No. 05-09-00964-CR
Opinion Filed July 16, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 3 Dallas County, Texas, Trial Court Cause No. F08-46825-J.
Before Justices RICHTER, LANG-MIERS, and MYERS.
Opinion By Justice RICHTER.
A jury convicted appellant of possession with intent to deliver gamma hydroxybutyric acid ("GHB") in an amount of 400 grams or more. The jury sentenced appellant to forty years imprisonment and assessed a fine in the amount of $250,000. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We overrule both of appellant's issues and affirm the trial court's judgment.
EVIDENCE PRESENTED
On July 28, 2008, Detective Hardman, of the Rowlett police department, received information that appellant, and a woman, Tracey Wawroski ("TW"), were at a Red Roof Inn manufacturing GHB. Detective Hardman had received this information earlier that morning from Jennifer Wawroski ("JW"), the daughter of TW. Detective Hardman had been questioning JW about a possible theft. JW was just leaving a room at the Anatole Hotel when she was confronted by Detective Hardman and two other uniformed constables. Detective Hardman asked JW if she had any information about any illegal activity. JW responded that appellant was manufacturing GHB at the Red Roof Inn and indicated that appellant was the boyfriend of her mother, TW. Detective Hardman continued to question JW for another twenty to twenty-five minutes in the hotel room, where another unidentified woman was also being questioned. The two women accompanied Detective Hardman to the Red Roof Inn. Detective Hardman was met at the Red Roof Inn by Special Agent Cabano of the U.S. Drug Enforcement Agency, and the two constables who had been with Detective Hardman at the Anatole Hotel (the "officers"). The unidentified woman from the Anatole agreed to knock on the hotel room door at the Red Roof Inn. The door was answered by TW. The officers identified themselves as narcotics investigators and Agent Cabano asked if they could come inside. TW said they could, and also gave written consent for the officers to search the hotel room. As soon as the door to the hotel room was opened, Detective Hardman noticed a strong chemical odor. He associated the smell with the manufacture of GHB. Upon entering the room, Detective Hardman found appellant asleep on one of the two beds. He also saw two gallon jugs of a brown liquid on the floor between the bed where appellant was sleeping and a night stand. Detective Hardman recognized the liquid in the jugs as GHB. The jugs were not covered, but were in plain view. Next to the bed, on the night stand, was a clear plastic bag containing methamphetamine, with a straw in the bag. Other items related to the manufacture of GHB were found near the bathroom of the hotel room, also in plain view. On a vanity outside of the bathroom, was a Britta water pitcher containing GHB. Also on the vanity were toiletries, including two tooth brushes. In the vanity under the sink, the officers found more items used to manufacture GHB. There was also an open duffel bag containing a breathing apparatus, aluminum one-gallon cans, and goggles. All items are used to manufacture GHB. In an open drawer in the night stand, the officers found $1,600, bundled together in increments of one hundred dollars. Detective Hardman testified that it is common for drug dealers to bundle the money in this manner to make it easier to count and collect. Agent Cabano took photographs of the scene, including the gallons of GHB, the apparatus used to manufacture the GHB, the vanity and night stand. He testified that when he entered the hotel room it was in "disarray," with men's and women's clothing "strung about." Agent Cabano said that it looked like a man and a woman had been living there. He testified that he did not take pictures of the clothing or personal items because those items were not tied to the criminal offense of possession with intent to deliver a controlled substance. The evidence established that the hotel room was rented to TW from July 25-29, 2008. Detective Hardman and Agent Cabano both testified that it was common for drug dealers or drug manufacturers to use motel rooms registered to another person's name to distance themselves from the crime. When appellant was booked into jail the officers learned that he had congestive heart failure. Detective Hardman and Agent Cabano testified that several bottles of appellant's prescription heart medicine were found, after the initial search, in an upper shelf in the closet, above eye level. When the officers found the medicine, TW explained to them that it was for appellant's heart condition, and offered to take it to him at the jail. The State's evidence also included the testimony of Sergeant Ragsdale, a narcotics expert with the Dallas Police Department. Sergeant Ragsdale testified that the 8.35kg of GHB found in the hotel room was significantly beyond a quantity maintained for personal use, and it amounted to approximately 1,670 personal dosage units. Sergeant Ragsdale calculated the street value of the amount found to be approximately $8,350. He opined that the amount of GHB found was evidence of possession with an intent to deliver. Appellant testified on his own behalf and said that the drugs and money found in the hotel room did not belong to him. Appellant denied making GHB or selling it. Instead, he maintained that he was taken to the hotel to give TW a tattoo. Appellant testified that he knew JW, through an ex-girlfriend. Appellant had accused JW of stealing his pre-paid credit card from him a week earlier when they were both at his ex-girlfriend's apartment. Appellant testified that JW had contacted him at approximately 11:00 p.m. on July 27 to do some tattoo work. She arranged to have him picked up and taken to the hotel. Appellant arrived at the hotel at approximately 2:00 a.m. on July 28, 2008. Appellant said there were several people in the hotel room and they sat around and smoked methamphetamine. At approximately 6:00 a.m., everyone except himself and TW left the hotel room, but he remained to continue working on the tattoo. Appellant testified that he had sexual relations with TW, then fell asleep around 8:30 a.m., and was awakened by police officers around 12:15 p.m. Appellant testified that he did not notice the GHB, or any of the equipment used to make the GHB, or the money in the drawer, while he was in room. He did notice a strong chemical odor, but he thought it was from the women polishing their nails, although he admitted that he never saw either woman polish their nails. Appellant also testified that he took his prescription medicines for congestive heart failure with him everywhere he went, and that the medicines were in his white back pack, along with his tattoo equipment. He did not know how his medicines came to be located in another part of the room. LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE
Applicable Law
In a legal sufficiency challenge, we review the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the defendant guilty of the offense charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009). The appellate court is not permitted to usurp the role of the fact finder and weigh evidence or judge credibility. Id. Evidence that is legally sufficient to support a verdict may still be factually insufficient. Laster, 275 S.W.3d at 518. Evidence is factually insufficient when the evidence supporting the verdict is either so weak that the verdict seems clearly wrong and manifestly unjust, or it is outweighed by the great weight and preponderance of contrary evidence. Id. We must defer to the fact-finder's determination concerning the weight given to contradictory testimony, unless the record clearly reveals a different result is appropriate. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). The State was required to prove beyond a reasonable doubt that appellant knowingly possessed, with intent to deliver, GHB, in an amount of 400 grams or more. Tex. Health Safety Code Ann. §§ 481.102(9), 481.112(a) (Vernon 2010). If the accused did not have exclusive possession and control of the illegal substance, then the state must present evidence, direct or circumstantial, linking the accused to the substance. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). Analysis
Appellant argues that the evidence is legally and factually insufficient to prove that he possessed GHB or that he intended to deliver it. Specifically, appellant contends that there is insufficient evidence that he lived in, or had a right to possess the hotel room where the drugs were found, or that there is any evidence he sold the drugs to anyone. In order to prove the element of possession, the State was required to prove appellant: (1) exercised care, custody, control, or management over the controlled substance; and (2) had knowledge the substance he possessed was a controlled substance. Evans, 202 S.W.3d at 161. Exclusive possession of the illegal substance is not required; evidence that the accused jointly possessed the drugs with another is sufficient. Martin v. State, 753 S.W.2d 384, 386 (Tex. Crim. App. 1988). However, when the accused is not in exclusive possession of the controlled substance, the evidence must establish a link between the appellant and the controlled substance. Evans, 202 S.W.3d at 161. Mere presence where the controlled substance was found is insufficient, alone, to establish actual care, custody, or control of the controlled substance. Id. The Texas Court of Criminal Appeals has enumerated a non-exclusive list of "links" to establish the defendant knowingly possessed a controlled substance. Those links are: (1) the defendant's presence when a search was conducted; (2) whether the contraband was in plain view; (3) the defendant's proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt. Evans, 202 S.W.3d at 162 n. 12. The number of factors linking appellant to the contraband is not dispositive. Instead it is the "logical force of all of the evidence, both direct and circumstantial" that establishes possession of the contraband. Id. at 162. The evidence in this case established numerous links between appellant and the drugs. First, appellant was found asleep in the hotel room, in a bed next to the GHB. The GHB and other items used to manufacture GHB were in plain view in the hotel room. Detective Hardman and Agent Cabano testified that it looked like a man and woman were staying in the hotel room based upon the men's clothing on the floor of the hotel room, two tooth brushes, and men's shaving cream on the vanity. The presence of appellant's prescription medicine in the closet provided a strong link between appellant and the hotel room. The fact that TW knew that appellant took medicine for congestive heart failure and offered to take the medicines to appellant at the jail, also established a relationship between appellant and TW. Another link present in this case was the odor of GHB. Detective Hardman and Agent Cabano testified that when the door to hotel room was opened they smelled a very strong chemical odor they recognized as indicative of the manufacture of GHB. Appellant also acknowledged the strong chemical odor in the room, but testified he thought it was fingernail polish, even though he admitted he never saw anyone polishing their nails. Other links included appellant's admission that he had smoked methamphetamine in the hotel room, a bag of methamphetamine in plain view on the night stand in the hotel room, and the large quantity of money bundled in one hundred dollar increments. Appellant relies on his own testimony that he was unaware of the GHB, or any of the items used to manufacture GHB that were in the hotel room, and his testimony that his sole reason for being at the hotel was to give TW a tattoo. However, the jury heard appellant's version of the events and was free to accept or reject any portion of his testimony. Westbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000). When a jury is presented with conflicting evidence, we presume the jury resolved the conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Accordingly, we conclude the evidence was factually and legally sufficient to link appellant with the GHB and establish the element of possession. Appellant also argues the evidence is factually and legally insufficient to prove the intent to deliver element of the offense. Appellant argues there is no evidence anyone came to the hotel room to purchase drugs, nor was he seen attempting to distribute drugs. In a possession with intent to deliver case, intent to deliver a controlled substance can be established through circumstantial evidence including the quantity of drugs, the manner of packaging, and the presence of the accused in a known drug house. Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.-Dallas 2003, no pet.). Intent to deliver is a question of fact that is resolved by the jury, and may be inferred from acts, words, or conduct of the accused. Id. Sergeant Ragsdale testified that the quantity of GHB found amounted to 1,670 personal dosage units with a the street value of approximately $8,350. Detective Hardman testified that drug dealers commonly bundle money in one hundred dollar increments to make it easier to count and collect. Intent to deliver could reasonably be inferred by the jury from the significant quantity of GHB, the items used to manufacture GHB, and the cash in one hundred dollar increments. Id. Viewing all the evidence under the proper standards, we conclude it was legally and factually sufficient to support appellant's conviction. See Laster, 275 S.W.3d at 518. We overrule appellant's two issues and affirm the judgment of conviction.