Bennett, Andre Nigel v. State

Affirmed and Memorandum Opinion filed July 31, 2003 Affirmed and Memorandum Opinion filed July 31, 2003. In The Fourteenth Court of Appeals ____________ NO. 14-02-00647-CR ____________ ANDRE NIGEL BENNETT, Appellant V. THE STATE OF TEXAS, Appellee __________________________________________ On Appeal from the 184th District Court Harris County, Texas Trial Court Cause No. 858,134 __________________________________________ M E M O R A N D U M   O P I N I O N Appellant was convicted by a jury of possession of a controlled substance, namely phencyclidine, with intent to deliver. Appellant then pled true to an enhancement allegation and was sentenced by the trial court to 12 years’ confinement. In two points of error, he challenges the legal and factual sufficiency of the evidence to support of his conviction. We affirm. I. Factual Background On October 11, 2000, Houston Police Department undercover narcotics officer Darren Fuller was observing a house known to the police for trafficking narcotics. While conducting surveillance, Fuller saw appellant arrive at the house in a blue Chevy Lumina and park in a nearby driveway. Appellant walked to a heavily wooded area about twenty feet from Fuller’s position, removed a small plastic bag from his pocket and placed it in a “V” shaped section of a tree. Based on his extensive experience in narcotics investigation, Fuller immediately recognized the contents of the bag as vials of phencyclidine. A car entered the driveway and after talking with the driver, appellant walked to the tree, removed an item from the bag and returned to the car. Based on what he believed to be a hand-to-hand transaction between the driver and appellant, Fuller believed appellant had sold the phencyclidine to the driver of the vehicle. Fuller called two backup officers to the scene who arrested appellant and the occupants of the house. After a cursory search, Fuller could not find the phencyclidine in the wooded area and radioed Officer Gary Doyle, who arrived at the scene with his narcotics sniffing canine to search for the bag. The canine found the bag with vials of phencyclidine in the tree, hidden from plain view with a clump of moss. Fuller identified the bag, found by the canine, as being the one appellant placed in the tree. A chemist with the Houston Police Department’s Crime Lab, analyzed the substance and testified the vials found within the bag contained approximately 3.8 grams of phencyclidine. No fingerprints were found on the bag or vials. Appellant did not testify at trial. Appellant had a prior conviction of possession of a controlled substance, to which he pleaded true. The jury convicted appellant and the trial court imposed a sentence of twelve years’ confinement. This appeal ensued. II. Standard of Review In his first and second points of error, appellant contends the evidence is legally and factually insufficient to support his conviction. When an appellant challenges both the legal and factual sufficiency of the evidence, the reviewing court addresses the legal sufficiency challenge first because an affirmative finding on that issue will result in rendition of a judgment of acquittal, while a finding of factual insufficiency warrants a remand for a new trial. Nickerson v. State, 69 S .W.3d 661, 668 (Tex. App.—Waco 2002, pet. ref’d). In conducting a legal sufficiency review, an appellate court must view the evidence in the light most favorable to the prosecution and determine if any rational fact finder could have found the crime’s essential elements to have been proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The reviewing court will examine the entire body of evidence; if any evidence establishes guilt beyond a reasonable doubt, and the fact finder believes that evidence, the appellate court may not reverse the fact finder’s verdict on grounds of legal insufficiency. See id. In reviewing for factual sufficiency, an appellate court will examine all the evidence without the prism of “in the light most favorable to the prosecution” and will set aside the fact finder’s verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). However, an appellate court conducting a factual sufficiency review must be appropriately deferential so as to avoid substituting its own judgment for that of the fact finder. Id. at 133. Accordingly, we are only authorized to set aside findings of fact in instances where it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. at 135. III. Analysis A person commits the subject offense if he intentionally or knowingly possesses, with the intent to deliver, phencyclidine in an amount weighing one gram or more but less than four grams by aggregate weight, including any adulterants or dilutants. Tex. Health & Safety Code § 481.102(8), 481.112(a), (c). We begin by addressing the issue of unlawful possession. To prove unlawful possession of a controlled substance, the State must show that appellant exercised care, control, and management over the contraband; and that appellant knew that what he possessed was contraband. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Linton v. State, 15 S.W.3d 615, 618 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). The evidence used to establish these elements can be direct or circumstantial. Brown, 911 S.W.2d at 747. Whether direct or circumstantial evidence is used, the State must establish that the accused’s connection with the substance was more than just fortuitous. Id. However, when the contraband is not found on the accused’s person or in the exclusive possession of the accused, additional facts must affirmatively link the accused to the contraband. McMillon v. State, 940 S.W.2d 767, 768–69 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d). The facts and circumstances of a case must create a reasonable inference that appellant knew of the controlled substance’s existence and exercised control over it. See Dickey v. State, 693 S.W.2d 386, 389 (Tex. Crim. App. 1984). Fuller testified that he was conducting surveillance on the target house when he witnessed appellant place the bag in a tree, approach the driver of a vehicle, return to the tree to retrieve an object, and then engage in what Fuller believed to be a hand-to-hand narcotics transaction. Upon the arrival of the canine officer and drug-sniffing canine, Fuller “took them to the tree . . . and immediately [the canine] alerted to that tree.” The officers discovered that the phencyclidine was covered with moss, suggesting appellant’s intent to conceal the substance, knowing it was illegal contraband. At no point during the initial surveillance or the subsequent execution of the arrest and search did the officers observe anyone other than appellant near the tree in question. Although at one point Fuller admitted to having lost sight of the baggie after appellant placed it in the tree, he testified that the baggie recovered from the tree was the same as that which he saw in the hands of appellant. In sum, Fuller’s testimony as to appellant’s close proximity to the phencyclidine and the fact that the substance was readily accessible to him is indicative of appellant’s knowledge and control over the contraband. See Abdel-Sater v. State, 852 S.W.2d 671, 676 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d). As described, Fuller’s testimony was sufficient to create a reasonable inference that appellant knew of the phencyclidine ’s existence and exercised control over it. See Abdel-Sater, 852 S.W.2d at 675. Under the circumstances, we cannot say that the evidence establishing that appellant possessed the contraband is legally or factually insufficient. We now turn to the legal and factual sufficiency of the evidence establishing that appellant intended to deliver the narcotics. Under the applicable statute, to “deliver” means to transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship. Tex. Health & Safety Code § 481.002(8). The term includes offering to sell a controlled substance, counterfeit substance, or drug paraphernalia. Id. The record contends direct evidence of appellant’s delivery. Fuller testified he observed appellant take something from the baggie, from its place in the tree, and give it to the driver of the vehicle. Illegal contraband was later discovered in the tree. Based on his experience as a narcotics officer, Fuller believed that a hand-to-hand drug transaction had occurred. In addition to Fuller’s observations, circumstantial evidence of delivery also exists. An intent to deliver a controlled substance may be proved by circumstantial evidence. Williams v. State, 902 S.W.2d 505, 507 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d.). Factors courts have considered include: (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); (5) the defendant’s possession of large amounts of cash; and (6) the defendant’s status as a drug user. Id. In the case at bar, Fuller was conducting surveillance at a residence where he had already observed significant narcotics activity. The phencyclidine was packaged in multiple vials, a manner of packaging which suggests an intent to deliver. Considering this evidence in conjunction with Fuller’s observations, we cannot say that the evidence is legally or factually insufficient to establish the delivery of the narcotics. class=Section3> Nevertheless, appellant alerts this court to conflicting testimony between the witnesses of the State and his own witnesses. While Fuller testified that he observed appellant possess, hide, and then deliver what appeared to be phencyclidine to a third party, appellant’s witnesses recounted the events of the day in question differently. Deaundre Augbon testified that appellant immediately began to play basketball with him after arriving at the scene and that appellant never ventured near the tree in question. Sedrick Fields, who was arrested for purchasing the phencyclidine from appellant, testified he purchased the contraband from another individual. Donald Simpson testified that another individual sold the phencyclidine to Fields and that appellant was nowhere near the tree where the phencyclidine was later discovered. Derrick Blount testified that he also did not see appellant near the tree. However, the jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). The jury is free to evaluate the witnesses’ testimony and disbelieve any of it. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). Thus, they could have believed the testimony of Fuller and disbelieved the witnesses who testified on behalf of appellant. V. Conclusion Based on the foregoing evidence, we find the evidence legally and factually sufficient to support the conviction. From it, a rational trier of fact could conclude that the offense was proven beyond a reasonable doubt. Further, the fact finder’s decision is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Accordingly, appellant’s points of error are overruled. For the foregoing reasons, the judgment of the trial court is affirmed. /s/ Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed July 31, 2003. Panel consists of Justices Anderson, Seymore, and Guzman. Do Not Publish — Tex. R. App. P. 47.2(b).