in the Matter of C.W.L., a Juvenile ( 2009 )


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  •                                   IN THE
    TENTH COURT OF APPEALS
    No. 10-08-00311-CV
    IN THE MATTER OF C.W.L., A JUVENILE,
    From the County Court at Law No. 2
    Johnson County, Texas
    Trial Court No. J04605
    MEMORANDUM OPINION
    A jury found that C.W.L. had engaged in delinquent conduct by delivering a
    controlled substance in a drug-free zone. The court placed C.W.L. on probation for nine
    months. In two issues, C.W.L. contends that the evidence is legally insufficient to
    support his conviction. We will affirm.
    Standard of Review
    In evaluating the legal sufficiency of the evidence in a juvenile delinquency
    appeal, we view all the evidence in the light most favorable to the verdict and ask
    whether any rational trier of fact could have found the essential elements of the crime
    beyond a reasonable doubt. See In re K.B., 
    143 S.W.3d 194
    , 199 (Tex. App.—Waco 2004,
    no pet.). “This ‘familiar standard gives full play to the responsibility of the trier of fact
    fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw
    reasonable inferences from basic facts to ultimate facts.’” Klein v. State, 
    273 S.W.3d 297
    ,
    302 (Tex. Crim. App. 2008) (quoting Jackson v. Virginia, 
    443 U.S. 307
    , 319, 
    99 S. Ct. 2781
    ,
    2789, 
    61 L. Ed. 2d 560
    (1979)).
    The Evidence
    C.W.L. was a middle school student. L.B., a fellow student, testified that on the
    morning of May 25, 2007, he, C.W.L. and two other students were sitting at a table in
    the school cafeteria when C.W.L. took four light blue pills from his wallet. The pills
    were not in a prescription bottle, but C.W.L. said the pills were his prescribed ADHD
    medicine. C.W.L. offered to sell him two of the pills for one dollar, but he did not buy
    the pills. C.W.L. nevertheless gave him two of the pills but never told him why he
    would want the pills. L.B. also said that during the time he was talking to C.W.L.,
    C.W.L. took one of the pills.
    L.B. testified that in the meantime, another student who was sitting at the table
    went to the office to “tell on” C.W.L. Subsequently, Margaret Wright, a teacher’s aide at
    the school, came into the cafeteria and told C.W.L. to come to the office, which he did.
    L.B. testified that Ms. Fernandez, the behavior specialist at the school who also “runs
    the cafeteria” from 7:30 a.m. to 8:45 a.m. each morning, then came to get C.W.L.’s
    “stuff.” When Ms. Fernandez picked up C.W.L.’s bag, a pill that was on top of the bag
    fell onto the ground. L.B. then gave Ms. Fernandez the pills C.W.L. had given to him
    and told her that C.W.L. had given him the pills. Ms. Fernandez then took C.W.L.’s bag
    and the pills and left.
    In re C.W.L.                                                                         Page 2
    C.S., another student, testified that he was also sitting at the cafeteria table when
    C.W.L. offered to sell some pills to L.B. C.S. said that C.W.L. had approximately four or
    five blue capsules in a little plastic bag, and he “told everybody at the table that they
    were his ADHD pills.” C.W.L. gave L.B. one of the pills and L.B. put the pill in his
    pocket. C.S. testified that he does not know what effect an ADHD pill would have on
    someone who does not have ADHD. L.B. then gave the pill to Ms. Fernandez when she
    came to the table. Contrary to L.B.’s testimony, C.S. testified that C.W.L. was still at the
    table when L.B. gave the pill to Ms. Fernandez, and C.W.L. then “realized he was in
    trouble so he just gave the bag of pills to Ms. Fernandez, as soon as she asked for them.”
    Ms. Fernandez testified that she was in the cafeteria on the morning in question.
    When C.W.L. briefly got up from the table where he was sitting, L.B. called her over to
    the table, told her that C.W.L. had pills in his possession, and gave her two pills. When
    she picked up C.W.L.’s bag, several of the same type of pills fell off the bag onto the
    floor. She described the pills as “blue, small. I believe they might have been square
    with a little tip on it and a slash down the middle with numbers . . . stamped in the
    middle of the letter.” She immediately picked up the pills, put them in a sandwich bag,
    and sealed them up.       She knew the pills were ADHD medicine and that ADHD
    medications contain controlled substances. She then called security and Ms. Wright to
    come get C.W.L. and the pills. She believed she gave the pills to Ms. Wright.
    Ms. Wright testified that a student told her that C.W.L. had pills in his wallet. As
    a result, she called Monica Tharpe, the School Resource Officer. Ms. Wright testified
    that Officer Tharpe told her to go look in C.W.L.’s wallet but that she did not. Instead,
    In re C.W.L.                                                                           Page 3
    she went and got C.W.L. from the cafeteria and took him to the office. After she had left
    the office, Ms. Fernandez came running up the hallway and handed her a small Ziplock
    bag that had three blue pills in it. Ms. Fernandez told her that she had found the pills in
    C.W.L.’s things and asked her to take them into the office. She then went into the office,
    handed the bag containing the three pills to Helen Hernandez, the assistant principal,
    and told her that Ms. Fernandez had given them to her to bring to the office.
