By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Evidence factually and legally sufficient to
support adjudication for possession of crack cocaine (99-3-34)
On August 12, 1999, the Austin Court of Appeals held that evidence was
sufficient to link affirmatively the juvenile to crack cocaine found in the
bathroom of a motel.
99-3-34. In the Matter of K.A.C., UNPUBLISHED, No. 03-98-00453-CV, 1999 WL
603661, 1999 Tex.App.Lexis ___ (Tex.App.—Austin 8/12/99)[Texas Juvenile Law
(4th Edition 1996)].
Facts: The State filed a petition alleging that K.A.C., a juvenile, engaged in
delinquent conduct by possessing crack cocaine in an amount of less than one
gram by aggregate weight, including any adulterants and dilutants. See Tex.
Health & Safety Code Ann. § 481.115(a), (b) (West Supp.1999). The district
court, sitting as a juvenile court, adjudicated appellant to have engaged in the
delinquent conduct charged and committed her to the Texas Youth Commission. In
two issues, appellant contends that the evidence is legally and factually
insufficient to support the court's ruling.
The only witnesses to testify at the adjudication hearing were Austin Police
Officers Robert Soto and Robert Simmons. On June 5, 1998, Soto responded to a
call from the Budget Inn located in the 9100 block of North I-35. The on-site
security guard requested police assistance after he went to a particular guest
room and asked the man answering the door, Grant Moore, to leave the property
because he had been notified previously that he was banned from the property.
The security guard believed that Moore was selling drugs from the guest room.
Soto, Simmons, a police trainee, and the security guard went to the guest room.
Moore opened the door and stepped outside the room to talk with the group,
leaving the guest room door open. The officers testified that Moore has a
reputation with the police and hotels in Austin as a suspected drug dealer. Many
of the hotels have criminal trespass warnings posted banning him from their
properties. Soto testified that the police are often called to have Moore
removed from hotel properties. When Moore opened the door, Simmons watched the
activity in the guest room while Soto talked with Moore. Simmons saw a man and a
woman lying on the bed and saw appellant run from the room.
Moore told the officers that he was there to pick up his girlfriend, appellant,
but that he did not know her last name. Moore also did not know who had
registered for the room. Soto thought all of this suspicious. He asked the man
and woman lying on the bed who had registered for the room. The woman, Jennifer
Jesfer, answered that she had registered for the room. When Soto asked Jesfer to
identify the other three people in the room, she responded that she did not know
who they were; when she awoke they were all in her room. Soto thought her
response also was suspicious and asked her if there was anything illegal in the
room. She responded there was not and that the officers were welcome to look
around.
During this conversation, Simmons continued to observe the bathroom. When the
officers first arrived, appellant ran into the bathroom, leaving the door open.
Simmons and Soto both testified that while appellant was in the bathroom they
heard no sounds from the bathroom, including no running water in the sink or
shower and no toilet flushing. After only a few minutes, appellant came out of
the bathroom. She was not carrying a towel and her hands were not wet. Appellant
identified herself and, as the officers later determined, gave a false birthdate
which indicated that she was an adult. Immediately after appellant came out of
the bathroom, Simmons went in to look around while Soto watched the four people
in the guest room.
No one went into the bathroom between the time appellant left it and Simmons
entered. Simmons noticed the toilet water was clean and that there were two
unraveled cigarette butts in the toilet that looked as if they had been there
for awhile. The bathroom sink was wet. The shower area was also wet as if
someone had recently taken a shower. In the soap dish located inside the shower
area Simmons noticed several rocks that appeared to him to be crack cocaine. The
rocks were completely dry. Simmons called Soto into the bathroom to look at the
dry substance. Soto secured the rocks and ran warrant checks on all four people
in the room. The man lying on the bed was arrested due to several outstanding
warrants and appellant was detained for possession of cocaine.
Held: Affirmed.
Opinion Text: Appellant contends that the record evidence was legally and
factually insufficient to prove she had engaged in the delinquent conduct
alleged. She argues that the evidence did not establish that she exercised care,
custody and control over the crack cocaine because there was no affirmative link
between her and the cocaine.
In determining the legal sufficiency of the evidence, the question is whether,
after viewing all the evidence in the light most favorable to the verdict, any
rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v.
State, 820 S.W.2d 154 (Tex.Crim.App.1991); Griffin v. State, 614 S.W.2d 155
(Tex.Crim.App.1981); In re E.P., 963 S.W.2d 191, 193 (Tex.App.--Austin 1998, no
pet.). In determining the factual sufficiency of the evidence, an appellate
court determines whether the verdict is so contrary to the overwhelming weight
of the evidence as to be clearly wrong and manifestly unjust. Clewis v. State,
922 S.W.2d 126, 129 (Tex.Crim.App.1996); Stone v. State, 823 S.W.2d 375, 381 (Tex.App.--Austin
1992, pet. ref'd untimely filed). In a factual sufficiency review, we consider
all of the evidence equally, including the testimony of any defense witnesses
and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321
(Tex.App.--Austin 1992, no pet.). The standard of review is the same in direct
and circumstantial evidence cases. Green v. State, 840 S.W.2d 394, 401
(Tex.Crim.App.1992). The trier of fact, in this case the trial court, is the
exclusive judge of the witnesses's credibility and the weight to be given their
testimony and is free to accept or reject any or all of the testimony. Adelman
v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992). The fact finder may draw
reasonable inferences and make reasonable deductions from the evidence.
