Randy Nunez Masson v. State ( 2014 )

Affirmed and Memorandum Opinion filed April 1, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00211-CR
RANDY NUNEZ MASSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 155th District Court
Austin County, Texas
Trial Court Cause No. 2009R-0113
MEMORANDUM OPINION
Appellant Randy Nunez Masson appeals his conviction for possession of
marijuana complaining that the evidence is insufficient to support the conviction.
We affirm.
Background
In late 2008, early 2009, Sergeant Virgil Price of the Austin County
Sheriff’s Department received information that a certain location could possibly be
a site for growing marijuana. With help from the Drug Enforcement
Administration, Price installed a hidden camera so that he received a live feed of
activity at the property, located at 4558 Orange Hill Road. Located on the property
are a house and a 40-by-80-foot metal building with two large roll-up doors and
one entrance door on the side. The metal building is serviced by a separate
electrical line from the house.
As Price watched the video feed from the hidden camera he observed that
appellant was the only individual who lived in the house. Several times he saw
appellant go from the house to the metal building, enter the building, close the
door, and stay in the building for 30 to 40 minutes at a time. Price observed that
electricity had been turned on for the building and the electrical usage continued to
go up each month. Price did not observe appellant remove anything from the
building, nor did he observe repair work on vehicles, or farming or ranching
operations.
In March 2009, Price and other officers went to the property to execute a
search warrant. While at the location, Price conducted a traffic stop of a vehicle in
which appellant, Mario Garcia, and Michael Castro were riding. Price and other
officers executed the search warrant on the metal building and observed that the
building was divided into four rooms. In the first room they discovered building
materials, saws, ladders and a bucket, which contained scrap marijuana. In the
other three rooms the officers found marijuana plants and transformers to power
the lights used to grow the marijuana. Officers also discovered bottles of plant
food, box fans and a calendar, which contained instructions on caring for the
plants. The lights were activated through the use of timers. The building, which
Price determined to be a marijuana grow house, was cooled by three large air-
conditioning units.
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When officers searched the house where appellant lived, they found a
calendar identical to the one hanging on the wall of the metal building. The
calendar in the house also contained instructions for the care of marijuana plants.
Officers also found prescription bottles, mail, and animal shot records with
appellant’s name and the Orange Hill address printed on them.
The marijuana was cut and transported to the Department of Public Safety
Office in Houston, where it was dried and weighed. The total weight was 29.6
pounds.
A fingerprint expert testified that a fingerprint taken from one of the lighting
timers in the metal building matched that of appellant’s middle finger on his left
hand. Appellant was convicted of possession of a controlled substance and
sentenced to ten years in prison.
Discussion
In a single issue, appellant complains the evidence is insufficient to support
his conviction.
When reviewing sufficiency of the evidence, we view all of the evidence in
the light most favorable to the verdict and determine, based on that evidence and
any reasonable inferences therefrom, whether any rational factfinder could have
found the elements of the offense beyond a reasonable doubt. Gear v. State, 340
S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307,
318–19 (1979)); see also Atkins v. State, 402 S.W.3d 453, 459 (Tex. App.—
Houston [14th Dist.] 2013, pet. ref’d). We do not sit as the thirteenth juror and may
not substitute our judgment for that of the factfinder by reevaluating the weight and
credibility of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010); Atkins, 402 S.W.3d at 459. Rather, we defer to the factfinder to fairly
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resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences
from basic facts to ultimate facts. Isassi, 330 S.W.3d at 638; Atkins, 402 S.W.3d at
459. Each fact need not point directly and independently to the appellant’s guilt, as
long as the cumulative effect of all incriminating facts is sufficient to support the
conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Atkins, 402
S.W.3d at 459.
We measure evidentiary sufficiency against the “elements of the offense as
defined by the hypothetically correct jury charge for the case.” Fuller v. State, 73
S.W.3d 250, 252 (Tex. Crim. App. 2002). To prove appellant committed this
offense, the State was required to show beyond a reasonable doubt that he
knowingly or intentionally possessed between five and fifty pounds of marijuana.
Tex. Health & Safety Code § 481.121(b)(4). In that connection, the State was
required to establish that appellant exercised control, management, or care over the
marijuana and knew it was contraband. Poindexter v. State, 153 S.W.3d 402, 405
(Tex. Crim. App. 2005). Appellant’s connection with the contraband must be more
than fortuitous. Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim. App. 2006).
Mere presence in the same place as the controlled substance is insufficient to
justify a finding of possession. Id. at 162.
Presence or proximity, when combined with other evidence, either direct or
circumstantial (e.g., “affirmative links”), can establish possession. Id. The logical
force of all of the evidence—not the number of affirmative links—is dispositive.
Id. In the context of a charge of possession of a controlled substance, the following
affirmative links, among others, have been considered in other cases: (1) the
accused was the owner of the place where the contraband was found; (2) the
physical condition of the accused indicated recent consumption of the contraband
in question; (3) conduct by the accused indicated a consciousness of guilt; (4) the
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accused made furtive gestures; (5) the accused was observed in a suspicious area
under suspicious circumstances; (6) the contraband was found in close proximity to
the accused; (7) the accused made incriminating statements connecting himself to
the contraband; and (8) the contraband was recovered from an enclosed space. See
Black v. State, 411 S.W.3d 25, 29 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
Appellant argues that the evidence is insufficient to link him to the
marijuana because he was not in exclusive control of the property and no
marijuana was found on his person when he was arrested. Appellant points to
evidence that the property was owned by Guillermo Pineda, in whose name the
electricity was billed, and Mario Garcia had access to the entire property.
Appellant also argues that, although Price saw him enter and exit the grow house,
Price did not know what appellant was doing inside.
The record reflects that a large quantity of live plants were recovered, which,
when dried and stripped, amounted to almost thirty pounds of a usable quantity of
marijuana. Appellant was living on the property and appellant was the individual
Price observed going in and out of the metal building. Price described the grow
house as, in his experience, a sophisticated operation that would require daily care.
The contraband was in plain view in the grow house and readily accessible to
appellant. Officers also discovered one of appellant’s fingerprints inside the grow
house on lighting equipment designed to aid in growth of the marijuana plants.
These facts amply support a conclusion that, when appellant was inside the grow
house, he possessed the narcotics and knew it to be contraband. See Wright v.
State, 411 S.W.3d 813, 820–21 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d)
(considering as affirmative links large quantity of live plants conveniently
accessible to defendant where two of defendant’s fingerprints were found on
lighting equipment devoted to hydroponic cultivation of marijuana). In addition,
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appellant was leasing the house, had a key to the house and the gate, and had
personal items in the house with the home’s address. A calendar was found in the
house which matched a calendar in the grow house; both calendars contained
instructions for the care and feeding of the marijuana plants.
Viewing the evidence in the light most favorable to the verdict, a trier of fact
reasonably could have determined beyond a reasonable doubt that the grow house
and contraband recovered from it were within appellant’s actual custody, control,
care, or management and that appellant knew the substance was contraband. See
Gregory v. State, 159 S.W.3d 254, 260 (Tex. App.—Beaumont 2005, pet. ref’d)
(concluding that odor and large quantity of contraband in plain view in an enclosed
place, along with an accused’s fingerprints associated with the contraband were
sufficient affirmative links to establish possession). We overrule appellant’s sole
issue and affirm the trial court’s judgment.
/s/ Martha Hill Jamison
Justice
Panel consists of Chief Justice Frost and Justices Jamison and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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