Johnny Perez v. State ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00043-CR
JOHNNY PEREZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Johnny Perez appeals his conviction for possession of a
controlled substance; namely, methamphetamine—more than four but less than
200 grams.2 In four issues, Perez argues that the evidence is insufficient to
prove that he possessed methamphetamine, that the trial court erred by denying
1
See Tex. R. App. P. 47.4.
2
See Tex. Health & Safety Code Ann. § 481.115(d) (West Supp. 2010).
his motion for a directed verdict, and that the trial court erred by denying his
request for a jury instruction under Article 38.23(a) of the Texas Code of Criminal
Procedure. We will affirm.
II. BACKGROUND
Wichita Falls Police Department’s SWAT Team and Organized Crime Unit
executed a narcotics search warrant on a residence located at 308 Lee Street,
Wichita Falls, Texas, on October 1, 2010, at roughly 6:45 a.m. SWAT Team
member Officer Gabriel Vasquez III testified at trial that when he entered the
residence through a side doorway, he encountered Perez in a bedroom, lying on
a bed. As Vasquez approached Perez, while pointing a rifle equipped with a
flashlight at him, Vasquez commanded Perez to raise his hands. Perez initially
complied by raising his hands, but according to Vasquez, Perez then began to
place his hands underneath ―the headboard, pillow region‖ of the bed. Viewing
this as a potential threat, Vasquez said that he ―nudged‖ Perez with his rifle
barrel and re-issued the command for Perez to raise his hands. Perez raised his
hands a second time. Another officer then handcuffed Perez, and Vasquez
escorted Perez out of the residence. Vasquez testified that after escorting Perez
outside, he conducted ―prisoner watch‖ while other officers searched the
premises.
Officer Karl King of the Organized Crime Unit testified that in addition to
Perez, two other individuals were located in the 308 Lee Street residence but that
they were located in another living area of the residence. King identified these
2
two individuals as ―a Gelacio, and . . . a Jennifer Day.‖ Upon searching the
bedroom where Vasquez found Perez, King discovered an Advil container
between the mattress and the box springs of the bed that Perez had been lying
on. King testified that inside the Advil container, he found approximately twelve
grams of assorted pills and two plastic baggies. King averred that one of the
baggies contained over one gram of methamphetamine and that the other baggie
contained ten separate bags, each containing what King explained were
individual packages of methamphetamine that would typically be sold in the
streets for roughly $20 apiece. King also said that he discovered another plastic
baggie containing .14 grams of methamphetamine on the floor between the wall
and the head of the bed. In all, the total weight of the methamphetamine found in
the bedroom was 5.26 grams. King further testified to having found a set of
digital scales on the dresser in the bedroom. He also found, between the
mattress and box springs, a wallet containing $211 and two debit cards with the
name ―Johnny Perez‖ on them.
During the defense’s cross-examination of King, defense counsel
introduced in evidence, and the trial court admitted, the search warrant. Defense
counsel then began to ask King about his use of a confidential informant (CI) who
provided information that led to King obtaining the search warrant. King testified
that while in general confidential informants will assist police for ―[m]oney, [to]
work off charges, [or for] revenge,‖ he had never had a drug dealer ―snitch off on
[an]other drug dealer[].‖ King averred that the CI in this case, who King had used
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in the past, told him that Perez ―was in possession of suspected
methamphetamine and that [the] substance was for sale.‖ King said that he paid
the CI $200 for that information and for the CI to conduct a controlled buy at the
308 Lee Street residence. Toward the end of his cross-examination, defense
counsel questioned whether the CI had in fact purchased methamphetamine
from someone other than Perez. King responded, ―No, sir.‖ When defense
counsel inquired further how King knew that the CI had not purchased
methamphetamine from one of the other individuals who were at the 308 Lee
Street residence, King said that the CI knew Perez. Defense counsel responded
with the question, ―Then [the CI] needs to be here testifying, doesn’t he?‖ King
responded, ―No, he [doesn’t].‖ When pressed as to why the CI did not need to
testify, King said ―Because he’s confidential, credible, and reliable.‖ Defense
counsel did not move the trial court for a disclosure of the identity of the CI.3
Defense counsel also did not otherwise make any objections or move the trial
court for further inquiry regarding the CI’s identity or veracity.
