HORTON APPELLANT v. STATE FROM OF COUNTYI (2012)

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

MEMORANDUM OPINION1

II. Factual Background

A. The 9–1–1 Caller's Testimony

Lonnie Griggs testified that on November 13, 2009 at 9:05 p.m., he and his twelve-year-old son were on their way from Mesquite to Euless for a hockey game.   Griggs said that he was running late, and so he was driving sixty-five or seventy miles per hour in a sixty-mile-per-hour zone.   While en route in heavy traffic, Griggs noticed a blue truck approaching him from behind at a high rate of speed.   After the truck passed Griggs, it swerved several times with all four tires crossing into different driving lanes a few times and going off onto the shoulder, nearly hitting several cars that were parked on the shoulder.   At that point, Griggs called 9–1–1 and reported that a driver was under the influence and was driving recklessly.   Griggs provided the dispatcher with a description of the truck and the license plate number, continued to follow the truck, and stayed on the line with the 9–1–1 dispatcher.   Griggs testified that he never allowed the truck to be more than four car lengths from him and that he maintained visual contact with the truck the entire time until the police pulled it over.   The police also instructed Griggs to pull over, and he provided them with his contact information.   A recording of Griggs's 9–1–1 call was played for the jury.

On cross-examination, Griggs testified that the truck slowed down to sixty-five or seventy miles per hour after it passed him.   Griggs could not tell whether the driver was on the phone or texting when he swerved because the windows of the truck were tinted.

B. The Arresting Officer's Testimony

Officer Brandon Zachary with the Euless Police Department testified that on November 13, 2009, he received a radio call informing him that a concerned citizen was following a possibly intoxicated driver.   Officer Zachary was very close to the area that was identified in the radio call and asked dispatch to have the concerned citizen turn on his hazard lights.   The concerned citizen complied, and

B. Evidence Sufficient to Prove Possession

Appellant also argues in his sole issue that the evidence is legally insufficient to support his conviction for possession of marijuana.   Appellant contends that his mere presence at the scene where the drugs were found or his proximity to the drugs is insufficient to establish possession.

An individual commits the offense of possession of marijuana if he “knowingly or intentionally possesses a usable quantity of mari[j]uana” in the amount of “two ounces or less.”  Tex. Health & Safety Code Ann. § 481.121(a), (b)(1) (West 2010).   To prove possession, the State must prove that the accused (1) exercised actual care, custody, control, or management over the substance and (2) knew that the matter possessed was a controlled substance.   Tex. Penal Code Ann. § 1.07(39) (West Supp.2011);  Evans v. State, 202 S.W.3d 158, 161 (Tex.Crim.App.2006).   Possession is a “voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.”  Tex. Penal Code Ann. § 6.01(b) (West 2011).

If the contraband is not found on the accused's person, independent facts and circumstances may “link” the accused to the contraband such that it may be justifiably concluded that the accused knowingly possessed the contraband.   Evans, 202 S.W.3d at 161–62;  Roberson v. State, 80 S.W.3d 730, 735 (Tex.App.—Houston [1st Dist.] 2002, pet. ref'd).   Among the many possible factors that we may consider in assessing the link between a defendant and contraband are whether the narcotics were (1) in plain view;  (2) conveniently accessible to the accused;  (3) in a place owned, rented, possessed or controlled by the accused;  (4) in a car driven by the accused;  (5) found on the same side of the car as the accused;  or (6) found in an enclosed space;  and whether (7) the odor of narcotics was present;  (8) drug paraphernalia was in view of or found on the accused;  (9) the accused's conduct indicated a consciousness of guilt (e.g., furtive gestures, flight, conflicting statements);  (10) the accused had a special relationship to the drug;  (11) the accused possessed other contraband or narcotics when arrested;  (12) the accused was under the influence of narcotics when arrested;  (13) affirmative statements connected the accused to the drug;  (14) the accused's presence;  and (15) the accused was found with a large amount of cash.  Evans, 202 S.W.3d at 162 n.12;  Roberson, 80 S.W.3d at 735 n.2;  Villegas v. State, 871 S.W.2d 894, 897 (Tex.App.—Houston [1st Dist.] 1994, pet. ref'd).   The number of linking factors present is not as important as the “logical force” they create to prove that an offense was committed.  Roberson, 80 S.W.3d at 735.   The absence of various links does not constitute evidence of innocence to be weighed against the links present.  Hernandez v. State, 538 S.W.2d 127, 131 (Tex.Crim.App.1976);  James v. State, 264 S.W.3d 215, 219 (Tex.App.—Houston [1st Dist.] 2008, pet. ref'd).

