OPINION
A jury found appellant, Shamika Yvonne Satehell, guilty of the offense of possession of Phencyclidine (“PCP”) weighing at least 400 grams by aggregate weight,
1
and the
We affirm.
Background
Houston Police Department (“HPD”) Narcotics Investigator A. Vanderberry testified that a confidential informant, whom he knew from past experience to be “reliable and credible,” had informed him that “an assault rifle and narcotics were being kept” at appellant’s apartment and PCP was being sold from there. Vanderberry began surveillance of the apartment and set up a “controlled buy,” in which the informant would buy PCP from appellant’s boyfriend, Taj Smith, at the apartment. During surveillance of the controlled buy, Vanderberry saw a black female enter the apartment and remain there while the informant made the buy, but he could not identify the woman as appellant. Vander-berry obtained a combination search warrant for the apartment and arrest warrant for Smith. When Vanderberry’s team later began surveillance on the apartment in preparation for executing the warrants, he saw Smith driving appellant’s car, with appellant and two children as his passengers. Shortly after they had arrived at appellant’s apartment at 11:00 p.m., Van-derberry and his team detained appellant, arrested Smith, and executed the search warrant.
When the officers entered to search the apartment, “the smell of PCP was so strong” that they had “problems breathing, their eyes were tearing up.” Vander-berry explained that PCP has “a very distinct odor” and a “very harsh chemical smell.” In a closed cabinet under the kitchen sink, officers found a Pine-Sol bottle and two Gatorade bottles containing PCP liquid, between 100 and 200 vials used to distribute PCP, a steel marijuana grinder, latex gloves for handling PCP, and a “baby bottle” with trace amounts of codeine. On the kitchen countertop, officers found “loose-leaf’ marijuana, a “Delaware Punch” bottle containing codeine, and a receipt for the purchase of ten vanilla extract bottles, which are commonly used to distribute PCP. Vanderberry explained that marijuana is commonly used to distribute PCP by lacing the marijuana with PCP. In another closed kitchen cabinet, officers found two “Pyrex beakers” with cocaine residue. Stuffed inside or behind the couch in the living room, officers found an assault rifle and two ammunition clips. In the master bedroom in a closed drawer in a nightstand, officers found ecstasy and hydrocodone pills in bottles with Smith’s name on the labels, $1,360 in cash, and Smith’s identification. Vanderberry opined that the apartment was “a distribution center for narcotics.”
On cross-examination, Vanderberry conceded that Smith was “the target of the investigation” and the person that he believed to be the “drug dealer.” He did not observe appellant “handle [the] drugs” or “deal the drugs.” The confidential informant provided “no intelligence” about appellant but relayed that appellant was “not engaged in any activity other than being there when the deal was going on.” Appellant’s fingerprints were not found on any of the items of contraband because
HPD Narcotics Officer R. Chaison testified that over several days during his surveillance of appellant’s apartment, he observed significant “foot traffic” in and out of the apartment. As he helped to execute the search warrant, Chaison smelled “a strong musty, musty smell” coming from appellant’s apartment. He obtained consent from appellant to search her car, where he found a “marijuana cigar in the ashtray” and a “pharmaceutical” bottle of codeine under the driver’s seat. On cross-examination, Chaison admitted that he did not see appellant handle or sell narcotics. He confirmed that Smith was the target of the investigation, and appellant was not “on the radar screen.” He could provide no “direct” evidence that appellant solicited, assisted, aided, or encouraged Smith’s dealing narcotics.
HPD Narcotics Officer D. De Blanc testified that when the warrants were served, he detained appellant outside of her apartment and informed her of her legal rights. After arresting appellant, De Blanc videotaped an interview of her regarding the narcotics. During the interview, appellant stated that she did not “know anything about PCP,” the narcotics were “not hers,” and she had never used or sold narcotics.
