NO. 07-04-0379-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL C DECEMBER 8, 2005

______________________________ MICHAEL ERWIN, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 114TH DISTRICT COURT OF SMITH COUNTY; NO. 114-1 933-03; H ONORABLE CYNTHIA STEVEN S KENT, JUDGE

_______________________________ Before QUINN, C.J., and REAVIS and HANCOCK, JJ.
MEMORAND UM OPINION
F ollowing a pl ea of not guilty, appellant Michael Erwin was convicted by a jury of possession of a controlled substance and sentenced to 60 years confinement and a $10,000 fine. Presenting three issues, appellant challe nges the (1) le gal and (2) factual1 The Statedid not favor us w ith a bri ef. 2 sufficiencyof the State’s evidence and (3 ) contends the trial court erred in allowing the State to present enhancement evidence at the punishment phase. 1 We affirm

. Appellant

managed a car wash and detail business. He was arrested and charged with posses sion of acontrolled substance after officers discovered 19.4 grams of crack cocaine hidden underneath the business.
Police officers obtained a nd executed a search warrant for appellant’s busi ness after surveillance revealed a number of vehicles arriving and leaving the busi ness in ashort period of time without being washed. Appella nt’s business con sisted of a lot with a padlocked buildi ng and several wash bays. Upon obtaining e ntry into the building, the officersobserved a plastic pill bottle containing white crumbs and powder on a glass shelf and white crumbs, Zig-Zag rolling papers, and a set of hand held scales on a wooden counter

. The officers also discovered a locked closet in the front room. The key to th e closetwas obtaine d from app ellant. Inside the closet, officers found a set of digital scales,
a portion of a glass crack pip e, a razor blade with a white residue, a plastic baggie containi ng a gree n leafy s ubstance , and a d octor’s b ill with appella nt’s nameon it.
The officers next sea rched theperimete r of the b uilding . O ut side, off icers discovered sever al e mpty plastic baggies in various locations and two plastic baggies hidden beneath a traffic cone that con tain ed several “off-white colored chunks.” While3

searching the perimeter, one of the officers observed a portion of the underpinning pulled awayfrom the side of the building. Suspicious, the officers searched the opening l eading beneath the house and observed two large plastic baggies containing off-white chunks. The substance was sent to a crime lab for testing and was det ermine d to be 1 9.4 grams of crack cocaine.
The officers also con ducted a canine search of app ellant’s Lincoln Navigator vehicle. The dog alerted officers to two locations in the vehicle; however, no narcotics were found. The dog’s handler

testified that the dog was capable of detecting the scent of narcotics in a vehicle for a period of time even after any narcotics had been removed. Appellant

and two other individuals were present during t he search

. Following the search, appellant was arrested for possession of the cocaine found beneath the building, and the other

two indi vidualswere rel eased. A t the timeof his a rrest, app ellant h ad more than $50 0 in cash in his p ockets an d walle t. Byhis first and se cond issues, appellant maintains the evidence was legally and factuallyinsufficient to prove beyond a reasonabl e dou bt that he possessed the cocaine found beneath his business. We disagree.
When both the legal and factual sufficiency of the evidence are challenged, we must first determine whethe r th e evidence is legally sufficient to support the verdict. Clewis v. State, 922 S.W.2 d 126, 13 3 (Tex.C r.App. 19 96). It is a fundam enta l rule of cr iminal law4

thatone cannot

be convicted of a crime unless it is shown beyond a reasonable d oubt that the defendant committed each element of the alleged offense. U .S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 2005); Tex. Pen. Code Ann. § 2.01 (Vernon 2 003).
In conducting a legal sufficie ncy review, we mus t determin e whethe r, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a rea sonable doubt. Jackson v. Virginia, 4 43 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979)

. Thi s standa rd is t he same in both d ir ect a nd ci rcumst anti al ev idenc e cases. Burden v. Stat e, 55 S.W.3d 608 , 612-1 3 (Te x.Cr.A pp. 20 01). We conduct this analys is by c onsidering all the evidence bef

or e the jury—whether proper or improper—so that we can make an assessmentfrom the jury's perspective. Miles v. State, 918 S.W.2d 511, 512 (Tex.Cr.App. 1996). We must uphold the jury's verdict unless it is i rrational or unsupported by more than
a mere modicum of evidence. Moreno v . State, 7 55 S.W.2d 866, 867(Tex.Cr. App. 198 8).
After conducti ng a leg al suffic iency rev iew unde r Jackson , we may proceed with a factual sufficie ncy review. Clewis , 922 S.W.2d at 133. Under this standard, we view all the evidence without the prism of “in the light most favorable to the p rosecution” and set aside the verdict only if it is so contrary to the overwhelming weig h t of the evidence as to be clearlywrong and unjust. Johnson v. State, 23 S.W.3d 1, 9 (Tex.C r.App. 20 00). We must determine after considering all the evidence in aneutral lig ht, whether the jury was5

rationallyjustifie d in find ing guil t beyond a reasona ble doub t. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Cr.App. 2004). In our review, we do not resolve any conflict of fact, weigh anyevidenc e, or evaluate the credibility of the witnesses, as thi s was the function of the trier of fa ct. See Adelman v. State, 828 S.W.2 d 418, 42 1 (Tex.C r.App. 19 92). First, in determining whether the evidence was sufficien t to s upport appellant’s conviction, we mustreview the elements the Statewas requ ired to p rove. Appellant was charged with possession of cocaine of four gram s or more but less than 200 gr ams. Tex. Health & Safety Code Ann. § 481.115(d) (Vernon 2003). To prove unlawful possession of
a controlled substance, the State was required to prove by direct or circumstantial evidence tha tthe accused (1) exercised actual care, custody, control, or management over th e substance and (2) knew the matter he possessed was contraband. Id. at § 481 .002(38); Poindexter

v. State, 15 3 S .W.3d 402, 405 (Tex.Cr.App. 2005). The evidence must establish the accused's connection with the controlled substan ce was more than just fortuitou s. Brown v. State, 911 S.W.2 d 744, 74 7 (Tex.C r.App. 19 95).
When t he accus ed is no t in exc lusive p ossessio n of the plac e where contraband is found or the contraband is not on the accused's person, additional independent facts and circumstances must affi rmatively link hi m to the contr

aband. Deshong v. State, 625 S.W.2d 327, 329 (Tex.Cr.App. 1981). An affirmative link is used to evaluate the sufficiency of the evidence and generates a reasonable inference that appellant knew of the contraband’s existence and exe rcised co ntrol ove r it. Brown , 911 S.W.2d at 747. Affirmative links may6

include, but are not limited to, (1) appellant's presencewhen the contraband was found; (2) whether the contraband was in plain view; (3) appe llant's proximi ty to and the acces sibilit y of the contraband; (4) whether appellant was under the influen ce of narcotics when arrested; (5) whether appellant possessed other contraband when arrested; (6) whether appellant

made incriminating statements when arrested; (7) whether appellant attempted to flee; (8) whether appellant made furtive gestures; (9) whether there was an odor of the contraband; (10) whether other co ntraband or drug paraphernalia was present; (11) whether appellant

owned or had the right to possess theplace where the drugs were found; (12) whether the place the drugs were found was enclosed; (13) the amount of contraband found; and (14) whether appellant possessed alarge am ount of ca sh. See Taylor v. State. 106 S.W.3d 827, 832 (Tex.App.–Dallas 2003, no pet.); Trejo v. State, 766 S.W.2d 381, 384 (Tex.App.–Austin 1989, no pet.). It is the lo gical fo rc e of these factors, individually or combined, which determines whether the State's e vi dence links appellant to the contraban d. Trejo , 766 S.W.2d at 385.
In the present case, the evidence provides several affirmative li nks that raise reasonable inferences of appellant’s knowledge and control of the cocaine found beneath his business. Appellant was present when the cocaine was found. He was the manager of the business and had the right to possess the area where the cocaine was found. Appellant

possessed the key to the locked c loset wh ere officers discovered what appeared to be marih uana and assorted drug par aphernal ia. Of

ficers found a pill bottle containing white crumbs and residue, rolling papers, p lastic b aggies containin g what ap peared to be7

cocaine, and othe r eviden ce of c ont raband throughout the property. A narcotics dog detected the scent of narcotics in two locations in ap pellant’s vehicle. The amount of cocaine found be neath the business was substantial and testimony indi cated itwould have
a signifi cant stree t value. At the ti me of hisarrest, ap pellant possesse d more than $500 in cash. Notwithstanding the affirmative links establishing his knowledge and possession of the substance, appel lant contends it could have been placed there b y someone else beca use there we re other p ersons wi th access to the pr

operty. H e also d irects usto testimony that no officer ob served hi m beneath th e hou se or in actual possession of the
c ocaine. However, considering the evidence, we find that a rational jury could hav e reasonablyreached the conclusion that appellant knew of and p os sessed the cocaine beneath his busi ness. An officer with the narcotics unit testified that it is “very common” for individuals to stash narcotics beneath a hou se so a s to av oid police detection. Furthermore, the jury, as trier of fact, may choose to believe all, some, or none of any witness's testimony. Sha rp v. Stat e, 707 S.W.2d 611, 614 (Tex.Cr.App. 1986). A jury's decision is not manifestly unjust merely because it resolved conflicting views of evidence in favor of the Sta te. Cain v. State, 958 S.W.2 d 404, 41 0 (Tex.C r.App. 19 97). Viewing the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could have found beyond a reasonable doubt that appel lant possessed the cocaine beneath the business. We further conclude that the evidence is not so weak8

thatthe jury’ s verdict

was cle arly wron g and un just, nor is the verdict so against the overwhelming weight of the evi dence asto be cl early wro ng and u njust. We fi nd the evidence is legally

and factually

sufficient to support appellant’s conviction. Appellant’s first and second issues are overruled. Byhis third point, appellant contends the trial cou rt erred in allowin g th e State to presentenhancement evidence at the sentencing phase. We disagree

. Appellant was charged with possession of a controlled substance under section 481.115(d) of the Texas Health & Safety Code, a second degree felony punishable by imprisonment for a term of notmore than 20 years or less than 2 years. Pr ior to thepunishm ent phase , the State provided appellant with a notice of intent to seek enhancement based on a prior conviction pursuantto Brooks v. State, 957 S.W.2d 30, 31-34 (Tex.Cr.App. 1997). The enhancement increased the punishment range up to a first degree felony punishable by imprisonment for
a term of no t more tha n 99 year s or less than 5 years. Appellant pleaded not true to the enhancementprovisi on; howe ver, the ju ry subseq uently fo und it to be true and sentenced him to 60 years co nfinemen t.
In his argument, appellant relies on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.2d 435 (2000), and the recently decided case of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed.2d 403 (2004), for the proposition that hisprior convictions should have been pled in an indict m ent and p roven beyond a rea sonabledoubt. This arg ument is without m erit. Apprendi stands for the proposition that “[o]ther than the9

fact of a prio r conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

maximu m must be s ubmitted to a jury, and proved beyond a reasonable doubt.” Apprendi , 530 U.S. at 490. Blakely broadened Apprendi’s holding to include any fact “‘which the law makes essentia l to the p unishmen t.’” Blakely , 124 S. C t. at 2537 ( quoting 1 J. Bish op, Crimi nal Procedure § 8 7, p. 55 ( 2d ed. 18 72)). Here, appellant’s maximum range of punishm ent was i ncreased on the b asis of a prior conviction, no t unad judicated facts. Ne ither Apprendi nor Blakely apply to enhancem ents on the basis of prior convictions, and app ellant fa ils to ci te any ca se law to the contra ry. Appe llant’s third iss ue is ove rruled. Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis Justice Do not pu blish.