Jesse Gene Odom v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-236-CR
2-07-237-CR
2-07-238-CR
JESSE GENE ODOM APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In two issues, Appellant Jesse Gene Odom (“Odom”) asserts that the trial
court erred in overruling Odom’s motion for instructed verdict because he
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… See T EX. R. A PP. P. 47.4.
asserts the evidence was legally and factually insufficient to support the
verdict.
II. History
A. Factual Background
On July 12, 2006, Mansfield Police Department set up surveillance at a
home located at 2518 Edgefield Trail in Mansfield, Texas, in response to an
anonymous complaint about narcotic sales. The officers observed a 1999
Mercury Mountaineer SUV (“SUV”) backed up to the garage. The garage door
was partially open and police observed Odom making approximately ten trips
to and from the SUV to the garage loading things, including a black bag, into
the back of the SUV.
After the officers saw Odom put the black bag in the SUV, they walked
up to Odom, identified themselves, and asked to search the house. With
Odom’s consent, the police searched the house. During the search, the officers
determined that Odom had outstanding traffic warrants and arrested him.
During a search of his person, the officers found less than a gram of
methamphetamine and a glass pipe.
Odom contends that after he was arrested and searched, he retracted his
consent to search the house, and that, because the officers did not find
anything in the house, they focused on the SUV. The State asserts that Odom
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told the officers some contradictory things about the SUV, but that he
eventually stated that he owned the SUV and his friend had just signed the
SUV’s title over to him. The police then called for a K-9 drug dog that
proceeded to sniff the SUV and made a positive alert for contraband.
Subsequently, the officers obtained a search warrant for the SUV and
proceeded to search the SUV. No contraband was found in the black zipper
bag or in any other items that they saw Odom carrying to the SUV. However,
the officers noticed several plastic baggies sticking out of a cardboard box in
the back seat area of the SUV; the plastic baggies were “the kind that are used
to package drugs.” The officers found an exhaust fan motor inside the box,
and, after a closer inspection of the fan motor, the officers found some tablets
of ecstacy,2 three vials of GHB, 3 and a small amount of methamphetamine (in
a baggie) inside the fan motor.
Odom contends that the officers testified that they never saw Odom carry
the box containing the fan motor and contraband to the SUV and that the
officers discovered that Diana Moore (“Moore”) was the registered owner of the
SUV. He also contends that Moore’s name was on the SUV’s insurance card
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… Ecstasy is the street name for methylenedioxy methamphetamine
(“MDMA”).
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… “GHB” is gamma hydroxybutyric acid.
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as a permitted driver and that she lived at the house with Odom, but that
Moore was never questioned about the vehicle, the box, the fan motor, or the
contraband. There were also no fingerprints or DNA taken. Additionally, Odom
argues he never said that the box was his, and the officers admitted that
“anybody” could have put the box with the contraband in the SUV. Lastly,
Odom claims that the box was not “right next to” the black bag.
B. Procedural Background
Odom moved for an instructed verdict of not guilty, which the trial court
denied. Odom was subsequently convicted of (1) possession of a controlled
substance of less than one gram (methamphetamine) and sentenced to two
years’ imprisonment; (2) possession of a controlled substance of one to four
grams of MDMA and sentenced to eight years’ imprisonment; and (3)
possession of a controlled substance of four grams or more, but less than 200
grams of GHB and sentenced to twelve years’ imprisonment. The trial court
ordered Odom’s sentences to run concurrently. This appeal followed.
III. Standards of Review
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all the evidence in the light most favorable to the prosecution in order
to determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
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U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the
sole judge of the weight and credibility of the evidence. See T EX. C ODE C RIM.
P ROC. A NN. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919
(Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute
our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735,
740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead, we
“determine whether the necessary inferences are reasonable based upon the
combined and cumulative force of all the evidence when viewed in the light
most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.
Crim. App. 2007). We must presume that the fact-finder resolved any
conflicting inferences in favor of the prosecution and defer to that resolution.
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
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Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.
State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether
the evidence supporting the conviction, although legally sufficient, is
nevertheless so weak that the fact-finder’s determination is clearly wrong and
manifestly unjust or whether conflicting evidence so greatly outweighs the
evidence supporting the conviction that the fact-finder’s determination is
manifestly unjust. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23
S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,
we must determine, with some objective basis in the record, that the great
weight and preponderance of all the evidence, though legally sufficient,
contradicts the verdict. Watson, 204 S.W.3d at 417.
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to
overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly
wrong or manifestly unjust simply because we would have decided differently
than the jury or because we disagree with the jury’s resolution of a conflict in
the evidence. Id. We may not simply substitute our judgment for the fact-
finder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407
(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result
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is appropriate, we must defer to the jury’s determination of the weight to be
given contradictory testimonial evidence because resolution of the conflict
“often turns on an evaluation of credibility and demeanor, and those jurors were
in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.
Thus, we must give due deference to the fact-finder’s determinations,
“particularly those determinations concerning the weight and credibility of the
evidence.” Id. at 9.
