Albert Lee Diaz v. State ( 2018 )

AFFIRM as modified; and Opinion Filed July 3, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00437-CR
No. 05-18-00438-CR
No. 05-18-00439-CR
ALBERT LEE DIAZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 6
Dallas County, Texas
Trial Court Cause Nos. F-1422066-X, F-1422067-X, F-1422068-X
MEMORANDUM OPINION
Before Justices Bridges, Brown, and Boatright
Opinion by Justice Brown
A jury found appellant Albert Lee Diaz guilty of possession with intent to deliver heroin
in an amount greater than four grams but less than 200 grams,1 possession of methamphetamine in
an amount less than one gram,2 and unlawful possession of a firearm by a felon.3 Finding two prior
felony enhancement allegations in each indictment to be true, the jury assessed concurrent
sentences of sixty years’ confinement, two years’ confinement, and fifty years’ confinement,
respectively. In each appeal, appellant raises a single issue contending the evidence, and
specifically the evidence required to prove possession, is insufficient to support his conviction. In
1
Trial court cause number F-1422066-X; appellate cause number 05-18-00437-CR.
2
Trial court cause number F-1422067-X; appellate cause number 05-18-00438-CR.
3
Trial court cause number F-1422068-X; appellate cause number 05-18-00439-CR.
a cross-issue, the State requests that we modify the judgments to reflect that appellant pleaded not
true to each of the enhancements alleged. For the following reasons, we modify the trial court’s
judgment and, as modified, affirm.
BACKGROUND
City of Farmers Branch Police Officer Charles Taylor responded to a suspicious vehicle
call at a gas station and found a white Chevrolet Trailblazer stopped with its brake lights on in the
middle of the parking lot. Taylor approached the vehicle and observed appellant sitting in the
vehicle’s driver seat and slumped over the center console. Taylor opened the vehicle door, moved
the gear selector to park the vehicle, and tried to wake appellant. Appellant told Taylor his name,
but did not appear in control of his faculties; his speech was incoherent and slurred. Taylor tried
to conduct field sobriety tests, but appellant’s balance was too unsteady. Officer Nicolas Sham,
who had arrived at the scene as backup, called paramedics because appellant seemed to be losing
and regaining consciousness. The paramedics gave appellant an injection of Narcan, a drug used
to counteract the effects of heroin, and then transported him to the hospital.
Officers Taylor and Sham took custody of the Trailblazer and began an inventory search.
Sham immediately observed two Altoids mint tins in an open panel compartment on the driver
door. Inside the tins were small aluminum foil-wrapped bundles containing brown powder. In
Sham’s experience, the bundles were consistent with packaged cheese heroin, a mixture of heroin
and Tylenol PM in a powder form. In the vehicle’s center console, Sham observed a large piece
of black tar heroin wrapped in plastic. A digital scale with a red, sticky residue of heroin sat just
under the black tar heroin. Sham also located appellant’s Texas Identification Card. The officers
suspended the search, secured the vehicle, and followed it as it was transported via wrecker to a
secure sally port at the police department.
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Sergeant Kyle Bratcher and Investigator Phillip Wardlaw, both assigned to the narcotics
unit, subsequently completed the vehicle search in the sally port. On the front passenger
floorboard, Bratcher located a bladder, along with bottles of yellow liquid and boxes of synthetic
urine, for use in falsifying urine tests. Wardlaw located a plastic baggie containing a white crystal
substance in the pocket of a pair of shorts on the floorboard behind the driver seat. Bratcher found
a handgun sticking out of a beat-up duffle bag in the vehicle’s rear cargo area. The handgun, a
Browning .22 semi-automatic, was loaded. Bratcher later learned the vehicle belonged to
appellant.
