Victor M. Eldridge v. State ( 2011 )

Affirmed and Memorandum Opinion filed May 3, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-00072-CR

NO. 14-10-00073-CR

Victor M. Eldridge, Appellant

V.

The State of Texas, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause Nos. 1219080 & 1219358

MEMORANDUM OPINION

A jury found appellant Victor M. Eldridge guilty of possession of a controlled substance and felon in possession of a firearm, for which the trial court sentenced him to five and seven years’ imprisonment, respectively.  Eldridge appeals on the grounds that the evidence is legally and factually insufficient to support either conviction.  We affirm. 

I

            Victor M. Eldridge was arrested in the course of Houston Police Department officers’ execution of a search warrant at a residence in northeast Houston on June 4, 2009.  Officers received information from a confidential informant that residents were dealing drugs out of the house.  The informant agreed to participate in a “controlled buy,” through which the informant was provided money to buy drugs from the house in order to establish probable cause for a search warrant.  The informant told officers he successfully purchased a small amount of crack cocaine from a man he knew only as “T.” 

            As officers converged on the house to execute the search warrant, the man they believed to be T was spotted driving away from the house in a Suburban. Uniformed officers stopped the Suburban and arrested T while a raid team continued to the house.  Eldridge was exiting the front door of the house as the raid team approached.  Eldridge dropped a key ring he was holding, which was later determined to include a front-door key to the house, before complying with officers’ demands to get on the ground.  Officers proceeded into the house while Eldridge was taken into custody.  The house was unoccupied, and officers began a search.

            Upon entering the house, officers discovered in the living room a “live feed” surveillance monitor displaying the area in front of the house.  A search of the living room produced a Mentos container containing 13.5 grams of crack cocaine lodged inside a stereo.  In the kitchen cabinets, officers found a plate with crack cocaine on it, a pipe with a push rod, a weight scale with some residue on it, and three handguns, two of which were loaded.  A small amount of marijuana was also recovered from a coat pocket.  Additionally, a door in the kitchen leading to outside the house was barricaded from inside, which Officer Brandon Bonds testified was a common feature in houses where drugs were sold. 

Inside one of the house’s two bedrooms, officers found a large quantity of pills in unlabeled bottles, another weight scale, and 48 rounds of ammunition, some of which fit one of the handguns from the kitchen.  The other bedroom was secured with a padlock, a key to which was found in T’s possession.  Police recovered marijuana and several individual baggies containing a white powdery substance appearing to be cocaine.  At trial, the State called a pretrial-services interviewer, who testified that through routine questions asked of defendants to determine eligibility for pretrial release, Eldridge told the interviewer the house which was raided by police was his residence and that he had lived there for six months.  

II

A

Eldridge’s only complaint on appeal is that the evidence against him is legally and factually insufficient to support his conviction because a rational trier of fact could not have found, beyond a reasonable doubt, that he possessed either the drugs or the guns found in the house. 

A majority of the judges on the Court of Criminal Appeals have determined that the Jackson v. Virginia legal-sufficiency standard is the only standard a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.  Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (Hervey, J., joined by Keller, P.J., Keasler, and Cochran, J.J.); id. at 926 (Cochran, J., concurring, joined by Womack, J.) (same conclusion as plurality). Accordingly, we will analyze Eldridge’s factual-sufficiency issue under the Jackson v. Virginia standard and ask only if the evidence against him was legally sufficient to sustain a verdict of guilty beyond a reasonable doubt.  See id. at 912 (plurality op.); Pomier v. State, 326 S.W.3d 373, 378 (Tex. App.—Houston [14th Dist.] 2010, no pet.). 

In a legal-sufficiency review, we examine all of 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 offense beyond a reasonable doubt.  Jackson v. Virginia, 433 U.S. 307, 319 (1979).  This standard of review applies to cases involving both direct and circumstantial evidence.  Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).  Although we consider everything presented at trial, we do not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder.  Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).  The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence.  Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998).   

