Goracki, Eugene M. v. State ( 2002 )

Opinion issued April 11, 2002

In The

Court of Appeals

For The

First District of Texas  

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NO. 01-01-00101-CR

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EUGENE M. GORACKI, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 842126

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O P I N I O N  

A jury found appellant, Eugene M. Goracki, guilty of the state jail felony offense of possession of methamphetamine weighing less than one gram and found two enhancement paragraphs to be true. The jury assessed punishment at 20 years confinement with a $2000 fine. Appellant presents two issues for our review, disputing the legal and factual sufficiency of the evidence to support his conviction. We affirm.    

Background

Houston Police Officer R. M. Landrum testified that, at approximately 3:00 a.m. on April 18, 2000, while on patrol, he received a call from a dispatcher informing him of a possible burglary of a truck in progress. Upon arrival at the scene, Officer Landrum saw someone running away from the allegedly burglarized truck. Landrum got out of his car and began to run in the same direction. He notified the dispatcher that an individual was running from him and requested other units to set up a perimeter in a one-block area.

Officer D. L. Rogers, assigned to the canine unit of the Houston Police Department, arrived at the location, and his patrol dog, Pharoah, began barking at the underside of the allegedly burglarized truck. Appellant emerged from underneath the truck, and Officer Landrum handcuffed him. Landrum quickly patted appellant down for weapons and placed him in the passenger side of the backseat of Landrum's patrol car. Pharaoh began barking again at the underside of the truck. Another individual, Stephen Dugan, emerged from underneath the truck and Officer Landrum handcuffed him and patted him down. Landrum then placed Dugan in the passenger side of the backseat of Landrum's patrol car, thereby causing appellant to move over to the driver's side of the backseat.

Officer Landrum waited by his patrol car with another officer while Officer Rogers continued to search the nearby area. Officer James McCoy arrived at the location and agreed to transport the suspects to jail. The officers removed appellant and Dugan from Landrum's patrol car and performed a more thorough search of them both, but found nothing. Dugan was removed from the passenger side of the patrol car, and appellant was removed from the driver's side. Landrum checked the backseat of his patrol car, as required by police procedure, and found, on both sides of the seat, six small plastic bags containing an unknown substance. Four of the bags were found where the seat begins to "curve and slide up underneath the back of the seat" on the side where appellant was sitting. Two other plastic bags were found in the seat directly behind where Dugan was sitting. Landrum testified that he previously searched his patrol car when he first went on duty that evening and appellant and Dugan were the only suspects placed in his patrol car that day.

Officer Landrum field tested the contents of one of the bags, which yielded a positive result for methamphetamine. Claudia Busby, a chemist with the Houston Police Department Crime Laboratory, performed several scientific analyses on the contents of the bags and determined that five of the bags contained methamphetamine, weighing approximately 518.3 milligrams. ⁽¹⁾    

Sufficiency of the Evidence

In his first issue, appellant challenges the legal sufficiency of the evidence to support his conviction. We review legal sufficiency by viewing the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).

To establish unlawful possession of a controlled substance, the evidence must show appellant knowingly exercised care, control, or management over the controlled substance, was conscious of his connection with it, and knew what it was. Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995); Tex. Health & Safety Code § 481.002(38), 481.115 (Vernon 1992 & Vernon Supp. 1998). Evidence which affirmatively links the accused to the controlled substance suffices for proof that he possessed it knowingly. Brown, 911 S.W.2d at 748. The evidence used to satisfy these elements can be direct or circumstantial. Id. Whether direct or circumstantial evidence is used, the State must establish that the accused's connection with the controlled substance was more than just fortuitous. Id.

If the controlled substance is not found on the accused's person or the accused was not in exclusive control over the place where it was found, the State must show additional facts and circumstances linking the accused with the controlled substance. McMillon v. State, 940 S.W.2d 767, 768 (Tex. App.--Houston [14th Dist.] 1997, pet. ref'd). These additional facts may include the proximity of the accused to the contraband and its accessibility or visibility to the accused, presence of drug paraphernalia not included in the charge, and the accused's ownership or right of possession of the place where the controlled substance was found. Id. at 769. Although the appellant must be affirmatively linked with the controlled substance he allegedly possessed, this link need not exclude every other reasonable theory except the defendant's guilt. Id.

In this case, Officer Landrum testified he searched his vehicle at the beginning of his shift, as procedurally required, and did not find any controlled substances. He testified that appellant and Dugan were the first individuals placed in the back seat of his patrol car the night of appellant's arrest. Landrum's search of the patrol car, after removing appellant and Dugan, revealed several bags of methamphetamine inside the back seat. The four bags attributed to appellant were found in the back seat of the car in close proximity to where appellant was sitting. Dugan was seated and handcuffed on the other side of the car and could not easily access the seat area behind appellant. There was at least one officer attending the vehicle at all times, and none witnessed Dugan make any movements toward the side of the car where appellant was sitting.

In a similar case, the Court of Criminal Appeals held there was legally sufficient evidence to support a defendant's conviction where the evidence showed no controlled substance was beneath the back seat of a patrol car before the defendant was placed in it, from which it reasonably could be inferred the defendant deposited the controlled substance beneath the seat. Williams v. State, 784 S.W.2d 428, 429-30 (Tex. Crim. App. 1990). We hold the evidence detailed above, when viewed in the light most favorable to the verdict, was legally sufficient to affirmatively link appellant to the controlled substance and sustain his conviction. Id.

We overrule appellant's first issue.

In his second issue, appellant challenges the factual sufficiency of the evidence to support his conviction. Under the factual sufficiency standard, we ask "whether a neutral review of all of the evidence both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." King, 29 S.W.3d at 563. We will reverse the fact finder's determination only if a manifest injustice has occurred. Id. In conducting this analysis, we may disagree with the jury's determination, even if probative evidence supports the verdict, but we must also avoid substituting our judgment for that of the fact finder. Id.

Dugan testified that the five bags of methamphetamine were in his possession and he tried to "stuff them down the back of the police car." Appellant presented no other witnesses or evidence. On cross-examination, Dugan admitted he never told the police that the methamphetamine was in his possession. Dugan testified he knew appellant for 15 years, was his "good friend," they used to be roommates, and he did not want to see anything bad happen to appellant. Dugan previously pleaded guilty to possession of methamphetamine as a result of his arrest on April 18, 2000.

The fact finder is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony, and the fact finder may believe or disbelieve any or all testimony of the witnesses. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). We note that a decision is not manifestly unjust merely because the factfinder resolved conflicting views of the evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997). We hold the evidence was factually sufficient to show appellant knowingly possessed a controlled substance and to sustain appellant's conviction for the felony offense of possession of methamphetamine weighing less than one gram.  

We overrule appellant's second issue.

We affirm the judgment of the trial court.  

Terry Jennings

Justice

Panel consists of Justices Mirabal, Hedges and Jennings.

Do not publish. Tex. R. App. P. 47.  

1. The sixth bag contained ketamine, a powerful anaesthetic used by veterinarians on farm animals, which is not a controlled substance.