

Opinion issued September
24, 2009
                                                                        
 
 
 
 
 

 
 
 
 
 
 
 
In The
Court of Appeals
For The
First District of Texas
 





















 

NO. 01-08-00186-CR
 





















 

KENNY HUBERT, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
 

On Appeal from the 230th District Court
Harris County, Texas
Trial
Court Cause No. 1145774
 
 
OPINION
 
           The State charged Kenny
Hubert with possession of a controlled substance, phencyclidine, also known as
PCP, weighing between four grams and two-hundred grams.  See Tex. Health & Safety Code Ann.
§§ 481.102(8) (Vernon 2003 & Supp. 2008), 481.115(d) (Vernon 2003).  A
jury found Hubert guilty.  Hubert pleaded true to two enhancements, triggering
a minimum sentence of twenty-five years’ confinement.  The jury assessed
punishment at thirty years’ confinement.  Hubert appeals his conviction,
contending that the evidence is legally and factually insufficient to support a
finding of possession.  We conclude that legally and factually sufficient
evidence links Hubert to the drugs that the jury found him to have possessed
and therefore affirm.
Background
Based on a tip that it was the site
of narcotics trade, Houston police officers and United States Marshals began
surveillance on a house on Ponnel Street in northwest Houston.  Officers
observed a tan Ford Taurus parked in the driveway behind the house.  Officers
watched several people approach the house and stay for short periods of time.  That
afternoon, Kenny Hubert and his girlfriend, Florenda Johnson, left in the
Taurus.  Police stopped them shortly thereafter.  Hubert told the officers his
name was Christopher Jackson, and he provided them with a Texas driver’s
license bearing that name, but the picture was of a different person.  Officers
seized a set of keys from Hubert.  Officers asked to search the Ponnel Street
house.  Hubert declined to give them permission.  The officers took Hubert into
custody. Later that afternoon, officers obtained a search warrant for the Ponnel Street house.
One of the officers testified that,
based on his previous experience, the house had the characteristics of a drug
house:  it was sparsely furnished and few personal belongings were present. 
Upon entering the house, officers noted that the house had a strong odor of
both fresh and burned marijuana.  In the kitchen, they discovered a bag of
marijuana, a vanilla extract bottle filled with liquid, and three other small
glass vials.  One officer testified that vanilla extract bottles are commonly
used for storing PCP, which is then poured into the smaller vials for sale and
distribution.  The bottle found in the kitchen contained 3.17 grams of PCP.  In
a kitchen drawer, officers also found a photo of a pile of hundred dollar
bills, commonly referred to as a “bragging photo,” because a narcotics dealer
may use it in bragging about the proceeds of a sale.
Officers continued their search and
recovered more evidence from the bedrooms.  In the left rear bedroom, officers
discovered a scale used to weigh narcotics and two additional extract bottles,
containing traces of PCP, on the floor.  In the closet, officers found one
extract bottle containing 6.85 grams of PCP, a loaded firearm, and paperwork
containing Kenny Hubert’s name.  The PCP and paperwork were next to each other
on a middle shelf of the closet, and the firearm was on the top shelf.  The
paperwork consisted of Kenny Hubert’s bank statements from April and May 2007,
a certificate for Hubert’s completion of an industrial sewing program, and
Hubert’s birth certificate.  Police found no other documents in that bedroom.  In
the right rear bedroom, officers found a shoebox lid containing marijuana and
cigar pieces, a Western Union receipt that indicated that Kenny Hubert had sent
money to his brother Eric Hubert, a ledger of narcotics sales, and a Houston
Municipal Court citation dated June 30, 2007, for Hubert’s other brother,
DeMarcus Hubert.  Kenny Hubert’s address listed on the Western Union receipt
was on Marcolin Street, not Ponnel Street.  The receipt was dated approximately
one month before the search.
Officers also searched the carport
area at the rear of the house and found two parked vehicles.  Inside one,
officers discovered another vanilla extract bottle containing 23.81 grams of PCP
and several lids to vials used for PCP distribution.  Officers looked for
