Sedric E. Cole v. State

Opinion issued March 9, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00719-CR

NO. 01-04-00720-CR

SEDRIC EARL COLE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause Nos. 967717 & 967718

O P I N I O N

In cause number 967717, a jury convicted appellant, Sedric Earl Cole, of

unlawful possession of codeine

and, finding two enhancement paragraphs true,

sentenced him to 50 years’ confinement and a fine of $10,000. In cause number

967718, the same jury convicted appellant of unlawful possession of marihuana

and,

finding two enhancement paragraphs true, sentenced him to 20 years’ confinement and

a $10,000 fine. In six points of error in both cause numbers, appellant argues that (1)

the trial court erred by overruling his motion to suppress the seized codeine and

marihuana; (2) the trial court erred by failing to grant his objections to the State’s

improper jury arguments; and (3) the evidence is legally and factually insufficient to

affirmatively link appellant to the codeine and marihuana. In cause number 967717,

appellant argues two additional points: (4) the evidence is legally and factually

insufficient to establish appellant’s knowledge of the codeine.

We affirm.

Facts

In the middle of the night on November 10, 2003, Officer B. Dorris of the

Houston Police Department observed appellant’s vehicle fail to stop at a stop sign.

When Officer Dorris signaled appellant to pull over, appellant increased his speed and

a chase ensued until appellant drove his vehicle into a ditch. While Officer Dorris

placed appellant under arrest, Officer D. Garcia arrived on the scene and began to

inventory appellant’s vehicle. During the course of the inventory, Officer Garcia

found the following items in the trunk of the vehicle: two bags of marihuana inside a

picnic basket, an unlocked security box that contained cocaine, and a baby bottle that

contained codeine syrup. Before trial, appellant sought to suppress the contraband

found in the trunk, contending that the search was improper. The trial court denied

appellant’s motion.

Motion to Suppress

In his first point of error in both causes, appellant contends that the trial court

erred in overruling his motion to suppress the seized codeine and marihuana because

the search was not conducted pursuant to a proper automobile inventory search, in

violation of the Fourth Amendment.

In reviewing a trial court’s ruling on a motion to suppress, we apply a bifurcated

standard of review. Carmouche v. State , 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).

We give almost total deference to the trial court’s determination of historical facts that

depend on credibility, but we conduct a de novo review of the trial court’s application

of the law to those facts. Id. We review de novo the trial court’s application of the

law of search and seizure and probable cause. State v. Ross , 32 S.W.3d 853, 856 (Tex.

Crim. App. 2000); Wilson v. State , 98 S.W.3d 265, 271 (Tex. App.—Houston [1st

Dist.] 2003, no pet.). We examine the evidence in the light most favorable to the trial

court’s ruling. State v. Ballard , 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).

Appellant argues that the search was not conducted pursuant to a proper

automobile inventory search because the police did not use a standardized inventory

form and there was no evidence that the police followed a standard inventory

procedure or that one even existed. The State responds that, at the motion to suppress

hearing, appellant contested only the seizure of the cocaine

and did not contest

seizure of the codeine or marihuana, and he has, therefore, waived his right to appeal

the denial of his motion. The State points to appellant’s closing argument at the

motion to suppress hearing:

I believe that . . . the officer[’s] inventory of the picnic basket is a proper

inventory. This is an inadvertent discovery that the lid was opened,

wasn’t sealed. As he’s moving clothes around it flops open. His eye

catches it and what’s in the basket [codeine and marihuana] I think comes

in, what’s in the lock box [cocaine] . . . . Those are inadmissible as a

result of improper inventory . . . .

Appellant did not reply to the State’s waiver argument. To preserve error, one

must contemporaneously inform the trial court, by request, objection, or motion, not

only of the objectionable matter, but also of the specific grounds underlying the

complaint. Tucker v. State , 990 S.W.2d 261, 262 (Tex. Crim. App. 1999); Cisneros

v. State , 692 S.W.2d 78 , 82–83 (Tex. Crim. App. 1985). An objection can be waived.

