Mose Gaddison, Jr. v. State

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-02-020 CR

MOSE GADDISON, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 163rd District Court

Orange County, Texas

Trial Court Cause No. B-000,455-R

O P I N I O N

A jury convicted Mose Gaddison, Jr. of felony possession of marihuana and assessed a punishment of seven years confinement and a $1,000 fine. See Tex. Health & Safety Code Ann. § 481.121(a)(4) (Vernon Supp. 2003). Gaddison claims the evidence was insufficient to support the conviction and his trial counsel was ineffective.

Gaddison first argues the evidence is legally insufficient to establish he was the one who possessed the marihuana; there were two people in the car. In a legal sufficiency review, this court looks at all of 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

To prove drug possession, the State must show (1) a defendant exercised care, custody, control, or management over the drugs, and (2) he knew he possessed a controlled substance. See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). An illegal drug can be jointly possessed with others. See Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). But mere presence at the scene does not establish possession; there must be evidence that affirmatively links the accused to the contraband and shows he had knowledge of and control over it. Id. Although the evidence used to satisfy these elements may be direct or circumstantial, the State must establish that the accused's connection with the marihuana was more than just fortuitous. Brown, 911 S.W.2d at 747. Affirmative links are established by the totality of the circumstances. See Hyett v. State, 58 S.W.3d 826, 830-31 (Tex. App.--Houston [14^th Dist.] 2001, pet. ref'd).

In determining whether the evidence is sufficient to affirmatively link the accused with the controlled substance, certain nonexclusive factors may be considered:

1. The contraband was in plain view;

2. The accused was the owner of the premises or had the right to possess the place where the contraband was found, or the owner or driver of the automobile in which the contraband was found;

3. The accused was found with a large amount of cash;

4. The contraband was conveniently accessible to the accused, or found on the same side of the vehicle as the accused was sitting;

5. The contraband was found in close proximity to the accused;

6. A strong residual odor of the contraband was present;

7. The accused possessed other contraband when arrested;

8. Paraphernalia to use the contraband was in view, or found on the accused;

9. The physical condition of the accused indicated recent consumption of the contraband in question;

10. Conduct by the accused indicated a consciousness of guilt;

11. The accused attempted to flee;

12. The accused made furtive gestures;

13. The accused had a special connection to the contraband;

14. The occupants of the premises gave conflicting statements about relevant matters;

15. The accused made incriminating statements connecting himself to the contraband;

16. The quantity of the contraband was significant; and

• The accused was observed in a suspicious area under suspicious circumstances.

See, e.g., Jenkins v. State, 76 S.W.3d 709, 712-13 (Tex. App.--Corpus Christi 2002, pet ref'd) (footnotes omitted). The number of the factors is not as important as the logical force the factors have in establishing the elements of the offense. Jones v. State, 963 S.W.2d 826, 830 (Tex. App.--Texarkana 1998, pet. ref'd).

Officer Jacobs stopped the vehicle for reckless driving. At the officer's request, Mose Gaddison, the driver, exited the car. The officer found Gaddison to be nervous: Gaddison "was kind of having a difficult time looking at me. His hands were shaking. There was a little quiver in his voice -- kind of wiping sweat from his palms." "He would look at me and look at my overall body and what appeared to be looking at my duty weapon and then back at me and look at his surroundings." Jacobs indicated he called for assistance because of Gaddison's "nervous demeanor."

Officer Joel Stinnett responded to the call. He likewise testified to Gaddison's nervousness. Gaddison "wouldn't be still. He was just moving around. I [Officer Stinnett] noticed several times . . . he looked down at my gun. He would look up and look around. In my mind, I didn't know if he was thinking about fighting or thinking about running, which kind of made me nervous there." Some degree of nervousness is normal during a traffic stop. Jenkins, 76 S.W.3d at 714. But, based on the officers' description here, the jury could have interpreted Gaddison's nervousness as being out of the ordinary.

The officers inquired about the purpose and destination of the trip. Gaddison said he and Donald Frank, the passenger and owner of the car, had been in Houston to look for Gaddison's partner. Gaddison said they were unable to locate the partner and turned around and came right back. Gaddison indicated Frank accompanied him to Houston. In contrast, Frank stated he and Gaddison were traveling from Beaumont and had not been anywhere else. The stories were inconsistent.