    Ms. Hernandez testified that Ms. Wright brought some pills into her office on
    May 25, 2007, but she did not remember how many pills there were or if they were in
    some type of container or bag. She gave the pills to Officer Tharpe and said that she
    talked to C.W.L. about the pills that day, but she did not remember the specifics of the
    conversation.
    Officer Tharpe testified that Ms. Wright contacted her by telephone and told her
    that C.W.L. had some pills. When Officer Tharpe later arrived at the school, she was
    notified that C.W.L. was in Ms. Hernandez’s office. Officer Tharpe then went to Ms.
    Hernandez’s office and Ms. Hernandez gave the pills to her. Officer Tharpe testified
    that there were three pills and they were small and blue with the letter “D” stamped on
    them. She then investigated by taking statements. She interviewed L.B., C.S., and
    another student who had been sitting at the cafeteria table with C.W.L. that morning.
    She also took statements from Ms. Fernandez and Ms. Wright and, at some point,
    performed a pat down search of C.W.L. Officer Tharpe ultimately determined that an
    offense had been committed and arrested C.W.L.
    In re C.W.L.                                                                         Page 4
    When she later arrived at the sheriff’s office, she logged the pills in as evidence in
    the property room and wrote a report. She testified that after she called Poison Control
    and described the pills to the person who answered the phone, she determined that the
    pills were “Foca something” and were a controlled substance.
    Detective Dusty Ford, an investigator for the Johnson County Sheriff’s
    Department, testified that Officer Tharpe informed him that she was going to be
    making an arrest and that she had some pills that would need to be weighed and tested.
    He met Officer Tharpe at Juvenile Services with a set of digital scales so that they could
    determine the approximate weight of the pills. Detective Ford testified that there were
    three blue pills, they “had the marking of a letter D on one side,” and they weighed
    approximately four-tenths of a gram. After the pills were weighed, they would have
    been placed into evidence in the property evidence lockers.            When the case was
    forwarded to him the next day, he used the 25th Anniversary Nursing 2005 Drug
    Handbook published by Lippincott Williams and Wilkins to identify the pills as Focalin.
    Detective Ford said that the pills were sent to the Texas Department of Public
    Safety crime lab (DPS lab) in Garland, Texas, for drug analysis and that it was
    determined there that the pills contained a controlled substance. The person who sent
    the response from the DPS lab was Nick Grizzle. Mr. Grizzle, a forensic scientist at the
    DPS lab in Garland, Texas, testified that he received property involving case number
    S0712278 from the Johnson County Sheriff’s Department on June 12, 2007. Mr. Grizzle
    testified that the evidence was submitted to the lab by “C. Norman.” Detective Ford
    In re C.W.L.                                                                            Page 5
    said that Detective Cody Norman was the property custodian at the time the offense in
    this case occurred.
    Mr. Grizzle said that when he opened the envelope containing the evidence, he
    found “a plastic sandwich bag that contained three blue D-shaped tablets.” He then
    used an Ident-A-Drug reference book and determined that the pills were Dex-
    Methylphenidate HCL, which is found in the prescription medication known by the
    brand name Focalin. Mr. Grizzle then tested the pills, consuming by test one whole pill
    in the process, and “found that the tablets contained Methylphenidate with a weight of
    0.45 grams.” Mr. Grizzle then sealed the evidence back up in an envelope and placed it
    into the DPS lab’s main vault until “the agency came and picked it back up.”
    Detective Ford testified that on the morning of trial, he received the plastic bag
    containing the remaining two pills from the current evidence property custodian at the
    Johnson County Sheriff’s Department and brought the evidence to the courtroom. Mr.
    Grizzle identified the two pills as the remaining two pills that were left over after his
    analysis at the DPS lab. Officer Tharpe also identified the two pills as the items that
    were taken as evidence during the arrest of C.W.L. and the same pills that she
    submitted into evidence in the property room of the Johnson County Sheriff’s
    Department.
    Discussion
    To prove that an accused unlawfully possessed a controlled substance, the State
    must establish:    (1) the accused exercised control, management, or care over the
    substance, and (2) the accused knew the matter possessed was contraband. Poindexter v.
    In re C.W.L.                                                                        Page 6
    State, 
    153 S.W.3d 402
    , 405 (Tex. Crim. App. 2005). Whether this evidence is direct or
    circumstantial, “it must establish, to the requisite level of confidence, that the accused’s
    connection with the drug was more than just fortuitous. . . .” 
    Id. at 405-06
    (quoting
    Brown v. State, 
    911 S.W.2d 744
    , 747 (Tex. Crim. App. 1995)).           Previously, this was
    referred to as the “affirmative links” rule. See 
    id. However, the
    Court of Criminal
    Appeals has cautioned against use of the term “affirmative links” as suggesting “an
    independent test of legal sufficiency” and has chosen instead to use only the term
    “‘link’ so that it is clear that evidence of drug possession is judged by the same standard
    as all other evidence.” Evans v. State, 
    202 S.W.3d 158
    , 162 n.9 (Tex. Crim. App. 2006).
