Melanie Ann Buckman v. State ( 2004 )

Melanie Ann Buckman v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-02-142-CR

     MELANIE ANN BUCKMAN,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the County Court at Law No. 1

McLennan County, Texas

Trial Court # 20011253CR1

                                                                                                                                                                                                                         

O P I N I O N

                                                                                                               Â

      A Department of Public Safety Trooper stopped a Honda, in which Melanie Ann Buckman was a passenger, for speeding. Buckman and her companion said they were going to Austin. They were traveling north on Interstate 35 in Waco, well north of Austin. The trooper smelled the odor of burned marijuana coming from inside the Honda. The driver looked like he had smoked marijuana. The remains of marijuana joints were located in the ashtray. A baggie of marijuana was located on the floor behind Buckman.

      After a bench trial, Buckman was convicted of possession of marijuana and sentenced to 45 days in jail. On appeal, she claims the evidence was insufficient to support her conviction. We affirm.

Legal and Factual Sufficiency of the Evidence

      In two issues, Buckman contends the evidence was legally and factually insufficient to support her conviction. First, she argues the evidence was insufficient to prove that she possessed marijuana since she was not in exclusive control of the drugs at the time they were located. Second, she argues the evidence was insufficient to prove that the marijuana located was a usable quantity.

      A "legal sufficiency of the evidence review does not involve any weighing of favorable and non-favorable evidence." Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000) (citing Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000)). Instead, a legal sufficiency review calls upon the reviewing court to view the relevant 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. Id. See also Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979) (emphasis in original); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995).

      In reviewing a challenge to the factual sufficiency of the evidence, we must view all the evidence without the prism of the “in the light most favorable to the prosecution” construct. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We ask “whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.” Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001).

      We must also remain cognizant of the factfinder’s role and unique position—one that the reviewing court is unable to occupy. Johnson, 23 S.W.3d at 9. The factfinder determines the credibility of the witnesses and may “believe all, some, or none of the testimony.” Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). It is the factfinder that accepts or rejects reasonably equal competing theories of a case. Goodman, 66 S.W.3d at 287. A decision is not manifestly unjust as to the accused merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997).

Affirmative Links

      In cases involving the possession of an unlawful object or substance, the State must prove that the accused knowingly possessed the contraband in question. See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Harris v. State, 994 S.W.2d 927, 933 (Tex. App.—Waco 1999, pet. ref'd). The State accomplishes this task with "affirmative links." Gill v. State, 57 S.W.3d 540, 544 (Tex. App.—Waco 2001, no pet.). The Court of Criminal Appeals summarized the "affirmative links" rule as follows:

Because, under our law, an accused must not only have exercised actual care, control, or custody of the substance, but must also have been conscious of his connection with it and have known what it was, evidence which affirmatively links him to it suffices for proof that he possessed it knowingly. Under our precedents, it does not really matter whether this evidence is direct or circumstantial. In either case it must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous. This is the whole of the so-called "affirmative links" rule.

Brown, 911 S.W.2d at 747.

      Circumstances to consider when determining whether the State has met its burden include:

1) Defendant's presence when the search is executed;

2) Contraband in plain view;

3) Defendant's proximity to and the accessibility of the contraband;

4) Defendant under the influence of contraband when arrested;

5) Defendant's possession of other contraband when arrested;

6) Defendant's incriminating statements when arrested;

7) Defendant's attempted flight;

8) Defendant's furtive gestures;

9) Presence of odor of the contraband;

10) Presence of other contraband or drug paraphernalia, not included in the charge;

11) Defendant's ownership or right to possession of the place where the contraband was found;

12) Place contraband found was enclosed.

Rischer v. State, 85 S.W.3d 839, 843 (Tex. App.—Waco 2002, no pet.); Chavez v. State, 769 S.W.2d 284, 288-89 (Tex. App.—Houston [1st Dist.] 1989, pet. ref’d). Despite this list of factors, there is no set formula necessitating a finding of an affirmative link, but rather, affirmative links are established by the totality of the circumstances. Rischer, 85 S.W.3d at 843.

      Buckman was the passenger in a 1988 Honda Civic, four-door. The ashtray, to which she had access, had the remains of three marijuana joints. The interior of the car had the odor of burned marijuana. The driver looked like he had been smoking marijuana. She and the driver were confused about the direction they were traveling. They were going to Austin but were stopped, traveling north, in Waco. A baggie of marijuana, enough to roll three thin joints, was located on the floor board behind her seat. She had access to that area as well.

      Buckman did not present any evidence at her trial.

      Considering the totality of the circumstances, we conclude the State proved sufficient links to show that Buckman possessed marijuana. The evidence is both legally and factually sufficient. Her first issue is overruled.

Usable Quantity

      Buckman also contends that the evidence is legally and factually insufficient to prove that the marijuana seized was a “usable quantity” as required by the provisions of the Health and Safety Code. Tex. Health & Safety Code Ann. § 481.121 (Vernon 2003).

      Trooper William Carlile, based on training and personal experience, identified the substances found in the ashtray and in the baggie on the floor board as marijuana. He also testified that both amounts found would be usable quantities. There being no other evidence presented in support of or contrary to these statements by the trooper, the evidence is both legally and factually sufficient. Her second issue is overruled.

 

Conclusion

      Having overruled both of Buckman’s issues on appeal, we affirm the judgment of the trial court.

 

                                                                   TOM GRAY

                                                                   Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna     

Affirmed

Opinion delivered and filed February 4, 2004

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n>) (footnote omitted).

We must also remain cognizant of the factfinder=s role and unique positionCone that the reviewing court is unable to occupy.  Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000).  The jury determines the credibility of the witnesses and may Abelieve all, some, or none of the testimony.@  Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).  It is the jury that accepts or rejects reasonably equal competing theories of a case.  Goodman, 66 S.W.3d at 287.  A decision is not factually insufficient as to the accused merely because the factfinder resolved conflicting views of evidence in favor of the State.  Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997).

Viewing the evidence in a neutral light, and giving deference to the jury’s credibility determinations, the evidence is not too weak to support the finding of guilt beyond a reasonable doubt.  Accordingly, we overrule Appellant’s second issue.

      Having overruled both of Appellant’s issues, we affirm the judgment.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Opinion delivered and filed June 16, 2004

Affirmed

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[1]    See also, e.g., Perez v. State, No. 01-99-00911-CR, 2003 Tex. App. LEXIS 3155, at *3-*4 (Tex. App.—Houston [1st Dist.] Apr. 10, 2003, pet. ref’d); Bottenfield v. State, 77 S.W.3d 349, 353 (Tex. App.—Fort Worth 2002, pet. ref’d), cert. denied, 539 U.S. 916, 123 S. Ct. 2275, 156 L. Ed. 2d 133 (2003); Robison v. State, 35 S.W.3d 257, 262 (Tex. App.—Texarkana 2000, pet. ref’d); Beheler v. State, 3 S.W.3d 182, 187 (Tex. App.—Fort Worth 1999, pet. ref’d); Gottlich v. State, 822 S.W.2d 734, 741 (Tex. App.—Fort Worth 1992, pet. ref’d).