Hudson v. State

• Decision Date: 05 February 2004
• Docket Number: No. 06-02-00211-CR.,06-02-00211-CR.
• Citation: 128 S.W.3d 367
• Parties: Warren HUDSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

128 S.W.3d 367

Warren HUDSON, Appellant, v. The STATE of Texas, Appellee.

No. 06-02-00211-CR.

Court of Appeals of Texas, Texarkana.

Submitted January 22, 2004.

Decided February 5, 2004.

Matt Keil, Keil & Goodson, Connie Mitchell, Arkansas Juvenile Court, Texarkana, for appellant.

Michael Shepherd, Asst. Dist. Atty., for appellee.

Before MORRISS, C.J., ROSS and CORNELIUS,^* JJ.

OPINION

Opinion by Justice ROSS.

Warren Hudson was convicted by a jury for possessing marihuana in the amount of five pounds or less but more than four ounces, a state jail felony.¹ The jury assessed his punishment at two years' confinement and a $5,000.00 fine.² Hudson appeals, contending (1) the evidence is legally and factually insufficient to prove he possessed the marihuana; (2) the trial court erred in continuing the punishment phase of trial in his absence; (3) the trial court erred in its response to questions from the jury; (4) the State's remarks during closing argument were manifestly improper; and (5) he received ineffective assistance of counsel.

Factual Background

On January 26, 2000, Hudson and his passenger, Keith Macklin, were stopped on Interstate 30 by Officer Gary Brown of the Texarkana, Texas, Police Department, for speeding. Hudson provided his driver's license and advised the officer the car was rented. Hudson provided the rental papers reflecting he had rented the car in Memphis the previous day. He then advised the officer he had been to Dallas for three or four days at the Six Flags amusement park. Brown became suspicious because of the inconsistency between Hudson's statement about how long he had been in Dallas and the date reflected on the rental agreement as to when and where he rented the car, and also because of the officer's own belief that Six Flags is closed in winter. Brown asked for and received Hudson's verbal and written consent to search the vehicle. Officer Johnny Weaver, acting as backup, watched Hudson and Macklin at the rear of the vehicle while Brown conducted the search. Brown testified that, when he reached in the vehicle to turn off the engine, he smelled the odor of marihuana. Brown then retrieved a drug-sniffing dog to assist with the search. The dog alerted to the trunk of the vehicle. Brown opened the trunk and again smelled the strong odor of marihuana. The dog again alerted to a suitcase inside the trunk. Brown was confident at this point he was about to make a drug arrest, so he ordered Hudson and Macklin to lie on the ground. Brown testified Hudson immediately obeyed the order, but Macklin made a pitching motion from behind his back, throwing a handgun that he had concealed on his person, and then he laid on the ground.³ Inside the suitcase, 4.86 pounds of marihuana and 1,064.16 grams of cocaine were discovered, along with some clothing. Brown testified he then had Hudson and Macklin stand, read them the Miranda⁴ warnings, and each acknowledged he understood the rights.

At the police station, and under questioning by Brown, Hudson verbally advised Brown and police officer Mark Henry that he and Macklin had paid $2,500.00 for the marihuana in Dallas, that they were taking it to Memphis, and that a Hispanic male asked them to transport the cocaine from Dallas to Memphis for him. Hudson declined the offer to reduce his statement to writing.

Sufficiency of the Evidence

Hudson contends the evidence is legally and factually insufficient to support his conviction. He contends that he was not in exclusive possession of the place where the drugs were found and that the State failed to establish an affirmative link between him and the drugs which would allow the jury to find, beyond a reasonable doubt, that he knew of and was in control of the drugs.

In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This calls on the 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. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). In our review, we evaluate all 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 contrast, a factual sufficiency review dictates that the evidence be viewed in a neutral light, favoring neither party. Johnson, 23 S.W.3d at 7; see Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim.App.1996). In determining the factual sufficiency of the evidence to establish the elements of the offense, we view all the evidence in a neutral light and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson, 23 S.W.3d at 7; Clewis, 922 S.W.2d at 129.

