Kenny Carl Lewis v. State ( 2003 )

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Opinion Issued December 11, 2003



In The

Court of Appeals

For The

First District of Texas

NO. 01-02-01155-CR

KENNY CARL LEWIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 872749

MEMORANDUM OPINION

          Appellant, Kenny Carl Lewis, was charged with and pleaded not guilty to possession of a controlled substance, cocaine, weighing more than four grams and less than 200 grams. A jury found appellant guilty. After appellant pleaded true to two enhancement paragraphs—felony delivery of a controlled substance and felony possession of a controlled substance—the trial court assessed his punishment at 30 years’ confinement. In five points of error, appellant (1) challenges the legal and factual sufficiency of the evidence and (2) contends the trial court erred in admitting a Texas Department of Criminal Justice identification card into evidence because its probative value was substantially outweighed by its prejudicial effect. We affirm.

Background

          During the afternoon of March 26, 2001, prior to the execution of a search warrant, Officer Wiltz surveyed appellant’s 12209 Myrtle residence in Crosby, Texas. Appellant was outside speaking with a Harris County deputy about an unrelated matter. While appellant was still outside, several other officers executed the search warrant. After the officers detained appellant and another unknown male, and secured the residence, the officers entered the home.

          After the officers’ initial search of the home, Deputy Foose with the canine unit of the Harris County Sheriff’s Department was called in to “run his dog on the house” to search for narcotics. Rudy, Deputy Foose’s drug certified dog, first “alerted” Foose to a bedroom. In the bedroom, Foose and Rudy found a gray shoe box beside the bed. Inside the box was a red “Swisher Sweets box” containing marijuana, “Swisher cigars,” used to make marijuana joints, and miscellaneous documents. Additionally, in the same bedroom, Rudy “alerted” Foose to an entertainment stand. On the bottom shelf of the stand was a “crack cocaine cookie”on a “saucer plate”and a razor blade lying beside it.

          Detective Porter also went into the home to recover narcotics. Porter recovered the gray shoe box containing marijuana, a miniature scale used to weigh marijuana, and other miscellaneous documents, including a bank statement, identification cards and a temporary driver’s license. The bank statement bore appellant’s name, his account number, and a Post Office Box address located in Crosby, Texas. Porter also found two identification cards in the gray box in the bedroom where the cocaine was found. One identification card was from the Texas Department of Criminal Justice Institutional Division. On the card were the name, birth date, and picture of appellant, with the word “inmate” printed in red across the face of the card. The other identification card was for the Houston Area Contractors’ Safety Counsel, with appellant’s name and social security number printed on it. Porter also recovered a paper copy of a temporary permit issued by the Department of Public Safety. The permit contained appellant’s name, his 12209 Myrtle address, a driver’s license number and code, the expiration date, and the issuing date of March 21, 2001, five days prior to the execution of the search warrant.

          On the entertainment stand, Porter recovered a razor blade, the “saucer plate” with a “crack cookie,” and another bank statement. This bank statement was from Crosby State Bank addressed to appellant at a Crosby Post Office Box and reflected that the statement was through March 5, 2000. Porter testified that the room where the cocaine was found contained a bed, stereo speakers, and clothes that appeared to be appellant’s size. Porter also recovered a small amount of marijuana from another bedroom in the home.

          On cross-examination, Detective Porter provided contradictory testimony as to the location of the narcotics. Porter first testified that the cocaine on the entertainment stand was found in the same bedroom as the marijuana and miscellaneous documents found in the gray shoe box. Later, during cross-examination, he testified that he recovered the gray box in a different bedroom. Although he confirmed that marijuana was found in two separate rooms, he was unclear as to the room in which he found the miscellaneous documents, including the bank statement, the identification cards, and the temporary permit. Porter recalled that one bank statement was found on the entertainment stand, and he believed that the other bank statement was also found with the cocaine, “because that’s where most of the documents were found.” Later, Porter reiterated that the three identification cards—the Contractors’ Safety Counsel card, the Texas Department of Criminal Justice card, and the temporary driver’s license permit—were found in the room where the cocaine was located.

          Officers did not attempt to lift fingerprints from any of the evidence collected at the residence. The contraband, however, was submitted to the laboratory, which confirmed that it was cocaine weighing 18.1 grams and marijuana weighing 0.67 ounces. The parties stipulated to the weight and identification of the contraband. Discussion

Sufficiency of the Evidence

          In his first four points of error, appellant contends there is insufficient evidence to support his conviction. In points one through three, appellant argues that the evidence is legally insufficient because the evidence (1) “fails to show an affirmative link between appellant and the controlled substance” and (2) “fails to show appellant had knowledge of the controlled substance.” In his fourth point of error, appellant asserts that the evidence is factually insufficient because the “evidence fails to place appellant in possession of the contraband.”

          In reviewing a claim of legal insufficiency, we view the evidence in a light most favorable the verdict to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Valencia v. State, 51 S.W.3d 418, 423 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). We resolve any inconsistencies in the evidence in favor of the verdict. See Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). We are not permitted to substitute our judgment for that of the jury. King, 29 S.W.3d at 562.

