Hebert v. State

489 S.W.3d 15, 2016 Tex. App. LEXIS 1419, 2016 WL 552148
CourtCourt of Appeals of Texas
DecidedFebruary 11, 2016
DocketNO. 14-13-00370-CR
StatusPublished
Cited by11 cases

This text of 489 S.W.3d 15 (Hebert v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hebert v. State, 489 S.W.3d 15, 2016 Tex. App. LEXIS 1419, 2016 WL 552148 (Tex. Ct. App. 2016).

Opinion

OPINION

Kem Thompson Frost, Chief Justice

Appellant challenges his conviction for possession of a controlled substance. He asserts his conviction is not supported by sufficient evidence and claims the trial court erred in denying his motion for mistrial and in admitting irrelevant evidence. Appellant also asserts he received ineffective assistance of counsel and that his conviction and sentence violate his rights under the Texas Constitution. We affirm.

I. Factual and PeoceduRal Background

Officer Stephen Frank was patrolling when he saw appellant speeding. Officer Frank pulled his vehicle behind appellant’s to initiate a traffic stop. While in his car driving behind appellant, Officer Frank smelled phencyclidine (“PCP”). The odor seemed to be coming from appellant’s car. Still in pursuit,- Officer Frank watched as a hand came out of the driver’s side window. He saw a small white object fall from the driver's hand. Officer Frank made a mental note of where the object fell and then called for backup. After initiating a traffic stop, Officer Frank placed appellant in the patrol car and walked back to the place where he mentally marked the object fall. In that location, Officer Frank found a cigarette butt. He testified he knew the cigarette butt belonged to appellant because it smelled strongly of PCP.

Officer Karen Taylor came to Officer Frank’s assistance. Officer Taylor pulled behind appellant and had a clear view of the passenger side of appellant’s car. She saw the passenger toss a bottle into the grass and was able to see liquid poured out onto the curb. Officer Taylor testified that she approached appellant’s vehicle to transport the passenger to jail. According to Officer Taylor, throughout the interaction, there was .a strong odor of PCP. Officer .Taylor also testified that both appellant and the passenger were sweating, which is. indicative of PCP use.

■Appellant was charged with possession of a controlled substance, PCP, weighing less than one gram. The indictment included two enhancement paragraphs. Appellant pleaded, “not guilty,” but pleaded “true” to the enhancement paragraphs. At trial, the State presented the testimony of Officer Frank,. Officer Taylor, and a [18]*18criminálist from the City of Houston Police Department Crime Laboratory. The criminalist testified that the cigarette butt Officer Frank recovered contained trace amounts of PCP residue.

The jury found appellant guilty' as charged. The trial court sentenced him to five years’ confinement. Appellant now challenges his conviction, raising five issues on appeal.

II. Issues and Analysis

A. Sufficiency of the Evidence

In his first issue, appellant challenges the sufficiéncy of the evidence showing he possessed the PCP long enough to exercise control over it. In evaluating a challenge to the sufficiency of the evidence supporting a criminal' conviction, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App.2000). The issue bn appeal is not whether we, as,a court, believe the State’s eviderieé or believe that appellant’s evidence outweighs the State’s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App.1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App.1991). The trier of fact “is the sole judge of the credibility of the witnesses and of the strength' of the evidence.” Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App.1999). The trier of fact may choose to believe or disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App.1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App.1997).

Texas Health and Safety Code Section 481.115(a) provides: “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, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.” Tex. Health & Safety Code Ann. § 481.115(a), (d) (West, Westlaw through 2015 R.S.).' PCP is a controlled substance listed in Penalty Group 1. Tex. Health & Safety Code Ann. § 481.102(8) (West, Westlaw through 2015 R.S.). Under the Penal Code, “possession” is “actual care, custody, control, or management,” Tex. Penal Code Ann. § 1.07(a)(39) (West, Westlaw through 2015 R.S.). To prove unlawful possession of a controlled substance, the State must establish that (1) the accused exercised care, control, or management over the substance, and ;(2) knew the substance was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App.2005). Possession may be proven through direct or circumstantial evidence, although the evidence must establish that the person’s connection with the substance was more than, fortuitous. Id. at 405-06.

When the accused was not' in exclusive possession of the place where the contraband was found, the State must show additional affirmative links between the accused and the contraband. See Olivarez v. State, 171 S.W.3d 283, 291 (Tex.App.—Houston [14th Dist.] 2005, no pet.). An affirmative link generates a reasonable inference that the accused knew of the contraband’s existence and exercised control over it. Id. Affirmative links are established by the totality of the circumstances. See Hyett v. State, 58 S.W.3d [19]*19826, 830 (Tex.App.—Houston [14th Dist.] 2001, pet. refd). Courts have identified the following factors that may help to show an accused’s affirmative links to a controlled substance:

• the accused’s presence when a search is conducted;
• whether the contraband was in plain view;
• the accused’s proximity to and the accessibility of the narcotic;
• whether the accused was under the influence of narcotics when arrested;
• whether the accused possessed other contraband or narcotics when arrested;
• whether the accused made incriminating statements when arrested;
• whether the accused attempted to flee;
• whether the accused made furtive gestures;
• whether there was an odor of contraband; '

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
489 S.W.3d 15, 2016 Tex. App. LEXIS 1419, 2016 WL 552148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hebert-v-state-texapp-2016.