Jackson v. State

483 S.W.3d 78, 2015 Tex. App. LEXIS 12790, 2015 WL 9242050
CourtCourt of Appeals of Texas
DecidedDecember 17, 2015
DocketNO. 01-14-01010-CR
StatusPublished
Cited by2 cases

This text of 483 S.W.3d 78 (Jackson 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
Jackson v. State, 483 S.W.3d 78, 2015 Tex. App. LEXIS 12790, 2015 WL 9242050 (Tex. Ct. App. 2015).

Opinions

OPINION

Evelyn V. Keyes, Justice

A jury convicted appellant, Marcus D. Jackson, of the third-degree felony offense of possession of between one and four grams of phencyclidine, or PCP. After finding the allegations in two enhancement paragraphs true, the trial court assessed his -punishment at thirty-five years’ confinement.1 In one issue, appellant contends that the State failed to present sufficient evidence that he possessed more than one gram of PCP.

We affirm.

Background

On March 4, 2014, Houston Police Department (“HPD”) Officers J. Sneed and D. Morelli were working an extra security job at an apartment complex in southeast Houston. Officer Sneed had been working as a security officer at this apartment complex for approximately five or six years, which he stated is “known as the PCP capital of Houston.” He testified that he has “frequently” made narcotics arrests at this apartment complex, and when he makes such an arrest, the individuals are “typically” in possession of PCP.

On the day of the offense, Officer Sneed parked his personal vehicle in a parking lot at the complex, and the officers watched for suspicious activity. Appellant entered the complex through a pedestrian gate and [80]*80started walking down a sidewalk and looking down the breezeways between each building, as if “he was looking for someone.” Officer Sneed testified that because he had worked at the complex for several years, he was “fairly familiar” with the residents, but he had never seen appellant before, which drew his attention. Appellant stopped at the end of the parking lot and waited for four or five minutes before another man approached him. Appellant and the other man started talking and walked out of sight into one of the breezeways. Officer Sneed suspected that appellant was engaged in a narcotics transaction, so he began driving toward where appellant had been standing. While Officer Sneed moved his car, appellant walked out of the breezeway and started quickly walking back toward the pedestrian gate.

Officer Sneed parked his car, and both officers began walking toward appellant. Officer Sneed testified that he could smell the odor of PCP when he got within ten feet of appellant. Officer Sneed testified that the most common way people at this apartment complex use PCP is to fill little bottles with liquid PCP and then dip cigarettes in the PCP to smoke. Cigarettes dipped in PCP — or “PCP sticks,” as Officer Sneed referred to them — have a “real strong” and “pungent” odor, almost like nail polish remover. Officer Sneed could smell the odor of PCP before he began to speak with appellant.

Officer Sneed asked appellant if he lived at the apartment complex, and appellant responded that he did not. Officer Sneed looked down and saw appellant holding something in his right hand. He asked appellant “if he was holding a PCP stick.” Appellant said “yes,” and he opened up his hand to show Officer Sneed a cigarette that had been dipped in PCP. Officer Morelli handcuffed appellant, and at that point, Morelli discovered that appellant “had another PCP stick” in his left hand as well. Appellant admitted, “I’ve had rough times at the house. I was just trying to smoke them away.” ■

In court, Officer Sneed identified State’s Exhibit 2 as “the POP cigarettes, two of them.” Officer Sneed agreed that the cigarettes appeared to be “in the same or substantially the same condition as when [he] found them,” although he noted that the forensics lab had pulled them apart for testing. Officer Sneed stated, “I can still smell them even though it’s in three bags.”

Officer Morelli testified that he bagged and submitted the narcotics evidence for storage and testing. He characterized the narcotics evidence in this case as “PCP cigarettes,” - which he placed in a plastic bag and then sealed inside of an envelope. Officer Morelli testified that State’s Exhibit 2 was “the same narcotics that [he] found on the defendant,” which he identified as “two cigarettes.” Officer Morelli stated that both cigarettes were the same brand, and he also agreed that the cigarettes appeared “to be in the same or in substantially the same condition as when [he] found them.” Officer Morelli stated on cross-examination that appellant had one PCP cigarette in his right hand and one in his left hand at the time the officers encountered him.

• Mariam Kane, a chemist with the City of Houston Forensic Science Center, conducted the lab analysis on the PCP cigarettes recovered from appellant on April 11, 2014, five weeks after appellant’s arrest. Kane testified that the two cigarettes weighed 1.98 grams. Kane also tested the cigarettes and concluded that the cigarettes contained PCP. Kane testified that she has dealt with cigarettes that have been dipped in PCP before, and she noted that both, cigarettes were “discolored.” She testified that when a cigarette tests positive for PCP, she weighs the [81]*81entire cigarette because most of the time when a cigarette is dipped in PCP “the whole cigarette contain[s] PCP,” including the filter of the cigarette. Kane also testified that “adulterants and dilutants” .are “any substance that is added to a controlled substance to increase the weight or the quantity of the controlled substance regardless of the effect on the activity of the controlled substance.”

Kane agreed with appellant, who represented himself pro se at trial, that a cigarette absorbs whatever liquid it touches. Appellant and Kane had the following exchange:

[Appellant]: PCP, it sucks in, it’s a fluid, it sucks in, it takes up everything, filters everything, whatever it touches, it’s pretty much what?
[Kane]: Contaminated, yes.
[Appellant]:. Everything is pretty much contaminated?
[Kane]: Yes.
[Appellant]: By whatever it touches? So it is safe to. say that when it touched this. bag [in which Officer Morelli placed the two cigarettes], this bag became contaminated?
[Kane]: It’s possible, but I have to test inside the bag to tell you for sure.

Kane testified that she received an envelope “containing a Ziploc containing two discolored manufactured cigarettes.” Kane also testified that the two discolored cigarettes were in the same bag when she received them for testing, but she then separated them and placed them in separate bags after conducting the tests. Appellant again asked whether anything the PCP touches becomes contaminated, and Kane responded, “It’s possible it caused contamination, yeah, if it touch[ed] the cigarette that contains PCP, yeah.”..

The jury found appellant guilty of the offense of possession of between one and four grams of PCP. The trial court, after finding the allegations in two enhancement paragraphs true, assessed his punishment at thirty-five years’ confinement. This appeal followed. . • .

Sufficiency of the Evidence

In his sole issue, appellant contends that the State failed to present sufficient evidence that he possessed more than one gram of PCP. Appellant does not challenge the fact that he' possessed PCP; rather, he challenges solely the amount of PCP that he possessed.

A. Standard of Review

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Cite This Page — Counsel Stack

Bluebook (online)
483 S.W.3d 78, 2015 Tex. App. LEXIS 12790, 2015 WL 9242050, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-state-texapp-2015.