Opinion

Wheatfall, Adrian Ashley v. State

Court
Texas Court of Appeals, 1st District (Houston)
Filed
Oct 31, 2002
Status
Published
Cited by
0 cases
Authority
More cited than 35.1%

The opinion

Opinion issued October 31, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-01169-CR

ADRIAN ASHLEY WHEATFALL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 873991

O P I N I O N

A jury found appellant, Ashley Adrian Wheatfall, guilty of possession of

cocaine, weighing more than one gram and less than four grams, and assessed

punishment at 40 years confinement after finding true the allegations in enhancement

paragraphs that appellant had two prior felony convictions. In two points of error,

appellant contends the evidence was legally and factually insufficient to prove he

exercised control over the cocaine.

Facts

Pasadena Police Officer Christopher Sadler testified that he and two other

officers responded to a loud noise call at approximately 11:30 p.m. on April 8, 2001.

When the officers arrived at the scene, they saw a man, Jimmie Bynum, walking away

from the source of the noise. The officers followed Bynum to a parked car with a

woman sitting in the driver's seat. When Sadler asked Bynum what he was doing, he

saw Bynum drop a marihuana cigarette into the passenger seat of the car and

subsequently arrested him.

When Officer Sadler asked the woman where Bynum acquired the marihuana,

she pointed to a nearby building and told Sadler that the marihuana was acquired

from the "window of the second apartment." Sadler then approached what he later

identified as apartment number 115 and knocked on the door. (1) While Sadler was

awaiting a response, a door opened behind Sadler from apartment number 113.

Sadler turned around and saw a man standing in the doorway, and a woman, whom

he recognized as Lorie Gaston, sitting in an easy chair. As Sadler said, "hello Lorie,"

to the woman, appellant, who was on the couch, "dove" for a black plate on top of a

glass table in front of the couch where appellant was seated. The inside of the

apartment was well-illuminated and Sadler had a clear view of Gaston, appellant, and

the black plate. Sadler saw what appeared to be crack cocaine on the black plate.

When Sadler saw appellant diving towards the black plate, he told appellant

and Gaston to sit down. They complied with his request and Officer Sadler walked

through the doorway and secured the black plate, which contained approximately 3.3

grams of crack cocaine. Sadler testified that, along with appellant and Lorie Gaston,

there were seven to eight children in the apartment and two adult men.

Legal Sufficiency of the Evidence

In his first point of error, appellant argues the evidence was legally insufficient

to support his conviction because the State failed to establish that he exercised control

over the cocaine.

When reviewing 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. King v. State , 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). We are not

permitted to substitute our judgment for that of the jury. Id .

To convict a defendant of possession of a controlled substance, the State must

prove that (1) the defendant exercised care, custody, control, or management over the

substance and (2) the defendant knew it was contraband. McGoldrick v. State , 682

S.W.2d 573, 578 (Tex. Crim. App. 1985). Possession does not have to be exclusive,

and evidence showing the accused jointly possessed the contraband with another is

sufficient. Harvey v. State , 487 S.W.2d 75, 77 (Tex. Crim. App. 1972). Mere

presence at the place searched does not itself justify a finding of joint possession of

contraband. Martin v. State , 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). Whether

the case is tried on the theory of joint or sole possession, defendants must be

affirmatively linked with the drugs allegedly possessed. Brown v. State , 911 S.W.2d

744, 748 (Tex. Crim. App. 1995). Proof of the affirmative link need not be so strong

that it excludes every other outstanding reasonable hypothesis except the defendant's

guilt. Id .

Courts have set out various factors to be used to establish affirmative links.

Those factors are whether (1) the contraband was in plain view, (2) the contraband

was conveniently accessible to the accused, (3) the contraband was in a place owned

by the accused, (4) the accused was the driver of the automobile in which the

contraband was found, (5) the contraband was found on the same side of the car seat

as the accused was sitting, (6) the place where the contraband was found was

enclosed, (7) the odor of marijuana was present, (8) paraphernalia to use the

contraband was in view or found on the accused, (9) there was conduct of the accused

indicating a consciousness of guilt, (10) the accused had a special relationship to the

contraband, (11) the occupants of the automobile gave conflicting statements about

relevant matters, (12) the physical condition of the accused indicated a recent

consumption of the contraband found in the car, and (13) affirmative statements

connect the accused to the contraband. Gilbert v. State , 874 S.W.2d 290, 298 (Tex.

