### TEXA S COU RT O F AP PEAL S, THIRD DISTRICT , AT AUST IN

NO. 03-00-00236-CR

David Alan D ane, Appellant

v. The State of Texas, Appellee

FROM THE

DISTRICT CO URT OF BURN ET COUNT

Y, 33RD JUDICIAL DIST RICT NO. 8830, HONORAB

LE ROB ERT BART ON, JUDGE PRESIDING

A j ury found appellant David Alan Dane guilty of the off ense of possess ion of a controlled substa

nce, cocaine , in an amou nt of less than one g

ram. See Tex. Health & Sa fety Code Ann. § 481. 115(b) (West Supp. 2001). The trial cour t assess ed appellant’s punishment at confinementin a state jail facility for one ye ar. Appe ll an t c om pl ai ns on ap pe al th at th e t ria l c ou rt
err ed in allowin

g the S tate to in

tro du ce in to ev id en ce

ex pert testimony from the ar resting officer concerning the officer’s opi nion that a

needle c aused

a mark on appe llant’s a

rm. Appellant

also complains that the e

vidence is lega lly and factually ins

ufficient to s

upport the guilty

verdict. We will affirm.2 FACTUAL AND P

ROCEDURAL BACKGROUND OnMa rch 10 , 19 99 , Of

fi ce rs S ch wa rtz and Y ork

r espond ed to a domestic disturbance callat the hom e of Jackie Montoya. When the officers arr ived, a young girl answered the door and told the

officers that “he’s hurting my mama. ” She th en pointe d to the room wh ere her mother was. The officers hear d a man and woman screaming in the room and the woman was yel ling “ help me. ” Officer Yor k knocked on the door. When appellant opened the door, the of fi ce rs observed bot

h appella nt and Ja ckie Montoy a in the room. Appe llant was sweating profusely, and was agitated and excited, as though he we re on a “ stimulant. ” The officers pulled appellant outof the room, handcuffed him, and laid him face-down on the hallway floor. Officer Schwar tz calmed Montoya and checked her for physical injur ies. There appear ed to be no evidence of physical abuse, although Officer Schwartz testified that she did observe what she believe d to be a “needle mark” on Montoya’s arm. While in the bedroom, Officer Schwartz obser ved on a dresser and in pla inview,
a clear plast ic bag contai ning a small amount of a white powdery substance, a metal spoon, a cotton ball, two syringes, and a pocket knife. The officer also found another spoon in the dresser and f ive unuse d syringes in Montoya’s closet wrapped in a woman’s shirt. Officer Schwartz, having already secured appellant, then arr ested Montoya for possession of a controlled substance. See Tex. Health

& Safety Co de An

n. § 481.115(b). Th e o ff ic ers testified that photographs of the evidenc e had be en taken ; however, by the time of trial, the photog

raphs had be en lost.1 Officer Schwartz testified that she logged appellant as the owner of

the p ocket knife

but did no t reme mb er w

hy sh e det erm

in ed he wa s t he ow ner. 3 Officer S ch

wa rt z test ified at trial and identified all of the objects found on the dresser at Montoya’ s house. She stated that the items seized belonged

to Montoya because they
we re found in Montoya’s r esidence. Officer S ch wa rt z later testified that she logged in all the items found at the residence as belonging to both appellant and Montoya, but that the computer print-out only

show ed Mo nt oy a a s t

he ow ner. 1 The officers did

not take fingerpr ints from any of the evide nce found a

t Montoya’s res idence t

hat was admitted a

t trial. Dur ing Of

fi ce r S ch wa rtz ’ste st im on y, and ov er appella

nt’s objection, she stated that when she arrested a

ppellant s he ob se rv ed

wh at sh e b el ie ve d t o b e “a f

res h n ee dl e t

rack” or a “f r esh puncture w ound from a needle” on his arm. Appellant objected on the basis that the witness had not be en properly qualified to identify a cause of the mark. The trial cour t overr uled the objection.
DISCUSSI ON

Appellant presents three issues on

appeal. We will fi rst address his complaint about the sufficiency of the evidence. In a legal s ufficiency

challen ge, the sta

ndard of review is well settled. The question is whether, after viewing all the evidenc e in the light most favorable to the verdict, any rational tr ier of fact co uld have fo und the essentia l elements of the off ense beyond
a reasonable

doubt. Jacks on v. Virgin ia , 443 U. S. 307, 319 (1 979); Staley v. State , 887 S. W. 2d4

