Roberson v. State

• Citation: 80 S.W.3d 730
• Decision Date: 11 July 2002
• Docket Number: No. 01-00-01420-CR.,01-00-01420-CR.
• Parties: Stanley Bruce ROBERSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

80 S.W.3d 730

Stanley Bruce ROBERSON, Appellant, v. The STATE of Texas, Appellee.

No. 01-00-01420-CR.

Court of Appeals of Texas, Houston (First District).

July 11, 2002.

Rehearing Overruled August 9, 2002.

COPYRIGHT MATERIAL OMITTED

James F. Keegan, Houston, for Appellant.

Michael R. Little, Dist. Atty., Anahuac, for State.

Panel consists of Chief Justice SCHNEIDER and Justices RADACK and DUGGAN.^*

OPINION

MICHAEL H. SCHNEIDER, Chief Justice.

A jury convicted appellant, Stanley Bruce Roberson, of possession of cocaine weighing 4 grams or more but less than 200 grams. The jury, then found an enhancement paragraph alleging prior felony theft convictions to be true and assessed punishment at 33 years in prison. In the first of his three points of error, appellant challenges the legal sufficiency of the evidence presented during the guilt/innocence phase of trial. We reverse and acquit.

Background and Procedural History

On the night of January 4, 2000, Trooper Jason Taylor of the Texas Department of Public Safety was on routine patrol traveling eastbound on Interstate 10 in Chambers County. Near the Trinity River Bridge, he noticed an older model Lincoln with expired registration and inspection stickers and pulled it over at approximately 8:20 p.m. Because the stop was captured on videotape by the patrol car's onboard camera, what occurred during the next thirty minutes before appellant was arrested is not in doubt, but the legal implications of appellant's actions and the evidence found at the scene is highly disputed.

Appellant was driving the car, his cousin, Diamond Lee, was in the front passenger seat, and Coy Nixon was in the backseat. The trooper approached on the passenger side and asked appellant to get out of the car. Appellant quickly complied. He and the trooper stood between the patrol car arid the Lincoln and spoke. During the initial questioning, appellant presented his valid driver's license to the trooper, explained that he had borrowed the car from a person with the last name "Wilson," and, when asked, told the trooper there was no insurance information in the car.

Trooper Taylor then asked appellant to stand at the front of the patrol car, several yards from the Lincoln, while Taylor questioned the passengers. Appellant moved to the front of the patrol car and remained there for the duration of the stop. Trooper Taylor testified that, throughout the stop, appellant was composed, gave no resistance, did not appear to be intoxicated or under the influence of drugs, and had a pleasant personality.

The trooper had Lee get out on the passenger side of the two-door car and questioned him about the purpose of the trip. Lee was allowed to return to the car because he seemed unsteady and Trooper Taylor suspected he was under the influence of something. The passenger side door remained open throughout the rest of the stop. The trooper then asked Nixon, the backseat passenger, to get out on the driver's side of the car. After getting out and shutting the door behind him, Nixon was questioned and consented to a pat-down search that turned up nothing. At this point, having briefly checked the car and the surrounding area with his flashlight, the trooper did not observe any narcotics. He returned to appellant and told him that he would check his license and just write him a ticket for the inspection violation if everything came back clear. Trooper Taylor then returned to the Lincoln and told Nixon that he could sit back down in the car. Nixon returned to the backseat through the passenger side door. The trooper walked back to appellant and began writing out a citation.

A few minutes later, before he had issued a citation, the trooper asked appellant's permission to search the car. Appellant agreed, and then was asked to consent to a pat-down search and a search of his pockets. Appellant again agreed, and the trooper found nothing illegal during these searches of appellant's person. The trooper then had Lee get out of the car. He briefly questioned Lee and told him to stand away from the car. He then had Nixon step out of the car and performed a search of his person. He found two bottles on Nixon that he suspected contained PCP.

Some time after finding the bottles on Nixon, the trooper saw a half "cookie"¹ of crack cocaine on the roadway a few inches from the car on the passenger side. He subsequently saw a full "cookie" of crack cocaine on the passenger side floorboard near the door. The combined weight of the cocaine was nearly 24 grams.

