FRANCISCO BOZA RODRIGUEZ v. THE STATE OF TEXAS (2012)

OPINION

Opinion By Justice Myers

Francisco Boza Rodriguez waived his right to a jury and pleaded not guilty to possession of less than one gram of cocaine in a drug-free zone.   See Tex. Health & Safety Code Ann. §§ 481.112(a), (b), 481.134(d) (West 2010).   After finding appellant guilty, the trial court assessed punishment at three years' imprisonment.   In a single point of error, appellant contends the evidence is legally insufficient to prove he possessed the cocaine.   We affirm.

Evidence Presented

Dallas police officer Eric Seyl testified he and three other officers conducted surveillance on an apartment complex's courtyard in response to citizen complaints that drugs were being sold at that location.   Seyl testified he had made drug arrests at that location on a few occasions, and he immediately recognized appellant from previous arrests for drug possession.   Seyl testified that as he sat in a marked patrol car, he saw appellant stand up from the bench he had been sitting on, walk to a light fixture on the wall, reach up to the open top of the fixture, then turn around and walk back to the bench.   Seyl believed appellant placed something inside the fixture.   While another officer detained appellant, Seyl reached in the open top of the fixture and retrieved two baggies that contained a substance that field tested positive for cocaine.   Later analysis showed the baggies contained .13 grams of cocaine.   Seyl testified that although he did not see anything in appellant's hands, it was daylight and he clearly saw appellant reach up to the fixture.   Seyl testified the complex's courtyard is located about 700 feet from an elementary school.

Officer Keith Coates testified he detained appellant while Seyl went to the light fixture.   Coates testified he did not see appellant go to the fixture because he was parked behind Seyl's patrol car.   When he detained appellant, Coates “patted him down” briefly to make sure appellant had no weapon.   After Seyl found drugs in the fixture, Coates arrested appellant and searched him, finding a crack pipe and cigarette box in appellant's pocket.   Coates testified appellant was the only person in the courtyard other than police officers, and that the courtyard was between 700 to 800 feet from an elementary school.

Applicable Law

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);  Lucio v. State, 351 S.W.3d 878, 894–95 (Tex.Crim.App.2011).   We are required to defer to the fact finder's credibility and weight determinations because the fact finder is the sole judge of the witnesses' credibility and the weight to be given their testimony.   See Jackson, 443 U.S. at 326.

The State was required to prove beyond a reasonable doubt that appellant exercised actual care, custody, control, or management over the cocaine and knew the material possessed was contraband.   See Blackman v. State, 350 S.W.3d 588, 594 (Tex.Crim.App.2011).   When a defendant is not in exclusive possession of the area in which the drugs are found, the State must prove beyond a reasonable doubt his connection to the drugs is more than fortuitous.   See id.   The State may prove this by linking appellant to the crime.   See id.   These links may include, but are not limited to:  (1) whether the drugs are in plain view;  (2) the accused's proximity to and accessibility of the drugs;  (3) whether other drugs or paraphernalia were present;  (4) whether the place where the drugs were found was enclosed;  and (5) whether the conduct of the accused indicated a consciousness of guilt.  Evans v. State, 202 S.W.3d 158, 162 n. 12 (Tex.Crim.App.2006).   Links between appellant and the drugs may be established by either direct or circumstantial evidence.   See Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App.2005).   However, no set formula of facts exists to dictate a finding of links sufficient to support an inference of knowing possession.   See Taylor, 106 S.W.3d 827, 830 (Tex.App.—Dallas 2003, no pet.).   It is the logical force of the evidence, and not the number of links, that supports a fact finder's verdict.   See Evans, 202 S.W.3d 158 at 166.

Discussion

Appellant contends the evidence is legally insufficient to prove he possessed the cocaine because the drugs were found in a common area of an apartment complex and no one observed him with the drugs on his person.   Appellant asserts there is no physical evidence that links him to the drugs.   The State responds the evidence is legally sufficient to show appellant possessed cocaine in a drug-free zone.

The evidence presented showed several links between appellant and the cocaine.   Seyl saw appellant walk to the light fixture and place something in the top opening.   Seyl testified it was daytime and there was no need to use the light fixture.   Neither Seyl nor Coates saw any other person in the courtyard except for appellant.   When Seyl checked the fixture, he found two baggies that contained cocaine.   During a search of appellant incident to his arrest, Coates found a crack pipe, “commonly used to smoke crack cocaine,” in appellant's pocket.   It was the trial court's role, as the fact finder in this case, to reconcile any conflicts in the evidence and judge the witnesses' credibility.   See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App.2003);  Lee v. State, 952 S.W.2d 894, 897 (Tex.App.—Dallas 1997, no pet.) (en banc).   We conclude the evidence is sufficient to support appellant's conviction for possession of cocaine in a drug-free zone.   We overrule appellant's sole point of error.

We affirm the trial court's judgment.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

FRANCISCO BOZA RODRIGUEZ, Appellant

No. 05–12–00175–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the Criminal District Court of Dallas County, Texas.  (Tr.Ct.No.F11–57674–H).

Opinion delivered by Justice Myers, Justices Morris and Moseley participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered August 3, 2012.

/Lana Myers/

LANA MYERS

JUSTICE

LANA MYERS JUSTICE