paperwork indicating the vehicle’s ownership, such as registration or insurance
papers, but found only a mobile phone bill in Kenny Hubert’s name in the glove
compartment with a different address than Ponnel Street.  Officers later learned
that neither vehicle was registered to any of the Huberts.  When the officers
completed their search, they secured the house by locking it with one of the
keys they obtained from Kenny Hubert during his arrest.
Florenda Johnson testified that Hubert
lived with her on Marcolin Street in north Houston from March or April until
the end of June 2007.  Johnson testified that before moving to her home, Hubert
had been incarcerated, lived in a halfway house, and then, after his release, spent
a week with his grandmother.  She testified that he moved out in June because he
was on the run from an outstanding arrest warrant.  On cross-examination, the
prosecutor asked Johnson if she had accepted a reward for tipping off the
United States Marshals that they could find Hubert on Ponnel Street.  Johnson
denied having assisted the authorities locate Hubert.
Deputy Marshal M. Santiago testified
that he contacted Johnson about helping him locate Kenny Hubert.  A week later,
Johnson called Santiago and agreed to help.  On the day of Hubert’s arrest,
Johnson called Santiago and informed him that he would find Hubert at the
Ponnel Street house, and that he was driving a tan Ford Taurus.  After Hubert
was arrested, Johnson called the Marshals’ office to inquire about receiving a
reward for her assistance in locating Hubert.  She received her reward in
August 2007, complying with the requirements that she provide identification, a
photo, fingerprints, and her signature.
Discussion
On appeal, Hubert contends that the
evidence is legally and factually insufficient to support his conviction.  He
argues that the State presented no evidence of actual possession and no
forensic evidence linking him to the crime.  Hubert argues that he was not the
owner of the house, and the State presented no testimony that he lived at the
Ponnel Street house or operated a business out of it.  Further, the bills found
with Hubert’s name on them listed two different addresses, neither of which was
the Ponnel Street house.  He contends that two other people were in the house
when he was arrested and that the drugs were concealed, so there is no
indication that he even knew drugs were present in the house.  On the other
hand, Hubert was in the house and had a key to it; he lied to the police about
his identity; his personal papers, including his birth certificate, were found
next to the drugs; and the house had characteristics of a stash house used for illegal
drug trade.
In evaluating the legal sufficiency
of the evidence, we view the evidence in the light most favorable to the verdict
and 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, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175
S.W.3d 795, 798 (Tex. Crim. App. 2005).  We do not resolve any conflict of
fact, weigh any evidence, or evaluate the credibility of any witnesses, as this
was the function of the trier of fact.  See Dewberry v. State, 4 S.W.3d
735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421
(Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim.
App. 1991).
In evaluating factual sufficiency, we
consider all the evidence in a neutral light to determine whether the jury was
rationally justified in finding guilt beyond a reasonable doubt.  Watson v.
State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006).  We set the verdict
aside only if (1) the evidence is so weak that the verdict is clearly wrong and
manifestly unjust or (2) the verdict is against the great weight and
preponderance of the evidence.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  Under the first prong of Johnson, we cannot conclude that a
verdict is “clearly wrong” or “manifestly unjust” simply because, on the
quantum of evidence admitted, we would have voted to acquit had we been on the
jury.  Watson, 204 S.W.3d at 417.  Before finding that evidence is
factually insufficient to support a verdict under the second prong of Johnson,
we must be able to say, with some objective basis in the record, that the great
weight and preponderance of the evidence contradicts the jury’s verdict.  Id.  We must also discuss the evidence that, according to the appellant, most
undermines the jury’s verdict.  See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
          A person commits
