Wilma Mucker v. State ( 2007 )

Affirmed and Memorandum Opinion filed April 24, 2007

Affirmed and Memorandum Opinion filed April 24, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-05-01238-CR

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WILMA MUCKER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 1030046

M E M O R A N D U M   O P I N I O N

Appellant, Wilma Mucker, appeals her conviction for possession of a controlled substance, specifically cocaine weighing more than four grams but less than two hundred grams.  Tex. Health & Safety Code Ann. ' 481.115 (Vernon 2003).  In three issues, appellant argues the evidence is legally and factually insufficient to support the verdict, and that the trial court erred when it denied appellant=s motion to suppress. We affirm.

Factual and Procedural Background

In early June 2005, Officer David Bearden, of the Houston Police Department=s narcotics division, received information about appellant.  Officer Bearden conducted a controlled buy from appellant at appellant=s residence and then obtained a search warrant for that house.  The search warrant included a physical description of appellant and appellant=s house, listed appellant=s address as 12317 Tasia, and described the location as the intersection of Tasia and Nicholas. Finally, the affidavit stated that an informant had recently purchased cocaine from appellant at that residence.

On June 9, 2005 Officer Bearden and other officers from the Houston Police Department executed the search warrant.  When the officers entered the house, they found four people, including appellant, in the living room.  Appellant was sitting on the floor next to a couch.  The officers instructed appellant and the other people in the living room to lie face down on the floor.  When appellant moved to comply, Officer Gerald Goines saw a plastic bag on the floor where appellant=s hand had previously rested on the floor.  Officer Bearden subsequently recovered the bag, which contained 15.84 grams of crack cocaine.  Appellant did not appear surprised by the discovery of the cocaine.

The police took the people found in the residence outside and proceeded to conduct a search of the residence.  While waiting outside, appellant=s husband notified the police that additional narcotics were inside the house.  Appellant=s husband directed the police to a closet where additional cocaine was found.  He also gave police a key that opened an armoire, where the police recovered $977 in cash.  A drug dog later alerted on that money.

After the search warrant was executed, it was discovered that the actual address of appellant=s residence was 14807 Nicholas and that 12317 Tasia was the address of the house next to appellant=s.  Appellant=s husband testified at trial that he and his wife, the appellant, leased the residence that the police searched.

After pleading not guilty, appellant was found guilty by a jury.  Appellant=s conviction was enhanced by two prior felony convictions and the trial court sentenced appellant to twenty-five years= confinement in the Institutional Division of the Texas Department of Criminal Justice.  Tex. Pen. Code Ann. '12.42(d) (Vernon 2003).  This appeal followed.

Discussion

A.      The Evidence is Legally Sufficient to Support Appellant=s Conviction

In her first issue, appellant argues the evidence is legally insufficient to support her conviction as, in appellant=s view, the State did not establish beyond a reasonable doubt that she ever possessed the crack cocaine found on the floor.  We disagree.

In a legal sufficiency review, we view all 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 crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005).  The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness=s testimony.  Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998).  We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision.  Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).

Intentionally or knowingly possessing a controlled substance is an offense under the Texas Controlled Substances Act.  Tex. Health & Safety Code Ann. ' 481.115(a).  To prove the offense of possession of a controlled substance, the State must show that the accused (1) exercised actual care, custody, control, or management of the controlled substance and (2) was conscious of her connection with the controlled substance and knew what it was.  See id., ' 481.002(38) (Vernon 2003); Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).  Possession may be proven by direct or circumstantial evidence that the accused exercised care, control, or management over the substance knowing it was contraband.  Brown, 911 S.W.2d at 747.  The State must affirmatively link the accused and the contraband from the totality of the circumstances, demonstrating the accused=s knowledge of and control over the contraband.  Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995).  However, the State need not prove exclusive  possession of the contraband for conviction.  Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d) (citing Harvey v. State, 487 S.W.2d 75, 77 (Tex. Crim. App. 1972)).  When the accused is not in exclusive possession of the place where contraband is found, there must be additional independent facts and circumstances which affirmatively link the accused to the contraband in such a way that it can be concluded that the accused had knowledge of the contraband and exercised control over it.  Id.  Texas courts have identified many non-exhaustive factors that may help to show an affirmative link to the contraband: (1) the contraband was in plain view, (2) whether the contraband was conveniently accessible to the accused, (3) the amount of contraband found, (4) whether the amount was large enough to indicate the defendant knew of its existence, (5) the proximity of the defendant to the contraband, (6) whether the contraband was found in a place owned by the accused, (7) whether the contraband was found in an enclosed space, (8) whether the defendant possessed a large sum of money at the time of arrest, and (9) any conduct of the accused indicating consciousness of guilt.  See, e.g., Lewis v. State, 664 S.W.2d 345, 349 (Tex. Crim. App. 1984); Dshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981); Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.CDallas 2003, no pet.); Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.CHouston [14th Dist.] 2001, no pet.). There is no set formula of facts that necessitate a finding of an affirmative link sufficient to support an inference of knowing possession.  Hyett, 58 S.W.3d at 830.  When examining the affirmative links, it is not the number of factors present, but the logical force they have in establishing the offense.  Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d).

