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 2006-10

Timothy Shane Phillips v. State ( 2006 )


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  • In The



    Court of Appeals



    Ninth District of Texas at Beaumont



    ____________________



    NO.
    09-05-197 CR

    ____________________



    TIMOTHY SHANE PHILLIPS, Appellant



    V.



    STATE OF TEXAS, Appellee



    On Appeal from the 163rd District Court

    Orange County, Texas

    Trial Cause No. B-050008-R



    MEMORANDUM OPINION

    A jury convicted appellant Timothy Shane Phillips of possession of a controlled substance. See Tex. Health & Safety Code Ann. § 481.115(c) (Vernon 2003). Phillip's sole issue on appeal challenges the legal and factual sufficiency of the evidence to support the verdict. We affirm.

    Darren Mooney, a sergeant in the patrol division of the Orange County Sheriff's Department, testified he responded to a call at approximately 3:50 a.m. regarding a possible burglary of a motor vehicle in progress. Sergeant Mooney and Corporal Kevin Tate drove to the location in Orange County, Texas. On their way, dispatch informed them that "three male subjects" had entered a residence at 175 Alex Street.

    They arrived at 175 Alex and first checked the car parked on Bay Street that was reported as being burglarized. According to Sergeant Mooney, he and Corporal Tate stepped up onto the front porch of the mobile home at 175 Alex. The front metal door was open but the storm glass door was closed, allowing the officers to see into the mobile home. Sergeant Mooney could see into an adjacent bedroom and observed three males kneeling down close together in the corner of the bedroom by a couch. Sergeant Mooney could not determine what they were doing. Sergeant Mooney identified Phillips in the courtroom as one of the males he observed kneeling down inside the mobile home.

    After the officers observed the three males for about ten seconds, a female in the residence walked past and saw the officers and announced the officers' presence. One of the males, LaBray, sat on the couch and the other two, appellant Phillips and Summers, came outside. The officers questioned Phillips about the burglarized vehicle. Phillips told the officers he had locked his keys in his car and earlier they had gathered around his vehicle trying to get into it. Sergeant Mooney testified Phillips appeared "very nervous" and "was shaking uncontrollably."

    Summers gave the officers consent to search the bedroom. Sergeant Mooney walked binto the bedroom and found a pipe used for smoking cocaine or marijuana on the dresser. He then walked over toward the corner of the couch where the three males had been kneeling, and he lifted up a couch cushion. He found four small plastic "baggies" attached together with a safety pin. He testified the "baggies" appeared to contain methamphetamine.

    Sergeant Mooney testified all three males were arrested for possession of methamphetamine because they had control of it. LaBray, Summers, and Phillips had been kneeling down facing the cushion where the methamphetamine was located. The female was not arrested because she was at the other end of the house when the officers arrived on the scene.

    Corporal Kevin Tate testified he was a patrol deputy with the Orange County's Sheriff Department at the time of Phillips' arrest. He testified he walked onto the mobile home's porch slightly before Sergeant Mooney did, and that he had a clear view into the residence through the closed storm door. He saw three males walk by the front door and go into the bedroom at the south end of the trailer. He could not tell what they were doing but they appeared to be "busy" and "doing some type of activity." He never saw all three of the males kneeling at the couch, but they went over to the couch and were "sitting, bending, moving" and "mov[ing] around a lot." He identified Phillips in the courtroom as one of the males kneeling in the trailer.

    Corporal Tate testified that upon the female's announcement of the officers' presence, Summers, the homeowner and resident of the trailer, came outside. The other two males and the female did not come outside until they were asked by the officers. Phillips identified himself for the officers and explained he had locked his keys in the car.

    Corporal Tate saw where Sergeant Mooney located the methamphetamine and Corporal Tate testified Phillips had been kneeling down with the other two males in the same area. According to Corporal Tate, Phillips was within arm's reach of where the methamphetamine was located and the drugs were in his care, custody, control, or management. He searched the males and found a syringe and a Q-tip in the front right pocket of Phillip's blue jeans. Corporal Tate explained syringes are often used to inject methamphetamines and Q-tips are used to keep the drug in one spot in order to easily draw the methamphetamines into the syringe. The syringe and Q-tip were collected as evidence but were not tested for methamphetamine residue.

    Phillips contends the evidence is legally and factually insufficient to support his conviction. In reviewing the legal sufficiency of the evidence, an appellate court reviews all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004)(citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). In reviewing the factual sufficiency of the evidence an appellate court must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). A reviewing court may find the evidence factually insufficient in two ways. Id. First, when considered alone, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. It is the sole province of the jury to determine the credibility of witnesses and to weigh contradictory testimony. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997).   

    To prove unlawful possession of a controlled substance, the State must establish the defendant exercised actual care, custody, control, or management over the substance and the defendant knew the substance was contraband. See Tex. Health & Safety Code Ann. § 481.002(38) (Vernon Supp. 2006), § 481.115(a) (Vernon 2003); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). The State need not prove exclusive possession of the contraband for conviction; control over contraband may be jointly exercised by more than one person. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985); State v. Derrow, 981 S.W.2d 776, 779 (Tex. App.--Houston [1st Dist.] 1998, pet. ref'd). Mere presence in the vicinity of a controlled substance does not, by itself, support a finding that a person is in joint possession or is a party to an offense. Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd). If the accused is not in exclusive possession of the place where the contraband is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances affirmatively linking the accused to the contraband. Poindexter, 153 S.W.3d at 406. An affirmative link may be established through either direct or circumstantial evidence, and must establish that the defendant's connection to the contraband was more than just fortuitous. Id. at 405-06.

    Circumstances which may indicate an affirmative link include: "(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." Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.--Houston [14th Dist.] 2005, no pet.). The quantity of factors established is not as important as the degree to which they affirmatively link the defendant to the contraband. Wallace v. State, 932 S.W.2d 519, 524 (Tex. App.--Tyler 1995, pet. ref'd).

    There are sufficient affirmative links in this case. Both officers testified Phillips was doing some type of activity and was facing the couch; Corporal Tate testified Phillips was within arm's reach of the methamphetamine. Drug paraphernalia consistent with injecting methamphetamine was found on Phillips. Sergeant Mooney testified Phillips was nervous and shaking uncontrollably, indicating a consciousness of guilt. Phillips was present during the officers' search of the room, and a pipe commonly used to smoke illegal drugs was found in plain view.

    Phillips argues the officers' inconsistent testimony cannot lead to a finding that Phillips was in possession of methamphetamine. The jury as the trier of fact "is the sole judge of the credibility of the witnesses and of the strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). Reconciliation of evidentiary conflicts is left exclusively to the jury. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).

    Reviewing all the evidence in the light most favorable to the verdict in a legal sufficiency review, we conclude a rational trier of fact could have found beyond a reasonable doubt that Phillips was guilty of the offense charged. Based on a factual sufficiency review of the entire record, we conclude the jury was rationally justified in its verdict; the verdict was not manifestly unjust or clearly wrong. Appellant's sole point of error is overruled.

    AFFIRMED.

    __________________________________

    DAVID GAULTNEY

    Justice

    Submitted on September 5, 2006

    Opinion Delivered October 11, 2006

    Do Not Publish



    Before McKeithen, C.J., Gaultney and Kreger, JJ.