Forensic scientist David Eckre tested the substances recovered from the vehicle at the
Texas Department of Public Safety Garland Crime Laboratory. Eckre testified the thick black
substance was impure heroin, commonly known as black tar heroin, weighing 8.29 grams. The
brown powder, a mix of heroin and tetrahydramine commonly known as cheese heroin, weighed
7.86 grams. The white crystalline substance was methamphetamine and weighed 0.08 grams.
City of Irving Police Detective Stephen Junker, with more than twenty years’ experience
working in his department’s narcotics unit, testified as an expert witness. Junker testified 7.86
grams of cheese heroin could make close to a hundred individual doses of the drug. The 8.29
grams of black tar heroin had a street value of $400 to $500, but could be cut and sold as eighty to
100 individual doses or cut and diluted with an adulterant to be sold as twice that many doses. The
tin-foil packaging of the cheese heroin was a popular method for distributing the drug. Junker
testified that the already-packaged drugs, additional heroin, and scales together indicated appellant
possessed the heroin with the intent to deliver. Junker also testified that drug traffickers use
weapons, like the firearm found in appellant’s vehicle, as protection from robbery and even the
police.
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The State indicted appellant for possession with intent to deliver heroin in an amount
greater than four grams but less than 200 grams, possession of methamphetamine in an amount
less than one gram, and unlawful possession of a firearm by a felon. Following trial, the jury found
appellant guilty of all three offenses. Appellant entered pleas of not true to two felony
enhancement allegations in each indictment.4 Following the punishment phase of trial, the jury
found each enhancement allegation to be true and sentenced appellant to sixty years’ confinement
in the heroin case, two years’ confinement in the methamphetamine case, and fifty years’
confinement in the possession of a firearm by a felon case.
APPLICABLE LAW
In a legal sufficiency review, we view all 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tate v. State,
500 S.W.3d 410, 413 (Tex. Crim. App. 2016). The jury is the sole judge of witness credibility and
may draw reasonable inferences that are supported by evidence presented at trial. Tate, 500
S.W.3d at 413. We presume the jury resolved any conflicting inferences supported by the record
in favor of the verdict. Id. Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor and, alone, can be sufficient to establish guilt. Id.; Nowlin v.
State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015).
The penal code defines possession as “actual care, custody, control, or management.” TEX.
PEN. CODE ANN. § 1.07(a)(39) (West 2011 & Supp. 2017). To prove a defendant knowingly or
intentionally possessed a controlled substance, the State must establish the defendant (1) exercised
care, control, or management over the substance in question and (2) knew the substance was
4
In the heroin and methamphetamine cases, the indictments alleged prior convictions of possession of a controlled substance and unlawful
possession of a firearm by a felon. The unlawful possession of a firearm by a felon indictment alleged two previous convictions of unlawful
possession of a firearm by a felon.
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contraband. See id.; TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(a) & (d), 481.115(a) & (b)
(West 2017); Tate, 500 S.W.3d at 413.
A defendant’s mere presence at the location where contraband is found is insufficient to
establish possession. Tate, 500 S.W.3d at 413. Combined with other evidence, however, presence
or proximity may be sufficient to establish possession. Evans v. State, 202 S.W.3d 158, 162 (Tex.
Crim. App. 2006). The court of criminal appeals has adopted a non-exclusive list of fourteen
factors that may indicate a link connecting a defendant to knowing possession of contraband:
(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 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.
Tate, 500 S.W.3d at 414 (quoting Evans, 202 S.W.3d at 162 n.12). The absence of links does not
constitute evidence of innocence to weigh against links that are present. Santiesteban-Pileta v.
State, 421 S.W.3d 9, 15 (Tex. App.—Waco 2013, pet. ref’d). And, no set formula or number of
factors is required to support an inference of knowing possession. Wingfield v. State, 197 S.W.3d
922, 927 (Tex. App.—Dallas 2006, no pet.). Instead, it is “the logical force of all of the evidence,
direct or circumstantial.” Evans, 202 S.W.3d at 162; Wingfield, 197 S.W.3d 922 at 927.
