Jennifer Lynn Jackson a/k/a Jennifer Lynn Walker v. The State of Texas--Appeal from 115th District Court of Upshur County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00037-CR

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JENNIFER LYNN JACKSON,

A/K/A JENNIFER LYNN WALKER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 115th Judicial District Court

Upshur County, Texas

Trial Court No. 13,537

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Evidence was presented to a jury that the search of the vehicle driven by Jennifer Lynn Jackson, a/k/a Jennifer Lynn Walker, revealed it contained more than 1,400 grams of methamphetamine including adulterants and dilutants. The jury found Jackson guilty of the offense of possession of over 400 grams of methamphetamine with intent to deliver and assessed her punishment at twenty-five years' imprisonment. Jackson argues on appeal that the evidence is legally and factually insufficient to support the verdict and that the court erred by failing to submit a charge on a lesser offense of possession of less than 400 grams with intent to deliver. We find no error and affirm.

1. Factual Background

The evidence shows that Ryan Walker (Jackson's brother) called the 9-1-1 emergency number from a pay telephone at a store in Rosewood to complain that Jackson's boyfriend, Jason Hixon, had assaulted him several times at Ryan's home. Upshur County deputies Jeffrey Moore, Gabe Downs, and Mark Duaster responded and took Ryan to his home, where they found that Hixon and Jackson had taken Ryan's mother's pickup truck and driven away. The officers also determined that Hixon was wanted for violation of community supervision.

Deputy Downs found the vehicle about an hour later at the Rosewood store. When Deputy Moore arrived, he saw a male crouching by the passenger side of the truck out of Downs' line of sight. The person ran away; Moore drove his vehicle behind the store while Downs attempted to intercept the fleeing man. Immediately afterward, Jackson drove away in the truck, and Moore began to follow. While being chased, Jackson threw a black bag out of the window. She stopped the truck, and Moore removed her from it and placed her in a patrol car. Moore then retrieved the black bag Jackson had thrown from the car. The bag contained compact discs, some of which were labeled "Jennifer" and "Jennifer and Jason." The handbag also contained plastic tubing, razor blades, a hypodermic syringe, plastic baggies, and a butane fuel container. When the truck was searched, officers found another black purse and a black gym bag in the cab. A tub containing chemicals and paraphernalia associated with homemade methamphetamine was in the truck bed. The black purse found inside the truck contained Jackson's identification cards, receipts for Sudafed, razor blades, heat antifreeze, iodine, peroxide, and acetone. The gym bag contained bottles with a clear liquid, plastic baggies, and razor blades. After discovering the tub in the truck bed with containers labeled acetone, Moore concluded he had seized a mobile methamphetamine "lab" and, ultimately, the Texas Department of Public Safety (DPS) laboratory personnel was contacted to further investigate.

A DPS expert testified about how the items could be used to make methamphetamine and testified that the laboratory analysis of recovered liquids was that there were over 1,400 grams of methamphetamine, adulterants, and dilutants in the various liquids.

2. Sufficiency of the Evidence

a. Standard of Review

In reviewing the evidence for legal sufficiency, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979), which calls for us to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In our review of the evidence for factual sufficiency, we view all the evidence in a neutral light and determine whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 486 (Tex. Crim. App. 2004)).

b. Analysis

Jackson contends there is neither legally nor factually sufficient evidence to sustain a conviction for possession with intent to deliver. The argument is largely based on her testimony admitting that she had thrown the bag out because it contained drug paraphernalia, but that she had no knowledge of the contents of the other two bags, or that the tub was in the truck bed. She testified Jason must have put the tub and its contents into the truck bed while she was not in the area.

When an accused is not in exclusive possession of the place where contraband is found, it cannot be concluded that the person had knowledge or control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995). However, the "affirmative link" must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous. Id. at 747.

Factors recognized by the caselaw that are to be considered when evaluating affirmative links include: (1) the defendant's presence when the search was executed; (2) whether the contraband was in plain view; (3) the defendant's proximity to and the accessibility of the contraband; (4) whether the defendant was under the influence of a controlled substance when arrested; (5) whether the defendant possessed other contraband 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 the contraband; (10) whether other contraband or drug paraphernalia was present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place the drugs were found was enclosed; (13) whether there was a significant amount of drugs; and (14) whether the defendant possessed weapons or large amounts of cash. Stubblefield v. State, 79 S.W.3d 171, 174 (Tex. App. Texarkana 2002, pet. ref'd); Jones v. State, 963 S.W.2d 826, 830 (Tex. App. Texarkana 1998, pet. ref'd); De La Garza v. State, 898 S.W.2d 376, 379 (Tex. App. San Antonio 1995, no pet.). The number of affirmative links present is not as important as the degree to which they tend to link the defendant to the controlled substance. Taylor v. State, 106 S.W.3d 827, 831 (Tex. App. Dallas 2003, no pet.); Williams v. State, 906 S.W.2d 58, 65 (Tex. App. Tyler 1995, pet. ref'd); Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App. Austin 1991, pet. ref'd).

