband when arrested; whether the defendant possessed other contraband when arrested; any incriminating statements made by the defendant when arrested; whether the defendant attempted to flee; whether the defendant made any furtive gestures; any odor of the contraband; the presence of other contraband; the defendant's right to possession of the place where the contraband was found; and whether the drugs were found in an enclosed place. See Gill v. State, 57 S.W.3d 540, 544-45 (Tex.App.--Waco 2001, no pet.); State v. Derrow, 981 S.W.2d 776, 779 (Tex.App.--Houston [1st Dist.] 1998, pet. ref'd). Notwithstanding this laundry list, there is no strict 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).

Appellant contends that the evidence is legally insufficient to support his conviction because he was not cutting, bagging, or smoking marijuana when the officers first observed him. He argues that even though smoked blunts were present in an ashtray in the living room, the evidence did not establish where the ashtray was located and it was never established that the bag under the couch was visible or accessible to him. While officers detected the smell of marijuana, there was also a blunt in the back bedroom. Finally, he claims that no fingerprints linked him to the marijuana, he did not make incriminating statements, and he did not attempt to flee. In support of his factual sufficiency argument, Appellant primarily argues that most of the marijuana was found in the back bedroom where Marshun was sitting and that Marshun testified that Appellant never sold drugs out of the house. Although the officers claimed to have seen Appellant engaged in drug transactions, they never purchased any drugs from Appellant. Finally, he emphasizes that there was no evidence he lived at the house.

In our view, however, the evidence establishes links that raise reasonable inferences of Appellant's knowledge and control of the marijuana. While Appellant did not own the house, he answered the door upon the officers' arrival. See Watson v. State, 861 S.W.2d 410, 415 (Tex.App.--Beaumont 1993, pet. ref'd), cert. denied, 511 U.S. 1076, 114 S.Ct. 1659, 128 L.Ed.2d 376 (1994). He hesitated when asked to step out of the house. See Trejo v. State, 766 S.W.2d 381, 385 (Tex.App.--Austin 1989, no pet.)(affirmative link factors may include conduct indicating a consciousness of guilt). Marijuana was found underneath the couch where Appellant was sitting when officers arrived and within his immediate reach. Surveillance over the past two weeks demonstrated that Appellant was a frequent visitor to the Silkwood house and he was seen making hand-to-hand drug transactions. Officers detected the smell of freshly burning marijuana, an ashtray in the living room contained a smoked blunt and Appellant seemed high at the time of his arrest. Substantial amounts of marijuana and other drug paraphernalia were found in other parts of the house.

Viewing the evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt that Appellant possessed the marijuana. Consequently, the evidence is legally sufficient to support the conviction. Point of Error One is overruled. As for factual sufficiency, the verdict of the jury could have rested upon the weight and credibility of the testifying witnesses. Appellant's defensive theory was that he knew nothing about the marijuana and that he had just arrived at the house. The jury evidently rejected Marshun's testimony and instead chose to believe the officers. See Dewberry v. State, 4 S.W.3d 735, 747 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000)(holding that the trier of fact is free to believe or disbelieve all or part of testimony given.). Remembering that the jury is the sole judge of the weight and credibility of the witnesses' testimony, we conclude that the evidence is not so weak that the verdict was clearly wrong and unjust, nor is the verdict so against the overwhelming weight of the evidence as to be clearly wrong and unjust. We overrule Point of Error Two and affirm the judgment of the court below.

May 6, 2004

ANN CRAWFORD McCLURE, Justice

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)