Opinion
NO. 01-16-00144-CR
02-16-2017
JOHN JACOB TOUMEY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court Harris County, Texas
Trial Court Case No. 1436196
MEMORANDUM OPINION
A jury found appellant, John Jacob Toumey, guilty of the offense of possession of a controlled substance, namely, methamphetamine, weighing at least one gram but less than four grams. After finding true the allegations in two enhancement paragraphs that appellant had twice previously been convicted of felony offenses, the trial court assessed his punishment at confinement for thirty-five years. In two issues, appellant contends that the evidence is insufficient to support his conviction.
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102, 481.115(a), (c) (Vernon 2010).
We affirm.
Background
Harris County Sheriff's Office Deputy T. Kirkley testified that during the evening of July 27, 2014, he was off-duty and visiting with a group of friends at the Texas Saloon, a nightclub in Pasadena. Toward the end of the night, Kirkley learned that one of his friends and appellant were arguing outside in the parking lot. Kirkley went outside and attempted to diffuse the argument. When appellant began yelling at Kirkley, Kirkley identified himself as a police officer and told appellant to leave or he would arrest him. When appellant refused, Kirkley told him that he was going to go to his car, retrieve his badge, and arrest him. When Kirkley returned holding a badge, appellant began running. Kirkley followed behind appellant, and, when appellant fell down, Kirkley fell on top of him, attempting to restrain his arms. Moments later, a Pasadena Police Department ("PPD") officer arrived at the scene.
PPD Officer B. McClain testified that while on duty on July 27, 2014, he was dispatched to the Texas Saloon to investigate a disturbance. When McClain arrived, he saw a group of people standing outside and appellant and Kirkley on the ground fighting. After McClain separated appellant and Kirkley, Kirkley identified himself as a peace officer. McClain then detained appellant, spoke with him and Kirkley, and arrested appellant for public intoxication, assault, and disorderly conduct. McClain patted down appellant's legs and back pockets for weapons, and he searched appellant's front pockets, turning them inside out. McClain found only personal items, i.e., keys and a cellular telephone. He then transported appellant to the PPD jail. At the jail, PPD Officer R. Koonce gave McClain a small piece of folded aluminum foil that Koonce had discovered in the left back pocket of appellant's pants. McClain noted that inside the aluminum foil, which was two inches long and two inches wide, were three baggies containing a crystalline substance that field-tested positive for methamphetamine and weighed 1.9 grams. McClain explained that when he had patted down appellant earlier at the scene, he had not felt the aluminum foil in appellant's pocket.
Officer Koonce testified that at the jail, he was able to perform a thorough search of appellant. When Koonce placed his hand all the way down into the right corner, along the right-hand seam, of the left back pocket of appellant's pants, he felt something poking him through his gloved finger. Koonce then removed from appellant's pocket a piece of folded aluminum foil that had something inside of it. Koonce noted that the foil was pressed against the seam so well that, when running a hand across the jeans, one could not feel the change between the seam and the foil. A. Carter, a former analyst for the PPD Crime Laboratory, testified that he tested the substance found in appellant's back pocket. The substance tested positive for methamphetamine and weighed 1.4599 grams.
James Brandin testified that while was working as a security officer at the Texas Saloon on July 27, 2014, he saw a group of off-duty law enforcement officers there consuming alcohol, being loud, and having a good time. Brandin noted that appellant, who is his friend and a regular customer of the nightclub, was intoxicated. During the evening, there was an altercation between appellant and one of the officers, but it subsided. Brandin subsequently, however, saw appellant running out of the club. Approximately ten minutes later, Brandin went outside and saw appellant standing near a patrol car by himself, with his shirt off and what appeared to be the contents of his pockets on the hood of the patrol car. Approximately fifteen to twenty minutes later, an officer arrested appellant.
Appellant's brother, Gerald Toumey, testified that he was with appellant at the Texas Saloon on the night of July 27, 2014. At some point during the evening, Gerald learned that appellant was outside the nightclub arguing with someone, whom Gerald later learned was Deputy Kirkley. Gerald went outside and attempted to diffuse the situation by getting in between them and telling appellant to leave. When appellant tried to leave, however, Kirkley and a woman tackled appellant and held him down. Kirkley "kept saying he was a cop" and started searching appellant. A PPD officer arrived and had appellant stand at his patrol car while the officer went and spoke with Kirkley. Gerald saw the contents of appellant's pockets, i.e., cellular telephone, wallet, and coins, on the ground where he had scuffled with Kirkley. Gerald picked up the items and placed them on the hood of the PPD patrol car. He explained that after the officer returned and searched appellant's front and back pockets, he did not find any narcotics. The officer then placed appellant in handcuffs and stated that he was arresting appellant for public intoxication.
Standard of Review
We review the legal sufficiency of the evidence by considering all of the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due process safeguard, ensuring only the rationality of the trier of fact's finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at 750. The jury, as the judge of the facts and credibility of the witnesses, could choose to believe or not to believe the witnesses, or any portion of their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Jenkins v. State, 870 S.W.2d 626, 628 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd). Our duty requires us "to ensure that the evidence presented actually supports a conclusion that the defendant committed" the criminal offense of which he is accused. Williams, 235 S.W.3d at 750.
Sufficiency of the Evidence
In his first and second issues, appellant argues that the evidence is insufficient to support his conviction for possession of a controlled substance because the State did not establish that he intentionally or knowingly possessed methamphetamine. Appellant asserts that the State presented "very little, if any, evidence of [his] knowledge of [his] possession of [the] controlled substance that was found on his person."
