Park v. State

8 S.W.3d 351, 1999 Tex. App. LEXIS 8451, 1999 WL 1052034
CourtCourt of Appeals of Texas
DecidedNovember 10, 1999
DocketNo. 99-0226-CR
StatusPublished
Cited by40 cases

This text of 8 S.W.3d 351 (Park v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Park v. State, 8 S.W.3d 351, 1999 Tex. App. LEXIS 8451, 1999 WL 1052034 (Tex. Ct. App. 1999).

Opinion

BRIAN QUINN, Justice.

Christina Elizabeth Park (appellant) appeals from a judgment convicting her of possessing two or less ounces of marijuana. Her sole point of error involves the legal and factual sufficiency of the evidence underlying the conviction.1 She alleges that it was insufficient to prove she “knowingly possessed” the contraband. We affirm.

Standard of Review

When both legal and factual sufficiency of the evidence are challenged, we must first determine whether the evidence is legally sufficient to support the verdict. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996). In determining whether a verdict enjoys the support of legally sufficient evidence, we ask if, after reviewing the evidence in the light most favorable to the verdict, 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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App.1995). If the answer is yes, then the evidence underlying the conviction is legally sufficient.

After conducting a legal sufficiency review under Jackson, we may proceed with a factual sufficiency review under Clewis. In assessing the verdict’s factual sufficiency, we put aside the requirement that the evidence be viewed through a prism of light favorable to the State. Instead, our task is to peruse the entire record and decide whether the overwhelming weight of the evidence so contradicts the verdict as to make that verdict clearly wrong or unjust. Clewis v. State, 922 S.W.2d at 129; Hall v. State, 970 S.W.2d 137, 140 (Tex.App.—Amarillo 1998, pet. ref'd); Bruno v. State, 922 S.W.2d 292, 293 (Tex.App.—Amarillo 1996, no pet.). In defining when the scale so tilts, the Clewis court invoked such nebulously descriptive terms as “shocks the conscience” and “clearly demonstrates bias.” Clewis v. State, 922 S.W.2d at 135.

Regardless of which standard is utilized, however, it remains axiomatic that we defer to the jury’s resolution of factual disputes. That is, the power to reasonably infer facts from the evidence, to resolve credibility issues, and to determine who to believe or disbelieve is not ours but the jury’s. Depauw v. State, 658 S.W.2d 628, 633-34 (Tex.App.—Amarillo 1983, pet. ref'd).

Next, to secure a conviction for possessing a controlled substance, the State must prove that the defendant exercised care, custody, or control over the drugs, was conscious of his connection with the drugs, and knew the substance to be drugs. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995) (en banc); Cantu v. State, 944 S.W.2d 669, 670 (Tex.App.—Corpus Christi 1997, pet. ref'd). And, [353]*353whether the evidence be direct or circumstantial, it must be adequate to illustrate, “to the requisite level of confidence, that the ... connection with the drug was more than just fortuitous.” Brown v. State, 911 S.W.2d at 747. Yet, it must be remembered that circumstantial, as opposed to direct, evidence can be used to prove each element.

Furthermore, the courts have divined numerous factors useful in determining whether the accused’s link to the contraband was more than mere fortuity. Though the factors are not exclusive, they nevertheless include such things as whether 1) the accused was present when the search was conducted, 2) the contraband was plainly visible by those present, 3) the drugs were near the defendant, 4) the defendant was under the influence of the substance found, 5) the defendant possessed other contraband or drug paraphernalia when arrested, 6) the defendant made any incriminating statements, 7) the defendant attempted to flee, 8) the defendant made furtive gestures, 9) the contraband emitted a recognizable odor at the time, 10) other contraband or drug paraphernalia was present, 11) the defendant had the right to exclusive or joint possession of the locale at which the drugs were found, 12) the place where the drugs were found was enclosed, 13) the accused attempted to conceal the contraband, and 14) the accused was familiar with the type of contraband. Kyte v. State, 944 S.W.2d 29, 31 (Tex.App.—Texarkana 1997, no pet.); Hurtado v. State, 881 S.W.2d 738, 743 n. 1 (Tex.App.—Houston [1st Dist.] 1994, pet. refd). Furthermore, the number of factors established is not as important as the degree to which they tend to affirmatively link the defendant to the contraband. Wallace v. State, 932 S.W.2d 519, 524 (Tex.App.-Tyler 1995, pet. refd). In other words, if evidence satisfying less than all the aforementioned indicia is produced, conviction may still be permitted if’ the evidence establishes, beyond reasonable doubt, appellant’s knowing link to the drugs.

Application of Standard

The record discloses that appellant, a 17-year-old female, used the “i.d.” of a friend to rent a hotel room. Police were notified of the circumstance and appeared at the room to investigate. They knocked and appellant opened the door and “invited” them in. Appellant was not alone. Inside was a 17-year-old boy who initially told the officer his name was Marcus Wray. Later, it was discovered that Wray was actually an individual named Doug Hill. No others persons were found therein.

Upon perusing the room, the officer saw, in plain view, a twelve pack of beer atop the television. Approximately six of the beers had been consumed and the empty containers returned to the pack. Next to the beer, and also in plain view, were marijuana seeds. When asked to whom these items belonged, Wray stated that they were his.

Further perusal revealed a six pack of another intoxicating beverage setting on a nightstand. The nightstand was located between the two beds in the room. And, next to these beverages lay an ashtray containing two partially consumed marijuana cigarettes. When asked, neither occupant of the room admitted that the marijuana was theirs. Yet, the ashtray lay closer to the bed whereon appellant’s book bag and purse were found. Furthermore, an officer testified that appellant admitted lying in that particular bed sometime earlier.

At trial, appellant testified that she had used marijuana when she was 15 but that she had not done so since. So too did she admit that she was familiar with marijuana and its smell. And, according to one officer, the hotel room smelled “moderately” of marijuana when he entered it.

From the foregoing, we find evidence that 1) appellant rented and controlled the [354]

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Bluebook (online)
8 S.W.3d 351, 1999 Tex. App. LEXIS 8451, 1999 WL 1052034, Counsel Stack Legal Research, https://law.counselstack.com/opinion/park-v-state-texapp-1999.