Courtney Sims v. State ( 2011 )

Affirmed and Memorandum Opinion filed June 30, 2011.

In The

Fourteenth Court of Appeals

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NO. 14-10-00422-CR

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Courtney Sims, Appellant

V.

The State of Texas, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1221786

MEMORANDUM OPINION

A jury convicted appellant Courtney Sims of one count of possession of marijuana in a usable quantity of more than five pounds and less than fifty pounds, see Tex. Health & Safety Code Ann. § 481.121(a), (b)(4) (West 2010), and the jury assessed punishment at five years’ imprisonment.  In a single issue, appellant argues that the evidence is legally insufficient to sustain his conviction.  We affirm.

Background

One morning in June 2009, four Harris County Precinct 4 Constable’s Office deputies arrived at an apartment complex in response to a narcotics complaint and observed a man exiting from the direction of the apartment that was the subject of the complaint.  Several deputies noticed a strong marijuana odor emanating from this person as they passed him.  While several deputies detained this suspect, Deputy Michael Atkins approached the front door of the apartment. 

Deputy Atkins began a motion to knock on the front door, but appellant opened the door at the exact same time, causing Deputy Atkins’s hand to cross the threshold of the door.  Deputy Atkins noticed an extremely strong smell of marijuana, and appellant appeared startled finding himself face-to-face with the deputy.  Deputy Atkins told appellant to step outside.  After freezing for an instant, appellant stepped back into the apartment and attempted to shut the door.  Deputy Atkins stopped the door with his foot, grabbed appellant, and pulled him outside.  While the door was open, Deputy Atkins glanced inside the apartment and observed in plain view two clear plastic bags filled with what he believed was marijuana. 

Deputies Atkins and Jones secured appellant and conducted a protective search of the apartment, during which the deputies observed additional marijuana, other narcotics, and drug paraphernalia in plain view.  After a subsequent warrant search, the deputies recovered marijuana leaves, compressed marijuana, and cocaine packaged in small quantities for distribution.  Some of the marijuana was found in plastic bags on the floor directly behind where appellant stood when he opened the door.  Additional marijuana was found in plain view on a table a few steps from where appellant stood at the front door.  A forensic chemist with the Harris County Institute of Forensic Sciences later confirmed that the substances recovered included more than seven pounds of marijuana and six grams of cocaine. 

The deputies also seized a handgun and a fully loaded magazine, cash, electronic scales containing cocaine residue, a razor blade, multiple small plastic baggies, a box of Swisher Sweet cigars, and a prescription medicine bottle.  Deputy Atkins testified these items are commonly used in the sale and distribution of narcotics.  He further testified that there were no hygiene materials or food in the apartment, the space was not clean, and “[t]here was nothing really to sustain life for any amount of time,” which is consistent with narcotics activity.

However, some female underwear was found inside the apartment.  Also a letter and two cell phones were on the kitchen table.  The letter was not tagged for evidence, and the name of the addressee on the letter was not recorded during the search.  One of the cell phones belonged to the man whom deputies stopped outside the apartment.  The prescription bottle found in the apartment listed the name of a person other than appellant.  The State did not present any evidence that appellant had actually leased the apartment.

Standard of Review

When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine, based on that evidence and any reasonable inferences from it, whether any rational fact finder could have found the elements of the offense beyond a reasonable doubt.  Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury is the exclusive judge of the credibility of witnesses and the weight to be given to the evidence.  See Isassi, 330 S.W.3d at 638.  Further, we defer to the jury’s responsibility to fairly resolve or reconcile conflicts in the evidence.  Id.  And we draw all reasonable inferences from the evidence in favor of the verdict.  Id.  This standard applies to both circumstantial and direct evidence.  Id.  

Analysis

Appellant argues that the evidence is insufficient to prove that he knowingly possessed a controlled substance.  To prove unlawful possession of a controlled substance, the State must show that the accused intentionally or knowingly possessed the substance—that is, the accused knew of its existence and exercised actual care, custody, control, or management over it.  See Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005).  When the controlled substance is not in the exclusive control of the defendant in the place or premise where it is found, the State must make a showing of links between the accused and the controlled substance. Evans, 202 S.W.3d at 162 (“Mere presence at the location where drugs are found is . . . insufficient, by itself, to establish actual care, custody, or control of those drugs.”).  The term links is used “merely as a shorthand catch-phrase for a large variety of circumstantial evidence that may establish the knowing ‘possession’ or ‘control, management, or care’ of some item such as contraband.”  Id. at 161 n.9.

