Henry Allen Holman v. State

Opinion issued February 10, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00110-CR

HENRY ALLEN HOLMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 944929

MEMORANDUM OPINION

A jury found appellant, Henry Allen Holman, guilty of possession of between

four and 200 grams of cocaine with intent to deliver and, after he had pleaded true to

two enhancement paragraphs for felony possession of controlled substances, assessed

his punishment at 30 years in prison. See Tex. Health & Safety Code Ann. §§

481.102(3)(D), 481.112(a), (d) (Vernon 2003). We determine (1) whether the

evidence was legally and factually sufficient to link appellant affirmatively to the

cocaine and to show that he knowingly possessed it and (2) whether the trial court

reversibly erred in sustaining the State’s objection to one portion of appellant’s

closing argument. We affirm.

Sufficiency of the Evidence

In his first six issues, appellant challenges the legal and factual sufficiency of

the evidence showing that he knowingly possessed the cocaine. Specifically,

appellant argues that there was no or insufficient evidence affirmatively linking him

to the cocaine and that there was no or insufficient evidence that he knowingly

possessed the cocaine.

A. Standard of Review

In conducting a legal-sufficiency review, we view the evidence in the light

most favorable to the verdict and ask whether any rational trier of fact could find the

essential elements of the crime beyond a reasonable doubt. Johnson v. State , 23

S.W.3d 1, 7 (Tex. Crim. App. 2000).

In reviewing a factual-sufficiency challenge, we ask “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.” Id. at 11 . The factual-sufficiency standard “acknowledges that evidence of

guilt can ‘preponderate’ in favor of conviction but still be insufficient to prove the

elements of the crime beyond a reasonable doubt .” Zuniga v. State , 144 S.W.3d 477,

485 (Tex. Crim. App. 2004) . The appellate court should not substitute its own

judgment for that of the fact finder. Jones v. State , 944 S.W.2d 642, 648 (Tex. Crim.

App. 1996). The fact finder is entitled to believe all, some, or none of any witness’s

testimony. Sharp v. State , 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

B. The Law

A person commits the offense for which appellant was convicted if he

knowingly or intentionally possesses cocaine with intent to deliver it. Tex. Health

& Safety Code Ann. §§ 481.112(a) & 481.102(3)(D) . Appellant challenges only

the possession and mens rea elements of his conviction. “‘Possession’ means actual

care, custody, control, or management.” Id. § 481.002(38) (Vernon 2003); see Tex.

Pen. Code Ann. § 1.07(a)(39) (Vernon 2003) . Accordingly, to convict an accused

of possession of a controlled substance, the State must prove that (1) the accused

exercised care, custody, control, or management over the contraband and (2) he knew

that what he possessed was contraband. See Tex. Health & Safety Code Ann. §§

481.002(38), 481.112(a) ; Gilbert v. State , 874 S.W.2d 290, 298 (Tex. App.—Houston

[1st Dist.] 1994, pet. ref’d).

“A person acts intentionally, or with intent, with respect to the nature of his

conduct or to a result of his conduct when it is his conscious objective or desire to

engage in the conduct or cause the result.” Tex. Pen. Code Ann. § 6.03(a) (Vernon

2003). “A person acts knowingly, or with knowledge, with respect to the nature of

his conduct or to circumstances surrounding his conduct when he is aware of the

nature of his conduct or that the circumstances exist.” Id. § 6.03(b) (Vernon 2003).

“A person commits an offense only if he voluntarily engages in conduct, including

an act, an omission, or possession.” Tex. Pen. Code Ann. § 6.01(a) (Vernon 2003).

“Possession is a voluntary act if the possessor knowingly obtains or receives the thing

possessed or is aware of his control of the thing for a sufficient time to permit him to

terminate his control.” Id. § 6.01(b).

When a defendant’s possession of contraband is not exclusive, the State may

prove knowing possession by evidence affirmatively linking the defendant to the

contraband. Brown v. State , 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). An

affirmative link may be established through direct or circumstantial evidence. Id.

Although courts have identified many non-exhaustive factors that may constitute

affirmative links between an accused and contraband,

the number of factors is not

as important as the degree to which they, alone or together, tend affirmatively to link

the accused to the contraband. Hurtado v. State , 881 S.W.2d 738, 743 (Tex.

App.—Houston [1st Dist.] 1994, pet. ref’d).

C. Application of the Law to the Facts

1. Legal Sufficiency of Evidence Showing Knowledge and Possession

In his first and third issues, appellant argues that the evidence is legally

insufficient to link him affirmatively to the cocaine and to show that he knew that he

possessed cocaine.

