Jenkins v. State, 13-00-602-CR.

• Decision Date: 19 April 2002
• Docket Number: No. 13-00-605-CR.,No. 13-00-602-CR.,13-00-602-CR.,13-00-605-CR.
• Parties: Kevin JENKINS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

76 S.W.3d 709

Kevin JENKINS, Appellant, v. The STATE of Texas, Appellee.

No. 13-00-602-CR.

No. 13-00-605-CR.

Court of Appeals of Texas, Corpus Christi.

April 19, 2002.

Stephen Christopher Taylor, Galveston, for Appellant.

Michael R. Little, Dist. Atty., Steve Greene, Asst. Dist. Atty., Liberty & Chambers Counties, Anahuac, for Appellee.

Before Justices YAÑEZ, RODRIGUEZ, and BAIRD¹.

OPINION

CHARLES F. BAIRD, Justice (Assigned).

Pursuant to rule 50 of the Texas Rules of Appellate Procedure, we withdraw our earlier opinion issued on February 28, 2002, and substitute the following opinion. TEX. R. APP. P. 50.

Appellant was charged by indictment with the offense of possession of more than fifty but less than 200 pounds of marihuana in cause no. 10,887, and possession with the intent to deliver 400 grams or more of cocaine in cause no. 10,888. The cases were consolidated for trial. A jury convicted appellant of each charged offense, and found appellant used or exhibited a deadly weapon in each case. The trial court assessed punishment at twenty years confinement in cause no. 10,887, and thirty-five years confinement and a fine of $5,000 in cause no. 10,888. Appellant raises five points of error. The first and third points contend the evidence is legally insufficient. We agree and reverse.

I. Standard of Appellate Review

In determining whether the evidence is legally sufficient to sustain a conviction, we employ the standard of Jackson v. Virginia and ask "whether, after viewing the evidence in the light most favorable to the prosecution, 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, 61 L.Ed.2d 560 (1979). The standard is applicable to both direct and circumstantial evidence cases. Geesa v. State, 820 S.W.2d 154, 158 (Tex.Crim. App.1991), overruled in part on other grounds, Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App.2000).

In possession of controlled substance cases, two evidentiary requirements must be met: first, the State must prove the defendant exercised actual care, control and management over the contraband; and second, that he had knowledge that the substance in his possession was contraband. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App.1995)(citing Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App. 1988)). To establish criminal liability as a party, the State must prove that the defendant acted with the intent to promote or assist the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person in the commission of the offense. TEX. PEN. CODE ANN. § 7.02(a)(2) (Vernon 1994). The mere presence of the accused at a place where contraband is located does not make him a party to joint possession, even if he knows of the contraband's existence. Oaks v. State, 642 S.W.2d 174, 177 (Tex.Crim.App. 1982).

Whether the theory of prosecution is sole or joint possession, the evidence must affirmatively link the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband's existence and that he exercised control over it. Travis v. State, 638 S.W.2d 502, 503 (Tex.Crim.App.1982). When an accused is not in exclusive possession and control of the place where contraband is found, it cannot be concluded he had knowledge or control over the contraband unless there are additional independent facts and circumstances that affirmatively link him to the contraband. Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim.App.1995); Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App.1986); Sandoval v. State, 946 S.W.2d 472, 476 (Tex.App.-Corpus Christi 1997, no pet.). Similarly, 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 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).

The affirmative links doctrine is the appropriate means of applying the Jackson rationality standard of review. Martinets v. State, 884 S.W.2d 185, 188 (Tex.App.-Austin 1994, no pet.). The Court of Criminal Appeals explained this doctrine in Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995):

[U]nder 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.

Id. at 747.

