James Jordan v. State ( 2004 )

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Opinion Issued November 10, 2004

  In The

Court of Appeals

For The

First District of Texas

  NO. 01-03-01211-CR

NO. 01-03-01212-CR

____________

JAMES JORDAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause Nos. 966759 and 945613

MEMORANDUM OPINION

          In a single proceeding, a jury found appellant, James Jordan, guilty of the offenses of delivery and possession of a controlled substance, namely cocaine, weighing less than one gram. After finding true the allegations in two enhancement paragraphs in each case that appellant previously had been convicted of two felony offenses, the trial court assessed appellant’s punishment at confinement for two years for each of the instant offenses.   In two points of error in his appeal from his delivery conviction, appellant contends that the evidence was legally and factually insufficient to support his conviction because the State failed to rebut appellant’s mistaken-identification evidence beyond a reasonable doubt. In four points of error in his appeal from his possession conviction, appellant contends that the evidence was legally and factually insufficient to support his conviction because the State failed to rebut appellant’s mistaken-identification evidence beyond a reasonable doubt and because the State failed to affirmatively link appellant to the narcotics recovered by police officers. We affirm.

Facts

          Houston Police Officer D. Bogaard testified that, on April 14, 2003, he was investigating narcotics activities in an undercover capacity in the Fourth Ward, an area immediately west of downtown Houston which was known to Bogaard for its high crime and narcotics activities. At around 12:45 p.m., while driving slowly down Valentine Street in an unmarked patrol car and not wearing a uniform, he made eye-contact with appellant, who was sitting under a tree in a vacant lot. Three or four persons were sitting in the area. Appellant stood, looked at Bogaard, and Bogaard nodded. Appellant then motioned for Bogaard to turn onto Ruffin Street. Bogaard explained that in his training and experience, appellant wanted him to stop at the roadside and appellant would then approach him to “make a deal.” Bogaard stopped on the north side of Ruffin Street. Appellant approached him, asked how much Bogaard needed, and Bogaard told appellant that he needed “25,” which meant that Bogaard wanted to buy $25 worth of crack cocaine. Bogaard knew that appellant was referring to crack cocaine when appellant asked how much Bogaard wanted to buy from him because “so much crack cocaine [was] being sold in that whole area immediately west of downtown.” Appellant then took off his hat, which contained a “little piece of white plastic” that looked like it had been “ripped off from a shopping bag.” When appellant opened the bag, Bogaard saw “several little rocks” that appeared to be crack cocaine. Appellant handed Bogaard one of the rocks, and Bogaard handed appellant $25. Bogaard thanked appellant, and appellant wrapped the bag and walked back toward the tree.

          Bogaard further testified that, although he was not wearing audio or video devices during the transaction, he was under surveillance by other police officers. Once he drove away, he contacted uniformed officers from his patrol car radio and gave them appellant’s description, including appellant’s age, height, weight, clothing, and location.

          Houston Police Officer T. Hollier testified that, on April 14, 2003, he assisted in the narcotics investigation while driving a marked patrol car and wearing a uniform. Hollier was in radio contact with Bogaard throughout the investigation. When Bogaard completed the narcotics transaction with appellant, he notified Hollier using his patrol car radio and described appellant’s clothing and location. Hollier and his partner spotted appellant in the vacant lot within 30 to 40 seconds of Bogaard’s radio broadcast. Hollier then saw appellant “with a closed hand lean over and [appellant] appeared to place something inside of an object sitting next to [him].” Hollier and his partner then approached appellant and arrested him. Hollier did not find any crack cocaine on appellant’s person during the search after appellant’s arrest. However, he found three rocks of what appeared to be crack cocaine wrapped in a “very small piece of white plastic sitting right on top of [a] bag” that was laying on the ground next to where appellant had been sitting and leaning. The substance later field-tested positive as crack cocaine. Next to the crack cocaine, Hollier found one $20 bill and one $5 bill, which he later learned was the pre-marked money used by Bogaard in the undercover transaction with appellant.

          Kerry Adams, a criminologist in the controlled substance section of the Houston Police Department Crime Lab, testified that the “rock” that appellant gave to Officer Bogaard and the three “rocks” recovered by Officer Hollier each tested positive for cocaine. The crack cocaine given to Bogaard weighed approximately 0.1 grams, and the crack cocaine recovered by Hollier weighed approximately 0.3 grams.