For example, if a defendant’s motion to suppress is denied, affirmatively expressing

“no objection” when the evidence is offered at trial results in the loss of a right to

appeal the denial of the motion. See Moraguez v. State , 701 S.W.2d 902, 904 (Tex.

Crim. App. 1986).

The only Texas case we found to be analogous to the case before us today is

Strauss v. State , 121 S.W.3d 486 (Tex. App.—Amarillo 2003, pet. ref’d). In Strauss ,

via a written motion to suppress, the appellant questioned the validity of his consent

for the police to search his van. Id. at 489 . At the motion to suppress hearing,

however, Strauss failed to mention the issue, even after the judge asked the parties to

clarify the issues the parties wanted him to consider, possibly because he had written

in his motion that the issue did not have to be decided since the prior arrest was

unlawful. Id. On appeal, however, Strauss again raised the consent issue, arguing that

the State had failed to prove that it was voluntarily given. Id. The Amarillo court of

appeals found that Strauss had waived the issue, stating:

We are troubled with the prospect that an appellant can urge an objection

on particular grounds in a written motion, later inform the trial court to

disregard one or more of those grounds, and then contend, on appeal, that

one of those very grounds which the trial court was directed to ignore

actually warrants reversal of the judgment. Under those circumstances,

the appellant hardly complies with the spirit of Texas Rule of Appellate

Procedure 33.1. Indicating that one ground for objection need not be

addressed falls short of informing the trial court, with sufficient

specificity, of all the grounds upon which the appellant relies in asserting

his complaint. And, because it does, we conclude that an appellant

cannot assert, on appeal, the grounds that he told the court need not be

decided. So, having told the trial court that it need not address consent,

the appellant at bar cannot raise that issue on appeal as grounds for

reversal.

Id. at 490 (emphasis added) (citations omitted).

Here, appellant is in a similar situation to the appellant in Strauss . In his written

motion, appellant sought to suppress all the evidence, including the codeine and

marihuana. At the hearing on his motion, however, appellant very clearly stated

during his closing argument, “What’s in the basket [codeine and marihuana] comes

in,” but “what’s in the lock box [cocaine] . . . [is] inadmissible.” Thus, appellant, in

effect, informed the trial court that it need not address the suppression of the codeine

and the marihuana, only the cocaine. We agree with the Strauss court’s analysis and

conclude that when a defendant informs the trial court that an issue need not be

decided, he may not reassert that issue on appeal. See id. Having thus conceded that

the codeine and marihuana were admissible, appellant has waived his right to contest

the trial court’s ruling on appeal. See id.

We overrule appellant’s first point of error in both causes.

Improper Jury Argument In his second, third, and fourth points of error in both causes, appellant argues

that the trial court erred in overruling his objections to the State’s closing argument

during both the guilt-innocence and punishment phases of trial.

The law provides for and presumes a fair trial free from improper argument by

the State. Long v. State , 823 S.W.2d 259, 267 (Tex. Crim. App. 1991). In general,

proper jury argument encompasses one of the following: (1) a summation of the

evidence presented at trial; (2) a reasonable deduction drawn from that evidence; (3)

an answer to the opposing counsel’s argument; or (4) a plea for law enforcement.

Guidry v. State , 9 S.W.3d 133, 154 (Tex. Crim. App. 1999); Sandoval v. State , 52

S.W.3d 851, 857 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). To determine

whether a party’s argument properly falls within one of these categories, we must

consider the argument in light of the entire record. Sandoval , 52 S.W.3d at 857 . To

constitute reversible error, the contested jury argument must be extreme or manifestly

improper, or it must inject new and harmful facts into evidence. Id. In most cases, if

error occurs, an instruction to disregard will cure any error committed. Shannon v.

State , 942 S.W.2d 591, 597 (Tex. Crim. App. 1996).