An opinion addressing factual sufficiency must include a discussion of the
most important and relevant evidence that supports the appellant’s complaint
on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
IV. Analysis
In situations where the accused is not in exclusive possession of the
location of contraband, the State is required to adduce beyond a reasonable
doubt independent facts and circumstances that affirmatively link the accused
and the contraband, that is, that he had knowledge of the contraband and
exercised control over it. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim.
App. 1995); Naquin v. State, 607 S.W.2d 583, 586 (Tex. Crim. App. 1980
[Panel Op.]); Hudson v. State, 128 S.W.3d 367, 374 (Tex. App.—Texarkana
2004, no pet.). A non-exclusive list of factors has been developed when
reviewing whether such affirmative links have been established. Those factors
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include whether: (1) the contraband was in plain view or recovered from an
enclosed place; (2) the accused was the owner of the premises or had the right
to possess the place where the contraband was found, or was the owner or
driver of the automobile in which the contraband was found; (3) the accused
was found with a large amount of cash; (4) the contraband was conveniently
accessible to the accused, or found on the same side of the vehicle as the
accused was sitting; (5) the contraband was found in close proximity to the
accused; (6) a strong residual odor of the contraband was present; (7) the
accused possessed other contraband when arrested; (8) paraphernalia to use
the contraband was in view, or found on the accused; (9) the physical condition
of the accused indicated recent consumption of the contraband in question;
(10) conduct by the accused indicated a consciousness of guilt; (11) the
accused attempted to flee; (12) the accused made furtive gestures; (13) the
accused had a special connection to the contraband; (14) the occupants of the
premises gave conflicting statements about relevant matters; (15) the accused
made incriminating statements connecting himself to the contraband; (16) the
quantity of the contraband; and (17) the accused was observed in a suspicious
area under suspicious circumstances. Tucker v. State, 183 S.W.3d 501, 510
(Tex. App.—Fort Worth 2005, no pet.); Jenkins v. State, 76 S.W.3d 709, 712-
13 (Tex. App.— Corpus Christi 2002, pet. ref’d). This determination is made
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on a case by case basis. Jenkins, 76 S.W.3d at 713. Concerning prosecutions
for possession of controlled substances, it is not the number of links found
between the defendant and the drug that is dispositive, but rather the logical
force of all of the evidence. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim.
App. 2006). When deciding whether there is sufficient evidence to link the
defendant to the controlled substance contraband, the trier of fact is the
exclusive judge of the credibility of the witnesses and the weight to be given
to their testimony. Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App.
2005). These links connecting the accused to the controlled substance in a
possession case do not need to be so strong as to exclude every other
reasonable hypothesis except guilt, and these links ordinarily emerge from an
orchestration of several factors and the logical force that they have in
combination. Rivera v. State, 59 S.W.3d 268, 274 (Tex. App.—Texarkana
2001, pet. ref’d).
V. Application
First, there is only slight evidence that the vehicle was not in the
exclusive possession of Odom. A “Diana Moore” was a permitted driver on the
insurance card found in the vehicle and was the person from whom Odom
claimed to have recently purchased the SUV. No other evidence tied her to the
SUV and there was no evidence of her direct possession of the vehicle before,
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during, or after the vehicle search. Nevertheless, we will assume for purposes
of this opinion, there was not exclusive possession by Odom.
As pointed out by the State, Odom made contradictory statements about
the SUV: he claimed to own the SUV, he had drugs in his pocket, he was
transferring items to the SUV from a garage through a partly open garage door
when observed by the police, the drugs found in his pocket were contained in
the same type of baggie that was found in the box in the SUV, and the black
bag that he was witnessed putting into the SUV contained $184 in cash.
Odom additionally concedes that his name was on the insurance card found in
the vehicle and that methamphetamine was found in his pocket (as was a glass
pipe).
The jury had to determine whether Odom intentionally or knowingly
possessed the drugs in question, possession meaning actual care, custody,
control, or management. The evidence presented to the jury met several of the
affirmative link factors, including Odom's right to possession and ownership of
the SUV, the place where the contraband was found, and a glass pipe and
additional drugs on his person when arrested. See Tucker, 183 S.W.3d at 510;
Jenkins, 76 S.W.3d at 712-13. From this evidence, and the other evidence
listed above, the jury could have reasonably concluded that Odom intentionally
or knowingly possessed the controlled substances located in the SUV. See
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Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778;
Hooper, 214 S.W.3d at 16-17. And we cannot say, reviewing this evidence
in a neutral light, that the jury's determination is clearly wrong and manifestly
unjust, or that a different result is clearly suggested by the evidence. See
Watson, 204 S.W.3d at 414-15, 417. Therefore, we hold that the evidence
is both legally and factually sufficient to support the jury's verdict, and we
overrule Odom's two points.
VI. Conclusion
Having overruled Odom’s two issues, the judgment of the trial court is
affirmed.
BOB MCCOY
JUSTICE
PANEL B: GARDNER, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: May 8, 2008
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