NO. 12-05-00319-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RODNEY HAMILTON,       §                      APPEAL FROM THE 241ST

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      SMITH COUNTY, TEXAS

MEMORANDUM OPINION

            Appellant Rodney Hamilton appeals his conviction for possession of a controlled substance.  In two issues, Appellant challenges the legal and factual sufficiency of evidence and asserts that he was denied effective assistance of counsel.  We affirm.

Background

            Appellant was charged by indictment for the felony offense of possession of methamphetamine and “3,4 methylenedioxymethamphetamine”in amounts of four grams or more but less than 200 grams.¹   He pleaded “not guilty” and elected to have a jury decide his guilt or innocence.

            At trial, the State called James Godwin, a trooper with the Texas Department of Public Safety, to testify.  Officer Godwin testified that on May 14, 2004, he “clocked” Appellant driving five miles per hour above the posted speed limit on Interstate 20.  He was traveling westbound as Appellant was traveling eastbound.  Officer Godwin turned his vehicle around to pursue Appellant, but before he initiated his siren or flashing lights, Appellant exited the interstate.  After Officer Godwin stopped him, Appellant obeyed the officer’s instructions and stepped outside the vehicle, but appeared “overly nervous.”  Appellant confirmed that he was driving a vehicle that he had rented.  He told the officer that he was driving from Dallas to Shreveport to attend his uncle’s funeral and had exited from the interstate because his passenger needed to use the restroom.  When Officer Godwin approached the passenger side of the vehicle, he smelled burned marijuana.  Rodney Wilbert was seated in the front passenger seat.  Wilbert told the officer that he had been in Dallas to visit his girlfriend who had just had a baby.  He did not mention returning to Louisiana because of Appellant’s uncle’s death.  Wilbert said that they had exited from the interstate to buy cigarettes.  After smelling marijuana, noting Appellant’s and Wilbert’s  nervous behaviors, and considering their conflicting stories of where they were going and where they had been, Officer Godwin requested and received permission from Appellant to search the vehicle.

            Upon searching the vehicle, Officer Godwin found a plastic bag containing 305 Ecstasy² pills under the front passenger seat.  He did not find any luggage in the vehicle.  Officer Godwin arrested Appellant and Wilbert and then placed them in the back of his DPS car.  A video camera installed in the car recorded Appellant and Wilbert talking.  During their conversation, Appellant told Wilbert that they had “talked about this too many times” and that he should have thrown the pills out of the window as soon as they saw the DPS vehicle.  He also said there were better places to hide the pills.  He told Wilbert to take the blame for the drugs and he would bail him out.

            Adrian Jones of Enterprise Car Rentals testified for the State.  She stated that Appellant rented vehicles nine times in the last six months and drove a total of 2,366 miles.  She said that their company policy requires them to search every vehicle for “left items” after it is returned.  Jones also said that if the vehicle smells like marijuana, they keep it out of rental circulation for a few days until the smell abates.  After the State rested, Appellant moved for an instructed verdict, which was denied.

            Florence Edna Hamilton, Appellant’s mother, testified that her brother had been gravely ill and then died.  She confirmed that she called Appellant and asked him to return to Shreveport on May 14.

            Appellant then testified on his own behalf.  He said that he travels frequently for his record business and rents vehicles because he cannot afford to buy one.  He confirmed Officer Godwin’s testimony that the vehicle smelled like marijuana and asserted that he complained of that to the rental car agency upon renting it.  However, he was told that this vehicle was the only vehicle available.

            Appellant conceded that he was driving five miles over the speed limit when the DPS officer stopped him.  He claims he had a small duffel bag with a few clothes in it.  Appellant denied that the drugs were his or that he knew that Wilbert had them in the vehicle.  He admitted that he had been convicted twice before for cocaine distribution and possession.  He also conceded that while on community supervision from these convictions, he was charged with jury tampering and possession of opium and his community supervision was revoked. 

            At the conclusion of the guilt/innocence phase, the jury found Appellant guilty.  After hearing evidence and argument from the parties, the jury sentenced Appellant to fifty years of imprisonment and assessed a $5,000.00 fine.  This appeal followed.