Federal Bureau of Alcohol, Tobacco, and Firearms Agent M. Daughtery testified that she later interviewed appellant regarding a federal investigation of Smith. Daughtery explained that after appellant “initially denied knowing anything” about the narcotics found in her apartment, she “acknowledged that she did know about the narcotics” and she “knew [Smith] was dealing drugs,” but she denied that she was involved with or used the narcotics. Appellant also admitted that she and the children went to another room whenever Smith’s friends “came over to smoke,” Smith had no job but “had a lot of money” and helped her with the rent, Smith carried a firearm or had one nearby when he “dealt dope,” she had seen an assault-rifle type firearm at their prior residence, and Smith had once left a handgun in her car.
Kreshelle Dixon, a co-worker of appellant, testified that appellant orally subleased the apartment from her. Appellant initially moved into the apartment with her daughter, and Smith moved in a “short time” later and had been at the apartment about eight months at the time the officers executed the warrant.
HPD Crime Lab Chemist R. Rodriguez testified that the PCP recovered from appellant’s apartment weighed 1.44 kilograms, or a little over 1,400 grams, and the codeine weighed 977.5 grams. Rodriguez agreed that PCP has a “strong odor,” which she described as “an ether-type of smell.”
Appellant testified that when Officer De Blanc initially detained her, she had responded “No” when he asked if she was “Kreshelle Dixon.” She then identified herself and stated that she resided at the apartment number listed in the warrant. When De Blanc told appellant that PCP was being sold out of the apartment, she told him that she did not “know anything about what’s going on.” She explained that she was not familiar with PCP and had not seen the bottles of narcotics and narcotics paraphernalia found in the cabinet under the kitchen sink in her apartment. Appellant identified her car for De Blanc, and she gave consent for it to be searched. After she saw De Blanc remove the bottle of codeine from beneath the driver’s seat of her car, she denied that it was hers or that she had seen it before
Appellant also denied admitting to Agent Daughtery that she knew that Smith had been dealing narcotics, and she explained that even if someone “should have known” about the PCP, she “didn’t know [Smith] was selling drugs.” She also denied knowledge of the bottles of PCP in the kitchen cabinet because she kept her cleaning supplies elsewhere.
On cross-examination, appellant conceded that the bottles of PCP were found in “her apartment,” but she denied knowing that the people who came to her apartment were there to buy PCP from Smith. She admitted that she had told Officer De Blanc that the PCP was “not hers” but did not tell him that she “never saw” the PCP. She agreed that she and Smith shared their cars and Smith helped her with the rent. When a container of PCP was opened in court, appellant agreed that it “smelled strongly,” but she explained that when she smelled the odor in the apartment, it smelled like “mildewy carpet.”
Sufficiency of the Evidence
.In her first and second points of error, appellant argues that the evidence is legally and factually insufficient to support her conviction because the “logical force” of the evidence is insufficient to establish that she knowingly possessed the PCP or “act[ed] with the intent to promote or assist Smith in possessing the PCP.”
We review the legal sufficiency of the evidence by considering all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.
Williams v. State,
In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, i.e., that the verdict seems “clearly wrong and manifestly unjust,” or the proof of guilt, although legally sufficient, is nevertheless against the great
An individual commits the offense of possession of PCP if she “knowingly or intentionally possesses” PCP by “aggregate weight, including adulterants or dilutants” in an amount of “400 grams or more.” Tex. Health & Safety Code Ann. §§ 481.102(8), 481.115(a), (f) (Vernon Supp. 2009). To prove possession, the State must prove that an accused (1) exercised actual care, custody, control, or management over the substance and (2) knew that the matter possessed was a controlled substance. Tex. Penal Code Ann. § 1.07(39) (Vernon Supp. 2009);
Evans,
Evidence in a knowing possession of contraband case must amount to more than mere conjecture.
Dickey v. State,
Texas courts have identified “many non-exhaustive factors” that may demonstrate a link to contraband.
