Opinion
NO. 01-10-00357-CR
09-22-2011
ARICK DANIL WASHINGTON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 121996
MEMORANDUM OPINION
Appellant Arick Danil Washington appeals a judgment convicting him of the first-degree felony of possession of a controlled substance with intent to deliver. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West 2010). Washington pleaded not guilty before the jury. The jury found Washington guilty and assessed his punishment at 35 years' confinement in the institutional division of the Texas Department of Criminal Justice. Washington challenges the sufficiency of the evidence to sustain his conviction. Concluding the evidence is sufficient, we affirm.
Background
In April 2009, Officer I.L. Jones of the Houston Police Department received information that men were dealing phencyclidine (PCP) near a liquor store in northern Houston. Specifically, the informant reported that customers would drive up and hand over their cigarettes to the dealers, who would dip the cigarettes into PCP. The dealers would return the PCP-laced cigarettes, for which most customers paid $10.
On the afternoon of April 15, Officer Jones and his partner, Officer K. Jacobs, along with a team of other officers conducted an undercover surveillance operation of the area near the liquor store. Officers Jones and Jacobs identified three men whom they suspected were dealing PCP: Washington, Andre Scott, and Eric Brown. During the nearly two-hour surveillance, the officers observed what they believed to be more than 10 hand-to-hand drug transactions, of which Washington carried out three or four. During each transaction, a person would drive up to and briefly meet with one of the suspected dealers. After each meeting, the suspected dealer approached a brown box located to the left of the liquor store door. From the box, he retrieved a white styrofoam cup, from which he would remove a brown vanilla extract bottle. The dealer would dip a cigarette into the bottle and return it to the customer. Washington and the two other men often met up and exchanged money among themselves.
When patrol officers drove into the liquor store parking lot, Scott, who was holding the vanilla-extract bottle, immediately threw the bottle back into the brown box. As the officers approached, they smelled the strong, characteristic odor of PCP. Washington was standing approximately five to seven feet away from the brown box when the officers arrested him and the two other men. Officer Jones's supervisor collected the vanilla extract bottle and gave it to Officer Jones. Later testing revealed that the bottle contained 7.4 grams of PCP. The police conducted a pat-down search of each of the men incident to the arrests. On Washington they found $2,342, consisting mostly of 20-, 10-, and 5-dollar bills. Officer Jones asked Washington whether he was currently employed, and Washington answered that he was not working at that time. Washington explained that he had collected the money for a funeral; however, the officers did not see any indication that the men had been fundraising. A narcotics dog alerted to the presence of a narcotic odor on the recovered money, but the record does not support the conclusion that the odor detected was PCP, because the dog had not been trained to detect the odor of PCP. Police inventoried Washington's car but found no contraband.
At trial, Officer Jones testified that he had worked in the Narcotics Division for approximately four years and that he was familiar with PCP. Officer Jones testified based on his experience combating street-level narcotics activity that users typically consume PCP by smoking tobacco or marijuana cigarettes that have been dipped into PCP. He also testified that PCP is usually stored in a bottle because it can be absorbed through one's skin. Based on his training, he believed that Washington and the other men were engaged in narcotics transactions because of the manner in which people approached in their cars and met with the men. Officer Jacobs likewise testified, based on her training and experience as a member of the Narcotics Division for three years, that Washington and the other men were selling narcotics. Specifically, she testified that the manner in which Washington, Scott, and Brown carried out the transactions conformed to typical PCP sales.
Sufficiency of the Evidence
In his sole issue on appeal, Washington challenges the legal and factual sufficiency of the evidence to sustain his conviction of possession of a controlled substance with intent to deliver. Specifically, Washington argues that the evidence is insufficient because the police officers testified that they did not actually see the bills that were being exchanged; the police did not stop, search, or arrest any of the suspected buyers; there was no evidence showing the presence of PCP on the recovered money; and the police found no contraband or other incriminating evidence in his car.
A. Standard of Review
An appellate court reviews legal and factual sufficiency challenges using the same standard of review. See Griego v. State, 337 S.W.3d 902, 902 (Tex. Crim. App. 2011). "Under this standard, evidence is insufficient to support a conviction if considering all record evidence in the light most favorable to the verdict, a factfinder could not have rationally found that each essential element of the charged offense was proven beyond a reasonable doubt." Gonzalez v. State, 337 S.W.3d 473, 478 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)). Evidence is insufficient under this standard in four circumstances: (1) the record contains no evidence probative of an element of the offense; (2) the record contains a mere "modicum" of evidence probative of an element of the offense; (3) the evidence conclusively establishes a reasonable doubt; and (4) the acts alleged do not constitute the criminal offense charged. Gonzalez, 337 S.W.3d at 479; see Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. at 2786, 2789 & n.11. The sufficiency of the evidence is measured by the elements of the offense as defined in a hypothetically correct jury charge, which is one that accurately sets out 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. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). If an appellate court finds the evidence insufficient under this standard, it must reverse the judgment and enter an order of acquittal. Gonzalez, 337 S.W.3d at 479.
