Alfred Gene Davis, Sr. v. State ( 2006 )

Opinion filed December 14, 2006

Opinion filed December 14, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-05-00115-CR

                                                    __________

                               ALFRED GENE DAVIS, SR., Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                          On Appeal from the 39th District Court

                                                         Haskell County, Texas

                                                     Trial Court Cause No. 6034

                                                                   O P I N I O N

The jury convicted Alfred Gene Davis, Sr. of possession of methadone in an amount of one gram or more but less than four grams.  Tex. Health & Safety Code Ann. ' 481.102(4) (Vernon Supp. 2006), ' 481.115 (Vernon 2003).  The jury found that two enhancement allegations were true and assessed punishment at ninety-nine years confinement and a $10,000 fine. Appellant challenges his conviction in three issues.  We affirm.

                                                               Background Facts

Law enforcement officers of Haskell executed a search warrant on a residence located in Haskell on the morning of July 14, 2004, for the purpose of searching for cocaine. The officers found three occupants in the house at the time of the search: appellant, Donna McCulloch, and appellant=s father.  Appellant was in the north bedroom of the house.  Haskell Police Officer William Alexander Glass testified that appellant and McCulloch had lived together at the house since April or May 2004.  He also testified that appellant=s father had been visiting appellant and McCulloch for a period of about two days. Officer Glass said that he knew appellant and McCulloch would be at the house at the time of the search.  He also said that appellant and McCulloch had lived together at other residences in the past.  Haskell County Deputy Sheriff Winston Stevens testified that he had known appellant and McCulloch for about three years.  He said that appellant and McCulloch were boyfriend and girlfriend and that they had lived together for some time.

Officer Glass testified about the search of the house.  He and Haskell Police Officer Donald Matthew Cunningham searched the north bedroom of the house.  Officer Glass testified that the north bedroom was the main bedroom in the house, that there was a bed on the north wall of the bedroom, that there was a recliner by the bed, that there was a dresser on the north wall, and that there was a dresser on the south wall.  Officer Glass found a Ahuge crack pipe@ on top of a pile of men=s clothes on the recliner.  The officers discovered other contraband in the north bedroom. Officer Cunningham found money that had been hidden in a lamp.  The officers also found two pill bottles containing pills on each of the dressers in the room.  The prescription label had been torn off of one of the pill bottles on the north dresser.  Officer Cunningham testified that this pill bottle contained pretty large tablets. Officer Glass testified that this pill bottle was in plain view.  Testing of the tablets at a Department of Public Safety laboratory showed that the tablets contained methadone.  The other pill bottle on the north dresser had a prescription label with McCulloch=s name on it and contained two types of pills. Some of the pills in the bottle matched the prescription label, but the other pills in the bottle did not match the prescription label.  The two pill bottles on the south dresser had prescription labels with McCulloch=s name on them and contained multiple types of pills.  Officer Glass collected the evidence.

Officer Glass testified that he saw Amen=s stuff@ and clothes on the north dresser in the north bedroom.  Officer Cunningham searched the contents of the north dresser.  He said that he found men=s clothing in the dresser.

Officer Cunningham retrieved his drug-sniffing dog to assist in the search.  The dog alerted on McCulloch.  The dog did not alert on appellant or on appellant=s father.  Haskell County Constable Kim Bassett took McCulloch into the bathroom and conducted a strip-search of McCulloch.  During the search, McCulloch took an item from her shorts and threw it into the toilet. Constable Bassett prevented McCulloch from flushing the toilet. Officer Glass retrieved the item from the toilet.  The item was a small bag containing rocks of an off-white substance.  Officer Glass believed that the substance was cocaine. As a result of the search, the State charged McCulloch with possession of cocaine.  The State did not charge appellant with possession of cocaine.

                                                        Sufficiency of the Evidence

In his first two issues, appellant contends that the evidence is legally and factually insufficient to support his conviction for possession of methadone.  In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines 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, 319 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000).  In order to determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light.  Watson v. State, 2006 WL 2956272, at *8 (Tex. Crim. App. Oct. 18, 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, 2006 WL 2956272, at *8; Johnson, 23 S.W.3d at 10-11. The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses= testimony.  Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981), art. 38.04 (Vernon 1979).

In a possession-of-a-controlled-substance case, the State must prove, either directly or circumstantially, that the accused exercised actual care, custody, control, or management over the contraband and that the accused knew the matter possessed was contraband.  Tex. Health & Safety Code Ann. ' 481.002(38) (Vernon Supp. 2006); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005).  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 there is no evidence that the accused was in exclusive control of the place where the contraband was found, the State must offer additional, independent facts and circumstances affirmatively linking the accused to the contraband.  Poindexter, 153 S.W.3d at 406.  The evidence must affirmatively link the accused to the offense so that one may reasonably infer that the accused knew of the contraband=s existence and exercised control over it. Linton v. State, 15 S.W.3d 615, 619 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). The purpose of affirmatively linking the accused to the contraband is to protect innocent bystanders from conviction based solely on their fortuitous proximity to the contraband.  Id.  Mere presence at the location where drugs are found is, thus, insufficient by itself to establish actual care, custody, or control of those drugs.  Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006).  However, presence or proximity when combined with other evidence either direct or circumstantial (e.g., Alinks@) may well be sufficient to establish that element beyond a reasonable doubt.  Id.

