Quincy Lecurtis White v. State

                                             NUMBER 13-06-555-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

QUINCY L. WHITE,                                                                          Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                 Appellee.

        On appeal from the 399th District Court of Bexar County, Texas.

                              MEMORANDUM OPINION

                        Before Justices Yañez, Rodriguez, and Garza

                            Memorandum Opinion by Justice Yañez

After a bench trial, appellant, Quincy Lecurtis White, was convicted of possession of a controlled substance.^[1]  In two issues, appellant asserts the evidence is legally and factually insufficient to support his conviction.  We affirm.

I. Background

A. Officers= Testimony

Jesse Allen, a police officer with the San Antonio Police Department, testified that a confidential informant told him that ACalio was going to be selling rock out of 302 Henry from a fuse box.@^[2]  ACalio@ is appellant=s nickname, an assertion confirmed by appellant at trial.  A302 Henry@ is the physical address of a known drug house; testimony revealed that individuals are often seen selling drugs in front of the home.

When Allen learned of appellant=s plan to sell Arock@ (i.e., cocaine), Allen assembled a team of officers.  Allen, who was parked approximately two or three blocks away in a marked patrol vehicle, acted as a Acatch unit.@  Meanwhile, Officer Cruz Esquivel conducted surveillance of the home at 302 Henry while sitting in an unmarked vehicle.  From this location, Esquivel could see a fuse box on the side of the home.  During his surveillance, Esquivel witnessed an individual walk to the fuse box on two occasions and Amanipulate something within that fuse box.@  He also saw this same individual perform two or three hand-to-hand transactions, which, from Esquivel=s experience, is how narcotics are usually transferred on the streets.  While Esquivel was not able to identify what, if anything, was transferred hand-to-hand, he was able to acquire a physical description of the individual, whom he described as a black male wearing a white muscle shirt and red shorts.

When appellant began walking away from his location at 302 Henry, Esquivel radioed Allen and informed him of the activity witnessed and the individual=s location and physical description.  The individual was then confronted by Allen and other officers A[a]lmost immediately.@  After communicating with Esquivel, Allen drove toward the individual=s purported location and came across a black male wearing a white muscle shirt and red shorts, who he recognized as appellant, based upon past encounters.  When he pulled-up to appellant in his marked vehicle, appellant Amade a very obvious and overt motion with his hand to his mouth as if he was placing something in his mouth.@  Allen instructed appellant to open his mouth; he refused initially, but eventually complied.  Allen was able to see a Awhite residue around [appellant=s] mouth.@  Officers did not find drugs on appellant.

Appellant was not the owner of the home at 302 Henry; as a result, officers waited to receive permission from the actual homeowner before entering the property and opening the fuse box.  Officers maintained watch over the fuse box the entire time; they verified that appellant was the only individual who came in contact with the box.  When permission was acquired, officers opened the fuse box and found a bag containing a substance that testing later confirmed to be cocaine.

B. Appellant=s Testimony

Appellant testified that he was near the home at 302 Henry at the time of his arrest.  He was in the area looking for a friend he had gotten separated from when officers pulled up to him in a patrol vehicle. The officers then began physically abusing him while demanding that he lead them to drugs.  While appellant did have $195 on his person, he did not have drugs. Officers then took appellant to the home at 302 Henry, where appellant observed Allen enter the property on three occasions.  On the first two occasions, appellant observed Allen enter the premises with at least one other officer; searches were conducted but nothing was found.  On the third occasion, appellant observed Allen entering the premises by himself and subsequently announce that he had found drugs.

While appellant was arrested on May 12, 2005, he had actually met Allen for the first time in January of 2005.  During that month, appellant was driving with a friend  when he pulled up to a home; the owner of the home pulled up behind them at the same time.  As the occupants of both vehicles exited, Allen pulled up in his vehicle and drew his gun upon exiting.  Allen, who allegedly anticipated that a drug transaction was about to occur between the parties, proceeded to physically assault appellant=s friend and the homeowner, who was later identified as a constable who had served in that capacity for over forty years.  Internal Affairs investigated this incident, and appellant served as a witness against Allen in the course of the investigation.

