Hiram Veltz v. State ( 2010 )

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Opinion issued April 29, 2010

In The

Court of Appeals

For The

First District of Texas

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No. 01-09-00803-CR

No. 01-09-00804-CR

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HIRAM VELTZ, Appellant

V.

The State of Texas, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Case Nos. 1136989 & 1136990

MEMORANDUM OPINION

          Hiram Veltz was indicted for possession of heroin with intent to deliver[1] and possession of cocaine.[2]  The jury found him guilty as charged on the cocaine case and guilty of the lesser-included offense of possession without the intent to deliver on the heroin case.[3]  Appellant pled true to habitual felony offender enhancements paragraphs in each indictment,[4] and the court sentenced him to twenty-six years in prison for the possession of heroin offense and four years in prison for the possession of cocaine offense.  We determine whether the evidence is legally sufficient to support both convictions. We affirm the judgments in both causes. 

Background

Undercover narcotics officers John Huston and Bradley Craig of the Houston Police Department were jointly conducting surveillance on appellant.  The officers were in separate vehicles but were in radio communication with one another.  From his unmarked car, Huston saw appellant come out and get into the driver’s seat of a car that had pulled up to the house at which appellant was located and drive away. Returning a short time later, appellant ran into the house, stayed briefly, came back out, and then drove to a nearby convenience store, with the same passenger still in the car.  Huston saw appellant fail to use his turn signal while driving to the store and radioed a uniformed officer, Theodore Gerstle, to contact appellant about the traffic violation.  Huston continued to watch appellant. 

When Gerstle, who was in a marked police unit, pulled into the parking lot on the side of the store, Huston moved closer so that he could have a better look.  Huston radioed Gerstle to detain appellant.  According to Huston, appellant had left the store and was walking back to the car when he turned and looked at Gerstle, who was still sitting in the police car.  Appellant was on the passenger’s side of Gerstle’s car.  Huston saw appellant reach into his left rear pocket, pull out a round object, and drop it behind him in some grass.  Gerstle was not aware that appellant had dropped anything and, while Gerstle was handcuffing appellant, Huston radioed Gerstle and told him to “check that area right there” because appellant had dropped a round object.  Huston saw Gerstle recover the object that appellant had dropped. 

Officer Craig saw appellant walking northbound away from the store and saw Gerstle pull up to appellant.  Unlike Huston, Craig never saw Gerstle’s car in the parking lot; according to Craig, Gerstle stopped his car in the street.  Appellant was on the other side of another vehicle, on the passenger side of Gerstle’s car, in a grassy area, where there was a ditch and fence. As Gerstle got out of his car, Craig saw appellant reach into the back pocket area of his pants and drop something.[5]  Something came out of appellant’s hand, but Craig was too far away to see what it was that appellant dropped.

Officer Gerstle first saw appellant outside the store, in the parking lot.  Appellant was on the left-hand “roadway” side of the store, walking north, parallel to a street.  Gerstle pulled up “into the driveway” so that appellant was located on the passenger side of Gerstle’s car.  Gerstle told appellant to “come here”; appellant stopped walking but did not come to the police officer.  Gerstle got out of the police car, walked around to appellant, and then handcuffed him and put him in the back of the car.  A “few seconds” after handcuffing appellant, and after receiving instructions from Huston, Gerstle found “a round circle, tobacco can container” in the grass in the area Huston had described.  Gerstle saw no other round container in the grass in that area, nor did he see any trash or anything else in that area.  Gerstle also saw no other person in that area.

Inside the round container recovered by Gerstle were twenty small Ziploc baggies of heroin, weighing 3.65 grams, and one small Ziploc baggie of cocaine, weighing less than one gram.

Legal Sufficiency

          In his sole issue in both cause numbers, appellant asserts that the evidence is insufficient to establish that he exercised care, custody or control over the cocaine and heroin because there was conflicting evidence in the testimony of the officers and because the container was never fingerprinted. While appellant does not specify whether he is challenging the legal or factual sufficiency of the evidence, he only cites to the standard of review for legal sufficiency and he asks only for an acquittal, which is the remedy for legal insufficiency.  We therefore review his issue as a challenge to the legal sufficiency of the evidence.

A.      Standard of review

          In assessing legal sufficiency, this Court must consider the entire trial record to determine whether, viewing the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that the accused committed all essential elements of the offense.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001).  We must “evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible.”  Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). 

In conducting a legal-sufficiency review, we do not reevaluate 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).  It is the function of the trier of fact to resolve any conflict of fact, to weigh any evidence, and to evaluate the credibility of any witnesses. See Dewberry, 4 S.W.3d at 740; Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); see also Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991) (quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)). We therefore resolve any inconsistencies in the evidence in favor of the verdict, Matson, 819 S.W.2d at 843, and “defer to the jury’s credibility and weight determinations.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).