Factors that may affirmatively link an accused to contraband include the following: (1) whether the accused was present when the search was conducted; (2) whether the contraband was in plain view; (3) whether the accused was in close proximity to and had access to the contraband; (4) whether the accused was under the influence of narcotics when arrested; (5) whether the accused possessed other contraband or narcotics when arrested; (6) whether the accused made incriminating statements when arrested; (7) whether the accused attempted to flee; (8) whether the accused made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia was present; (11) whether the accused owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the accused was found with a large amount of cash; and (14) whether the conduct of the accused indicated a consciousness of guilt.  Evans, 202 S.W.3d at 162 n.12; Swarb v. State, 125 S.W.3d 672, 684 (Tex. App.CHouston [1st Dist.] 2003, pet. dism=d); Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d).  No set formula exists to dictate a finding of affirmative links sufficient to support an inference of knowing possession of contraband.  Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.CDallas 2003, no pet.).  The number of factors present is not as important as the logical force or the degree to which the factors, alone or in combination, tend to affirmatively link the defendant to the contraband.  Bates v. State, 155 S.W.3d 212, 216-17 (Tex. App.CDallas 2004, no pet.); Hurtado v. State, 881 S.W.2d 738, 743 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d); Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.CAustin 1991, pet. ref=d).

The State established several affirmative links between appellant and the methadone.  The evidence showed that appellant was present when the officers conducted the search of the house.  The methadone tablets were in plain view on the north dresser in the north bedroom.  The officers found appellant in the north bedroom when they conducted the search. Thus, appellant was in close proximity and had access to the methadone when the officers found him.  Officer Glass found the crack pipe on the recliner in the north bedroom.  Therefore, the evidence showed that other drug paraphernalia or contraband was present in the north bedroom.  The evidence also showed that appellant had the right to possess the place where the officers found the methadone.  Officer Glass and Constable Stevens both testified that appellant and McCulloch lived together at the house. Officer Glass said that appellant and McCulloch had lived together at the house for about two or three months before the search and that they had lived together in other residences in the past. Constable Stevens said that appellant and McCulloch had lived together as boyfriend and girlfriend for some period of time.  Officer Glass saw Amen=s stuff and clothes@ on the north dresser in the north bedroom, and he saw a pile of men=s clothes on the recliner in the north bedroom.  Officer Cunningham found men=s clothing when he searched the contents of the dresser.  We find that these affirmative links sufficiently linked appellant to the methadone to support his conviction.

Applying the applicable standards of review, the evidence is legally and factually sufficient to support appellant=s conviction for possession of methadone.  We overrule appellant=s first and second issues.

                                                            Admission of Evidence

In his third issue, appellant complains that the trial court erred in admitting evidence relating to the search of McCulloch and the discovery of the crack pipe. Appellant argues that this evidence was inadmissible under Tex. R. Evid. 404(b).

To be admissible, evidence must be relevant.  Tex. R. Evid. 401 & 402.  Evidence of other crimes, wrongs, or bad acts is not admissible to show character conformity but may be admissible for other purposes, such as establishing an elemental fact, establishing an evidentiary fact that leads to an elemental fact, or rebutting a defensive theory. Rule 404(b); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).  Rule 404(b) provides that evidence of other crimes, wrongs, or bad acts may be admissible for proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.  Further, although relevant evidence may be admissible under Rule 404(b), evidence may still be inadmissible under Tex. R. Evid. 403.  When performing a Rule 403 balancing test, a trial court must determine if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.  Montgomery, 810 S.W.2d at 389.  In making this determination, the trial court should consider the following: (1) whether the ultimate issue was seriously contested by the opponent of the evidence; (2) whether the State had other convincing evidence to establish the ultimate issue to which the disputed evidence was relevant; (3) the compelling nature, or lack thereof, of the evidence; and (4) the likelihood that the evidence was of such a nature as to impair the efficacy of a limiting instruction.  Taylor v. State, 920 S.W.2d 319, 322 (Tex. Crim. App. 1996); Montgomery, 810 S.W.2d at 392-93.  The trial court should also consider how much time the State will need to develop the extraneous offense evidence and the potential for the evidence to affect the jury in some irrational way.  Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999).  We will reverse the trial court=s ruling only upon a showing of a clear abuse of discretion.  Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000); Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1996); Montgomery, 810 S.W.2d at 390.  An abuse of discretion is shown if the ruling was outside the zone of reasonable disagreement.  Montgomery, 810 S.W.2d at 391.

Evidence of extraneous transactions may be admitted in drug possession cases when the transactions Atend to prove the requisite affirmative link to the contraband.@ Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995) (quoting Saenz v. State, 843 S.W.2d 24, 27 (Tex. Crim. App. 1992)).  One affirmative link factor is whether other contraband or drug paraphernalia was present.  See Evans, 202 S.W.3d at 162 n.12.  In this case, the officers found the crack pipe in the north bedroom of the house and discovered rocks of an off-white substance during the search of McCulloch.  This evidence was relevant to the issue of whether or not other contraband and drug paraphernalia were present in the house.  See Saenz, 843 S.W.2d at 27.  The evidence tended to prove an affirmative link between appellant and the methadone.  As such, the evidence was relevant to show appellant=s knowledge or intent to possess the methadone and was not inadmissible under Rule 404(b).

To prove appellant guilty of the offense of possession of the methadone, the State had the burden to prove facts and circumstances affirmatively linking appellant to the methadone.  See Poindexter, 153 S.W.3d at 406.  The State had to offer evidence relating to other items discovered in the search to fully establish the affirmative links between appellant and the methadone.  The evidence relating to the search of McCulloch and the discovery of the crack pipe had high probative value in affirmatively linking appellant to the methadone.  Applying the Rule 403 balancing test, the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice.  Therefore, the trial court did not abuse its discretion in admitting it.  We overrule appellant=s third issue.

                                                               This Court=s Ruling

We affirm the judgment of the trial court.

TERRY McCALL

JUSTICE

December 14, 2006

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

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.