          Kerry Simms testified that he and appellant had been friends for about two years. On April 14, 2003, he and appellant had arranged to meet near the corner of Cushing and Valentine streets in the Fourth Ward in a vacant lot. Simms was with appellant from about 11:00 a.m. to 1:45 p.m. During that time, appellant and Simms talked and drank beer. Appellant did not approach any vehicles or any persons and did not participate in any narcotics transactions during that time. Rather, appellant sat in the same spot until the police officers arrived. Furthermore, Simms never saw appellant standing or sitting in the area where the bag containing the crack cocaine was recovered by the officers. However, Simms and appellant saw at least two other persons approach cars to engage in narcotics transactions, and they saw other illegal activity occurring in the lot. Simms also was present when the officers arrested appellant, and Simms testified that an officer found the crack cocaine in a brown bag that was located in a tire. Sufficiency of the Evidence

Legal Sufficiency

          In his first point of error in both appeals, appellant argues that the evidence was legally insufficient to support his convictions because the State failed to rebut appellant’s mistaken-identification evidence beyond a reasonable doubt. In his third point of error in his appeal from his possession conviction, appellant argues that the evidence was legally insufficient to support his conviction because the State failed to affirmatively link appellant to the crack cocaine found in the bag recovered by Officer Hollier.

          We review the legal sufficiency of the evidence 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). In a legal sufficiency review, we may not substitute our own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

          A person commits the offense of delivery of a controlled substance if he knowingly or intentionally delivers a controlled substance, including cocaine. Tex. Health & Safety Code Ann. §§ 481.112(a), 481.102(3)(D) (Vernon 2003 & Supp. 2004-2005); Jackson v. State, 84 S.W.3d 742, 744 (Tex. App.—Houston [1st Dist.] 2002, no pet.). A person commits the offense of possession of a controlled substance if he knowingly or intentionally possesses a controlled substance, including cocaine. Tex. Health & Safety Code Ann. §§ 481.115(a), 481.102(3)(D) (Vernon 2003 & Supp. 2004-2005); see King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995); Roberson v. State, 80 S.W.3d 730, 734-35 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

            Mistaken Identification

              Appellant asserts that “the identification of the appellant by the police was questionable at best,” and that “[u]nder the facts and circumstances of this case, the State’s evidence against appellant [is] simply not credible.” Appellant notes correctly that Officer Bogaard testified that “appellant had delivered cocaine to Bogaard from a stash concealed under appellant’s hat.” However, appellant asserts that (1) it is “undisputed at trial that no electronic or film surveillance of the alleged offense was made or even attempted”; (2) “no physical evidence was found on the appellant linking him to the alleged delivery offense”; and (3) “appellant never gave an oral or written statement regarding this offense.” Finally, appellant emphasizes that Kerry Simms, appellant’s companion, testified that appellant never engaged in selling cocaine.

          However, the positive identification of a defendant as the perpetrator of a crime is legally sufficient to support a conviction. Everett v. State, 707 S.W.2d 638, 639-40 (Tex. Crim. App. 1986); Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978); Ford v. State, 509 S.W.2d 317, 318 (Tex. Crim. App. 1974). In this case, Bogaard testified that appellant made eye-contact with him, motioned for Bogaard to stop his car, approached Bogaard, and asked him “how much” Bogaard wanted. Bogaard also testified that appellant reached into his hat to retrieve what appeared to be several rocks of crack cocaine wrapped in a white plastic bag. Finally, Bogaard testified that, immediately after the narcotics transaction, he gave a detailed description of appellant and his location to Hollier and the other arresting officers. Officer Hollier testified that he spotted appellant, who matched Bogaard’s description, within 30 to 40 seconds after being contacted. Furthermore, Hollier saw appellant leaning over to his side as if to place something down next to himself. Hollier further testified that, next to the area where appellant had been sitting just before his arrest, Hollier found a bag containing three rocks of crack cocaine wrapped in white plastic, as well as the pre-marked money that Bogaard had used to buy the crack cocaine.

          Considering this evidence, a rational fact finder could have found, beyond a reasonable doubt, that appellant was the perpetrator of the offenses of delivery and possession of a controlled substance. Accordingly, we overrule appellant’s first point of error in each appeal.

