Smith, Denise Marie v. State

• Court: Court of Appeals of Texas
• Decided: June 13, 2002
• Docket: 01-01-00098-CR
• Status: Published

Opinion

Opinion issued June 13, 2002

In The

Court of Appeals

For The

First District of Texas

NOS. 01-01-00098-CR

01-01-00099-CR

____________

DENISE MARIE SMITH, Appellant

V.

THE STATE OF TEXAS, Appellees

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause Nos. 828517 & 834869

O P I N I O N

Denise Marie Smith, appellant, pleaded not guilty to delivery of a controlled substance, namely cocaine, in an amount less than one gram, and possession of a controlled substance, namely cocaine, in an amount weighing more than one gram but less than four grams. Both indictments contained two enhancement paragraphs alleging convictions for burglary of a building and theft. ⁽¹⁾ A jury found her guilty and, after finding both enhancements true, assessed punishment at confinement for four years for delivery and 25 years for possession. In four points of error, appellant argues the evidence was legally and factually insufficient to support the two convictions. We affirm.

Background

On November 10, 1999, Houston Police Officer Michelle Sinai got a tip from an anonymous source that a woman named "Kim" was dealing drugs, and the tipster provided Kim's pager number. Sinai called the pager, and someone who identified herself as "Kim" responded to the page. Sinai told Kim she wanted a "50-pack" - street slang for $50 worth of crack cocaine. Kim agreed and told Sinai to meet her in 30 minutes.

Sinai waited for Kim at the predetermined location, while two undercover officers conducted surveillance from a store nearby and an arrest team parked around the corner. Kim pulled up in a van and asked Sinai to get in. Kim, who was alone in the van, gave Sinai $50 worth of crack cocaine in exchange for Sinai's $50. Sinai got out of the van and signaled the surveillance officers.

Officer Jerry McFarlane, a uniformed police officer in a marked car, approached appellant's van and asked her to get out of the van. Sgt. Culak searched the van and found the money Sinai gave Kim on top of 3.1 grams of crack cocaine in Kim's purse.

Sufficiency

A legal sufficiency challenge requires us to determine whether, after viewing the evidence in the light most favorable to the prosecution, 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, 319, 99 S. Ct. 2781, 2789 (1979); Jones v. State, 944 S.W.2d 642, 647-48 (Tex. Crim. App. 1996).

We note that, as the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony, the jury may believe or disbelieve all or any part of a witness's testimony. Penagragh v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981) ("A jury is entitled to accept one version of the facts and reject another or reject any of a witness's testimony.").

In reviewing the factual sufficiency of the evidence, we examine all the evidence neutrally, and ask whether proof of guilt is so obviously weak or greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). We will reverse the fact finder's determination only if a manifest injustice has occurred. Id. In conducting our analysis, we may disagree with the jury's determination, even if probative evidence supports the verdict, but must also avoid substituting our judgment for that of the fact finder. Id. A review of the sufficiency of the evidence requires us to consider all evidence admitted, including any evidence which may have been erroneously admitted. Beltran v. State, 728 S.W.2d 382, 389 (Tex. Crim. App. 1987).

Delivery

In points of error one and two, appellant argues the evidence was legally and factually insufficient to support her conviction for delivery of a controlled substance.

Viewing the evidence in the light most favorable to the prosecution, the jury was presented with the following incriminating evidence: (1) Kim responded to a call from Officer Sinai, who had received a tip that a drug dealer named "Kim" was dealing drugs, (2) Sinai gave appellant marked money in exchange for a 50-pack, (3) Officer Culak found appellant's open purse next to the driver's seat in the van, (4) the money was found in appellant's purse, and it matched the photocopied money, ⁽²⁾ and (5) appellant was the only person in the car. We hold the evidence was legally sufficient to support the jury's finding of guilt.