Although appellant frames his first issue as a challenge to the trial court's denial of his motion for a directed verdict, a challenge to a trial court's ruling on a directed verdict is a challenge to the legal sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). This Court now reviews the factual sufficiency of the evidence under the same appellate standard of review as that for legal sufficiency. Ervin v. State, 331 S.W.3d 49, 52-56 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd).
A person commits the offense of possession of a controlled substance if he "knowingly or intentionally possesses" a controlled substance, including methamphetamine. TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (c) (Vernon 2010); see also id. § 481.002(5) (Vernon Supp. 2016), § 481.102 (Vernon 2010). To prove that appellant possessed methamphetamine, the State was required to show that he (1) exercised control, management, or care over methamphetamine and (2) knew that the matter was methamphetamine. See Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011); see also TEX. HEALTH & SAFETY CODE ANN. § 481.002(38) (Vernon Supp. 2016) ("Possession" means "actual care, custody, control or management."); TEX. PENAL CODE ANN. § 6.03(a), (b) (Vernon 2011) (defining intentionally and knowingly). The issue is whether the evidence supports a reasonable inference that the defendant knowingly possessed the contraband. Jenkins, 870 S.W.2d at 628. In determining whether the defendant actually knew that he possessed narcotics, the jury may infer the defendant's knowledge from his acts, conduct, remarks, and from the surrounding circumstances. Menchaca v. State, 901 S.W.2d 640, 652 (Tex. App.—El Paso 1995, pet. ref'd).
Here, the evidence shows that methamphetamine was found wrapped in aluminum foil in a back pocket of appellant's pants while he was wearing them. Because the methamphetamine was located in a place over which appellant had exclusive control, the jury could have reasonably concluded, as it did, that appellant exercised care, management, and control over the methamphetamine. See Jenkins, 870 S.W.2d at 628 (sufficient evidence of possession where narcotics found inside defendant's front pants pocket); Mayes v. State, 831 S.W.2d 5, 7 (Tex. App.—Houston [1st Dist.] 1992, no pet.) (sufficient evidence of possession where crack pipe containing cocaine found in defendant's pants pocket); see also Blackman, 350 S.W.3d at 594.
Further, the fact that the methamphetamine was found on appellant's person supports the inference that he knowingly possessed it. See Jenkins, 870 S.W.2d at 628 (sufficient evidence of knowing possession of controlled substance where small tube containing white powdery residue found in defendant's pants pocket); King v. State, 857 S.W.2d 718, 720 (Tex. App.—Houston [14th Dist.] 1993), aff'd, 895 S.W.2d 701 (Tex. Crim. App. 1995) (sufficient evidence of knowing possession where cocaine found inside crack pipe in defendant's pants pocket); see also Blackman, 350 S.W.3d at 594; see, e.g., 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) ("It is rational for a jury to conclude that an individual is aware of the contents of his pants pocket.").
Officer Koonce also described how appellant had carefully hidden the aluminum foil containing the baggies of methamphetamine inside the pocket of his pants. Koonce did not discover the foil until he placed his hand all the way down into the right corner, along the right-hand seam, of the left back pocket of appellant's pants. Only after Koonce felt something poking him through his gloved finger did he discover and remove a folded piece of aluminum foil that had something inside of it. Koonce noted that the foil was pressed against the seam so well that, when running a hand across the jeans, one could not feel the change between the seam and the foil. From this evidence, the jury could have reasonably concluded that appellant intentionally or knowingly possessed the methamphetamine. See Menchaca, 901 S.W.2d at 652 (jury may infer defendant's intent or knowledge from his acts); Daniels v. State, 853 S.W.2d 749, 751 (Tex. App.—Houston [1st Dist.] 1993, no pet.) (defendant's act of concealing crack pipe in his pocket supported finding of knowing possession); Jarrett v. State, 818 S.W.2d 847, 848 (Tex. App.—Houston [1st Dist.] 1991, no pet.) (defendant's attempt to hide crack pipe from law enforcement officers constituted evidence of knowing possession).
Further, Officer McClain testified that in the baggies found in appellant's pants pocket he saw a crystalline substance that tested positive for methamphetamine and weighed 1.9 grams. And Carter testified that the substance tested positive for methamphetamine and weighed 1.4599 grams. "[I]f the controlled substance can be seen and measured, the amount is sufficient to establish that the appellant knew it was a controlled substance." Mayes, 831 S.W.2d at 6; see also Jenkins, 870 S.W.2d at 628; Sims v. State, 833 S.W.2d 281, 284; (Tex. App.—Houston [14th Dist.] 1992, pet. ref'd) (evidence of knowing possession sufficient where cocaine residue observed with naked eye); Jarrett, 818 S.W.2d at 848 (officer observed residue inside crack pipe).
Appellant argues that the State did not establish that he intentionally or knowingly possessed a controlled substance because it did not present evidence affirmatively linking him to the methamphetamine found in his pants pocket. The affirmative links doctrine applies, however, in instances in which the accused does not exclusively possess the place where the contraband is found. Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) ("The 'affirmative links rule' is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else's drugs."); Batiste v. State, 217 S.W.3d 74, 79-80 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Here, the State was not required to present evidence affirmatively linking appellant to the methamphetamine because it was found on his person in a place he exclusively controlled. See Utomi v. State, 243 S.W.3d 75, 79 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) (State must link defendant to contraband when "not found on the accused's person or when the accused is not in exclusive control over the place where the contraband is found").
Viewing the evidence in the light most favorable to the jury's verdict, we conclude that the jury could have reasonably found that appellant intentionally or knowingly possessed methamphetamine. See Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2788-89; Williams, 235 S.W.3d at 750. Accordingly, we hold that the evidence is sufficient to support appellant's conviction for the offense of possession of a controlled substance.
We overrule appellant's first and second issues.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice Panel consists of Justices Jennings, Keyes, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).