Date: 02-19-2017

Case Style:

Case Number: 01-16-00144-CR

Judge: Terry Jennings

Court: In The Court of Appeals For The First District of Texas

Plaintiff's Attorney:

Cory Stott
Daniel McCrory
The Honorable Kim K Ogg

Defendant's Attorney:

Tonya Rolland

Description: Harris County Sheriff’s Office Deputy T. Kirkley testified that during the
evening of July 27, 2014, he was off-duty and visiting with a group of friends at
the Texas Saloon, a nightclub in Pasadena. Toward the end of the night, Kirkley
learned that one of his friends and appellant were arguing outside in the parking
lot. Kirkley went outside and attempted to diffuse the argument. When appellant
began yelling at Kirkley, Kirkley identified himself as a police officer and told
appellant to leave or he would arrest him. When appellant refused, Kirkley told
him that he was going to go to his car, retrieve his badge, and arrest him. When
Kirkley returned holding a badge, appellant began running. Kirkley followed
behind appellant, and, when appellant fell down, Kirkley fell on top of him,
attempting to restrain his arms. Moments later, a Pasadena Police Department
(“PPD”) officer arrived at the scene.
1 See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102, 481.115(a), (c) (Vernon 2010).


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PPD Officer B. McClain testified that while on duty on July 27, 2014, he
was dispatched to the Texas Saloon to investigate a disturbance. When McClain
arrived, he saw a group of people standing outside and appellant and Kirkley on
the ground fighting. After McClain separated appellant and Kirkley, Kirkley
identified himself as a peace officer. McClain then detained appellant, spoke with
him and Kirkley, and arrested appellant for public intoxication, assault, and
disorderly conduct. McClain patted down appellant’s legs and back pockets for
weapons, and he searched appellant’s front pockets, turning them inside out.
McClain found only personal items, i.e., keys and a cellular telephone. He then
transported appellant to the PPD jail. At the jail, PPD Officer R. Koonce gave
McClain a small piece of folded aluminum foil that Koonce had discovered in the
left back pocket of appellant’s pants. McClain noted that inside the aluminum foil,
which was two inches long and two inches wide, were three baggies containing a
crystalline substance that field-tested positive for methamphetamine and weighed
1.9 grams. McClain explained that when he had patted down appellant earlier at
the scene, he had not felt the aluminum foil in appellant’s pocket.
Officer Koonce testified that at the jail, he was able to perform a thorough
search of appellant. When Koonce placed his hand all the way down into the right
corner, along the right-hand seam, of the left back pocket of appellant’s pants, he
felt something poking him through his gloved finger. Koonce then removed from


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appellant’s pocket a piece of folded aluminum foil that had something inside of it.
Koonce noted that the foil was pressed against the seam so well that, when running
a hand across the jeans, one could not feel the change between the seam and the
foil. A. Carter, a former analyst for the PPD Crime Laboratory, testified that he
tested the substance found in appellant’s back pocket. The substance tested
positive for methamphetamine and weighed 1.4599 grams.
James Brandin testified that while was working as a security officer at the
Texas Saloon on July 27, 2014, he saw a group of off-duty law enforcement
officers there consuming alcohol, being loud, and having a good time. Brandin
noted that appellant, who is his friend and a regular customer of the nightclub, was
intoxicated. During the evening, there was an altercation between appellant and
one of the officers, but it subsided. Brandin subsequently, however, saw appellant
running out of the club. Approximately ten minutes later, Brandin went outside
and saw appellant standing near a patrol car by himself, with his shirt off and what
appeared to be the contents of his pockets on the hood of the patrol car.
Approximately fifteen to twenty minutes later, an officer arrested appellant.
Appellant’s brother, Gerald Toumey, testified that he was with appellant at
the Texas Saloon on the night of July 27, 2014. At some point during the evening,
Gerald learned that appellant was outside the nightclub arguing with someone,
whom Gerald later learned was Deputy Kirkley. Gerald went outside and


