Cheryl Davis v. The State of Texas--Appeal from 54th District Court of McLennan County

AFFIRMED

MAY 31, 1990

NO. 10-89-053-CR

Trial Court

# 88-961-C

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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CHERYL DAVIS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 54th Judicial District Court

McLennan County, Texas

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O P I N I O N

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In this case the Appellant Cheryl Davis was charged by indictment with the felony offense of Aggravated Possession of a Controlled Substance, to-wit, amphetamine. Appellant pleaded not guilty. Trial was had to a jury which found Appellant guilty and assessed her punishment at twelve (12) years in the Texas Department of Corrections.

Appellant comes to this court on three points of error.

Points one and two have been discussed together by the Appellant and the State and are as follows:

First Point: There is insufficient evidence to find that Appellant exercised actual care, custody, control or management over the alleged substance because an independent link was not made between the Appellant and the amphetamine.

Second Point: There is insufficient evidence to find that Appellant was aware of the presence of the alleged substance because an independent link was not made between Appellant and the amphetamine.

On October 7, 1988, the date of the offense in question, Federal and State drug enforcement officers executed a Federal search warrant at the rural home of David Mangrum near the City of West, Texas, in McLennan County. As the officers arrived at said residence to be searched, they jumped out of their vehicles, stepped up to the porch and entered the house yelling several times, "Police officers, we have a search warrant."

D.P.S. Narcotics Officer Robert Wilkerson entered the house first, with Officer Kent Radney following immediately behind him. Wilkerson continued to announce that he was a police officer executing a warrant, and moved towards the bedroom of the house. David Mangrum was seated on the bed in that bedroom with his legs crossed pointing a gun directly at Wilkerson. A woman, same being the Appellant, also sat on the bed next to Mangrum. As Wilkerson came through the French doors which opened into the bedroom, Mangrum shot and wounded him, Wilkerson, in the right arm; whereupon Wilkerson reeled into the kitchen while Mangrum kept his aim focused upon the said officer. Officer Radney and the other officers returned Mangrum's fire, which resulted in Mangrum being killed and the Appellant being wounded.

In the bedroom immediately prior to the shooting, Mangrum sat on the edge of the bed with his legs crossed. The Appellant Cheryl Davis sat next to Mangrum on his left side. Their shoulders almost touched, although Appellant was slightly back on the bed. When the shooting began, Officer Radney saw Appellant on her knees on the bed wielding a long gun, while Appellant's back was towards the officer. The stock of the gun protruded from her right side behind her body. Appellant began to turn around towards officers Bennett, Radney and Herbert, and pointed the gun in their direction.

After the shooting ended, Appellant was found lying face down over her shotgun; however, she was still moving. Officer Baier attempted to take the shotgun out from under Appellant, and she resisted him, causing him to have to jerk the shotgun out from under her.

At the foot of the bed where Mangrum and Appellant were located, there was a coffee table on which lay a box containing numerous syringes, a Q-tip, and an amber vial. These things were within an arm's length or less from where Mangrum and Appellant were sitting at the time of the shooting. The syringe inside the box was loaded with .16 grams of methamphetamine.

Methamphetamine in powder form was one of the substances found in a canister containing amphetamine. Powdered methamphetamine is customarily dissolved in water to liquify the drug for use in a syringe. Upon the coffee table was also found a metal spoon containing residue which smelled of methamphetamine or amphetamine.

On the bed where Appellant was found sat a round tin canister containing four packets of contraband, same being 34.87 grams of amphetamine and 4.63 grams of methamphetamine. The canister had a bullet hole through it, although testimony showed that the hole was an old one because the tightly packed contents were not damaged by any bullet. Said contents had the distinctive odor of amphetamine and methamphetamine.

On the same bed where Appellant and Mangrum were sitting was a small cardboard box containing marihuana together with zig-zag rolling papers. In Mangrum's pocket was a tin canister containing another 1.29 grams of amphetamine. Moreover, a small white pill bottle filled with pills was seized from Mangrum's pocket, same being hydromorphone, a controlled substance, together with 9.15 grams of diazapan.

Also on the same coffee table lay a pair of binoculars. Near the bed was a telescope. Testimony was to the effect that persons involved in illegal drug operations commonly used binoculars and telescopes for counter-surveillance on police officers. Additionally, there were lookout posts set up with two chairs and a mattress positioned at the windows in the attic of the house. Moreover, there was a Bearcat 220 Police Scanner found in the storage room, and a radio call guide (a published list of frequencies used by law enforcement agencies) lay on the dresser in the bedroom. Testimony was to the effect that this call guide may be used together with the Bearcat scanner in order to overhear law enforcement radio transmissions. In this call guide book, the specific frequency for the City of West was circled and underlined.

Also in the bedroom where Appellant and Mangrum were located, a glass bong was found on the night stand near the bed. A glass bong such as this is commonly used to smoke marihuana or hash. Also on the night stand was a small plastic packet containing marihuana seeds. On the shelves above the bed were stereo equipment and a metal smoking pipe, the latter being commonly used to smoke marihuana or hashish. The residue in this pipe smelled of marihuana. On the floor between the bed and dresser was found a blue zipper bag with a set of scales commonly used to measure drugs.

Various narcotics paraphernalia was found throughout the house. Ohaus triple-beam scales sat on a kitchen pantry shelf. Such scales enable precise measurement of anywhere from half a gram to several pounds of a controlled substance. Next to these scales, a glass tube cylinder with milliliters delineated was found; a clear liquid inside the tube bore the odor of phenol acetone, a chemical associated with the manufacture of amphetamine and methamphetamine. Also found in a storage room was a set of universal scales which are commonly used to enable a person to measure out larger quantities of amphetamine and methamphetamine, which scales are commonly found by officers when drug labs are raided.