After calling its expert witness to testify about the toxicology report
regarding the methamphetamine found at the 308 Lee Street residence, the
State rested. At that time, and outside the presence of the jury, Perez’s defense
3
See Tex. R. Evid. 508(c)(3) (―If information from an informer is relied upon
to establish the legality of the means by which evidence was obtained and the
court is not satisfied that the information was received from an informer
reasonably believed to be reliable or credible, it may require the identity of the
informer to be disclosed. The court shall, on request of the public entity, direct
that the disclosure be made in camera.‖).
4
counsel moved for a directed verdict: ―Yes, your Honor. We’d move for Directed
Verdict. The State has failed to produce the witness that has testified against
him, which actually started this entire case. And I think he’s entitled to confront
this witness, and they have failed to do so.‖ The trial court inquired, ―Which
witness are you talking about?‖ Defense counsel responded, ―This alleged
informant.‖ The trial court overruled Defense counsel’s motion.
Defense counsel called Perez’s brother, Joe Perez, to the stand. Joe
testified that Perez could not drive because ―[h]e’s going blind.‖ Joe said that
Perez was not at the 308 Lee Street residence on the day the CI made the
controlled buy and that on the morning of the search, Joe drove Perez from Fort
Worth, leaving at ―about 3:00 in the morning,‖ to the 308 Lee Street residence,
arriving at ―about 6:00 in the morning.‖ Defense also called Perez’s son, Michael
Perez, to testify. Michael testified that his brother, Perez’s other son, owned the
308 Lee Street residence. Michael averred that multiple people in his family
have lived in the residence from time to time while his brother serves a prison
sentence. Michael said that his brother had called him from prison concerned
that somebody was living at the 308 Lee Street residence without permission.
Michael said that he checked on the 308 Lee Street residence ―probably about
September the 7th.‖
By Michael’s account, Gelacio and a girl were there and Michael informed
them that they were not supposed to be, but Michael said that he did not press
the issue because Gelacio ―has a bad temper to where I really can’t tell him
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anything. So I just left.‖ When questioned about whether Perez lived at the 308
Lee Street residence, Michael said, ―He would go as much as I do to check on
the house. Sometimes he’ll stay a night to make sure no one breaks in. And I do
the same thing.‖ According to Michael, whenever he or Perez stayed at the
residence overnight, they would use the bedroom where Vasquez found Perez
when police executed the search warrant.
After the State and Perez rested, and outside the presence of the jury,
Perez requested that a Code of Criminal Procedure Article 38.23(a) instruction
be included in the charge.4 During the discussion that ensued, Perez cited the
Confrontation Clause, the Fifth Amendment, hearsay, and at one point stated,
―[T]his is a Franks case -- situation.‖ The trial court denied Perez’s request and
submitted the charge, without an Article 38.23(a) instruction, to the jury. The jury
found Perez guilty. After a punishment hearing, the jury found an enhancement
paragraph true and assessed punishment at life in prison. The trial court
announced judgment accordingly, and this appeal followed.
III. DISCUSSION
A. Sufficiency of the Evidence of Possession
In his first and second issues, Perez argues that the evidence is ―legally‖
and ―factually‖ insufficient to prove that he possessed the methamphetamine
found in the bedroom where police discovered him lying on the bed when
4
See Tex. Code Crim. Proc. Ann. art. 38.23(a) (West Supp. 2005).
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executing their warrant. Perez’s argument is predicated on the notions that
because there were ―two other people in the house who could have hidden the
contraband anywhere in the house‖ and because ―the State failed to introduce
any evidence showing that [he] actually lived‖ at the 308 Lee Street residence,
the State failed to link Perez to the methamphetamine found there. We conclude
that the evidence is sufficient to support the jury’s determination that Perez
possessed the methamphetamine.
