Ricky Bolton v. State ( 2010 )

NO. 07-09-00376-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 23, 2010
RICKY BOLTON, JR.,
A/K/A RICKY JUNIOR BOLTON, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 58,354-E; HONORABLE DOUGLAS WOODBURN, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Ricky Bolton, Jr., appeals his conviction for possession of a controlled
substance, cocaine, less than one gram. 1 Appellant was sentenced to two years in a
State Jail Facility of the Texas Department of Criminal Justice (SJF-TDCJ). Appellant
appeals the judgment of the trial court contending that the evidence was legally and
factually insufficient to sustain the jury’s verdict. We affirm.
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See Tex. HEALTH & SAFETY CODE ANN. § 481.115(b) (Vernon 2010).
Factual and Procedural Background
On August 13, 2008, Officer Terry Moore of the Amarillo Police Department was
dispatched to a Toot’n Totum convenience store at 1400 East Amarillo Boulevard as
part of a forgery investigation. Upon arriving at the Toot’n Totum, Moore observed a
1999 Chevrolet Lumina containing two occupants parked in the parking lot. When
Moore pulled into the parking lot, both occupants of the Lumina appeared to duck down.
Upon obtaining information that the Lumina might have been involved in the forgery
incident, Moore and another officer, Scott Chappel, approached the Lumina in order to
interview the two occupants. Appellant was seated in the front passenger seat of the
Lumina. Chappel approached the driver, and Moore went to the front passenger side to
speak to appellant.
As Moore approached appellant, he noticed that appellant appeared to be
nervous. When asked for identification, appellant said he did not have any. When
speaking to Moore, appellant would not make eye contact and spoke in such a low tone
that Moore had trouble understanding appellant. Moore then asked appellant to step
from the vehicle and, instead of getting out of the vehicle, appellant took his left hand
and reached back towards his back left pocket. Moore testified he thought appellant
might be going for a weapon. Appellant was ordered to show his hand, and, instead of
showing his left hand as directed, appellant reached down the right side of the seat with
his closed right hand. As appellant made this second move with his hand, Moore
reached in through the window to grab appellant’s arm to get control of the situation.
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Appellant kept his right hand tightly closed even as Moore delivered two blows to it in an
effort to force the hand open.
Eventually, with the assistance of another officer, Moore pulled appellant from
the vehicle. As appellant was being wrestled to the ground, he still kept his right hand
tightly closed. While the police attempted to pull appellant’s arms behind his back to
apply hand-cuffs, Moore noticed appellant make a throwing gesture with his right hand.
Moore testified that he did not see anything fly out of appellant’s hand; however, upon
gaining control of appellant, Moore peered under the vehicle toward which appellant
made the throwing gesture. Under the vehicle, Moore found a plastic baggie of crack
cocaine. After appellant had been secured, Moore checked the area around where
appellant had been seated and found a glass crack pipe stuffed between appellant’s
seat and the console. Moore testified that this was where appellant had reached with
his left hand. After the cocaine was retrieved, it was placed in the property room of the
police department until it was taken to the Department of Public Safety laboratory for
testing.
Chappel testified that he did not see appellant make the throwing gesture.
However, Chappel also testified that he remembered that, all during the struggle to get
appellant out of the vehicle, appellant kept his right hand securely clinched. Chappel
did recall that Moore commented on appellant making a throwing motion and that the
comment was made before the cocaine was found under the vehicle.
The jury convicted appellant and he was subsequently sentenced to serve two
years in a SJF-TDCJ. Via two issues, appellant contends that the evidence was legally
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and factually insufficient to link appellant to the contraband discovered under the
vehicle. Disagreeing with appellant, we affirm the trial court’s judgment.
Standard of Review
When an appellant challenges both legal and factual sufficiency, we are required
to conduct an analysis of the legal sufficiency of the evidence first and then, only if we
find the evidence to be legally sufficient, do we analyze the factual sufficiency of the
evidence. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). In
assessing the legal sufficiency of the evidence, we review all the evidence in the light
most favorable to the verdict to determine whether any rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. See Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Hooper v. State,
214 S.W.3d 9, 13 (Tex.Crim.App. 2007). In conducting a legal sufficiency review, an
appellate court may not usurp the role of the factfinder; rather, our role on appeal is
restricted to guarding against the rare occurrence when a factfinder does not act
rationally. See Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App. 2009).
