Gordwin, Damion Cornelius ( 2015 )

PD-0527&0528-15
May 6, 2015
No. _______________
IN THE
TEXAS COURT OF CRIMINAL APPEALS
________________________
Nos. 01-14-00343-CR and 01-14-00344-CR
In the First Court of Appeals
of Texas
________________________
Damion Cornelius Gordwin, Appellant
v.
The State of Texas, Appellee
________________________
Appellant’s Petition for Discretionary Review
________________________
Jerald K. Graber
TSB # 08240320
917 Franklin, Suite 510
Houston, Texas 77002
Tel. 713-224-232
graberlaw@sbcglobal.net
Attorney for Appellant
Statement Regarding Oral Argument
Appellant waives oral argument.
2
Table of Contents
Page
STATEMENT REGARDING ORAL ARGUMENT 2
TABLE OF CONTENTS 3
INDEX OF AUTHORITIES 4
STATEMENT OF THE CASE 6
STATEMENT OF PROCEDURAL HISTORY 7
APPELLANT’S GROUND FOR REVIEW 7
REASON FOR REVIEWING GROUND FOR REVIEW 7
ARGUMENT 8
CONCLUSION and PRAYER FOR RELIEF 14
CERTIFICATE OF COMPLIANCE 14
CERTIFICATE OF SERVICE 15
3
Index of Authorities
Cases Page
Brooks v. State,
323 S.W.3d 893, 895 (Tex. Crim. App. 2010) 9, 11
Ervin v. State,
331 S.W.3d 49, 55 (Tex. App.—Houston [1st Dist.] 10, 12
2010, pet. ref'd)
Evans v. State,
202 S.W.3d 158, 162 (Tex. Crim. App. 2006) 10
Hyett v. State, 58 S.W.3d 826, 830
(Tex. App.—Houston [14th Dist.] 2001, pet. ref'd) 10
In re Winship,
397 U.S. 358, 361, 90 S. Ct. 1068, 1071, 9, 12
25 L. Ed. 2d 368 (1970)
Jackson v. Virginia,
443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560, (1979) 9, 11
King v. State,
895 S.W.2d 701, 703 (Tex. Crim. App. 1995) 10, 12
Laster v. State,
275 S.W.3d 512, 517 (Tex. Crim. App. 2009) 9, 12
Poindexter v. State,
153 S.W.3d 402, 405 (Tex. Crim. App. 2005) 10
Will. v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007) 9, 12
4
Statutes, Codes and Rules
Tex. Health & Safety Code § 481.002(38) 10
Tex. Pen. Code § 1.07(a)(39) 10
Tex. Pen. Code § 37.09(d)(1) 12
Tex. R. App. Proc. 66.3 (c) and (f) 7
5
To the Honorable Court of Criminal Appeals:
Statement of the Case
Appellant was charged by indictment with the felony offenses of
tampering with physical evidence in cause number 1397495 and possession of
a controlled substance in cause number 1397496. (CR 9, 9)¹. Appellant
entered a plea of not guilty and the cases were tried before a jury. (RR III 10).
The jury found appellant guilty of both charges. (RR III 171-172). After a
sentencing hearing, the jury sentenced appellant to three years in prison on the
tampering with evidence case and two years in prison on the possession of a
controlled substance case. (RR V 55).
Appellant timely filed a written notice of appeal. (CR 57, 58). The trial
court certified the defendant’s right of appeal. (CR 56, 57). Appellant requests
oral argument in this case.
____________________________________________________________
1- Cause number 1397495 is cited first, followed by cause number 1397496.
6
Statement of Procedural History
On April 30, 2015, a panel of the First Court of Appeals issued an un-
published opinion affirming the trial court’s judgments in these two cases.
Appellant files this first petition for discretionary review with this Court.
Appellant’s Ground for Review
1) The Court of Appeals erred in finding that the evidence is sufficient to
support the conviction of possession of a controlled substance since
appellant never maintained care, custody, or control over the cocaine
that was found in a baggie in a toilet.
2) The Court of Appeals erred in finding that the evidence is sufficient to
support the conviction of tampering with evidence under the theory that
appellant “concealed” the evidence. The indictment and jury charge did
not allege that appellant “concealed” the evidence. The evidence is
insufficient to support the conviction for tampering with evidence since
appellant did not alter or destroy the cocaine that was found in a baggie
in a toilet.
Reason for Reviewing Appellant’s Ground for Review
The lower Court’s ruling should be reviewed pursuant to Tex. R. App.
