RALPH McAFEE, SR.

THE STATE OF TEXAS, Appellee.

CONCURRING OPINION

I agree with the majority that the judgment of the trial court should be affirmed. Because I apply a different analysis, I respectfully concur.

I. BACKGROUND

The offense is possession of cocaine, enhanced; the punishment, eighteen years imprisonment. The hypothetically correct jury charge authorizes a conviction on a principal or party theory. ⁽¹⁾ We may sustain on either theory. ⁽²⁾ The crux of Ralph McAfee's appellate argument is that mere presence is not enough to sustain his conviction. ⁽³⁾

II. APPLICABLE LAW

The standard of review is legal sufficiency of the evidence that turns on an application of the accomplice witness rule and the confidential informant rule. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005); Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995). This determination is made on a case-by-case basis and in light of the totality of the circumstances. See Humason v. State, 728 S.W. 2d 363, 367 n.12 (Tex. Crim. App. 1987); Porter v. State, 873 S.W.2d 729, 732 (Tex. App.-Dallas 1994, pet. ref'd) (affirmative links are established by a totality of the circumstances test). The jury, as trier of facts, is responsible for resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic to ultimate facts. See Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984). The jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Thus, the jury is free to accept or reject any or all of the evidence presented by either side. Id. When faced with conflicting evidence, we presume the trier of facts resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).

The requirement that accomplice testimony must be "corroborated by other evidence tending to connect the defendant with the offense committed" is identical to the requirement that covert witness testimony must be "corroborated by other evidence tending to connect the defendant with the offense committed." Tex. Code Crim. Proc. Ann. arts. 38.14 & 38.141 (Vernon 2005); Jefferson v. State, 99 S.W.3d 790, 793 (Tex. App.-Eastland 2003, pet. ref'd) (citing Hernandez v. State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997)). The ultimate consequence of our analysis is that the defendant must still be affirmatively linked with the contraband he allegedly possessed. See Brown, 911 S.W.2d at 748; Poindexter, 153 S.W.3d at 406.

Measured against the hypothetically correct jury charge as limited by the indictment, the essential elements of unlawful possession of a controlled substance are that McAfee had (1) actual care, control, custody and management over the contraband, and (2) knowledge that the substance was cocaine. See Tex. Health & Safety Code Ann. § 481.115(d) (Vernon 2003); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Poindexter, 153 S.W.3d at 405; Taylor v. State, 106 S.W.3d 827, 830 (Tex. App.-Dallas 2003, no pet.). Control over the contraband need not be exclusive and can be jointly exercised by more than one person. See McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985); Aldridge v. State, 482 S.W.2d 171, 174 (Tex. Crim. App. 1972); Taylor, 106 S.W.3d at 831. "[W]hen the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. See Poindexter, 153 S.W.3d at 406 (quoting Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981)). Whether evidence is direct or circumstantial, "it must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous. This is the whole of the so-called 'affirmative links' rule." Poindexter, 153 S.W.3d at 406 (quoting Brown, 911 S.W.2d at 747).

III. SUFFICIENCY ANALYSIS

McAfee does not raise Fourth Amendment challenges ⁽⁴⁾ or an entrapment defense. ⁽⁵⁾ Unobjected to at trial and unchallenged on appeal, testimony from three law enforcement officers demonstrates that McAfee and his vehicle were targets of a covert operation for possession of contraband. Law enforcement set up a procedure whereby a covert agent would meet with McAfee at a predetermined location for the sole purpose of, and ostensibly to transact, a cocaine buy. Law enforcement instructed the covert agent not to buy. Although unrecorded, the planned meeting between the covert agent and McAfee occurred while under law enforcement surveillance. The detective observed McAfee arrive, in what was commonly and already known to be his vehicle, at the planned location and communicate with the covert agent. As part of the covert operation, assisting officers were to stop McAfee's vehicle, on independent probable cause, upon McAfee's leaving the controlled meeting. ⁽⁶⁾ In furtherance of the operation in place, assisting officers were informed that McAfee and his vehicle were targets in a covert operation for possession of contraband. After the traffic stop, assisting officers searched McAfee's invitee and sole passenger, Franky Gonzalez, and found the contraband on Gonzalez's rolled-up pants leg. Officers recognized Gonzalez from his history of prior arrests and offenses, none involving a controlled substance.