An appellate court determines whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence 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)). When the record supports conflicting inferences, an appellate court presumes that the factfinder resolved the conflicts in favor of the verdict and defers to that resolution. Id. (citing Jackson, 443 U.S. at 326, 99 S. Ct. at 2793). "An appellate court likewise defers to the factfinder's evaluation of the credibility of the evidence and the weight to give the evidence." Gonzalez, 337 S.W.3d at 479. In viewing the record, a court treats direct and circumstantial evidence equally: circumstantial evidence can be as probative as direct evidence, and circumstantial evidence alone can be sufficient to establish guilt. Clayton, 235 S.W.3d at 778 (quoting Hooper, 214 S.W.3d at 13).
B. Law Applicable to Possession with Intent to Deliver
A person commits the offense of possession of a controlled substance with intent to deliver if the person (1) possesses a controlled substance, (2) knows that the substance is a controlled substance, and (3) intends to deliver the substance. TEX. HEALTH & SAFETY CODE ANN. § 481.112(a). A person possesses an object if he has actual care, custody, control, or management of that object. Id. § 481.002(38) (West 2010). Possession need not be exclusive. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). When the accused is not in exclusive possession of the place where the controlled substance is found, then additional, independent facts and circumstances must affirmatively link the accused to the substance in such a way that it can reasonably be concluded that the accused possessed the substance and had knowledge of it. Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005); Kibble v. State, 340 S.W.3d 14, 18 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). The following are some affirmative links that may circumstantially establish the sufficiency of the evidence to prove knowing possession: (1) the defendant's presence when a search is conducted; (2) whether the substance was in plain view; (3) the defendant's proximity to and the accessibility of the substance; (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 substance was found; (12) whether the place where the substance was 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. Evans, 202 S.W.3d at 162 n.12. Not all of these factors must be proved; rather, it is the cumulative logical force the factors have in proving possession that we must consider. See James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008 pet. ref'd). Additionally, absence of some of the factors is not evidence of innocence that must be weighed against the factors that are present. Id.
A person intends to deliver a substance if it is his conscious objective or desire to transfer, actually or constructively, the substance to another. TEX. HEALTH & SAFETY CODE ANN. § 481.002(8); TEX. PEN. CODE ANN. § 6.03(a) (West 2011). Intent to deliver can be inferred from the acts, words, and conduct of the defendant. See Kibble, 340 S.W.3d at 18. Some factors to consider in determining intent include (1) the nature of the location where the defendant was arrested, (2) the quantity of drugs the defendant possessed, (3) the manner of packaging of the drugs, (4) the presence or absence of drug paraphernalia, (5) whether the defendant possessed a large amount of cash in addition to the drugs, and (6) the defendant's status as a drug user. Kibble, 340 S.W.3d at 18-19 (citing Williams v. State, 902 S.W.2d 505, 507 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd)). "These are evaluative factors for the court to take into consideration when reviewing the sufficiency of the evidence but are not each required to be present." Id. at 19. "Expert testimony may be introduced to prove intent to deliver." Id. (citing Rhodes v. State, 913 S.W.2d 242, 251 (Tex. App. —Fort Worth 1995), aff'd, 945 S.W.2d 115 (Tex. Crim. App. 1997)).
C. Analysis
Officers Jones and Jacobs testified that they observed Washington repeatedly take physical possession of the bottle containing PCP and dip cigarettes into it before returning the cigarettes to multiple persons. While Washington's physical possession of the PCP was not continuous and exclusive (i.e., Scott and Brown also held the PCP at times), multiple links further support the jury's finding that Washington knowingly possessed the PCP: the bottle containing the PCP was repeatedly brought into plain view; Washington was in close proximity— approximately five to seven feet—to the brown box from which the officers retrieved the bottle; the strong odor of PCP pervaded the immediate area; the bottle was hidden inside a styrofoam cup that was in turn hidden in a box; and Washington had a large amount of cash on him. See Evans, 202 S.W.3d at 162 n.12; see also Brewer v. State, 500 S.W.2d 504, 506 (Tex. Crim. App. 1973) (where appellant took marihuana for a brief period to "roll some smoke" but then returned marihuana to another individual without having done so, evidence was sufficient to show possession of marihuana); State v. Derrow, 981 S.W.2d 776, 779 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd) (evidence sufficient to show possession where officer testified he saw appellant pass brown paper bag containing contraband to driver of vehicle who attempted to hide bag).
Likewise, there is sufficient evidence of Washington's intent to deliver. Both officers testified that they saw Washington take cigarettes from the occupants of vehicles, dip the cigarettes into the bottle containing PCP, and return the cigarettes. Additionally, the jury could have inferred Washington's intent to deliver the PCP from several items of evidence: the nature of the location where he was carrying out the transactions and was arrested (namely, an area that Officer Jones testified is known for street-level narcotics transactions); the length of time Washington spent standing outside the liquor store; the number of transactions he conducted while under surveillance; the amount of PCP involved; the manner in which the PCP was packaged and stored; and the large amount of small-denomination bills in his possession. See Kibble, 340 S.W.3d at 18-19. Finally, two officers with experience in narcotics investigations testified that Washington's conduct during the surveillance was consistent with street-level PCP sales. See id. at 19 (expert testimony may be introduced to prove intent to deliver). Viewing the evidence in the light most favorable to the jury's verdict, a rational juror could have found Washington knowingly possessed the PCP with intent to deliver. See id.
We overrule Washington's sole issue.
Conclusion
We affirm the judgment of the trial court.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle. Do not publish. TEX. R. APP. P. 47.2(b).