Opinion
NO. 03-14-00473-CR
05-10-2016
Shawn Michael Walker, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 72029, THE HONORABLE MARTHA J. TRUDO, JUDGE PRESIDINGMEMORANDUM OPINION
A jury convicted appellant Shawn Michael Walker of possession of a controlled substance with intent to deliver, methamphetamine, in an amount of four grams or more but less than 200 grams, see Tex. Health & Safety Code § 481.112(a) (person commits offense if he knowingly possesses with intent to deliver controlled substance), and assessed his punishment at confinement for 55 years in the Texas Department of Criminal Justice, see id. § 481.112(d) (offense is first degree felony if amount of controlled substance is four grams or more but less than 200 grams); Tex. Penal Code § 12.32 (punishment range for first degree felony is imprisonment for any term not less than five years or more than 99 years). In two points of error, appellant challenges the sufficiency of the evidence. We affirm the trial court's judgment of conviction.
BACKGROUND
Because the parties are familiar with the facts of the case, its procedural history, and the evidence adduced at trial, we provide only a general overview of the facts of the case here. We provide additional facts in the opinion as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4. The facts recited are taken from the testimony and other evidence presented at trial.
Police officers were dispatched in response to a call concerning an armed man in a van. The officers located the van matching the description in the dispatch call and initiated a traffic stop. Appellant, who matched the description of the armed man, was seated in the front passenger seat of the van. During the stop, the van was searched. Police discovered methamphetamine in several locations inside the van along with other items of interest to the police. All of the occupants were arrested and transported to jail. At the jail, a small baggie of methamphetamine was recovered from the pocket of appellant's pants.
DISCUSSION
In his first point of error, appellant argues that the evidence is insufficient to sustain his conviction as a principal. He maintains that the evidence failed to prove that he possessed the alleged amount of methamphetamine with the intent to deliver it because the evidence only proved that he possessed smaller personal use amounts of methamphetamine.
Due process requires that the State prove, beyond a reasonable doubt, every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014). When reviewing the sufficiency of the evidence to support a conviction, we consider all the evidence in the light most favorable to the verdict to determine whether, based on that evidence and the reasonable inferences therefrom, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). In our sufficiency review we must consider all the evidence in the record, whether direct or circumstantial, properly or improperly admitted, or submitted by the prosecution or the defense. Thompson v. State, 408 S.W.3d 614, 627 (Tex. App.—Austin 2013, no pet.); see Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Finley v. State, 449 S.W.3d 145, 147 (Tex. App.—Austin 2014), aff'd, — S.W.3d —, No. PD-1473-14, 2016 WL 747605 (Tex. Crim. App. Feb. 24, 2016). We review all the evidence in the light most favorable to the verdict and assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Jackson, 443 U.S. at 318; see Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We consider only whether the factfinder reached a rational decision. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) ("Our role on appeal is restricted to guarding against the rare occurrence when a factfinder does not act rationally.").
The elements for possession of a controlled substance with intent to deliver are that the defendant: (1) possessed a controlled substance in the amount charged; (2) intended to deliver the controlled substance to another; and (3) knew that the substance in his possession was a controlled substance. See Tex. Health & Safety Code § 481.112(a). In this case, based on the indictment, the State was required to prove beyond a reasonable doubt that (1) on or about the night in question (2) appellant (3) individually or as a party (4) intentionally or knowingly (5) possessed (6) with intent to deliver (7) methamphetamine (8) in the amount of four grams or more, but less than 200 grams. See id. §§ 481.102(6), 481.112(a), (d); see also Tex. Penal Code §§ 7.01, 7.02 (provisions regarding party liability).