Striking at Defendant Over the Shoulder of Counsel

The Court of Criminal Appeals has consistently held that arguments that strike

at a defendant over the shoulder of his defense counsel are improper. Dinkins v. State ,

894 S.W.2d 330, 357 (Tex. Crim. App. 1995). Although the Court has found it

impossible to articulate a precise rule regarding these types of arguments, it has

cautioned that “a prosecutor runs a risk of improperly striking at a defendant over the

shoulder of counsel when the argument is made in terms of defense counsel personally

and when the argument explicitly impugns defense counsel’s character.” Mosley v.

State , 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Even if a prosecutor’s statements

are intended as a rebuttal, the legitimate arguments of defense counsel cannot serve

as a basis for permitting prosecutorial comments that “cast aspersion on defense

counsel’s veracity with the jury.” Id. (quoting Dinkins , 894 S.W.2d at 357 )

1. “Smoking Mirrors”

In his second point of error, appellant argues that the State’s comment during

closing argument at the guilt-innocence phase, “smoking mirrors,” was improper as

an inflammatory attack on defense counsel. The State argued:

[State]: Now, let’s talk about the defense. All the smoking mirrors

that they brought to distract you from the real issues. I

always like to call it the spaghetti defense. Throw

everything up.

[Defense]:Objection that’s over the shoulder of defense and I object to

it.

[Court]:Overruled.

The State counters that, because appellant failed to object to similar arguments made

by the State subsequently, he has waived any error. The State’s similar arguments

were:

1.Throw everything wrong and make it stick because if they can

make one of you think one of these things is important they’re

okay and the Defendant gets to go home.

2.Smoking mirrors Ladies and Gentlemen.

3.Just something that they brought to distract from you what the real

issues are.

4.Smoking mirrors. They want you to put the idea that he borrowed

that car . . . . Designed to distract you.

We conclude that appellant waived his objection. Texas law requires a party to

continue to object each time inadmissible evidence is offered, except when defense

counsel requests a running objection or objects out of the presence of the jury to all

testimony he deems objectionable on a given subject. Ethington v. State , 819 S.W.2d

854 , 858–59 (Tex. Crim. App. 1991). Thus, an error in admission of evidence is cured

when the same evidence comes in elsewhere without objection. Id. (quoting Hudson

v. State , 675 S.W.2d 507, 511 (Tex. Crim. App. 1984)); Massey v. State , 933 S.W.2d

141, 149 (Tex. Crim. App. 1996) (holding that if defendant objects to admission of

evidence, but same evidence is subsequently introduced from another source without

objection, defendant waives his earlier objection). When a defendant creates the

impression that he is abandoning his objection, his initial objection is insufficient to

preserve the error for appeal. See Purtell v. State , 761 S.W.2d 360, 366 (Tex. Crim.

App. 1988); Rodriguez v. State , 90 S.W.3d 340, 357 (Tex. App.—El Paso 2001, pet.

ref’d).

Here, appellant objected to the State’s first reference to “smoking mirrors” but

failed to request a running objection

or to object to any of the similar “smoking

mirrors” remarks that followed.

We conclude, therefore, that appellant abandoned his

objection and thus failed to preserve any resulting error for appeal. See Purtell , 761

S.W.2d at 366 .

We overrule appellant’s second point of error in both causes.

2. “Better than a Defense Attorney”

In his third point of error, appellant contends that the State’s jury argument

about fingerprinting during the guilt-innocence phase was improper for suggesting that

defense counsel was continuing to distract the jury. The State argued:

[State]:We talked in voir dire how this is not CSI. You know you

can try to fingerprint everything but I told you city and

county resources you do it when it’s necessary . And I will

submit to you that law enforcement officers with 14 years

of combined experience would know far better than a

defense attorney when that needs to happen.

[Defense]:Still object. Strike at Defendant over the shoulder of

Counsel.

[Court]:Overruled.

The State responds that the argument was proper as a response to several of

appellant’s related arguments during defense counsel’s closing argument, namely that:

(1) the officers had not done their jobs when they failed to dust for fingerprints; (2) the

lack of fingerprints implied a lack of evidence to convict; and (3) the State was calling

on the jury to correct the officers’ “misdeeds,” “missteps,” and “inappropriate

activity.” We agree with the State.