Here, viewing all of the evidence in the light most favorable to the verdict, Appellant was the driver and the sole occupant of the vehicle in which the baggie of marijuana and the one hitter box, which contained a pipe with burnt marijuana that had a pungent odor, was found in close physical proximity to him.   Appellant was on his way home from the airport after returning from a business trip, thus making it unlikely that his wife had recently driven the vehicle.   The baggie of marijuana and the one hitter box were found near the top of the console next to the cool-to-the-touch bottle of beer that was eighty percent empty, making it unlikely that Appellant was unaware of the drugs because he admitted having drunk a beer.   Moreover, Appellant showed signs of intoxication, including heavy eyes and swaying during the SFSTs, which he failed.   We conclude based on the logical force created by these links that a rational trier of fact could have found beyond a reasonable doubt that Horton possessed the marijuana in the console.   See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789;  Harmond v. State, 960 S.W.2d 404, 406–07 (Tex.App.—Houston [1st Dist.] 1998, no pet.) (holding evidence legally sufficient to support conviction for possession of cocaine because appellant was alone in car with drug paraphernalia in plain view and easily accessible to him);  Laws v. State, No. 01–09–00431–CR, 2010 WL 2133925, at *5 (Tex.App.—Houston [1st Dist.] May 27, 2010, no pet.) (mem. op., not designated for publication) (holding evidence legally sufficient to support conviction for possession of marijuana because appellant was driver and sole passenger in car where plastic bag containing marijuana was found in plain view on passenger's seat);  Williams v. State, No. 14–01–01250–CR, 2002 WL 31426293, at *3 (Tex.App.—Houston [14th Dist.] Oct. 10, 2002, no pet.) (not designated for publication) (holding evidence legally sufficient to support conviction for possession of controlled substance because evidence affirmatively linked appellant to PCP;  appellant was alone when stopped and hands were near console of car where contraband was found);  see also Gilliam v. State, No. 12–10–00136–CR, 2011 WL 2222137, at *4 (Tex.App.—Tyler June 8, 2011, no pet.) (mem. op., not designated for publication) (holding evidence sufficient to show that appellant violated a condition of his community supervision based on his simple possession of marijuana while he was passenger in car even though driver signed affidavit claiming ownership of marijuana and stating that appellant had no knowledge of it).   Accordingly, we hold that the evidence is legally sufficient to support Appellant's conviction for possession of marijuana, and we overrule the portion of Appellant's issue complaining of his possession of marijuana conviction.

V. Conclusion

Having overruled Appellant's sole issue, we affirm the trial court's judgments.

PANEL:  LIVINGSTON, C.J.;   DAUPHINOT and WALKER, JJ.

Tex.R. App. P. 47.2(b)

DELIVERED:  January 19, 2012

FOOTNOTES

FN1. See Tex.R.App. P. 47.4..  FN1. See Tex.R.App. P. 47.4.

FN2. Officer Zachary could not recall for sure but thought that Appellant had mentioned that he was on his way home from the airport..  FN2. Officer Zachary could not recall for sure but thought that Appellant had mentioned that he was on his way home from the airport.

FN3. Officer Zachary did not recall Appellant's mentioning anything about texting or being on his cell phone..  FN3. Officer Zachary did not recall Appellant's mentioning anything about texting or being on his cell phone.

FN4. Officer Zachary explained that a “one hitter box” is the street name for a little wooden box in which one can keep a small amount of marijuana.   A portion of the top of the box can be moved, and a small pipe “pops out that you can smoke marijuana through.”.  FN4. Officer Zachary explained that a “one hitter box” is the street name for a little wooden box in which one can keep a small amount of marijuana.   A portion of the top of the box can be moved, and a small pipe “pops out that you can smoke marijuana through.”

FN5. Prior to the SFSTs, Appellant identified himself using normal speech, told Officer Zachary where he was coming from, produced his driver's license, stepped out of the vehicle, walked to the back of the truck, stood on the designated spot, and responded that he had not endured any recent head trauma..  FN5. Prior to the SFSTs, Appellant identified himself using normal speech, told Officer Zachary where he was coming from, produced his driver's license, stepped out of the vehicle, walked to the back of the truck, stood on the designated spot, and responded that he had not endured any recent head trauma.

FN6. Throughout the SFSTs, it is not easy to tell whether Appellant is swaying because he is facing the highway.   Officer Hansen, however, stood in the grass behind Appellant and had the best view of whether Appellant was swaying..  FN6. Throughout the SFSTs, it is not easy to tell whether Appellant is swaying because he is facing the highway.   Officer Hansen, however, stood in the grass behind Appellant and had the best view of whether Appellant was swaying.