P. 66.3(c) and (f).
7
Argument
The evidence is insufficient to support the conviction for possession of a
controlled substance since appellant never maintained care, custody, or control
over the cocaine that was found in a baggie in a toilet. Appellant never touched
the cocaine or the baggie containing the cocaine. In fact, the police indicated
that they never saw appellant put any item into the toilet. While the testimony
established that the officers saw appellant flush the toilet numerous times,
there is no evidence that appellant ever possessed the cocaine. Therefore, the
Court of Appeals erred in finding that the evidence is sufficient to support the
verdict.
Also, the evidence is insufficient to support the conviction for tampering
with physical evidence since appellant did not alter or destroy the cocaine that
was found in a baggie in a toilet. The indictment and jury charge alleged that
appellant actually altered or destroyed the physical evidence. The Court of
Appeals erred in finding that the evidence is sufficient to support the verdict
under the theory that appellant “concealed” the evidence. However, the
indictment and jury charge did not allege that appellant “concealed” the
evidence. The only evidence that was presented to the jury was that appellant
flushed the toilet that contained the baggie of cocaine that was put there by the
8
co-defendant. The physical evidence that was seized by the police was never
altered or destroyed.
Possession of a Controlled Substance – Cause Number 1397496
The Jackson v. Virginia legal-sufficiency standard 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. Brooks v. State, 323 S.W.3d
893, 895 (Tex. Crim. App. 2010); Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.
2781, 61 L. Ed. 2d 560, (1979). Under this standard, evidence is insufficient
to support a conviction if, considering all the record evidence 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. Jackson v. Virginia, 443 U.S. at 319, 99 S. Ct. at 2789; In re Winship,
397 U.S. 358, 361, 90 S. Ct. 1068, 1071, 25 L. Ed. 2d 368 (1970); Laster v.
State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235
S.W.3d 742, 750 (Tex. Crim. App. 2007). Viewed in a light favorable to the
verdict, the evidence is insufficient when either: (1) the record contains no
evidence, or merely a "modicum" of evidence, probative of an element of the
offense; or (2) the evidence conclusively establishes a reasonable doubt. Laster
9
v. State, 275 S.W.3d at 518. This standard applies equally to both direct and
circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App.
1995); Ervin v. State, 331 S.W.3d 49, 55 (Tex. App.—Houston [1st Dist.]
2010, pet. ref'd).
Possession is defined as "actual care, custody, control, or management."
Tex. Pen. Code § 1.07(a)(39) (West 2011); Tex. Health & Safety Code §
481.002(38). To prove unlawful possession of a controlled substance, the State
must establish that (1) the accused exercised care, control, or management
over the contraband, and (2) knew the substance was contraband. Poindexter v.
State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). The evidence must
establish that the accused's connection with the substance was more than
fortuitous. Id. at 405-06. Evidence must link the accused to the offense so that
one reasonably may infer that the accused knew of the contraband's existence
and exercised control over it. Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.—
Houston [14th Dist.] 2001, pet. ref'd). Mere presence at the location where the
controlled substance was found is insufficient, by itself, to establish
possession. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006).
In this case, there is no evidence that appellant actually exercised care,
custody, or control over the subject cocaine. The testimony established that
Christopher Hutchinson discarded the baggie of cocaine into the toilet. There
10
is no evidence that appellant ever touched the cocaine or the baggie containing
the cocaine. In fact, the police indicated that they never saw appellant put any
item into the toilet. (RR III 92, 142). While the testimony established that the
officers saw appellant flush the toilet numerous times, there is no evidence that
appellant ever exercised care, control, or management over the contraband.
Thus, the evidence is insufficient to support the jury’s verdict, and this court
should enter a judgment of acquittal on the possession of a controlled
substance conviction.
Tampering with Physical Evidence – Cause Number 1397495
The Jackson v. Virginia legal-sufficiency standard 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. Brooks v. State, 323 S.W.3d
893, 895 (Tex. Crim. App. 2010); Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.
2781, 61 L. Ed. 2d 560, (1979). Under this standard, evidence is insufficient
to support a conviction if, considering all the record evidence 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. Jackson v. Virginia, 443 U.S. at 319, 99 S. Ct. at 2789; In re Winship,
11
397 U.S. 358, 361, 90 S. Ct. 1068, 1071, 25 L. Ed. 2d 368 (1970); Laster v.
State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235
S.W.3d 742, 750 (Tex. Crim. App. 2007). Viewed in a light favorable to the
verdict, the evidence is insufficient when either: (1) the record contains no
evidence, or merely a "modicum" of evidence, probative of an element of the
offense; or (2) the evidence conclusively establishes a reasonable doubt. Laster
v. State, 275 S.W.3d at 518. This standard applies equally to both direct and
circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App.
