Opinion
No. 11-18-00172-CR
07-23-2020
JERRY NEIL SCHMIDT, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 350th District Court Taylor County, Texas
Trial Court Cause No. 13104-D
MEMORANDUM OPINION
The jury convicted Appellant, Jerry Neil Schmidt, of intentionally and knowingly possessing a controlled substance (heroin) in an amount by aggregate weight of less than one gram. The jury also assessed Appellant's punishment at confinement for a term of twenty-four months in the State Jail Division of the Texas Department of Criminal Justice. In two issues, Appellant challenges the sufficiency of the evidence supporting his conviction. We affirm.
Background Facts
On October 9, 2017, Abilene Police Officer Joshua Davis and six other law enforcement officers were conducting surveillance of Appellant's residence. The officers had received information linking Appellant to recent heroin overdoses, as well as to the selling and transporting of heroin and other narcotics in Abilene. Officer Davis was informed that Appellant had left the residence in a vehicle and had committed a traffic violation. Officer Davis initiated a traffic stop for the violation. Officer Davis determined that Appellant's driver's license had been suspended and that Appellant did not have liability insurance.
Another officer and his canine performed an open-air sniff of Appellant's vehicle. The canine alerted to the presence of narcotics in the vehicle. Officers searched the vehicle but did not find any evidence of controlled substances.
Officers found both hypodermic syringes and a pocketknife in Appellant's pocket. The pocketknife had a black, tar-like substance consistent with heroin on it. Officers conducted a search along the route that Appellant had driven. Approximately twenty to forty yards behind Appellant's vehicle, an officer located a tissue paper with a substance that appeared to be heroin lying close by. The tissue paper and the heroin were about three inches apart and both appeared to be clean.
On the way to the police station, Appellant acknowledged to Officer Davis that he had just used heroin. No other drugs were found on Appellant during a strip search at the police station. Forensic testing confirmed that the substance found in the street weighed 0.17 grams and contained heroin and that the substance on the pocketknife contained a trace amount of heroin.
Analysis
In two issues, Appellant challenges the sufficiency of the evidence supporting his conviction. In his first issue, Appellant asserts that the evidence failed to show a link between him and the heroin found on the street. In his second issue, Appellant contends that the evidence failed to show that Appellant knowingly possessed the trace amount of heroin found on his pocketknife. We will address both issues together.
We review a challenge to the sufficiency of the evidence, regardless of whether it is denominated as a legal or factual sufficiency challenge, under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App.—Eastland 2010, pet. ref'd). Under the Jackson standard, we review all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
When conducting a sufficiency review, we consider all the evidence admitted at trial, including pieces of evidence that may have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder's role as the sole judge of the witnesses' credibility and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder's duty to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
It is not necessary that the evidence directly prove the defendant's guilt; circumstantial evidence is as probative as direct evidence in establishing a defendant's guilt, and circumstantial evidence can alone be sufficient to establish guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Each fact need not point directly and independently to guilt if the cumulative force of all incriminating circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13. Because evidence must be considered cumulatively, appellate courts are not permitted to use a "divide and conquer" strategy for evaluating the sufficiency of the evidence. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). Instead, appellate courts must consider the cumulative force of all the evidence. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017).
To prove unlawful possession of a controlled substance, the State must show (1) that the accused exercised control, management, or care over the substance and (2) that the accused knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005), overruled in part on other grounds by Robinson v. State, 466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015); Hughitt v. State, 539 S.W.3d 531, 538 (Tex. App.—Eastland 2018), aff'd, 583 S.W.3d 623 (Tex. Crim. App. 2019). The evidence must establish that the accused's connection with the drugs is more than just his fortuitous proximity to someone else's drugs. Poindexter, 153 S.W.3d at 405-06; Hughitt, 539 S.W.3d at 538.
Texas courts have formulated the "affirmative links rule," which provides that, "[w]hen the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband." Poindexter, 153 S.W.3d at 406 (alteration in original) (quoting Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981)); see Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006) (listing affirmative links recognized by courts); see also Tate v. State, 500 S.W.3d 410, 413-14 (Tex. Crim. App. 2016) (citing Evans, 202 S.W.3d at 162 n.12). The affirmative links rule is routinely employed to establish possession when the accused is not in exclusive possession of the place where the drugs are found. Poindexter, 153 S.W.3d at 406. "This rule simply restates the common-sense notion that a person—such as a father, son, spouse, roommate, or friend—may jointly possess property like a house but not necessarily jointly possess the contraband found in that house." Id.
The following links have been applied to infer knowledge relating to the contraband: (1) the accused's presence when the search was executed; (2) whether the contraband was in plain view; (3) the accused's proximity to and the accessibility of the contraband; (4) whether the accused was under the influence of a controlled substance when he was arrested; (5) whether the accused possessed other contraband or narcotics when arrested; (6) whether the accused made incriminating statements; (7) whether the accused attempted to flee; (8) whether the accused made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia was present; (11) whether the accused 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 accused was found with a large amount of cash; and (14) whether the conduct of the accused indicated a consciousness of guilt. Tate, 500 S.W.3d at 414 (citing Evans, 202 S.W.3d at 162 n.12). It is not the number of links that is dispositive; rather, it is the logical force of all of the evidence, both direct and circumstantial, that is the determining factor. Evans, 202 S.W.3d at 162.
Even though the officers did not see Appellant throw anything out of the window of the vehicle, the police retrieved the heroin from the street about twenty to forty yards behind Appellant's vehicle in the path that the vehicle had taken. The officer that found the heroin and tissue paper in the street testified that the items did not appear to have been there very long because they were "fresh" and there were no tire track marks on them. Appellant was the only occupant of the vehicle when officers pulled him over. Appellant's proximity to the heroin found in the street, along with its undamaged condition, his possession of drug paraphernalia, the residue of heroin on his pocketknife, his admission of recent heroin use, and the canine alert on his vehicle are all factors weighing in favor of a conclusion that Appellant had knowingly possessed the heroin found in the street.
With respect to the heroin found on Appellant's pocketknife, Appellant contends that there is insufficient evidence that he knowingly possessed this unmeasurable amount of heroin. We disagree. The Court of Criminal Appeals has held that, when the quantity of a substance is so small that it cannot be measured, "there must be evidence other than mere possession to prove that the defendant knew the substance in his possession was a controlled substance." King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995) (quoting Shults v. State, 575 S.W.2d 29, 30 (Tex. Crim. App. [Panel Op.] 1979)). Here, the heroin residue on the pocketknife was visible to the naked eye. See King, 895 S.W.2d at 703-04. Additionally, Officer Davis testified that the pocketknife had a distinct odor consistent with heroin. Finally, Appellant admitted to the officers that he had recently used heroin. The jury, therefore, could have reasonably inferred that Appellant knowingly possessed the heroin on the pocketknife.
Viewing the evidence in a light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt the essential elements of the offense of possession of a controlled substance. We overrule both of Appellant's issues on appeal.
This Court's Ruling
We affirm the judgment of the trial court. July 23, 2020
JOHN M. BAILEY
CHIEF JUSTICE Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J. Willson, J., not participating.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.