Kibble v. State

• Citation: 340 S.W.3d 14
• Decision Date: 02 December 2010
• Docket Number: No. 01–09–00480–CR.,01–09–00480–CR.
• Parties: Marara Jean KIBBLE, Appellant,v.The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

340 S.W.3d 14

Marara Jean KIBBLE, Appellant,

v.The STATE of Texas, Appellee.

No. 01–09–00480–CR.

Court of Appeals of Texas, Houston (1st Dist.).

Dec. 2, 2010.Discretionary Review Refused

May 11, 2011.

Robert Morrow, Attorney at Law, The Woodlands, TX, for Appellant.Alan Curry, Chief Prosecutor, Appellate Division, Patricia R. Lykos, Harris County District Attorney, Lisa G. Porter, Assistant District Attorney, Houston, TX, for Appellee.Panel consists of Justices JENNINGS, ALCALA, and HIGLEY.

OPINION

ELSA ALCALA, Justice.

Appellant, Marara Jean Kibble, appeals a judgment convicting her for possession with intent to deliver cocaine weighing between four and two hundred grams. See Tex. Health & Safety Code Ann. § 481.112 (Vernon 2010). In two issues, appellant contends that the trial court erred by admitting testimony describing the use of a drug sniffing dog to detect narcotic residue on seized money and by overruling her objections to the prosecutor's improper jury argument. In her third issue, appellant asserts that the evidence is factually insufficient to sustain her conviction. We conclude that the admission of evidence concerning the dog's alert on the money and the State's closing argument are harmless errors and that the evidence is sufficient to support the verdict. We affirm.

Background

On February 16, 2007, officers from the Houston Police Department (HPD) and the Montgomery County Sheriff's Department executed a “no knock” search warrant at appellant's apartment, located in Houston, Texas. The search warrant permitted officers to search for a digital camera and a laptop computer that were stolen from a house in Montgomery County, Texas.

Upon entering the apartment, HPD Officer Garza saw appellant asleep on the sofa and found two other adults in the living area. A fourth adult and an infant were asleep in the bedrooms. When Officer Garza asked whose apartment it was, appellant said she was the renter. Officer Garza gave her a copy of the search warrant and read legal warnings to appellant and the other adults in the apartment. Officer Byrd heard Officer Garza read the legal warnings, but appellant's cousin and appellant denied that the warnings were read to appellant.

Officer Garza asked appellant whether there was anything she wanted him to know. In response to his inquiry, appellant stated there were drugs in her red bag near the sofa where she had been sleeping. Officer Garza retrieved the red bag and found what was later determined by a chemist to be thirty-one rocks of crack cocaine, weighing 7.3 grams, and seven individual bags of powder cocaine, weighing 1.3 grams. The officers' search of the apartment also revealed the camera and laptop computer that were the subject of the search warrant as well as paraphernalia for smoking crack cocaine.

Appellant was arrested and transported to the jail where a female officer searched her. The female officer found $1,400 on appellant in denominations of twenties, tens, fives, and ones. Officer Guerrero, with the HPD canine narcotics unit, testified that he and his assigned dog, Bo, were called to the property room. There, Officer Guerrero was told that, prior to his arrival, the cash had been hidden in the parking lot, but he was not informed where it was hidden. Outside, he released Bo from his kennel and gave Bo the search command. Bo alerted to the location of the money. Testifying as an expert in canine narcotics detection, Guerrero stated that Bo's alert meant that there was a narcotic odor coming from the bag containing the money. Officer Guerrero noted that he had no personal knowledge of the contents of the bag because he never looked inside it.

At trial, appellant testified that she bought the laptop and camera from a neighbor without knowledge of the theft and that she had never seen the red bag. Appellant and her friend Dona Davis each testified that Davis gave appellant the cash to repay appellant for a purchase made by Davis on appellant's credit card.