Sufficiency of the Evidence

            In his first issue, Appellant challenges the legal and factual sufficiency of the evidence supporting his conviction.  Specifically, he asserts that the State failed to establish that he was affirmatively linked to the care, custody, and control of the contraband. 

Legal Sufficiency

            Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction.  Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979)).  In reviewing a legal sufficiency challenge, the appellate court examines the evidence in the light most favorable to the judgment to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993) (citing Jackson, 443 U.S. at 319, 99 S. Ct. at 2789).  The conviction will be sustained “unless it is found to be irrational or unsupported by more than a ‘mere modicum’ of the evidence.”  Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).  The jury is the exclusive judge of (1) the facts, (2) the credibility of the witnesses, and (3) the weight to be given to the testimony of each witness.  Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994); Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981).  Any reconciliation of conflicts and contradictions in the evidence is entirely within the jury’s domain.  Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986).  The jury is entitled to draw reasonable inferences from the evidence.  Benavides v. State, 763 S.W.2d 587, 588-89 (Tex. App.–Corpus Christi 1988, pet. ref’d).  A successful legal sufficiency challenge results in the rendition of an acquittal by the reviewing court.  See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982).

Applicable Law

            To support a conviction for possession of a controlled substance, the State must show  that the accused exercised actual care, control, or custody of the substance, that he was conscious of his connection with it, and that he possessed the substance knowingly or intentionally.  See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).  The evidence used to satisfy these elements can be either direct or circumstantial.  Id. 

            Whether it is by direct or circumstantial evidence, the State must establish that the accused’s connection with the substance was more than just fortuitous.  Id.  However, when the contraband is not found on the accused’s person or is not in the accused’s exclusive possession, additional facts must affirmatively link the accused to the contraband.  See Jones v. State, 963 S.W.2d 826, 830 (Tex. App.–Texarkana 1998, pet. ref’d).  The affirmative link ordinarily emerges from an orchestration of several factors and the logical force they have in combination.  Id. 

            Among the nonexclusive factors that may be considered when evaluating affirmative links are (1) whether the contraband was in plain view or recovered from an enclosed place; (2) whether the accused was the owner of the premises, or had the right to possess the place where the contraband was found, or was the owner or driver of the automobile in which the contraband was found; (3) whether the accused was found with a large amount of cash; (4) whether the contraband was conveniently accessible to the accused or found on the same side of the vehicle as the accused was sitting; (5) whether the contraband was found in close proximity to the accused; (6) whether a strong residual odor of the contraband was present; (7) whether the accused possessed other contraband when arrested; (8) whether paraphernalia to use the contraband was in view or found on the accused; (9) whether the physical condition of the accused indicated recent consumption of the contraband in question; (10) whether conduct by the accused indicated a consciousness of guilt; (11) whether the accused attempted to escape or flee; (12) whether the accused made furtive gestures; (13) whether the accused had a special connection to the contraband; (14) whether the occupants of the premises gave conflicting statements about relevant matters; (15) whether the accused made incriminating statements connecting himself to the contraband; (16) the quantity of the contraband; and (17) whether the accused was observed in a suspicious place under suspicious circumstances.  See Lassaint v. State, 79 S.W.3d 736, 740–41 (Tex. App.–Corpus Christi 2002, no pet.). 

Discussion

            In the instant case, Officer Godwin testified that Interstate 20 was a heavily traveled narcotics corridor from Dallas to the east coast.  He further testified that drug couriers often travel in pairs and use rental cars to avoid having their own vehicles subject to seizure if they are apprehended.  The record reflects that Appellant and Wilbert were stopped on Interstate 20 in a rental car that Appellant was driving and had rented the day before in Shreveport.  Officer Godwin found the bag of Ecstasy pills underneath the front passenger seat in close proximity to Appellant.  Although none was found, Officer Godwin smelled burned marijuana emanating from the car.  He testified that Appellant appeared extremely nervous because his hands were trembling and he did not make eye contact.  No luggage was found in the vehicle.  Further, Officer Godwin testified that it was suspicious that Appellant exited from the interstate even before he had initiated his overhead lights.  Appellant said they exited because Wilbert needed to use the restroom whereas Wilbert told the officer they were exiting to get cigarettes.  Likewise, they offered different stories for their purpose in making the trip to Dallas and back to Shreveport.  Appellant also made statements to Wilbert after they were arrested suggesting that they had discussed their plan of action should they be caught with the drugs.  Officer Godwin found 305 Ecstasy pills having a street value of approximately $6,000.00.

