Jonathan Brandon Henry v. State

Affirmed and Memorandum Opinion filed March 31, 2011.

In The

Fourteenth Court of Appeals

NOS. 14-10-00205-CR

        & 14-10-00206-CR

Jonathan Brandon Henry, Appellant

v.

The State of Texas, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause Nos. 1199676 & 1229096

MEMORANDUM OPINION

Appellant Jonathan Brandon Henry, in a single issue, challenges the sufficiency of the evidence to support his conviction for possession of a controlled substance with intent to deliver.  We affirm.

Factual and Procedural Background

Appellant was indicted for the felony offense of possession of a controlled substance with intent to deliver, to which appellant entered a plea of “not guilty.”[1] Appellant waived his right to a jury trial.

At a bench trial, the State presented evidence from a police officer who had conducted a narcotics investigation in which two confidential informants arranged to purchase crack cocaine from appellant. According to the officer’s testimony, the two informants had purchased narcotics from appellant in the past.  Pursuant to the investigation and in cooperation with the officer, the informants contacted appellant and arranged to meet at a convenience store.

The officer testified that before the scheduled meeting, he performed a search of the informants for contraband and currency and found none.  The officer provided the informants with $400 from police funds; the serial numbers from those bills had been photocopied to ensure subsequent identification.  The officer fitted one of the informants with an audio recording device.  The officer then directed the informants to stand in front of the convenience store so that the officer could keep them in his sight.  The officer pulled across the street where he could observe and hear via audio and video recording the events that were to transpire.  The officer then directed the informants to contact appellant; one informant made a phone call and indicated that appellant was on his way to the location and set to arrive in approximately fifteen minutes in a maroon-colored sport-utility vehicle.  Other officers set up surveillance at the convenience store. 

The officer observed a maroon sport-utility vehicle arrive at the convenience store about twenty minutes after the informant made the phone call; one of the informants verbally indicated that appellant had arrived.  Appellant drove the vehicle; a female passenger accompanied him. When the vehicle stopped, the informants entered the backseat of the vehicle. Via the recording device, the officer listened to the two informants inside the vehicle negotiate with the male driver of the vehicle for a $300 purchase of cocaine; after that transaction, the parties negotiated for a $100 purchase of cocaine. The officer testified as to his familiarity with the informants’ voices, based on his previous dealings with them, and distinguished their voices from the voices of the male driver, who participated in the sale of the narcotics, and the female passenger in the vehicle, who engaged in “small talk.”  The officer heard the occupants of the vehicle contemplate future narcotics transactions. The officer noted the informants had exited the vehicle and physically and verbally indicated to the officers that the transaction had occurred.  The officer observed appellant and the female passenger drive away in the vehicle.

The officer notified other officers, who were following appellant’s vehicle, that the transaction had occurred.  Those officers stopped appellant’s vehicle a short distance from the convenience store and took appellant and the female passenger into custody and searched them.  Inside the female passenger’s handbag, inside of appellant’s vehicle, officers located $400 in bills whose serial numbers matched the serial numbers on the photocopied bills.

The officer then met with the informants, who produced a bag containing a substance compromised of small rocks that later tested positive for cocaine weighing 4.44 grams.  The officer searched the informants and found no other contraband or currency.  Later that day, at the police station, the officer identified appellant as the driver of the maroon vehicle.  The officer conducted a videotaped interview with appellant in which appellant admitted participating in the narcotics transaction; the video recording was entered into evidence and played for the trial judge.

According to the officer’s testimony, the informants remained in his sight or custody from the time they met with him at the convenience store through the completion of the narcotics transaction.  He claimed to have maintained sight of the informants and appellant during the course of the entire transaction, and he testified that the informants did not encounter any other person besides appellant and the female passenger. 

The trial court found appellant guilty as charged. After finding an enhancement paragraph to be true, the trial court assessed punishment at twenty years’ confinement for each charge.

Analysis

In a single issue, appellant claims the evidence is insufficient to support his conviction for possession of a controlled substance with intent to deliver.  According to appellant, none of the officers who testified at trial witnessed appellant in possession of narcotics or conducting a narcotics transaction.

A majority of the judges of the Texas Court of Criminal Appeals have determined that “the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.”  Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (Hervey, J., joined by Keller, P.J., Keasler, and Cochran, J.J.); id. at 913–15 (Cochran, J., concurring, joined by Womack, J.) (same conclusion as plurality).  Therefore, in this case we will review the evidence under the Jackson v. Virginia standard.  See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).  Under this standard, we view the evidence in the light most favorable to the verdict.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).  The issue on appeal is not whether we, as a court, believe the State’s evidence or believe that appellant’s evidence outweighs the State’s evidence.  Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984).  The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt.  Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).  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).  The trier of fact may choose to believe or disbelieve any portion of the witnesses’ testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party.  Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).  Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm.  McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

A person commits an offense if he knowingly possesses, with intent to deliver, a controlled substance.  See Tex. Health & Safety Code Ann. § 481.112(A) (West 2010).  Cocaine is a controlled substance.  See id. § 481.102(3)(D).  “Possession” means “actual care custody, control or management.”  Id. § 481.002(38) (West 2003 & Supp. 2009).  To prove unlawful possession of a controlled substance, the State must establish that the accused (1) exercised care, control, or management over the contraband, and (2) knew the substance was contraband.  Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005).  The elements of possession may be proven through direct or circumstantial evidence, although the evidence must establish that the accused’s connection with the substance was more than fortuitous.  Id. at 405–06.  Evidence must link the accused to the offense so that one reasonably may infer that the accused knew of the contraband’s existence and exercised control over it.  Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). 

