Phillips v. State
| Decision Date | 12 January 2012 |
| Docket Number | NO. 14-10-01043-CR,14-10-01043-CR |
| Parties | TERRENCE RHODETRIC PHILLIPS, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
Affirmed and Memorandum Opinion filed January 12, 2012.
On Appeal from the 174th District Court
Harris County, Texas
Appellant Terrence Rhodetric Phillips appeals his conviction for possession of a controlled substance. He challenges the sufficiency of the evidence to support his conviction, complains of evidentiary rulings, and asserts that he received ineffective assistance of counsel at trial. We affirm.
Appellant was charged by indictment with the felony offense of possession of a controlled substance, namely cocaine, weighing more than four grams and less than two hundred grams. The indictment also contained an allegation that appellant used orexhibited a deadly weapon, a firearm, during the commission of and immediate flight from the charged offense. The indictment contained two enhancement paragraphs. Appellant pleaded "not guilty" to the charged offense and "true" to the two enhancement paragraphs.
At trial, an officer with the narcotics division of the police department testified that he had received information from a known, credible, and reliable informant that appellant was selling crack cocaine from a specific apartment, unit 4, in an apartment complex located in a high-crime area. The officer believed that appellant lived in unit 4 with a woman, and the officer had observed appellant entering or exiting that unit twice. With this information, the officer organized a "controlled buy" at the apartment, in which the officer sent the informant to the apartment to purchase narcotics so that the officer could verify the information he had received. During this transaction, the informant entered unit 4 with "city money," purchased narcotics with the money, and returned to the awaiting officer with a substance that later tested positive for crack cocaine. Afterwards, the informant described the individual from whom he purchased the narcotics during the transaction; the description matched appellant's appearance. The officer included the description, as relayed to him by the informant, in a probable-cause affidavit, and then obtained a search warrant for the apartment.
The following day, before executing the search warrant at unit 4, officers waited at a nearby fire station until they saw appellant exit the apartment. According to one officer, appellant posed a threat to officers, and the officers did not want to execute the warrant until after appellant had exited the apartment. Officers approached appellant and detained him at a nearby store. Other officers then went to the apartment.
When they arrived at the apartment, a woman opened the door and allowed the officers to enter. Officers believed that the woman was appellant's girlfriend. The officers explained that they were looking for narcotics, and the woman directed the officers to a closet inside the apartment's master bedroom. The closet contained men'sand women's clothing. The men's clothing was sized extra, extra large and would have fit appellant's build.
Inside the closet, officers located what appeared to be two "cookies" of crack cocaine and eight bags containing what appeared to be marijuana. Officers found two loaded firearms in the bedroom under a mattress. Also inside the bedroom, officers found a receipt for a money order, dated the previous month, bearing appellant's name, but reflecting appellant's address as that of a neighboring apartment. Officers also found letters written by appellant to the woman who answered the door. In the letters, which appellant penned from county jail, appellant expressed a desire to have children with the woman. These letters reflected the woman's address as that of the neighboring apartment. Officers arrested the woman in connection with the investigation.
The record reflects that the substances found in the closet later tested positive for cocaine; one piece of cocaine weighed approximately 38.3 grams, and the other one weighed 2.4 grams. Other tests confirmed that the substance found in the bags to be marijuana totaling 3.3 ounces. According to one officer's trial testimony, forty grams of cocaine is worth about $1000 and is not considered an amount intended for personal use. Another officer testified that a "cookie" of crack cocaine could be cut into smaller pieces and sold for roughly $20 per piece. This officer opined that, based on the packaging, the marijuana was intended for sale and distribution, and not for personal use.
The jury found appellant guilty as charged. The jury determined in a special issue that appellant did not use or exhibit a deadly weapon. After finding the enhancements to be true, the trial court sentenced appellant to thirty-five years' confinement. Appellant now challenges his conviction, raising three issues on appeal.
In his first issue, appellant claims the evidence is insufficient to support his conviction. In evaluating a sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).The issue on appeal is not whether we, as a court, believe the State's evidence or believe that appellant's evidence outweighs the State's evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact "is the sole judge of the credibility of the witnesses and of the strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact may choose to believe or disbelieve any portion of the witnesses' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
A person commits the second-degree felony offense of possession of a controlled substance if that person knowingly or intentionally possesses a controlled substance listed in Penalty Group 1, and the substance was not prescribed by a practitioner, and when it weighs more than four grams and less than two hundred grams. See Tex. Health & Safety Code Ann. § 481.115(a), (d) (West 2010). Cocaine is considered a controlled substance listed in Penalty Group 1. Id. § 481.102(3)(D) (West 2010).
"Possession" is defined as "actual care, custody, control, or management." TEX. PENAL CODE ANN. § 1.07(a)(39) (West 2011); TEX. HEALTH & SAFETY CODE ANN. § 481.002(38) (West 2010). To prove unlawful possession of a controlled substance, the State must establish that (1) the accused exercised care, control, or management over the contraband, and (2) knew the substance was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). The elements of possession may be proven through direct or circumstantial evidence, although the evidence must establish that the accused's connection with the substance was more than fortuitous. Id. at 405-06. Evidence mustlink the accused to the offense so that one reasonably may infer that the accused knew of the contraband's existence and exercised control over it. Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd). Courts have identified a non-exhaustive list of factors that may help to show an accused's affirmative links to a controlled substance, including (1) the accused's presence when a search is conducted, (2) the contraband is in plain view, (3) the accused's proximity to and accessibility of the narcotics, (4) the accused was under the influence of narcotics when arrested, (5) other contraband or narcotics were found in the accused's possession, (6) any incriminating statements the accused made when arrested, (7) furtive gestures or attempts to flee by the accused, (8) any odor of contraband, (9) the presence of other contraband or paraphernalia, (10) the accused's ownership or right to possess the place where the narcotics were found, (11) whether the place where the narcotics were found was enclosed, (12) whether the accused was found with a large amount of cash, and (13) whether the accused's conduct indicated a consciousness of guilt. Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006). Additionally, a large quantity of contraband may be a factor affirmatively linking appellant to the contraband. See Olivarez v. State, 171 S.W.3d 283, 292 (Tex. App.—Houston [14th Dist.] 2005, no pet.). No set formula necessitates a finding of an affirmative link sufficient to support an inference of knowing possession; affirmative links are established by the totality of the circumstances. See Hyett, 58 S.W.3d at 830. The number of factors present is not as important as the logical force the factors created to prove the accused knowingly possessed the controlled substance. Robertson v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd). In the case under review, we focus on factors three, five, and ten, among others, as establishing affirmative links between appellant and the controlled substance.
Appellant first asserts there is no evidence that the informant procured cocaine from appellant during the controlled buy because the officer who organized the controlled buy had no information about the occupants inside the apartment. Contrary to appellant'sassertion, the record reflects that, after conducting the controlled buy, the confidential informant, whom officers believed was credible and reliable, (1) i...
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