Charla Jeanne Thompson v. State ( 2016 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-16-00145-CR
CHARLA JEANNE THOMPSON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 432nd District Court
Tarrant County, Texas
Trial Court No. 1414473D, Honorable Ruben Gonzalez, Jr., Presiding
November 18, 2016
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
A jury convicted appellant Charla Jeanne Thompson of possession of one gram
or less of a controlled substance, methamphetamine, and assessed punishment at nine
years’ confinement in prison and a fine of $10,000.1 The trial court imposed sentence
accordingly. Through a single issue on appeal, appellant argues the evidence was
1
Possession of less than one gram of methamphetamine is a state jail felony.
TEX. HEALTH AND SAFETY CODE ANN. § 481.112(a),(b) (West 2010). Punishment here
was enhanced to a third-degree felony based on appellant’s two prior state jail felony
convictions. TEX. PENAL CODE ANN. § 12.425(a) (West Supp. 2016).
insufficient to prove appellant knowingly possessed the contraband. Finding the proof
of this element of the State’s case-in-chief was sufficient, we will overrule appellant’s
issue and affirm the judgment of the trial court.
Background
Around 8:00 a.m. on May 15, 2015, the Fort Worth police department received a
call reporting a suspicious person outside a house. The caller lived across the street
from the house and testified at trial he saw a female walking around the house. She
was knocking and banging on the door and trying to enter through the windows. After
this had gone on for forty-five minutes to an hour, the caller telephoned the police.
According to the caller’s testimony, police were often at the house because of “domestic
violence, fighting, yelling, screaming.” Two officers were dispatched to investigate the
caller’s report. One of them testified at trial.
At the house, the officers found a female sitting on the front porch steps. She
told the testifying officer she had a driver’s license but it was suspended. She also said
she was waiting for a friend, but was unable to provide the friend’s name. The officer
agreed on cross-examination that the woman told him her bicycle was broken, she was
acquainted with the person who lived in the house, and she needed to use the
telephone.
While speaking with the woman, the officer noticed a white styrofoam cup sitting
nearby on the porch. The cup contained what the officer described as “dirty pond water.
Like slimy, green, gross.”
2
After verifying the spelling of the woman’s name, the testifying officer went to his
patrol car to run a background check. His initial search failed to identify a suspended
driver’s license in the name given him but, accessing other records, the officer learned
the woman had outstanding arrest warrants. At trial, he identified the woman as
appellant.
During his computer search, the officer testified, he maintained visual contact
with appellant. Though he could not see her whole body from his patrol car, he could
see appellant from “about jaw line up.” Asked if he saw “anyone else approach the
porch area,” the officer responded, “Not at all. Not at all. There was no one else in the
given area.” He also told the jury he “would have been able to see anybody approach
the house, or anybody walk out of the front door of the house, I would have been able to
see.” After learning of the outstanding warrants, he returned to the porch to arrest
appellant.
As he placed appellant in handcuffs, the officer noticed spilled water around the
white styrofoam cup and that a “full-size sandwich baggie” was now sticking out of the
cup. The officer thought this “quite odd” since he “kn[ew] for a fact” the baggie was not
in the cup when he initially encountered appellant. Wearing gloves, the second officer
removed the baggie from the cup. The testifying officer observed the baggie contained
a substance he believed was methamphetamine. A same-day test at the jail and
subsequent analysis by a forensic scientist proved the officer’s preliminary assessment
correct. During his testimony, the officer performed a demonstration of the cup and
baggie for the jury using a paper cup taken from counsel table and a tissue.
3
The testifying officer transferred the contents of the baggie to an evidence bag
but did not preserve the baggie, believing it a “biohazard.” The styrofoam cup was also
not preserved. Photographs of the baggie and the cup were not made.
The officer agreed on cross-examination there was no report that appellant was
intoxicated at the time of the encounter. When asked later during cross-examination if
appellant appeared intoxicated the officer said she was “tweaking.” 2
Analysis
As noted, in her sole issue appellant argues the evidence was insufficient to
prove she knowingly possessed the contraband. In the indictment the State alleged
appellant “intentionally or knowingly possess[ed] a controlled substance, namely
methamphetamine, of less than one gram, including adulterants or dilutants[.]”
