Sergio Morales v. State ( 2006 )

Affirmed and Memorandum Opinion filed July 27, 2006

Affirmed and Memorandum Opinion filed July 27, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00568-CR

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SERGIO MORALES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 1013126

M E M O R A N D U M   O P I N I O N

            After a bench trial, appellant Sergio Morales was found guilty of possession of cocaine weighing less than one gram.  See Tex. Health & Safety Code Ann. § 481.112 (Vernon 2003).  The trial court sentenced appellant to nine months confinement in the Texas Department of Criminal Justice, State Jail Division.  In one issue, appellant argues the evidence is legally and factually insufficient to prove he knowingly exercised care, custody, control or management of the cocaine.  We affirm.

I.  Factual and Procedural History

            Harris County Sheriff’s Officer Armando Tamez was dispatched to an apartment complex to investigate narcotic activity.  As part of his investigation, he went to an apartment leased by Oscar Arroyo.  Arroyo consented to a search of the apartment.  Upon entering, Tamez observed appellant and three other individuals inside.  Appellant resided at the apartment.   Tamez entered appellant’s bedroom and discovered a plastic bag containing ten white pills he believed to be Xanax. Tamez asked about the pills, and appellant responded the pills were his and he purchased them from an unknown black male at a gasoline station.  He also told Tamez that he previously purchased cocaine from this same male, and that he “snorts” cocaine when drinking alcohol.  When Tamez searched the apartment’s  kitchen, he found several plastic bags in a kitchen drawer. Two of the bags contained cocaine residue, and the other bag contained cocaine.  Two scales were also found in the kitchen.  When Officer Tamez asked the occupants to whom the cocaine belonged, none of those present responded.  Appellant was arrested and charged with possession of the cocaine.

II.  Analysis

A.        Applicable Law

            In his sole issue, appellant argues the evidence is legally and factually insufficient to prove he knowingly exercised care, custody, control, or management of the cocaine.

            Intentionally or knowingly possessing a controlled substance is an offense under the Texas Controlled Substance Act.  See Tex. Health & Safety Code Ann. § 481.115(a) (Vernon 2003).  To prove the offense of possession of a controlled substance, the State must show that the accused (1) exercised actual care, custody, control, or management of the controlled substance, and (2) was conscious of his connection with the controlled substance and knew what it was.  See id. §§ 481.002(38), 481.115(a) (Vernon 2003 & Supp. 2005); Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995) (en banc).  These elements may

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be established by direct or circumstantial evidence.  Id.  When the accused is not in exclusive possession of the place where the contraband is found, the State must establish an affirmative link between the accused and the contraband—i.e., independent facts and circumstances affirmatively linking the accused to the contraband so as to suggest that the accused had knowledge of the contraband and exercised control over it.  Rhyne v. State, 620 S.W.2d 599, 601 (Tex. Crim. App. 1981); Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).  Although the evidence linking an appellant to cocaine may be  circumstantial, it is not necessary in circumstantial evidence cases that every fact and circumstance point directly and independently to the guilt of the accused.  Russell v. State, 665 S.W.2d 771, 776 (Tex. Crim. App. 1983) (en banc).  It is enough if the conclusion is warranted by the combined and cumulative force of all of the incriminating circumstances.  Id.  Every case must be reviewed on its own facts and circumstances to determine the sufficiency of the evidence.

            Courts consider the following non-exclusive list of factors in determining whether there is an affirmative link between the defendant and the contraband: (1) the defendant’s presence when the search was conducted; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics; (5) whether the defendant possessed other contraband or narcotics; (6) whether the defendant made incriminating statements; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia was present; (11) whether the defendant 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 defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt.  Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).  The number of linking factors present is not as important as the “logical force” they create to prove the crime was committed.  Id.

B.        Legal Sufficiency

            In conducting a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004).  In conducting our review of the legal sufficiency of the evidence, we do not re-evaluate the weight and credibility of the evidence, but ensure only that the jury reached a rational decision.  Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993) (en banc).  Under a legal or factual sufficiency review, the jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony.   McKinny v. State, 76 S.W.3d 463, 468–69 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).  The jury may believe or disbelieve any part of a witness’s testimony.  Id. at 469.

            Viewing the evidence in the light most favorable to the verdict, the evidence shows that appellant resided in the apartment where the cocaine was found and was present during the search of the apartment.  Moreover, when other narcotics were found in the apartment, appellant admitted to Officer Tamez that the Xanax was his. Significantly, the Xanax was found in appellant’s bedroom.  Appellant also admitted that he had purchased cocaine in the past, and he admitted to using cocaine when he drank alcohol.  Lastly, the cocaine was found in an area accessible to appellant as a resident of the apartment.

            Appellant first  argues that although he admitted to possessing Xanax, that admission bears no relationship to the cocaine found in the kitchen.  However, we may consider appellant’s possession of other contraband when arrested in assessing the force of the affirmative links.  See Chavez v. State, 769 S.W.2d 284, 288 (Tex. App.—Houston [1st Dist.] 1989, pet. ref’d).  Appellant also argues the evidence is insufficient because many of the

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typical factors showing affirmative links between an appellant and narcotics are absent.  However, we consider the factors that are present and do not consider affirmative link factors that are absent from the evidence.  Hurtado v. State, 881 S.W.2d 738, 745 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).  We focus on whether, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  See id. 

            The probative value of the conflicting evidence was weighed by the trial court when it found appellant guilty.  We cannot re-weigh that evidence.  Hence, we conclude the trier of fact could have found beyond a reasonable doubt that the evidence established an affirmative link between appellant and the cocaine. Accordingly, we hold the evidence is legally sufficient to show that appellant exercised actual care, custody, control, or management of the cocaine.

            We overrule appellant’s first issue.

C.        Factual Sufficiency

            Appellant next argues the evidence is factually insufficient to prove that he knowingly exercised care, custody, control, or management of the cocaine.  When determining the factual sufficiency of the evidence, we view all of the evidence in a neutral light, and set aside the verdict only if (1) the evidence supporting the verdict considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met.  Zuniga  v. State, 144 S.W.3d 477, 484–85 (Tex. Crim. App. 2004).  In our review, we must consider the most important evidence that the appellant claims undermines the verdict.  See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

            In support of his factual sufficiency challenge, appellant relies on the same evidence and arguments that he raised in his legal sufficiency challenge, pointing to evidence weighing

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against the trial court’s verdict, as well as evidence and reasons he claims make the State’s evidence so obviously weak as to undermine confidence in the verdict.

            After viewing all of the evidence neutrally, we hold the evidence supporting the verdict is not too weak to support the finding of guilt beyond a reasonable doubt or is the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met.  See Escamilla, 143 S.W.3d at 817. Accordingly, we hold the evidence is factually sufficient to prove appellant knowingly exercised care, custody, control, or management of the cocaine.  See id.

            For the foregoing reasons, we affirm the judgment of the trial court.

                                                                        /s/        Eva M. Guzman

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed July 27, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

Do Not Publish — Tex. R. App. P. 47.2(b).