1995); Ervin v. State, 331 S.W.3d 49, 55 (Tex. App.—Houston [1st Dist.]
2010, pet. ref'd).
A person commits the offense of tampering with physical evidence (as
specifically charged in the indictment) if, knowing that an offense had been
committed, alter or destroy a thing, namely cocaine, with intent to impair its
verity as evidence in any subsequent investigation of or official proceeding
related to the offense. (CR 9); Tex. Pen. Code § 37.09(d)(1).
In this case, the evidence is insufficient to support a conviction for
tampering with physical evidence since there is no evidence that appellant
actually altered or destroyed the cocaine that was found in the toilet. The
indictment and the jury charge in this case did not allege that appellant
concealed the evidence, one of the methods in which one could commit the
12
offense under § 37.09(d)(1); (CR 9, 39-43). The indictment and the jury charge
only alleged that appellant altered or destroyed the physical evidence. (CR 9).
Therefore, the Court of Appeals erred in finding (1) that “the jury could have
found that [appellant] “conceal[ed]” the evidence, (2) that “the jury could have
reasonably inferred that appellant concealed the cocaine that the officers
recovered from the toilet, and (3) that “the jury could have reasonably found
that appellant concealed…cocaine.” Gordwin v. State, No. 01-14-00343-CR
(April 30, 2015, unpublished), pgs. 8-10. The jury was not authorized to
convict under the theory that appellant “concealed” the evidence.
The only evidence that was presented to the jury was that appellant
flushed the toilet that contained the baggie of cocaine that was put there by the
co-defendant. There is no evidence that the physical evidence was ever altered
or destroyed. In fact, since the cocaine was inside a plastic baggie, it was
shown that the cocaine was not altered at all. Furthermore, since the cocaine
was retrieved by the police, the evidence was not destroyed in any way. In this
case, the most that the State could prove was that appellant committed the
offense of attempted tampering with physical evidence. However, since the
elements of tampering with physical evidence were not proven by the State,
appellant requests that this Court acquit him of the offense of tampering with
physical evidence.
13
Conclusion and Prayer
Appellant prays that this Honorable Court grant Appellant’s Petition for
Discretionary Review, reverse the decision of the Court of Appeals, and acquit
appellant in each cause.
Respectfully Submitted,
/s/ Jerald Graber
_______________________
Jerald K. Graber
917 Franklin, Suite 510
Houston, Texas 77002
713-224-2323
Attorney for Appellant
Certificate of Compliance
I, Jerald K. Graber, do certify that this petition is in compliance with
Rule 9 since the entire document consists of 2,155 words and is typed using
14-point font.
/s/ Jerald Graber
_______________________
Jerald K. Graber
14
Certificate of Service
I hereby certify that a copy of this PDR was served upon the following
parties via e-file:
Alan Curry
Harris County District Attorney’s Office
1201 Franklin, 6th Floor
Houston, TX 77002
State Prosecuting Attorney
P.O. Box 12405
Austin, Texas 78711
/s/ Jerald Graber
_______________________
Jerald K. Graber
15
OpinionissuedApril 30,2015
In The
@ourtof 9ppeulg
For The
fritst Distriotof(Iexsg
NO. 0l-14-00343-CR
NO. 0l -14-00344-CR
DAMION CORNELIUSGORDWIN,Appellant
V.
THE STATE OF TEXAS, Appellee
On Appealfrom the 248thDistrictCourt
Harris County,Texas
Trial Court CaseNos.1397495& 1397496
MEMORANDUM OPINION
A jury foundappellant,
DamionCorneliusGordwin,guittyof the olfensesof
tamperingwith physical evidencerand possessionof a c,rntrolledsubstance,
namelycocaine,weighinglessthan one gram.' [t assessed
his punishment
at
for threeyearsfor tamperingwith physicalevidenceandconfinement
confinement
for two yearsfor possession with the sentences
of a controlledsubstance, to run
concurrently.In threeissues,appellantcontends
thatthe evidenceis insulficientto
supporthis convictionsand the trial court erred in enteringa deadlyweapon
findingin itsjudgment.
We affirm.
