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Court of Appeals of Texas, Dallas.


No. 05-08-01714-CR

Decided: January 29, 2010

Before Chief Justice Wright and Justices FitzGerald and Murphy


Opinion By Justice FitzGerald

A jury convicted Ronald James Franklin of possession of a controlled substance in the amount of one gram or more, but less than four grams.   The jury assessed his punishment at eight years' confinement.   Franklin challenges the sufficiency of the evidence supporting his conviction, and he contends the trial court submitted an erroneous charge to the jury.   We affirm.

In his first issue, Franklin challenges the legal and factual sufficiency of the evidence supporting his conviction.   We apply well-known standards when reviewing challenges to the sufficiency of the evidence.   In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences, any rational trier of fact could have found the defendant guilty of the offense beyond a reasonable doubt.   See Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App.2004).   In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.2007);  Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App.2006).   Evidence is factually insufficient when the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, or when the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust.  Roberts, 220 S.W.3d at 524.

In this case, Franklin was in the front passenger seat of a car pulled over by the Rockwall police.   The police had been called after Franklin entered a Subway restaurant in Rockwall and behaved suspiciously.   Franklin later admitted he had intended to “shortchange” the cashier, but had left after determining the restaurant was too crowded.   The workers had initially thought Franklin might be trying to pass counterfeit money.

Rayshun Lynn was the driver;  his and Franklin's girlfriends were in the backseat of the car.   The investigating officer described Franklin's conduct as jumpy and unusually nervous.   After initial questioning, Lynn consented to a search of the vehicle.   The search yielded marijuana residue as well as a considerable amount of drug paraphernalia:  razor blades, a scorched spoon, and a straw containing white powder residue.   Officers also found a Visine bottle on the console between Franklin and Lynn, in plain view;  the bottle was on the side of the console closer to the passenger seat.   The contents of the bottle tested positive for heroin.   None of the four persons who had been in the car admitted ownership of the heroin.   Lynn told police the heroin belonged to Franklin.   Lynn's girlfriend, Tonya Knight, told police she had been in the front passenger seat before they picked up Franklin.   She said the Visine bottle was not on the console when she was in the front seat;  it appeared after Franklin got in.   Franklin denied the heroin was his.   He stated he was a cocaine user and admitted to police he had used crack cocaine that day.   The police ultimately decided to arrest Lynn and Franklin.   When they searched Franklin incident to the arrest they found a glass pipe used for smoking narcotics in his jacket pocket.

To prove unlawful possession of a controlled substance, the State must prove:  (1) the accused exercised control, management, or care over the substance;  and (2) the accused knew the matter possessed was contraband.   Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App.2005).   Mere presence at the location where drugs are found is insufficient, by itself, to establish actual care, custody, or control of those drugs.  Evans v. State, 202 S.W.3d 158, 162 (Tex.Crim.App.2006).   However, if presence is combined with other direct or circumstantial evidence, that evidence can be sufficient to establish control, management, or care beyond a reasonable doubt.  Id. And if the evidence affirmatively links the contraband to the accused, it can be reasonably inferred he knew about it and exercised control over it.  Smith v. State, 56 S.W.3d 739, 747 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd).   Possession of the contraband need not be exclusive;  evidence indicating the accused jointly possessed the contraband with another is sufficient.  Martin v. State, 753 S.W.2d 384, 386 (Tex.Crim.App.1988).

The Court of Criminal Appeals has identified a non-exclusive list of links that may circumstantially establish the sufficiency of the evidence to prove a knowing possession:

(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 narcotic;  (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, 202 S.W.3d at 162 n.12. The list is not a “litmus test.”  Id. And we are less concerned with the number of links than with the degree to which the links tend to connect the accused to the contraband.  Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.-Dallas 2003, no pet.).

In Franklin's case, a significant number of the listed links tend to link him strongly to the heroin:  (1) he was present when the search was conducted;  (2) the heroin was in plain view;  (3) the heroin was closer to Franklin than any other passenger, certainly within easy reach for him;  (4) Franklin admitted he was under the influence of cocaine when he was arrested;  (5) Franklin possessed drug paraphernalia (the glass pipe) on his person when he was arrested;  (6) Franklin admitted both his intent to shortchange and his use of crack cocaine;  (10) a considerable amount of drug paraphernalia and marijuana residue was found in the car;  (11) Franklin was an invited guest in the car-Lynn testified they had agreed to share some of the money obtained in the shortchange enterprise;  (12) the car was enclosed;  and (14) there was testimony Franklin was especially jumpy and nervous when he was interviewed and when the car was being searched.

Along with this circumstantial evidence of knowing possession, the jury heard testimony from the lead police officer that Knight told him the heroin appeared after Franklin entered the car.   There was no objection to this hearsay testimony, and the trier of fact is entitled to give probative value to inadmissible hearsay admitted without objection.  Tex.R. Evid. 802;  see also Poindexter, 153 S.W.3d at 407.   And finally, Lynn told the investigating police and testified at trial that the heroin belonged to Franklin.   Given all this evidence, a rational jury could certainly have concluded beyond a reasonable doubt that Franklin exercised actual care, custody, control, or management over the drugs and that he knew the contents of the Visine bottle were contraband.   See Poindexter, 153 S.W.3d at 405;  see also Lane, 151 S.W.3d at 191-92.