App.--Houston [1st Dist.] 1994, writ ref'd). The number of factors present is not as

important as the logical force the factors have in affirmatively linking the defendant

to the contraband. Hurtado v. State , 881 S.W.2d 738, 743 (Tex. App.--Houston [1st

Dist.] 1994, writ ref'd).

Here, the evidence showed that appellant was one of two people renting the

apartment. The manager of the apartment complex, Mortenson, testified that she had

rented the apartment to Lorie Gaston and appellant. Gaston's son, Spinks, testified

that appellant lived at the apartment. Officer Sadler testified that the plate of crack

cocaine was in front of appellant, in plain view, and readily accessible to appellant.

Sadler stated that there was a "large amount of rocks" on the black plate, and it was

in close proximity to appellant, showing a greater likelihood that appellant was aware

of the cocaine's presence.

Sadler's testimony regarding appellant's attempt to dive toward the plate of

cocaine established a relationship between appellant and the cocaine. Appellant's

attempt to secure the cocaine was evidence of appellant's knowledge of its presence

and of appellant's exercise of control over it. His conduct in diving towards the

cocaine also shows appellant's consciousness of guilt--he knew that there was

cocaine in front of him and he acted out of guilt when he saw Sadler in the doorway.

Based upon our review of the record, we conclude that a rational trier of fact

could have found beyond a reasonable doubt that appellant exercised control over the

cocaine.

We overrule appellant's first point of error. Factual Sufficiency of the Evidence

In his second point of error, appellant argues that the evidence was factually

insufficient to support his conviction because the State failed to establish that he

exercised control over the cocaine.

When reviewing the factual sufficiency of the evidence, we must determine

"whether a neutral review of all the evidence, both for and against the finding,

demonstrates that the proof of guilt is so obviously weak as to undermine confidence

in the jury's determination, or the proof of guilt, although adequate if taken alone, is

greatly outweighed by contrary proof." King , 29 S.W.3d at 563 . We will reverse the

judgment of the trial court only if a manifest injustice has occurred. Id .

Appellant attacks the credibility of the testifying officers, arguing that their

"assertions and descriptions of what occurred are so ridiculous that they reflect poorly

on their credibility." Appellant characterizes Officer Sadler's correction of a

typographical error on his police report as an act of fabrication, stating that the

revision "defeats all civilized concepts of fair play." However, in determining the

factual sufficiency of the evidence, we are not to substitute our judgment for that of

the fact finder. Id . The jury could reasonably have found that Officer Sadler's

testimony was credible and that appellant had control over the cocaine.

Appellant further argues that the greater weight of the evidence proves "only

that appellant was in the same room with what he likely knew was a controlled

substance and that he made some move to get it out of the officer's view." He argues

that he was only one of several people in the apartment; he was not shown to be under

the influence of narcotics; and it was Gaston, rather than appellant, who was charged

with intent to deliver cocaine. However, Officer Sadler testified that, when appellant

saw him, appellant dove for the plate with the cocaine on it. Appellant's attempt to

presumably hide the cocaine demonstrates that he exercised control over it. None of

the facts cited by appellant demonstrates that proof of appellant's control over the

cocaine was so obviously weak as to undermine the jury's determination. Nor do the

facts cited by appellant greatly outweigh proof of his control over the cocaine. Thus,

we hold that the evidence was factually sufficient to support the finding that appellant

exercised control over the cocaine.

We overrule appellant's second point of error.

Conclusion

We affirm the judgment of the trial court.

Sherry J. Radack

Justice

Panel consists of Justices Nuchia, Jennings, and Radack.

Do not publish. Tex. R. App. P. 47.

1.

Sadler testified he made a typographical error in his offense report and put

apartment number 114 instead of 115.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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