In determining whether the evidence is sufficient to support a conviction, a
reviewing court must consider all of the evidence in the light most favorable to the
verdict and determine whether, based on that evidence and reasonable inferences
therefrom, a rational fact finder could have found the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).
This “familiar standard gives full play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. Circumstantial
2
The term “tweaking” has been used to designate a phase of methamphetamine
use. See Durham v. State, No. 10-04-00248-CR, 2005 Tex. App. LEXIS 8826, at *42
(Tex. App.—Waco Oct. 26, 2005, pet. refused) (mem. op.).
4
evidence is as probative as direct evidence in establishing the guilt of the actor, and
circumstantial evidence alone may be sufficient to establish guilt. Carrizales v. State,
414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007)).
To prove unlawful possession of a controlled substance, the State must prove
that: (1) the accused exercised control, management, or care over the substance; and
(2) the accused knew the matter possessed was contraband. Evans v. State, 202
S.W.3d 158, 161 (Tex. Crim. App. 2006); TEX. HEALTH & SAFETY CODE ANN.
§ 481.002(38) (West Supp. 2016). Possession means “actual care, custody, control, or
management.” TEX. HEALTH & SAFETY CODE ANN. § 481.002(38); TEX. PENAL CODE ANN.
§ 1.07(a)(39) (West Supp. 2016). A person commits a possessory offense only if she
voluntarily possesses the prohibited item. TEX. PENAL CODE ANN. § 6.01(a) (West 2011).
Possession is a voluntary act if the possessor knowingly obtains or receives the thing
possessed or is aware of her control of the thing for a sufficient time to permit her to
terminate her control. TEX. PENAL CODE ANN. § 6.01(b).
When the accused is not in exclusive control of the place where the contraband
is found, the State must establish care, custody, control, or management by linking the
accused to the substance through additional facts and circumstances. Evans, 202
S.W.3d at 161-62; Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005),
overruled on other grounds by Robinson v. State, 466 S.W.3d 166, 173 n.32 (Tex. Crim.
App. 2015). Whether the State’s evidence is direct or circumstantial, its evidence of
links must establish, to the requisite level of confidence, that the accused’s connection
with the drug was more than just fortuitous. Poindexter, 153 S.W.3d at 405-06 (citing
5
Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)); Park v. State, 8 S.W.3d
351, 353 (Tex. App.—Amarillo 1999, no pet.).
The many factors by which an accused may, under the unique circumstances of
each case, be sufficiently “linked” to the contraband, include: (1) the defendant’s
presence when a search is conducted; (2) whether the contraband is in plain view; (3)
the defendant’s proximity to and the accessibility of the contraband; (4) whether the
defendant was under the influence of contraband 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. Evans, 202
S.W.3d at 162 n.12. See Triplett v. State, 292 S.W.3d 205, 208 (Tex. App.—Amarillo
2009, pet. refused) (listing numerous factors). These factors, however, are simply that:
factors which may circumstantially establish the sufficiency of evidence offered to prove
a knowing “possession.” See Evans, 202 S.W.3d at 162 n.12 (explaining that factors
“are not a litmus test”). It is not the number of links that is dispositive, but rather the
logical force of all the evidence. See id. at 162.
For the argument that the evidence of her possession of contraband was
insufficient because the proof failed to sufficiently link her to the contraband, appellant
6
relies chiefly on cases such as Oaks v. State, 642 S.W.2d 174 (Tex. Crim. App. 1982)
and Hernandez v. State, 517 S.W.2d 782 (Tex. Crim. App. 1975).3 While these cases
deal with questions of the sufficiency of proof under circumstances where the accused
was not in exclusive possession of the contraband or the location, we do not find any of
them sufficiently analogous to guide our decision.4 Particularly, in none of them did the
reviewing court find the character and quality of proof here presented by the State.