The Texas Court of Criminal Appeals has identified a nonexclusive list of links.  See id. at 162 & n.12.[1]  The State need not establish all of the links.  See Moreno v. State, 195 S.W.3d 321, 326 (Tex. App.—Houston [14th Dist.] 2006, pet ref’d) (“[T]he number of factors present is not as important as the logical force the factors have in establishing the elements of the offense.”).  Fundamentally, the goal of the analysis of links is to protect an “innocent bystander—a relative, friend, or even stranger to the actual possessor—from conviction merely because of his fortuitous proximity to someone else’s drugs.”  Evans, 202 S.W.3d, at 161–62. 

Here, appellant was found alone in an apartment with large quantities of drugs and drug paraphernalia in plain view and in close proximity to him.  According to Deputy Atkins, the apartment had an “extremely strong smell of marijuana.” Although appellant argues that he could not have knowingly possessed the marijuana because he was attempting to leave the apartment when he was arrested, Deputy Atkins testified that appellant attempted to close the door and remain inside the apartment upon seeing the deputies.  This evidence supports the jury’s conclusion that appellant exercised control over the marijuana inside the apartment despite the evidence of other persons’ belongings in the apartment and the lack of any evidence that appellant leased or resided at the apartment.

The logical force of the evidence establishes that appellant knowingly possessed the marijuana.  A rational jury could have found the elements of this offense beyond a reasonable doubt.  See Cruse v. State, 722 S.W.2d 778, 779 (Tex. App.—Beaumont 1986, pet. ref’d) (holding that the evidence was sufficient for possession of a controlled substance when the defendant was arrested at the door of a mobile home while he was leaving, the inside of the mobile home smelled like methamphetamine, the defendant smelled like methamphetamine, and the contraband was in plain view inside the mobile home and easily accessible to the defendant).

Further, appellant’s reliance on the “outstanding reasonable hypothesis” construct is misguided.  Citing Alvarez v. State, 813 S.W.2d 222 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d), appellant argues that “a conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the defendant’s guilt.”  The Court of Criminal Appeals, however, unequivocally rejected the “outstanding reasonable hypothesis” construct.  Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995) (“[W]e finally abandoned the ‘outstanding reasonable hypothesis’ methodology altogether in 1991. . . .  [E]ach defendant must still be affirmatively linked with the drugs he allegedly possessed, but this link need no longer be so strong that it excludes every other outstanding reasonable hypothesis except the defendant’s guilt.”).

Finally, appellant compares the facts of his case to those in Hausman v. State, 480 S.W.2d 721 (Tex. Crim. App. 1972).  In Hausman, the court reversed the defendant’s conviction when police found a paper bag containing marijuana located one foot from the defendant’s head while the defendant was sleeping at a campfire in close proximity to six other people.  Id. at 722–23. Unlike in Hausman, appellant was found awake and alone in an enclosed apartment with large amounts of drugs and drug paraphernalia in plain view and conveniently accessible to him, with a strong odor of marijuana emanating from inside the apartment.  Appellant’s case is distinguishable.

Accordingly, we overrule appellant’s sole issue and affirm the trial court’s judgment.

                                                                        /s/        Sharon McCally

                                                                                    Justice

Panel consists of Justices Frost, Jamison, and McCally.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] These links are as follows: (1) whether the defendant was present when a search was conducted; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and accessibility of the narcotics; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made any incriminating statements when arrested; (7) whether the defendant made furtive gestures or attempted to flee; (8) whether there was an odor of contraband; (9) whether other contraband or drug paraphernalia were present; (10) whether the defendant owned or had the right to possess the place where the drugs were found; (11) whether the place where the drugs were found was enclosed; (12) whether the defendant was found with a large amount of cash; (13) whether the conduct of the defendant indicated a consciousness of guilt.  Evans, 202 S.W.3d at 162 n.12.