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attempted to diffuse the situation by getting in between them and telling appellant
to leave. When appellant tried to leave, however, Kirkley and a woman tackled
appellant and held him down. Kirkley “kept saying he was a cop” and started
searching appellant. A PPD officer arrived and had appellant stand at his patrol car
while the officer went and spoke with Kirkley. Gerald saw the contents of
appellant’s pockets, i.e., cellular telephone, wallet, and coins, on the ground where
he had scuffled with Kirkley. Gerald picked up the items and placed them on the
hood of the PPD patrol car. He explained that after the officer returned and
searched appellant’s front and back pockets, he did not find any narcotics. The
officer then placed appellant in handcuffs and stated that he was arresting appellant
for public intoxication.
Standard of Review
We review the legal sufficiency of the evidence by considering all of the
evidence in the light most favorable to the jury’s verdict to determine whether any
rational trier of fact could have found the essential elements of the offense beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781,
2788–89 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Our role is that of a due process safeguard, ensuring only the rationality of the trier
of fact’s finding of the essential elements of the offense beyond a reasonable
doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We


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give deference to the responsibility of the fact finder to fairly resolve conflicts in
testimony, weigh evidence, and draw reasonable inferences from the facts.
Williams, 235 S.W.3d at 750. The jury, as the judge of the facts and credibility of
the witnesses, could choose to believe or not to believe the witnesses, or any
portion of their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App.
1986); Jenkins v. State, 870 S.W.2d 626, 628 (Tex. App.—Houston [1st Dist.]
1994, pet. ref’d). Our duty requires us “to ensure that the evidence presented
actually supports a conclusion that the defendant committed” the criminal offense
of which he is accused. Williams, 235 S.W.3d at 750.
Sufficiency of the Evidence
In his first and second issues, appellant argues that the evidence is
insufficient2 to support his conviction for possession of a controlled substance
because the State did not establish that he intentionally or knowingly possessed
methamphetamine. Appellant asserts that the State presented “very little, if any,
evidence of [his] knowledge of [his] possession of [the] controlled substance that
was found on his person.”

2 Although appellant frames his first issue as a challenge to the trial court’s denial of his motion for a directed verdict, a challenge to a trial court’s ruling on a directed verdict is a challenge to the legal sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). This Court now reviews the factual sufficiency of the evidence under the same appellate standard of review as that for legal sufficiency. Ervin v. State, 331 S.W.3d 49, 52–56 (Tex. App.— Houston [1st Dist.] 2010, pet. ref’d).


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A person commits the offense of possession of a controlled substance if he
“knowingly or intentionally possesses” a controlled substance, including
methamphetamine. TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (c) (Vernon
2010); see also id. § 481.002(5) (Vernon Supp. 2016), § 481.102 (Vernon 2010).
To prove that appellant possessed methamphetamine, the State was required to
show that he (1) exercised control, management, or care over methamphetamine
and (2) knew that the matter was methamphetamine. See Blackman v. State, 350
S.W.3d 588, 594 (Tex. Crim. App. 2011); see also TEX. HEALTH & SAFETY CODE
ANN. § 481.002(38) (Vernon Supp. 2016) (“Possession” means “actual care,
custody, control or management.”); TEX. PENAL CODE ANN. § 6.03(a), (b) (Vernon
2011) (defining intentionally and knowingly). The issue is whether the evidence
supports a reasonable inference that the defendant knowingly possessed the
contraband. Jenkins, 870 S.W.2d at 628. In determining whether the defendant
actually knew that he possessed narcotics, the jury may infer the defendant’s
knowledge from his acts, conduct, remarks, and from the surrounding
circumstances. Menchaca v. State, 901 S.W.2d 640, 652 (Tex. App.—El Paso
1995, pet. ref’d).
Here, the evidence shows that methamphetamine was found wrapped in
aluminum foil in a back pocket of appellant’s pants while he was wearing them.
Because the methamphetamine was located in a place over which appellant had


