Brenda Kay Mims v. State

NO. 12-02-00278-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS BRENDA KAY MIMS, § APPEAL FROM THE SECOND APPELLANT V. § JUDICIAL DISTRICT COURT OF THE STATE OF TEXAS, APPELLEE § CHEROKEE COUNTY, TEXAS MEMORANDUM OPINION Brenda Kay Mims ("Appellant") appeals the trial court's order revoking her community supervision. Appellant raises three issues on appeal. We affirm. Background Following her negotiated guilty plea to theft, the trial judge placed Appellant on "shock probation" pursuant to the plea agreement. She served over 120 days in the penitentiary, and was then placed on probation for ten years. Four years later, the State of Texas (the "State") filed a motion to revoke Appellant's probation alleging she violated the terms of her probation. Appellant pleaded "not true," and a hearing was conducted on the State's motion. During the hearing, Shelby Green ("Green"), Sergeant Investigator of the Anderson County Sheriff's Department assigned to the Dogwood Trails Narcotics Task Force, testified he met with a confidential informant ("CI"). The CI indicated that within the previous 48 hours, he had been at the residence of Appellant and Carl Lee Roberts ("Roberts"). There, the CI observed coffee filters containing a red substance, clear baggies containing red phosphorous, and numerous pseudoephedrine packages. This information was consistent with Green's ongoing investigation of the residence and his suspicions that it was being used as a clandestine methamphetamine lab. Green testified that a search warrant was executed at the residence in which Appellant and three other individuals were found in a bedroom. The house contained various items used in the production of methamphetamine. Containers of methamphetamine were found as well, one in the bedroom with Appellant. At the conclusion of the hearing, the court revoked Appellant's probation based on a finding that Appellant possessed methamphetamine and that she failed to avoid persons or places of disreputable or harmful character in violation of her probation terms. The trial court sentenced her to six years of imprisonment. Sufficiency of the Evidence Standard of Review In her first issue, Appellant contends that the evidence is legally insufficient to support the trial court's finding of "true" to each of two violations. Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment. Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.-San Antonio 1999, no pet.). In reviewing the legal sufficiency of evidence, we examine the evidence in the light most favorable to the judgment to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). When addressing a legal sufficiency challenge in a probation revocation, we must "review the evidence in the light most favorable to the court's order and determine whether the trial court abused its discretion." Arterberry v. State, 800 S.W.2d 580, 580 (Tex. App.-Tyler 1990, no pet.). To satisfy its burden of proof, the State must prove that the greater weight of the credible evidence creates a reasonable belief that a condition of probation was violated as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). If the State failed to meet its burden of proof, the trial court abuses its discretion in issuing an order to revoke probation. Cardona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App. 1984). Discussion Appellant first contends that the evidence is insufficient to show an affirmative link between herself and the contraband that would support a reasonable inference that she knew she was in possession of the methamphetamine. To establish unlawful possession of a controlled substance, the State must prove an accused exercised care, control, and management over the contraband and that she knew the matter possessed was contraband. Harrison v. State, 555 S.W.2d 736, 736-37 (Tex. Crim. App. 1977). Possession of the contraband need not be exclusive, and evidence of joint possession with another is sufficient. Id. at 737. Mere presence at a place where the substance is possessed does not, in itself, justify a finding of possession. Id. Where the accused is not in exclusive control of the place where the substance is found, it cannot be concluded that she had knowledge of the contraband and control of it unless there are additional independent facts and circumstances that affirmatively link her to the contraband. Id. Appellant was not in exclusive control of the residence where methamphetamine was found. Therefore, we must examine the record to find additional facts and circumstances that affirmatively link Appellant and the contraband. Those circumstances may include whether (1) she was present when the search was executed; (2) the contraband was in plain view; (3) the contraband was in close proximity to or easily accessible by Appellant; (4) she was under the influence of the contraband; (5) she was in possession of other contraband when arrested; (6) she made incriminating statements upon arrest; (7) she attempted to flee; (8) she made furtive gestures; (9) there was an odor of the contraband present; (10) other contraband or drug paraphernalia were present; (11) she owned or had a right to possess the place where the contraband was found; (12) the contraband was found in an enclosed place; (13) there was a significant amount of contraband; and (14) she possessed weapons or large amounts of cash. See de la Garza v. State, 898 S.W.2d 376, 379 (Tex. App.-San Antonio 1995, no pet.); Hernandez v. State, 867 S.W.2d 900, 904 (Tex. App.-Texarkana 1993, no pet.). This list is not exhaustive and the number of affirmative links found is not as important as the degree to which they tend to link Appellant to the contraband. See Williams v. State, 906 S.W.2d 58, 65 (Tex. App.-Tyler 1995, pet. ref'd). Although no contraband was found on Appellant's person, there is evidence affirmatively linking her to the contraband. After obtaining a search warrant, the officers entered the residence. They discovered Appellant in a bedroom in which the officers found a clear plastic baggie containing an off-white powdery substance that was later positively identified as methamphetamine. During the search of the residence, the officers also found various containers of methamphetamine as well as raw materials and equipment used to produce methamphetamine. Although testimony varied, the evidence reveals that officers recovered between 5.68 grams to 19.7 grams of methamphetamine in the enclosed area of the residence. Furthermore, Kenneth Graham ("Graham"), an investigator with the Deep East Texas Regional Narcotics Trafficking Task Force, testified that anyone walking in the residence could not fail to notice the residence was used as a methamphetamine lab due to all the items scattered about the house in open view. The items found are used in methamphetamine production - a reaction vessel with plastic tubing taped to it, glass drying pans, assorted glass jars, scales, baggies, camp fuel, denatured alcohol, acetone, sodium hydroxide, numerous pseudoephedrine packages, red phosphorous, and iodine crystals. Graham testified that he knows of no household use for red phosphorous or iodine crystals. Additionally, the CI gave specific details of many of the same items he witnessed in the residence 48 hours prior to the execution of the search warrant. Finally, Green and the CI believed Appellant lived at the residence. Various witnesses testified they had seen Appellant at the residence. Her purse, identification, and clothing believed to be hers were found in the residence, further corroborating that Appellant lived there and thus, had the right to possess the place where the contraband was found. In sum, the evidence shows that (1) Appellant was present when the search was executed; (2) the contraband was in plain view; (3) the contraband was in close proximity to or easily accessible by Appellant; (4) other contraband or drug paraphernalia were present; (5) Appellant owned or had a right to possess the place where the contraband was found; (6) the contraband was found in an enclosed place; and (7) there was a significant amount of contraband. Therefore, based upon our review of the record and viewing the evidence in the light most favorable to the trial court's order, we conclude the State met its burden of affirmatively linking Appellant to the methamphetamine. Consequently, a rational trier of fact could have found beyond a reasonable doubt that Appellant possessed methamphetamine. The trial court did not abuse its discretion in revoking Appellant's probation on this ground. Appellant's issue one is overruled. Conclusion Proof by a preponderance of the evidence of any one of the alleged violations of the probation conditions is sufficient to support the revocation order. Moses v. State, 590 S.W.2d 469, 469 (Tex. Crim. App. 1979). Therefore, we need not address issues two and three. Tex. R. App. P. 47.1. Having overruled Appellant's issue one, the trial court's order revoking Appellant's community supervision is affirmed. DIANE DEVASTO Justice Opinion delivered October 29, 2003. Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J. (DO NOT PUBLISH)