Background
Houston Police Department("HPD") Officer M. Santuariotestified that on
August 9,2013, while working in the HPD NarcoticsDivision, he and other law
enforcementofficers "servefd] and executefd]a [no knock] searchwarrant" at a
residence. Santuarioacted as the "case agent" and the "pointnnan"for the entry
SeeTpx. PENRI- (VemonSupp.2014);appellate
Cooe ANN. $ 37.09(d)(1) cause
trialcourtcausenumber1397495.
number01-14-00343-CR;
S e e T p x. H E R l ru & S n pEr v Coop ANN. $$481.102( 3XD) 481.115(
, (b)
a),
(Vernon2010);appellate causenumber01-14-00344-C& trial courlcaurlenumber
1397496.
team. HPD Officer J. Elkins "breachedthe ffront] door" of'the residence,while
HPD Officer Delacertadeployedthe'"flashbang."i
As Officer Santuarioentered the residence,he saw appellant,\ ,ho "was
armed," and ChristopherHutchinsonrun into a hallway and then into a restroom.
He followed them because"fn]ormally in a situationlike th[is]" people run to
"discard or destroy narcotics." When Santuarioarrived in lJrerestroom,he saw
Hutchinson"kneeling down in front of the toilet," "on the floor'," while appellant
threw a small "pistol" onto the restroom floor and then lllushed the toilet
repeatedly. The "pistol" "was a floaded]semiautomaticf,]
. . . small sil'rer gufl,"
with "a round in the chamber." Although Santuarioordered appellantto "stop"
flushing the toilet, he refusedand "[c]ontinued flushing or pulling the ltoilet]
lever." When Santuariotried to removeappellantfrom the toilet,he resisted.
While appellantflushedthe toilet, Hutchinson"had his hands in the toilet
bowl," and Officer Santuario"saw something leave his hands." As liantuario
explained:"[I]t was [a] couplethingsthat were small[,which] []ooked lilceplastic
bags . . . ." Generally,people do not "flush ernpty plastic bags down the toilet,"
but rather "narcotics." Thus, it appeared to Santuario thLatappellant and
Hutchinson were working together to flush the items dou'n the toilet. When
Officer Elkins commandedHutchinsonto oostop"
and "put his handsaway from the
Officer Santuarioexplainedthat a "flash bang"is a distractiondevice"t;hatmakes
a loudgunshot-likesound,flasheslight,andreleases minimalsmoke.
toilet," he did not comply. Elkins, therefore,"reached in and basicall'yyanked
fHutchinson] away from the toilet." After the officers relno'vedappellant and
Hutchinsonfrom the restroom,they "handcuffedand . . . escorted[them] out of the
residence."
Officer Santuariothen took "a closer look at th[e] toilet" and "removed it
from the base [on] the floor." Inside the toilet, he found "a small baggie,that had
crack cocaine in it." HPD officers also searchedthe remainder:of the residence,
appellant,and Hutchinson,and they recovered$2,103 in casrh,marijuanaand
related paraphernalia,a "small digital scale," a beaker, a revolver, and a "baby
bottle with what appearedto be codeineinsideof it."
Officer Elkins testifiedthat he assistedwith the executionof the "no knock"
searchwarrant at the residence. He breachedthe residence'sfront door with a
"[b]attering device," and Officer Delacerta deployed the "flesh bang." After
Elkins followed Officer Santuariointo the residence,Santuarioy'elled,"[r]unners,"
to alert the other officers that "individuals inside the residence[were] nunning."
Generally,peoplerun in situationssuch as this to "hide," "get rid.of sometihing,"or
to "get away from officers." Elkins saw appellantand Hutctrinslonrun toward the
restroom,and he and Santuariopursued.
Once inside the restroom,Officer Elkins saw appellanl."cliscard"a."[s]ilver
automatic pistol" onto the floor and Hutchinson "by the toil,et area discarding
somethinginside the toilet." Hutchinsonhad his hands "iLnsidethe toilet," and it
looked like he was "[d]iscarding items into the toilet." After E,lkinscornmanded
Hutchinsonto o'showhis hands" and "get down on the ground," he did not comply.
Although his focus was on Hutchison,Elkins saw appellant''reachingtoward the
lever of the toilet." "observed his hands on the lever." and cor"rldhear the toilet
flushing. According to Elkins, the toilet "had been llushed several times."
Eventually,Elkins "forcefully. . .pull[ed] [Hutchinson]off the toilet" and took
him into custody. In a subsequentsearch of the restroom.,Elkins savyOfficer
Santuario"recover a small bag of what appearfed]to be crack r:ocainecut of the
bottom of the toilet." HPD oft-rcersalso recovered mariiiuerna.codeine" and
"anotherpistol" from the residence.
Mona Colcatestifiedthat she.as a criminalistwith the controlledsubstances
sectionof the HPD Crime Laboratory,"receive[s]and anallyze[s]evidence"to "test
it for the presenceof controlled substances." She anerlyzedthe "small bag"
recoveredfrom the toilet and found that it contained0.83 eramsof cocaine.