          In reviewing factual sufficiency, we examine all the evidence neutrally and ask whether the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination or so greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); King, 29 S.W.3d at 563. While conducting our analysis, if there is probative evidence supporting the verdict, we must avoid substituting our judgment for that of the trier-of-fact, even when we disagree with the determination. King, 29 S.W.3d at 563. The trier-of-fact is the sole judge of the weight and credibility of the witness testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

          Under the law applicable to this case, to establish unlawful possession of a controlled substance, the State must prove (1) that the accused exercised care, control, custody or management over the contraband and (2) that he knew the matter possessed was contraband. Tex. Health & Safety Code Ann. §§ 481.002, 481.115 (Vernon 2003); Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Reynolds v. State, 981 S.W.2d 926, 928 (Tex. App.—Houston [1st Dist.] 1998, no pet.). Possession of the contraband need not be exclusive. Harrison v. State, 555 S.W.2d 736, 737 (Tex. Crim. App. 1977). Mere presence at a place where the substance is possessed does not, in itself, justify a finding of possession. Id. Where the accused is not in exclusive control over the contraband, the State must affirmatively link the defendant with the drugs. Brown, 911 S.W.2d at 747; Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). Affirmative links demonstrate that the defendant was conscious of his connection with the contraband and knew what it was. Brown, 911 S.W.2d at 747. Circumstantial evidence is sufficient to prove possession as long as the evidence affirmatively links the accused to the contraband by showing that his connection with it was more than fortuitous. Id.

          Affirmative links are “those secondary facts that indicate the accused’s knowledge and control of the contraband.” Martinets v. State, 884 S.W.2d 185, 188 (Tex. App.—Austin 1994, no pet.). Affirmative links are established by a totality of the circumstances. Hyett v. State 58 S.W.3d 826, 830 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). The factors that establish affirmative links include whether (1) the defendant was present when the drugs were found; (2) the contraband was in plain view; (3) the defendant was in proximity to the drugs and had access to them; (4) the defendant was under the influence of drugs when arrested; (5) the defendant possessed other contraband; (6) the defendant made incriminating statements when arrested; (7) the defendant attempted to flee; (8) the defendant made furtive gestures; (9) there was an odor of drugs; (10) the defendant owned or had the right to possess the place where the drugs were found; (11) the drugs were found in an enclosed place; (12) the amount of drugs found was significant; (13) the defendant possessed weapons; and (14) the defendant possessed a large amount of cash. Hurtado v. State, 881 S.W.2d 738, 743 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). None of these factors are necessarily determinative; when examining the affirmative links, the number of factors present is not as important as the logical force they have in establishing the offense and the degree to which they, alone or together, tend to affirmatively link the accused to the drug. Id.; Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). The evidence need not exclude every reasonable hypothesis other than the defendant’s guilt, but it must show facts and circumstances that demonstrate the defendant’s knowledge and control of the contraband. Brown, 911 S.W.2d at 748.

          Viewed in the light most favorable to the verdict, the evidence in this case establishes affirmative links that raise reasonable inferences of appellant’s knowledge and control of the cocaine. First, appellant was present at the house when it was searched. Although appellant disputes owning the home, Detective Porter testified that clothing in the room where the narcotics were found “appeared to be the same size as appellant.” See Pigg v. State, 760 S.W.2d 330 (Tex. App.—Beaumont 1988, no pet.) (clothes that fit the defendant were found in the closet where drugs were seized). There was also evidence establishing appellant’s occupancy of the premises. See Villegas v. State, 871 S.W.2d 894, 897 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Several pieces of identification were located in the bedroom where the cocaine was discovered: a Contractors’ Safety identification card in appellant’s name, a Texas Department of Criminal Justice identification card bearing appellant’s name and picture, and a temporary driver’s permit issued five days prior to the search warrant and listing 12209 Myrtle as appellant’s residence. Two bank statements were also recovered from the room where the contraband was found. In the box containing marijuana, there was a bank statement from 1999 bearing appellant’s name and account information. On the entertainment stand where the cocaine was found, Porter recovered a bank statement in appellant’s name from 2000. See Herrera v. State, 561 S.W.2d 175 (Tex. Crim. App. 1978) (letters addressed to the defendant were in the apartment where contraband was found).

          The cocaine was also easily located. Once Rudy “alerted” to the entertainment stand, Foose kneeled down and saw, on the bottom shelf of the stand, an obvious “crack cocaine cookie” on a “saucer plate” with a razor blade lying beside it. Furthermore, the amount of cocaine found in appellant’s room was significant—more than four grams, an amount large enough to indicate the accused knew of its existence. See Carvajal v. State, 529 S.W.2d 517, 520 (Tex. Crim. App. 1975). Finally, appellant possessed other contraband. Officers also recovered additional drugs and paraphernalia inside the room where the cocaine was discovered, including a razor blade, which Foose testified was used to cut up the cocaine, marijuana, and cigars used to make marijuana joints. Viewed in the light most favorable to the prosecution, the evidence is legally sufficient to support the jury’s finding that appellant possessed cocaine.

          In support of his factual sufficiency argument, appellant argues that “the court should assess the credibility of the two officers who entered the house and testified for the State.” Credibility and the weight to be given evidence are for the jury, not for this court. Johnson, 23 S.W.3d at 7. Here, appellant presented no testimony or evidence. He contends rather that “without Foose’s testimony virtually no connection to appellant exists,” particularly in light of Porter’s testimony. We must show deference to the jury finding. Cain v. State, 958 S.W.2d 404, 409 (Tex. Crim. App. 1997). Viewing the evidence neutrally, we find that the jury could have reasonably concluded from the evidence that appellant possessed cocaine. A jury decision is not manifestly unjust merely because the jury resolved conflicting testimony in favor of the State. Id. at 410. We hold that the evidence was factually sufficient to support the jury’s finding that appellant was guilty of possession of cocaine.

          We overrule appellant’s first four points of error.

Identification Card

          In his fifth point of error, appellant argues that the trial court erred in admitting into evidence a Texas Department of Criminal Justice (TDCJ) inmate identification card over his objection that its probative value was outweighed by the prejudicial effect. Appellant contends that the admission of the TDCJ card amounted to extraneous misconduct evidence, which “had an enormous potential to impress the jury in an irrational and indelible manner.” Although appellant objected to both relevancy and prejudice at trial, on appeal appellant challenges only the admission of the TDCJ identification card, on the ground that its prejudicial effect outweighs its probative value.

          Rule 403 of the Texas Rules of Evidence governs the exclusion of relevant evidence on special grounds. Rule 403 provides that “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Tex. R. Evid. 403. Once a defendant objects to evidence on the basis of Rule 403, the trial court must weigh the probative value of the evidence against its potential for unfair prejudice. Rule 403 favors admissibility and contains a presumption that relevant evidence will be more probative than prejudicial. Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002); Montgomery v. State 810 S.W.2d 372, 376 (Tex. Crim. App. 1990). A trial court has broad discretion to admit or exclude evidence. Montgomery, 810 S.W.2d at 390. This Court will reverse only upon a clear abuse of discretion    ,       i.e.      , only when the trial court’s decision was outside the zone of reasonable disagreement. See id. at 390-91.

              The Texas Department of Criminal Justice (TDCJ) identification card, State’s exhibit 14, contained a photo of appellant, his birth date, and the word inmate in large red letters across the card. Appellant argues that the exhibit “had almost no probative value.” However, the record reveals that the TDCJ card was relevant and probative because it helped establish a link between appellant and the contraband. Appellant was charged with possession of cocaine, and thus, the State had the burden of proving, as an element of the offense, that appellant exercised control of the substance and that he knew the substance was contraband. The State did so in part by showing that the TDCJ card, along with other identification cards and paperwork, was found in the same room as the cocaine. Not only was the TDCJ card probative and relevant to help link appellant to the drugs, it also rebutted appellant’s defensive theory that he did not reside at the house.

          In Ecby v. State, 840 S.W.2d 761 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d), this Court held that a trial court erred in admitting into evidence a Texas Department of Corrections identification card. The card was found in the appellant’s glove compartment after a robbery was committed and was used only in a lineup to establish the appellant as the robber. The court held that the inmate card had no separate relevance other than tending to show character conformity and, without additional relevance, the evidence was inadmissible. The court found that the inmate card was not used to establish appellant’s identity as the individual robbing the store and therefore it was irrelevant for the case. Id.

          In the present case however, the evidence establishes an element of the crime charged, by affirmatively linking appellant to the drugs to establish that appellant had possession. See Montgomery, 810 S.W.2d at 387 (if the evidence establishes an element of the crime charged, it may be sufficient to give the evidence additional relevance). Therefore, unlike in Ecby, the identification card has additional relevance than merely showing that appellant was an inmate. See Escobar v. State, 825 S.W.2d 254, 256 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). The TDCJ card was highly probative in linking appellant to the contraband. Although other identification cards and documents in the name of appellant were present in the same room as the TDCJ card and the cocaine, in order to show unlawful possession, circumstantial evidence must affirmatively link the accused to the contraband by showing his connection with it was more than fortuitous. Brown, 911 S.W.2d at 747.

          Furthermore, although the TDCJ identification card also suggested that appellant had engaged in extraneous misconduct, the State did not focus on this point. Nor did the State use the TDCJ card to inflame the minds of the jury or to prejudice the jury against the appellant. Although the TDCJ card was not redacted, it did not state the crime for which appellant was convicted or the date of his conviction. The testimony concerning the card was brief and only in the context of what forms of identification were found in the residence. Also, during the State’s closing argument, the identification card was only briefly discussed.

          After considering all the facts and circumstances of the case, we cannot conclude that the trial court erred by determining the probative value of the TDCJ identification card was not substantially outweighed by any unfair prejudice. We overrule appellant’s fifth point of error.

Conclusion

          We affirm the judgment.

                                                             Evelyn V. Keyes

                                                             Justice

Panel consists of Justices Taft, Nuchia, and Keyes.

Do not publish. Tex. R. App. P. 47.2(b).