Opinion
No. 05-16-00600-CR
05-18-2017
CHARLES LEE WALKER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas
Trial Court Cause No. F-1670347-I
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Evans
Opinion by Justice Bridges
A jury convicted appellant Charles Lee Walker of possession of phencyclidine (PCP), a controlled substance, in an amount of less than one gram, and sentenced him to thirteen years' imprisonment. He argues the evidence is legally insufficient to establish he knew he possessed the controlled substance. We affirm the trial court's judgment.
His punishment was enhanced by two prior convictions: (1) aggravated robbery in 2009 and (2) burglary of a habitation in 1989.
On February 18, 2015, Officers Michael Trometer and Michael Welsh were flagged down by two individuals tricked into paying someone they thought was a parking lot attendant. One of the individuals identified appellant as the man who took their money. Officers detained appellant and found in his possession the parking tickets, eight single dollar bills and a ten dollar bill, which matched the amounts the individuals told officers they paid for parking.
During the search incident to the theft arrest, Officer Welsh found in appellant's front, left pants pocket a glass pipe commonly used to smoke crack cocaine and a small brown vial commonly used to carry PCP. Officer Welsh commented to Officer Trometer that the small vial looked like PCP. He made the observation based on his experience. Appellant said, "[T]hat ain't PCP. I found that." Officer Welsh described appellant's demeanor as "screaming, cursing profanities and refused to listen, refused to obey our commands, refused to just sit still, seemed very antsy, very jumpy, very angry." Narcotics testing later confirmed the liquid in the vial measured less than one gram of PCP.
Despite defense counsel's argument that appellant found the vial and did not know its contents, the jury convicted appellant of possession of a controlled substance and sentenced him to thirteen years' confinement.
Appellant argues the evidence is legally insufficient because the State presented no evidence proving the liquid in the vial contained anything more than phencyclidine residue. Further, he contends the State failed to prove he knew the vial contained a controlled substance.
In determining the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Direct and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015). The trier of fact is the exclusive judge of the credibility and weight of the evidence and is permitted to draw any reasonable inference from the evidence so long as it is supported by the record. Id.
Texas Health and Safety Code section 481.115(a) provides, in relevant part, "Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 1 . . . ." TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (d) (West 2010). PCP is a controlled substance listed in Penalty Group 1. Id. § 481.102(8) (West 2010).
To prove unlawful possession of a controlled substance, the State must prove: (1) the accused exercised control, management, or care over the substance; and (2) the accused knew the matter possessed was contraband. Manivanh v. State, 334 S.W.3d 23, 27 (Tex. App.—Dallas 2008, pet. ref'd). This evidence, whether direct or circumstantial, must establish the requisite level of confidence that the accused's connection with the drug was more than just fortuitous. Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005). A jury may infer intent from any fact that tends to prove its existence, including the acts, words, and conduct of the accused and surrounding circumstances. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002). If the controlled substance can be seen and measured, the amount is sufficient to establish the defendant knew it was a controlled substance. Victor v. State, 995 S.W.2d 216, 220 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd). In contrast, if the quantity possessed is so small that it cannot be quantitatively measured, there must be evidence other than its mere possession to prove the defendant knew the substance in his possession was a controlled substance. Shults v. State, 575 S.W.2d 29, 30 (Tex. Crim. App. 1979).
In determining whether sufficient evidence links appellant to the contraband, the appellate court considers a variety of factors, including, but not limited to: (1) whether the defendant possessed other contraband or narcotics when arrested; (2) whether other contraband or drug paraphernalia were present; and (3) whether the conduct of the defendant indicated a consciousness of guilt. Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006); Davis v. State, 323 S.W.3d 190, 195 (Tex. App.—Dallas 2008, pet. ref'd). No set formula exists to dictate a finding of links sufficient to support an inference of knowing possession. Smith v. State, No. 05-06-00803-CR, 2007 WL 3349117, at *4 (Tex. App.—Dallas Nov. 13, 2007, no pet.) (not designated for publication). It is the logical force of the evidence, and not the number of links, that supports a fact-finder's verdict. Evans, 202 S.W.3d at 166.
Appellant does not dispute he exercised control, management, or care over the substance; therefore, we focus our analysis on whether he knew he possessed a controlled substance. To the extent appellant argues the State had to prove he knew the vial specifically contained PCP, he is incorrect. Rather, the State only needed to prove he knew the vial contained a controlled substance. See, e.g., Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016); Smith, 2007 WL 3349117, at *4. Here, Officer Welsh testified that based on his experience, the liquid inside the vial looked like PCP. The chemist, who tested the vial's contents, testified the light yellow liquid contained PCP and the total weight of the liquid in the vial, including adulterants or dilutants, totaled 0.5381 grams, plus or minus 0.0024, grams. Because the amount of PCP could be seen and measured, the amount was sufficient to establish that appellant knew it was a controlled substance. Victor, 995 S.W.2d at 220; Small v. State, No. 01-15-01082-CR, 2016 WL 7368102, at *1 (Tex. App.—Houston [1st Dist.] Dec. 15, 2016, no pet.) (mem. op., not designated for publication).
We are unpersuaded by appellant's argument that the State needed to prove how much of the substance in the vial was PCP as opposed to adulterants and dilutants. See Melton v. State, 120 S.W.3d 339, 344 (Tex. Crim. App. 2003) ("The State is no longer required to determine the amount of controlled substance and the amount of adulterant and dilutant that constitute the mixture."). Rather, the State had to prove only that the aggregate weight of the controlled substance mixture, including adulterants and dilutants, equaled the alleged minimum weight. Id. The State met its burden.
Further, Officer Welsh found the vial in appellant's left, front pants pocket. See Jenkins v. State, 870 S.W.2d 626, 628 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd) (evidence sufficient to prove possession of controlled substance when tube with cocaine found in right, front pants pocket and detectives observed white powdery substance in tube). "It is rational for a jury to conclude that an individual is aware of the contents of his pants pocket." Clark v. State, No. 14-09-00944-CR, 2010 WL 4673713, at *2 (Tex. App.—Houston [14th Dist.] Nov. 18, 2010, no pet.) (mem. op., not designated for publication).
The officers testified the vial was the type commonly used to carry PCP, and the vial itself was considered drug paraphernalia. The fact that the contraband was found in an item of drug paraphernalia is circumstantial evidence supporting knowing possession. See Hall v. State, 928 S.W.2d 186, 190 (Tex. App.—Houston [14th Dist.] 1996, pet. ref'd).
Finally, although nervous and erratic behavior is insufficient, by itself, to establish possession, considering it with other evidence supports a finding that appellant had a consciousness of guilt—another link connecting him to the PCP. See Lee v. State, No. 03-15-00112-CR, 2015 WL 9436566, at *3 n.14 (Tex. App.—Austin Dec. 23, 2015, no pet.) (mem. op., not designated for publication).
Accordingly, a rational trier of fact could have found beyond a reasonable doubt that appellant knew the substance in the vial was a controlled substance. Therefore, the evidence is legally sufficient to support his conviction. Appellant's sole point is overruled.
The judgment of the trial court is affirmed.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE Do Not Publish
TEX. R. APP. P. 47.
160600F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 2, Dallas County, Texas
Trial Court Cause No. F-1670347-I.
Opinion delivered by Justice Bridges. Justices Lang-Miers and Evans participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered May 18, 2017.