To establish unlawful possession of a firearm by a felon, the State must show the defendant
was previously convicted of a felony offense and possessed a firearm before the fifth anniversary
of his release from confinement or supervision for parole, whichever is later. PEN. § 46.04(a)(1)
(West 2011). With respect to possession, the State must prove the defendant: (1) exercised care,
control, or custody of the firearm; (2) was conscious of his connection with the firearm; and (3)
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possessed the firearm knowingly or intentionally. Hodges v. State, No. 05-16-00647-CR, 2017
WL 2391720, at *3 (Tex. App.—Dallas Jun. 1, 2017, pet. ref’d) (mem. op., not designated for
publication); Bates v. State, 155 S.W.3d 212, 216 (Tex. App.—Dallas 2004, no pet.). We analyze
sufficiency of the evidence in cases involving unlawful possession of a firearm by a felon under
the rules adopted for cases of unlawful possession of a controlled substance. Hodges, 2017 WL
2391720, at *3; Young v. State, 752 S.W.2d 137, 140 (Tex. App.—Dallas 1988, pet. ref’d). Thus,
if the firearm is not found on the defendant’s person or is not in his exclusive possession, the
evidence must affirmatively link him to the firearm. Hodges, 2017 WL 2391720, at *3. We look
for the following, similar factors to affirmatively link a defendant to knowing possession of
firearm:
(1) the firearm was in plain view; (2) the accused was the owner of the car in which
the firearm was found; (3) the accused was the driver of the car in which the firearm
was found; (4) the accused was in close proximity and had ready access to the
firearm; (5) the firearm was found on the same side of the car seat as the accused
was sitting; (6) the firearm was found on the accused; (7) the defendant attempted
to flee; (8) conduct by the accused indicated a consciousness of guilt, including
extreme nervousness or furtive gestures; (9) the accused had a special connection
or relationship to the firearm; (11) the place where the firearm was found was
enclosed; (12) occupants of the automobile gave conflicting statements about
relevant matters; and (13) affirmative statements connect the accused to the firearm,
including incriminating statements made by the accused when arrested.
Id. (citing Bates, 155 S.W.3d at 216-17).
ANALYSIS
In a single issue in each appeal, appellant contends the evidence is insufficient to establish
possession of the controlled substances and firearm. Specifically, appellant asserts the State failed
to present affirmative link evidence of intentional or knowing possession and, as support, relies on
his medical condition, the fact that none of the items were found on his person, and a lack of
evidence showing he was the sole owner or person with rightful possession of the Trailblazer.
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The evidence, however, raises multiple affirmative links to support an inference of
appellant’s knowing possession of the contraband. First, appellant was the sole occupant of
the Trailblazer, which belonged to him. When Officer Taylor approached the vehicle, appellant
was seated in the driver’s seat with his foot on the brake pedal. Appellant was slumped over the
center console, where Officer Sham located black tar heroin wrapped in plastic. Sham also located
mint tins containing individually-packaged doses of cheese heroin in a driver door compartment
and methamphetamine in shorts on the floorboard right behind the driver seat. All of the controlled
substances were within arm’s reach of appellant. Although appellant contends his medical
condition precludes his knowing possession of the contraband, his condition is actually evidence
that he was under the influence of narcotics, another affirmative link. Appellant did not appear in
control of his faculties; his speech was incoherent and slurred and his balance unsteady.
Paramedics called to the scene gave appellant an injection of Narcan, a drug used to counteract the
effects of heroin, before transporting him to the hospital.