          Affirmative Links

          Appellant contends that there are insufficient affirmative links to connect him to the possession of the crack cocaine recovered by Officer Hollier because, although “Hollier testified that he recovered a bag containing crack cocaine on the ground from near where the officer had seen the appellant sitting, . . .[i]t was undisputed that other individuals were also present in the park.” Thus, appellant concludes that “it simply cannot be said that the appellant’s mere proximity to the bag [is] sufficient to establish his control over the same.” In support of his contention, appellant argues that the mere fact that an accused has some sort of ownership rights over the premises upon which narcotics are found is not sufficient to support a finding of joint possession when the premises are also occupied by others.

          To establish the unlawful possession of a controlled substance, the State must show that a defendant (1) exercised care, custody, control, or management over the controlled substance, and (2) knew that he possessed a controlled substance. See Tex. Health & Safety code Ann. §§ 481.002(38), 481.115(a) (Vernon 2003 & Supp. 2004-2005); see King, 895 S.W.2d at 703; Roberson, 80 S.W.3d at 734-35. The State may prove that a defendant knowingly possessed contraband by offering circumstantial evidence affirmatively linking him to the contraband. Brown v. State, 911 S.W.2d 744, 746-48 (Tex. Crim. App. 1995). The State need not show that the defendant exercised exclusive control over the controlled substance, but when the defendant does not have exclusive control, the State must show additional affirmative links between the defendant and the contraband. Cedano v. State, 24 S.W.3d 406, 411 (Tex. App.—Houston [1st Dist.] 2000, no pet.). The affirmative links must raise a reasonable inference that the accused knew of and controlled the contraband. Dickerson v. State, 866 S.W.2d 696, 700 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d).

          Factors that may be considered to establish affirmative links include (1) the defendant’s presence when the search was executed; (2) whether the narcotics were in plain view; (3) the defendant’s proximity to and accessibility of the narcotics; (4) whether the defendant was under the influence of narcotics when arrested; (5) the defendant’s possession of other narcotics when arrested; (6) the defendant’s incriminating statements; (7) the defendant’s attempted flight; (8) the defendant’s furtive gestures; (9) the presence of an odor of the narcotics; (10) the presence of other narcotics or narcotics paraphernalia; (11) the defendant’s ownership or right to possession of the place where narcotics were found; and (12) whether the narcotics were found in an enclosed place. Williams v. State, 859 S.W.2d 99, 101 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d). Despite this list of factors, there is no set formula necessitating a finding of an affirmative link; rather, affirmative links are established by the totality of the circumstances. Sosa v. State, 845 S.W.2d 479, 483 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d).

          Here, Officer Bogaard testified that, after he made eye-contact with appellant, appellant motioned for him to stop his car. Appellant then approached Bogaard and asked how much Bogaard needed, and Bogaard told appellant that he needed “25.” Bogaard testified that appellant removed his hat, which contained a “little piece of white plastic” that looked like it had been “ripped off from a shopping bag.” Bogaard further testified that, when appellant opened the bag, Bogaard saw “several little rocks” that appeared to be crack cocaine and that appellant then sold him one rock for $25. Officer Hollier testified that when he first saw appellant, appellant leaned over with a closed hand and appeared to place something inside an object sitting next to appellant. Hollier then found a bag containing three rocks of crack cocaine wrapped in a small piece of white plastic next to where appellant had been sitting and in the same area where Hollier had seen appellant lean earlier. Hollier also found one $20 bill and one $5 bill next to the rocks of crack cocaine, which he later learned was the pre-marked money that Bogaard had used in the undercover narcotics transaction with appellant.

           Considering this evidence, a rational fact finder could have found, beyond a reasonable doubt, that the appellant knew of and controlled the cocaine found in the bag recovered by Officer Hollier.

          We overrule appellant’s third point of error in his appeal from his possession conviction.

Factual Sufficiency

          In his second point of error in each appeal, appellant argues that the evidence was factually insufficient to support his convictions because the State failed to rebut appellant’s mistaken-identification evidence beyond a reasonable doubt. In his fourth point of error in his appeal from his possession conviction, appellant argues that the evidence was factually insufficient to support his conviction because the State failed to affirmatively link him to the crack cocaine found in the bag recovered by Officer Hollier.

