Jenkins v. State, No. 14-03-00135-CR (Tex. App. 3/30/2004)
| Decision Date | 30 March 2004 |
| Docket Number | No. 14-03-00135-CR,14-03-00135-CR |
| Parties | DOMINEQUE ROSHON JENKINS, Appellant v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 56th District Court, Galveston County, Texas, Trial Court Cause No. 02CR2340.
Affirmed.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
Appellant Dominique Roshon Jenkins appeals his conviction of possession of four grams or more but less than 200 grams of cocaine. See TEX. HEALTH & SAFETY CODE ANN. § 481.102(3)(D) (Vernon Supp. 2004), 481.115(d) (Vernon 2003). After the jury found appellant guilty, the trial court assessed punishment at twenty years' confinement. In three points of error, appellant contends the evidence was legally and factually insufficient to support his conviction and his trial counsel rendered ineffective assistance in not asserting a motion to suppress. We affirm.
Jeff Anderson and Michael Amato, two off-duty Houston police department officers, pulled Anderson's truck into a carwash in Dickenson to wash some jet skis they had been using. Amato was cleaning the skis in a wash bay, and Anderson was standing near the front of his truck when an unidentified woman approached Anderson and Anderson noticed she was holding a crack cocaine rock. The woman solicited Anderson, offering to sell him sex and narcotics.
According to Anderson, while he was speaking to the woman, appellant walked toward Anderson and held out a clear plastic baggy. Appellant and Anderson made eye contact from about fifteen to twenty feet, and, according to Anderson, appellant "kind of nodded his head like this . . . like, `Do you want some?'" Anderson said, "No," and appellant walked away. Based on his training and experience, which included nearly a thousand drug arrests, Anderson "knew immediately," what appellant showed him was crack cocaine.
Not more than a minute or two after appellant showed Anderson the baggy, Kenneth Williams, a Galveston County Deputy Sheriff, arrived in his patrol car at the carwash, which, according to Williams, was located in an area of heavy narcotics activity. Williams pulled into the carwash, observed a subject he recognized as a local narcotics dealer, and backed into the vacuum cleaner stalls and started watching. At that time, Anderson approached Williams, described appellant to Williams, and informed Williams appellant had a lot of crack cocaine and had tried to sell Anderson narcotics.
While Williams was waiting for a second unit to arrive, a vehicle pulled up, and appellant started to get in. Williams then contacted appellant and let him know what he was investigating. According to defense witnesses who were present at the carwash, Williams informed appellant he was a suspicious person, but he was not in trouble or under arrest. Williams then patted appellant down for weapons.1 Williams found no weapons or narcotics, but did find a large amount of money. Williams then handcuffed and secured appellant in the back of Williams' car, behind the driver's seat. As Williams was counting the money—approximately $700.00—he felt the car shake, as if appellant were moving around. From Williams's past experience, he believed, based on the movement, appellant was disposing of the narcotics.
Williams removed appellant from the patrol car. Williams checked the car and underneath the driver's seat found a crumpled plastic bag, which appeared to contain crack cocaine. When Williams pulled on the backrest where appellant had been sitting, a syringe rolled down from the seat opposite appellant's.2 Williams showed the bag to Anderson and asked, "Does this look like what he had?" Anderson responded, "Yes, that's it without a doubt."
At 4:30 p.m., appellant was placed under arrest at the carwash. Williams testified he began his shift ten and a half hours earlier, at 6:00 a.m. He testified he checks under the seats of his car when he goes on duty, whenever he places someone in the car, and whenever he removes someone. Williams did not remember whether he had placed anyone in the car before arresting appellant. Finally, Williams testified that, before appellant was in the back seat, there were no narcotics in the car, and after Williams removed appellant, there were.
In his first and second points of error, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. We apply different standards when reviewing the evidence for legal and factual sufficiency.
When reviewing the legal sufficiency of the evidence, this court must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex. Crim. App. 1993). This standard of review applies to cases involving both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).
When a defendant challenges the factual sufficiency of the elements of an offense, the correct standard we must follow requires us to determine whether (1) the proof of guilt is so obviously weak as to undermine confidence in the jury's verdict, or (2) the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex. Crim. App. 2003); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We must accord due deference to the fact finder's determinations, particularly those determinations concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d at 9. The verdict should be set aside only in order to prevent a clearly wrong and unjust result. See Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).
When a defendant is charged with unlawful possession of cocaine, the State must prove: (1) the defendant exercised actual care, custody, control, or management over the contraband and (2) the defendant knew the object he possessed was contraband. Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd) (citing Linton v. State, 15 S.W.3d 615, 619 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd)). Although the element of possession may be proved by circumstantial evidence, such evidence must affirmatively link the defendant to the offense, so one may reasonably infer the defendant knew of the contraband's existence and he exercised control over it. Id. (citing McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985)).
Appellant contends the State did not affirmatively link him to the cocaine. We disagree.
Circumstantial evidence relevant to establish an "affirmative link" between a defendant and the contraband include: (1) the defendant's presence when the contraband was discovered; (2) whether the contraband was in plain view; (3) the defendant's proximity to, and accessibility of, the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband 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 the contraband; (10) whether other contraband or drug paraphernalia was present; (11) whether the place where the drugs were found was enclosed; and (12) whether the defendant owned or had the right to possess the place where the drugs were found. Id. (citing Chavez v. State, 769 S.W.2d 284, 288-89 (Tex. App.—Houston [1st Dist.] 1989, pet. ref'd)). Presence of a large amount of cash can supply an inference that an individual is trafficking in narcotics and, therefore, in possession of contraband. Dade v. State, 956 S.W.2d 75, 78-79 (Tex. App.—Tyler 1997, pet. ref'd). Despite this list of possible links, there is no set formula of facts that necessitate a finding of an affirmative link sufficient to support an inference of knowing possession. Hyett, 58 S.W.3d at 830 (citing Porter v. State, 873 S.W.2d 729, 732 (Tex. App.—Dallas 1994, pet. ref'd)).
Moreover, the number of affirmative links present is not as important as the logical force they have in establishing the elements of the offense. See Corpus v. State, 30 S.W.3d 35, 37-38 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd) (). Instead, we view the totality of the facts and circumstances. Hyett, 58 S.W.3d at 830; see Sosa v. State, 845 S.W.2d 479, 483-84 (Tex. App.—Houston [1st Dist.] 1993, pet. ref'd) ().
The following evidence linked appellant to the cocaine:
• Officer Anderson's positive identification of the bag containing the cocaine as the bag appellant had held out and offered to sell to Anderson;
• Appellant's presence in Williams's patrol car where the cocaine was found;
• Williams's finding the cocaine under the driver's seat, in front of the backseat where appellant had been sitting;
• Williams's feeling the car shaking, which, given his past experience, led him to believe appellant was disposing of narcotics;
• Williams's testimony he had checked his patrol car, and before appellant was placed in the backseat, there were no narcotics, but after he removed appellant, the narcotics were present;
• Seven hundred dollars found on appellant's person during the pat down.
The preceding evidence compares favorably with that in Williams v. State, 784 S.W.2d 428 (Tex. Crim. App. 1990) (per...
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