In addition to heroin and methamphetamine, appellant’s vehicle contained other
contraband, the firearm. The firearm was located in the rear cargo area of the vehicle and not
immediately accessible to appellant in the driver seat, but it was in close proximity to appellant in
the vehicle, an enclosed area over which appellant had sole possession and control. Bratcher
testified that firearms are tools of the drug trafficking trade and it is common to find firearms when
drugs are found. The officers also located other drug-related items in appellant’s vehicle: the
digital scale for weighing and dividing narcotics; and the bladder, synthetic urine, and small bottles
of yellow liquid for falsifying urine tests. Although there were no signs of suspicious drug activity
when Taylor arrived at scene, both Taylor and Sham testified the gas station was within easy
driving distance of hotels and motels, including one just across a freeway, known for illegal drug
activity.
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Appellant was the sole occupant of the vehicle and the only individual in close proximity
and with access to the Trailblazer and the controlled substances and firearm in the enclosed space
of the vehicle. The fact that none of the items were on his person or that he might not have sole
ownership of the vehicle does not render evidence affirmatively linking him to knowing possession
of the contraband legally insufficient. Viewing the evidence in the light most favorable to the
verdict, we conclude a rational jury could find the “logical force of all of the evidence, direct or
circumstantial,” sufficient to sustain a finding beyond a reasonable doubt that appellant
intentionally or knowingly possessed the contraband in the vehicle – the heroin, the
methamphetamine, and the firearm. See Evans, 202 S.W.3d at 162. Accordingly, the evidence is
legally sufficient to support appellant’s convictions. We overrule appellant's first issue.
MODIFICATION OF THE JUDGMENT
In a cross-issue, the State requests that we modify the judgment to properly reflect
appellant’s pleas of not true to the enhancement paragraphs in each case. The record reflects that
appellant entered pleas of not true to the enhancement paragraphs, but each of the judgments states
appellant’s pleas as “TRUE.” When a record contains the necessary information, we may modify
an incorrect judgment to correct clerical errors. TEX. R. APP. P. 43.2(b); Bigley v. State, 865
S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—
Dallas 1991, pet. ref’d). Because the record establishes that appellant entered pleas of not true to
the enhancement paragraphs in each indictment, we modify the sections of each judgment titled
“Plea to 1st Enhancement Paragraph” and “Plea to 2nd Enhancement/Habitual Paragraph” to state
“NOT TRUE.” We sustain the State’s cross-issue.
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As modified, we affirm the trial court's judgment.
/Ada Brown/
ADA BROWN
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
180437F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ALBERT LEE DIAZ, Appellant On Appeal from the Criminal District Court
No. 6, Dallas County, Texas
No. 05-18-00437-CR V. Trial Court Cause No. F-1422066-X.
Opinion delivered by Justice Brown;
THE STATE OF TEXAS, Appellee Justices Bridges and Boatright
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
We REPLACE "TRUE" in the sections of the judgment titled "Plea to 1st
Enhancement Paragraph" and "Plea to 2nd Enhancement/Habitual Paragraph"
with "NOT TRUE".
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 3rd day of July, 2018.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ALBERT LEE DIAZ, Appellant On Appeal from the Criminal District Court
No. 6, Dallas County, Texas
No. 05-18-00438-CR V. Trial Court Cause No. F-1422067-X.
Opinion delivered by Justice Brown;
THE STATE OF TEXAS, Appellee Justices Bridges and Boatright.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
We REPLACE "TRUE" in the sections of the judgment titled "Plea to 1st
Enhancement Paragraph" and "Plea to 2nd Enhancement/Habitual Paragraph"
with "NOT TRUE".
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 3rd day of July, 2018.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ALBERT LEE DIAZ, Appellant On Appeal from the Criminal District Court
No. 6, Dallas County, Texas
No. 05-18-00439-CR V. Trial Court Cause No. F-1422068-X.
Opinion delivered by Justice Brown;
THE STATE OF TEXAS, Appellee Justices Bridges and Boatright
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
We REPLACE "TRUE" in the sections of the judgment titled "Plea to 1st
Enhancement Paragraph" and "Plea to 2nd Enhancement/Habitual Paragraph"
with "NOT TRUE".
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 3rd day of July, 2018.
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