Kathryn Pendleton v. State

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-15-00108-CR

KATHRYN PENDLETON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 320th District Court Potter County, Texas Trial Court No. 68,790-D, Honorable Abe Lopez, Presiding

October 23, 2015

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellant, Kathryn Pendleton, was indicted for, and convicted of, the offense of

possession of a controlled substance listed in Penalty Group 1 in an amount of four

grams or more but less than 200 grams.1 The trial court assessed punishment,

pursuant to appellant’s punishment election, at confinement in the Institutional Division

of the Texas Department of Criminal Justice (ID-TDCJ) for ten and one-half years.

Appellant has perfected her appeal and brings forth two issues. First, appellant

1 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West 2010). contends that the evidence is insufficient to link her to the controlled substance. By

appellant’s second issue, she argues that the evidence is factually insufficient to sustain

the conviction. We will affirm.

Factual and Procedural Background

In March of 2014, officers of the Amarillo Police Department received information

from a confidential informant that drugs were being sold at a residence located at 1218

Pecan Street, Amarillo, Texas. After acquiring this information, the officers prepared a

search warrant affidavit and search warrant to search the residence. A magistrate

signed the warrant, and it was executed on March 31, 2014. Danny Ray Allen and

Robert Earl Brown were the suspected persons listed in the search warrant. Appellant

was not listed as one of those suspected of selling drugs in the warrant.

At appellant’s trial, the testimony of the officers from the Amarillo Police

Department revealed that appellant was found in the bedroom on the street side of the

home. Officer Chris Holcomb testified that his job was to breach windows on the street

side of the house. After breaching the window next to the front door, Holcomb then

went to the converted garage bedroom and attempted to breach the window there.

However, this did not provide any ability to see into the bedroom because the window

was too high. Holcomb did pull a window air conditioner unit from a lower window and

was able to observe appellant in the bedroom. He watched appellant running about in

the bedroom, opening a metal container and retrieving two pill bottles from the inside.

Appellant then ingested the contents of the pill bottles and was observed chewing the

contents. Holcomb also observed appellant remove something from her bra and place

what she had removed into her mouth. Appellant continued her efforts at ingesting

2 various materials despite repeated demands from Holcomb to cease and get on the

floor. Further, Holcomb testified that appellant continued to roam about the room as if

searching for something. He observed her take a purple cigar tube and pour the

contents into her mouth.

The interior door to the bedroom had been locked, and it took a few moments for

the search warrant team to force entry into the room. According to Holcomb’s

testimony, it was during this time span that appellant ingested the various items. Once

the door was breached, appellant was subdued.

Officer Jaycin Smothermon entered the bedroom where appellant was and

testified that, when he entered the room, appellant continued to disobey the commands

given her. She appeared somewhat hysterical. At one point, appellant stated that she

had just swallowed her high blood pressure medicine. While observing appellant, after

she had been subdued, Smothermon noticed a piece of white rock-like substance on

her bottom lip. Smothermon reached to retrieve the material and appellant tucked her

lip under her front teeth and swallowed the material. During questioning at the scene,

appellant advised Smothermon that her personal identification was in the closet of the

bedroom. Knowing that appellant had been ingesting what the officers believed to be

drugs, Smothermon notified a supervisor, and an ambulance was requested to take

appellant to the hospital. Smothermon escorted appellant to the hospital.

At the hospital, appellant admitted to the nurse that she had ingested cocaine.

Once appellant was released from the hospital and taken to the Potter County Detention

3 Center, appellant also admitted to the nurse at the detention center that she had

ingested cocaine and, possibly, heroin.

When the search of the bedroom was conducted, the officers found a quarter of a

cookie of crack cocaine in a beer stein and numerous items of drug paraphernalia.

Officer Shea Lichtie testified about the items located in the bedroom where appellant

was found. He testified that he found a crack pipe on the bed. According to his

testimony, a crack pipe is used to smoke crack cocaine. Additionally, a loaded

Winchester 240 shotgun was found under the mattress of the bed. The beer stein that

contained the crack cocaine was located next to the bed in the northeast corner of the

room. Inside the beer stein, the crack cookie was contained in a cellophane baggie. A

box for a digital scale was found next to the beer stein. There was no digital scale in the

box; however, there was a calibration weight inside the box.

Officer Thomas Newton was also on the search warrant team, and his initial job

was to observe the house prior to execution of the warrant. He testified that he watched

the house for over an hour prior to the warrant being executed. Newton testified that

during this time he saw a number of people come to the house, stay for a short period,

and then exit and leave. He opined that this was a typical traffic pattern when there are

drug sales going on. Newton also searched the bedroom and located two sets of digital

scales. One set was located on the nightstand near where the beer stein had been

found. The other set of scales was located on the headboard of the bed.

The State also provided the testimony of the Department of Public Safety

forensic examiner who tested the alleged cocaine cookie seized in the bedroom.

4 According to this testimony, the contraband was cocaine in a cooked state and had a

weight of 5.90 grams.