1. Standard of Review
The court of criminal appeals has held that there is no meaningful
distinction between the legal sufficiency standard and the factual sufficiency
standard. Brooks v. State, 323 S.W.3d 893, 895, 912 (Tex. Crim. App. 2010)
(overruling Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 1996)).
Thus, the Jackson standard, which is explained below, is the ―only standard that
a reviewing court should apply in determining whether the evidence is sufficient
to support each element of a criminal offense that the State is required to prove
beyond a reasonable doubt.‖ Id. at 912.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex.
Crim. App. 2012).
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2. Law of Possession
A person possesses an object if he has actual care, custody, control, or
management of that object. Tex. Health & Safety Code Ann. § 481.002(38)
(West 2010). When drugs are found and the accused is not in exclusive
possession of the place where they are found, the connection to the drugs must
be more than fortuitous, and to this end, Texas courts utilize a links rule that is
designed to protect innocent bystanders from conviction merely because of their
proximity to someone else’s drugs. Evans v. State, 202 S.W.3d 158, 161–62
(Tex. Crim. App. 2006); Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.—
Houston [14th Dist.] 2005, no pet.). Mere presence at the location where drugs
are found is insufficient, by itself, to establish actual care, custody, or control, but
presence or proximity, when combined with other evidence, direct or
circumstantial, may be sufficient. Evans, 202 S.W.3d at 161–62. Such ―links‖
generate a reasonable inference that the accused knew of the contraband’s
existence and exercised control over it. See id. Courts have identified the
following factors that may help to show an accused’s links to a controlled
substance: (1) the defendant’s presence when a search is conducted;
(2) whether the contraband was in plain view; (3) the defendant’s proximity to
and the accessibility of the narcotic; (4) whether the defendant was under the
influence of narcotics when arrested; (5) whether the defendant possessed other
contraband or narcotics when arrested; (6) whether the defendant made
incriminating statements when arrested; (7) whether the defendant attempted to
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flee; (8) whether the defendant made furtive gestures; (9) whether there was an
odor of contraband; (10) whether other contraband or drug paraphernalia were
present; (11) whether the defendant owned or had the right to possess the place
where the drugs were found; (12) whether the place where the drugs were found
was enclosed; (13) whether the defendant was found with a large amount of
cash; and (14) whether the conduct of the defendant indicated a consciousness
of guilt. Olivarez, 171 S.W.3d at 291. It is not the number of links that is
dispositive but, rather, the logical force of all of the evidence, direct and
circumstantial. Evans, 202 S.W.3d at 162.
The evidence in this case establishes sufficient links that raise reasonable
inferences of Perez’s knowledge and control of the methamphetamine. Perez
was not only present at the 308 Lee Street residence when police searched but
Vasquez discovered him lying on a bed in the front bedroom where officers found
methamphetamine. Vasquez testified that as he entered the bedroom, he gave a
verbal command for Perez to raise his hands. Initially, Perez complied. Vazquez
said, however, that Perez then began to place his hands underneath ―the
headboard, pillow region,‖ and Vasquez described this as a ―furtive movement.‖
The search team found a plastic baggie containing .14 grams of
methamphetamine between the ―wall and the head of the bed.‖ Perez’s furtive
movement tends to demonstrate that he had knowledge of this
methamphetamine, as well as control over it. See Davis v. State, 855 S.W.2d
855, 857 (Tex. App.—Eastland 1993, no pet.) (reasoning that the defendant’s
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furtive gestures ―[g]oing towards the bottom of the passenger’s seat‖ linked the
defendant to the contraband found there). The logical force of this evidence is
that Perez was attempting to conceal the contraband that King found in that very
location. The force of this evidence is even more compelling considering that
despite having a gun pointed directly at him as he was commanded to raise his
hands, Perez was willing to hide his hands from Vasquez’s view. The movement
caused Vasquez to strike Perez with his rifle barrel: ―I struck him with my rifle
barrel -- nudged him [and t]old him once again to raise his hands.‖
King also found an Advil bottle containing approximately twelve grams of
assorted pills and two plastic baggies containing methamphetamine located
between the mattress and the box spring of the bed where Perez was found
lying. One of the baggies of methamphetamine contained ten individual baggies
of methamphetamine that King testified was segregated into individual amounts
that were common portions to be sold in the streets for roughly $20 each.
