Billy Terrell Williams v. State ( 2008 )

Opinion filed February 14, 2008

Opinion filed February 14, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-06-00148-CR

                                                     __________

                              BILLY TERRELL WILLIAMS, Appellant

                                                            V.

                                       STATE OF TEXAS, Appellee

                                        On Appeal from the 410th District Court

                                                   Montgomery County, Texas

                                          Trial Court Cause No. 05-10-09463-CR

                                                                  O P I N I O N

The jury convicted appellant of possession of a controlled substance and unlawful possession of a firearm by a felon.  The trial court assessed his punishment at confinement for a term of ten years in the Institutional Division of the Texas Department of Criminal Justice on each of the offenses with the sentences to run concurrently.  Appellant challenges his convictions in two issues.  We affirm.

                                                               Background Facts

In the early morning hours of September 29, 2005, Officer Michael Stowe of the Conroe Police Department conducted a patrol of a high-crime area of the city. He observed a pickup parked on the wrong side of the road.  See Tex. Transp. Code Ann. ' 545.303(a) (Vernon Supp. 2007).  He also observed that the pickup was parked more than eighteen inches away from the curb.  Id.  Officer Stowe observed appellant in the driver=s seat and another male as a passenger in the vehicle.  Appellant attempted to walk away from the vehicle when Officer Stowe made contact with the vehicle=s occupants.  Officer Stowe recognized appellant from previous encounters between the two.

After instructing appellant to stand behind the pickup, Officer Stowe spoke with the male sitting in the passenger-side seat.  Officer Stowe observed that the passenger appeared to be very intoxicated.  However, Officer Stowe did not detect the smell of alcohol on the passenger.  After removing the passenger from the vehicle, Officer Stowe examined the interior of the pickup with the aid of a flashlight through the open passenger-side door.  Officer Stowe observed the butt of a handgun underneath the driver-side seat of the pickup.

Officer Stowe subsequently arrested appellant for possession of a firearm by a felon. He arrested the passenger for public intoxication.  Appellant and the passenger were placed into the backseat of Officer Stowe=s patrol car for transport to jail.  Upon removing appellant from the patrol car at the jail, Officer Stowe retrieved a plastic bag containing cocaine from the backseat floorboard area of the patrol car where appellant=s feet had been located while he was inside the patrol car.

Appellant testified in his own behalf at trial.  He stated that the pickup belonged to the passenger and that he was driving the passenger home because the passenger was intoxicated. Appellant denied knowing that the gun was inside of the pickup.  He also denied possession of the drugs that Officer Stowe found in the back of the patrol car.

                                                                         Issues

Appellant challenges the legal and factual sufficiency of the evidence supporting his convictions in his second issue.  In his first issue, he alleges that the trial court erred in denying his motion to suppress Officer Stowe=s discovery of the firearm. 

                                                        Sufficiency of the Evidence

In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000).  To determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10‑11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407‑08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, we must determine whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence.  Watson, 204 S.W.3d at 414‑15; Johnson, 23 S.W.3d at 10‑11. We must also give due deference to the jury=s determinations of fact, particularly those determinations concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d at 8‑9.

Appellant bases his evidentiary challenge to the drug possession conviction on the contention that he was not the sole occupant of the backseat area of the patrol car where the drugs were found.  He argues that the evidence more strongly points to the passenger as the source of the drugs based upon the passenger=s intoxication by a non-alcohol substance.  In cases involving unlawful possession of a controlled substance, the State must prove that the accused exercised care, custody, control, or management over the substance and that the accused knew the matter possessed was contraband.  Tex. Health & Safety Code Ann. ' 481.002(38) (Vernon Supp. 2007); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988).  The State does not have to prove the accused had exclusive possession of the contraband; joint possession is sufficient to sustain a conviction.  Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). When the accused is not shown to have had exclusive possession of the place where the contraband was found, the evidence must affirmatively link the accused to the contraband.  Pollan v. State, 612 S.W.2d 594, 596 (Tex. Crim. App. 1981).  The Court of Criminal Appeals has recently stated that the legal issue with respect to such Alinks@ is Awhether there was evidence of circumstances, in addition to mere presence, that would adequately justify the conclusion that the defendant knowingly possessed the substance.@ Evans v. State, 202 S.W.3d 158, 161‑62 n.9 (Tex. Crim. App. 2006).

While the passenger had presumably been in possession of a controlled substance at some point given his intoxicated state, the other facts point toward appellant as the source of the drugs found in the patrol car.  We initially note that Officer Stowe testified that he inspected the backseat area of his patrol car prior to beginning his shift.  He also inspected the backseat area with his flashlight before placing appellant into the patrol car.  Officers conducted a more thorough search of the passenger than they did of appellant before placing them in the backseat of the patrol car.  In this regard, the passenger was only wearing a T-shirt and boxer shorts at the time of the arrest while appellant was fully clothed.  Officer Stowe testified that the passenger was a large person and that he could barely move inside of the patrol car with his hands handcuffed behind him.  Conversely, appellant fidgeted during the entire trip from the arrest scene to the jail.  Officer Stowe discovered the drugs on the side of the backseat floorboard where appellant sat.  Additionally, Officer Stowe testified that appellant was initially talkative at the jail but that he stopped talking when Officer Stowe reported the discovery of the drugs.

Appellant bases his evidentiary challenge to the firearm possession conviction on the fact  that he was driving his intoxicated friend home in the friend=s vehicle.  We analyze the sufficiency of the evidence to prove possession of a firearm by a felon under the rules adopted for determining the sufficiency of the evidence in cases of possession of a controlled substance.  Bollinger v. State, 224 S.W.3d 768, 773 (Tex. App.CEastland 2007, pet. ref=d); Nguyen v. State, 54 S.W.3d 49, 52 (Tex. App.CTexarkana 2001, pet. ref=d). The State must prove the following:  (1) that the accused exercised actual care, control, or custody of the firearm; (2) that he was conscious of his connection with it; and (3) that he possessed the firearm knowingly or intentionally.  Bollinger, 224 S.W.3d at 773.  The State does not have to prove that the accused had exclusive possession of the firearm; joint possession is sufficient to sustain a conviction.  Cude, 716 S.W.2d at 47; Bollinger, 224 S.W.3d at 774.  The State can meet its burden with direct or circumstantial evidence, but it must establish that the defendant=s connection with the firearm was more than fortuitous.  Brown v. State, 911 S.W.2d  744, 747 (Tex. Crim. App. 1995); Bollinger, 224 S.W.3d at 774.

When the firearm is not found on the accused=s person or is not in the accused=s exclusive possession, additional facts must affirmatively link the accused to the firearm. Bollinger, 224 S.W.3d at 774; Jones v. State, 963 S.W.2d 826, 830 (Tex. App.CTexarkana 1998, pet. ref=d). Factors that may establish affirmative links include the following: whether the firearms were in a car driven by the accused, whether the firearms were in a place owned by the accused, whether the firearms were conveniently accessible to the accused, whether the firearms were found in an enclosed space, and whether the accused made any affirmative statement connecting him to the firearms.  Bollinger, 224 S.W.3d at 774; Corpus v. State, 30 S.W.3d 35, 38 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). No set formula of facts exists to dictate a finding of affirmative links sufficient to support an inference of knowing possession. Bollinger, 224 S.W.3d at 774; Taylor v. State, 106 S.W.3d 827, 830 (Tex. App.CDallas 2003, no pet.). Officer Stowe found the firearm underneath the driver=s seat of the pickup.  Thus, the firearm was located in an area that was readily accessible by appellant.  Furthermore, the firearm was visible to the vehicle=s occupants because Officer Stowe observed it from his position of standing in the passenger-side doorway.

We conclude that any rational trier of fact could have found that appellant possessed the drugs and the firearm beyond a reasonable doubt.  Furthermore, the evidence supporting the convictions was not so weak that the verdicts are clearly wrong and manifestly unjust and the conflicting evidence is not so great as to outweigh the evidence supporting the verdicts.  Appellant=s denial that he knowingly possessed the drugs or the firearm is primarily a credibility question that was within the province of the jury to accept or reject.  Appellant=s second issue is overruled.

                                                               Motion to Suppress

We review a trial court=s ruling on a motion to suppress evidence for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).  In reviewing a trial court=s ruling on a motion to suppress raising a Fourth Amendment claim, appellate courts must give great deference to the trial court=s determination of historical facts while reviewing the trial court=s application of Fourth Amendment search and seizure law de novo. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  An appellate court must view the evidence in the light most favorable to the trial court=s ruling.  State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).  We also give deference to the trial court=s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor.  Guzman, 955 S.W.2d at 89. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court=s actions de novo.  Id.; Myers v. State, 203 S.W.3d 873, 879 (Tex. App.CEastland 2006, pet. ref=d). 

Appellant asserts in his first issue that the trial court erred in overruling his motion to suppress Officer Stowe=s discovery of the firearm.  He argues that the gun was not in plain view and that Officer Stowe lacked probable cause to conduct a warrantless search of the pickup.  Appellant also contends that Officer Stowe=s examination of the pickup=s interior did not constitute a valid search incident to arrest.  We disagree with appellant=s analysis of Officer Stowe=s actions.

Officer Stowe testified that he leaned inside of the pickup and illuminated its interior in order to conduct a protective search for weapons.  During the course of a temporary detention, an officer may conduct a limited search for weapons if reasonably warranted for his safety or the safety of others. Terry v. Ohio, 392 U.S. 1, 27 (1968).  The search may include the passenger compartment of an automobile if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and that the suspect may gain immediate control of weapons.  Michigan v. Long, 463 U.S. 1032, 1050‑51 (1983).  Officer Stowe testified that he knew appellant from previous encounters and that he knew that appellant was a convicted felon.  Officer Stowe also testified that he knew appellant was an aggressive person.  Officer Stowe further testified that the area where the stop occurred was a high-crime area and that there were other persons near the scene.  Based upon this testimony, the trial court concluded that Officer Stowe was justified in making a protective sweep of the vehicle for weapons.  We conclude that the trial court did not abuse its discretion in making this determination.  Moreover, Officer Stowe conducted his protective sweep of the vehicle after he determined that the passenger was intoxicated.  AOnce an officer determines that there is probable cause to make an arrest, it is reasonable to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment [of an automobile].@  Glazner v. State, 175 S.W.3d 262, 265 (Tex. Crim. App. 2005).  Appellant=s first issue is overruled.

                                                               This Court=s Ruling

The judgment of the trial court is affirmed.

February 14, 2008                                                                               TERRY McCALL

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

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.