Sufficiency of the Evidence
ln his third issue,appellantarguesthat the evidenceis i.nsuLfficient
to support
his conviction for tampering with physical evidencebecausehe did not "actually
alterf] or destroy[] the cocaine that was found in the toilet." In his first issue,
appellant argues that the evidence is insufficient to support his conviction for
possessionof a controlled substancebecause"there is no evidence that [he]
actuallyexercisedcare,custody,or control over the subjectcocaine."
We review the legal sufficiency of the evidenceby conr;ideringall of the
evidence"in the light most favorableto the prosecution"to determinewhr:therany
"rational trier of fact could have found the essentialelementsof the crime beyonda
reasonable
doubt." Jacksonv. Virginia.443 U.S. 307,319,99 S. Ct. 2781,2789
(1979). Our role is that of a due processsafeguard,ensuringonl.ythe rationalityof
the trier of fact's finding of the essential elements of the offense treyond a
reasonabledoubt. See Moreno v. State,755 S.W.2d 866, 857 (Tex. Crim. App.
1988). We give deferenceto the responsibilityof the facl finder to fairl'y resolve
conflicts in testimony,to weigh evidence,and to draw reasonableinferencesfrom
the facts. I|rilliams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
However, our duty requires us to "ensure that the evidenc,epresentedactually
supportsa conclusionthat the defendantcommitted" the criminal offenseof which
he is accused.Id.
Tamperingwith PhysicalEvidence
A person commits the offense of tampering with physical evidence it
knowing that an offense has been committed,he alters,destroys,or concealsany
record,document,or thing, with intent to impair its verity, legibiltity,or availability
as evidencein any subsequentinvestigationor official proceeilingrelat,edto the
offense.Tpx.PpNnlConpAxx. $ 37.09(d)(1)
(VernonSupp.2014). lHere,the
underlyingindictmentallegedthat appellant,"knowing that an offenselhadbeen
committed, to wit: POSSESSIoN OF CONTROLL,ED SUBSTANCE,
ALTERIED] AND DESTROYIED] A THING, NAMELY, COCAINE with intent
to impair its VERITY as evidencein any subsequentinvestigationof and of-ficial
proceedingrelatedto the aforesaidoffense."
Officer Santuariotestified that after he enteredthe residence,he followed
appellant and Hutchinson as they ran into the restroorn. Santuariiofbund
Hutchinson"kneelingdown in front of the toilet," "on the,floor," while appellant
repeatedlyflushed the toilet. As appellant continuously'flushed the toilet,
Santuario"saw something leave [Hutchinson's] hands." The "something" "was
small . . . it wasn't just one, it was a couple of things that were srnall. [tt] fl]ooked
like plasticbags." Santuariodid not see"any'thingelse in the toilet" "[o]ther than
the plasticbags" that he saw Hutchinsondiscard.
Officer Santuarioexplainedthat "normally" peoplerun whLenofficers entera
residenceto "discard or destroy narcotics." And, based on his training and
experience,"people [do not] flush empty plastic bags do'wn [a] toilet." Instead,
they flush "narcotics." And, after officers removedappellantanclHutchinsonfrom
the restroom, Santuario"removed [the toilet] from the base [on] the floor" and
found "a small baggiethat had crack cocainein it."
Similarly, Officer Elkins testifiedthat he saw appellantand F{utchinsonrun
toward the restroom. Once inside the restroom,Elkins saw Hutchinson "by the
toilet area discarding something inside the toilet." Hurtchinr;on'shands were
"inside the toilet," and he was "discardingitems into the toilet." The only things
that Elkins could seein the toilet were the "items" that Hutchinsonwas discarding.
Elkins also saw appellant's"hands on the ltoilet] lever," and he heard the toilet
being "flushed severaltimes." And Elkins saw Officer Santuario"recove'ra small
bag of . . . crack cocaineout of the bottom of the toilet."
Appellant arguesthat "there is no evidence"that showrsh,3"actually altered
or destroyedthe cocaine that was found in the toilet" because"the cocaine was
insidea plasticbaggie"and "retrievedby the police,"and,thus,"not alteredat all"
or "destroyedin any way." We note, however,that appellanl"'sargumentneglects
to considerthat the jury was not requiredto find that he altereId. Ancl Officer
Santuariotestified that he saw Hutchinson place a "couple'" oll "small," "plastic
bags" in the toilet, which appellantrepeatedlyflushed. And, basedon hir; training
and experience,Santuarioexplainedthat "people fdo not] lllushempty plastic bags
down [a] toilet," but instead, they flush "narcotics." Officerr Elkins similarly
testified that Hutchinson "discardfed] items into the toilet," wtrich appellantwas
flushing.