Viewed in the proper light and through the prism of the accomplice- and confidential-informant rules, the evidence supports a jury verdict that McAfee and Gonzalez were acting together, each contributing some part toward the execution of their common purpose of knowing or intentional possession of the cocaine. ⁽⁷⁾ More than just fortuitous, the totality of the circumstances affirmatively linked McAfee with the contraband. ⁽⁸⁾

See Poindexter, 153 S.W.3d at 405-06; Porter, 873 S.W.2d at 732. Thus, non-accomplice and non-confidential-informant testimony provide the affirmative links sufficient to sustain the conviction on a party theory of culpability. Poindexter, 153 S.W.3d at 405-06. Consequently, a rational trier of facts could have found the essential elements of the offense beyond a reasonable doubt. Id. at 406. I conclude the evidence is legally sufficient. See Jackson, 443 U.S. at 319; Poindexter, 153 S.W.3d at 408; Brown, 911 S.W.2d at 748; Aldridge, 482 S.W.2d at 174.

IV. CONCLUSION

Guided by the Poindexter construct, I conclude that the affirmative links are sufficient-independent and exclusive of the accomplice and confidential informant testimony. I therefore concur with the judgment of this Court.

ERRLINDA CASTILLO

Justice

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

Concurring Opinion delivered and filed

on this the 26th October, 2006.

1. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. A hypothetically correct jury charge would not simply quote from the controlling statute. Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001). Its scope is limited by "the statutory elements of the offense . . . as modified by the charging instrument." Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) (Keller, P.J., concurring) (quoting Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000)).

2. McAfee has not challenged the sufficiency of the evidence on either a principal or party theory. See Tex. R. App. P. 38.1 (e), (h) (brief must state concisely all issues presented for review and must contain clear and concise argument for contentions made, with appropriate citations to authorities and record, respectively). Thus, if evidence of guilt is sufficient, the reviewing court will affirm the verdict based on either theory. See Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992) (en banc); Edwards v. State, 106 S.W.3d 833, 839 (Tex. App.-Dallas 2003, pet. ref'd) (if evidence of guilt is sufficient either as principal or as party, appellate court must affirm jury's verdict); see also Kitchens v. State, 823 S.W.2d 256, 259 (Tex. Crim. App. 1991). In determining whether a defendant participated in an offense as a party, the reviewing court may examine the events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and common design to commit the offense. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994). Intent may be inferred from circumstantial evidence such as the acts, words, and conduct of the accused. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995).

3. Mere presence at the scene of the crime is not alone sufficient to prove that a person is a party to the offense, although it is a circumstance tending to prove guilt which, combined with other facts, may suffice to show that the accused was a participant. Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987).

4. See U.S. Const. amend. IV; Terry v. Ohio, 392 U.S. 1, 19 (1968).

5. The issue of entrapment is not raised where the facts indicate that the criminal design originated only in the mind of the accused and law enforcement merely furnished the opportunity or aided the accused in the commission of the crime. Lopez v. State, 574 S.W.2d 563, 565 (Tex. Crim. App. 1978).

6. One of the assisting officers, patrolman Walter Jameson, testified as follows on cross-examination:

[Defense Counsel]: Okay. The purpose of the car being stopped that day was to effect the search, correct?

[Prosecutor]: I'm going to object. It's speculative.

The Court: He can answer if he knows.

[Defense Counsel]: I mean, you know?

[Officer Jameson]: I was told that we were looking at a drug deal that was going down.

On the prosecutor's re-direct examination, Officer Jameson further testified as follows:

[Prosecutor]: So, you couldn't stop them because you knew they had drugs on them? You had to h ave a reason to-or excuse me-Officer Hernandez did?

[Officer Jameson]: There had to be a valid reason for the stop, yes.

7. See Ransom, 920 S.W.2d at 302; Patrick, 906 S.W.2d at 487; Rabbani, 847 S.W.2d at 558.

8. The State need not prove that the defendant had sole possession of the contraband, only that there are affirmative links between the defendant and the drugs such that he, too, knew of the contraband and constructively possessed it. See Poindexter v. State, 153 S.W.3d 402, 412 (Tex. Crim. App. 2005). In sum, there is no evidence that would support a conclusion that McAfee was an innocent bystander to someone else's drug possession given the totality of the circumstances in this case. See id.