In a factual sufficiency review, we must consider all of the evidence in a neutral
light to determine whether a jury was rationally justified in finding guilt beyond a
reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006).
In our analysis, we must determine whether the evidence supporting the verdict is so
weak or so against the great weight and preponderance of the evidence as to render
the verdict manifestly unjust. See Steadman v. State, 280 S.W.3d 242, 246
(Tex.Crim.App. 2009). A wrong and unjust verdict includes instances in which the jury’s
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finding “shocks the conscience[]” or clearly demonstrates bias. See Grotti v. State, 273
S.W.3d 273, 280 (Tex.Crim.App. 2008). In a factual sufficiency review, we must be
mindful that a jury has already passed on the facts and must give due deference to the
determinations of the jury. See Lancon v. State, 253 S.W.3d 699, 704-05
(Tex.Crim.App. 2008). If our decision is to set aside the verdict of the jury, our opinion
should clearly explain how the evidence supporting the verdict is too weak on its own or
how the contradicting evidence so greatly outweighs the evidence in support of the
verdict. See id. at 705. Conversely, if our decision is to uphold a verdict, we are
required to consider the most important evidence that the appellant claims undermines
the jury's verdict and explain why that evidence does not have the persuasive force the
appellant believes is sufficient to overturn the verdict. See Sims v. State, 99 S.W.3d
600, 603 (Tex.Crim.App. 2003).
In a sufficiency of the evidence review, the essential elements of the offense are
those of a hypothetically correct jury charge for the offense in question (i.e., one that
accurately sets out the law and adequately describes the offense for which the appellant
was tried without increasing the State’s burden of proof or restricting the State’s theory
of criminal responsibility). See Hooper, 214 S.W.3d at 14; Malik v. State, 953 S.W.2d
234, 240 (Tex.Crim.App. 1997).
In our review, we consider both direct and circumstantial evidence and all
reasonable inferences that may be drawn from that evidence. See Hooper, 214 S.W.3d
at 13. Circumstantial evidence alone is sufficient to establish the guilt of the accused,
and the standard of review as to the sufficiency of the evidence is the same for both
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direct and circumstantial evidence cases. See id. Each fact need not point directly and
independently to the guilt of the accused, so long as the cumulative force of all the
evidence, when coupled with reasonable inferences to be drawn from that evidence, is
sufficient to support the conviction. See id.
Possession of a Controlled Substance
A conviction for possession of cocaine is supported only when the defendant
Aknowingly or intentionally possesses@ the drug. TEX. HEALTH & SAFETY CODE
ANN. § 481.115(a) (Vernon 2010). Proof of possession requires evidence the accused
exercised Aactual care, custody, control, or management@ over the substance. See id. §
481.002(38) (Vernon 2010). Thus, the State must prove the accused (1) Aexercised
care, custody, control, or management over the [contraband]@ and (2) knew that the
substance Apossessed@ was contraband. See Martin v. State, 753 S.W.2d 384, 387
(Tex.Crim.App. 1988).
When the accused is not in exclusive control of the place where the contraband
is found, the State must establish care, custody, control, or management by linking the
accused to the substance through additional facts and circumstances. See Evans v.
State, 202 S.W.3d 158, 161-62 (Tex.Crim.App. 2006); Poindexter v. State, 153 S.W.3d
402, 406 (Tex.Crim.App. 2005). Whether the State=s evidence is direct or
circumstantial, its evidence of links must establish, Ato the requisite level of confidence,
that the accused=s connection with the drug was more than just fortuitous.@ Poindexter,
153 S.W.3d at 405-06 (citing Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.
1995)); Park v. State, 8 S.W.3d 351, 353 (Tex.App.BAmarillo 1999, no pet.).
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The many factors by which an accused may, under the unique circumstances of
each case, be sufficiently Alinked@ to the contraband, include: (1) the defendant=s
presence when a search is conducted; (2) whether the contraband is in plain view; (3)
the defendant=s proximity to and the accessibility of the contraband; (4) whether the
defendant was under the influence of contraband when arrested; (5) whether the
defendant possessed other contraband or narcotics when arrested; (6) whether the
defendant made incriminating statements when arrested; (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 were
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. Evans, 202
S.W.3d at 162 n.12; See Triplett v. State, 292 S.W.3d 205, 208 (Tex.App.BAmarillo
2009, pet. ref’d.) (listing numerous factors). These factors, however, are simply that:
factors which may circumstantially establish the sufficiency of evidence offered to prove
a knowing Apossession.@ See Evans, 202 S.W.3d at 162 n.12 (explaining that factors
Aare not a litmus test@). It is not the number of links that is dispositive, but rather the
logical force of all the evidence. See id. at 162.