"'Circumstantial evidenceis as probative as direct evidencein establishing
the guilt of an actor, and circumstantial evidence alonLecan be sufficient to
establishguilt."' Merritt v. State,368 S.W.3d 516, 525 tiTex.Crim. App. 2012)
(quotingHooper v. State,2l4 S.W.3d9, l3 (Tex. Crim. App. 2007)). f]asedon the
above testimony,the jury could have reasonablyinferred that appellantconcealed
the cocainethat the officers recoveredfrom the toilet. I\'zloreover"
it could have
reasonablyinferredthat cocaine,other than the cocainerecoverr:dliorn the single
baggie,was flushed down the toilet by appellant,and, thus, this other cocainewas
a l t e r e do r d e stro ye d .S e eR a b b v. State,434S.W .3d613, 617 ( Tex. Cr im. App.
2014) (noting "a fact flnder could reasonablyinfer from the evidence that the
baggieand pills were destroyedby their passageinto [a]ppr:llant'sbody"): Hooper,
214 S.W.3dat 15 (fact finderspermittedto draw reasonableinferencesif supported
b y e v i d en ce );se e , e .g ., D i a z y. ^S/a/e, l2- 13- 00068- C R ,
Nos. 13- 13- 00067- CR,
2014 Wt. 1266350,at *2 & n.3 (Tex. App.-Corpus ChristiJan.23,2014, no pet.)
(mem. op., not designatedfor publication)(concludingjur.y could reasonablyhave
inferred defendantdestroyedcocaineby flushing it down toi.letwhere "there was
cocaine found around the rim of the toilet bowl and in the toilet water, and
[defendant]had just exited the bathrooffi");Turner v. State,No. 13-12-00335-CR,
at *2 (Tex.App.-CorpusChristil\[ar:.14,2013,no pet.)
2013wL 1092194,
(mem. op., not designated
for publication)(holdingfactfindercould have
reasonably found defendant destroyed cocaine by swallowing based on
circumstantial evidence officer saw baggie with "white or beige rock-like
substance" in defendant's mouth and cocaine commonll, prackagedin such
manner).
Viewingthe evidencein the light mostfavorableto tlhejury's verdict,we
concludethat the jury could have reasonablyfound that appellantconcealed,
altered,or destroyed
cocaine.Accordingly,we hold thatthe evidenceis sufficient
to supporthis convictionof the offenseof tamperingwith physicalevidence.
We overruleappellant'sthird issue.
Possessionof a Controlled Substsnce
A personcommits the offenseof possessionof a controlledsubstanceif he
-I'nx.
"knowingly or intentionally possesses"less than one gran:l of cocaine.
H e n l r n & S a p p l v C o o p A N N . $ $ 4 8 1 . 1 0 2 ( 3 X D 4) ,8 1 . 1 l 5 ; ( a (. l)b, )( V e r n o n2 0 1 0 ) .
To prove that appellantcommittedthis offense,the Statehradto r:stablishbeyonda
reasonabledoubt that he exercisedcontrol. manasement.or care over the cocaine
and knew that it was contraband.Poindexterv. State, 153 S.W.3d 402,405 (Tex.
Crim. App. 2005); see also TEx. PENnLCoDEAxx. $ 1.07(aX39)(Vernon Supp.
2014). Although the Stateneed not prove exclusivepossessionof cocaine,it must
10
establishthat a defendant'sconnectionwith the cocaine is rnore tharr fortuitous.
Evans v. State,202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006): I4tileyv. State,
3 8 8 S. W.3 d8 0 7 ,8 1 3 (T e x. A p p.- Houston IlstDist.] 2012,pet. r efd) . W hen a
defendantis not in exclusivepossessionof the place where contrabandis found,
the State must show additional affirmative links betweenL
ttre rlefendantand the
contraband.Deshongv. State,625S.W.2d327,329 (Tex. Crim. App. [PanelOp.]
1 9 8 1 ) ;Ki b b l e v. S ta te .3 4 0S .W.3d 14, 18 ( Tex. App.- - Houston[1st Dist.] 2010,
pet. ref d). Mere presencein the sameplace as contrabandis insufficient,by itself,
to establishactual care, custody,or control. Evons, 20:l S.W.3d at 162. But,
presence or proximity to contraband, when combined withr other direct or
circumstantial
evidence,may be sufficientto establishpossession.ft/.