Benavides v. State, 763 S.W.2d 587, 588-89 (Tex.App.--Corpus Christi 1988, pet.
ref'd).
In order to adjudicate appellant for unlawful possession of crack cocaine, the
State must prove appellant exercised care, control, and management over the
cocaine and that she knew the substance in her possession was cocaine. King v.
State, 895 S.W.2d 701, 703 (Tex.Crim.App.1995). Possession of cocaine need not
be exclusive and evidence which shows the accused jointly possessed the cocaine
with others is sufficient. Whitworth v. State, 808 S.W.2d 566, 569 (Tex.App.--Austin
1991, pet. ref'd).
When cocaine is not found on the body of the accused and when the accused is not
in exclusive possession of the place where the cocaine is found, there must be
additional independent facts and circumstances that affirmatively link the
accused to the cocaine in such a manner that it can be concluded the accused had
control over it. See Brown v. State, 911 S.W.2d 744, 747-48 (Tex.Crim.App.1995);
Whitworth v. State, 808 S.W.2d 566, 569 (Tex.App.-- Austin 1991, pet. ref'd);
Trejo v. State, 766 S.W.2d 381, 384-85 (Tex.App.--Austin 1989, no pet.). An
affirmative link generates a reasonable inference that the accused knew of the
cocaine's existence and exercised control over it. See Whitworth, 808 S.W.2d at
570. The independent facts and circumstances must show that the accused's
connection with the cocaine was more than fortuitous. Brown, 911 S.W.2d at
746-47; Martinets v. State, 884 S.W.2d 185, 187 (Tex.App.--Austin 1994, no
pet.). The mere presence of the accused in the vicinity of where cocaine is
found is insufficient to establish possession of cocaine. McGoldrick v. State,
682 S.W.2d 573, 578-79 (Tex.Crim.App.1985); Oaks v. State, 642 S.W.2d 174, 177
(Tex.Crim.App.1982); Randle v. State, 828 S.W.2d 315, 317 (Tex.App.--Austin
1992, no pet.).
Courts have articulated various factors to help determine what constitutes an
affirmative link so that the accused's connection to the cocaine meets the
elements of intentional and knowing possession. See Whitworth, 808 S.W.2d at 569
(summarizing and listing thirteen factors identified in various opinions from
court of criminal appeals tending to establish elements of possession); Trejo,
766 S.W.2d at 384-85. "The number of factors present is less important than
the logical force of those factors, alone or in combination, in establishing the
elements of the offense." Martinets, 884 S.W.2d at 188 (citing Whitworth,
808 S.W.2d at 569 & Trejo, 766 S.W.2d at 385).
In accordance with the factors we set out in Whitworth, the evidence in the
record reflects, among other facts, that (1) the cocaine was conveniently
accessible to the accused; (2) the rock cocaine was in plain view; and (3) the
conduct of the accused indicated a consciousness of guilt.
Appellant was the only person in the guest room whom the officers observed to be
in close proximity to the cocaine. She was the only person to run into the
bathroom when the officers arrived; Moore answered the door while Jesfer and
another man remained on the bed. The evidence shows that, although appellant ran
into the bathroom, she did not use the toilet, take a shower, or wash her hands.
Even though the officer found the shower area and sink were wet from being used
shortly before they arrived, they discovered the crack cocaine sitting in the
shower soap dish and found it to be dry, indicating that it had been placed
there even more recently. The cocaine, sitting in the shower soap dish, was in
plain view. Finally, appellant's conduct of running into the bathroom when Moore
opened the guest room door to the officers and then emerging within a few
minutes without using the toilet, washing her hands or taking a shower,
indicates a consciousness of guilt.
As the State contends, these links when considered together would allow the fact
finder to infer that appellant was holding the rock cocaine when the officers
arrived at the guest room door and that she ran into the bathroom in an attempt
to hide the cocaine in the shower soap dish. We hold that the evidence was
legally and factually sufficient to demonstrate an affirmative link between
appellant and the cocaine.
Conclusion
When considered in the light most favorable to the verdict, the evidence would
allow a rational trier of fact to find that appellant exercised care, custody
and control of the cocaine beyond a reasonable doubt. Additionally, the court's
determination that appellant possessed the cocaine was not so against the great
weight and preponderance of the evidence as to be manifestly unjust. The
evidence is legally and factually sufficient to establish that appellant
possessed the cocaine. Appellant's two issues are overruled and the court's
judgment adjudicating appellant delinquent is affirmed.