To prove unlawful possession of a controlled substance, the State must prove that the defendant exercised control, management, or care over the substance and that he knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); see also Tex. Health & Safety Code § 481.002(38) (defining possession as "actual care, custody, control, or management"). To do so, the State may use direct or circumstantial evidence. Poindexter, 153 S.W.3d at 405-06. The State is entitled to rely upon circumstantial evidence because circumstantial evidence "is as probative as direct evidence in establishing the guilt of the actor, and circumstantial evidence alone may 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)). Regardless of whether the evidence is direct or circumstantial, it must establish, to the requisite level of confidence, that a defendant's connection to the contraband was more than fortuitous. Poindexter, 153 S.W.3d at 406; Allen v. State, 249 S.W.3d 680, 691 (Tex. App.—Austin 2008, no pet.). Presence or proximity, when combined with other evidence, either direct or circumstantial, may be sufficient to establish the element of possession beyond a reasonable doubt. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006).
Texas courts have identified relevant factors that may, alone or in combination, link an accused to contraband to establish knowing possession of the contraband, including: (1) the defendant's presence when a search is 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. See Evans, 202 S.W.3d at 162 n.12 (citing Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.)). These are simply some factors that may circumstantially establish the sufficiency of the evidence to prove a knowing possession; they are not a litmus test. Evans, 202 S.W.3d at 162 n.12; see also Allen, 249 S.W.3d at 692 n.13. The logical force of the links, not the number of links, is dispositive. Evans, 202 S.W.3d at 162; Smith v. State, 176 S.W.3d 907, 916 (Tex. App.—Dallas 2005, pet. ref'd). Each case must be examined on its own facts to determine whether sufficient facts and circumstances exist to link or connect a defendant to illegal contraband. Roberson v. State, 80 S.W.3d 730, 736 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd).
"Deliver" means to transfer, actually or constructively, a controlled substance to another. Tex. Health & Safety Code § 481.002(8). The intent to deliver a controlled substance may be proven by circumstantial evidence. Ibarra v. State, 479 S.W.3d 481, 488 (Tex. App.—Eastland 2015, pet. ref'd); Kibble v. State, 340 S.W.3d 14, 18 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd); Jordan v. State, 139 S.W.3d 723, 726-27 (Tex. App.—Fort Worth 2004, no pet.); Moreno v. State, 195 S.W.3d 321, 325 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd). Factors that courts have considered to determine whether such intent is supported by the evidence include, but are not limited to: (1) the nature of the location where the defendant was arrested; (2) the quantity of the drugs the defendant possessed; (3) the manner of packaging; (4) the presence, or lack thereof, of drug paraphernalia (for use or sale); (5) the defendant's possession of a large amount of cash; and (6) the defendant's status as a narcotics user. Kibble, 340 S.W.3d at 19; Brown v. State, 243 S.W.3d 141, 149-50 (Tex. App.—Eastland 2007, pet. ref'd); Utomi v. State, 243 S.W.3d 75, 82 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd); Jordan, 139 S.W.3d at 726. This list of factors is not exclusive, nor must they all be present to establish a defendant's intent to deliver. Kibble, 340 S.W.3d at 19; see Gaither v. State, 383 S.W.3d 550, 553 (Tex. App.—Amarillo 2012, no pet.). In addition, the expert testimony of law enforcement officers, experienced with illicit drug trafficking, may be used to establish a defendant's intent to deliver a controlled substance. Kibble, 340 S.W.3d at 19; Utomi, 243 S.W.3d at 82; Moreno, 195 S.W.3d at 326; Jordan, 139 S.W.3d at 726.
In this case, the jury heard evidence that police officers were dispatched to a location known for narcotics activity on a "hot call" concerning an armed man in a van. The officers located the van matching the description in the dispatch call and initiated a traffic stop. Appellant, who matched the description of the armed man, was seated in the front passenger seat of the van, which he indicated belonged to his girlfriend. The van was being driven by Tiffany Pierce, who was not appellant's girlfriend. Two others, a male and female, were in the back of the van. The evidence indicated that this couple had just recently been picked up.