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Analysis
Appellant contends that a lack of links to the contraband makes the evidence
legally and factually insufficient. This is so, according to appellant, because no one
testified that they saw appellant actually throw the baggie of cocaine later found
beneath the car. Appellant’s theory of the case continues that, since Moore only saw a
throwing motion, there is no link between appellant and the later found baggie.
Links
The record before the Court contains the following facts that link appellant to the
contraband in question: 1) appellant’s conduct indicated a consciousness of guilt in that
he: a) slid down and tried to duck down in his seat when the police arrived at the
location of the forgery, b) appeared nervous when Moore approached him, c) would not
make eye contact with Moore, d) replied to questions in such a low voice that Moore
had difficulty hearing him, and e) refused to exit the vehicle when ordered; 2) appellant
made a furtive gesture with his left hand; 3) appellant had his right fist closed and
refused to open it; 4) the closed fist was the hand with which appellant made the
throwing gesture; 5) the cocaine was found at a location which was in line with the
throwing gesture made by appellant; and 6) the glass crack pipe was found between the
seat appellant occupied and the console. See id. at 162.
Legal Sufficiency
When the links that tie appellant to the contraband are examined, we are left with
a significant amount of testimony connecting appellant to the cocaine. Remembering
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that circumstantial evidence is as probative of the links required as is direct evidence,
we conclude that the links recited above are sufficient to legally connect appellant to the
contraband. See Hooper, 214 S.W.3d at 13. Finally, we must be mindful that it is not
the number of links that are important but the logical force of the links in question that is
important. Evans, 202 S.W.3d at 162. Because we find there are sufficient links to
connect appellant to the cocaine, the jury was acting as a rational factfinder when it
found appellant guilty beyond a reasonable doubt. Jackson, 443 U.S. at 319; Hooper,
214 S.W.3d at 13. Appellant’s first issue is overruled.
Factual Sufficiency
The same links that tie appellant to the cocaine in a legal sufficiency review are
present when the evidence is viewed in a neutral light, as we must do when reviewing
factual sufficiency issues. Watson, 204 S.W.3d at 415. Further, nothing about the
jury’s finding “shocks the conscience” or clearly demonstrates bias. See Grotti, 273
S.W.3d at 280. Neither is the evidence so weak as to render the verdict manifestly
unjust. See Steadman, 280 S.W.3d at 246. Simply stated, from appellant’s first contact
with Moore, he sensed that appellant was trying to hide something. Appellant’s actions
in refusing to show his hands and then keeping the right hand in a closed fist were
indications that appellant had contraband. When we add to this the throwing motion
and finding the cocaine directly in line with where the throwing motion indicated, we
have factually sufficient evidence to connect appellant with the cocaine. Finally, finding
the glass crack pipe stuffed down between the seat and the console where Moore
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observed appellant place his left hand further ties appellant to the cocaine. All of this
evidence serves as links to tie appellant to the cocaine. See Evans, 202 S.W.3d at 162.
Appellant posits that since there were other people in the parking lot that the
evidence was insufficient to connect appellant to the contraband. See Sims, 99 S.W.3d
at 603. The essence of appellant’s argument is that someone else could have placed
the cocaine on the ground under the car. When each officer was questioned about this,
they all had basically the same response: none of them had ever seen anyone simply
place drugs on the ground and walk away from the drugs. The jury heard all of this
testimony and chose to believe that appellant tossed the drugs under the car. See
Lancon, 253 S.W.3d at 704-05. We cannot say that the jury’s decision was irrational
when it found appellant guilty beyond a reasonable doubt. See Watson, 204 S.W.3d at
417. Accordingly, appellant’s second issue is overruled.
Conclusion
Having overruled appellant’s issues, the judgment of the trial court is affirmed.
Mackey K. Hancock
Justice
Do not publish.
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