Appellant presented no testimony or evidence. In support of her factual sufficiency argument, appellant simply states "the record fails to prove as a matter of fact that the Appellant intentionally or knowingly delivered cocaine." She contends the evidence was so weak as to undermine confidence in the jury's determination. A court of appeals must show deference to a jury finding. Cain v. State, 958 S.W.2d 404, 409 (Tex. Crim. App. 1997). Viewing all the evidence neutrally, the jury could have reasonably concluded from the evidence that appellant in fact intentionally and knowingly delivered cocaine. A jury decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State. Id. at 410. We will not substitute our judgment for that of the jury. Id. We hold the evidence was factually sufficient to support the jury's finding of guilt of delivery of cocaine.

We overrule points of error one and two.

Possession

In points of error three and four, appellant argues the evidence was legally and factually insufficient to support her conviction for possession of a controlled substance. To establish appellant's control and knowledge of the cocaine, the State must prove more than she was merely in the vicinity of the controlled substance, it must provide affirmative links between appellant and the contraband. See Hurtado v. State, 881 S.W.2d 738, 743 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd). Factors that may establish such affirmative links include whether: (1) the contraband was in plain view; (2) the contraband was conveniently accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the accused was the driver of the automobile in which the contraband was found; (5) the contraband was found on the side of the car seat where the accused was sitting; (6) the place where the contraband was found was enclosed; (7) the odor of marijuana was present; (8) paraphernalia to use the contraband was in view of or found on the accused; (9) conduct by the accused indicated a consciousness of guilt; (10) the accused has a special connection to the contraband; (11) occupants of the automobile gave conflicting statements about relevant matters; (12) the physical condition of the accused indicated recent consumption of the contraband found in the car; and (13) affirmative statements connect the accused to the contraband. Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd).

Viewing the evidence in the light most favorable to the prosecution, the jury was presented with the following incriminating evidence: (1) the cocaine was found in appellant's purse that was conveniently accessible to her; (2) circumstantial evidence proved the purse was appellant's because it contained her driver's license as well as the money Sinai had just given her; (3) appellant was the driver, and only occupant, of the van; (4) the cocaine was found on the same side of the car seat as appellant, and (5) appellant had control of the van at the time the drugs were discovered. ⁽³⁾ We hold the evidence was legally sufficient to support the jury's finding of guilt.

Again, appellant presented no testimony or evidence. In support of her factual sufficiency argument, appellant relies on the alleged conflicts between Sinai and Culak's testimony. Sinai testified she did not see the additional drugs in appellant's purse, whereas Culak testified the drugs were in the purse in plain view under the marked money Sinai gave appellant. Appellant contends the evidence was so weak as to undermine confidence in the jury's determination. In fact, there was no testimony Sinai looked in appellant's purse or even noticed she had a purse next to her seat. What weight to give alleged contradictory testimonial evidence is within the sole province of the jury because it turns on an evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. Thus, the jury was free to believe or disbelieve all or any part of Sinai and Culak's testimony. A court of appeals must show deference to such a jury finding. Id. at 409. A jury decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State. Id. at 410. We will not substitute our judgment for that of the jury. Id. We hold the evidence was factually sufficient to support the jury's finding of guilt of possession of cocaine.

We overrule points of error three and four.

Conclusion

We affirm the judgment.

Frank C. Price

Justice

Panel consists of Justices Mirabal, Taft, and Price. ⁽⁴⁾

Do not publish. Tex. R. App. P. 47.

1.

Appellant pleaded not true to the burglary of a building enhancement, but true to the theft enhancement.

2.

The officers testified the money used in this case was later used by an undercover policeman in another drug transaction. We do not find it significant that the actual money exchanged and the photocopies of the money were not in evidence at trial. See Coleman v. State, 794 S.W.2d 926, 928 (Tex. App.--Houston [1st Dist.] 1990, no pet.).

3.

The fact that appellant was in control of the van at the time the drugs were discovered is the determining issue, not whether appellant owned the van or if someone else had driven it earlier. See Villegas v. State, 871 S.W.2d 894, 897 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd).

4.

The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.