Opinion

Goracki, Eugene M. v. State

Court
Texas Court of Appeals, 1st District (Houston)
Filed
Apr 11, 2002
Status
Published
Cited by
0 cases
Authority
More cited than 35.1%

The opinion

Opinion issued April 11, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-00101-CR

___________

EUGENE M. GORACKI, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 842126

O P I N I O N

A jury found appellant, Eugene M. Goracki, guilty of the state jail felony offense

of possession of methamphetamine weighing less than one gram and found two

enhancement paragraphs to be true. The jury assessed punishment at 20 years

confinement with a $2000 fine. Appellant presents two issues for our review, disputing

the legal and factual sufficiency of the evidence to support his conviction. We affirm.

Background

Houston Police Officer R. M. Landrum testified that, at approximately 3:00 a.m.

on April 18, 2000, while on patrol, he received a call from a dispatcher informing him

of a possible burglary of a truck in progress. Upon arrival at the scene, Officer

Landrum saw someone running away from the allegedly burglarized truck. Landrum

got out of his car and began to run in the same direction. He notified the dispatcher

that an individual was running from him and requested other units to set up a perimeter

in a one-block area.

Officer D. L. Rogers, assigned to the canine unit of the Houston Police

Department, arrived at the location, and his patrol dog, Pharoah, began barking at the

underside of the allegedly burglarized truck. Appellant emerged from underneath the

truck, and Officer Landrum handcuffed him. Landrum quickly patted appellant down

for weapons and placed him in the passenger side of the backseat of Landrum's patrol

car. Pharaoh began barking again at the underside of the truck. Another individual,

Stephen Dugan, emerged from underneath the truck and Officer Landrum handcuffed

him and patted him down. Landrum then placed Dugan in the passenger side of the

backseat of Landrum's patrol car, thereby causing appellant to move over to the

driver's side of the backseat.

Officer Landrum waited by his patrol car with another officer while Officer

Rogers continued to search the nearby area . Officer James McCoy arrived at the

location and agreed to transport the suspects to jail. The officers removed appellant

and Dugan from Landrum's patrol car and performed a more thorough search of them

both, but found nothing. Dugan was removed from the passenger side of the patrol car,

and appellant was removed from the driver's side. Landrum checked the backseat of

his patrol car, as required by police procedure, and found, on both sides of the seat, six

small plastic bags containing an unknown substance. Four of the bags were found

where the seat begins to "curve and slide up underneath the back of the seat" on the

side where appellant was sitting. Two other plastic bags were found in the seat directly

behind where Dugan was sitting. Landrum testified that he previously searched his

patrol car when he first went on duty that evening and appellant and Dugan were the

only suspects placed in his patrol car that day.

Officer Landrum field tested the contents of one of the bags, which yielded a

positive result for methamphetamine. Claudia Busby, a chemist with the Houston

Police Department Crime Laboratory, performed several scientific analyses on the

contents of the bags and determined that five of the bags contained methamphetamine,

weighing approximately 518.3 milligrams. (1)

Sufficiency of the Evidence

In his first issue, appellant challenges the legal sufficiency of the evidence to

support his conviction. We review legal sufficiency by viewing the evidence in the

light most favorable to the verdict to determine if any rational fact finder 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).

To establish unlawful possession of a controlled substance, the evidence must

show appellant knowingly exercised care, control, or management over the controlled

substance, was conscious of his connection with it, and knew what it was. Brown v.

State , 911 S.W.2d 744, 748 (Tex. Crim. App. 1995); Tex. Health & Safety Code §

481.002(38), 481.115 (Vernon 1992 & Vernon Supp. 1998). Evidence which

affirmatively links the accused to the controlled substance suffices for proof that he

possessed it knowingly. Brown , 911 S.W.2d at 748 . The evidence used to satisfy these

elements can be direct or circumstantial. Id. Whether direct or circumstantial evidence

is used, the State must establish that the accused's connection with the controlled

substance was more than just fortuitous. Id.

If the controlled substance is not found on the accused's person or the accused

was not in exclusive control over the place where it was found, the State must show

additional facts and circumstances linking the accused with the controlled substance.

McMillon v. State , 940 S.W.2d 767, 768 (Tex. App.--Houston [14th Dist.] 1997, pet.

ref'd). These additional facts may include the proximity of the accused to the

contraband and its accessibility or visibility to the accused, presence of drug

paraphernalia not included in the charge, and the accused's ownership or right of

possession of the place where the controlled substance was found. Id. at 769 .

Although the appellant must be affirmatively linked with the controlled substance he

allegedly possessed, this link need not exclude every other reasonable theory except

the defendant's guilt. Id.

In this case, Officer Landrum testified he searched his vehicle at the beginning

of his shift, as procedurally required, and did not find any controlled substances. He

testified that appellant and Dugan were the first individuals placed in the back seat of

his patrol car the night of appellant's arrest. Landrum's search of the patrol car, after

removing appellant and Dugan, revealed several bags of methamphetamine inside the

back seat. The four bags attributed to appellant were found in the back seat of the car

in close proximity to where appellant was sitting. Dugan was seated and handcuffed

on the other side of the car and could not easily access the seat area behind appellant.

There was at least one officer attending the vehicle at all times, and none witnessed

Dugan make any movements toward the side of the car where appellant was sitting.

In a similar case, the Court of Criminal Appeals held there was legally sufficient

evidence to support a defendant's conviction where the evidence showed no controlled

substance was beneath the back seat of a patrol car before the defendant was placed in

it, from which it reasonably could be inferred the defendant deposited the controlled

substance beneath the seat. Williams v. State , 784 S.W.2d 428, 429-30 (Tex. Crim.

App. 1990). We hold the evidence detailed above, when viewed in the light most

favorable to the verdict, was legally sufficient to affirmatively link appellant to the

controlled substance and sustain his conviction. Id.

We overrule appellant's first issue.

In his second issue, appellant challenges the factual sufficiency of the evidence

to support his conviction. Under the factual sufficiency standard, we ask "whether a

neutral review of all of 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 fact

finder's determination only if a manifest injustice has occurred. Id. In conducting this

analysis, we may disagree with the jury's determination, even if probative evidence

supports the verdict, but we must also avoid substituting our judgment for that of the

fact finder. Id.

Dugan testified that the five bags of methamphetamine were in his possession

and he tried to "stuff them down the back of the police car." Appellant presented no

other witnesses or evidence. On cross-examination, Dugan admitted he never told the

police that the methamphetamine was in his possession. Dugan testified he knew

appellant for 15 years, was his "good friend," they used to be roommates, and he did

not want to see anything bad happen to appellant. Dugan previously pleaded guilty to

possession of methamphetamine as a result of his arrest on April 18, 2000.

The fact finder is the exclusive judge of the credibility of the witnesses and the

weight to be given their testimony, and the fact finder may believe or disbelieve any

or all testimony of the witnesses. Williams v. State , 692 S.W.2d 671, 676 (Tex. Crim.

App. 1984). We note that a decision is not manifestly unjust merely because the

factfinder resolved conflicting views of the evidence in favor of the State. Cain v.

State , 958 S.W.2d 404, 410 (Tex. Crim. App. 1997). We hold the evidence was

factually sufficient to show appellant knowingly possessed a controlled substance and

to sustain appellant's conviction for the felony offense of possession of

methamphetamine weighing less than one gram .

We overrule appellant's second issue.

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Mirabal, Hedges and Jennings.

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

1. The sixth bag contained ketamine, a powerful anaesthetic used by veterinarians

on farm animals, which is not a controlled substance.

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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