There was some evidence to the contrary.   Franklin's girlfriend, Sharon Ellison, testified at trial that Lynn was a heroin dealer, and he usually had heroin with him.   But evidence that Lynn possessed the heroin does not refute Franklin's possession:  the heroin could have been jointly possessed by both Lynn and Franklin.   See Martin, 753 S.W.2d at 386.   Ellison also testified Franklin used only cocaine, not heroin.   And the description of Franklin's behavior at the time of the arrest may have been more consistent with cocaine use than heroin use.   But there was testimony from an experienced police officer concerning the way some drug users alternate between the two narcotics or use them simultaneously.   Indeed, Ellison herself admitted she was a user of both heroin and cocaine.   In deciding whether the evidence is sufficient to link the defendant to contraband, the trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony.  Poindexter, 153 S.W.3d at 407.   Looking at all the evidence, we cannot say the great weight and preponderance of the evidence contradicts the jury's verdict or that the verdict seems clearly wrong or manifestly unjust.   See Roberts, 220 S.W.3d at 524.

Franklin specifically argues there was insufficient evidence corroborating Lynn's testimony.   A defendant cannot be convicted of an offense upon the testimony of an accomplice in the absence of corroborating evidence tending to connect the defendant to the offense.  Tex.Code Crim. Proc. Ann. art. 38.14;  Simmons v. State, 282 S.W.3d 504, 505 (Tex.Crim.App.2009).   To review the sufficiency of the corroborating evidence, we eliminate from consideration the testimony of the accomplice witness and examine the remaining evidence to determine whether there is evidence that tends to connect the accused with the commission of the offense.  Castillo v. State, 221 S.W.3d 689, 691 (Tex.Crim.App.2007).   The corroborating evidence need not be sufficient by itself to establish guilt, or to link the defendant directly to the crime, or to establish-on its own-the defendant's guilt beyond a reasonable doubt.  Id. Article 38.14 requires only that there be “other” evidence “tending to connect” the defendant to the offense.   See id.

In this case, the evidence from testimony and circumstances other than Lynn is more than sufficient to connect Franklin to the heroin found in Lynn's car.   We have outlined the circumstantial evidence that links Franklin to the heroin:  he was an invited guest in a closed car, and the heroin was discovered in plain view and within his reach;  assorted drug residue and drug paraphernalia was discovered in the car and on Franklin's person;  Franklin admitted he had used narcotics the very day of the arrest.   Moreover, passenger Knight testified the heroin was not on the console of the car until Franklin arrived.   Franklin argues we should disregard Knight's testimony because it is open to more than one interpretation:  he contends the heroin could have been placed on the console by any of the other passengers at the time Franklin got in the car.   “[W]hen there are two permissible views of the evidence (one tending to connect the defendant to the offense and the other not tending to connect the defendant to the offense), appellate courts should defer to that view of the evidence chosen by the fact-finder.”  Simmons, 282 S.W.3d at 508.   We conclude that when the non-accomplice testimony is viewed together, a rational juror could find this evidence tends to connect Franklin to the offense.   Accordingly, the evidence is sufficient to corroborate the accomplice's testimony.   See id. at 511.

In his second issue, Franklin argues he did not receive a fair trial because the jury was not instructed that Lynn was an accomplice as a matter of law.   Lynn pleaded guilty to the same offense for which Franklin was convicted;  thus, Lynn was an accomplice as a matter of law.   See Solis v. State, 792 S.W.2d 95, 97 (Tex.Crim.App.1990).   When the evidence establishes a witness is an accomplice witness as a matter of law, the trial court must so instruct the jury.  Id. Franklin did not object to the absence of this instruction, however, so he must prove he suffered actual egregious harm from its absence.   See id.   Egregious harm is present only if we find the case for conviction was actually made clearly and significantly more persuasive by the omission of the accomplice-as-a-matter-of-law instruction.   See Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim.App.1991).

Franklin argues the absence of this instruction could have allowed the jury to conclude Lynn was not an accomplice, and thus permitted the jury to eliminate the corroboration requirement from the case.   We disagree.   The jury was instructed that an accomplice is:

a person who has participated with someone else before, during or after the commission of a crime․  If the witness cannot be prosecuted for the offense with which the accused is charged, then the witness is not an accomplice witness as a matter of law.

Lynn himself testified at trial that he was convicted of the same possession offense with which Franklin was charged.   Moreover, in its closing argument, the State clearly identified Lynn as an accomplice.   Referring to the jury charge, the State argued:

And it says that you can't convict on just accomplice testimony alone.   I say we don't even need Rayshaun Lynn's testimony.   You've got him in that car.   You've got him admitting that he's on drugs.   You've got him right beside it.   That is possession.   That is intent.   You have to prove intent by the circumstances surrounding it.   There's no other way.

They can say till they're blue in the face of [sic] there was a deal cut with the co-defendant, Rayshaun Lynn. But was his story consistent throughout the whole thing?  “It was his.   It was his.   And, yeah, I'm not the best guy in the world.   I've been down before, and I sell it.”   But his consistency on whose it was stayed the same.   And it's not just that accomplice that we gave you.   We gave you what happened and where it was.  (Emphasis added.)

The jury was thoroughly instructed on the nature of an accomplice and the requirement of corroboration.   We must presume that jurors “attend closely the particular language of the trial court's instructions in criminal cases and strive to understand, make sense of, and follow the instructions given them.”   DeBlanc v. State, 799 S.W.2d 701, 710-11 (Tex.Crim.App.1990) (citing Francis v. Franklin, 471 U.S. 307, 324 n. 9 (1985)).   Finally, we have identified the numerous ways in which Lynn's testimony was corroborated both by Knight's testimony and by the various circumstances linking Franklin to the contraband.   Given the record before us, we cannot conclude the State's case for conviction was made significantly more persuasive by the omission of the accomplice-as-a-matter-of-law instruction.   See Saunders, 817 S.W.2d at 692.   Accordingly, we find no egregious harm in this instance.   We overrule Franklin's second issue as well.

We affirm the judgment of the trial court.


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