            Examining the evidence in the light most favorable to the jury’s verdict and applying the nonexclusive factors set forth above, we conclude that the jury could have reasonably determined beyond a reasonable doubt that Appellant exercised actual care, custody, or control of the Ecstasy, that he was conscious of his connection with it, and that he knowingly and intentionally possessed the Ecstasy pills located under the front passenger seat in the car in which he was traveling.  Therefore, we hold that the evidence was legally sufficient to support the jury’s verdict.

Factual Sufficiency

            Turning to Appellant’s contention that the evidence is not factually sufficient to support the jury’s verdict, we must first assume that the evidence is legally sufficient under the Jackson³ standard.  See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).  We then consider all of the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact.  See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).  Although we are authorized to disagree with the jury’s determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d at 133, our evaluation should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony.  Santellan, 939 S.W.2d at 164.  Where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive.  See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.– El Paso 1996, pet. ref’d).  Ultimately, we must 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 our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).⁴ 

            A verdict will be set aside “only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust.”  Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002); see   Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003).  A clearly wrong and manifestly unjust verdict occurs where the jury's finding “shocks the conscience,” or “clearly demonstrates bias.” Zuniga, 144 S.W.3d at 481.  As the court of criminal appeals explained in Zuniga, “There is only one question to be answered in a factual sufficiency review:  Considering all of the evidence in a neutral light, was a jury rationally justified in its finding of guilt beyond a reasonable doubt?”  See id. at 484. 

Discussion

            In addition to the evidence already discussed, the record includes some evidence that is favorable to Appellant.  The record shows that the Ecstasy pills were not in plain view, but were under the front passenger seat.  Appellant did not possess any other contraband, drug paraphernalia, weapons, or large amounts of cash at the time of his arrest.  He was not impaired due to the consumption of narcotics.  Appellant was cooperative and did not attempt to flee.  He admitted that he had prior drug related convictions, but claimed that he had turned his life around.

            We have reviewed the record in its entirety.  We iterate that our evaluation should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony, see Santellan, 939 S.W.2d at 164, and where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive.  See Van Zandt, 932 S.W.2d at 96.  We further note that there is no set formula for finding an affirmative link, but rather affirmative links are established by a consideration of a totality of the circumstances.  See Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.–Houston [14th Dist.] 2001, pet. ref’d). 

            Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury’s finding, has not revealed to us any evidence causing us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant’s conviction clearly wrong or manifestly unjust.  Therefore, we hold that the evidence is factually sufficient to support the jury’s verdict.  We overrule Appellant’s first issue.

Ineffective Assistance of Counsel

            In his second issue, Appellant argues that his former counsel provided ineffective assistance   in three instances.  Specifically, Appellant contends that his trial counsel failed to pursue a motion to suppress, “opened the door” to testimony regarding Appellant’s criminal history, and did not object to the trial court admitting the videotape of the stop or playing it before the jury.

            We note that other than presenting the ineffective assistance of counsel standard of review found in Strickland ⁵ and its progeny, Appellant cites no cases in support of his three subissues.  An appellant's brief “must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”  Tex. R. App.  P.  38.1(h).  Where an appellant cites the reviewing court to no specific constitutional provision, statutory authority, or case law to support his claims, the reviewing court generally does not address the merits of the issues presented. See, e.g., Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996); Vuong v. State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992).  Appellant also failed to properly brief the issues by providing analysis or  argument.  Therefore, he has waived his complaint.  Accordingly, we overrule Appellant’s second issue.

Disposition

            Having overruled both Appellant’s issues, we affirm the judgment of the trial court.

                                                                                                    SAM GRIFFITH   

                                                                                                               Justice

Opinion delivered July 31, 2006.

Panel consisted of Worthen, C.J. and Griffith, J.

(DO NOT PUBLISH)