             In our review of the factual sufficiency of the evidence, we view all of the evidence neutrally, and we ask whether 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 whether the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004). Although our analysis considers all the evidence presented at trial, the trier of fact is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Unless the available record clearly reveals a different result is appropriate, an appellate court must defer to the jury’s determination concerning what weight to give contradictory testimonial evidence because this resolution often turns on an evaluation of the credibility and demeanor of the witnesses, and the jurors were in attendance when the testimony was delivered. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).

          Mistaken Identification

          In addition to the arguments that he asserted under his legal sufficiency points of error, appellant argues that the evidence was factually insufficient to support his convictions because (1) he produced testimony that he had not engaged in selling narcotics, and (2) no physical evidence corroborated Bogaard’s testimony that appellant had removed cocaine from his hat. Kerry Simms, appellant’s friend, testified that appellant did not approach any person or vehicle during the time that they were together. Rather, Simms testified that appellant remained seated in the same spot the entire time.

          However, Bogaard testified that appellant made eye-contact with him, motioned for him to stop his car, and asked Bogaard “how much” he wanted. Bogaard testified further that appellant sold to him a “rock” of crack cocaine for $25, and Hollier testified that he spotted appellant 30 to 40 seconds after receiving appellant’s description from Bogaard. Additionally, Hollier saw appellant lean down as if to place something beside appellant, and Hollier found a bag containing three rocks of crack cocaine in the area where appellant had been sitting. Hollier also found one $20 bill and one $5 bill, which he later learned was the pre-marked money that Bogaard used in the undercover narcotics transaction with appellant.

          We note that Officer Bogaard testified that appellant was the person from whom he purchased a rock of crack cocaine and that appellant had several rocks of crack cocaine wrapped in the plastic bag. We also note that Officer Hollier found three rocks of cocaine in the area where appellant had been sitting, along with the pre-marked money Bogaard had used in the transaction with appellant. As the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony, the jury was free to believe or disbelieve all or any part of the officers’ or Simms’s testimony. McKinny v. State, 76 S.W.3d 463, 468-69 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Where conflicting testimony is given, as in this case, it is the exclusive province of the jury to reconcile conflicts in the evidence. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). Viewing all of this evidence neutrally, we conclude that the evidence was not so obviously weak as to undermine our confidence in the jury’s determination and was not so greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. Accordingly, we hold that the evidence was factually sufficient to support the jury’s finding that appellant was the perpetrator of the offenses of delivery and possession of a controlled substance.

          We overrule appellant’s second point of error in each appeal.

          Affirmative Links

          In support of his argument that the evidence was factually insufficient to support his conviction for the offense of possession of a controlled substance, appellant emphasizes the fact that he was not the only person in the vacant lot when the crack cocaine was found. He notes that Bogaard testified that three or four other people were also in the lot and that Simms testified that other people in the lot were engaging in narcotics transactions and other illegal activity. As noted above, Simms also testified that he did not see appellant engage in any narcotics transactions during the time that they were together that day.

          However, Bogaard testified that appellant sold to him one rock of crack cocaine, which appellant had stored in his hat in a white piece of plastic, which held several other rocks of crack cocaine. Furthermore, Hollier testified that, when he first spotted appellant, appellant was leaning down with a closed hand as if he were placing an object beside him. Hollier testified that he found three rocks of crack cocaine wrapped in a small piece of white plastic in the area where appellant had been sitting before he was arrested. Finally, Hollier testified that he found the pre-marked money that Bogaard had handed to appellant in exchange for the crack cocaine in the undercover investigation.

          Again, as the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony, the jury was free to believe or disbelieve all or any part of the officers’ or Simms’s testimony. McKinny, 76 S.W.3d at 468-69. Where conflicting testimony is given, it is the exclusive province of the jury to reconcile conflicts in the evidence. Wesbrook, 29 S.W.3d at 111. Viewing all of this evidence neutrally, we conclude that the evidence was not so obviously weak as to undermine our confidence in the jury’s determination and was not so greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. Accordingly, we hold that the evidence was factually sufficient to affirmatively link appellant to the crack cocaine recovered by Officer Hollier.

          We overrule appellant’s fourth point of error in his appeal from his possession conviction.

Conclusion

          We hold that the evidence was legally and factually sufficient to support appellant’s convictions for delivery and for possession of a controlled substance. We affirm the judgments of the trial court.

                                                                        Terry Jennings

                                                                        Justice

Panel consists of Justices Taft, Jennings, and Bland.

Do not publish. Tex. R. App. P. 47.2(b).