      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-03-00727-CR



                               Anthony Wayne Brown, Appellant

                                                 v.

                                  The State of Texas, Appellee




     FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
        NO. CR20666, HONORABLE EDWARD P. MAGRE, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found appellant Anthony Wayne Brown guilty of possession of a controlled

substance in an amount greater than four grams but less than two hundred grams with intent to

deliver and sentenced him to fifty years’ imprisonment. See Tex. Health & Safety Code Ann.

§ 481.112 (West 2003). Brown challenges the trial court’s failure to suppress his inculpatory written

statement, the factual sufficiency of the evidence supporting his conviction, and the trial court’s

failure to submit the lesser included offense of possession to the jury. We affirm the conviction.


                     FACTUAL AND PROCEDURAL BACKGROUND

               On September 19, 2002, Brown was returning home to Killeen from a trip to Houston

in a borrowed car with his friend Jimmy Williams and his sixteen-year-old female cousin A.B.

Williams was driving, Brown was in the front passenger seat, and A.B. was in the back seat.
Department of Public Safety Trooper Michael Nix stopped the car on the highway because it was

missing a front license plate. Nix approached the passenger side of the car and tapped on the

window to get Brown’s attention. The trooper then identified himself and explained that he had

stopped the car because of the absence of the front license plate. Nix soon discovered that Williams

did not have a driver’s license and that the vehicle registration had expired. As Nix asked Williams

to step out of the car, he noticed the odor of marijuana and a green leafy substance on the console

between the front seats.

               While Nix and Williams were speaking, Nix observed Brown moving around inside

the car. Later, Nix saw Brown moving his arms around and sinking down into his seat. Once

another law enforcement officer arrived, Nix removed the two passengers and searched the car. He

found an envelope with marijuana in it on the left-hand side of the front passenger seat and three

cookies of crack cocaine inside a compartment in the console. Department of Public Safety chemist

Scott Vajodos subsequently weighed and tested the cookies and verified that they consisted of 57.14

grams of crack cocaine. A small scale and rolling papers were also found in A.B.’s purse. The entire

traffic stop and search was recorded on a videotape that was introduced into evidence and viewed

by the jury.

               Nix placed the three occupants of the car under arrest and read each their Miranda

rights. None provided any explanation for the presence of the cocaine in the car, and all three were

taken to jail. The following day, Brown appeared before a magistrate and was advised of the charges

against him and his right to counsel. On September 25, 2002, the trial court appointed counsel for

Brown.




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                 Six months later Brown contacted jailer Carolyn Harris and asked her to notarize his

signature on a document.1 The handwritten document stated:


        To whom it may concern this is [a] statement concerning any cocaine that was found
        inside the car that myself & Jimmy Williams & [A.B.] was driving did indeed belong
        to me Anthony Brown & no one else.


Harris read the statement and asked Brown if this was true and if signing the statement was really

what he wanted to do. He replied that the drugs were his and that “this is what I want to do.” He

then signed the document, and Harris notarized his signature on March 14, 2003.

                 Trial commenced on November 12, and the jury convicted Brown the following day.

The State then presented evidence of Brown’s prior criminal history2 and the jury reached a verdict

recommending a sentence of fifty years’ imprisonment. Brown presented no witnesses at either

phase of his trial.3


                                             DISCUSSION

                 In his first issue, Brown challenges the trial court’s failure to suppress his inculpatory

statement because it was the result of an illegal arrest. Brown does not challenge the legality of the




        1
            Brown remained in the Milam County Jail for over a year pending trial.
        2
        The jury was aware of Brown’s prior criminal history before reaching a guilty verdict.
Brown’s attorney inexplicably discussed his client’s criminal history in opening and closing
argument at the guilt or innocence phase of the trial.
        3
          The entire defense case at the guilt or innocence portion of the trial consisted of replaying
approximately two minutes of the videotape of the stop. It is not clear from the record what portion
of the tape was played and Brown does not identify that portion on appeal.