In the present case, the cocaine was discovered on the floor in appellant=s house, located where appellant had recently rested her hand while sitting on the floor.  Moreover, cocaine had recently been purchased from the appellant at the same location.  In addition, appellant was not surprised when she learned the police had recovered cocaine in her house.  Finally, a large amount of cash, as well as additional cocaine, were found inside appellant=s residence.

When viewed in the light most favorable to the verdict, we hold that a rational jury could have concluded from the evidence presented that appellant was guilty beyond a reasonable doubt.  See Lewis, 664 S.W.2d at 349 (holding the evidence was sufficient to support possession conviction, in part, because contraband and paraphernalia were found on the same side of the car seat where the accused was sitting); Porter v. State, 873 S.W.2d 729, 733 (Tex. App.CDallas 1994, pet. ref=d) (holding evidence was sufficient to link the defendant to cocaine found in apartment which was not under the defendant=s exclusive control, where the defendant was found near the cocaine, which was in plain view in the apartment resembling a typical crack house, there were four guns and four people in the apartment, there was impeachment evidence that defendant was involved in selling cocaine, and no one was seen entering or leaving apartment immediately before the police officers entered).  Accordingly, the evidence is legally sufficient to support the verdict.  We overrule appellant=s first issue.

B.      The Evidence is Factually Sufficient to Support Appellant=s Conviction

For the same reasons she argued the evidence is legally insufficient, in her second issue, appellant contends there is factually insufficient evidence to sustain the jury=s verdict.  In a factual sufficiency review, we consider all the evidence in a neutral light.  Prible v. State, 175 S.W.3d 724, 730B31 (Tex. Crim. App. 2005).  The evidence may be factually insufficient in two ways.  Id.  First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust.  Id.  Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met.  Id.  Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 408B09 (Tex. Crim. App. 1997).  Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Appellant argues the evidence is factually insufficient to prove beyond a reasonable doubt that appellant possessed the cocaine.  Appellant emphasizes the testimony of the two police officers that they never saw appellant handle the cocaine and that there were three people in addition to appellant in the room with the cocaine at the time of the search.  Appellant also emphasizes that the State did not attempt to fingerprint the bag that contained the crack cocaine.

The jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence.  Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000); Beckham v. State, 29 S.W.3d 148, 151B52 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  In addition, the jury may believe or disbelieve all or part of any witness=s testimony.  Jones, 984 S.W.2d at 258.  Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury.  Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995).  A jury is free to believe any or all of the testimony of the State=s witnesses.  Cole v. State, 194 S.W.3d 538, 551 (Tex. App.CHouston [1st Dist.] 2006, pet. ref=d).  The jury=s decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State.  Cain, 958 S.W.2d at 410.

We have reviewed the record for evidence supporting the guilty verdict, including the evidence addressing possession of cocaine.  The same facts that make the evidence legally sufficient also make it factually sufficient.  Prible, 175 S.W.23d at 730B31.  This evidence, set out in the Factual and Procedural Background section above, when viewed in a neutral light and standing by itself, is not so weak that the verdict is clearly wrong and manifestly unjust.  Id.  In addition, having reviewed the entire record, we cannot say that the evidence contrary to the verdict, including the evidence pointed out by appellant, is so overwhelming that the beyond-a-reasonable-doubt standard of proof could not have been met.  Id.  As the evidence is factually sufficient to support appellant=s conviction, we overrule appellant=s second issue.

C.      Appellant Waived Her Third Issue, That the Trial Court Erred When it Denied Appellant=s Motion to Suppress

In its entirety, appellant=s third issue for review is the following: AThe defense motion to suppress was denied by the trial judge.  The search warrant contained the incorrect street name and incorrect street address number.  The Court submitted, to the jury, an instruction as required by Section 38.23 of the Texas Code of Criminal Procedure.@  Appellant has presented nothing for review and accordingly has waived this issue.

Within her discussion of this issue, appellant does not complain about any alleged error or defect in the trial below.  Instead she points out some of the evidence in the record demonstrating that the search warrant had the incorrect address for appellant=s residence.  Appellant then mentions her motion to suppress, which was denied by the trial court. Appellant also cites Article 38.23 of the Code of Criminal Procedure which provides, in part, that A[n]o evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas, or the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.@  Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005).  That article further provides that A[i]n any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.@  Id.  Appellant then admits the trial court gave the instruction required by Article 38.23(a). In this third issue, appellant does not complain of any alleged error and makes no argument.  Therefore, appellant has waived this issue.  See Tex. R. App. P. 38.1(h) (stating that a brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record).  We overrule appellant=s third issue.

Conclusion

Having overruled each of appellant=s issues on appeal, we affirm the judgment of the trial court.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed April 24, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).