According to the testimony of one of the responding police officers, a "hot call" is a call involving an armed subject, which is considered "a fairly dangerous situation."
During the encounter, the occupants of the van were directed to exit the van. When Pierce exited, she left the driver's door open. One of the officers saw a small baggie containing a crystal substance that he believed to be methamphetamine on the floorboard by the driver's seat. During the subsequent search of the van, police discovered methamphetamine in several locations inside the van. Testimony at trial established that the small plastic baggie that the officer observed in plain view contained 2.16 grams of methamphetamine, a small baggie of a pink crystal substance that was recovered from the floorboard behind the driver's seat contained 5.64 grams of methamphetamine, a gallon-size Ziploc bag that was recovered from a black box inside a blue bag on the floorboard behind the front seat contained 40.58 grams of methamphetamine, and another gallon-size Ziploc bag that was found wrapped inside a pair of women's pants inside a laundry bag in the rear of the van contained 56.92 grams of methamphetamine.
Along with the methamphetamine, other items of interest to law enforcement were found in the van, including lithium batteries and brake cleaner (items used in the manufacture of methamphetamine), a black pipe used for smoking methamphetamine that was still hot to the touch, numerous used syringes (some with fluid remnants in them and blood on the needles), a small cosmetic bag full of unused syringes, non-functional electronic devices with the serial numbers scratched off and batteries removed, and a container of MSM (a horse supplement that, because of its crystal nature, is commonly mixed with methamphetamine to increase the amount of the narcotic). All of the occupants were arrested and transported to jail. During book-in, a small baggie containing 0.28 grams of crystal methamphetamine was recovered from the front pocket of appellant's pants.
The testimony at trial indicated that after further investigation, the two individuals in the back of the van were released since they had only recently been picked up and had not been in the van very long.
When Pierce was strip searched at the jail, two pairs of tweezers were discovered concealed in her vagina and a cord was protruding from her vagina. After she refused to remove the cord, she was transported to the hospital in order to discern what was concealed in her vagina. Upon arrival, a brown bag containing several baggies of crystal methamphetamine was discovered next to her on the seat of the patrol car. Apparently, Pierce had removed the brown bag while in route to the hospital. The amount of methamphetamine contained in these baggies is not reflected in the record.
In his brief, appellant separately analyzes each item of evidence as to the relevant factors that might link the item to him because, he claims, possession is "location specific." He asserts that "[w]hen the State puts on evidence of the presence of a controlled substance(s) in multiple locations, the circumstances present in each specific location must be analyzed separately." We do not find appellant's piecemeal analysis appropriate. First, appellant's attempt to apply a "location specific" analysis fails because the methamphetamine here was not found in multiple locations (such as a car and a house, or a residence and a separate workplace) but simply different areas of one location: the van owned by appellant's girlfriend. Second, the relevant inquiry is whether there was evidence of circumstances, in conjunction with appellant's presence, that justifies the conclusion that appellant knowingly possessed the substance. See Evans, 202 S.W.3d at 166-67 (Womack, J., concurring). It is the logical force of all the direct and circumstantial evidence—taken together, not piecemeal—that is dispositive of whether the possession element of the offense has been established. See id. at 162. The cases that appellant relies on to support his argument for a piecemeal analysis of individual evidentiary items do not hold, or even suggest, that possession is a "location specific" inquiry that requires evidence in various areas of a vehicle to be analyzed separately, nor do they support a piecemeal analysis of evidence to determine whether it is linked to a defendant. Rather, these cases note the requirement that the State must link a defendant to the controlled substance alleged to be possessed and discuss the relevant factors that may suffice to provide such a link.