second-degree felony possession of a controlled substance if he knowingly or
intentionally possesses the controlled substance—in this case, PCP—in an amount
greater than four grams but less than two-hundred grams.  Tex. Health & Safety Code Ann. §
481.115(d) (Vernon 2003).  The State must show that the accused (1) exercised
care, custody, control, or management over the contraband and (2) knew the
matter possessed was contraband.  Tex.
Health & Safety Code Ann. § 481.002(38)
(Vernon 2003 & Supp. 2008); Pena v. State, 251 S.W.3d 601, 606 (Tex. App.—Houston [1st Dist] 2007, pet. ref’d).
If, as here, the accused does not
exclusively possess the place where the contraband is found, then independent
facts and circumstances must link him to the drugs.  Poindexter v. State,
153 S.W.3d 402, 406 (Tex. Crim. App. 2005); Batiste v. State, 217 S.W.3d
74, 79–80 (Tex. App.—Houston [1st Dist.] 2006, no pet.).  Proof of a link
between the accused and the contraband is mainly needed to establish knowledge
or intent.  Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).  It is not sufficient to show the defendant was
merely present in the vicinity of the controlled substance.  Batiste,
217 S.W.3d at 80.  Hubert relies on Vargas v. State, 883 S.W.2d 256, 263
(Tex. App.—Corpus Christi 1994, pet. ref’d), for the proposition that, since
the PCP was secreted, the State’s evidence must prove that Hubert could have
known about its presence.  In fact, the State must show not only that Hubert could
have known about the drugs, but also that he exercised care, custody,
management, or control over those drugs.  Whether direct or circumstantial, the
evidence must establish that the defendant’s connection with the drug is more
than fortuitous.  Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App.
2006).  Texas courts have set forth a non-exclusive list of possible links that
can be sufficient, either alone or in combination, to establish a person’s
possession of contraband.  Id. at 162 n.12.  Each case is examined on
its own facts, and a factor that contributes to the sufficiency of the evidence
in one case may be of little or no value in a different case.  Roberson,
80 S.W.3d at 736.  The number of affirmative links is not as important as the
logical force that they collectively create.  Batiste, 217 S.W.3d at
80.  We need not consider linking factors that are absent from the evidence.  Id.
          Viewed in a light most
favorable to the verdict, we conclude that the evidence is legally sufficient
to link Hubert to the PCP.  Officers observed Hubert leaving the Ponnel Street
house, and he had a key to the house in his possession.  See Coleman v.
State, 113 S.W.3d 496, 501 (Tex. App.—Houston [1st Dist.] 2003) (holding
that appellant having a key to the house is a link), aff’d, 145 S.W.3d
649 (Tex. Crim. App. 2004).  He provided officers with false identification
when he was arrested.  See Hargrove v. State, 211 S.W.3d 379, 387 (Tex.
App.—San Antonio 2006, pet. ref’d) (holding that giving false identification
information indicates a consciousness of guilt).  When officers entered the
house, they detected a strong odor of marijuana, and the house had other
characteristics of a drug house.  Officers discovered PCP in an enclosed
space—a bedroom closet—on a shelf next to Hubert’s birth certificate, bank
statements, and his certificate of completion for an industrial sewing course. 
See Nhem v. State, 129 S.W.3d 696, 700 (Tex. App.—Houston [1st Dist.]
2004, no pet.) (holding that the appellant’s driver’s license and mobile phone
bills in close proximity to the controlled substance were sufficient to link
him to the controlled substance); Coleman, 113 S.W.3d at 501 (holding
that appellant’s college identification found in a safe with PCP linked him to
the drugs).  A scale for weighing drugs was also out in plain view in the
bedroom where officers found PCP.  See Hargrove, 211 S.W.3d at 386
(holding that digital scales for weighing drugs in plain view constitute a
link).  Also, in the vehicle parked in the carport, police found PCP and Hubert’s
mobile phone bill with a due date two weeks before the search.  See id. 
We conclude that the logical force from these links is sufficient for a
rational jury to have concluded beyond a reasonable doubt that Hubert exercised
care, custody, control, or management over the PCP in the closet and the
vehicle, but not the PCP in the kitchen.  The weight of the PCP from the closet
and the PCP from the vehicle each independently constitute an amount between