After this incident, Allen and other officers began repeatedly ticketing appellant.  He received citations on February 20, February 25, February 28, April 25, and May 3.  In addition to these citations, Allen and other officers consistently taunted appellant in his neighborhood, yelling to him, AWe are going to get you.  We are going to get you.@  Officers vocalized their desire Ato intentionally get [appellant] off the streets for awhile.@

II. Standard of Review

In order to determine if the evidence is legally sufficient, we must review all of 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.^[3]  To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light.^[4]  Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence.^[5]  In a bench trial, the trial court, as the trier of fact, is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony.^[6]

In cases involving unlawful possession of a controlled substance, the State must prove that the accused exercised control, management, or care over the substance and that the accused knew the matter possessed was contraband.^[7]  When the accused is not shown to have had exclusive possession of the place where the contraband was found, the evidence must affirmatively link the accused to the contraband.^[8]  The Texas Court of Criminal Appeals has recently stated that the legal issue with respect to such Alinks@ is Awhether there was evidence of circumstances, in addition to mere presence, that would adequately justify the conclusion that the defendant knowingly possessed the substance.@^[9]

Several factors may help to establish an affirmative link between the accused and the contraband.^[10]  No set formula exists to dictate a finding of affirmative links sufficient to support an inference of knowing possession of contraband.^[11]  The number of factors present is not as important as the logical force or the degree to which the factors, alone or in combination, tend to affirmatively link the accused to the contraband.^[12]

III. Analysis

A. Legal Sufficiency

Appellant did not object to Allen=s testimony concerning information provided by the confidential informant; as a result, that information was offered to prove appellant=s guilt.  The out-of-court statements of the informant have sufficient probative value, in and of themselves, to establish an affirmative link between appellant and the cocaine found in the fuse box.^[13]  But, even putting aside this testimony, the State established other sufficient affirmative links between appellant and the drugs.

An affirmative link can be established when the contraband is hidden in a place tied to the accused.^[14]  In the instant case, Allen testified that the informant had stated that appellant would be selling cocaine located in a fuse box at 302 Henry; this information informed the trial judge that appellant knew where the cocaine was hiddenCAan essential component of the culpable act of >possession.=@^[15]  Therefore, the hidden cocaine was tied to appellant at trial.  The cocaine was further tied to appellant through Esquivel=s testimony that appellant went to the fuse box on two occasions and manipulated an object inside, and the only object ultimately found in the fuse box was a bag of cocaine. Another factor linking appellant to the contraband is that the cocaine was conveniently accessible to appellant.^[16]  While the cocaine was hidden in such a way as to be inaccessible to a stranger or casual visitor, it was readily accessible to anyone who knew its location.^[17]  Allen and Esquivel=s testimony established that appellant knew of the cocaine=s location and that he had convenient access to it.

While recognizing the aforementioned affirmative links, we also recognize that the cocaine was recovered from a fuse box located on property not owned by appellant and that there was no evidence that appellant was responsible for initially placing the cocaine in the fuse box.  Nevertheless, we observe that the court of criminal appeals has stated that:

[t]he mere fact that a person other than the accused might have joint possession of the premises does not require the State to prove that the defendant had sole possession of the contraband, only that there are affirmative links between the defendant and the drugs such that he, too, knew of the drugs and constructively possessed them.^[18]

Evidence at trial reveals that appellant knowingly possessed cocaine; it does not support the conclusion that appellant was an innocent bystander to someone else=s drug operations. Accordingly, after viewing the evidence in a light most favorable to the verdict, we hold that the evidence is legally sufficient to establish that appellant knowingly possessed the cocaine.