When contraband is recovered from a place other than the accused’s person or a place over which the accused did not have exclusive possession, the State must prove the accused’s knowledge and control over the contraband by demonstrating a “link” between appellant and the contraband.  See Utomi v. State, 243 S.W.3d 75, 79 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).  We consider under the totality of the circumstances whether the accused is linked to the contraband by independent facts and circumstances that connect appellant to the contraband.  See Hyett, 58 S.W.3d at 830.  

Courts have identified a non-exhaustive list of factors that may help show an accused is linked to a controlled substance, including (1) the accused’s presence when a search is conducted, (2) whether the contraband was in plain view, (3) the accused’s proximity to and the accessibility of the narcotic, (4) whether the accused was under the influence of narcotics when arrested, (5) whether other contraband or narcotics were found in the accused’s possession, (6) any incriminating statements the accused made when arrested, (7) whether the accused made furtive gestures or attempted to flee, (8) any odor associated with the contraband, (9) the presence of other contraband or paraphernalia, (10) the accused’s ownership or right to possess the place where the contraband was found, (11) whether the place where the contraband was found was enclosed, (12) whether the accused was found with a large amount of cash, and (13) whether the conduct of the accused indicated consciousness of guilt.  See Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006) (discussing “affirmative links,” which is legal jargon for the large variety of circumstantial evidence that may establish a knowing possession of contraband); Roberts v. State, 321 S.W.3d 545, 549 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (“[P]resence or proximity combined with other direct or circumstantial evidence (e.g. ‘links’) may be sufficient to establish the elements of possession beyond a reasonable doubt.”).  We also have considered the presence of a large quantity of contraband as a factor linking an appellant to the contraband.  See Olivarez v. State, 171 S.W.3d 283, 292 (Tex. App.—Houston [14th Dist.] 2005, no pet.).  The number of factors present is not as important as the logical force the factors create to prove the accused knowingly possessed the controlled substance.  Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

“Deliver” means to transfer, actually or constructively, a controlled substance to another.  See Tex. Health & Safety Code Ann. § 481.002(8) (West 2003).  Intent to deliver a controlled substance can be proven through circumstantial evidence, such as the quantity of the narcotics possessed or evidence that an accused possessed the contraband. Patterson v. State, 138 S.W.3d 643, 649 (Tex. App.—Dallas 2004, no pet.).  “Intent can be inferred from the acts, words, and conduct of the accused.”  Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995).  Expert testimony by an experienced law enforcement officer, as utilized in this case, may be used to establish an accused’s intent to deliver.  See Mack v. State, 859 S.W.2d 526, 529 (Tex. App.—Houston [1st Dist.] 1993, no pet.). 

Appellant asserts that the officers did not see him in possession of the narcotics and did not witness him participating in the narcotics transaction.  The evidence reflects that the informants, who facilitated the transaction, were searched before their meeting with appellant and had no contraband in their possession before meeting with appellant.  According to the officer’s testimony, the informants had purchased narcotics from appellant in the past, and the informants arranged to meet appellant at a specific location at which appellant was to sell narcotics to them; appellant arrived at that pre-arranged location in the anticipated vehicle shortly after an informant contacted him.  An officer observed the two informants enter appellant’s vehicle and heard via the transmitter the occupants of the vehicle first negotiate a narcotics transaction for $300 and then a narcotics transaction for $100.  The officer heard the entire exchange and could discern the informants’ voices from that of appellant’s, the only other male voice the officer heard via audio recording during the transaction.  The officer maintained sight of the informants throughout the entire transaction; afterward, the informants indicated that the transaction had been completed.  The informants did not encounter another person before handing over the bag containing crack cocaine to the officer.  Officers also recovered $400 from inside appellant’s vehicle; the serial numbers on these bills matched the serial numbers of the photocopied bills given to the confidential informants before the transaction.  In the videotaped interview at the police station, appellant admitted participating in the narcotics transaction.  These factors, especially when combined, can be considered evidence of appellant’s possession and knowledge of the presence and nature of the contraband and his control over the contraband; this evidence amply supports the trier-of-fact’s conclusion in that regard.  See Evans, 202 S.W.3d at 166.

Although the currency was found inside the female passenger’s handbag, the trial court, as trier of fact, was not required to believe that the money belonged to the female passenger, especially in light of appellant’s videotaped interview, in which appellant admitted both his participation in the narcotics transaction and his ownership of the vehicle.  See Roberts, 321 S.W.3d at 549–50 (concluding evidence was sufficient when contraband was found inside a jacket belonging to the accused’s wife that was inside a vehicle owned by the accused and his wife and when the accused made incriminating statement about possessing the contraband).  Moreover, the trier of fact reasonably could have inferred that the currency inside the handbag was well within appellant’s reach from the driver’s seat.  See id. at 551.

The evidence establishes sufficient facts and circumstances linking appellant to the crack cocaine, thus showing appellant’s possession, knowledge of and control over it.  See Poindexter, 153 S.W.3d at 405. After viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have determined that appellant exercised actual care, custody, control or management over the cocaine and then intended to deliver the crack cocaine.  See Evans, 202 S.W.3d at 166; Utomi, 243 S.W.3d at 80, 83 (involving sufficient evidence that an informant purchased crack cocaine from a defendant in a controlled buy).  Accordingly, the evidence is sufficient to support appellant’s conviction.  See Utomi, 243 S.W.3d at 80, 83.  We overrule appellant’s sole issue.

The trial court’s judgment is affirmed.

                                                                        /s/        Kem Thompson Frost

                                                                                    Justice

Panel consists of Chief Justice Hedges and Justices Frost and Christopher.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] Appellant was also convicted of assault, but he does not challenge the assault conviction in this appeal.