Jackson argues the evidence is insufficient to prove that she possessed the methamphetamine with intent to deliver. Intent to deliver may be shown by circumstantial evidence, including evidence surrounding its possession. Bryant v. State, 997 S.W.2d 673, 675 (Tex. App. Texarkana 1999, no pet.). Intent to deliver may be inferred from (1) the nature of the location where the defendant was arrested, (2) the quantity of the controlled substance possessed by the defendant, (3) the manner of packaging, (4) the presence of drug paraphernalia, (5) the defendant's possession of a large amount of cash, and (6) the defendant's status as a drug user. Guy v. State, 160 S.W.3d 606, 614 (Tex. App. Fort Worth 2005, pet. ref'd); Bryant, 997 S.W.2d at 675.

In this case, part of the contraband was in the cab of the truck with Jackson. A large number of items of drug paraphernalia was found in the bag Jackson threw from the truck, which also contained her personal property. The black purse in the truck, where Jackson's identification cards were found, contained items used in drug manufacturing and delivery. Several bottles of liquid that an expert identified as containing more than 900 grams of methamphetamine were found in a gym bag inside the truck. The other contraband was in the bed of the truck. The bags were obviously visible, and there was no indication that the tub with the manufacturing items was hidden. The expert identified the quantity of the contraband as over 1,400 grams of methamphetamine, together with adulterants and dilutants. Officers testified that these items constituted a mobile methamphetamine "lab." Further, it would be reasonable for a jury to conclude that Jackson had been involved in the purchase of a number of these items of drug paraphernalia and ingredients for producing methamphetamine, since she had the receipts in her purse. She was in close proximity, a large amount of drugs and paraphernalia was found, both she and Hixon attempted to elude police, and the truck that she was driving belonged to Jackson's mother thus, she had at the least more of a possible right to possession of the vehicle than did her boyfriend.

This evidence is legally sufficient to allow the jury to conclude Jackson possessed the contraband with the intent to deliver. Further, even though we recognize that, in her version of events, she had no knowledge of the items in the bed of the truck, the jury was entitled to look at all of the surrounding circumstances, including the fact that the items were both in the cab and bed of the truck, or simply to disbelieve her testimony. We find Jackson's evidence that is contrary to the verdict is not so strong that the State could not meet its standard of proof. Therefore, the evidence is also factually sufficient to support the verdict. The contentions of error are overruled.

3. Lesser Offense Requested Charge

Jackson next contends the trial court erred by refusing to submit a charge to the jury on a lesser-included offense: possession of less than 400 grams of a controlled substance. The argument is based on the DPS criminalist's testimony. The criminalist, Ruben Rendon, testified the liquids recovered that tested positive for methamphetamine totaled far above the requisite 400-gram minimum. Jackson contends that, because he could not testify as to the dry powder weight of pure methamphetamine that could have been extracted from the liquid suspension, the evidence is insufficient to prove the amount, and, thus, the jury should have been charged on the lesser-included offense of possession of less than 400 grams.

The State is no longer required to determine the amount of the controlled substance and the amount of adulterants and dilutants that constitute the mixture. See Melton v. State, 120 S.W.3d 339, 344 (Tex. Crim. App. 2003); Isassi v. State, 91 S.W.3d 807, 810 (Tex. App. El Paso 2002, pet. ref'd). The State has to prove only that the aggregate weight of the controlled substance mixture, including adulterants and dilutants, equals the alleged minimum weight. See Tex. Health & Safety Code Ann. 481.002(5), (49) (Vernon Supp. 2005); Melton, 120 S.W.3d at 344.

A defendant is entitled to a charge on a lesser offense if (1) the lesser offense is included within the proof necessary to establish the offense charged, and (2) there is some evidence that would permit the jury rationally to find that, if the defendant is guilty, he or she is guilty only of the lesser offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000). The evidence presented would not permit a rational jury to find that, if Jackson was guilty, it was only of the lesser offense. The contention is overruled.

We affirm the judgment.

Jack Carter

Justice

Date Submitted: December 19, 2005

Date Decided: January 24, 2006

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