Barnes, Torrance Y. v. State ( 2003 )

In The

Court of Appeals  

For The  

First District of Texas  

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NO. 01-02-00172-CR

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TORRANCE Y. BARNES, 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. 883280

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O P I N I O NA jury found appellant, Torrance Y. Barnes, guilty of the offense of possession of a controlled substance, namely cocaine, weighing more than one gram and less than four grams by aggregate weight. The jury also found the allegations in two enhancement paragraphs were not true and assessed punishment at 10 years’ confinement. In two points of error, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. We affirm.  

BackgroundOfficer William McPherson, while executing a search warrant at a two-bedroom home in Harris County, found appellant lying on a bed in the northwest bedroom. The officer found an amber-colored pill bottle sitting on a dresser located at the foot of the bed. The contents of the pill bottle later tested positive for cocaine. Several pieces of personal mail, including a social security statement and a pay stub in appellant’s name, were found next to the dresser. A clothes rack located near the dresser contained men’s and women’s clothing. Appellant fit into the men’s clothing. A jersey was lying on the floor in the corner of the bedroom. The officer found a photo album in the living room that contained pictures of appellant, including a picture of him wearing the same jersey that was found on the floor of the bedroom.   

Sufficiency of the EvidenceIn his first and second points of error, appellant challenges the legal and factually sufficiency of the evidence supporting his conviction. We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). In reviewing the factual sufficiency of the evidence, we examine all the evidence in a neutral light and ask whether proof of guilt is so obviously weak or greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). In conducting our analysis, we must avoid substituting our judgment for that of the fact-finder. Id.  

Affirmative Links

          To convict an accused of unlawful possession of a controlled substance, the State must prove two elements: (1) that the accused exercised care, custody, control, and management over the contraband; and (2) that the accused knew the matter was contraband. Gilbert v. State, 874 S.W.2d 290, 297 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d); see also Tex. Health & Safety Code Ann. § 481.002(38) (Vernon 1992) . Mere presence in a location where narcotics are possessed does not necessarily establish possession; rather, evidence of knowledge of the contraband and control over the contraband must affirmatively link the accused to the contraband. Id.

          We have held that the following circumstances are evidence of affirmative links: (1) presence when the search was executed; (2) contraband in plain view; (3) proximity to and accessibility of the contraband; (4) accused under the influence of contraband when arrested; (5) accused’s possession of other contraband when arrested; (6) accused’s incriminating statements when arrested; (7) attempted flight; (8) furtive gestures; (9) odor of the contraband; (10) presence of other contraband; (11) accused’s right to possession of the place where contraband was found; and (12) narcotics found in an enclosed place. State v. Derrow, 981 S.W.2d 776, 778 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d).  

          The number of affirmative links present is not as important as the logical force they have in establishing the elements of the offense. Corpus v. State, 30 S.W.3d 35, 37-38 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). We view the totality of the facts and circumstances. Sosa v. State, 845 S.W.2d 479, 483-84 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d).  

          The evidence shows that appellant had multiple affirmative links to the cocaine in the pill bottle. First, appellant was present when the search was executed. Appellant was lying in bed in the house that was searched. Second, the cocaine was in plain view. The cocaine was found sitting on the dresser and the officer testified that it was in plain view. Third, because the dresser was located at the foot of the bed, appellant was in close proximity to the cocaine. Fourth, the jury could have concluded that appellant had a right to possess the house where the contraband was found because (a) he was the only one there when the search was conducted, (b) he was lying in bed, (c) his pictures were found in a photo album in the living room, (d) men’s clothing that fit appellant was found in the closet and on the floor, and (e) several pieces of personal mail, including a social security statement and a pay stub in appellant’s name, were found next to the dresser. Lastly, the contraband was found in an enclosed place, i.e., inside the bedroom where appellant was found lying in bed.

          Viewing the evidence in the light most favorable to the verdict, a rational jury could have found, beyond a reasonable doubt, that appellant knowingly and intentionally possessed more than one gram and less than four grams of cocaine.   

          Therefore, we overrule appellant’s first point of error.  

          Finding the evidence legally sufficient, we proceed to appellant’s second point of error, his factual sufficiency claim. In addition to the evidence that we considered under the legal sufficiency point of error, we now consider the rest of the evidence.   

          Appellant argues that, because the State’s evidence shows that there were two residents of the house, the State cannot prove that he possessed the cocaine. The record reveals that, on the dresser, next to the bottle of cocaine, were two packs of cigarettes that were of different brands. The clothes rack contained both men’s and women’s clothing. Although the mail the officer found was in appellant’s name, the address on the mail was different than the address of the house that was searched. Furthermore, the State did not test the pill bottle for appellant’s fingerprints.

          However, evidence is not factually insufficient merely because appellant offers a different explanation for the facts. Russell v. State, 665 S.W.2d 771, 776 (Tex. Crim. App. 1983); Sosa v. State, 845 S.W.2d at 483. We cannot say that proof that appellant possessed the cocaine is so obviously weak or greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred.

          Therefore, we overrule appellant’s second point of error.   

Conclusion

          We affirm the judgment of the trial court.

                                                                        Adele Hedges

                                                                        Justice

Panel consists of Justices Hedges, Jennings, and Alcala.