Kalvin Dewayne Harris v. State ( 2006 )

                NO. 12-04-00347-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KALVIN DEWAYNE HARRIS,       §          APPEAL FROM THE 241ST

APPELLANT

V.        §          JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,   

APPELLEE   §          SMITH COUNTY, TEXAS

MEMORANDUM OPINION

            Kalvin Dewayne Harris appeals his conviction for possession of a controlled substance.  In two issues, he contends that the evidence is legally and factually insufficient to support his conviction and that there is an error in the judgment.  We modify the judgment and affirm as modified. 

Background

            On March 23, 2004, Deputy Constable Mark Waters stopped a Lincoln Navigator on Interstate 20 in Smith County, Texas for driving in the passing lane unnecessarily and for having a video screen visible to the driver.  The driver was Augustine Rodriguez.  Appellant was in the front passenger seat.  Neither man owned the vehicle, and they both panicked when they were unable to produce an insurance card.  Waters thought the reaction was disproportionate to the request for an insurance card and told the two men that they could find the card later. When it was found, the insurance card revealed that the Navigator was owned by two different women.¹

            Appellant became even more nervous when Waters asked him for his social security number.  Other officers arrived, and the men were separated and asked about their travel plans. Appellant first told officers that he was going to Tyler to look at a car.  The story evolved, and later he said that he was going to Tyler to look at a “dirt bike,” a motorcycle.  The driver, by contrast, told officers that the men were going to Shreveport, Louisiana to visit a casino. 

            The driver refused permission to search the vehicle, and the police brought a dog trained to detect illegal narcotics to investigate.  The dog indicated that there were illegal narcotics in the Navigator, and the police searched the vehicle.  During the search, the officers found five cellular telephones as well as a small amount of what they believed to be marijuana on the floor of the driver’s side and a large quantity of plastic sandwich bags.  In the back, they found a kilogram of cocaine wrapped in plastic in a compact disc player box.   

            Appellant was charged by indictment with possession of four hundred grams or more of cocaine, a first degree felony.  Appellant pleaded “not guilty,” and the matter proceeded to trial.  At trial, Charles Garrett, a sergeant with the narcotics division of the Texas Department of Public Safety, testified that Interstate 20 is a conduit for illegal narcotics from Dallas to points east. Deputy Constable Waters, who had been trained in highway drug interdiction and worked full time on traffic enforcement on Interstate 20, testified that those involved in the transport of illegal narcotics often have multiple cellular telephones in their possession and generally work with another person.  Garrett testified that the value of a kilogram of cocaine was between the $16,000 it might be expected to bring in a “hub city” like Dallas and the $130,000 it might be expected to bring if processed into crack cocaine and sold in smaller quantities.  Waters also testified that the small plastic bags are the kind that cocaine is often packaged into for retail sale and that there were not other items like sandwiches in the vehicle that would call for the bags.  

            The jury found Appellant guilty as charged, and the trial court sentenced him to sixty years of imprisonment.  This appeal followed.

Legal and Factual Sufficiency

            In his first issue, Appellant argues that the evidence was legally and factually insufficient to show that he possessed the kilogram of cocaine found in the back of the Lincoln Navigator.² 

Standard of Review

            In evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Russeau v. State, 171 S.W.3d 871, 877 (Tex. Crim. App. 2005) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560)).  In reviewing factual sufficiency, we must determine whether a neutral review of the evidence, both for and against the finding, demonstrates that a rational jury could find guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt.  Id.  Evidence is also factually insufficient when contrary evidence is so strong that the beyond a reasonable doubt standard could not have been met.  Id. at 484-85.  A verdict will be set aside “only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust.”  Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002); Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003).  A clearly wrong and manifestly unjust verdict occurs where the jury’s finding “shocks the conscience” or “clearly demonstrates bias.” Zuniga, 144 S.W.3d at 481.

            In both legal and factual sufficiency review, the fact finder is the sole judge of the weight and credibility of a witness’s testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).  The jury may choose to believe all, some, or none of a witness’s testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

Applicable Law

            To support a conviction for possession of a controlled substance; there must be evidence that  (1) the accused exercised actual care, control, or custody of the substance; (2) he was conscious of his connection with it; and (3) he possessed the substance knowingly or intentionally.  See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.115(f) (Vernon 2003 & Supp. 2004–05); Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).  The evidence used to prove these elements can be either direct or circumstantial.  Id.

            Proof of possession in this case is circumstantial.  When the proof is circumstantial, the State must establish that the accused’s connection to the substance was more than just fortuitous. Id.  Furthermore, when the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband.  Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). 

