Rickey Lee Small v. State

Opinion

Opinion issued July 7, 2011.

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-10-00983-CR

———————————

Ricky Lee Small, Appellant

V.

The State of Texas, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Case No. 1267577

MEMORANDUM OPINION

          A jury convicted Ricky Lee Small of possession of a controlled substance, and the court sentenced him to thirteen years’ confinement. See Tex. Health & Safety Code Ann. §§ 481.115 (d), 481.102(8) (West 2010). Small argues that the evidence was legally and factually insufficient to support his conviction. We hold that the evidence is sufficient and therefore affirm.

Background

          While on patrol, police officer Gillean ran the license plate of a truck and discovered that it had been reported stolen. He pulled the driver of the truck over. Small was the driver. When Officer Gillean opened the driver’s side door of the truck, he noticed a “strong odor of PCP” wafting from inside the truck. Gillean removed Small from the truck, handcuffed him, and placed him in the back of the patrol car. Another police officer, Officer Garcia, removed a female passenger from the truck. Gillean searched the vehicle, and he discovered a vanilla extract bottle inside of a McDonald’s cup located in the driver’s side cup holder.

A Houston Police Department chemist analyzed the bottle’s contents and determined that it contained 10.1 grams of phencyclidine, commonly called “PCP.” The State charged Small with possession of a controlled substance, namely PCP, in an amount between four and 200 grams. See Tex. Health & Safety Code Ann. §§ 481.115(d), 481.102(8).

At trial, the State presented testimony from Officer Gillean and Mona Medalla, the HPD chemist. Officer Gillean testified that he “smelled a strong odor of PCP coming from inside the vehicle.” Gillean was familiar with the smell of PCP from his experience, and testified that the smell was easy to identify. He further testified that when he searched the vehicle Small was driving, he found the vanilla extract bottle “hidden in a McDonald’s cup in the driver’s side cup holder.” Gillean explained that the driver’s side cup holder was the one located closer to the driver, while another cup holder next to it was closer to the vehicle’s passenger.  Medalla testified about the process that she used to test the substance in the vanilla extract bottle and the test results. She verified that the bottle contained 10.1 grams of PCP. No other witnesses testified.

Analysis

A.      Standard of Review

Both legal and factual sufficiency challenges are reviewed under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979). Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Under this standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational factfinder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2788–89;  In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Viewed in the light most favorable to the verdict, the evidence is insufficient under this standard in two circumstances: (1) the record contains no evidence, or merely a “modicum” of evidence, probative of an element of the offense; or (2) the evidence conclusively establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. at 2789 n.11, 2789–90; Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750. Additionally, the evidence is insufficient as a matter of law if the acts alleged do not constitute the criminal offense charged. Williams, 235 S.W.3d at 750.

An appellate court determines whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007)). In viewing the record, direct and circumstantial evidence are treated equally. Id. Circumstantial evidence is as probative as direct evidence in establishing an actor’s guilt, and circumstantial evidence alone can be sufficient to establish guilt. Id. An appellate court presumes that the factfinder resolved any conflicting inferences in favor of the verdict and defers to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. An appellate court also defers to the factfinder’s evaluation of the credibility and weight of the evidence. See Williams, 235 S.W.3d at 750.

B.      Sufficiency of the Evidence

          To establish Small’s guilt, the State had to prove that (1) Small knowingly or intentionally possessed the PCP and (2) the aggregate weight of the PCP was four grams or more but less than 200 grams. Tex. Health & Safety Code Ann. § 481.115 (a), (d).

          1.       Knowing or Intentional Possession

          To prove possession, the State must show that Small (1) exercised actual care, custody, control or management over the PCP and (2) was conscious of his connection with it and knew what it was. See Tex. Health & Safety Code Ann. § 481.002(38) (West 2010) (defining “possession” as “actual care custody, control or management.”); Tex. Penal Code Ann. § 6.03(b) (West 2010) (providing that a person acts “knowingly” when “he is aware of the nature of his conduct or that the circumstances exist”); Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). Possession of a controlled substance need not be exclusive, but mere presence at the location where the controlled substance is found does not, alone, establish possession. Evans v. State, 202 S.W.3d 158, 162. However, presence or proximity, when combined with other circumstantial or direct evidence, may be sufficient to establish possession beyond a reasonable doubt. Id.

Texas courts have identified a number of affirmative links which may, alone or in combination with others, establish a person’s possession of 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.” Id. at n.12. The number of affirmative links present is not as important as the logical force the factors have in establishing the elements of the offense, and the absence of various potential affirmative links does not constitute evidence of innocence to be weighed against the affirmative links present. James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (citing Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App. 1976)).

Several affirmative links are present here. Small was the driver of the truck where the PCP was found. Small was in an enclosed space with the PCP, and it was found in the driver’s side cup holder next to Small, giving him easy access to it. A strong odor of PCP emanated from the truck when Officer Gillean opened the truck’s driver’s side door. The vanilla extract bottle was secreted inside the McDonald’s cup, indicating that its presence in the car was not accidental. This evidence, viewed in a light most favorable to the verdict, is sufficient to prove knowing or willful possession of contraband. See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. at 2789 n.11, 2789–90; Laster, 275 S.W.3d at 518.

          2.       Presence of Four to 200 Grams of PCP

The chemist’s uncontroverted testimony establishes that the vanilla extract bottle contained 10.1 grams of PCP. This evidence is sufficient to prove possession of between four and 200 grams of a controlled substance. See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. at 2789 n.11, 2789–90; Laster, 275 S.W.3d at 518.

Accordingly, we hold that the evidence is legally and factually sufficient to support the jury’s verdict. See Lewis v. State, 664 S.W.2d 345, 349 (Tex. Crim. App. 1984) (holding evidence sufficient to show passenger of car’s joint or sole possession when marihuana was found scattered about on rear seat of car, rolling papers of same brand used to roll marihuana cigarettes were located in rear seat between accused’s seat and other passenger’s seat, marihuana was found on floorboard, and interior of car smelled of marihuana); Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981) (holding evidence sufficient to link driver of vehicle, which contained another passenger, to contraband found inside vehicle when contraband was found on the driver’s side of the vehicle, easily accessible to driver, and in open view); Martinets v. State, 884 S.W.2d 185, 188 (Tex. App.—Austin 1994, no pet.) (finding sufficient affirmative links to support conviction of driver of car, which had passenger, when marihuana and drug paraphernalia was found on driver’s side of car, conveniently accessible to driver, and car’s interior smelled of marihuana).

Conclusion

          We conclude that sufficient evidence supports the conviction and therefore affirm the judgment of the trial court.

                                                                   Jane Bland

                                                                   Justice

Panel consists of Justices Keyes, Higley and Bland.

Do not publish.   Tex. R. App. P. 47.2(b).