Scott Jessup v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00637-CR
Scott JESSUP,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2004-CR-8923
Honorable Mary Roman, Judge Presiding (1)

Opinion by: Catherine Stone, Justice

 

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Phylis J. Speedlin, Justice

 

Delivered and Filed: June 27, 2007

 

AFFIRMED

 

Scott Jessup was convicted of possession with intent to deliver more than one but less than four grams of methamphetamine and was sentenced as a repeat offender to twenty years confinement. Jessup appeals, arguing that the evidence presented at trial was legally and factually insufficient to support the jury's conviction. We disagree and affirm the judgment of the trial court.

Background

Based on a tip by a bail bond employee, detectives with the San Antonio Police Department's Repeat Offender Program learned that Jessup was staying at the Pear Tree Inn and arrived at the inn to arrest him for active warrants. Jessup tried to escape in the car he was driving, ramming police vehicles and almost running over an officer, until he was shot. Following Jessup's arrest, officers found several drugs including methamphetamine, a wide assortment of drug paraphernalia, and personal items belonging to Jessup throughout the car. Jessup now appeals, arguing that the evidence found in the vehicle is legally and factually insufficient to support the jury's verdict convicting him of possession of methamphetamine, with the intent to deliver.

Discussion

Standard of Review

In conducting a legal sufficiency review, we 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000). The jury, as the sole fact-finder, is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). The jury is allowed to make reasonable inferences based on the evidence presented. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). The standard is the same for both direct and circumstantial evidence. Sutherlin v. State, 682 S.W.2d 546, 548-49 (Tex. Crim. App. 1984).

In a factual sufficiency review, we consider all the evidence in a neutral light and reverse only if: (1) the evidence in support of the verdict is so weak as to make the verdict clearly wrong or manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)); Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We must not substitute our judgment for that of the fact-finder, who is the sole judge of the weight and credibility of the witness's testimony. Johnson, 23 S.W.3d at 7. The standard in a factual sufficiency review is the same for both direct and circumstantial evidence. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).

Possession of a Controlled Substance

Jessup argues that the evidence is legally and factually insufficient to adequately link him to the controlled substance. A person commits the offense of possession with the intent to deliver a controlled substance if he knowingly or intentionally possesses a controlled substance with the intent to deliver it. Tex. Health & Safety Code Ann. 481.112(e), 481.113(d) (Vernon Supp. 2006) (defining "possession" as "actual care, custody, control or management"). To prove unlawful possession of a controlled substance, the State must prove the accused: (1) exercised care, control, custody, or management over the contraband; and (2) knew the matter was contraband. Poindexter, 153 S.W.3d at 405. If the accused did not have exclusive control over the contraband, or was not in exclusive possession of the place in which the controlled substance was found, the State must prove additional facts and circumstances that affirmatively link the accused to the contraband in such a way it can be concluded that the accused had knowledge of the contraband and exercised control over it. Id. at 406.

Affirmative links are established when the evidence, direct or circumstantial, establishes "the accused's connection with the drug was more than just fortuitous." Poindexter, 153 S.W.3d at 405-06 (Tex. Crim. App. 2005) (quoting Brown v. State, 874 S.W.2d 744, 747 (Tex. Crim. App. 1995)); de la Garza v. State, 898 S.W.2d 376, 379 (Tex. App.-San Antonio 1995, no pet.) (showing that defendant was merely present in same vicinity as controlled substance is not sufficient). The following is a non-exclusive list of factors that have been found to affirmatively link a defendant to contraband: (1) whether the contraband was in plain view or recovered from an enclosed place; (2) the accused was the owner of the premises or had the right to possess the place where the contraband was found, or the owner or driver of the automobile in which the contraband was found; (3) the accused was found with a large amount of cash; (4) the contraband was conveniently accessible to the accused, or found on the same side of the vehicle as the accused was sitting; (5) the contraband was found in close proximity to the accused; (6) a strong residual odor of the contraband was present; (7) the accused possessed other contraband when arrested; (8) paraphernalia to use the contraband was in view, or found on the accused; (9) the physical condition of the accused indicated recent consumption of the contraband in question; (10) conduct by the accused indicated a consciousness of guilt; (11) the accused attempted to flee; (12) the accused made furtive gestures; (13) the accused had a special connection to the contraband; (14) the occupants of the premises gave conflicting statements about relevant matters; (15) the accused made incriminating statements connecting himself to the contraband; (16) the quantity of the contraband; and (17) the accused was observed in a suspicious area under suspicious circumstances. See Poindexter, 153 S.W.3d at 406. "The number of factors present is not as important as the logical force the factors have in establishing the elements of the offense." Hargrove v. State, 211 S.W.3d 379, 386 (Tex. App.-San Antonio 2006, pet. ref'd) (quoting Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd)).

Jessup contends the evidence is legally and factually insufficient to establish that he exercised actual care, control, and management over the methamphetamine or that there was an affirmative link between him and the contraband. We disagree. In the light most favorable to the verdict, the record shows the following affirmative links between Jessup and the methamphetamine found in the vehicle Jessup was driving: Jessup was driving the car alone; methamphetamine was found on the passenger side floor of the vehicle; a watch tube container in the front passenger seat of the vehicle contained several grams of methamphetamine; the dash area glove box contained a coffee filter wrapped around several grams of red phosphorus which is a chemical used to process methamphetamine; a gallon of Crown brand muriatic acid used to manufacture methamphetamine was found behind the driver's seat on the floorboard; the vehicle's trunk contained additional drug paraphernalia including a nylon bag with ephedrine or pseudoephedrine pills, four glass jars filled with iodine crystals and denatured alcohol, several grams of methamphetamine, a book that contained recipes for the manufacture of methamphetamine, and a scale. Other affirmative links connecting Jessup to the contraband include his escape attempt in which he crashed into several police vehicles and almost ran over a police officer who was on foot, and the discovery of 5.367 grams of psilocin mushrooms and 27.650 grams of marijuana with Jessup when he was arrested.

