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Lipscomb v. State

Court of Appeals of Texas, First District

July 6, 2017


         On Appeal from the 180th District Court Harris County, Texas Trial Court Case No. 1455525

          Panel consists of Justices Higley, Bland, and Brown.


          Harvey Brown Justice.

         Patrick Lipscomb was tried and convicted for possession of a controlled substance, namely, methamphetamine.[1] 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. We affirm.

         Factual and Procedural Background

         One 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.

         The 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.

         The 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.

         Lipscomb 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.

         Sufficiency of Evidence

         We 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.

         A. Standard of review and applicable law

         We 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).

         Jurors 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).

         The 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 (1982).

         A 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).

         Regardless 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 ...

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