Appellant pleaded not guilty to the jury. The jury found her guilty and the trial court assessed punishment at thirty-five years in prison.

Sufficiency of the Evidence

In her second issue, appellant challenges the factual sufficiency of the evidence that she possessed narcotics with the intent to deliver.

A. Standard of Review

This Court now reviews both legal and factual sufficiency challenges using the same standard of review. Ervin v. State, 331 S.W.3d 49, 52–55 (Tex.App.-Houston [1st Dist.] 2010, pet. filed) (construing majority holding of Brooks v. State, 323 S.W.3d 893, 912–13, 924–28 (Tex.Crim.App.2010)). Under this standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational factfinder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App.2009); Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007). Viewed in the light most favorable to the verdict, the evidence is insufficient under this standard in two circumstances: (1) the record contains no evidence, or merely a “modicum” of evidence, probative of an element of the offense; or (2) the evidence conclusively establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 n. 11, 320, 99 S.Ct. at 2786, 2789 n. 11, 2789; Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750. Additionally, the evidence is insufficient as a matter of law if the acts alleged do not constitute the criminal offense charged. Williams, 235 S.W.3d at 750.

If an appellate court finds the evidence insufficient under this standard, it must reverse the judgment and enter an order of acquittal. See Tibbs v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982). An appellate court determines whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. See Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007)). In viewing the record, direct and circumstantial evidence are treated equally; circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Id. (citing Hooper, 214 S.W.3d at 13). An appellate court presumes that the factfinder resolved any conflicting inferences in favor of the verdict and defers to that resolution. See Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; Clayton, 235 S.W.3d at 778. An appellate court also defers to the factfinder's evaluation of the credibility of the evidence and weight to give the evidence. See Williams, 235 S.W.3d at 750.

B. Possession of Cocaine with Intent to Deliver

To demonstrate possession of cocaine with intent to deliver, the State is required to show that (1) appellant knowingly or intentionally, (2) possessed, (3) cocaine, (4) in an amount of greater than four but less than two hundred grams, (5) with the intent to deliver the cocaine. See Tex. Health & Safety Code Ann. § 481.112(a), (d). In order to prove the possession element of this offense, the State is required to present evidence that appellant had actual care, custody, control, or management over the contraband and that appellant knew it was contraband. See id. § 481.002(38) (Vernon 2010); Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App.1981); Olivarez v. State, 171 S.W.3d 283, 291 (Tex.App.-Houston [14th Dist.] 2005, no pet.).

When the accused is not in exclusive possession of the place where the contraband is found, then additional, independent facts and circumstances must link the defendant to the contraband in such a way that it can reasonably be concluded that she had knowledge of the contraband and exercised control over it. Roberson v. State, 80 S.W.3d 730, 735 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). This link may be shown through direct or circumstantial evidence, including the amount of contraband found, its location in relationship to the defendant's personal belongings, the defendant's relationship to other persons with access to the premises, incriminating statements, and proximity of the defendant to the contraband. See Olivarez, 171 S.W.3d at 291.

Intent to deliver can be proven by circumstantial evidence. Rhodes v. State, 913 S.W.2d 242, 251 (Tex.App.-Fort Worth 1995), aff'd, 945 S.W.2d 115 (Tex.Crim.App.1997). An oral expression of intent is not required; 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). Some factors to consider in determining intent include (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, (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. Williams v. State, 902 S.W.2d 505, 507 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). These are evaluative factors for the court to take into consideration when reviewing the sufficiency of the evidence but are not each required to be present. See Branch v. State, 599 S.W.2d 324, 325–26 (Tex.Crim.App.1979) (evidence factually sufficient although no paraphernalia found on defendant and no apparent testimony as to street value of substance confiscated). Expert testimony may be introduced to prove intent to deliver. See Rhodes, 913 S.W.2d at 251.

C. Analysis

Appellant challenges the factual sufficiency of the evidence. Relying on her own testimony, appellant attempts to show that she did not...