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exclusive control, the jury could have reasonably concluded, as it did, that
appellant exercised care, management, and control over the methamphetamine.
See Jenkins, 870 S.W.2d at 628 (sufficient evidence of possession where narcotics
found inside defendant’s front pants pocket); Mayes v. State, 831 S.W.2d 5, 7 (Tex.
App.—Houston [1st Dist.] 1992, no pet.) (sufficient evidence of possession where
crack pipe containing cocaine found in defendant’s pants pocket); see also
Blackman, 350 S.W.3d at 594.
Further, the fact that the methamphetamine was found on appellant’s person
supports the inference that he knowingly possessed it. See Jenkins, 870 S.W.2d at
628 (sufficient evidence of knowing possession of controlled substance where
small tube containing white powdery residue found in defendant’s pants pocket);
King v. State, 857 S.W.2d 718, 720 (Tex. App.—Houston [14th Dist.] 1993), aff’d,
895 S.W.2d 701 (Tex. Crim. App. 1995) (sufficient evidence of knowing
possession where cocaine found inside crack pipe in defendant’s pants pocket); see
also Blackman, 350 S.W.3d at 594; see, e.g., Clark v. State, No. 14-09-00944-CR,
2010 WL 4673713, at *2 (Tex. App.—Houston [14th Dist.] Nov. 18, 2010, no pet.)
(mem. op., not designated for publication) (“It is rational for a jury to conclude that
an individual is aware of the contents of his pants pocket.”).
Officer Koonce also described how appellant had carefully hidden the
aluminum foil containing the baggies of methamphetamine inside the pocket of his


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pants. Koonce did not discover the foil until he placed his hand all the way down
into the right corner, along the right-hand seam, of the left back pocket of
appellant’s pants. Only after Koonce felt something poking him through his
gloved finger did he discover and remove a folded piece of aluminum foil that had
something inside of it. Koonce noted that the foil was pressed against the seam so
well that, when running a hand across the jeans, one could not feel the change
between the seam and the foil. From this evidence, the jury could have reasonably
concluded that appellant intentionally or knowingly possessed the
methamphetamine. See Menchaca, 901 S.W.2d at 652 (jury may infer defendant’s
intent or knowledge from his acts); Daniels v. State, 853 S.W.2d 749, 751 (Tex.
App.—Houston [1st Dist.] 1993, no pet.) (defendant’s act of concealing crack pipe
in his pocket supported finding of knowing possession); Jarrett v. State, 818
S.W.2d 847, 848 (Tex. App.—Houston [1st Dist.] 1991, no pet.) (defendant’s
attempt to hide crack pipe from law enforcement officers constituted evidence of
knowing possession).
Further, Officer McClain testified that in the baggies found in appellant’s
pants pocket he saw a crystalline substance that tested positive for
methamphetamine and weighed 1.9 grams. And Carter testified that the substance
tested positive for methamphetamine and weighed 1.4599 grams. “[I]f the
controlled substance can be seen and measured, the amount is sufficient to


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establish that the appellant knew it was a controlled substance.” Mayes, 831
S.W.2d at 6; see also Jenkins, 870 S.W.2d at 628; Sims v. State, 833 S.W.2d 281,
284; (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d) (evidence of knowing
possession sufficient where cocaine residue observed with naked eye); Jarrett, 818
S.W.2d at 848 (officer observed residue inside crack pipe).
Appellant argues that the State did not establish that he intentionally or
knowingly possessed a controlled substance because it did not present evidence
affirmatively linking him to the methamphetamine found in his pants pocket. The
affirmative links doctrine applies, however, in instances in which the accused does
not exclusively possess the place where the contraband is found. Poindexter v.
State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) (“The ‘affirmative links rule’
is designed to protect the innocent bystander from conviction based solely upon his
fortuitous proximity to someone else’s drugs.”); Batiste v. State, 217 S.W.3d 74,
79–80 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Here, the State was not
required to present evidence affirmatively linking appellant to the
methamphetamine because it was found on his person in a place he exclusively
controlled. See Utomi v. State, 243 S.W.3d 75, 79 (Tex. App.—Houston [1st Dist.]
2007, pet. ref’d) (State must link defendant to contraband when “not found on the
accused’s person or when the accused is not in exclusive control over the place
where the contraband is found”).


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Viewing the evidence in the light most favorable to the jury’s verdict, we
conclude that the jury could have reasonably found that appellant intentionally or
knowingly possessed methamphetamine. See Jackson, 443 U.S. at 318–19, 99 S.
Ct. at 2788–89; Williams, 235 S.W.3d at 750. Accordingly, we hold that the
evidence is sufficient to support appellant’s conviction for the offense of
possession of a controlled substance.
We overrule appellant’s first and second issues.

Outcome: