Albert Ray Holder v. State of Texas ( 2008 )

Opinion filed June 18, 2008

Opinion filed June 18, 2008

In The

    Eleventh Court of Appeals

____________

No. 11-06-00347-CR

__________

ALBERT RAY HOLDER, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CR18-229

M E M O R A N D U M   O P I N I O N

Albert Ray Holder was indicted for possession of methamphetamine in the amount of one gram or more but less than four grams, enhanced by two prior felonies.  He pleaded not guilty and proceeded to a jury trial.  The jury returned a guilty verdict.  The court assessed his punishment at fifty years in the Texas Department of Corrections, Institutional Division.  We affirm.

Issue on Appeal

Appellant asserts on appeal that the trial court erred in failing to grant his motion for directed verdict because the evidence was factually insufficient to sustain a conviction for possession of methamphetamine.^[1]    

Standard of Review

In reviewing the legal sufficiency of the evidence, we consider all of the evidence in the record in the light most favorable to the trial court=s verdict and determine whether, based upon that evidence and all reasonable inferences therefrom, any rational trier of fact could have found that appellant was guilty beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307 (1979).

 To determine if the evidence is factually sufficient, the appellate court reviews 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, the reviewing court determines 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.

Analysis

Appellant was driving a pickup late at night when Brownwood Police Officer Michael Taylor initiated a traffic stop for defective taillights and failing to signal a left turn.  Officer Taylor identified appellant by his driver=s license.  A check on appellant=s driver=s license revealed that it was suspended.  Officer Taylor placed appellant under arrest for driving with a suspended license and searched the vehicle pursuant to the arrest. In the search, he found 1.58 grams of methamphetamine.

Appellant argues that there was not sufficient evidence to show that he was in exclusive possession of the methamphetamine.  Appellant further argues that the only evidence showing that he possessed the methamphetamine was the testimony of an accomplice that was not corroborated.

To prove unlawful possession of a controlled substance, the State must show 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). When it is shown that the accused did not have 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); Isbell v. State, 246 S.W.3d 235, 238 (Tex. App.CEastland 2007, no pet.). Affirmative links are shown when there is evidence of circumstances Athat 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).

The State cannot rely solely on the testimony of an accomplice to obtain a conviction.  Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005).  Article 38.14 provides:

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

To determine whether an accomplice=s testimony is corroborated, we eliminate the accomplice testimony and review the remaining evidence to determine whether it tends to connect the defendant to the offense.  Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001).  The corroborating evidence does not need to directly connect the defendant to the crime or be sufficient by itself to establish guilt; it need only tend to connect the defendant to the offense.  Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999).  If, however, the corroborating evidence does no more than point the finger of suspicion toward the accused, it is insufficient to satisfy the requirement.  Nolley v. State, 5 S.W.3d 850, 852 (Tex. App.CHouston [14th Dist.] 1999, no pet.).

 Officer Taylor testified that, when he searched the vehicle, he found a black pouch Abehind the seat toward the middle on the right-hand side where the defendant would be sitting between the backseat and the cab.@  He testified that in the black pouch was (1) a white syringe with an orange cap and (2) two small bags containing a white powdery crystal substance.  Officer Taylor testified that he believed the substance to be methamphetamine.  A chemist testified that the substance was tested and confirmed to be 1.58 grams of methamphetamine.

Rachelle Roberts testified that she was a passenger in the vehicle appellant was driving on the night he was stopped.  She testified that she and appellant were at a mutual friend=s house Ashooting up@ methamphetamine.  They left the house to go to Allsup=s to cash in a lottery ticket when Officer Taylor stopped them.  Roberts identified the syringe that Officer Taylor found in the vehicle as being the same syringe that she and appellant were using to inject the methamphetamine. Roberts testified that appellant had brought the methamphetamine to their friend=s house.  She also identified the black pouch found in the vehicle as the container in which appellant carried the methamphetamine.

Roberts further testified that appellant called her from the jail several days after he was arrested.  She testified that he told her that he would keep her name out of it if she could post his bond.  She also testified that, during that conversation, appellant admitted the drugs were his.  A tape recording of their conversation was entered into evidence.  The tape recording confirmed Roberts=s testimony regarding the conversation.  On the tape recording, appellant admitted the methamphetamine belonged to him.

The evidence is legally and factually sufficient to support the jury=s verdict.  Even though appellant was not in exclusive possession of the place where the contraband was found, the circumstances justify the jury=s conclusion that appellant exercised care, custody, control, or management over the substance and that he knew the substance possessed was contraband.  The evidence showed that the contraband was found in the vehicle that appellant was driving and that it was within appellant=s reach.  Roberts=s testimony further linked appellant to the drugs.  Her testimony established that, prior to being stopped, she and appellant were using the drugs with the same syringe that was found in the vehicle.  Her testimony also established that appellant had provided the drugs  and that he had brought the drugs with him in the black pouch that Officer Taylor had discovered in the search of the vehicle.

 Roberts=s testimony was corroborated by the tape recording of their phone conversation.  The tape recording connected appellant to the offense because he admitted that the drugs were his.  The conviction was not based solely on Roberts=s testimony.  We overrule appellant=s issue on appeal.

Conclusion

We affirm the judgment of the trial court.

June 18, 2008 RICK STRANGE

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

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.

---

^[1]    We note that an issue complaining about the trial court=s ruling on a directed verdict is actually a challenge to the legal sufficiency of the evidence.  Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996).  However, because appellant raises it as a factual sufficiency issue, we will address both the factual and legal sufficiency of the evidence.