Cindy Yaws Berry v. The State of Texas--Appeal from 66th District Court of Hill County

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State: Texas

Court: Texas Northern District Court

Docket No: 10-90-00221-CR

Case Date: 07/25/1991

Plaintiff: Cindy Yaws Berry

Defendant: The State of Texas--Appeal from 66th District Court of Hill County

Preview:Cindy Yaws Berry v. The State of Texas--Appeal from 66th District Court of Hill County
Berry v. State /**/ NO. 10-90-221-CR

IN THE COURT OF APPEALS FOR THE TENTH DISTRICT OF TEXAS AT WACO

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CINDY YAWS BERRY, Appellant v.

THE STATE OF TEXAS, Appellee

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From 66th Judicial District Court Hill County, Texas Trial Court # 29,413

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OPINION

******* Appellant, who was tried before the court, appeals her conviction for possession of marihuana and methamphetamine, claiming that the evidence was insufficient to affirmatively link her to the drugs. We will affirm. When considering a claim that the evidence was insufficient, the question is whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989). Furthermore, in a bench trial, the court is the judge of the credibility of the witnesses and the weight to be given their testimony. Wicker v. State, 667 S.W.2d 137, 141 (Tex. Crim. App. 1984), cert. denied, 469 U.S. 892, 105 S.Ct. 268, 83 L.Ed.2d 204 (1984). To establish unlawful possession of a controlled substance, the state must prove beyond a reasonable doubt that the defendant exercised care, custody, control, and management over the contraband, knowing that it was contraband. Dickey v. State, 693 S.W.2d 386, 389 (Tex. Crim. App. 1984). However, if the defendant is not in sole possession of the area where drugs are found, the state must prove an affirmative link between the contraband and the defendant to establish possession. Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981). Furthermore, the state does not have to prove that the defendant exclusively possessed the narcotics, as his joint possession is sufficient for a conviction. Martinez v. State, 539 S.W.2d 885, 886 (Tex. Crim. App. 1976). An affirmative link is established by facts and circumstances from which one may reasonably infer that the defendant knew the contraband existed and that he exercised care, custody, control, and management over it. Dickey, 693 S.W.2d at 389. Various facts and circumstances, although perhaps insufficient alone, can help to establish an affirmative link between the defendant and the contraband. Officer West noticed a pickup truck pulling a trailer being driven erratically. The "bed" of the truck was covered with a tarp. The driver of the pickup made several stops, which officers called "heat runs," apparently to see if he was being followed. Appellant, the only passenger in the truck, sat in the middle of the front seat next to the driver. While the pickup was travelling down the highway, West observed Appellant leaning out of the back window of the vehicle over its bed, but he could not tell whether she was reaching under or over the tarp. When Officer Stone, who was in a marked police car, attempted to stop the truck, the driver evaded the stop by exiting from the highway and proceeding into a neighborhood at a high rate of speed. The driver eventually stopped the pickup at the end of a driveway and fled the scene. Stone approached the vehicle with his gun drawn and ordered Appellant to exit the vehicle slowly. Appellant, whose right hand was on her open purse, took approximately two minutes to get out of the vehicle. Officers later found a loaded pistol and $1000 in her purse. An inventory search of the pickup led to the discovery of a marihuana cigarette in the ashtray, located in the center of the dashboard, and narcotics and paraphernalia in the bed of the truck. The following facts and circumstances were sufficient to affirmatively link Appellant to the narcotics. First, the drugs were found in the bed of a pickup truck registered to Appellant. See Villarreal v. State, 703 S.W.2d 301, 305 (Tex. App. Corpus Christi 1985, no pet.). A suitcase containing makeup and women's clothing, which the court could have concluded belonged to Appellant, also was found in the bed of the truck near the narcotics. Second, Appellant was seen leaning out the back window of the truck over its bed, thereby making the contraband readily accessible to her. See Deshong, 625 S.W.2d at 329. Third, $1000 were found in her purse. See Gilmore v. State, 788 S.W.2d 866, 868 (Tex. App. Houston [14th Dist.] 1990, no pet.). Fourth, she was in close proximity to the marihuana cigarette in the ashtray. See Lewis v. State, 664 S.W.2d 345, 349 (Tex. Crim. App. 1984); Lewis v. State, 502 S.W.2d 699, 701 (Tex. Crim. App. 1973). And, finally, her purse contained a loaded gun. See Wilson v. State, 495 S.W.2d 927, 929 (Tex. Crim. App. 1973). Point one is overruled. The judgment is affirmed.
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BOB L. THOMAS Chief Justice Before Chief Justice Thomas, Justice Cummings and Justice Vance Affirmed Opinion delivered and filed July 25, 1991 Do not publish

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