A person unlawfully possesses a firearm any time he possesses one before the fifth anniversary of his release from confinement following a felony conviction.[1]  See Tex. Penal Code § 46.04(a))(1).  A person also commits an offense if he knowingly or intentionally possesses a controlled substance.  See Tex. Health & Safety Code § 481.115(a).  Cocaine is a controlled substance.  See id. § 481.102(3)(D).  “Possession” means “actual care, custody, control or management.”  Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); see also Tex. Health & Safety Code § 481.002; Tex. Penal Code § 1.07(39).  To prove unlawful possession of a controlled substance, the State must establish that the accused (1) exercised care, control, or management over the contraband, and (2) knew the substance was contraband.  Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005).  A person’s possession of the controlled substance must be more than fortuitous, and his mere presence at the scene where the substance was found is insufficient to demonstrate care, management, or control of the drug.  Evans, 202 S.W.3d at 161–62.  But presence combined with direct or circumstantial evidence affirmatively linking the defendant to the controlled substance may be sufficient to establish the element of possession beyond a reasonable doubt.  Id. at 162; see Olivarez v. State, 171 S.W.3d 283, 291–92 (Tex. App.—Houston [14th Dist.] 2005, no pet.).

            Courts have identified a non-exhaustive list of factors that may help show an accused is linked to a controlled substance or illegal firearms, including (1) the defendant’s presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and the accessibility of the contraband; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the contraband was found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt.[2]  See, e.g., Evans, 202 S.W.3d at 162 n.12; Olivarez, 171 S.W.3d at 291.  It is not the number of links that is dispositive, but rather the logical force of all of the evidence, direct and circumstantial.  Evans, 202 S.W.3d at 162. 

B

            Eldridge argues the only affirmative links between him and the contraband in the house are the front-door key in his possession upon arrest and his admission that he had been living there for six months.  Standing alone, these links are insufficient, Eldridge maintains, to establish care, custody, and control of the contraband.[3] Eldridge argues a portion of the drugs were recovered from a locked room, which Eldridge “definitely” could not access, and the remaining drugs and guns were not in plain view, which could give rise to nothing more than “mere suspicion” that the contraband belonged to Eldridge.  See Grant v. State, 989 S.W.2d 428, 433 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (“While affirmative links may be proved by circumstantial evidence, proof amounting to a strong suspicion or even a probability will not suffice.”)   

            The Evans factors take into account “whether the defendant owned or had the right to possess the place where the contraband was found,” and the jury was entitled to give weight to both Eldridge’s possession of a front-door key and his admission that the house was his residence and had been for the past six months.  See Evans, 202 S.W.3d at 162 n.12.  But we disagree that this was the only evidence linking Eldridge to the contraband.  Although much of the additional evidence presented against Eldridge was circumstantial, such evidence can prove that an accused’s connection to contraband is “more than just fortuitous.”  See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); see also Grant, 989 S.W.2d at 433.

Eldridge emphasizes that much of the narcotics and weapons were not in plain view.  The second Evans factor takes into account whether the contraband was in plain view, but this consideration is balanced by the third factor, which considers the proximity and accessibility of the contraband.  In this case, drugs, guns, and drug paraphernalia were readily found inside the cabinets in the kitchen, a common area of the house.  Based on Eldridge’s own admission that he had lived in the home for six months, a reasonable jury could infer that Eldridge knew about and possessed the contraband spread throughout a commonly used household storage space such as kitchen cabinets.  

A significant quantity of crack cocaine was also found in the living room, another common area.  Although the Mentos container was concealed within a stereo, a jury could have rationally concluded, based in part on Eldridge’s possession of a front-door key and his own statement that he lived at the house for six months, that he had care, control, or management over the drugs in the living room.  This conclusion was bolstered by Officer Bonds’s testimony that a barricaded exterior door in the kitchen and a surveillance system are common features in houses from which drugs are dealt.  Officer Bonds also testified it is common for drug dealers not to have any personal effects in a house where they conduct drug deals in order to avoid linking themselves to their illegal activities.  A jury could have rationally concluded these conditions indicated a consciousness of guilt, an additional Evans factor, and also could have considered this evidence in concluding Eldridge knew about the contraband in the home and exercised care, control or management over it.  See Evans, 202 S.W.3d at 162 n.12; Poindexter, 153 S.W.3d at 405.

Furthermore, considering the logical force of the circumstantial evidence throughout the house that drug dealing occurred on the premises, a jury could have rationally concluded that Eldridge also exercised care, control, or management over the contraband in the locked bedroom.  See Evans, 202 S.W.3d at 166.  Although Eldridge did not have a key to the padlocked room on his person, and officers gained access to the room only after seizing a key from T, the pervasiveness of drugs, guns, ammunition, and drug paraphernalia throughout the living room, kitchen, and the only other bedroom in the house could give rise to a rational inference that Eldridge at times did use the room as part of the drug-dealing enterprise that operated from within the house.  But even if the jury did conclude that the locked bedroom was solely controlled by T, it could have rationally concluded that the other bedroom, which contained unlabeled pills, drug paraphernalia and ammunition matching a handgun in the kitchen, belonged to Eldridge.[4]  Accordingly, the jury could have rationally viewed the presence of unlabeled pills, ammunition and drug paraphernalia in Eldridge’s bedroom as evidence that he was connected to and had ownership of the contraband spread throughout common areas of the house. 