Texas courts have recognizedthat the following non-exclusive"affirmative
links" may be suff'rcient,
eithersingly or in combination,to establisha defendant's
possession
of narcotics: (l) the defendant'spresencewhen a searchis conducted;
(2) whetherthe contrabandwas in plain view; (3) the defendant'rs
proximity to and
the accessibilityof the narcotic;(4) whetherthe defendantwas under the influence
of narcoticswhen arrested;(5) whether the defendantposrsesseil
other contraband
or narcotics when arrested; (6) whether the defendant made incriminating
statementswhen arrested;(7) whetherthe defendantattemptedtId. at
indicateda consciousness
162 n.12. lt is not the numberof links that is dispositive,but rather,the logical
force of the evidence,both direct and circumstantial,thar is dispositiveto show
possession.Id. at 1621,
Jamesv. State,264S.W.3d215,219 (Tex. Aptrr.-Houston
I st Dist.] 2008,pet.ref d).
Appellant arguesthat "there is no evidencethat [he] actually exercisedcare,
custody, or control over the subject cocaine" because the evidence at trial
"establishedthat . . . Hutchinson discardedthe baggie of r;oc:airre
into the toilet,"
"the police indicatedthat they never saw appellantput any iitemirrto the toilet," and
it was not shown that "appellantever touchedthe cocaineor the baggiecontaining
the cocaine."
Officer Santuariotestifiedthat appellantwas presentin the residence,which
was equippedwith surveillanceequipment at the time law enl'orcementofficers
executed the search warrant. See Evans, 202 S.W.3d at 162 n.12, 163 64
(presencewhen searchconductedconstitutesaffirmative link); s(re,e.g.,Lavigne v.
2008 WL 3115385,at *3 (Tr:x.App.--Flouston[1st
state, No. 01-07-00995-CR,
t2
Dist.l Aug. 7, 2008, pet. ref d) (mem. op., not designated.for publication)
(concludingevidencesufficient where defendantfound inside rersidence
"equipped
with the extra securityassociatedwith a housededicatedto manufacturingcrack").
Inside the residence,officers found lettersaddressedto appellan,tat the residence,
pictures in the bedrooms,and male clothing that matcherCappellant.'ssize. See
Evans,202 S.W.3dat I 62 n.12, 164-65 (receivingmail at residenceand presence
of clothing raisesreasonableinferencedefendantoccupied residencr:);Cooper v.
St a t e , 8 52 S .W.2 d 6 7 8 .6 8 1 (T ex. App.- Houston [4th Dist.] 1993,pet. r efd)
(concluding mail addressed to defendant, defendant's picture, and clothing
appearingto fit defendantindicateddefendantoccupiedresidence).
When the officers enteredthe residence,appellant,along with Hutchinson,
ran to the restroom,and Officer Santuariofound appellantstandinE;next to and
flushing the toilet, from which he later recovered a u'small baggie [of] crack
cocaine." SeeEvans,202S.W.3dat 162 n.12 (proximityto narcotic,attemptingto
flee, and making furtive gesturesconstituteaffirmative linkslt;see,e.9., Jordan v.
State, Nos. 02-12-00470-CR, 02-12-00471-CR, 02-12--0047:2-CR,
2014 WL
1663404^at *3 (Tex. App.-Fort Worth Apr. 24, 2014, no pet.) (nrem. op., not
designatedfor publication)(fleeing to restroomdid not inclicatean "innocent state
of mind"); Perez v. State.No. 07-II-00249-CR, 2012 W'L Il22lA4, at *4 (Tex.
App.-Amarillo Apr.4,2012, no pet.) (mem. op., not designatedfol publication)
l3
(concludingevidencesufficientto showpossession
wherecocainefound in urinal
was standing");Ga'rretty. State.761
"immediatelyadjacentto where[defendant]
S.W.3d664,671(Tex.App.-Fort Worth2005,pet.refd) (eviEvans, 202 S.W.3d at 162 n.72, 16-\-65 (presenceof other
contraband, narcotics paraphernalia, and large amou.nt of' cashLconstitute
affirmative links); Hargrove v. State, 211 S.W.3d 379, 386 (Tex. App.-San
Antonio 2006, pet. refd) (concluding presence of narcotics paraphernalia.
includingdigital scale,and weaponsin houseconstitutedaffirrrrativ'e
links).