Following is the evidence, viewed in the light most favorable to the verdict,

showing appellant’s knowing and voluntary possession of the cocaine . See Tex. Pen.

Code Ann. § 6.01(b). Narcotics Officer D. Fuller was working undercover in an

unmarked car on the night of appellant’s arrest. The officer observed a white male

use a pay phone, walk to the parking lot of a closed convenience store, and pace, as

if waiting. The man’s actions made Officer Fuller suspect that the man was waiting

to purchase drugs. About five minutes later, a gold truck drove into the parking lot.

Appellant was riding in the truck’s front passenger seat. The white male walked

directly to the truck’s front passenger side. Appellant appeared to hand something

to the male, and the male appeared to hand money to appellant. Officer Fuller

believed that he had witnessed a drug transaction between the white male and

appellant. The truck drove away, with Officer Fuller pursuing.

Officer Fuller radioed Officer S. Kwiatkowski, his undercover narcotics

partner , and Officer R.L. Richards, who was acting as back-up to the undercover

officers, to advise that he had witnessed a narcotics transaction . Officer Fuller also

advised Officer Richards that he had witnessed the truck commit a traffic violation.

Officer Richards, who was driving a marked police vehicle and was wearing a

uniform, signaled for the truck to stop. Because the truck took a long time to stop,

Officer Richards suspected that “something might be going on inside the vehicle.”

When he reached the vehicle, Officer Richards saw appellant reaching down towards

the front floorboard area, although the officer did not see anything in appellant’s

hands . Appellant was fidgeting and appeared “very nervous”; in contrast, the driver

did not appear nervous or excited.

As soon as Officer Richards had turned on his overhead lights, Officer Fuller,

who was driving somewhere behind the truck, saw the passenger extend his arm out

of the window and drop an object. Officer Fuller retrieved the object, which was a

candy box containing about 4.7 grams of crack cocaine rocks. After the truck had

stopped, Officers Fuller and Kwiatkowski saw the passenger toss the contents of a

second container out of the same window. Officer Fuller retrieved the contents,

which were about 4.3 grams of crack cocaine rocks. The officers later retrieved

another candy box, which contained cocaine residue and which matched the color of

the container whose contents appellant had discarded , from the passenger-side

floorboard of the truck. Officer Fuller testified that he had seen crack cocaine

packaged in candy containers before.

Officer Fuller never saw the passenger and driver switch places in the car, and

he had the car in his sight most of the time. Officer Fuller also testified that there was

“no way” that the driver could have reached over to the passenger side far enough to

have extended his arm from that side; Officer Kwiatkowski concurred that the arm

that he saw extend from the truck had to have been appellant’s and that it would have

been “virtually impossible” for the driver to have extended his arm out that window

in that way. The officer did not see the cocaine fly out of the passenger window in

such a way as to have been thrown by anyone other than the passenger. Officer Fuller

had no doubts that appellant was sitting in the passenger seat during the sale; neither

did he doubt who had possessed the cocaine.

We hold that this is some evidence that a rational trier of fact could have

believed showed, beyond a reasonable doubt , both that appellant knowingly obtained

or received the cocaine and that he could be affirmatively linked to the cocaine. See

Tex. Pen. Code Ann. § 6.01(b) (“Possession is a voluntary act if the possessor

knowingly obtains or receives the thing possessed . . . .”); Brown , 911 S.W.2d at 747

(requiring evidence affirmatively linking accused to contraband when accused’s

possession is not exclusive) . That is, the above is some evidence showing that

appellant knowingly exercised care, custody, control, or management over the

cocaine. See Tex. Health & Safety Code Ann. § 481.002(38) . Accordingly, we

further hold that the evidence was legally sufficient to show knowing and voluntary

possession.

We overrule appellant’s first and third issues.

2. Factual Sufficiency of Evidence Showing Knowledge and Possession

In his second and fourth issues, appellant argues that the evidence is factually

insufficient to link him affirmatively to the cocaine and to show that he knew that he

possessed cocaine.

In support of his factual-sufficiency challenges, appellant relies on the same

evidence and arguments that he raised in his legal-sufficiency challenges, rather than

pointing to evidence weighing against the jury’s verdict .

Accordingly, despite his

use of the term “great weight and preponderance of the evidence” in his brief,

appellant’s challenges are really arguments that “the proof of guilt is so obviously

weak as to undermine confidence in the jury’s determination,” rather than arguments

that contrary proof greatly outweighs the evidence supporting the verdict. See

Johnson , 23 S.W.3d at 11 .

