Arick Danil Washington v. State

Opinion issued September 22, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00357-CR

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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 T ex . H ealth

& S afety C ode 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, a n

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 ). “ A n 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. T ex . H ealth

& S afety C ode 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. T ex .

H ealth & S afety C ode 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).