No. 14-10-00594-CR
Opinion filed May 10, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 405th District Court Galveston County, Texas, Trial Court Cause No. 08CR2114.
Panel consists of Justices BROWN, BOYCE, and JAMISON.
JEFFREY V. BROWN, Justice.
A jury found appellant Junius Sereal guilty of possession of four or more but less than 200 grams of cocaine with intent to deliver and, after finding two enhancement paragraphs true, assessed punishment of thirty-two years' confinement in the Texas Department of Criminal Justice, Institutional Division. The trial court sentenced the appellant accordingly. In a single issue, the appellant contends the evidence is legally insufficient to support his conviction because a rational trier of fact could not have found, beyond a reasonable doubt, that he possessed the cocaine. We affirm.
I
In June 2008, City of Dickinson Detective Michael E. Henson, Jr., received information from a confidential informant that Ewa Sereal, the appellant's wife, possessed and was selling cocaine at 3010 Ohio Avenue in Dickinson. In preparing a search warrant for the premises, Henson determined that water service to the house was in Ewa's name. He also learned that one of the two vehicles frequently parked at the house was registered to the appellant at the 3010 Ohio Avenue address, and the other was registered to Ewa at the same address. The search warrant was executed shortly after noon on June 26 by narcotics units from the Galveston Police Department and the Texas Department of Public Safety, as well as officers from the Dickinson Police Department. When the team arrived at 3010 Ohio Avenue, the appellant was at the front entrance of the house. Inside were the appellant's brothers, Eugene Willie Sereal and Alvin Sereal, and a third man, Tyrone Hazley. Another man, Mark Norris, was on the back patio. Three children were also in the house. Inside the house, officers found 138.6 grams of cocaine and 9.1 grams of crack cocaine in the back bedroom, along with a microwave, a digital scale, a box of sandwich bags, a box of latex gloves, and money. Also found in the back bedroom were personal documents and mail addressed to the appellant, men's clothing, brass knuckles, and a baby carriage. Another 57.3 grams of crack cocaine and a digital scale were found in a drawer in the kitchen. On top of a kitchen cabinet was a plate containing 2 grams of powder cocaine, along with a razor blade. Under the kitchen sink were three Pyrex measuring cups containing a white substance that tested positive for cocaine. The appellant and Eugene Willie Sereal were arrested at the house. Ewa was not there at the time but was arrested later. She pleaded guilty to possession of a controlled substance and received probation. II A
In a legal-sufficiency review, we examine all of the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 433 U.S. 307, 319 (1979). This standard of review applies to cases involving both direct and circumstantial evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Although we consider everything presented at trial, we do not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). A person commits an offense if he knowingly possesses, with intent to deliver, a controlled substance. See Tex. Health Safety Code § 481.112(a). Cocaine is a controlled substance. See id. § 481.102(3)(D). "Possession" means "actual care, custody, control or management." Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); see also Tex. Health Safety Code § 481.002; Tex. Penal Code § 1.07(39). To prove unlawful possession of a controlled substance, the State must establish that the accused (1) 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). A person's possession of the controlled substance must be more than fortuitous, and his mere presence at the scene where the substance was found is insufficient to demonstrate care, management, or control of the drug. Evans, 202 S.W.3d at 161-62. But presence combined with direct or circumstantial evidence affirmatively linking the defendant to the controlled substance may be sufficient to establish the element of possession beyond a reasonable doubt. Id. at 162; see Olivarez v. State, 171 S.W.3d 283, 291-92 (Tex. App.-Houston [14th Dist.] 2005, no pet.). Courts have identified a non-exhaustive list of factors that may help show an accused is linked to a controlled substance, including (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. See, e.g., Evans, 202 S.W.3d at 162 n. 12; 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. B
In one issue, the appellant contends the evidence is legally insufficient to link him to the cocaine that is the basis for the offense. Specifically, the appellant argues that (1) he had just arrived at Ewa's house when the officers executed the warrant and was not in close proximity to the contraband found inside the house; (2) the house belonged to Ewa and, although he had lived there at one time, he had moved out two months earlier; (3) he did not have access to the contraband concealed in cabinets, drawers, and above the refrigerator in the house because he was estranged from Ewa; and (4) the record is unclear whether he was found with a large amount of cash. At the appellant's trial, Henson explained that he believed the appellant was living in the house because he found personal documents and mail