On the bed where Mangrum and Appellant were sitting were three pistols, same being a 9 millimeter, a .44-revolver, and a .22-revolver.

The evidence strongly suggested that Appellant was at least "shacking up" at Mangrum's house at the time the raid occurred. As stated, she was found on the bed with Mangrum in the master bedroom. Both male and female clothing were present inside the house at the time of the raid. Although Appellant had numerous personal belongings in her father's house in Waco, Appellant's father testified that Appellant came and went as she pleased, and he had not seen Appellant for two to four days prior to the raid. Testimony showed that Appellant had actually lived with Mangrum in this house for a time some months prior to this raid. In a barn located near the house, officers found stuffed inside a purse various personal papers belonging to Appellant.

Appellant's injuries from the shooting caused her to be taken to Hillcrest Hospital in Waco where blood samples were taken from Appellant which revealed that her blood contained 0.10 milligrams per liter of amphetamine. Expert testimony showed that this concentration of amphetamine found in Appellant's blood was higher than the usual amount prescribed for medical purposes. Even Appellant's expert witness testified that this level in Appellant's blood would be considered a toxic level by his own laboratory. Evidence was to the effect that Appellant could have ingested the drug an hour before the blood sample was drawn. Further, had the drug been consumed one or two days prior to the blood sample, an extremely high dosage would be required to achieve the high concentration found in the blood samples taken.

The question presented by Appellant's first and second points of error is whether a rational trier of fact could have found sufficient facts and circumstances which affirmatively linked the Appellant to the contraband in question. More specifically, the rule as announced by our United States Supreme Court in Jackson v. Virginia (1979), 443 U.S. 307, 319; 99 S. Ct. 2781, 2789; 61 L. Ed. 2d 560, is as follows: Whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Also, see Dickey v. State (Tex.Cr.App. 1984) 693 S.W.2d 386, and the cases cited therein on page 387.

Our Court of Criminal Appeals in Rhyne v. State (Tex.Cr.App. 1981) 620 S.W.2d 599, 601, and in Woods v. State (Tex.Cr.App. 1976) 533 S.W.2d 16, 18, has set out the rules which apply to the first two points of error in the case at bar: In order to establish the unlawful possession of a controlled substance, the State must prove two elements: (1) that the accused exercised care, control, and management over the contraband, and (2) that the accused knew the matter possessed was contraband. It is not necessary to prove that the accused had exclusive possession of the narcotics in question. When the accused is not in exclusive possession of the place where the substance 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 which affirmatively link the accused to the contraband.

The issue now presented to us is whether the State established such independent facts and circumstances to affirmatively link Appellant to the amphetamine. Viewed in the light most favorable to the verdict, we believe and hold that the State has established such independent facts and circumstances as to affirmatively link the Appellant to the amphetamine.

Both Appellant and Mangrum occupied the bedroom where the contraband was found. An aggravated amount of amphetamine was found within a tin container which sat on the bed that both Appellant and Mangrum occupied. Moreover, the odor of amphetamine and marihuana in the room emanating from the tin canister and the smoking apparatus amply pointed out that Appellant not only had knowledge of the contraband, but also exercised care, custody, control and management of the contraband. This is strongly corroborated by the fact Appellant had a high toxic amount of amphetamine in her blood stream. Appellant had access equal to Mangrum's to the drugs possessed within the tin canister on the bed where she sat, as well as to the syringes openly displayed on the coffee table at the foot of the bed. Also the marihuana on the bed was also easily accessible to Appellant. In addition to all the paraphernalia in plain view of Appellant as above pointed out, as well as the pervasive odor of amphetamine in the room, plus the toxic amount of amphetamine in Appellant's bloodstream, plus Appellant's action in going for the gun all affirmatively link Appellant to the amphetamine in question and, in our opinion, clearly show that she not only was exercising care, custody, control and management of the contraband, but also knew full well that it was contraband. We overrule Appellant's first and second points of error.

Appellant's third and final point of error is as follows: "There is insufficient evidence to support the aggravated portion of the indictment in that the amphetamine in question was not shown to be in excess of 28 grams."

Appellant complains that the evidence is insufficient to establish an aggravated amount, to-wit, 28 grams of amphetamine, because the evidence failed to show exactly what else was contained in the substances which contained amphetamine.

We believe the evidence was ample to prove that Appellant possessed over 28 grams of amphetamine, including adulterants and dilutants.

The evidence showed Appellant was found on a bed near a round tin canister containing four packets of contraband. The container had in it 34.87 grams of amphetamine and 4.63 grams of methamphetamine. The three packets which contained amphetamine all contained a percentage of said controlled substance. More specifically, their specific weights and percentages of purity were: (1) 23.74 grams of amphetamine, 21% purity; (2) 6.10 grams of amphetamine, 57% purity; and (3) 5.03 grams of amphetamine, 22% purity. The remainder of the bulk of each substance was an adulterant or a dilutant. We overrule Appellant's third and final point of error.

Judgment of the trial court is affirmed.

AFFIRMED

JOHN A. JAMES, JR.

DO NOT PUBLISHJustice (Retired)

[Participating: Chief Justice Thomas, Justices Hall and Means, and John A. James, Jr., Justice (Retired)]