Stubblefield v. State

• Court: Texas Court of Appeals
• Writing for the Court: Cornelius
• Citation: Stubblefield v. State, 79 S.W.3d 171 (Tex. App. 2002)
• Decision Date: 22 May 2002
• Docket Number: No. 06-01-00121-CR.,06-01-00121-CR.
• Parties: Josh STUBBLEFIELD, Jr., Appellant, v. The STATE of Texas, Appellee.

79 S.W.3d 171

Josh STUBBLEFIELD, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 06-01-00121-CR.

Court of Appeals of Texas, Texarkana.

Submitted March 1, 2002.

Decided May 22, 2002.

Discretionary Review Refused July 31, 2002.

COPYRIGHT MATERIAL OMITTED

Stephen C. Taylor, Humble, for appellant.

B. Warren Goodson, Jr., Asst. Dist. Atty., Michael J. Guarino, Crim. Dist. Atty., Galveston, for appellee.

Before CORNELIUS, C.J., GRANT and ROSS, JJ.

OPINION

Opinion by Chief Justice CORNELIUS.

Josh Stubblefield, Jr. appeals his conviction for possession of a controlled substance with intent to deliver, a felony offense. Alleging two prior final felony convictions, the State prosecuted Stubblefield as a habitual offender. The jury found Stubblefield guilty and assessed his punishment at seventy years' confinement.

Stubblefield contends the evidence is legally and factually insufficient to support his conviction. He also contends the trial court erred in failing to include an accomplice witness instruction in the charge to the jury.

Police officers from a special crimes unit executed a search warrant at a house in Texas City. The police found five persons and various quantities of drugs in the house. One person fled from the house when the officers entered. Stubblefield was lying on a couch next to a coffee table on which a large patty of cocaine was lying in plain view. Other drugs and drug paraphernalia were found in plain view throughout the house. Stubblefield and others were arrested and charged with possession of drugs with intent to deliver.

In his first point of error, Stubblefield contends the evidence is legally and factually insufficient to support his conviction. 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 requires us 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 must evaluate all of 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), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). In determining the factual sufficiency of the evidence, we review 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 v. State, 23 S.W.3d at 7; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996).

In order to prove unlawful possession of a controlled substance, the state must show that the defendant exercised care, custody, and control of the substance, and that he knew the substance was contraband. Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App.1988); Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App.1986); Rhyne v. State, 620 S.W.2d 599, 601 (Tex. Crim.App. [Panel Op.] 1981). It is not enough that the defendant is present at the scene of the offense or even that he has knowledge of the offense; he must exercise, either solely or jointly, some dominion or control over the contraband. Oaks v. State, 642 S.W.2d 174, 177 (Tex. Crim.App.1982); Martin v. State, 753 S.W.2d at 387. One who possesses a substance has control over that substance unless he has divested himself of the right of control by some affirmative act. TEX. HEALTH & SAFETY CODE ANN. § 481.002(38) (Vernon Supp.2002). When the defendant is not in the exclusive control of the place where the contraband is found, there must be independent facts and circumstances indicating that he had knowledge and control of the contraband. Gude v. State, 716 S.W.2d at 47; Oaks v. State, 642 S.W.2d at 177. There must be evidence affirmatively linking the defendant to the contraband, indicating that he possessed it knowingly or intentionally and that the defendant's connection with the drugs was more than just fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995).

Circumstances that may link a defendant to the controlled substance are: (1) the defendant's presence when the search was executed; (2) the contraband was in plain view; (3) the proximity to and accessibility of the contraband; (4) the defendant was under the influence of contraband; (5) the defendant's possession of other contraband when arrested; (6) incriminating statements by the defendant when arrested; (7) attempted flight by the defendant; (8) furtive gestures by the defendant; (9) there was an odor of the contraband; (10) the presence of other contraband or drug paraphernalia not included in the charge; (11) the defendant's ownership or right of possession of the place where the controlled substance was found; (12) the drugs were found in an enclosed place; (13) there was a significant amount of drugs; and (14) the defendant possessed weapons or large amounts of cash. De La Garza v. State, 898 S.W.2d 376, 379 (Tex.App.-San Antonio 1995, no pet.); Hernandez v. State, 867 S.W.2d 900, 904 (Tex.App.-Texarkana 1993, no pet.); Castillo v. State, 867 S.W.2d 817, 820 (Tex. App.-Dallas 1993), vacated & remanded on other grounds, 913 S.W.2d 529 (Tex.Crim. App.1995). The number of affirmative links present is not as important as the degree to which they tend to link the defendant to the controlled substance. Williams v. State, 906 S.W.2d 58, 65 (Tex. App.-Tyler 1995, pet. ref d).

The evidence is uncontested that Stubblefield was present when the search was executed. The testimony of officers and a codefendant established that when the officers entered the house, Stubblefield was lying on a couch adjacent to another couch, with a coffee table within Stubblefield's reach, situated between the couches. Officers and a codefendant testified there was a substantial amount of cocaine in plain view on the coffee table. They further testified they also saw the cocaine on the floor by the coffee table after the table was knocked over by the person initially sitting on the couch adjacent to Stubblefield, Eugene Bookman, as he ran out the back door. Constanza Crisp, the occupant of the house, testified that when she left the room to go upstairs, before the police arrived, Bookman had been "cutting" the cocaine.

There is no evidence that Stubblefield was under the influence of a controlled substance, attempted to flee, or made incriminating statements or furtive gestures during the search. Although officers found marihuana and drug paraphernalia in the house, no contraband, currency, or weapons were found on Stubblefield's person. The officers found a bag of cocaine on the floor behind the couch where Stubblefield had been lying. Stubblefield was not a lessor of the house and did not pay for any utilities at the residence, but the possessor of the house testified that Stubblefield had been living in the house for at least two or three weeks before the search.

We conclude that there are sufficient affirmative links to justify the jury in finding that Stubblefield possessed the contraband. We must remember that proof of joint possession is sufficient to sustain a conviction. Redman v. State, 848 S.W.2d 710 (Tex.App.-Tyler 1992, no pet.); McGoldrick v. State, 682 S.W.2d 573 (Tex. Crim.App.1985).

Of the fourteen affirmative links mentioned earlier, there are at least nine present in this case which, if found by the jury, connect Stubblefield to the contraband: (1) he was present in the house when the search was conducted; (2) the contraband was in plain view; (3) he was in close proximity to the contraband, which was on a coffee table less than two feet in front of where he was lying on a couch; and (4) additional cocaine was in a bag behind the couch. One officer testified that narcotics were "all over the place"; (5) there was positive testimony from Crisp, who occupied and paid the utilities on the house that, contrary to Stubblefield's testimony, he had been living in a bedroom in the house for two to three weeks before the search was executed; (6) there was a large amount of the contraband, and at the time of the search, Eugene Bookman, another resident of the house, was cutting the cocaine preparing it for sale in small portions; (7) other narcotics were located in various places in the house, including marihuana that was packaged for sale; (8) there were crack pipes, a razorblade for cutting cocaine, measuring cups, spoons, and other drug paraphernalia in plain view; and (9) the contraband was in an enclosed place.

Although it is not the number of affirmative links that control but the degree to which they connect the defendant to the contraband, the links present here are more than sufficient to warrant the jury to find that Stubblefield at least jointly possessed the contraband.

Stubblefield also contends he was deprived of a fair trial because the trial court failed to include an instruction on accomplice witness testimony in the jury charge.

A conviction cannot be based on the testimony of an accomplice unless that testimony is corroborated by other evidence tending to connect the defendant with the offense, and the corroboration is not sufficient if it merely shows the commission of the offense. TEX.CODE CRIM. PROC. ANN. art. 38.14 (Vernon Supp.2002). An accomplice witness instruction is required when the evidence clearly shows that the witness is an accomplice as a matter of law. Gamez v. State, 737 S.W.2d 315, 322 (Tex.Crim.App.1987). When the witness has been indicted for the same offense as the defendant, the witness is an accomplice as a matter of law. DeBlanc v. State, 799 S.W.2d 701, 708 (Tex.Crim.App. 1990). Crisp testified that she was a codefendant in Stubblefield's case and that she had pleaded guilty and agreed to testify for the State. Therefore, Stubblefield was entitled to an...