Jury argument made in response to an argument of opposing counsel is proper.

Guidry , 9 S.W.3d at 154 ; Sandoval , 52 S.W.3d at 857 . The State’s argument

responded to closing argument presented by appellant. We conclude that the trial

court did not abuse its discretion in overruling appellant’s objections to the State’s

arguments.

We overrule appellant’s third point of error in both causes.

3. “Another Trick”

In his fourth point of error, appellant argues that the State’s jury argument

during the punishment phase regarding defense counsel’s “trick” was improper for

again suggesting that defense counsel was trying to deceive and distract the jury. The

State argued:

[State]:And I want to talk to you about the proof on enhancement

paragraph number one and the proof on enhancement

paragraph number two ‘cause you know Defense Counsel

came up with another trick and asked you for 15 years.

[Defense]:I have to object to that argument as a strike at the Defendant

over Counsel’s shoulder.

[Court]:Overruled.

Even while admitting that a prosecutor should avoid suggesting that defense counsel

is being deceptive or attempting to trick the jury, the State contends that the argument

was appropriate as an answer to defense counsel’s closing argument .

At the beginning of the punishment hearing, defense counsel stated that

appellant pleaded “not true” to the enhancement paragraphs in both convictions.

During appellant’s closing argument, defense counsel stated, “I think 15 years on the

codeine is likewise [appropriate]”; (2) “this is a 15 year case.”; (3) “I am asking you

for 15 years”; and (4) “15 is appropriate in this case [sic] I’ll be disappointed but I

been disappointed before.”

In making these references to a punishment of 15 years, defense counsel did not

differentiate between the codeine and marihuana offenses. Defense counsel did

acknowledge that the State’s indictment included two enhancement paragraphs for the

marihuana conviction that would raise the punishment range to 2 to 20 years in prison.

However, he failed to mention that the codeine conviction also included two

enhancement paragraphs that raised the punishment range to 25 years to life.

Thus,

he left the jurors with the impression that a punishment of 15 years for both offenses

was appropriate. Defense counsel did not state that such a sentence would not be

possible if appellant was convicted for possession of codeine and both enhancements

were found true.

Before the State made the comment about “another trick,” the State explained

that the punishment range for the possession of marihuana offense was 2 to 20 years.

The State also explained that, for the possession of codeine offense, plus the two

enhancements, appellant would face 25 years to life. Considering the context of the

State’s argument that “defense counsel came up with another trick,” we conclude that

this comment was a response to defense counsel’s argument that a 15-year punishment

was appropriate for both convictions, when, in fact, a 15-year punishment would not

have been proper in the codeine conviction if the jury had found both enhancements

to be true. Although the State could have used different language in referring to

defense counsel’s argument, we conclude that the State’s closing argument was not

an improper response to defense counsel’s argument.

Even if we did conclude that the jury argument made here was inappropriate,

we would conclude that the error was harmless. See Mosley , 983 S.W.2d at 259 ; see

also Brantley v. State , 48 S.W.3d 318, 330 (Tex. App.—Waco 2001, pet. ref’d)

(finding State’s argument to the jury not to “fall for [defense counsel’s] tricks” to be

“inappropriate” but not harmful error). Appellant claims that the failure of the trial

judge to sustain his objection to the inappropriate jury argument is nonconstitutional

error. To address the harm from the improper jury argument, we consider the three

factors from Mosley : (1) the severity of the misconduct; (2) the measures adopted to

cure the misconduct; and (3) the certainty of conviction without the misconduct.

Mosley , 983 S.W.2d at 259 .