four grams and two-hundred grams.  We hold that the evidence presented at trial
is legally sufficient to sustain the conviction.
          Considering all of the
evidence in a neutral light, we also conclude that the evidence was factually
sufficient to sustain the jury’s verdict.  Hubert alleges that the following
facts undermine the verdict:  documents in the house showed his address to be
elsewhere, and no one testified that he lived on Ponnel Street; his
fingerprints were not found on any of the PCP bottles; no one observed any drug
deals taking place; no accomplices testified against him; Hubert never
confessed to any crime; and the PCP was not in plain view but was located in
the closet and the car, indicating that Hubert may not have known of its
presence.  Even considering these factors, the great weight and preponderance
of the evidence does not contradict the jury’s verdict.  At most, they indicate
that Hubert may not have had exclusive control over the PCP.  See Nhem,
129 S.W.3d at 701.  Possession of a controlled substance, however, need not be
exclusive to constitute a violation of law.  Martin v. State, 753 S.W.2d
384, 387 (Tex. Crim. App. 1988).  The evidence of Hubert’s personal documents
next to the PCP in the closet and the car, the drug paraphernalia in plain
view, and the fact that Hubert was arrested after leaving the house with a key
to it in his possession all supports a finding that Hubert possessed the PCP. 
Moreover, Johnson told Deputy Santiago that Kenny Hubert could be found at the
Ponnel Street house, and police arrested him after they saw him leave the
house.  Accordingly, we hold that the evidence is factually sufficient to
sustain the jury’s verdict.
Hubert relies on Denbow v. State,
837 S.W.2d 235, 236–38 (Tex. App.—Dallas 1992, pet. ref’d), Jenkins v. State,
76 S.W.3d 709, 717–19 (Tex. App.—Corpus Christi 2002, pet. ref’d), and Dixon
v. State, 918 S.W.2d 678, 681–82 (Tex. App.—Beaumont 1996, no pet.), as
analogous cases where the evidence was legally and factually insufficient. 
These cases are distinguishable from Hubert’s situation.  In Denbow, when
the defendant was stopped in a parking lot by a police officer on a suspicion
that the car was stolen, he jumped out of the car and fled from the officer.  Denbow,
837 S.W.2d at 236.  The officer discovered a right-hand glove and a bottle of
methamphetamine a few feet from the car’s bumper, and the defendant had the left-hand
glove when he was apprehended.  Id.  The court nevertheless found the
evidence legally and factually insufficient because the bottle of
methamphetamine was found in an open public space, a parking lot, and the
officer did not observe whether the bottle was present before the defendant
arrived on the scene.  Id. at 238.  In both Jenkins and Dixon, police found drugs in the trunks of cars in which the defendants were
passengers.  Jenkins, 76 S.W.3d at 717; Dixon, 918 S.W.2d at
681.  But neither defendant owned the car, nor was he driving it.  Jenkins,
76 S.W.3d at 717; Dixon, 918 S.W.2d at 681.  Neither defendant had any
possessions in the trunk of the car to connect him to the drugs, nor did he
possess any drugs or paraphernalia on his person.  Jenkins, 76 S.W.3d at
717; Dixon, 918 S.W.3d at 681.  Neither defendant indicated a
consciousness of guilt or attempted to flee from the police or made any
incriminating statements linking himself to the drugs.  Jenkins, 76
S.W.3d 717; Dixon, 918 S.W.2d 681.  In contrast, the officers in this
case found Hubert’s personal belongings near both the bottle of PCP in the
closet and the bottle of PCP in the car.  Drug paraphernalia was in plain view
throughout the house, and Hubert exhibited a consciousness of guilt by giving
officers another person’s identification.
Conclusion
We hold that the evidence presented
is both legally and factually sufficient to support the jury’s verdict that
Hubert possessed between four grams and two-hundred grams of PCP.  We therefore
affirm the judgment of the trial court.
 
 
 
                                                          Jane Bland
                                                          Justice
 
Panel consists of Justices Bland,
Sharp, and Taft.[1]
Justice Sharp, concurring in part and
dissenting in part.
Publish.  Tex. R. App. P. 47.4




[1]
Justice Tim Taft, who retired from the First
Court of Appeals on June 1, 2009, continues to sit by assignment for the
disposition of this case, which was submitted on April 14, 2009.