Both officers testified that when they walked up to the driver's side of the vehicle, they detected the odor of marihuana wafting through the car's open window. They asked for and received permission from both Gaddison and Frank to search the car. The officers found nothing suspicious in the car's interior. They then searched the trunk, found the 5.68 pound bag of marihuana underneath the spare tire cover, and arrested both men.

In considering the links listed above, we note that the marihuana was not found in plain view, there was no marihuana on Gaddison's person, and nothing suspicious was found inside the car. There is no evidence of his fingerprints on the bag of contraband.

Other evidence, however, has sufficient logical force to affirmatively link Gaddison to the contraband. As the driver, Gaddison had the keys to the vehicle, access to the trunk, and exercised control over the vehicle. Gaddison was nervous: he could not stand still, his voice quivered, his hands were shaking, he was wiping sweat from his palms, and he stared at the officers' guns. The odor of marihuana emanated from inside the car, and the men told inconsistent stories about their trip. Gaddison's conduct indicated a consciousness of guilt. The evidence links Gaddison to the marihuana in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband's existence and that he exercised actual care, control, or custody of it. Brown, 911 S.W.2d at 747. Viewing the factors in a light most favorable to the verdict, we conclude the evidence was legally sufficient to support the conviction.

In issue two, Gaddison contends his trial counsel was ineffective. To prevail on an ineffective assistance of counsel claim, Gaddison must establish that his attorney's performance fell below the objective standard of reasonableness and that there is a "reasonable probability" the result would have been different but for the attorney's deficient performance. Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

Gaddison says his trial counsel called no witnesses at trial and must not have investigated the case. A defendant may base a claim of ineffectiveness on an attorney's failure to present witnesses only if the defendant can show that the witnesses were available and their testimony would have benefitted the defendant. See Mares v. State, 52 S.W.3d 886, 892 (Tex. App.--San Antonio 2001, pet. ref'd). Appellant did not file a motion for new trial; there is no evidence otherwise in the record indicating the witnesses he would have called, their availability, and their benefit to the defendant. The record must affirmatively demonstrate the alleged ineffectiveness. See Dewberry v. State, 4 S.W.3d 735, 757 (Tex. Crim. App. 1999). Here, the record does not.

The record does not support appellant's claim of trial counsel's lack of investigation of the case; as noted above, no motion for new trial was filed. Trial counsel filed numerous pre-trial motions, ably conducted voir dire, cross-examined the State's witnesses, and argued to the jury that the evidence did not show Gaddison was the one who possessed the marihuana. Based on the record before us, "[w]e cannot . . . assume that because a record is silent as to the depth of an attorney's investigation . . . he made no investigation." Lockett v. State, 874 S.W.2d 810, 817 (Tex. App.--Dallas 1994, pet. ref'd)(quoting Hernandez v. State, 726 S.W.2d 53, 59 (Tex. Crim. App. 1986)).

Gaddison says trial counsel should have requested an "affirmative links" instruction in the jury charge. We know of no requirement that the trial court instruct the jury on "affirmative links," and appellant cites us to none. See Gilbert v. State, 874 S.W.2d 290, 297 (Tex. App.--Houston [1^st Dist.] 1994, pet. ref'd) (The trial court properly refused the requested "affirmative links" charge); see also Davila v. State, 749 S.W.2d 611, 614 (Tex. App.--Corpus Christi 1988, pet. ref'd) (The affirmative links construct is a technical legal standard of review that is not meant for use by jury and would only lead to "confusion and distraction."). The jury charge tracked the statutory elements of the offense of possession and the statutory definition of "possession." See Tex. Health & Safety Code Ann. §§ 481.002(38), 481.121(a) (Vernon Supp. 2003). There was no error in failing to request an affirmative links instruction and, thus, no ineffective assistance of counsel. Appellant's issue two is overruled. The conviction is affirmed.

AFFIRMED.

PER CURIAM

Submitted on April 21, 2003

Opinion Delivered April 30, 2003

Do Not Publish

Before McKeithen, C.J., Burgess, and Gaultney, JJ.