Viewing the evidence in the light most favorable to the jury's verdict, we conclude that the evidence of affirmative links is legally and factually sufficient to support a finding that Jessup knowingly and intentionally possessed methamphetamine. Moreover, the affirmative links evidence is not too weak or contradictory to support the jury's finding of possession beyond a reasonable doubt.

 

Intent to Deliver

Jessup also argues that the evidence is insufficient to support a conviction of possession with the intent to deliver. "Deliver" means to transfer, actually or constructively, a controlled substance to another. Tex. Health & Safety Code Ann. 481.002(8) (Vernon Supp. 2006). Intent to deliver a controlled substance can also be proven by circumstantial evidence, such as the quantity of narcotics possessed, and the presence of the accused on the premises. 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). Courts have considered several factors in determining intent, including: (1) the nature of the location where the defendant was arrested; (2) the quantity of drugs the defendant possessed; (3) the manner of packaging of the drugs; (4) the presence or absence of drug paraphernalia (for use or sale); (5) whether the defendant possessed a large amount of cash in addition to the drugs; and (6) the defendant's status as a drug user. Jordan v. State, 139 S.W.3d 723, 726 (Tex. App.-Fort Worth 2004, no pet.).

Jessup argues that the evidence is legally and factually insufficient to establish that he had the intent to deliver methamphetamine because only a small quantity of the controlled substance was found, there was no evidence of drug-related money in the vehicle, there was no evidence that Jessup was a drug user, there was no evidence of drug transactions, and some of the items allegedly used to manufacture methamphetamine are not uncommon and could be found in any home. However, as we mentioned above, the factors listed in Jordan are evaluative and not required elements. While a majority of relevant cases list a variety of factors that might be considered circumstantial evidence of an intent to deliver, such as the factors listed in Jordan, courts have not required a certain number of these factors to be present in order to deem the evidence sufficient. See Misner v. State, No. 04-03-00323-CR, 2004 WL 730838, at *3 (Tex. App.-San Antonio Apr. 7, 2004, pet. ref'd) (not designated for publication) (holding evidence legally and factually sufficient to show intent to deliver where officer testified that amount of heroin was consistent with a person intending to package and sell, and the records showed that heroin was divided into two separate containers); Ingram v. State, 124 S.W.3d 672 (Tex. App.-Eastland 2003, no pet.) (more than 400 grams of methamphetamine, baggies, marihuana, items consistent with the manufacture of methamphetamine); Simmons v. State, 100 S.W.3d 484, 491 (Tex. App.-Texarkana 2003, pet. ref'd) (1,000 grams of cocaine and testimony that such an amount was "most definitely not for personal use. [But was] for sale"); Wells v. State, 968 S.W.2d 483, 484 (Tex. App.-Eastland 1998, no pet.) (more than one gram of methamphetamine, drug paraphernalia, dilutants, a large number of small plastic bags, and "gram scales").

In this case, several of the evaluative factors are present and support Jessup's intent to deliver. When he was arrested, methamphetamine, marijuana, and psilocin mushrooms were found in the front passenger seat of the car he was driving. Drug paraphernalia, including red phsophorous which had already gone through a manufacturing process, muriatic acid, and pseudoephedrine or ephedrine which had already gone through a "pill washing" process, were found on the driver's side floor board and in the vehicle's dashboard storage area. A large number of items found in the trunk of the vehicle, including a scale and book on making methamphetamine, were also consistent with the process of manufacturing methamphetamine. Jessup's personal property, including photographs and credit cards, were also found in the trunk.

In addition to physical evidence, several police officers involved with Jessup's arrest and evidence processing testified at trial. Expert testimony can be introduced to prove intent to deliver and police officers may testify, based on their training and experience, that a defendant's actions are consistent with someone selling a drug. See Jordan, 139 S.W.3d at 726; Reece v. State, 878 S.W.2d 320, 325 (Tex. App.-Houston [1st Dist.] 1994, no pet.). Detective Ernest Trevino testified that the officers of the Repeat Offender Program located Jessup through a tip and tried to corner him in a hotel parking lot so he could not escape in his car. Trevino described how Jessup refused to stop his vehicle and almost struck Trevino with his car until Trevino shot Jessup.

David Anderson, a San Antonio Police Officer in the narcotics unit who specializes in clandestine methamphetamine labs, also testified at the trial. Anderson explained the process used to make methamphetamine and testified that the chemicals found within the vehicle Jessup was driving were consistent with methamphetamine manufacturing. He also opined the vehicle contained a methamphetamine lab with which methamphetamine had already been manufactured. Anderson stated that based on his experience, the scale found in the trunk was indicative of someone who was trafficking or selling narcotics and someone who was manufacturing methamphetamine is more likely to be selling it than using it for his personal use because of the manufacturing's high cost.

Looking at the combined evidence surrounding Jessup's arrest, and viewing the evidence in the light most favorable to the prosecution, his conviction for possession with the intent to deliver is clearly supported by legally and factually sufficient evidence. A rational trier of fact could have examined the physical and testimonial evidence and determined that a defendant who was found in possession with methamphetamine, other drugs, and enough paraphernalia to qualify for a methamphetamine lab, was in possession of methamphetamine with the intent to sell it. Accordingly, Jessup's single issue challenging the legal and factual sufficiency of the evidence to support his conviction is overruled.

Conclusion

The judgment of the trial court is affirmed.

 

Catherine Stone, Justice

Do Not Publish

 

1. The Honorable Pat Priest presided over the proceedings.