To support a conviction for possession, the state must show that the accused exercised actual care, custody, or control over the substance, that he or she was conscious of his or her connection with it, and that the accused possessed the substance knowingly or intentionally. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim. App.1995); Roberts v. State, 963 S.W.2d 894, 898 (Tex.App.-Texarkana 1998, no pet.). The evidence on these elements can be direct or circumstantial. Brown, 911 S.W.2d at 747. The state must establish that the accused's connection with the substance was more than just fortuitous. Id. When the contraband is not found on the accused's person or it is not in his or her exclusive possession, additional facts must affirmatively link the accused to the contraband. McMillon v. State, 940 S.W.2d 767, 768-69 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd); Menchaca v. State, 901 S.W.2d 640, 651 (Tex.App.-El Paso 1995, pet. ref'd); Green v. State, 892 S.W.2d 220, 222 (Tex.App.-Texarkana 1995, pet. ref'd). The link, however, need not be so strong that it excludes every other reasonable hypothesis except the defendant's guilt. Brown, 911 S.W.2d at 748. The affirmative link ordinarily emerges from an orchestration of several factors and the logical force they have in combination. Villegas v. State, 871 S.W.2d 894, 896 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd).

Some factors on which various courts have relied to provide this affirmative link include: (1) the place where the contraband was found was enclosed; (2) the contraband was conveniently accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the quantity of the drugs found; (5) the accused possessed a key to the locked location of the drugs; (6) a tip by an informant that the accused was in possession of contraband; (7) the accused was in close proximity to a large quantity of contraband; (8) drug paraphernalia was found on or in plain view of the accused; (9) whether the defendant made incriminating statements when arrested; and (10) whether there was an odor of contraband. See Washington v. State, 902 S.W.2d 649, 652 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd); Green, 892 S.W.2d at 222; Chavez v. State, 769 S.W.2d 284, 288-89 (Tex.App.-Houston [1st Dist.] 1989, pet. ref'd). The number of the factors is not as important as the logical force the factors have in establishing the elements of the offense. Gilbert v. State, 874 S.W.2d 290, 298 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). Possession need not be exclusive, and evidence showing joint possession with another is sufficient. Martinez v. State, 880 S.W.2d 72, 77 (Tex.App.-Texarkana 1994, no pet.).

Hudson contends the State failed to show facts and circumstances which affirmatively link him to the marihuana and the cocaine. He points out that the clothing found inside the suitcase was never matched to a particular individual. There are significant factors, however, linking Hudson to knowledge and control of the contraband. Hudson rented the vehicle in which the marihuana and cocaine were found and, as the driver, was in possession of the keys. The quantities of marihuana and cocaine were large, and were discovered in an enclosed suitcase in the enclosed trunk of the car. See Cabrales v. State, 932 S.W.2d 653, 656-57 (Tex.App.-Houston [14th Dist.] 1996, no pet.) (narcotics found in enclosed place inside vehicle driven by defendant). Brown testified he smelled the odor of marihuana in both the passenger compartment of the vehicle and in the trunk. Further, Hudson verbally admitted to the officers he knowingly exercised custody and control of the marihuana and the cocaine. On review of the record, we find legally and factually sufficient evidence to support Hudson's conviction.

Defendant's Absence

The guilt/innocence phase of the trial against Hudson was tried to a jury October 1, 2002. The jury returned a guilty verdict, and the trial proceeded to the punishment phase October 2. Hudson and another witness, Reginald Bowles, testified on Hudson's behalf at the punishment phase. After the testimony at this phase concluded, the court recessed for a short time to provide the attorneys an opportunity to make any objections to the jury charge on punishment. It was apparently during this recess the trial court was advised Hudson had left the courthouse. The trial court stated in open court that the bailiff had made a diligent effort to locate Hudson, but to no avail. The court concluded Hudson had voluntarily absented himself, stating:

I am advised where [Hudson's] car was parked earlier today, it's no longer there, ....

....

Mr. Hudson has been here at all times during the trial until now, and we have now spent an hour approximately, looking for him. It appears that he's not here, and has voluntarily left on his own behalf.

....

His car is gone. He's gone. His friend that came to testify apparently is gone, and [defense counsel does not] know where they are.

The trial court ordered the issuance of...