While Eldridge’s appeal was pending before this court, the Court of Criminal Appeals reversed the First Court of Appeals in Blackman v. State, a case Eldridge cites for the proposition that “[p]roof amounting only to a strong suspicion or mere probability will not suffice” to affirmatively link a defendant to contraband.  In Blackman, the First Court of Appeals determined the evidence was insufficient to convict a passenger of a rented van whose three occupants had traveled from Florida to Pasadena to purchase three kilograms of cocaine.  No. 01-08-00138-CR, 2009 WL 5064763, at *10–11 (Tex. App.—Houston [1st Dist.] Dec. 22, 2009), rev’d, PD-0109-10, 2011 WL 1376732 (Tex. Crim. App. Apr. 13, 2011).  In reversing, the Court of Criminal Appeals noted testimony about characteristic behavior and circumstantial evidence common in long-distance drug trafficking, and held a jury rationally could have determined the passengers “traveled hundreds of miles together for the common purpose of purchasing three kilograms of cocaine.”  Blackman, 2011 WL 1376732.  We find this analysis instructive here, where officers testified that features of the home such as a barricaded door, surveillance equipment, and a dearth of personal effects, were characteristic of houses primarily used to deal drugs, and were additional “affirmative links” to the contraband.  And similar to the Court of Criminal Appeals in Blackman, we hold this evidence enabled a rational jury to conclude that Eldridge’s proximity to the contraband was more than just a fortuitous accident.  See id. 

We conclude that the circumstantial evidence, when viewed in combination and its sum total, constituted amply sufficient evidence connecting appellant to the actual care, custody, control or management of the cocaine in front of him.  Although evidence touching all of the Evans factors was not present in this case, we have previously noted that “[t]he number of factors present is not as important as the significance of those factors in establishing the elements of the crime.”  Reed v. State, 158 S.W.3d 44, 47 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).  The Evans court itself similarly noted that “[i]t is the logical force of the circumstantial evidence, not the number of links, that supports a jury's verdict.”  Evans, 202 S.W.3d at 166.  A rational trier of fact could have found the essential elements of both the offenses of possession of a controlled substance and felon in possession of a weapon beyond a reasonable doubt.  See Jackson, 433 U.S. at 319. 

* * *

For the foregoing reasons, we affirm the trial court’s judgments. 

                                                                        /s/        Jeffrey V. Brown

                                                                                    Justice

Panel consists of Justices Brown, Boyce, and Jamison

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

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[1] Eldridge pleaded “true” to an enhancement paragraph related to a felony theft conviction, for which a judgment was entered on June 5, 2008. 

[2] Although Evans addressed “affirmative links” between a defendant and a controlled substance, other courts have held the Evans factors applicable when appellants challenge the sufficiency of the evidence as to possession of a firearm.  See, e.g., Sutton v. State, 328 S.W.3d 73, 76–77 (Tex. App.—Fort Worth 2010, no pet.); Williams v. State, 313 S.W.3d 393, 397–98 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d); Bates v. State, 155 S.W.3d 212, 216–17 (Tex. App.—Dallas 2004, no pet.). 

[3] Eldridge also complains there is no “temporal link” between Eldridge and the contraband, citing Scillitani v. State, 297 S.W.3d 498 (Tex. App.—Houston [14th Dist.] 2009, pet. granted), vacated by 315 S.W.3d 542 (per curiam).  Scillitani is a driving-while-intoxicated case concerning a “temporal link” between the defendant’s driving and intoxication.  See Scillitani, 297 S.W.3d at 501. We decline to apply the analysis used in Scillitani because it was uniquely tailored to DWI cases.  Additionally, the Court of Criminal Appeals vacated the judgment in Scillitani to allow this court to consider its judgment in light of an opinion issued shortly after Scillitani in which the Court of Criminal Appeals held the evidence was legally sufficient under similar facts.  See 315 S.W.3d at 542. 

[4] The trial court allowed testimony concerning the unlabeled pills over defense counsel’s objection.  The State conceded at trial that the pills had not been tested to determine what they were or whether they were illegal.  Eldridge, however, does not complain on appeal of the trial court’s ruling regarding the admissibility of the unlabeled pills.