Viewing the evidencein the light most favorableto the.jury's verdict,we
concludethat sufficient affirmative links connectappellantto the cocaine. And the
jury could have reasonablyinferred from the cumulativefcrrceolithe evidencethat
appellantexercisedactual care,custody,or control of the cocain,o.See'Evans,202
S.W.3d at 166 (concludingevidence,'owhenviewed in combinationand its sum
total, constituted amply sufficient evidence"). Accordingll,, we trold that the
Officer Elkins similarly testified that he saw appellant '''discarrl" a "silver
automatic pistol" on the f1oor, saw appellant"reachin5ltowa.rdthe lever of the
toilet," "observedfappellant's]hands on the lever," and heerrdthe toilet flushing.
In a subsequentsearchof the restroom, Ofllcer Santuario"recc,ver[ed]a small bag
of what appearfed]to be crack cocaineout of the bottomLof'the toilert." And FIPD
ofllcers recoveredmariiuana.codeine.and "anotherpistol" in the residence.
15
evidenceis sufficientto supportappellant'sconvictionof tlheoffenseof possession
of a controlled
substance.
We overruleappellant's
first issue.
DeadlyWeaponFinding
In his secondissue,appellantarguesthat the trial courterredin "enteringa
deadlyweaponfindingin thejudgmentfor possession
of'a controllecl
substance"
because"there[was] no expressfinding by the jury that lhe] usedo,rexhibiteda
deadlyweapon,namelya firearm."
When a jury is the factfinder,it must make an affirmretirre
f indinLgconcerning
the use or exhibition of a deadly weapon before the trial couLrtr:anenter a deadly
weaponfinding in its judgment. Lafleur v. State, 106 S.V/.3d9)1,911
(Tex. Crim.
by the jury
App. 2003). "Aff-rrmativefinding" meansan "expressdel.errnination"
that a deadly weaponwas actually used or exhibiteddurinlgthe r;omm.ission
of the
o f f e n s e . P o l k v. S ta te ,6 9 3S .W .2d391,393 ( Tex. Cr im. App, 1985) . The jur y
makesthe requiredaffirmative finding when: (l) the indic,tmentalletr;es
the use or
exhibition of a deadly weapon and the jury's verdict states that it found the
defendant"guilty as chargedin the indictment"; (2) the juqr finds the defendant
guilty as allegedin the indictmentand, althoughthe use o1'a deerdlyweapon is not
specificallypleaded,the indictmentallegesthe use or exhibitiorrof a weaponthat
is deadly per se; or (3) the jury affirmatively answersa sp,ecialissueon the use or
16
exhibitionof a deadlyweapon. Polk, 693 S.w.2d at 396; Jcthnsa,nt
v. State,6
S.W.3d709,713-14(Tex.App.-Houston[1stDist.] 1999,pet.refd').
Here,the indictmentspecificallyallegedthe useor exhib,ition
of a "deadly
weapon"by appellant.5OfficersSantuario
andElkinstestifiedtlhatappellant"was
armed"and threw a "small silver gun" onto the restroomfl.oorbeforehe began
flushing the toilet. And the jury, in its verdict, fourrd appellant"guilty of
possession
of a controlledsubstance,
namely,cocaine.
. . . as chargedin the
indictment."Further,the trial court'schargeto thejury inclurJed,
a questionasking
thejury to determine
whetherappellant
usedor exhibiteda deadlyweaponduring
the commissionof the offenseor duringthe immediatefltighttherefiom,and the
jury answeredthe questionin the affirmative. See Polk, 693 S.\4,'.2d
at 394;
J o h n s o n .S
6.W.3d
at713 14.
Once the jury made the affirmative finding, the trial court was required to
e n t e rt h e fi n d i n g i n i ts j u d g me nt. SeeTpx. CooE Cnr v..Pnr tc.ANtl. ar ts.42.0l ,
l i 1 ( 2 1 ) ,1 2 .1 2 ,$ 3 g (a )(2 )(V e rn onSupp.2014) ;Johnson.6lS.V/.3dat 714 ( when
jury makes affirmative finding on use of deadly weapon:,'''enteringthLeaff-irmative
finding in the judgment is mandatory; the trial court lhas no discretion").
The indictment states: "[A]t the time that the Def'end;antcommitted the f-elony
ofl'ense of POSSESSION OF CONTROLLED SUflSTAllCFl on or about
AIIGUST 9,2013, as hereinabovealleged,he usedand exhibiteda cleadlyweapon
namely, a FIREARM, during the commission of saicl off-ensea.nd during the
immediate flight from said ofl-ense."
t1
Accordingly,we hold that the trial courtdid not err in enterirrg
the deadlyweapon
findingin itsjudgment.
We overruleappellant's
secondissue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panelconsistsof JusticesJennings,Keyes,and Massengale.
D o n o t p u b l i sh . T t-x.R . A p p .P . 47.2( b) .
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