Certain nonexclusive factors may be considered when determining whether the evidence is sufficient to affirmatively link the accused with the controlled substance:

1. Whether the contraband was in plain view or recovered from an enclosed place;²

2. The accused was the owner of the premises or had the right to possess the place where the contraband was found, or the owner or driver of the automobile in which the contraband was found;

3. The accused was found with a large amount of cash 4. The contraband was conveniently accessible to the accused, or found on the same side of the vehicle as the accused was sitting;

5. The contraband was found in close proximity to the accused;

6. A strong residual odor of the contraband was present;

7. The accused possessed other contraband when arrested;

8. Paraphernalia to use the contraband was in view, or found on the accused;

9. The physical condition of the accused indicated recent consumption of the contraband in question;

10. Conduct by the accused indicated a consciousness of guilt;³

11. The accused attempted to flee;

12. The accused made furtive gestures;

13. The accused had a special connection to the contraband;

14. The occupants of the premises gave conflicting statements about relevant matters;

15. The accused made incriminating statements connecting himself to the contraband;

16. The quantity of the contraband; and,

17. The accused was observed in a suspicious area under suspicious circumstances.

Carvajal v. State, 529 S.W.2d 517, 520 (Tex.Crim.App.1975); State v. Derrow, 981 S.W.2d 776, 779 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd); Mohmed v. State, 977 S.W.2d 624, 627 (Tex.App.Fort Worth 1998, pet. ref'd); Cantu v. State, 944 S.W.2d 669, 670 (Tex.App.Corpus Christi 1997, pet. ref'd); Ortiz v. State, 930 S.W.2d 849, 853 (Tex.App.-Tyler 1996, no pet.); Dixon v. State, 918 S.W.2d 678, 681 (Tex. App.-Beaumont 1996, no pet.); Washington v. State, 902 S.W.2d 649, 652 (Tex. App.-Houston [14th Dist] 1995, pet. ref'd); Watson v. State, 861 S.W.2d 410, 414-15 (Tex.App.-Beaumont 1993, 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. Jones v. State, 963 S.W.2d 826, 830 (Tex.App.-Texarkana 1998, pet. ref'd); Hurtado v. State, 881 S.W.2d 738, 743 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd); Gilbert v. State, 874 S.W.2d 290, 298 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). While affirmative links may be proved by circumstantial evidence, proof amounting to a strong suspicion or even a probability will not suffice. Grant v. State, 989 S.W.2d 428, 433 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (citing Dubry v. State, 582 S.W.2d 841, 844 (Tex. Crim.App. [Panel Op.] 1979)). Ultimately, the question of whether the evidence is sufficient to affirmatively link the accused to the contraband must be answered on a case by case basis. Whitworth v. State, 808 S.W.2d 566, 569 (Tex.App.-Austin 1991, pet. ref'd).

II. Factual Summary.

The evidence viewed in the light most favorable to the prosecution reveals the following. On June 8, 1999, at approximately 8:30 p.m., Texas Department of Public Safety Trooper, Derek Prestridge, was patrolling Interstate 10 eastbound in Chambers County with Trooper Cody Muse.⁴ This particular stretch of the interstate consisted of multiple lanes of traffic separated by a cement wall from the multiple lanes of westbound traffic. Prestridge observed a 1990 Chevrolet Lumina four door automobile in the center lane cross the left lane marker. Prestridge activated his emergency lights to stop the vehicle. At that time, Prestridge could see two individuals in the vehicle. As the vehicle pulled over, Prestridge saw the front seat passenger, appellant, apparently "moving around, shuffling inside the car," and a third individual, Jerome Degree, who had been laying in the back seat "popped up." Prestridge testified appellant's movement created the "possibility of weapons in the vehicle and either attempting to hide a weapon or maybe making access to a weapon for their—themselves during the contact."

The driver, Earl Bellard, immediately exited the vehicle, which Prestridge found uncommon.⁵ Prestridge performed the horizontal gaze nystagmus test on Bellard to determine if he was intoxicated. While Prestridge performed the test, Muse checked on the passengers. Prestridge asked Bellard if he had a criminal record; the information Bellard provided conflicted with the information Prestridge received from the dispatcher.⁶ Appellant provided information of his criminal record that also conflicted with Prestridge's information.⁷ Prestridge testified that appellant appeared nervous, and while nervousness was normal when being stopped for a traffic violation, appellant appeared more nervous than normal. Appellant was asked to exit the vehicle and when he complied, he backed toward Prestridge as if to be handcuffed. Prestridge found...