Boyd, Kendrick Lee v. The State of Texas--Appeal from 185th District Court of Harris County

Opinion issued December 27, 2002.

In The

Court of Appeals

For The

First District of Texas

NO. 01-02-00411-CR

NO. 01-02-00412-CR

KENDRICK LEE BOYD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause Nos. 885126, 885125

O P I N I O N

In two separate causes, a jury convicted appellant, Kendrick Lee Boyd, of possession of less than 1 gram of phencyclidine ( PCP ) and possession with intent to deliver between 4 and 20 grams of cocaine. The court assessed punishment at 1 year in state jail for possession of PCP, and 25 years in prison for possession of cocaine. Appellant challenges his convictions by claiming that the evidence presented was insufficient to support them. We affirm.Background

On the evening of August 14, 2001, officers of the Houston Police Department responded to an anonymous tip that appellant was dealing drugs out of the trunk of a car in the apartment complex where his mother resided. The apartment complex in which appellant s mother resided had been visited by police on several prior occasions. In addition, both appellant and his car, a maroon 1985 Cadillac Fleetwood, were known to the police from past drug investigations, and appellant had previously told police officers that the maroon Cadillac belonged to him. As the officers drove into the complex, they saw a number of people, including appellant, standing near the maroon Cadillac, which was parked in front of appellant s mother s apartment. When the officers, in marked police cars, drove into the complex, two men broke off from the group and ran towards a wooden fence at the edge of the apartment complex. These men were turned back by the presence of officers on the other side of the fence and were brought back to be interviewed with the rest of the group surrounding the car. As the officers approached the group, appellant, who had been standing next to the Cadillac, began to slowly move away from the car, moving in the direction of his mother s apartment.

The officers searched the group for weapons and as a safety precaution, removed a set of keys from appellant s front shorts pocket. By inserting one of the keys from the appellant s pocket into the Cadillac s door, the officers determined that the keys from appellant s pocket fit the Cadillac.

Sergeant Stephen Casko testified at trial that, after finding the keys in appellant s pocket, he requested permission from appellant to search the Cadillac. Appellant instead gave Officer Casko permission to search another car parked a short distance away. When Officer Casko again requested permission to search the Cadillac, appellant refused to answer. After a narcotics dog indicated that the trunk of the Cadillac contained narcotics, the officers opened the trunk of the car. In the trunk, officers found bags of crack cocaine, nine small glass vials containing trace amounts of PCP, two eyedroppers, and a pistol. A further search of the car s interior revealed two marijuana cigars hidden inside a door panel.

At trial, appellant testified that the car in which the drugs were found did not belong to him. He stated that he had sold the Cadillac, which had been inoperable for several months, to Michael Brown, another resident of the apartment complex, several months before the evening in question, and that Brian Brown, a nephew of Michael Brown, was among the group of men standing by the Cadillac. Appellant testified that the keys the officers used to open the Cadillac were not recovered from his pocket, but were instead recovered when the officers searched and arrested Brian Brown for traffic tickets. Appellant s mother and the manager of the apartment complex also testified that appellant had stated before that night that he had sold the car when asked to either move it or have it towed away. Officer M.R. Burdick testified at trial that, during the initial pat-down search in which the keys were removed from appellant s pocket, appellant told him he had sold the car to someone else. Officer Burdick confirmed, however, that the Cadillac keys were recovered from appellant s pocket.

Appellant s fingerprints were not found on any of the evidence recovered from the Cadillac.

Discussion

On appeal, appellant challenges the legal and factual sufficiency of the evidence presented by the State. Specifically, appellant claims the evidence was insufficient to (1) affirmatively link him to the cocaine and PCP found in the trunk of the Cadillac, (2) establish that he knowingly possessed the PCP, and (3) establish that he possessed the cocaine with the intent to deliver it to another person.

Legal and Factual Sufficiency

When evaluating the legal sufficiency of the evidence, we must view the 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 offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Our review of the factual sufficiency of the evidence requires us to ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or that the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Id. at 563; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

Affirmative Links to PCP and Cocaine

To establish the unlawful possession of a controlled substance, the State must prove that the defendant: (1) exercised care, custody, control, or management over the contraband; and (2) knew that what he possessed was contraband. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Cedano v. State, 24 S.W.3d 406, 411 (Tex. App. Houston [1st Dist.] 2000, no pet.). The State may prove that a defendant knowingly possessed a controlled substance by presenting evidence that affirmatively links the defendant to the controlled substance. Brown, 911 S.W.2d at 748; Valencia v. State, 51 S.W.3d 418, 423 (Tex. App. Houston [1st Dist.] 2001, pet. ref d). Some relevant factors which may affirmatively link the accused to the drugs include whether the drugs were in plain view or conveniently accessible to the accused, whether the drugs were found in an enclosed space, and whether the accused s conduct indicated a consciousness of guilt. See, e.g., Hurtado v. State, 881 S.W.2d 738, 743 n.1 (Tex. App. Houston [1st Dist.] 1994, no writ). In addition, ownership of the vehicle in which the drugs are found may connect the accused to the contraband. Guiton v. State, 742 S.W.2d 5, 8 (Tex. Crim. App. 1987). Finally, the individual number of factors linking the accused to the drugs is not as important as the logical force they create to prove that the crime was committed. Hurtado, 881 S.W.2d at 743.

