Rickey Lee Small v. State

Opinion issued July 7, 2011.

In The

Court of

Appeals

For The

First District

of Texas

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NO. 01-10-00983-CR

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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).