Looking at the first Mosley factor, we conclude that the misconduct here, as in

Mosley , was neither extreme nor manifestly improper, and it did not inject new and

harmful evidence into evidence. See id . at 260; Sandoval , 52 S.W.3d at 857 . Rather,

the comment, albeit inappropriately stated, was in response to the prosecutor’s evident

belief that defense counsel was misleading the jury on the appropriate sentencing

range. The first factor, therefore, does not weigh in appellant’s favor. With respect

to the second factor, although the judge overruled appellant’s objection, the jurors

heard the defense’s objection, and they were in a position to evaluate the truthfulness

of the State’s assertion and to decide for themselves whether defense counsel was, in

fact, trying to trick them. See Mosley , 983 S.W.2d at 260 . Therefore, the second

factor does not weigh heavily in appellant’s favor. As to the third factor, we look to

the certainty of the conviction, or, in the case here, punishment. In his closing

argument, defense counsel asked the jury to sentence appellant to 15 years. However,

the indictment included two enhancement paragraphs which, if both found true, raised

the minimum sentence on the codeine charge to 25 years. See T ex. Pen. Code Ann .

§ 12.42 (Vernon 2005). The jury found both enhancements to be true. It is unlikely

that the prosecutor’s inappropriate comment affected these findings or, therefore, the

subsequent sentence. Accordingly, we conclude that the complained of jury argument

does not undermine the certainty of appellant’s punishment. See Mosley , 983 S.W.2d

at 259 .

We overrule appellant’s fourth point of error in both causes.

Sufficiency of the Evidence

In his fifth and sixth point of error in both causes, appellant argues that the

evidence is legally and factually insufficient to affirmatively link him to the marihuana

and codeine found in the trunk of the car. In his seventh and eighth points of error in

cause number 967717 , appellant argues that the evidence is legally and factually

insufficient to show that he had knowledge of the unlawful nature of the codeine.

Legal Sufficiency

We review the legal sufficiency of the evidence by viewing the evidence in the

light most favorable to the verdict to determine whether any rational factfinder could

have found the essential elements of the crime beyond a reasonable doubt. Wesbrook

v. State , 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); King v. State , 29 S.W.3d 556,

562 (Tex. Crim. App. 2000). Although our analysis considers all evidence presented

at trial, we may not reweigh the evidence and substitute our judgment for that of the

factfinder. King , 29 S.W.3d at 562 .

Affirmative Links and Knowledge

Intentionally or knowingly possessing a controlled substance is an offense under

the Texas Controlled Substance Act. See Tex. Health & Safety Code Ann. §

481.115(a) (Vernon 2003). To prove the offense of possession of a controlled

substance, the State must show that the accused (1) exercised actual care, custody,

control, or management of the controlled substance and (2) was conscious of his

connection with the controlled substance and knew what it was. See id. § 481.002(38)

(Vernon 2005), § 481.112(a) (Vernon 2003); Brown v. State , 911 S.W.2d 744, 747

(Tex. Crim. App. 1995). Both of these elements, including knowledge of the unlawful

nature of the seized substance, may be established by either direct or circumstantial

evidence. See Brown , 911 S.W.2d at 747 .

The State need not prove exclusive possession of the contraband for conviction.

Roberson v. State , 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet.

ref’d) (citing Harvey v. State , 487 S.W.2d 75, 77 (Tex. Crim. App. 1972)). When the

accused is not in exclusive possession of the place where the contraband is found,

however, we cannot conclude that the accused had knowledge of and control over the

contraband unless the State established an “affirmative link” between the accused and

the contraband—i.e. independent facts and circumstances that affirmatively link the

accused to the contraband so as to suggest that the accused had knowledge of the

contraband and exercised control over it. Rhyne v. State, 620 S.W.2d 599 (Tex. Crim.

App. 1981); Roberson , 80 S.W.3d at 735 . In other words, the State must establish that

the accused’s connection with the substance was more than just fortuitous. Brown ,

911 S.W.2d at 747 . Although several linking factors have been identified, the number

actually supported by the evidence is not as important as the “logical force” they

collectively create to prove that a crime has been committed. Roberson , 80 S.W.3d

at 735 (quoting Whitworth v. State , 808 S.W.2d 566, 569 (Tex. App.—Austin 1991,

pet. ref’d)).

