Appeal from the 180th District Court Harris County, Texas
Trial Court Case No. 1455525
consists of Justices Higley, Bland, and Brown.
Lipscomb was tried and convicted for possession of a
controlled substance, namely, methamphetamine. In two issues,
Lipscomb contends that (1) the trial court erred in denying
his motion to suppress evidence seized during a warrantless
search of his apartment and (2) the evidence is insufficient
to prove that he knowingly possessed the seized contraband.
and Procedural Background
evening, Officers C. Mayfield and G. Anderson were dispatched
to a shooting in progress at an apartment complex in
southwest Houston. The dispatch operator told them that there
had been some sort of fight, someone had been shot, and
suspects were still at the scene. The officers arrived at the
apartment complex in about two minutes.
officers found Lipscomb sitting on stairs in front of one of
the apartments. Lipscomb was bleeding, and the front door of
the apartment was open and riddled with bullet holes.
Lipscomb told the officers that the apartment was his
residence and that he had been shot while inside. He also
told them that the gunmen had fled and that he did not know
whether there was anyone else injured inside. The officers
then entered the apartment and conducted a protective sweep
to clear the scene.
officers did not find anyone inside the apartment. They did,
however, find evidence indicating that the apartment was a
"narcotics house." The officers saw a television
set up as a surveillance-camera monitor. They saw bar
brackets and two-by-fours used to barricade the front door.
And they saw, sitting in plain view on the kitchen counter, a
small scale, a baggie of Xanax pills, and an open
"hide-a-can"-i.e., a container designed to appear
like a drink can (in this case, an energy drink) with a
"false lid" under which contraband can be secreted.
The open hide-a-can contained another baggie of pills, which
the officers seized and sent to a laboratory for analysis.
The analysis revealed that the pills contained a little over
four grams of methamphetamine.
was indicted for possession of a controlled substance. He
filed a motion to suppress the contraband and other evidence
seized by the officers during their protective sweep, which
the trial court denied. The jury found Lipscomb guilty, and
the trial court sentenced Lipscomb to six years'
confinement. Lipscomb appeals.
begin by considering Lipscomb's second issue, in which he
contends that there was legally and factually insufficient
evidence to prove that he knowingly possessed the contraband
seized from his apartment.
Standard of review and applicable law
review a challenge to the sufficiency of the evidence under
the standard enunciated in Jackson v. Virginia, 443
U.S. 307, 318-20, 99 S.Ct. 2781, 2788-89 (1979). See
Brooks v. State, 323 S.W.3d 893, 894-913 (Tex. Crim.
App. 2010) (plurality op.). Under the Jackson
standard, evidence is insufficient when, considered 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, 443 U.S. at 317-19, 99 S.Ct. at 2788-89;
Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.
App. 2009). We consider both direct and circumstantial
evidence as well as all reasonable inferences that may be
drawn from that evidence. Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007).
are the exclusive judges of the facts, the credibility of the
witnesses, and the weight to be given to witness testimony.
Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim.
App. [Panel Op.] 1981); Jaggers v. State, 125 S.W.3d
661, 672 (Tex. App.-Houston [1st Dist.] 2003, pet.
ref'd). The jury may choose to believe or disbelieve any
part of a witness's testimony. See Davis v.
State, 177 S.W.3d 355, 358 (Tex. App.-Houston [1st
Dist.] 2005, no pet.). Inconsistencies or contradictions in a
witness's testimony do not destroy that testimony as a
matter of law. McDonald v. State, 462 S.W.2d 40, 41
(Tex. Crim. App. 1970).
Jackson standard defers to the factfinder to resolve
any conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from "basic facts to ultimate
facts." Jackson, 443 U.S. at 319, 99 S.Ct. at
2789; Clayton, 235 S.W.3d at 778. We presume that
the factfinder resolved any conflicts in the evidence in
favor of the verdict and defer to that resolution, provided
that the resolution is rational. See Jackson, 443
U.S. at 326, 99 S.Ct. at 2793. If we conclude that the
evidence is insufficient under this standard, we must reverse
the judgment and enter an order of acquittal. See Tibbs
v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 2218
person commits the offense of possession of a controlled
substance if he "knowingly or intentionally" has
"actual care, custody, control, or management" of a
controlled substance. Tex. Health & Safety Code
§§ 481.002(38), .115(a). In a prosecution for
possession of a controlled substance, the State must prove
beyond a reasonable doubt that (1) the defendant exercised
control, management, or care over the substance and (2) the
defendant knew the substance possessed was contraband.
Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App.
2006); Poindexter v. State, 153 S.W.3d 402, 405
(Tex. Crim. App. 2005).
of whether the evidence is direct or circumstantial, the
State must prove that the defendant's connection with the
controlled substance was more than fortuitous.
Evans, 202 S.W.3d at 161. The defendant's mere
presence at the residence where the substance is found is
insufficient, by itself, to prove possession. Id. at
162. However, the defendant's presence at the residence
where the substance is found, when combined with other