    The rule is designed to protect the innocent bystander from conviction based
    solely upon his fortuitous proximity to someone else’s drugs. 
    Poindexter, 153 S.W.3d at 406
    . The rule simply restates the commonsense notion that a person, such as a father,
    son, spouse, roommate, or friend, may jointly possess property like a house but not
    necessarily jointly possess the contraband found in that house. 
    Id. Thus, “[w]hen
    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.” 
    Id. (quoting Deshong
    v. State, 
    625 S.W.2d 327
    , 329 (Tex. Crim. App. 1981)).
    In his first issue, C.W.L. contends that the evidence is legally insufficient to prove
    he delivered a controlled substance in a drug free zone because the State “failed to
    produce any evidence affirmatively linking [him] to the controlled substance tested by
    In re C.W.L.                                                                            Page 7
    the Department of Public Safety.” The substance of this issue appears to be twofold.
    First, C.W.L. appears to argue that the evidence is legally insufficient to support his
    conviction because the State failed to produce any evidence that he exercised control,
    management, or care over the pills. C.W.L. points to the following facts in support of
    this contention: “[t]he incident allegedly occurred in a school cafeteria, crowded with
    students waiting for classes to start”; Ms. Fernandez was the only adult monitoring the
    cafeteria that morning, and “when she went to the table and gathered C.W.L.’s
    belongings, C.W.L. was not at the table”; some of the pills were given to Ms. Fernandez
    by L.B., and the other pills were recovered after falling off the top of C.W.L.’s bag,
    which “was accessible to every student wandering around the cafeteria that morning”;
    C.W.L.’s bag was “easily accessible to L.B., who was sitting next to it and who gave the
    other pills to Ms. Fernandez”; no one ever found any pills in C.W.L.’s possession; and
    “[t]here was a great deal of conflicting testimony about how the pills were recovered.”
    However, both L.B. and C.S. testified that the pills that were recovered belonged
    to C.W.L. and that C.W.L. told them the pills were his ADHD medicine. Thus, a
    rational trier of fact could have found beyond a reasonable doubt that C.W.L. exercised
    control, management, or care over the pills.
    C.W.L. also contends that the evidence is legally insufficient to support his
    conviction because the State failed to prove that the pills L.B. and C.S. claimed to have
    seen in C.W.L.’s possession were the same pills tested by the DPS lab. C.W.L. does not,
    however, assert that the pills were tampered with. “Without evidence of tampering,
    most questions concerning care and custody of a substance go to the weight attached,
    In re C.W.L.                                                                       Page 8
    not the admissibility, of the evidence.” Lagrone v. State, 
    942 S.W.2d 602
    , 617 (Tex. Crim.
    App. 1997).    Moreover, in a legal sufficiency review, we consider all the record
    evidence, regardless of its admissibility. Powell v. State, 
    194 S.W.3d 503
    , 507 (Tex. Crim.
    App. 2006). Based on the evidence as detailed above, the State sufficiently established
    that the pills L.B. and C.S. claimed to have seen in C.W.L.’s possession were the same
    pills tested by the DPS lab. We overrule C.W.L.’s first issue.
    In his second issue, C.W.L. contends that the evidence is legally insufficient
    because the State failed to prove he knew the pills were a controlled substance. C.W.L.
    maintains in his brief that pills “do not have unique characteristics that would allow an
    inference to be drawn regarding their status as a controlled substance.” He also points
    out that L.B. testified that C.W.L. never told him why he would want the ADHD pills.
    Both L.B. and C.S. testified that they did not know why someone who did not have
    ADHD would want to take ADHD medicine, and Officer Tharpe had to call Poison
    Control to confirm that the pills were a controlled substance.
    However, the State sufficiently established that C.W.L. knew the pills were his
    ADHD medicine. Cf. Hayes v. State, 
    672 S.W.2d 246
    , 248 (Tex. App.—Beaumont 1984, no
    pet.) (holding that an accused may be criminally liable for knowingly carrying a
    weapon even if the accused did not know that the carrying of the weapon constituted
    an offense). Both L.B. and C.S. testified that C.W.L. told them the pills were his ADHD
    medicine. In fact, L.B. testified that although the pills were not in a prescription bottle,
    C.W.L. said the pills were his prescribed ADHD medicine and that C.W.L. tried to sell
    him two of the pills. For this reason, we conclude that a rational trier of fact could have
    In re C.W.L.                                                                          Page 9
    found beyond a reasonable doubt that C.W.L. knew the pills were a controlled
    substance and, therefore, that he delivered a controlled substance in a drug-free zone.
    We overrule C.W.L.’s second issue.
    Conclusion
    Having overruled C.W.L.’s two issues, we affirm the trial court’s judgment.
    REX D. DAVIS
    Justice
    Before Chief Justice Gray,
    Justice Reyna, and
    Justice Davis
    Affirmed
    Opinion delivered and filed July 29, 2009
    [CV06]
    In re C.W.L.                                                                      Page 10