The Court of Criminal Appeals has identified several factors that may help to

establish an affirmative link to the contraband, including whether: (1) the contraband

was in plain view; (2) the contraband was conveniently accessible to the accused; (3)

the accused was the owner of the place where the contraband was found; (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 as where the accused was sitting; (6)

the place where the contraband was found was enclosed; (7) the odor of the drug

found was present in the vehicle; (8) paraphernalia to use the contraband was found

in view of or on the accused; (9) conduct by the accused indicated a consciousness of

guilt; (10) the accused had a special connection to the contraband; (11) occupants of

the vehicle gave conflicting statements about relevant matters; (12) the physical

condition of the accused indicated recent consumption of the contraband found in the

vehicle; and (14) affirmative statements by the accused connect the accused to the

contraband. Gilbert v. State , 874 S.W.2d 290, 298 (Tex. App.—Houston [1st Dist.]

1994, pet. ref’d). Courts have also considered (15) whether traces of the contraband

or a large sum of money were found on the accused. Whitworth , 808 S.W.2d at 569 ;

Roberson , 80 S.W.3d at 742 ; (16) the amount of contraband found. Roberson , 80

S.W.3d at 740 ; and (17) whether the accused attempted to flee. Chavez v. State , 769

S.W.2d 284 , 288–89 (Tex. App.—Houston [1st Dist.] 1989, pet. ref’d).

Here, Officer Garcia found the codeine and marihuana in the trunk of a car

being driven and occupied solely by appellant. Appellant admitted that the clothing

and cologne found in the passenger compartment of the car belonged to him. Similar

items were found in the trunk, an enclosed space, surrounding the open picnic basket

in which the contraband was found. See Villegas v. State , 871 S.W.2d 894, 896 (Tex.

App.—Houston [1st Dist.] 1994, pet. ref’d) (noting that the contraband’s location in

relationship to the defendant’s personal belongings may help to establish an

affirmative link). Officer Garcia observed that the passenger compartment contained

a small trace of marihuana and a slight odor of marihuana. When he opened the trunk,

however, Officer Garcia smelled a strong odor of marihuana. Hidden in the picnic

basket, along with the contraband, were plastic baggies and a digital

scale—paraphernalia used for weighing, packaging, and distributing . K. Carpenter,

a forensic chemist with the Houston Police Department, testified that the marihuana

weighed a total of 14.4 ounces—an amount that is not insignificant. He also testified

that the baby bottle contained a mixture of codeine and prescription cough syrup that

weighed 239.9 grams. Officer Garcia testified that the drugs in the trunk had a street

value of well over $10,000. We conclude, based on the evidence presented at trial,

that a jury could have found beyond a reasonable doubt that appellant had actual care,

custody, control, or management of the marihuana and codeine in the trunk. See

Wesbrook , 29 S.W.3d at 111 . We also conclude that a jury could have found beyond

a reasonable doubt that appellant knew of the unlawful nature of the codeine. See id .

We overrule appellant’s fifth point of error in both causes and his seventh point

of error in cause number 967717 .

Factual Sufficiency

We begin the factual sufficiency review with the presumption that the evidence

supporting the jury’s verdict is legally sufficient. Clewis v. State , 922 S.W.2d 126,

134 (Tex. Crim. App. 1996). We view all the evidence in a neutral light, and we will

set aside the verdict only if the contrary evidence is so strong that the verdict is clearly

wrong and manifestly unjust or the evidence is so weak that the standard of proof

beyond a reasonable doubt could not have been met. Escamilla v. State , 143 S.W.3d

814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State , 144 S.W.3d 477, 483 (Tex.

Crim. App. 2004)). Our evaluation may not intrude upon the factfinder’s role as the

sole judge of the weight and credibility accorded any witness’s testimony. Cain v.

State , 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). What weight to give

contradictory testimonial evidence is within the sole province of the factfinder because

it turns on an evaluation of credibility and demeanor; the fact finder may choose to

believe all, some, or none of the testimony presented. Id. at 407–09. We must defer

appropriately to the factfinder to avoid substituting our judgment for its judgment.

Zuniga , 144 S.W.3d at 481–82.

In his sixth point of error in both causes, appellant argues that the evidence is

factually insufficient to affirmatively link him to the codeine and marihuana.