Furthermore, King found a wallet with $211 and two debit cards with the name
―Johnny Perez‖ on them in-between the mattress and box springs. See Nhem v.
State, 129 S.W.3d 696, 699–700 (Tex. App.—Houston [1st Dist.] 2004, no pet.)
(reasoning that a driver license and telephone bills in appellant’s name found
between bed mattresses, where cocaine rocks were also found, tended to link
appellant to cocaine). The logical force of this evidence tends to demonstrate
that Perez had accessibility and proximity to the methamphetamine found
between the mattress and the box springs.
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King testified that he found digital scales located in plain view on top of a
dresser in the bedroom that Perez occupied. King averred that digital scales are
commonly found where drugs are sold. This evidence, when coupled with the
individual baggies containing methamphetamine, tends to link Perez to the
scales and the methamphetamine found in the bedroom. Furthermore, even
though there is no evidence that Perez owned the 308 Lee Street residence,
Perez introduced evidence that he would sometimes stay the night and sleep in
the bedroom where he was found when the police executed the search warrant.
The logical force of this evidence is that the connection between Perez and the
methamphetamine was more than fortuitous. Given the logical force of all of this
evidence and viewing it in the light most favorable to the verdict, we conclude
that the jury could have found that Perez possessed the methamphetamine
found at the 308 Lee Street residence. See Jackson, 443 U.S. at 326, 99 S. Ct.
at 2793; Wise, 364 S.W.3d at 903. We overrule Perez’s first and second issues.
B. Perez’s Motion for Directed Verdict
In his third issue, Perez argues that the trial court erred by overruling his
motion for directed verdict. Perez’s argument seems to be that he was denied
his right to confront the CI under the Confrontation Clause of the Sixth
Amendment to the United States Constitution when the trial court ―refused his
motion to disclose the name of the CI.‖ See U.S. Const. Amend. VI. Thus,
Perez argues that he was denied his constitutional right to confront a State’s
witness; namely, the CI.
11
Perez does not point to any place in the record where he moved the trial
court for a disclosure of the name of the CI, nor can we find any such motion.
See Tex. R. Evid. 508(c)(3). Furthermore, the first time that Perez ever objected
to an alleged Confrontation Clause error was when he moved for directed verdict
after the State had completed putting on its case in chief, which was well after
Perez and the State had questioned King regarding the CI and the information
King obtained from the CI that served as part of King’s probable-cause affidavit
when seeking the search warrant. All of this testimony was born out of Perez
having introduced the warrant into evidence and first questioning King about
what information was learned from the CI.
We conclude that Perez has failed to preserve any potential error, invited
or not, because he failed to object to any alleged Confrontation Clause issue at
the earliest opportunity. See Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim.
App. 2000), cert. denied, 531 U.S. 1128 (2001) (―Because he did not object to
error under the Confrontation Clause, appellant waives this argument on
appeal.‖); see also Thornton v. State, No. 12-04-00045-CR, 2006 WL 319015, at
*2 (Tex. App.—Tyler Feb. 10, 2006, pet. ref'd) (mem. op., not designated for
publication) (―To preserve error on Confrontation Clause grounds, an objection
must be made at trial as soon as the basis for such objection becomes
apparent.‖). We overrule Perez’s third issue.