The testifying officer encountered appellant on the steps of the house and at that
time first observed the styrofoam cup in plain view. The foul appearance of the water in
the cup caught his attention. Without equivocation he testified the cup did not contain
the baggie, nor was there spilled water around the cup, at that point in time. The officer
maintained sight of appellant’s head and the porch area while checking records in his
patrol car. No one was present on the porch but appellant. The officer returned to
3
She cites also Schultz v. State, 502 S.W.2d 817 (Tex. Crim. App. 1973);
Haynes v. State, 475 S.W.2d 739 (Tex. Crim. App. 1971); Allen v. State, 249 S.W.3d
680 (Tex. App.—Austin 2008, no pet.); and Meyers v. State, 665 S.W.2d 590 (Tex.
App.—Corpus Christi 1984, pet. refused). She also generally cites Martin v. State, 753
S.W.2d 384 (Tex. Crim. App. 1988) and Meeks v. State, 692 S.W.2d 504, 511 (Tex.
Crim. App.1985).
4
Parenthetically, most of these cases predate Geesa v. State, 820 S.W.2d 154
(Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d
570, 573 (Tex. Crim. App. 2000). In Geesa the Court of Criminal Appeals abandoned
the alternative-reasonable-hypothesis sufficiency analysis that required “[a] conviction
based on circumstantial evidence [to] exclude every other reasonable hypothesis except
the guilt of the accused.” Carlsen v. State, 654 S.W.2d 444, 447 (Tex. Crim. App.
1983), overruled by Geesa, 820 S.W.2d at 161. Courts now examine both direct and
circumstantial evidence in the same manner; reasonable inferences are not disregarded
when drawn from circumstantial evidence. Anderson v. State, No. 02-15-00405-CR,
2016 Tex. App. LEXIS 4187, at *9-10 (Tex. App.—Fort Worth Apr. 21, 2016, no pet.)
(mem. op.) (not designated for publication) (citing Dobbs v. State, 434 S.W.3d 166, 170
(Tex. Crim. App. 2014); Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014);
and Hearne v. State, 80 S.W.3d 677, 680 (Tex. App.—Houston [1st Dist.] 2002, no
pet.)).
7
arrest appellant for outstanding warrants. As he placed her in handcuffs he saw the cup
now contained the baggie and saw the spilled water near the cup. Appellant was in
near proximity to the cup and no one else had access to the cup from the officer’s
perspective until he returned from the patrol car. In other words, the area was in
appellant’s exclusive possession at that time. Cf. Mesa v. State, No. 13-10-00604-CR,
2011 Tex. App. LEXIS 8358, at *12-13 (Tex. App.—Corpus Christi Oct. 20, 2011, no
pet.) (mem. op., not designated for publication) (finding fact that defendant exclusively
possessed vehicle when contraband was located significantly linked defendant to
contraband).
As fact finder, the jury was the sole judge of the credibility of the witnesses and
was entitled to believe all, some, or none of the testimony presented. Lancon v. State,
253 S.W.3d 699, 707 (Tex. Crim. App. 2008); Chambers v. State, 805 S.W.2d 459, 461
(Tex. Crim. App. 1991). We may not reweigh the evidence or second-guess the jury’s
credibility determinations. Perez v. State, No. 07-11-00249-CR, 2012 Tex. App. LEXIS
2647, at *9-10 (Tex. App.—Amarillo Apr. 4, 2012, no pet.) (mem. op., not designated for
publication).
Appellant exercised her right not to testify and did not present a case-in-chief in
defense. The only narrative of the events the jury heard thus was from the officer. If
accepted, the officer’s testimony without question allowed the jury to infer appellant put
the baggie in the cup, and spilled the water doing so. Viewing all of the evidence under
the required standard, we conclude the jury was free to conclude appellant knowingly
possessed the methamphetamine. We overrule appellant’s issue on appeal.
8
Conclusion
Having overruled appellant’s issue, we affirm the judgment of the trial court.
James T. Campbell
Justice
Do not publish.
9