In this case, the following circumstantial evidence was presented: (1) the car in which the drugs were found had previously been identified by appellant as belonging to him; (2) the drugs were found in an enclosed space, a locked car truck, and the keys to that car trunk were found in appellant s pants pocket; (3) the car in which the drugs were found had been parked in front of appellant s mother s apartment for several months; (4) appellant attempted to distance himself from the car by moving away from it as the police approached; (5) the trunk of the Cadillac also contained drug paraphernalia and a firearm; and (6) when Officer Casko requested permission to search the Cadillac, appellant again attempted to distance himself from the Cadillac by giving the officers permission to search another car located a short distance away.

When both the legal and factual sufficiency of the evidence are challenged, we first review the legal sufficiency of the evidence. Harmond v. State, 960 S.W.2d 404, 406 (Tex. App. Houston [1st Dist.] 1998, no pet.). Viewed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that appellant exercised care, custody, control, or management over the cocaine and PCP found in the Cadillac, and that appellant knew what he possessed was contraband. Appellant had previously identified the Cadillac as belonging to him, the Cadillac was parked in front of his mother s apartment, he was observed by police in close proximity to the Cadillac trunk, the keys to the Cadillac s trunk were found in his pocket, and his behavior after the police arrived indicated that he knew the Cadillac s trunk contained contraband.

Similarly, in reviewing the factual sufficiency of the evidence, we cannot say that the evidence, viewed in a neutral light, demonstrates that the proof of appellant s guilt is so obviously weak as to undermine confidence in the jury s determinations that appellant exercised care, custody, control, or management over the cocaine and PCP found in the Cadillac, and that appellant knew what he possessed was contraband, nor is the proof of appellant s guilt is greatly outweighed by contrary proof. Other than appellant s flat denial, no credible theory was presented to explain why the keys to the Cadillac were recovered from his pocket. What weight to give contradictory testimonial evidence is within the sole province of the jury, because it turns on an evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). Thus, the jury was free to believe or disbelieve all or any part of appellant s or the police officer s testimony. A jury decision is not manifestly unjust merely because the jury resolved conflicting testimony in favor of the State, and we will not substitute our judgment for that of the jury. Id. at 410. We hold the evidence was factually sufficient to support the jury s finding of guilt.

Knowing Possession of PCP

Appellant further argues that the evidence presented was legally and factually insufficient to prove that he knowingly possessed the trace amounts of PCP contained in the nine glass vials recovered from the Cadillac s trunk. To be convicted for unlawful possession of a controlled substance, a defendant is not required to possess a usable amount of a controlled substance. Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995). There is also no requirement that the substance be visible to the naked eye. Id. When the quantity of a substance is so small it cannot be measured, there must be evidence other than mere possession to prove the defendant knew the substance in his possession was a controlled substance. Id.; King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).

Here, the following circumstantial evidence shows that appellant knew the vials contained PCP: (1) the glass vials were found with two eyedroppers, which Officer Burdick testified are commonly used to add doses of PCP to marijuana cigars such as the two found in the door panel of the car; (2) the PCP was found in the presence of other narcotics and a handgun; and (3) the glass vials contained a visible residual coating of PCP. Viewed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that appellant knew the glass vials contained PCP. Similarly, when the evidence is viewed in a neutral light, we cannot say that the it demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury s determination or that proof of appellant s guilt is greatly outweighed by contrary proof.

Intent to Deliver Cocaine

Intent to deliver a controlled substance may be proved by circumstantial evidence, including the evidence surrounding its possession and the quantity of contraband possessed. Reece v. State, 878 S.W.2d 320, 325 (Tex. App. Houston [1st Dist.] 1994, no pet.). Circumstantial evidence that courts have considered includes: (1) the nature of the location at which the defendant was arrested; (2) the quantity of controlled substance in the defendant s possession; (3) the manner of packaging; (4) the presence of drug paraphernalia (for either drug use or sale); and (5) the defendant s status as a drug user. See, e.g., Williams v. State, 902 S.W.2d 505, 507 (Tex. App. Houston [1st Dist.] 1994, pet. ref d). Additionally, this Court has held that possession of a large quantity of narcotics, coupled with a police officer s expert witness testimony as to the amount of narcotics a user would normally and customarily possess for personal use, is sufficient to show possession with intent to deliver. Morrow v. State, 757 S.W.2d 484, 487-88 (Tex. App. Houston [1st Dist.] 1988, pet. ref d).

The evidence presented at trial was legally and factually sufficient to prove that appellant possessed the cocaine found in the car s trunk and intended to deliver it to another person. The evidence at trial established the following: (1) the apartment complex in which appellant was arrested was a known location for drug transactions; (2) the cocaine found in the trunk was in both chunk and cookie form, which Officer Burdick testified was consistent with an intent to sell; (3) the quantity of cocaine found in the Cadillac s trunk, between 18.3 and 23.5 grams, was, as Officer Burdick testified, too great a quantity to be solely for personal use; (4) the cocaine was found in the presence of other drugs and a handgun, which Officer Burdick testified was consistent with a drug transaction; (5) the police had received an anonymous tip that appellant was dealing drugs out of the trunk of his car; and (6) from prior drug arrests and investigations, the police knew that appellant was a drug user and drug dealer.

Viewed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that appellant possessed the cocaine with the intent to deliver it to another person. Similarly, when viewed in a neutral light, we cannot say that the evidence demonstrates that the proof of appellant s guilt is so obviously weak as to undermine confidence in the jury s determination, nor is it greatly outweighed by contrary proof.

Conclusion

Accordingly, we affirm the judgments of the trial court.

Frank C. Price //

Justice

Panel consists of Justices Taft, Alcala, and Price.

Do not publish. Tex. R. App. P. 47.4.