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search of the vehicle; rather he contends that, because no one in the car gave Trooper Nix any

information regarding the drugs found during the search, Nix lacked the probable cause required to

arrest him.

               In reviewing a ruling on a motion to suppress, we give almost total deference to the

trial court’s determination of historical facts, and review de novo the court’s application of search

and seizure law that does not turn upon credibility and demeanor. Balentine v. State, 71 S.W.3d 763,

768 (Tex. Crim. App. 2002); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002);

Hayes v. State, 132 S.W.3d 147, 151 (Tex. App.—Austin 2004, no pet.). When the trial court does

not make explicit findings of fact, we review the evidence in a light most favorable to the trial

court’s ruling and assume that the trial court made implicit findings of fact supported in the record.

Balentine, 71 S.W.3d at 768. We must affirm the trial court’s ruling on a motion to suppress if it

can be upheld on any valid theory of law applicable to the case—even if the trial court did not base

its decision on that theory. State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002); Romero

v. State, 800 S.W.2d 539, 543-544 (Tex. Crim. App. 1990).

               A claim almost identical to Brown’s was recently considered and rejected by the

United States Supreme Court in Maryland v. Pringle. See 124 S.Ct. 795 (2003). In Pringle, Joseph

Pringle and two other men traveling in a car were stopped by police and consented to a search of the

car. Pringle, 124 S.Ct. at 798. When the police found cocaine between the armrest and the back seat

of the car, they informed the men that if no one admitted ownership of the drugs, all three would be

arrested. Id. The men did not provide any information regarding the drugs and all three were

arrested. Id. Later that morning Pringle waived his Miranda rights and admitted to ownership of



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the cocaine, and the police subsequently released the other two men. Id. Pringle moved to suppress

his statement as the fruit of an illegal arrest. Id. at 799.

                The Court held there was probable cause to arrest Pringle even though the police had

no information specifically showing that Pringle himself had knowledge, dominion, or control of the

drugs:


         We think it an entirely reasonable inference from these facts that any or all of the
         occupants had knowledge of, and exercised dominion and control over the cocaine.
         Thus a reasonable officer could conclude that there was probable cause to believe
         Pringle committed the crime of possession of cocaine, either solely or jointly.


Id. at 800-01. Similarly, when Trooper Nix discovered the cocaine in the console of the car Brown

was traveling in, and none of the occupants provided any information regarding the drugs, there was

probable cause to believe that Brown possessed the cocaine, either solely or jointly. See id. at 801

(without information singling out the guilty person, it is reasonable to infer a common enterprise

among the occupants of a car). Because we find that Nix had probable cause to arrest Brown, his

statement is not the fruit of an illegal arrest. We overrule his first issue.

                In his second issue, Brown contends that his statement should have been suppressed

on the grounds that it was not voluntarily given. In his brief Brown claims that Trooper Nix told him

that all three passengers would be arrested unless one confessed. Brown claims that this warning

improperly compelled him to confess ownership of the cocaine so that his young cousin and

Williams would be released from jail. We have closely reviewed the record, including the videotape

of the traffic stop, and find nothing to indicate that any officer ever said that all three occupants of




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the car would be arrested unless one confessed. In fact, Brown’s own testimony at a hearing on his

motion to suppress the statement reflects that he was not coerced by the police:


       Why did you give the statement?

       A. Because I was under the assumption that it would go better if somebody
          cop[pe]d to the—what was filed.

       Q. It would go better for who?

       A. For everybody concerned, because they still had everybody locked up.


Brown testified only that he assumed things would go better if he made a statement; he did not

discuss any communication between Nix or any other law enforcement officer that may have created

that impression.