As for appellant's attempts to show that the various baggies of methamphetamine were not linked to him, we are not persuaded by his piecemeal analysis. Appellant essentially argues that the drugs found in the van—excluding the baggie of pink methamphetamine, which he claimed ownership of during his post-arrest interview—were not linked to him because they were not in his plain view, that is, he "couldn't have seen [them]" because they were purportedly concealed in a van that was "full of stuff" (including women's clothing, suggesting that a woman was living in the van) in locations other than where he was sitting. However, whether the contraband is in plain view is only one factor that may link a defendant to contraband. Appellant's analysis does not address other relevant linking factors, except to note the absence of a firearm or currency in the van or on the occupants and the absence of scales. But, the absence of some of the factors is not evidence of innocence that must be weighed against the factors that are present. Santiesteban-Pileta v. State, 421 S.W.3d 9, 15 (Tex. App.—Waco 2013, pet. ref'd); Satchell v. State, 321 S.W.3d 127, 134 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd); see Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App. 1976). Here, appellant was present when the search of the van was conducted. Further, appellant had a close personal connection to the owner of the van as well as a friendship with the driver of the van. While some of the contraband was hidden, some was in plain view, including the baggie of pink methamphetamine found on the floorboard directly behind the driver's seat, a location that was in close proximity to and readily accessible to appellant. Appellant had a baggie of methamphetamine (the same controlled substance recovered in various places in the van) on his person, and other contraband and drug paraphernalia were also present in the van. Finally, during his post-arrest interview with the detective, several of appellant's comments could be interpreted as indicating a consciousness of guilt.
In the interview, appellant never expressed surprise that methamphetamine, a cutting agent, and drug paraphernalia were found in the van. Instead of denying knowledge of the drugs or other contraband, appellant inquired about "what it would take" to "not get the charge," seeking to determine what information he could provide to the officers in exchange for his release. Although he made a self-serving denial concerning the contents of the baggie that he claimed ownership of, he used language and terminology throughout the interview that demonstrated familiarity with methamphetamine, cutting agents, and drug dealing. --------
Appellant argues that the various amounts of methamphetamine cannot be considered collectively. We disagree as the presence of other contraband or narcotics is one of the relevant factors that may link a defendant to a controlled substance. Nevertheless, even discounting the amounts of methamphetamine that appellant claims cannot be linked to him, the evidence is sufficient to support his conviction. Appellant concedes that he possessed 0.28 grams of methamphetamine in the baggie discovered in his pocket. He also correctly notes that testimony at trial indicated that this small amount, under one gram, is a user amount. However, the evidence at trial also linked appellant to the baggie of 5.64 grams of pink methamphetamine found immediately behind the driver's seat, readily accessible to appellant. Appellant admitted during his post-arrest interview that the small baggie of "pink stuff" was his. Testimony from the narcotics detective at trial indicated that mid-level dealers—those that are users and dealers—are most often found with four to ten grams of a controlled substance. He also indicated that cutting agents—substances added to narcotics to increase the bulk amount, such as MSM—are associated with the dealing of methamphetamine. This evidence supports a reasonable inference that appellant is at least a mid-level dealer.