885, 888 (Tex. Cri m. App. 199 4). Any incon siste ncies i n the evid

ence should be reso lved in favor of the verdict. More no v. State , 755 S
. W. 2d 866 , 867 (Tex. Crim. App. 1988)
. A factual sufficiency review be gins with the presumption that the evidence supporting the judgme

nt was le gally sufficient. Clewis v. State , 922 S. W. 2d 126, 134-35 (Tex. Crim. App. 1996). In a challenge to the factual sufficiency of the evidence, we view the evidence withoutemploying

the prism of “ in the light most favo rable to th e verdict. ” Id. at 129. A reviewing cou

rt must consi der all of the evidence impartially, comparing evid ence tha t tends t o prove the existence of a

dispute d fact or facts w

ithevidence that

tends to dispr ove the fact or f acts. Santellan v. State , 939 S. W. 2d 155, 164 (Tex. Cri m. App. 1997). The verdict or judgment is to be set aside only when the fact ual find ing is so against the great weightand preponder ance of the evidence so as to be

clearly wrong and un

just. Clewis , 922 S. W. 2d at 129; Stone v. State , 823 S
. W. 2d 375 , 381 (Tex. App.

— Aust in 199 2, pet. ref’d unti

mely f iled)
. Appellant asserts that the evidence presented by the State wasin suff ic ient to su pp ort his conviction for possession of cocaine. Spec ifically, appella nt urges that b ecaus e he was not in exclusive contr ol of the premises w here the contraban

d was lo cated, the Sta

te was required to

“ affirmatively li nk” him with the contraband, which, he asserts, the State failed to do.

To support a conviction for unlawful possession of a controlled substa

nce, the Sta

te is requir ed to present proof of two elements: (1) that the a ccuse d exercised

care, custody , control,
or management

over the contr aband; and (2) that the accused knew the substance being posses sed
was contraband. Marti

n v. State , 753 S. W. 2d

384, 387 (Tex. Cri m. App. 1988). If the accused2 Officer Schwartz testified that cotton ba

lls and s poons a re common paraphernalia used to aid in the ingestion of cocaine.
3 According to Officer Sch wartz’s test imony , appe llant ’s behavior , his pr ofuse sweating and agitated state, is consistent with recent cocaine consumption. 5 does not exclusively control the premises where the contr aband is located, one cannot conclude that the accused had

the requisite knowledge and control over the substance. Additional facts and circumstances that affirmatively link t he accused to the contraband. Id
. Additiona l factors to consider are

wh et her the substanc e was in plain view, the proximity of t he defendant to the substanceand its a

ccess ibility or visibil ity to the de fendant, the plain visibilit y of parapher nalia, and any physical symptoms exhibited by the defendant indicating r ecent use of the substance. Whitwo rth v. State , 808 S. W. 2d 566, 569 (Tex. App.

— Austin 1991, pet. ref’d)
. Observations of other factor s indicating recent dru g use such as “ track mark s” may be considered as wel l. Davila
v. State , 930 S
. W. 2d 641 , 645 (Tex. App.

— El Paso 1 996, pet. ref’d). Viewed in the light most favorable to the verdict, the testimony at trial established that the cocaine was in “ plain view, ” appellant was within an arm’s reach of the drugs and the drugs we re re ad ily acc es si

bl e o n t he dre ss er, other drug paraphernalia2 was ea sily ac cess ible and in“ plain view, ” and appellant’s physical condition indicated recent consumption of cocaine. 3 See Kyte v. State , 944 S. W. 2d 29, 31 (Tex. Ap p.— Te xa rk ana 1997, no pet. ) (listing factors to be consider ed when eval uatin g affirma tive l inks ). In add

ition , as a

rgued by the S tate in its brief, appellant exercised control over the premises in which the cocaine was found by opening the door to the bedroom in r esponse to a knock by police. The State also points out that the appellant had6

been in the house long enough for (1) a child to recognize an emergency situation, (2) call 911, and (3) the o fficers to respond a nd gain ac cess

to the bed

room. Appellant points out that the State did not introduce any testimony that appellant at any time ever touched or handled, in any way, any of the items seized by Officer Schwar t z. F urther more, appellant argues, there was no circumstantial evidence to show that hehad handled the se iz ed ite ms . He argues that the home in wh ich he wa s arrested was

not his; the officers did notconduct

a fingerpr int analysis on any of the items seized; no i llegal substances we re found on his person; he did not

try to flee or resist arr est; and finally, the tes timony of Offic er Schwartz concerning the mark on appell ant’s arm was not enough to create an affir mative link tying appellant to this particular cocaine.

While we find appellant’s argument against the evidence compelling, we do not believe that the affirmative links are so deficient as to render them in sufficien t. Having examined the evidenc e in the lig

ht most favorable to the ve rdict, we conc lude that

a reasonab le trier of fact could have found the esse ntial ele ments of p osse ssion o f cocaine beyond a reasonable

doubt. In addition, after revie

wing a ll of the evidence, w e believe the verdict was not so contrary to the overwhelming weight of the evidence as to be clearly wr ong and manifestly unjust. Therefor e,
we over rul e appellant’ s second and thir d issues.