addressed to the appellant at 3010 Ohio Avenue, the appellant's vehicle registration reflected that address, and Henson had seen the appellant at the house on numerous occasions. Henson admitted that he did not document the dates and times he observed the appellant at the house, but he explained that the reason he had seen the appellant numerous times was that his field station was near the 3010 Ohio address and he often passed by the house and saw the appellant there. Henson testified that, based on the quantity of cocaine and the totality of the circumstances, the amount of narcotics recovered was consistent with selling narcotics rather than personal use. Henson also testified that sandwich bags are commonly used to package narcotics for sale, latex gloves are used to prevent the transfer of fingerprints onto the packaging materials, and microwaves and Pyrex cookware are commonly used to make "cookies" of crack cocaine by mixing powder cocaine with baking soda and heating it. When asked about the brass knuckles, Henson stated that it is common to find weapons and contraband at homes where drugs are sold because such houses are common targets for robbery. Henson also testified that the appellant was found with $668 on his person, and there was another $100 in the bedroom chest where some of the cocaine was found. Most of the money was in denominations consistent with narcotics sales. The police were unable to retrieve any identifiable fingerprints from the Pyrex measuring cups, the razor blade, or the bags containing drugs that were found in the house. However, DNA obtained from the razor blade and one of the bags containing cocaine tested positive for the appellant's DNA. The appellant did not testify, but the defense presented several other witnesses. Latisha Waller, the mother of two of the appellant's children, testified that on June 26, 2008, the appellant came to her house at 12:15 p.m. to pick up their son. She stated that they talked for about ten minutes, and then the appellant and her son left to make the short drive to Ewa's house. Latisha further testified that the appellant and Ewa were separated and he did not live with Ewa anymore. But Latisha did not know when the appellant and Ewa separated, and she did not know where the appellant was living. Latisha also did not know whether the appellant had a job, although she acknowledged that he gave her money to provide for their children's needs. The appellant's wife, Ewa, testified that she and the appellant were married on November 22, 2005, and they had two children who were ages one and six at the time of trial. Ewa also testified that she purchased her house before she was married and she paid all of the bills. She stated that on June 26, 2008, she and the appellant were not living together, and had been separated for about two months. Ewa did not know where the appellant was living while they were separated. She testified that during that time she was having an affair with another man named David Jones. She and Jones, who supplied the drugs, were selling them at the house. Ewa testified that Jones did not live with her during the two-month period she was separated from the appellant, but he did spend the night occasionally. And although Ewa acknowledged that the appellant had left some of his clothes at the house, Jones left no belongings there except for the drugs and the brass knuckles. Ewa broke up with Jones around the time she went to jail. Ewa professed to have no idea where Jones was living, and she did not know his phone number, his middle name, or any of his family members. After Ewa turned herself in, the appellant moved back in with her. Ewa testified that the appellant had nothing to do with the drugs found throughout her house, and he did not know that the drugs were in the house. Ewa also testified that she executed an affidavit stating that the drugs and paraphernalia found in her home belonged to her alone, and she took full responsibility for them. She also averred that, to her knowledge, the appellant was just arriving at her house and was about to enter when he was arrested on the front porch. However, Ewa did not mention David Jones or his involvement in selling drugs with her in the affidavit. Ewa denied that she sold cocaine from the house while the appellant was living there. She testified that she and Jones sold cocaine in the house only during the two-month period preceding the execution of the search warrant, and it was only during this two-month period that the appellant was not living in the house. When questioned by the defense, however, Ewa stated that the appellant did not move back in with her for about seven months because he was in jail and had to be released on bond. On cross-examination, Ewa admitted that she had already been charged and convicted, so she risked nothing by testifying for the appellant. She also stated that she knew of no reason the appellant's DNA would be found on the evidence. The defense also called Eugene Sereal, the appellant's brother, to testify. Eugene admitted that he had previously been convicted of drug offenses and aggravated assault, and had twice served time in the penitentiary for selling cocaine. Eugene testified that he was at the house when the search warrant was executed, and he believed that the appellant had not yet arrived when the police got