            Courts have recognized as many as seventeen nonexclusive factors that may be considered when evaluating affirmative links.  The factors include (1) whether the contraband was in plain view or recovered from an enclosed place; (2) whether the accused was the owner or driver of the automobile in which the contraband was found; (3) whether the contraband was conveniently accessible to the accused or found on the same side of the vehicle as the accused was sitting; (4) whether the contraband was found in close proximity to the accused; (5) whether a strong residual odor of the contraband was present; (6) whether the physical condition of the accused indicated recent consumption of the contraband in question; (7) whether conduct by the accused indicated a consciousness of guilt; (8) whether the occupants of the premises gave conflicting statements about relevant matters; and (9) the quantity of the contraband.  See Lassaint v. State, 79 S.W.3d 736, 740-41 (Tex. App.–Corpus Christi 2002, no pet.); see also Poindexter, 125 S.W.3d at 405, n.7. 

Analysis

            The evidence in this case did not show that Appellant possessed the kilogram of cocaine on his person.  Rather, the evidence showed that Appellant and Rodriguez were working in concert to transport the illegal narcotics.  Trained and experienced police officers testified that Interstate 20 is a heavily traveled narcotics trafficking corridor and that cocaine is brought into Dallas in multi–kilogram quantities and distributed from there in kilogram or smaller amounts.  They also testified that drug couriers often work together, often have multiple cellular telephones, and often do not travel in their own automobiles. 

            The evidence also showed that Appellant was nervous and reacted disproportionately to the inability of the driver to locate an insurance card.  He also became nervous when the officer asked for his social security number.  Additionally, and more importantly, neither the driver nor Appellant appeared to be aware of the other’s plans.  The driver said they were going to Shreveport while Appellant said they were traveling to Tyler to look at a motorcycle which, the officer observed, would not have fit in their vehicle had they decided to purchase it.

            Examining the evidence in the light most favorable to the jury’s verdict and in light of the nonexclusive factors set forth above, we conclude that the jury could have reasonably determined beyond a reasonable doubt that Appellant knowingly and intentionally possessed the cocaine in the back of the Navigator. Therefore, we hold that the evidence was legally sufficient to support the jury’s verdict.

            Under a neutral review of the evidence, we reach the same conclusion. We have reviewed the record in its entirety.  We are mindful that our evaluation must not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony.  See Santellan, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).  We also recognize that there is no set formula for finding an affirmative link, but rather affirmative links are established by a consideration of a totality of the circumstances.  See Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.–Houston [14th Dist.] 2001, pet. ref’d).

            Given the circumstances of this case, we conclude that the jury was entitled to find that the evidence tending to link Appellant to the cocaine in question was of greater consequence than the evidence not tending to so link Appellant. Applying the factor approach strictly, there are factors that weigh against the conviction.  Appellant was not under the influence of a controlled substance and did not have a controlled substance on his person or conveniently accessible to him.  But the factors that weigh against the conviction can be explained in the context of large scale narcotics trafficking.  One would not necessarily expect that carefully packaged cocaine would have a smell that would be obvious or that a person engaged in the transportation of large quantities of cocaine would be under the influence of the drug.

            On the other hand, factors that weigh in favor of the conviction include Appellant’s extreme and unwarranted nervousness, the evolving and inconsistent stories about the men’s destination, and the quantity of cocaine recovered. The value of the cocaine recovered was quite high, in excess of one hundred thousand dollars, and Appellant’s nervousness was remarkable.  Deputy Constable Waters described Appellant and the driver as panicked and “scrambling” around the inside of the vehicle to find an insurance card. 

            Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury’s finding, has not caused us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant’s conviction clearly wrong or manifestly unjust.  Therefore, we hold that the evidence is factually sufficient to support the jury’s verdict.  Appellant’s first issue is overruled.

Error in Judgment

            In his second issue, Appellant complains that there is an error in the written judgment.  The parties agree that the judgment reflects Appellant was convicted of “manufacture or delivery” of a controlled substance in penalty group one in an amount of more than four hundred grams when he was actually charged with and convicted of “possession” of a controlled substance in penalty group one in an amount of more than four hundred grams. 

            Appellant asks us to modify the written judgment pursuant to Texas Rule of Appellate Procedure 43.2(b).  The State does not oppose this request.  We have the authority to modify the trial court’s judgment when we have the necessary information before us to do so.  Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993).  Therefore, we sustain Appellant’s second issue.

Conclusion

            The evidence is both legally and factually sufficient to support Appellant’s conviction.  We modify the judgment to state that Appellant was convicted of the offense of “possession of a controlled substance in penalty group one in an amount of more than four hundred grams.”  We affirm the trial court’s judgment as modified.

                                                                                                     JAMES T. WORTHEN   

                                                                                                                 Chief Justice

Opinion delivered April 28, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)

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¹ Appellant asserts that the vehicle was owned by the driver’s sister. The record reflects that the driver said his sister owned the vehicle, but there was no other proof of that fact.

² Appellant states that he seeks appellate review of the legal sufficiency of the evidence.  However, the relief requested, that the judgment be set aside, and the authority cited in his brief relate to factual sufficiency review.  Therefore, we will review both legal and factual sufficiency.