We now turn to appellant’s fir st issue, whether the tr ial court er red in allowing the testimony of

Officer Schwartz concer ning the cause of the mark on appellant’s arm. Appellant argues that the trial cour t violated Robinson , Kelly , and Texas Rule of Evide

nce 702 w

hen it7

allowed Officer Schw artz to give her opinion concerning the

mark on appella

nt’s arm. See Tex. R. Evid. 702; E. I. DuPont de Nemours & Co. v. Robinson , 923 S
. W. 2d 549(Tex. 1995) ; Kelly
v. State , 824 S. W. 2d

568 (Tex. Crim. App. 1992)
. Appellant contends that Officer Schwartz was notprope rly qualified t

o determine the

origin of a mark on appe llant’s a rm. See Daubert v. Merr ill Dow Pharm. , Inc. , 509 U. S
. 579 (1 993); Robinson , 923 S. W. 2d at 558; Kelly , 824 S. W. 2d at 572 . The qualific ation of a witness as an expe

rt is within the tr ial court’s discretion. Broders v. Heise , 924 S. W. 2d 148, 151 (Tex. 1996) ; Robinson , 923 S. W. 2d at 558. We do not di st urbthe trial cour t’s discretion absent clear abuse. “ The test for abuse of discretion is whether the trial cour t acted

without refer ence to any guiding rules or pri nciples. ” Robinson , 923 S. W. 2d at 55 8. F urt

her, th e p art

y o ff eri ng th e exp ert ’s t estimony bears the burden to pr ove that the witness is qualified under Texas Rule of Evidence 702. Broders , 924 S. W. 2d at 151.

Inaddition to

arguing that Offic er Schwartz was not qualified t

o give her opinion, appellant also states that “ under a Robinson analysis, witness Schwartz’ opinion wa s not relevan t. ” However, the State argues that Texas courts have consistently held that “ a qualified officer may state that he observed punctures in the defendant’s arm, which, in his opinion would come from injecting needles

in his arm. ” G omez v. State , 470 S. W. 2d 871, 873 (Tex. Cri m. App. 1971) (citing Fe

ather v

. State , 333 S. W
. 2d 851, 853 (Tex. Crim. App. 1960) , overruled on other grounds , 687 S. W. 2d 748 (Tex. Cri m. App. 1985) ). In Gomez , the officer testified that defen dant ’s left arm bor e infected needle tracks, which indicated that there had been numerous needle injections at that

locality in defendant’s arm. The officer further testified that such ne edle8

marks are caused when her oin is injec ted into the arm with a syri nge. Gomez , 470 S. W. 2d at 873. The testifying officer in Gomez had been a

police officer for twelve years, had been on the
narco tics squad for thr ee years, and had obser ved the ar ms of hundr eds of her oin addict s. Id
.

In Valdez v. State , 481 S. W. 2d 904 (Tex. Cri m. Ap p . 1972), the State showed: (1) the narco tics found in the kitchen were in open view; (2) the appellant left the kitchen t o
answerthe knock on the front door ; (3) he was a frequent visitor to the reside nce; and (4) appellant had nee dle marks on hi s arm. Id
. at 906. In addition to concluding that this evidence sufficien tlylinked appellant to the drugs, the court in Valdez also held that the fact that a person accused of the posses sion of an injectable na rcotic has ne edle marks on his arm is releva

nt in proving his guil

t. Id
. at 906 n. 1. Officer Schwartz testified that she had eight years of law enfor cement experience, she worked as an emergency medical technician (“ EMT” ) and was familiar with drug over doses and people who had been injected. While working as an EMT, Officer Schwartz also testified that she had the opportunity to “ check different needles and the bluntness of each different type of needle. ” We conclude that Officer Schwartz was qualified to give her opinion concerning the mark on appellant’s arm
. Moreover , Texas case law permits a qual ified officer to give an opinion about needle marks on a suspect’s arm if it is relevant to proving gui lt. B ecause the physical conditio n of the accu sed, which in th is case indicates r e cent consumption of the discovered contraband, is a fac tor in creating an affirma tiv e link between the appellant and the9

dru gs, we believe Officer Schwartz’s testimony was relevant. Therefor e, we ov errule app ella nt’s first issue.
CONCLU SION

Having conclude d that the evidenc e is both lega

lly and factually

sufficien t to uphold the verdict and having determined that Officer Schwartz was qualified to give her opinion about the cause of the mark on app ellant’s arm, and that s

uch opinion was releva

nt, we overrule appellant’s three issues and affirm the conviction.

David Pur year, Justice B efore Justices Kidd, B
. A. Smith and Puryear Affirm ed F iled: March 8, 2001 Do N ot Pu blish