B.      “Links” doctrine

Before a person may be convicted of possession of a controlled substance, the evidence must prove beyond a reasonable doubt that the person exercised control, management, or care over the substance and that the person knew that the matter possessed was contraband. See Tex. Health & Safety Code Ann. § 481.002(38) (Vernon Supp. 2009); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005).  The evidence may be direct or circumstantial, but it must establish that the defendant’s connection with the drug is more than fortuitous.  Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006).  If a person does not exclusively possess the place where the contraband is found, then independent facts and circumstances must link him to the contraband.  Poindexter, 153 S.W.3d at 406.  It is “not the number of links that is dispositive, but rather the logical force of all the evidence, direct and circumstantial.”  Evans, 202 S.W.3d at 162.  In evaluating the links between an accused and the contraband, we are not to reweigh the evidence or make credibility determinations, but rather must defer to the jury’s  conclusions and its choices regarding inferences from the evidence to accept or reject; the jury “trump[s] both trial and appellate judges on weight-of-evidence determinations.”  Id. at 164, 165.  

C.      Analysis

Appellant argues the evidence is insufficient to link him to the cocaine and heroin because (1) Craig was not credible because he was too far away to see the drop and “failed to report to any other officer” that he had seen the drop “at the time of the alleged incident,”[6] (2) there was conflicting evidence between Craig and Huston as to whether Gerstle stopped in the parking lot or on the street, and (3) the container was recovered from an open, unkempt area near a store in a neighborhood known for drug activity, but it was never fingerprinted.

We must note first that the absence of a single possible link, such as fingerprints, does not preclude a jury from determining that existing evidence links an accused to contraband sufficiently to find the accused guilty of possession. See Evans, 202 S.W.3d at 164.  We note also that it is within the jury’s exclusive province to assign the weight to be given to testimony, to determine the credibility of the witnesses, and to reconcile conflicts in the evidence.  See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979) (providing that jury is exclusive judge of facts proven and of weight to be given to testimony); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (holding that jury is exclusive judge of weight and credibility, and that it is within jury’s exclusive province to reconcile conflicts).  The jury may believe all, part, or none of a witness’s testimony.  Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).  A legal sufficiency review, moreover, does not involve any weighing of the favorable and non-favorable evidence.  Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000).  Rather, the appellate court must defer to the jury’s weight and credibility determinations and resolve inconsistencies in the evidence in favor of the verdict.  See Marshall, 210 S.W.3d at 625; Evans, 202 S.W.3d at 164, 165; Matson, 819 S.W.2d at 843. 

In the present case, viewing the evidence in the light most favorable to the verdict, and giving deference to the jury’s weight and credibility determinations, the evidence shows that (1) appellant took a round container from his back pocket and dropped it into a grassy area near him as an officer was approaching him, (2) “seconds” later, the dropped round container was recovered from the grassy area, (3) the container recovered was the only round container—and the only object— in the grassy area, (4) there was no other person in that area when the container was dropped or recovered, and (5) the container held heroin and cocaine.  We conclude that the evidence was sufficient for a rational jury to conclude beyond a reasonable doubt that appellant exercised care, custody, control, or management over the cocaine and heroin.  See Noah v. State, 495 S.W.2d 260, 263–64, 266 (Tex. Crim. App. 1973) (holding that when officer saw defendant throw package out of car and land on ground, package was recovered minutes later, there were no other packages in area and no other person in immediate area, this was direct evidence of possession and evidence was legally sufficient); Blackmon v. State, 830 S.W.2d 711,714 (Tex. App.—Houston [1st Dist.] 1992, no pet.) (holding that when one officer saw defendant throw object into grassy area and directed another officer to search area, and second officer picked up only object in area—matchbox found to contain cocaine—evidence was legally sufficient to show possession).  We hold that the evidence is legally sufficient to support the jury’s verdicts on both charges of possession of a controlled substance and we overrule appellant’s sole issue in both causes.

Conclusion

We affirm the judgments of the trial court in each cause number.

                                                                   Jim Sharp

                                                                   Justice

Panel consists of Justices Keyes, Sharp, and Massengale.

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

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[1]              More than one gram but less than four grams. Trial court cause number 1136989; appellate court cause number 01-09-00803-CR. See Tex. Health & Safety Code Ann. §§ 481.112(a),(e), 481.102 (Vernon Supp. 2009).

[2]              Less than one gram. Trial court cause number 1136990; appellate court cause number 01-09-00804-CR.  See id. §§ 481.115(a), (b)(Vernon Supp. 2009), 481.102.

[3]              See id. §§ 481.115(a), (c).

[4]              See Tex. Penal Code Ann. § 12.42 (a)(2), (d) (Vernon Supp. 2009).

[5]              Craig first said that he saw appellant make a “throwing” motion, but, when asked how far the item was thrown, Craig stated that it would be more accurate to say that the item was “dropped.” 

[6]              We note that the record does not establish that Craig “failed to report to any other officer” that he had seen the drop at the time of the incident. Appellant cites us to a portion of the record in which Craig stated that he did not write the police report and that he did not meet face-to-face with the other officers present at the scene but only spoke to them by radio.  Appellant then asserts that neither of the other officers testified about communicating with Craig.  However, Huston testified that Craig was also present on the surveillance and that they were in communication by radio.  Huston also testified that “[t]here is another person that observed [appellant] drop the object . . . I’m not the only one.”  While the record does not establish when Craig told Huston that he had seen the drop—whether at that time or at a later time — the timing of Craig’s “report,” and any implications to be drawn therefrom, ultimately was a credibility issue for the jury to determine.