Appellant testified on her own behalf. She testified that the cocaine she was

ingesting on the date of the search warrant was her own personal cocaine. Further,

appellant said she knew that Robert Brown was selling drugs but denied any connection

to the drugs found in the beer stein and any personal involvement in the sale of drugs.

Appellant admitted that, when she heard the search warrant team breach the front door,

she became scared and locked the door to the bedroom. As to how her personal

information came to be found in the closet of the bedroom, appellant testified that she

was cleaning the room and had just begun to move her stuff into the room.

However, on cross-examination, appellant admitted that she lived in the room.

She further admitted that she moved into the bedroom in February and that she had

been living in the bedroom for at least four weeks prior to the warrant being executed on

March 31, 2014. Additionally, appellant admitted that she had been convicted of a drug

offense and placed on probation in 2000.

The jury subsequently convicted appellant of possession of a controlled

substance in an amount of four grams or more but less than 200 grams. The trial court

sentenced appellant to ten and one-half years’ incarceration in the ID-TDCJ. This

appeal followed.

Appellant now contends that there was insufficient evidence linking her to the

drugs found at the scene of the search warrant. Further, appellant seems to contend

5 that the evidence is factually insufficient to support the jury’s verdict. We disagree for

the reasons hereinafter stated and will affirm.

Sufficiency of the Evidence

Initially, we must address the effort of appellant and, for that matter, the response

of the State to appellant’s second issue. Through her second issue, appellant appears

to be asking the Court to review the jury’s verdict under a factual sufficiency standard of

review. However, the Texas Court of Criminal Appeals has dismissed the factual

sufficiency review in Brooks v. State. See 323 S.W.3d 893, 912 (Tex. Crim. App. 2010).

There, the court held that the Jackson v. Virginia2 standard is the only standard that a

reviewing court should apply in determining whether the evidence is sufficient to support

each element of a criminal offense that the State is required to prove beyond a

reasonable doubt. Id. Further, the court overruled all cases to the contrary. Id. We no

longer have a factual sufficiency review in Texas and we will review the evidence in this

case under the guidelines set forth in Brooks.

Standard of Review

In assessing the sufficiency of the evidence, we review 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 offense beyond a reasonable doubt. Jackson,

443 U.S. at 319; Brooks, 323 S.W.3d at 912. “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a fact finder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

2 Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

6 conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.” Id.

(Cochran, J., concurring). When reviewing all of the evidence under the Jackson

standard of review, the ultimate question is whether the jury’s finding of guilt was a

rational finding. See id. at 906, 907 n.26 (discussing Judge Cochran’s dissenting

opinion in Watson v. State, 204 S.W.3d 404, 448–50 (Tex. Crim. App. 2006), as

outlining the proper application of a single evidentiary standard of review). “[T]he

reviewing court is required to defer to the jury’s credibility and weight determinations

because the jury is the sole judge of the witnesses’ credibility and the weight to be given

their testimony.” Id. at 899.

The sufficiency standard set forth in Jackson is measured against a

hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.

App. 1997). Such a charge is one that accurately sets forth the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or

unnecessarily restrict the State’s theories of liability, and adequately describes the

particular offense for which the defendant was tried. Id. The “‘law’ as ‘authorized by the

indictment’ must be the statutory elements of the offense” charged “as modified by the

charging instrument.” Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000)

Applicable Law

When, as in this case, the charge against an accused is possession of a

controlled substance, the State is required to prove that appellant knowingly and

7 intentionally possessed a controlled substance in an amount of four grams or more but

less than 200 grams. In order to prove the required element of possession, the State

must show that the appellant (1) exercised “actual care, custody, control or

management” of the controlled substance and (2) knew the matter possessed was

contraband. See TEX. PENAL CODE ANN. § 1.07(a)(39) (West Supp. 2014); Poindexter v.

State, 153 S.W.3d 402, 405–06 (Tex. Crim. App. 2005).

In the situation where the appellant does not have exclusive possession of the

controlled substance or the site where the controlled substance is found, such as we

have in this case, we may not conclude or presume that the appellant had possession

over the controlled substance unless there are other independent facts or links that tend

to connect appellant to the knowing possession of the controlled substance. Evans v.

State, 202 S.W.3d 158, 161–62 (Tex. Crim. App. 2006). The mere presence of

appellant at the scene where the controlled substance was found does not, in and of

itself, make her a party to the possession of those controlled substances. See Triplett v.

State, 292 S.W.3d 205, 208 (Tex. App.—Amarillo 2009, pet. ref’d). Because mere

presence does not furnish the link to establish that appellant’s connection with the

controlled substance is anything more than merely fortuitous, the State must present

direct or circumstantial evidence to establish the link between appellant and the

controlled substance. See Evans, 202 S.W.3d at 161. As pointed out in Poindexter, the

rule requiring linkage between appellant and the controlled substance is designed to

protect the innocent bystander from conviction because they were within proximity of

someone else’s illegal contraband. See Triplett, 292 S.W.3d at 208.