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C. Perez’s Requested Jury Instruction
In his fourth issue, Perez argues that the trial court erred by denying his
request for a jury instruction under Article 38.23(a) of the Texas Code of Criminal
Procedure. See Tex. Code Crim. Proc. Ann. art. 38.23(a). Citing the
Confrontation Clause of the Sixth Amendment and alleging that ―the State did not
produce‖ the CI who provided information about Perez that served as part of the
probable-cause warrant to search the 308 Lee Street residence, Perez argues
that the evidence adduced at trial created a genuine dispute about the
―lawfulness . . . in obtaining the [methamphetamine]‖ used to convict Perez for
possession. See U.S. Const. Amend. VI. Specifically, Perez argues that there
exists a fact issue in this case as to whether the CI ―may have lied to [King] in
order to frame [Perez], either to reduce competition, get revenge, or for money,‖
and that the jury should have been allowed to evaluate whether the CI ―may have
lied‖ about purchasing methamphetamine from Perez prior to the search of the
308 Lee Street residence, and thus whether the methamphetamine should have
been ―suppressed.‖
The State argues that Perez is improperly attempting to raise a ―Franks
claim‖ by way of requesting an Article 38.23(a) jury instruction. See Fenoglio v.
State, 252 S.W.3d 468, 473 (Tex. App.—Fort Worth 2008, pet. ref’d) (―Under
Franks, a search warrant affidavit must be voided, and any evidence obtained
pursuant to the search warrant excluded, if a defendant can establish by a
preponderance of the evidence at a hearing that the affidavit contains a false
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statement made knowingly or intentionally, or with reckless disregard for the
truth.‖) (citing Franks v. Delaware, 438 U.S. 154, 155–56, 98 S. Ct. 2674, 2676
(1978)). We conclude that the trial court was not required to give an instruction
under Article 38.23(a) because the evidence in this case did not raise a disputed
fact issue requiring the instruction.
When reviewing a claim that the trial court failed to properly charge the
jury, we first determine whether error occurred; if error did not occur, our analysis
ends. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). The
purpose of the trial judge’s jury charge is to instruct the jurors on ―all of the law
that is applicable to the case.‖ Vasquez v. State, 389 S.W.3d 361, 366 (Tex.
Crim. App. 2012). And when there is a disputed fact issue that is material to the
defendant’s claim of a constitutional or statutory violation that would render
evidence inadmissible, an exclusionary-rule instruction is required by Article
38.23(a). Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007).
But a confidential informant’s identity and testimony regarding the information
used to form probable cause to issue a warrant is not relevant to the
determination of guilt for possession of a controlled substance when the
informant is not present at the time a warrant is executed, when the defendant is
arrested, or when the commission of the offense charged is alleged to have
occurred. Edwards v. State, 813 S.W.2d 572, 580 (Tex. App.—Dallas 1991, pet.
ref’d); Washington v. State, 902 S.W.2d 649, 656–57 (Tex. App.—Houston [14th
Dist.] 1995, pet. ref’d).
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As already discussed, the State charged Perez with possession of a
controlled substance; namely, methamphetamine. A person possesses an object
if he has actual care, custody, control, or management of that object. Tex.
Health & Safety Code Ann. § 481.002(38). The CI’s identity and any testimony
he could have provided would not have been relevant to the State’s charge that
Perez had actual care, custody, control, or management of the
methamphetamine discovered by the officers when they conducted a search of
the 308 Lee Street residence. This is so because the CI was not at the
residence when officers executed the warrant, he was not there when the officers
arrested Perez, and he was not there when the officers discovered Perez lying
on a bed with methamphetamine tucked under the mattress and between the
headboard and the wall. See Patterson v. State, 138 S.W.3d 643, 649 (Tex.
App.—Dallas 2004, no pet.) (reasoning that in a possession with intent to deliver
methamphetamine case, trial court did not abuse its discretion by denying
appellant’s motion to compel discovery of confidential informant’s identity
because ―Appellant point[ed] to no evidence that the informant was present
during the execution of the warrant and the arrest or that he had any information
that would be relevant to appellant’s guilt or innocence‖). In short, Article
38.23(a) was not applicable to the case and the trial court did not err by refusing
Perez’s request that an Article 38.23(a) instruction be included in the jury charge.
See Vasquez, 389 S.W.3d at 366. Because we hold that the trial court did not
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err by refusing to include Perez’s requested instruction, our analysis ends and we
overrule Perez’s fourth issue.
IV. CONCLUSION
Having overruled all of Perez’s issues on appeal, we affirm the trial court’s
judgment.
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 29, 2013
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