GARY DEMON WILLIS v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice Lang–Miers

Gary Demon Willis appeals his conviction for unlawful possession of one gram or more but less than four grams of cocaine.   After the jury found appellant guilty, he pleaded true to the two punishment-enhancement allegations, and the jury assessed his punishment at thirty years' imprisonment.   Appellant brings two issues on appeal contending the evidence is insufficient (1) to prove he was the man chased by the police and (2) to affirmatively link him to the drugs.   We affirm the trial court's judgment.

BACKGROUND

On the afternoon of August 19, 2008, Dallas Police Officers Justin Bowen and Juan Hernandez were driving near an apartment complex when they saw a man walking down the middle of the street, urinating, and holding a paper bag containing a beer can.   The officers stopped and got out of their squad car, and they told the man to come to them and put his hands on the squad car.   The man, however, ran away from the officers through the apartment complex.   As the man ran, he threw away the beer can but kept hold of the paper bag.   After running about thirty yards, the man ran through the open door of an apartment.   The officers followed behind him and saw the man fall over or jump behind a sofa, and they saw the man thrust one hand under the sofa.   The man, appellant, resisted their attempts to handcuff him and tried to keep his hands under his body.   When the officers had subdued appellant they looked under the sofa and found a paper bag containing ten rocks of cocaine.   The officers testified they never lost sight of the man running away from them, that the brown paper bag they found under the sofa was the same one they saw carried by the man, and they both identified appellant as the man they saw running away from them.

Appellant testified that he went to the apartment complex to check on a friend.   While there, he met a man named Jojo who suggested appellant come back to his apartment.   Appellant had been in the apartment for thirty or forty-five minutes, and Jojo said, “I know the law's coming.”   Appellant testified that he was sitting on the sofa in the apartment when the police officers burst in, grabbed him, and handcuffed him.   Appellant admitted that he had previously been convicted of two drug offenses.   Appellant also testified that he walked with a limp and was not able to run because he had been shot nine times in his left leg and hip in 2005.   Appellant testified that it was physically impossible for him to outrun two police officers over thirty yards.   The officers testified that the man they were chasing had no difficulty running and did not limp.

SUFFICIENCY OF THE EVIDENCE

In appellant's two issues, he challenges the sufficiency of the evidence to support his conviction.   In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Brooks v. State, 323 S.W.3d 893, 899 (Tex.Crim.App.2010) (plurality op.).   We defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony.   See Jackson, 443 U.S. at 326;  Brooks, 323 S.W.3d at 899.

Whether Appellant was the Man Running from the Police

In the first issue, appellant asserts that the evidence was insufficient to establish that he was the man chased by the police.   Appellant argues that the evidence is insufficient because he “presented uncontradicted testimony that, due to prior injuries, it was impossible for him to run.”   The only evidence of appellant's injuries, however, was his own testimony and the fact that he limped as he walked to the witness stand.   He presented no medical records or testimony of medical experts or any other evidence to corroborate his testimony about his injuries.   Consequently, whether appellant was the man who ran away from the police as the officers testified, or whether it was impossible for appellant to run as he testified, was an issue dependent upon the jury's determination of the credibility of the witnesses and the weight of their testimony.   In this case, the jurors concluded that the officers were more credible and chose to disbelieve appellant's testimony.   As explained above, we defer to the jury's determinations of the credibility of the witnesses.

After considering all the evidence, we determine that a rational juror could conclude beyond a reasonable doubt that appellant was the man the officers saw running away from them.   Accordingly, the evidence is sufficient.   We overrule appellant's first issue.

Affirmative Links

In his second issue, appellant contends that the evidence was insufficient to affirmatively link him to the drugs.   In a possession of a controlled substance case, the State must prove, either directly or circumstantially, that the accused exercised actual care, custody, control, or management over the contraband and that the accused knew the matter possessed was contraband.   Tex. Health & Safety Code Ann. § 481.002(38) (West 2010);  Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App.2005).   The State does not have to prove the accused had exclusive possession of the contraband;  joint possession is sufficient to sustain a conviction.   See Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App.1986).   When there is no evidence the appellant was in exclusive control of the place where the contraband was found, the State must offer additional independent facts and circumstances affirmatively linking him to the contraband.   See Poindexter, 153 S.W.3d at 406;  Smith v. State, 176 S.W.3d 907, 916 (Tex.App.—Dallas 2005, pet. ref'd).   No set formula exists to dictate a finding of affirmative links sufficient to support an inference of knowing possession of contraband.  Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.—Dallas 2003, no pet.).   As we have said before, it is the “logical force” of the factors, not the number of factors present, that determines whether the elements of the offense have been established.  Id.;  Hawkins v. State, 89 S.W.3d 674, 677 (Tex.App.—Houston [1st Dist.] 2002, pet. ref'd).   The purpose of affirmatively linking the accused to the contraband is to protect innocent bystanders from conviction based solely on their fortuitous proximity to the contraband.   See Poindexter, 153 S.W.3d at 406.

In determining whether any affirmative link exists, the court may consider a number of

different factors including:

(1) the defendant's presence when a search is conducted;  (2) whether the contraband was in plain view;  (3) the defendant's proximity to and the accessibility of the contraband;  (4) whether the defendant was under the influence of narcotics when arrested;  (5) whether the defendant possessed other contraband or narcotics 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 contraband;  (10) whether other contraband or drug paraphernalia were present;  (11) whether the defendant owned or had the right to possess the place where the drugs were found;  (12) whether the place where the drugs were found was enclosed;  (13) whether the defendant was found with a large amount of cash;  and (14) whether the conduct of the defendant indicated a consciousness of guilt.

Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex.Crim.App.2006).

In this case, several factors affirmatively link appellant to the cocaine.   Appellant was present when the search was conducted;  he was in close proximity to the drugs in that he was crouched beside the sofa;  he made a furtive gesture with one hand under the sofa where the drugs were hidden;  and he attempted to flee from the officers, which indicated a consciousness of his guilt.

We conclude that this evidence was sufficient to affirmatively link appellant to the cocaine.   We overrule appellant's second issue.

CONCLUSION

We conclude the evidence is sufficient to establish that appellant was the man running away from the officers and that the evidence affirmatively linked appellant to the contraband.   Having decided appellant's issues against him, we affirm the trial court's judgment.

ELIZABETH LANG–MIERS JUSTICE