Roberson,
In support of her arguments that the evidence is legally and factually insufficient to support her conviction, appellant asserts that it appears she was arrested only because the narcotics were found in “her apartment” and she lived there; although she resided at the apartment and was present when the PCP was found, the PCP was not in plain view but in “three closed containers in a closed cabinet under the kitchen sink”; she was not the “target” of the investigation and had a “respectable job” and no criminal history; she was not “under the influence of drugs” and had no “drugs or paraphernalia” on her person; she was naive and not “street smart”; she did nothing to indicate a consciousness of guilt; although the PCP had a “strong odor,” she was not familiar with it and thought it smelled like “mildewy carpet,” and the odor was not such that an “ordinary person” would be familiar with it; the presence of marijuana in plain view was not automatically suggestive that PCP was present or that she knew PCP was present; and the presence of other narcotics and cash in “[non-obvious] or in closed spaces” did “nothing to show she knew about the PCP.”
Viewing the evidence in the light most favorable to the verdict, appellant admitted that she leased and resided at the apartment where the officers found the PCP. Kreshelle Dixon testified that she subleased the apartment to appellant and Smith subsequently moved into the apart
The evidence of appellant’s knowledge of the narcotics found in
her
apartment, her knowledge that Smith was “dealing drugs,” and her allowing Smith to move into the apartment that she had subleased, supports an implied finding by the jury that she knowingly exercised control over the PCP.
See
Tex. Penal Code Ann. § 6.01(b). Thus, the evidence in this case stands in contrast to that in
Allen,
in which the Austin Court of Appeals held legally insufficient to support a conviction for the offense of possession of cocaine evidence that the defendant was present in an apartment in which she did not reside, a platter containing cocaine was found in the apartment, and her fingerprint was on the platter, but no evidence suggested when she might have handled the platter.
Here, moreover, the confidential informant reported that appellant was present during the controlled buy, and Officer Chaison testified that appellant was present during the “foot traffic” that was indicative of narcotics trafficking. A significant quantity of PCP — over 1,400 grams- — was found in a kitchen cabinet that was accessible to appellant. Marijuana and codeine were found in plain view while cocaine residue, a marijuana grinder, gloves, vials, an assault rifle, ecstasy pills, and hydroco-done pills were found elsewhere throughout appellant’s apartment, and codeine was found in her car. The odor of PCP so permeated the apartment that the arresting officers had trouble breathing. We conclude that the “logical force” of these facts, together with appellant’s admissions that she knew about the narcotics, knew Smith was “dealing” narcotics, and allowed him to move into her apartment, is sufficient to support a reasonable inference that appellant knowingly possessed the PCP.
See Roberson,
Viewing the evidence in a neutral light, Vanderberry did testify that Smith was the “target” of the investigation and “in control” of the apartment and appellant was not “on the radar screen” of the investigation until he determined that she resided at the apartment. Also, the confidential informant did report that appellant did not participate in the controlled buy. It is also true that the evidence shows that the odor of PCP, described as “chemical,” “musty”, “ether-like” and “mildewy,” is not common. And, the PCP was not found in plain view, but rather in the closed, under-sink kitchen cabinet. Appellant denied using or selling narcotics, no narcotics or paraphernalia were found on her person, and she did not appear to be under the influence of narcotics or exhibit a consciousness of guilt when she was arrested. Appellant also denied admitting to Agent Daughtery that she knew about the narcotics or knew that Smith was “dealing drugs.” However, as noted above, Daugh-tery testified that appellant admitted that she knew that Smith was “dealing” narcotics, and yet she allowed him to move into
We overrule appellant’s first and second points of error.
Lesser-included Offense
In her third point of error, appellant argues that the trial court erred in instructing the jury on the lesser-included offense of possession of PCP because “there was no evidence that if appellant was guilty at all, she was only guilty of the lesser offense.”
A Harris County grand jury returned a true bill of indictment, accusing appellant of the offense of possession with intent to deliver PCP. However, at the closing of the evidence, the trial court, at the State’s request, instructed the jury on the lesser-included offense of possession of PCP. In support of her argument that the trial court erred in giving the instruction, appellant relies on
Arevalo v. State,
Appellant conceded that the offense of possession of PCP is a lesser-included offense of possession with intent to deliver PCP, and the State was not required to show “some evidence” in the record that appellant was guilty only of the offense of possession of PCP. Id. Accordingly, we hold the trial court did not err in instructing the jury on the lesser-included offense of possession of PCP.
We overrule appellant’s third point of error.
Conclusion
We affirm the judgment of the trial court.