               Brown’s arrest was supported by probable cause. See Pringle, 124 S. Ct. at 801. His

inculpatory statement was made six months after his arrest and was not the product of a custodial

interrogation. He had previously been read his Miranda rights, appeared before a magistrate, and

consulted with appointed counsel. Because the record does not support Brown’s contention that his

confession was the result of any coercive statement made by the police at the time of his arrest, we

overrule his second issue. See Colorado v. Connolly, 479 U.S. 157, 167 (1986) (coercive police

activity necessary predicate to finding confession involuntary under Due Process Clause); Hunter

v. State, No. 14-03-0534-CR, 2004 Tex. App. LEXIS 8329, at *12 (Tex. App.—Houston [14th Dist.]

September 16, 2004, no pet. h.) (“Where no threat is made by the police, an accused’s belief that his

cooperation will benefit a relative will not render his subsequent confession inadmissable.”).




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               In his third and fourth issues, Brown challenges the factual sufficiency of the evidence

supporting the jury’s verdict (1) that he possessed a controlled substance, and (2) that he possessed

it with the intent to deliver. When conducting a factual sufficiency review, we consider all the

evidence including the testimony of defense witnesses and the existence of alternative hypotheses.

See Orona v. State, 836 S.W.2d 319, 321 (Tex. App.—Austin 1992, no pet.). A factual sufficiency

review asks whether a neutral review of all the evidence, both for and against the finding of guilt,

demonstrates that the proof of guilt is so obviously weak or the contrary proof is so strong as to

undermine confidence in the jury’s determination of guilt beyond a reasonable doubt. Zuniga v.

State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20 (Tex. Crim. App. Apr. 21, 2004); see

Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). As in a legal sufficiency review, we must

defer to the jury’s determination of what weight to give contradictory testimonial evidence because

resolution often turns on an evaluation of credibility and demeanor, an evaluation better suited for

jurors who were in attendance when the testimony was delivered. Johnson, 23 S.W.3d at 8. It is the

jury’s prerogative to reject all or part of the evidence and draw reasonable inferences from the

evidence presented. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996).

               To prove possession of a controlled substance, the State must show that (1) the

defendant exercised care, custody, control, or management over the substance, and (2) he knew the

substance possessed was contraband.        See Martinets v. State, 884 S.W.2d 185, 187 (Tex.

App.—Austin 1994, no pet.). The evidence need not exclude every reasonable hypothesis other than

the defendant’s guilt, but it must show facts and circumstances that demonstrate the defendant’s

knowledge and control of the contraband. See Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim.



                                                  7
App. 1995). When a defendant is not in exclusive control of contraband, the State must present facts

and circumstances that affirmatively link the accused to the contraband in such a manner that it can

be concluded that he had knowledge of the contraband, as well as control over it. Hall v. State, 86

S.W.3d 235, 240 (Tex. App.—Austin 2002, pet. ref’d). While affirmative links may be proven by

circumstantial evidence, the proof must generate more than a strong suspicion or even a probability.

Id.; Grant v. State, 989 S.W.2d 428, 433 (Tex. App.—Houston [14th Dist.] 1999, no pet.).

               At trial, Brown presented an alternative theory that the cocaine actually belonged to

his cousin A.B. He pointed to the fact that she had a scale and rolling papers in her purse and that

her credibility was impeached through cross examination. However, the jury heard A.B.’s testimony

and we defer to their evaluation of the witnesses’s credibility. See Johnson, 23 S.W.3d at 8.

               Furthermore, Brown was traveling in a car where 57.14 grams of cocaine was found

hidden in a console between the seats. There was evidence that Brown was responsible for the car

and had borrowed it from a friend. There was marijuana residue on the console next to Brown, and

an envelope containing marijuana was found tucked beside the seat where he was sitting. Most

importantly, Brown stated orally and in writing that the cocaine was his. Based on our review of all

of the evidence, we cannot conclude that the proof of guilt was so obviously weak or the contrary

proof so strong as to undermine confidence in the jury’s determination that Brown possessed the

cocaine. See Zuniga, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20.

               Brown next contends that the evidence is factually insufficient to support the jury’s

determination that he possessed the cocaine with the intent to deliver. At trial, Brown cited the

absence of other indications that he intended to sell the cocaine and argued that there was an equal



                                                 8
probability that he purchased such a large quantity in order to stock up for his own personal use. In

a possession with intent to deliver case, the “intent to deliver” element may be proved by

circumstantial evidence, such as the quantity of drugs possessed, the manner of packaging, and the

presence of the accused in a drug house. Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.—Dallas

2003, no pet.); Avila v. State, 15 S.W.3d 568, 573 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

The determination of the intent to deliver is an issue of fact for the jury, and it may be inferred from

the acts, words, or conduct of the accused. Taylor, 106 S.W.3d at 831; Avila, 15 S.W.3d at 573. The

control over the contraband need not be exclusive, but can be jointly exercised by more than one

person. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985); Taylor, 106 S.W.3d at

831.

               Here, Brown was transporting three cookies of freshly manufactured cocaine from

Houston to Killeen. Veteran narcotics officer Ted Rechloff testified that each cookie would produce

approximately 120 rocks of crack cocaine. He estimated that the largest quantity he had ever seen

a cocaine user buy was six to eight rocks and that he had never seen a crack cocaine user keep a large

supply of drugs on hand only for personal use. He also testified that if a person is found in

possession of over fifty grams of cocaine and they are not also in possession of any drug use

paraphanelia, he would believe that the cocaine was being purchased and transported for sale. Based

on this record, we cannot conclude the evidence was factually insufficient to support the jury’s

finding that Brown intended to deliver a controlled substance. See Zuniga, No. 539-02, 2004 Tex.

Crim. App. LEXIS 668, at *20.




                                                   9
Lesser Included Offense

               In his final issue, Brown contends that he was entitled to an instruction on the lesser

included offense of possession of a controlled substance. We apply a two pronged test to determine

if such an instruction must be given: (1) the lesser included offense must be included within the

proof necessary to establish the offense charged, and (2) some evidence must exist in the record that

if the defendant is guilty, he is guilty only of the lesser offense. Hampton v. State, 109 S.W.3d 437,

440 (Tex. Crim. App. 2003); Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993).

Possession is a lesser included offense of possession with intent to deliver, and therefore the first

prong of the test is satisfied. See Upchurch v. State, 23 S.W.3d 536, 538 (Tex. App.—Houston [1st

Dist.] 2000, pet. ref’d); Greer v. State, 783 S.W.2d 222, 224 (Tex. App.—Dallas 1989, no pet.). The

next question is whether there is some evidence in the record that Brown was only guilty of

possession. See Hampton, 109 S.W.3d at 440. Anything more than a scintilla of evidence will

entitle a defendant to an instruction. Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim. App. 2001).

However, it is not enough that the jury may disbelieve crucial evidence pertaining to the greater

offense; there must be some evidence directly germane to a lesser included offense for the fact finder

to consider before an instruction on a lesser included offense is warranted. Bignal v. State, 887

S.W.2d 21, 24 (Tex. Crim. App. 1994). If a defendant presents no evidence and there is no other

evidence showing that he is guilty only of the lesser offense, a jury instruction is not required. Id.

               Brown contends that because he only admitted to possession in his sworn statement,

the jury was entitled to convict him of possession alone, and thus, he was entitled to a lesser included

offense instruction. In his statement, Brown simply claims that the drugs belonged to him. He does



                                                  10
not comment on whether he intended to sell them or keep them for personal use. Although Brown

argued at trial that he could have bought such a large quantity of cocaine to stock up for personal use,

his written and oral statements provide no evidence to support this contention. We can find no other

evidence in the record supporting such a theory. Just because the jury may have disbelieved the

State’s circumstantial evidence of intent to deliver does not alone entitle Brown to an instruction on

the lesser included offense of possession. See id. at 24. We therefore overrule his fifth and final

issue.


                                          CONCLUSION

               Having overruled all of Brown’s issues, we affirm the judgment of conviction.




                                               Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Pemberton

Affirmed

Filed: November 12, 2004

Do Not Publish




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