Davila v. State

• Decision Date: 03 July 1996
• Docket Number: No. 08-94-00371-CR,08-94-00371-CR
• Citation: 930 S.W.2d 641
• Parties: Armando Soliz DAVILA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 641

930 S.W.2d 641

Armando Soliz DAVILA, Appellant, v. The STATE of Texas, Appellee.

No. 08-94-00371-CR.

Court of Appeals of Texas,

El Paso.

July 3, 1996.

Rehearing Overruled Sept. 18, 1996.

M. Clara Hernandez, El Paso County Public Defender, El Paso, for appellant.

Jaime E. Esparza, District Attorney, El Paso, for the State.

Before BARAJAS, C.J., and LARSEN and McCLURE, JJ.

OPINION

McCLURE, Justice.

Armando Soliz Davila ("Davila") was convicted of possession of less than 28 grams of cocaine and was sentenced to 99 years confinement in the Institutional Division of the Texas Department of Criminal Justice. ¹ We affirm.

SUMMARY OF THE EVIDENCE

On March 2, 1994, El Paso police officers Gilbert Cordova ("Cordova") and Robert Rodriguez ("Rodriguez") were dispatched to 420 South Virginia in response to a burglary call. The Alameda Housing Project is located at this address, and it is known to be a high drug use area. Upon arriving, the officers circled the housing project on foot and saw Davila sitting on a concrete slab next to the laundry room. As they moved closer, they observed that Davila was holding a syringe. Rodriguez testified that he saw Davila injecting the syringe into his right hand and later observed a stream of blood on that hand. The officers instructed Davila to drop the syringe, turn around, and place his hands on the wall. Cordova testified that Davila dropped the syringe, said, "Oh, hell" in Spanish, and complied with the officer's request without resistance. About six to twelve inches away from Davila, the officers spotted a small cut-out of a plastic baggie containing a white, powdery substance which proved to be cocaine. It is undisputed that the baggie was not on Davila's person, nor did he attempt to retrieve it or make any sort of movement toward it prior to his apprehension.

After he was placed under arrest and given his Miranda warnings, Davila told the officers that "he finished shooting up and that it was cocaine." The officers placed the syringe and the baggie of cocaine into evidence bags. Cordova testified that cocaine cannot be injected in its powdered form and must be dissolved in liquid. Although bottle tops and spoons are frequently used by drug users for this purpose, neither of these items were found at the scene. Cordova did testify that water faucets were available in the area. Finally, the officers testified that no other person was around Davila as they approached and that they observed no one departing the scene.

SUFFICIENCY OF THE EVIDENCE

In Points of Error Nos. Six and Seven, Davila asserts that the evidence was both legally and factually insufficient to support the jury's verdict.

Legal Sufficiency

In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both state and defense, 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. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App.1991). We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App.1991). Instead, an appellate court's duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843.

Unlawful possession of a controlled substance contains two elements. The State must prove (1) that the accused exercised care, control, and management over the contraband, and (2) that the accused knew the substance being possessed was contraband. See Martin v. State, 753 S.W.2d 384, 386 (Tex.Crim.App.1988); Menchaca v. State, 901 S.W.2d 640, 651 (Tex.App.--El Paso 1995, pet. ref'd); Musick v. State, 862 S.W.2d 794, 804 (Tex.App.--El Paso 1993, pet. ref'd). An affirmative link must be established between the accused and the contraband demonstrating both that the accused had control over it and that the accused had knowledge of its existence and character. See Brown v. State, 911 S.W.2d 744 (Tex.Crim.App.1995); Menchaca, 901 S.W.2d at 651. This "affirmative link" may be shown by either direct or circumstantial evidence, and "it must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous." Brown, 911 S.W.2d at 747. ²