Specifically, appellant argues that because the car was registered to an M. Drake,

someone other than appellant owned it and at least one other person had access to its

trunk. Thus, the contraband in the trunk, appellant contends, cannot be linked

affirmatively to him. In his eighth point of error in cause number 967717 , appellant

contends that the evidence is factually insufficient because the State failed to present

any testimony regarding a label on the bottle in which the codeine was found and

because appellant did not admit knowing that the contents of the bottle was a

controlled substance.

Appellant relies on several Court of Criminal Appeals cases to contend that a

showing that an accused exercised some sort of ownership right over the place where

the codeine and marihuana was found, if that place was also occupied by others, is not

sufficient to support a finding of joint possession. See Guiton v. State , 742 S.W.2d 5

(Tex. Crim. App. 1987); Rhyne v. State , 620 S.W.2d 599 (Tex. Crim. App. 1981);

Wright v. State , 500 S.W.2d 170 (Tex. Crim. App. 1973).

Appellant mischaracterizes the holdings of the three cases he cites. The Guiton

court did not find that an affirmative link can never be established when the place

where contraband was found was occupied by more than one person. See Guiton , 742

S.W.2d at 8 . Rather, it found that, “[t]he fact that a defendant has rented the premises

upon which narcotics are found, if also occupied by others, is not usually sufficient in

and of itself to justify a finding of joint possession.” Id. (emphasis added) (citing

Rhyne , 620 S.W.2d at 601 ; Wright , 500 S.W.2d at 170 ). In other words, additional

independent facts and circumstances must be shown that affirmatively link the accused

to the contraband when he is not in exclusive possession of the place where the

contraband is found. Guiton , 742 S.W.2d at 8 .

For a review of factual sufficiency, we must consider the most important

evidence that appellant claims undermines the jury’s verdict. Sims v. State , 99 S.W.3d

600, 603 (Tex. Crim. App. 2003). Appellant relies on testimony that the car was

registered to someone else and not him. Although the car was registered to M. Drake

and not appellant, T. Jach, the used car sales manager at Davis Chevrolet, testified that

Drake

had traded the car in to Davis Chevrolet

on September 30, 2003,

more than

a month before the drugs were discovered. Officer Dorris testified that it was not

uncommon for someone with the amount of contraband that appellant possessed to

drive someone else’s vehicle. When Officer Dorris tried to pull appellant over for

running a stop sign, appellant fled, leading Dorris on a high speed car chase through

a residential area before losing control of the vehicle and crashing it into a ditch. See

Bigby v. State , 892 S.W.2d 864, 884 (Tex. Crim. App. 1994) (noting that evidence of

flight shows a consciousness of guilt of the crime for which the defendant is on trial);

Santos v. State , 961 S.W.2d 304, 305 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d)

(noting that the admissibility of flight to prove consciousness of guilt is a long-established rule).

The jury has the sole province to decide what weight is to be given to

contradictory testimony as it turns on an evaluation of credibility and demeanor. Cain

v. State , 958 S.W.2d 404 , 408–09 (Tex. Crim. App. 1997). A jury is free to believe

any or all of the testimony of the State’s witnesses. Id. at 409 . The jury’s decision,

therefore, is not manifestly unjust merely because the jury resolved conflicting views

of evidence in favor of the State. Id. at 410 .

Here, the jury was free to believe that M. Drake no longer had any connection

to the car and to decide that the State’s evidence established that, given his sole

occupancy of the car and the other affirmative links, appellant knowingly possessed

the codeine and marihuana. Moreover, the lack of labels on the bottles of codeine is

not affirmative evidence that undermines the verdict. Thus, after neutrally examining

all the evidence, we conclude that the proof of guilt was not so obviously weak as to

undermine confidence in the jury’s determination, nor was the contradictory evidence

so strong that the standard of proof beyond a reasonable doubt could not have been

met. See Escamilla , 143 S.W.3d at 817 .

We overrule appellant’s sixth point of error in both causes and his eighth point

of error in cause number 967717.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Publish. Tex. R. App. P. 47.2( b) .