8 Courts have found numerous factors useful in determining whether an accused’s

link to a controlled substance was more than just fortuitous. Affirmative links may

include, but are not limited to the following considerations: (1) whether the contraband

was in plain view or recovered from an enclosed place; (2) whether the defendant was

the owner of the premises or had the right to possess or control the place where the

contraband was found; (3) whether the defendant was found in possession of a large

amount of cash; (4) whether the contraband was conveniently accessible to the

defendant; (5) whether the contraband was found in close proximity to the defendant;

(6) whether an odor of contraband was present; (7) whether the defendant possessed

other contraband when arrested; (8) whether the defendant possessed paraphernalia to

use the contraband; (9) whether paraphernalia to use the contraband was available to

or in plain view of the defendant; (10) whether the physical condition of the defendant

indicated recent consumption of the contraband in question; (11) whether conduct by

the defendant indicated a consciousness of guilt; (12) whether the defendant made any

incriminating statements when arrested; (13) whether the defendant attempted to flee;

(14) whether the defendant made furtive gestures; (15) whether the defendant had a

special connection to the contraband; (16) whether the persons present gave conflicting

statements about relevant matters; (17) the quantity of the contraband discovered; (18)

whether the defendant was armed; (19) whether the defendant was observed in a

suspicious place under suspicious circumstances; (20) whether the accused was

familiar or had previous experience with drugs; and, (21) whether any forensic evidence

(e.g., fingerprints, DNA, etc.) connects the defendant to the contraband or its container.

See id. at 209. It is not the number of factors present that is important but the logical

9 force of these factors which determines whether the State’s evidence links appellant to

the contraband. See Evans, 202 S.W.3d at 162.

Analysis

From the record before us, we find evidence that shows that appellant was the

sole occupant of the room when the search warrant was executed. Upon hearing the

police enter the house, appellant began looking for drugs in the room. Appellant then

consumed the drugs that she found. Appellant locked the door to the bedroom which

then delayed the entry of the police into that room. Appellant admitted that she had

moved into the bedroom sometime in February 2014, which was several weeks before

the warrant was executed. Her personal identification was found in the closet in the

bedroom. Appellant acknowledged knowing that crack cocaine was being sold out of

the residence. The crack cocaine was found in a beer stein located adjacent to the only

bed in the room. That beer stein was conveniently accessible to appellant.

Paraphernalia for the use and distribution of cocaine was found in plain view in the

room. On the day of the search warrant, activity consistent with drug sales occurred in

the house in the hour or so immediately preceding the execution of the search warrant.

Appellant admitted that she was in possession of cocaine at the time the warrant was

executed. Appellant also admitted that she had been previously convicted of a drug

offense in 2000.

All of the links recited in the foregoing paragraph provide the type of connection

back to appellant, either directly or circumstantially, to prove the elements of the

10 offense. See id. at 161. Appellant’s connection to the crack cocaine was more than just

fortuitous. See id.

Appellant’s major contention is that, because the actual crack cocaine cookie

was found inside the beer stein and because she was not aware of its presence, she

could not have been in possession of said crack cocaine. This is simply one of the

many pieces of evidence that the jury had for consideration. We do not focus on one bit

of evidence; rather, it is the logical force behind the cumulation of evidence that carries

the question. See id. at 162. Further, appellant’s denial of any knowledge of the

contents of the beer stein was a matter for the jury to weigh, as they are the arbiters of

weight and credibility of the evidence. See Brooks, 323 S.W.3d at 899.

Appellant continues to list approximately 20 other purported pieces of connecting

evidence that do not tie appellant to the crack cocaine or the drug sales occurring at the

Pecan Street house. However, most, if not all, of these absent pieces of evidence cited

by appellant, are subject to the jury’s view about the credibility of appellant’s testimony

or resolution with contrary evidence. See id. By way of example, appellant claims that

she was not found in close proximity to the crack cocaine, and, in fact, she was moving

away from it. However, the jury heard that all of appellant’s activity during the search

was confined to a small bedroom. While she may have been moving from one area of

the bedroom to the other, a jury could still find that she was found in close proximity to

the crack cocaine. Likewise, as a circumstance that does not show a link to the

contraband, appellant points out that she did not possess other contraband when

arrested. As a statement of fact about a very specific point in time, the moment of her

arrest, the statement is true. However, the record reveals that the reason it is true is

11 because appellant ingested the contraband that she could get her hands on. Appellant

admitted as much to at least two medical professionals, and the action was viewed by

one of the officers. So, it is not difficult to see why the jury could have found that

appellant was, in fact, in possession of other contraband when arrested despite the

evidence appellant cites in support of her contention.

When all of the evidence is viewed in the light most favorable to the jury’s verdict,

which we must do in an evidentiary sufficiency review, we conclude that the jury’s

finding of guilt was a rational finding. See id. at 917. Therefore, appellant’s issue to the

contrary is overruled.

Our decision regarding appellant’s first issue and the fact that Texas does not

recognize factual sufficiency review pretermit any consideration of appellant’s second

issue. See TEX. R. APP. P. 47.1.

Conclusion

Having overruled appellant’s issue, we affirm the judgment of the trial court

convicting appellant.

Mackey K. Hancock Justice

Do not publish.