Nixon, Lee, and appellant were placed under arrest. After being advised of his rights, appellant denied any knowledge of the drugs. The three were then taken to a highway patrol office, where they were searched. The troopers recovered a small plastic bag from Lee's underpants that contained a white residue that tested positive for cocaine. They also recovered $700 from Lee. Nixon had $83 dollars and five rocks of crack cocaine in his possession. No drugs or money were recovered from appellant, and a police check on the Lincoln confirmed that he was not the owner of the car.

Appellant and Lee were tried together. Both were charged with possession of cocaine with intent to deliver. Neither defendant presented any evidence after the State rested. The jury charge authorized conviction if appellant was the principal actor or a party to an offense. Lee was convicted of the charged crime, while appellant was found guilty of the lesser included offense of possession of cocaine.

Applicable Law

In his first issue, appellant argues that the evidence was legally insufficient to support his conviction for cocaine possession. Appellant also challenges the factual sufficiency of the evidence in his second issue for review. When both the legal and factual sufficiency of the evidence are challenged, we must first review the evidence under the legal sufficiency standard. Harmond v. State, 960 S.W.2d 404, 406 (Tex.App.-Houston [1st Dist.] 1998, no pet.) (en banc opinion); see Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim. App.1996). In evaluating the legal sufficiency of the evidence, we must view the 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 offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the jury. Id.

A person may not be convicted of possession of a controlled substance, as a principal actor, unless (1) he exercised actual care, control, or custody of it, and (2) he was conscious of his connection with it and knew what it was. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995); see TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), 481.115(a) (Vernon Supp. 2002). One need not have exclusive possession of the drug. Harvey v. State, 487 S.W.2d 75, 77 (Tex.Crim.App.1972).

To prove that a defendant is criminally responsible for possession of a controlled substance as a party, the evidence must first show that another person possessed the contraband. Woods v. State, 998 S.W.2d 633, 636 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). Then the State must show that, with the intent to promote or assist the commission of the offense, appellant solicited, encouraged, directed, aided, or attempted to aid the other's possession. TEX. PEN.CODE ANN. § 7.02(a)(2) (Vernon 1994); Woods, 998 S.W.2d at 636. The mere presence at a place where contraband is being used or possessed by others does not justify finding that a person is in joint possession or is a party to an offense. Martin v. State, 753 S.W.2d 384, 386 (Tex.Crim.App.1988); Whitworth v. State, 808 S.W.2d 566, 569 (Tex.App.-Austin 1991, pet. ref'd).

Affirmative Link

When, as here, the accused is not in exclusive possession of the place where contraband is found, there must be additional independent facts and circumstances which affirmatively link the person to the contraband in such a way that it can be concluded that the accused had knowledge of the contraband and exercised control over it. Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App.1981); Dickerson v. State, 866 S.W.2d 696, 700 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd); Whitworth, 808 S.W.2d at 569. An affirmative link generates a reasonable inference that the accused knew of the contraband's existence and exercised control over it. Johnson v. State, 658 S.W.2d 623, 627 (Tex. Crim.App.1983); Dickerson, 866 S.W.2d at 700. Proof of an affirmative link between the accused and the contraband is mainly needed to establish knowledge or intent. Brown v. State, 911 S.W.2d, 744, 747 (Tex. Crim.App.1995); see Hurtado, 881 S.W.2d 738, 743 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd).

Courts have identified many non-exhaustive factors that may help to show an affirmative link to contraband.² However, the affirmative link terminology does not constitute a unique legal rule, but is only a shorthand way of expressing what must be proven to establish that drugs were possessed knowingly or intentionally. Brown, 911 S.W.2d at 747. Indeed, the number of linking factors present is not as important as the "logical force" they create to prove that the crime was committed. Hurtado, 881 S.W.2d at 743 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd); Whitworth, 808 S.W.2d at 569.

Legal Sufficiency Analysis

Our legal sufficiency analysis in this case turns on whether enough evidence existed for any rational juror to find beyond a reasonable doubt that appellant had knowledge of the presence of cocaine. Knowledge of the presence of cocaine is a required element to show possession as a principle actor. TEX. HEALTH & SAFETY CODE ANN. § 481.115(a) (Vernon Supp. 2002). Knowledge of the presence of cocaine is also implicitly required to show that a party acted with the required intent to promote or...