there. He also testified that he doubted whether the appellant was involved in the activities at Ewa's house because the appellant had moved out and was no longer living with Ewa. But Eugene did not know when the appellant moved out of the house or where he lived after he moved out. And, although Eugene spent time at the house almost every day, he testified that he had never heard of anyone named David Jones. In rebuttal, the State called Jose Balavantin, a deputy at the Galveston County Sheriff's Office, who testified as the custodian of records made of inmates when they are booked after arrest. He testified that the appellant was booked on June 27, 2008, on the charge of manufacturing and delivery of a controlled substance. He further testified that under the section of their form entitled "family history" the appellant indicated that he rented and owned a home with his wife Ewa at 3010 Ohio Avenue in Dickinson. He further indicated that this was the only place he had lived for the past seven years. The appellant's primary arguments — that he was not in close proximity to the contraband, he was not living in the house, and he had no access to the concealed contraband — depend entirely on the testimony of defense witnesses. According to these witnesses, the appellant was merely dropping off his child at the house on 3010 Ohio Avenue when he happened to arrive there only moments before the police came to execute the search warrant, he had moved out of the house two months earlier and was separated from his wife, Ewa, because she was having an affair with another man named David Jones, and the drug enterprise was operated entirely by Ewa and Jones without the appellant's knowledge. The jury, as the sole fact finder, was entitled to assess the credibility of these witnesses and their version of events. They rationally could have found that the witnesses' testimony was not credible, particularly Ewa's testimony that she had the purported affair with David Jones only during the two-month period when she and the appellant were separated, the entire drug enterprise was conceived and operated out of the house for only two months, the appellant knew nothing about the drugs, and the appellant resumed living with her shortly thereafter. In determining whether Ewa's testimony was credible, the jury also had before it Ewa's lack of knowledge of any personal details about Jones despite having supposedly having an affair with him, all of the witnesses' lack of knowledge about the appellant's living arrangements during the purported separation, and Eugene's failure to even recognize the name "David Jones" even though he was at the house almost every day, including the day the search warrant was executed. The jury also had other evidence contradicting the appellant's version of events. Henson testified that officers found personal documents indicating the appellant was living at the house, including a receipt belonging to the appellant dated May 5, 2008, a speeding ticket issued June 3, 2008, to the appellant, and a letter and envelope addressed to "June and Ewa" postmarked June 23, 2008. Henson also testified that the appellant's car, which was registered him at the 3010 Ohio Avenue address, was "always" or "primarily" parked there, and he often saw the appellant there. The appellant questions Henson's credibility and the thoroughness of his police work, but Henson was cross-examined on these issues and the jury was entitled to weigh his credibility and the strength of his testimony. Additionally, DNA evidence linked the appellant to the contraband. The appellant argues that his DNA could have been transferred to the contraband merely by touching a surface containing his skin cells, but there is no evidence to suggest this occurred. Further, Ewa testified the appellant was not involved in the drug enterprise and she knew of no reason the appellant's DNA would be on the razor and bag containing cocaine. Based on the evidence, the jury could have rationally concluded that DNA was found on the evidence because the appellant was not separated from Ewa but was living at the house and was involved in the drug enterprise. The appellant cites two cases in which the court of appeals concluded the evidence was legally insufficient to support a defendant's conviction for possession of controlled substances, and he argues the circumstances in the present case are similar. See Allen v. State, 249 S.W.3d 680 (Tex. App.-Austin 2008, no pet); Mares v. State, 801 S.W.2d 121 (Tex. App.-San Antonio 1990, no pet.). These cases are both distinguishable, however, because in Allen and Mares, there was no evidence that the defendants ever lived or stayed at the apartments where the controlled substances were found, nor were the defendants shown to be closely related to the other persons in joint possession of the contraband or who owned or leased the premises where the contraband was found. Allen, 249 S.W.3d at 684-85; Mares, 801 S.W.2d at 126-27. Reviewing all of the evidence in the light most favorable to the verdict, the combined and cumulative force of the direct and circumstantial evidence affirmatively links the appellant to the cocaine that is the basis for the offense, and therefore the evidence is legally sufficient to support the jury's verdict. We overrule the appellant's issue and affirm the trial court's judgment.