Appellant appears to argue that this pink methamphetamine cannot truly be linked to him because he repeatedly claimed during his post-arrest interview that the substance in the baggie was only MSM, not methamphetamine. However, we must keep in mind that it is the factfinder's duty to weigh the evidence, resolve any conflicts, and make reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. As the factfinder, the jury is the sole judge of the credibility and weight to be attached to the testimony of witnesses, Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014); see Jackson, 443 U.S. at 319, and may choose to believe all, some, or none of the testimony presented, Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); Richter v. State, 482 S.W.3d 288 (Tex. App.—Texarkana 2015, no pet.); Green v. State, 465 S.W.3d 380, 382 (Tex. App.—Fort Worth 2015, pet. ref'd); Schneider v. State, 440 S.W.3d 839, 841 (Tex. App.—Austin 2013, pet. ref'd); Thompson v. State, 426 S.W.3d 206, 210 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd); see also Tex. Code Crim. Proc. arts. 36.13, 38.04. "We defer to the factfinder's determinations on witnesses' credibility and the weight to be given to their testimony and do not substitute our judgment on these matters." Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015) (citing Brooks, 323 S.W.3d at 899). When the record supports conflicting inferences, we presume that the factfinder resolved the conflict in favor of the verdict, even if that resolution is not explicitly within the record, and we defer to that determination. Nowlin, 473 S.W.3d at 317; Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014); see Jackson, 443 U.S. at 319. Here, the jury was not required to believe appellant's self-serving denial. Instead, evaluating his statements in the context of the interview (observing his demeanor, his familiarity with methamphetamine and MSM, his reported acquaintance with drug dealers, and his attempts to avoid criminal charges), the jury could reasonably infer that appellant's denial was an attempt to "get rid of this charge" and could reasonably infer that appellant knew that the pink substance in the baggie belonging to him was methamphetamine. See Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (jury may infer knowledge from circumstantial evidence including acts, words, and conduct of accused); Gant v. State, 278 S.W.3d 836, 839 (Tex. App.—Houston [14th Dist.] 2009, no pet.) ("A jury can infer knowledge from all the circumstances, including the acts, conduct, and remarks of the accused and the surrounding circumstances."); Adams v. State, 222 S.W.3d 37, 49 (Tex. App.—Austin 2005, pet. ref'd) (proof of culpable mental state generally relies on circumstantial evidence; knowledge may be inferred from acts, words, and conduct of accused).
In sum, the evidence at trial reflected that appellant was present when the drugs were found in various locations in the van that belonged to someone appellant had a close personal connection to, the amount of drugs collectively was more than amounts commonly found possessed by mere users (as was the amount directly linked to appellant by his admission), drug paraphernalia (unused syringes, used needles, and a recently used drug pipe) as well as items used in the manufacture of methamphetamine (the horse supplement MSM, lithium batteries, and brake cleaner) and suspicious items (electronic devices with the serial numbers scratched off and batteries removed) were also found in the van. Viewed collectively, the evidence showed that appellant's presence in that van with the methamphetamine (found in the van and on his person), the drug paraphernalia, and the other contraband, was more than just fortuitous. See Poindexter, 153 S.W.3d at 405-06. We conclude that the circumstantial evidence, when viewed in combination and its sum total, constituted amply sufficient evidence connecting appellant to the actual care, custody, control, or management of the amount of methamphetamine alleged, as well as appellant's intent to deliver. Accordingly, the evidence was sufficient to support appellant's conviction for possession of a controlled substance with intent to deliver. We overrule his first point of error.
In his second point of error, appellant argues that the evidence was insufficient to support his conviction as a party. The indictment in this case charged appellant with possession with intent to deliver methamphetamine as both a primary actor and as a party. In the jury charge, the trial court submitted both theories of liability to the jury. When the jury charge authorizes the jury to convict the defendant on more than one theory, as it did in this case, the verdict of guilt will be upheld if the evidence is sufficient on any theory authorized by the jury charge. Anderson v. State, 416 S.W.3d 884, 889 (Tex. Crim. App. 2013) (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)). We have already concluded that the evidence was sufficient to support appellant's conviction for possession of a controlled substance with intent to deliver as a primary actor. Consequently, we overrule appellant's second point of error. See Greene v. State, 240 S.W.3d 7, 12 (Tex. App.—Austin 2007, pet. ref'd) (because jury was authorized to convict appellant on theory that he personally murdered victims and evidence was sufficient to sustain jury's guilty verdict on that theory, it was irrelevant whether evidence was sufficient to support appellant's conviction on other theories of culpability presented to jury in court's charge).
CONCLUSION
Having concluded that the evidence is sufficient to support the jury's guilty verdict, we reject appellant's sufficiency challenges and affirm the trial court's judgment of conviction.
/s/_________
Melissa Goodwin, Justice Before Chief Justice Rose, Justices Goodwin and Field Affirmed Filed: May 10, 2016 Do Not Publish