B. Factual Sufficiency

The trial court undoubtedly considered appellant=s testimony concerning the conflict he had been having with Allen and other officers prior to his arrest.  Before orally pronouncing its judgment, the trial judge stated:

I don=t have any trouble at all believing that these officers had told this Defendant more than one time that they were going to get him, because I think they thought he was one of the dope dealers in their neighborhood that needed running out of the neighborhood.

They testified that they have information from a reliable and credible informant who had given them information in the past leading to successful prosecution, that they corroborated that by having Esquivel watch the place.  I have heard no evidence that Esquivel even knew this Defendant, much less had anything against him, and he is the guy that puts it right on the Defendant, saw him engaged in hand-to-hand transaction, saw him going to the fuse box . . . .

AIn deciding whether the evidence is sufficient to link the defendant to contraband, the trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony.@^[19]  The trial judge clearly found the officers to be credible and chose to believe their testimony.  We will not disturb this decision on appeal.  After viewing all the evidence neutrally, we hold that the evidence is factually sufficient to establish that appellant knowingly possessed the cocaine.

III. Conclusion

We overrule appellant=s two issues on appeal.  Accordingly, we affirm the trial court=s judgment.

LINDA REYNA YAÑEZ,

Justice

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

Memorandum opinion delivered and filed

this the 24th day of August, 2007.

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^[1] See Tex. Health & Safety Code Ann. ' 481.115(a), (c) (Vernon 2003).

^[2] Allen testified that the informant was reliable, that arrests had been made from information provided by the informant in the past, and that the informant had assisted the police for four years.

^[3] Jackson v. Virginia, 443 U.S. 307, 324 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000).

^[4] Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 10‑11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407‑08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).

^[5] Watson, 204 S.W.3d at 414‑15; Johnson, 23 S.W.3d at 10‑11.

^[6] Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995).

^[7] Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988).

^[8] Pollan v. State, 612 S.W.2d 594, 596 (Tex. Crim. App. 1981).

^[9] Evans v. State, 202 S.W.3d 158, 161‑62 n.9 (Tex. Crim. App. 2006).

^[10] These factors include, among others, the following:  (1) whether the contraband was in plain view; (2) whether the contraband was conveniently accessible to the accused; (3) whether the accused was the owner of the place where the contraband was found; (4) whether the accused was the driver of the vehicle in which the contraband was found; (5) whether the contraband was found on the side of the vehicle where the accused was sitting; (6) whether the place where the contraband was found was enclosed; (7) whether the odor of the drug found was present in the vehicle; (8) whether paraphernalia for use of the contraband was in view or found on the accused; (9) whether conduct of the accused indicated a consciousness of guilt; (10) whether the accused had a special connection to the contraband; (11) whether the occupants of the vehicle gave conflicting statements about relevant matters; (12) whether the physical condition of the accused indicated recent consumption of the contraband found in the vehicle; (13) whether affirmative statements by the accused connected the accused to the contraband; (14) whether traces of the contraband were found; (15) whether a large sum of money was found on the accused; and (16) the amount of contraband found.  No set formula exists to dictate a finding of affirmative links sufficient to support an inference of knowing possession of contraband.  Jenkins v. State, 76 S.W.3d 709, 712-13 (Tex. App.BCorpus Christi 2002, pet. ref=d).

^[11] Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.BDallas 2003, no pet.).

^[12] Jenkins, 76 S.W.3d at 713.

^[13] See Poindexter, 153 S.W.3d at 407-09 (holding that an officer=s testimony that an informant told him that appellant was selling narcotics out of his residence, when objected to, constituted probative evidence of appellant=s guilt of possession of crack cocaine).

^[14] Id. at 409 n.24.

^[15] Id. at 410.

^[16] See id. at 411.

^[17] See id. (citing United States v. McGhee, 882 F.2d 1095, 1099 (6th Cir. 1989)).

^[18] Id. at 412.

^[19] Id. at 406.