After reviewing the evidence discussed above relating to knowledge and

possession, we hold that the evidence supporting the jury’s implicit determination that

appellant knowingly obtained or received the cocaine, and that he could be

affirmatively linked to it, is not so obviously weak as to undermine confidence in the

verdict. See Tex. Pen. Code Ann. § 6.01(b); Brown , 911 S.W.2d at 747 . That is, the

evidence supporting the jury’s implicit determination that appellant knowingly

exercised care, custody, control, or management over the cocaine was factually

sufficient. See Tex. Health & Safety Code Ann. § 481.002(38) .

We overrule appellant’s second and fourth issues.

3. Alternative Arguments

In his fifth and sixth issues, appellant asserts that the evidence was legally and

factually insufficient to show that he possessed the cocaine voluntarily because

nothing showed that he had had control over the cocaine long enough to have

terminated his control over it. See Tex. Pen. Code Ann. § 6.01(b) (“Possession is

a voluntary act if the possessor . . . is aware of his control of the thing for a sufficient

time to permit him to terminate his control.” ). We need not reach these issues.

“Section 6.01(b) allows the State to prove knowing possession by showing either that

an accused knowingly obtained or received the item or that he controlled the item

long enough to terminate his control over it.” Powell v. State , 112 S.W.3d 642, 646

(Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). The jury charge tracked the

disjunctive language of section 6.01(b). We have already held that the evidence was

legally and factually sufficient to show that appellant knowingly obtained or received

the cocaine, i.e. , that he knowingly exercised care, custody, control, or management

over the cocaine. See Tex. Health & Safety Code Ann. § 481.002(38) ; Tex. Pen.

Code Ann. § 6.01(b) . Accordingly, “whether the State also produced sufficient

evidence of the alternate means to show knowing possession under [the latter portion

of] section 6.01(b)—sufficient length of control—would not have affected the verdict

and is thus immaterial.” Powell , 112 S.W.3d at 646 (citing Rabbani v. State , 847

S.W.2d 555, 558 (Tex. Crim. App. 1992) (“[W]hen the jury returns a general verdict

and the evidence is sufficient to support a guilty finding under any of the allegations

submitted, the verdict will be upheld.”)).

Closing Argument

In his seventh issue, appellant argues that the trial court erred in sustaining the

State’s objection to the following closing argument:

Defense counsel:[Officer Richards] tells us that [the driver] is very

calm, very collected. He tells us that the passenger,

Mr. Holman, is nervous and upset. I would submit to

you that the passenger [sic] is calm because the

passenger [sic] has just gotten rid of drugs on the

passenger side window. He has just taken the drugs

and didn’t implicate himself. He knows to be calm.

He knows that he can pull this off—

State:I’m going to object, Your Honor. This is improper

argument. She’s impeaching a witness that hasn’t

testified.

Court:Sustained.

Defense counsel:The passenger is nervous because he’s seen the

drugs go out of the window. The passenger is

nervous because he can’t exit the vehicle. He’s

being surrounded by policemen and the drugs have

gone out the passenger window.

Assuming without deciding that the trial court erred in sustaining the State’s

objection, we hold that any error was harmless under either harm standard. See Tex.

R. App. P. 44.2(a), (b). The argument that appellant made before the complained-of

ruling presented his theory to the jury, and the trial court did not instruct the jury to

disregard that argument. See Wiltz v. State , 827 S.W.2d 372, 374 (Tex.

App.—Houston [1st Dist.] 1992) (under harm standard akin to that of Rule of

Appellate Procedure 44.2(a), holding that error in sustaining State’s objection to

closing argument was harmless because trial court did not instruct jury to disregard

argument), rev’d on other grounds , 863 S.W.2d 463 (Tex. Crim. App. 1993); Drake

v. State , 860 S.W.2d 182, 186 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d)

(similar holding). Furthermore, appellant thoroughly argued to the jury that the

officers’ testimony about who had thrown the cocaine from the truck should not be

believed, i.e ., that the driver could instead have been the one who had thrown it out.

See Culton v. State , 95 S.W.3d 401, 406-07 (Tex. App.—Houston [1st Dist.] 2002,

pet. ref’d) (holding that error in sustaining State’s objection to appellant’s closing

argument was cured because appellant made essentially same argument later without

objection); Rische v. State , 746 S.W.2d 287, 291 (Tex. App.—Houston [1st Dist.]

1988, no pet.) (similar holding; also noting that court did not instruct jury to disregard

defense argument). Therefore, even if the constitutional-harm standard applies, any

error was harmless beyond a reasonable doubt. See Tex. R. App. P. 44.2(a).

We overrule appellant’s seventh issue.

Conclusion

We affirm the judgment of the trial court.

Tim Taft

Justice

Panel Consists of Justices Taft, Keyes, and Hanks.

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