When the contraband is not found on the accused's person or it is not in the exclusive possession of the accused, additional facts and circumstances must link the accused to the contraband. Menchaca, 901 S.W.2d at 651; Musick, 862 S.W.2d at 804. These additional facts include any statements made by the accused, the proximity of the accused to the contraband and its accessibility or visibility to the accused, other people in the vicinity of the scene, and any indications of drug use by the accused such as the existence of drug paraphernalia and the presence of track marks on the accused. See, e.g., Francis v. State, 877 S.W.2d 441, 443 (Tex.App.--Austin 1994, pet. ref'd) (holding that appellant's confession to smoking five rocks of cocaine was sufficient to link appellant to the contraband); Lavigne v. State, 782 S.W.2d 253, 256 (Tex.App.--Houston [14th Dist.] 1989), aff'd, 803 S.W.2d 302 (Tex.Crim.App.1990) (holding that accused's statement that she had injected cocaine in conjunction with a fresh needle mark on her arm was sufficient to link her to the cocaine).

Davila's argument rests primarily on Humason and the application of the "outstanding reasonable hypothesis" test to the "affirmative links" analysis. The evidence adduced at trial demonstrates that the area where Davila was apprehended is open to public use and is known for high drug use. Despite the fact that Davila told the police that he had just injected himself with cocaine, he was not required to take urine or blood tests to establish whether his system contained cocaine. Finally, the syringe retrieved from Davila was not tested for trace amounts of cocaine. ³ Combining this evidence with the remaining evidence at trial, Davila asserts that the jury could have concluded that the cocaine had been dropped by someone other than Davila, especially in light of the fact that Davila made no motion toward the baggie, did not attempt to flee from the officers, and otherwise complied with their instructions. In addition, the State offered no direct proof that the substance injected into Davila's hand was cocaine. He asserts that the jury may have found that the substance was insulin, or some other legal substance.

However reasonable the alternate hypothesis may be, this form of analysis is not the appropriate test. It was rejected by the Court of Criminal Appeals because its methodology proved "confusing and unworkable as an appellate standard." Brown, 911 S.W.2d at 746. In practice, the rule did not differ greatly from the traditional legal sufficiency review under Jackson. Id. Thus, we are duty bound to view all the evidence in the light most favorable to the verdict. If a rational trier of fact could find the essential elements of the offense beyond a reasonable doubt, we must affirm the verdict. The evidence demonstrates that Davila was injecting a syringe into his right hand, that he later told the officers that the syringe contained cocaine, and that the baggie of cocaine was within Davila's reach. From this evidence, a rational trier of fact could find beyond a reasonable doubt that Davila had control over a substance he knew to be cocaine. Therefore, Davila's Point of Error No. Six is overruled.

Factual Sufficiency

The Court of Criminal Appeals recently decided that a non-capital defendant has a right to appellate review of factual sufficiency of the elements of the offense. Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996). In reviewing factual sufficiency, this Court considers all of the evidence, but does not view it in the light most favorable to the verdict. Clewis, 922 S.W.2d at 128-29. We will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. The Court of Criminal Appeals noted in Clewis that Texas courts have articulated the standard for factual sufficiency review in various ways. Clewis, 922 S.W.2d at 134 n. 16. The standard stated in Clewis, and that generally followed by this Court, are, as applied, identical. See id. In the wake of Clewis, we have announced the analysis to be utilized in a factual sufficiency review of a criminal conviction. Taylor v. State, 921 S.W.2d 740 (Tex.App.--El Paso 1996, no pet.).

"Insufficient evidence" or factual insufficiency involves a finding that is so against the great weight and preponderance of the evidence as to be manifestly wrong. The test for factual insufficiency points is set forth in In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). In reviewing a point of error asserting that a finding is against the great weight and preponderance of the evidence, the appellate court must consider all of the evidence, both the evidence which tends to prove the existence of a vital fact as well as evidence which tends to disprove its existence. If the verdict is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the point should be sustained. In other words, if there is sufficient competent evidence of probative force to support the finding, a factual sufficiency challenge cannot succeed. Carrasco v. Goatcher, 623 S.W.2d 769 (Tex.App.--El Paso 1981, no writ). This is true...