Opinion
NO. 14-15-00636-CR
07-21-2016
CHAUNCEY SEYMOUR, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court Harris County, Texas
Trial Court Cause No. 1432453
MEMORANDUM OPINION
Appellant Chauncey Seymour appeals his conviction for possession with intent to deliver. In two issues, appellant argues that evidence is legally insufficient to support his conviction and that the trial court's judgment should be reformed. We affirm the judgment as reformed.
FACTUAL AND PROCEDURAL BACKGROUND
After receiving a tip from a confidential informant that narcotics were being sold at a northeast Houston residence, the Houston Police Department began surveilling the property. Officers observed numerous people coming and going from the residence and proceeded to complete a controlled buy in which officers successfully purchased methamphetamine. Officers subsequently obtained a search warrant with the information collected from the surveillance and controlled buy.
On June 18, 2014, officers executed the search warrant. As officers approached the residence, appellant ran through the front door. Appellant continued running after officers identified themselves and ordered him to stop. Appellant stopped only after multiple officers moved towards the front door of the residence. Officers arrested appellant at the scene and found a counterfeit twenty-dollar bill in his pocket.
Upon entering the residence, officers found 50 grams of marijuana, 13.55 grams of cocaine, 13.19 grams of methamphetamine, 34.17 grams of the drug Ecstasy, and a gun, all in plain view on the counter dividing the living room from the kitchen. The counter and its contents were visible from the front door. Additionally, inside the kitchen, officers found another gun, a scale, and Ziploc bags. Throughout the residence, officers found a total of five guns.
These are the substances listed in the Search Warrant Return. The forensic analyst testified to testing and identifying a total of 21.96 grams of methamphetamine, as well as a total of 11.59 grams of cocaine, including adulterants and dilutants. The forensic analyst did not provide testimony concerning the other contraband reported on the Search Warrant Return.
The officers did not find any bills or other mail addressed to appellant at the residence, and appellant's parole officer testified that appellant's home visits had occurred at a different address. However, officers did find appellant's phone inside. After receiving verbal consent from appellant, officers searched the phone and found a picture of appellant seemingly taken at the residence some time prior to the search.
The appellant waived a trial by jury. After a bench trial, the judge found appellant guilty of possession with intent to deliver a controlled substance. Appellant pleaded true to two enhancement paragraphs and was sentenced to 25 years in prison.
ISSUES AND ANALYSIS
I. Sufficiency of the Evidence
In his first issue, appellant challenges the legal sufficiency of the evidence to support his conviction. Specifically, appellant alleges that there is insufficient evidence showing he knowingly possessed methamphetamine. However, an analysis of the affirmative links reflects sufficient evidence to support appellant's conviction.
A. Standard of Review
In evaluating a sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine, based on that evidence and any reasonable inferences therefrom, whether a rational jury 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)). We do not reevaluate the weight and credibility of the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The factfinder "is the sole judge of credibility and weight to be attached to the testimony of witnesses." Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). The factfinder may choose to believe or disbelieve any portion of the witnesses' testimony. See Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App. 2014). When faced with conflicting evidence, we presume the factfinder resolved conflicts in favor of the prevailing party. Id. at 8.
"Possession" is defined as "actual care, custody, control, or management." Tex. Penal Code § 1.07(a)(39); Tex. Health & Safety Code § 481.002(38). To prove unlawful possession of a controlled substance, the State must establish that the accused exercised care, control, or management over the contraband and knew the substance was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). The elements of possession may be proven through direct or circumstantial evidence, although the evidence must establish that the accused's connection with the substance was more than just fortuitous. Id. at 405-06.
Appellant also claims the evidence is insufficient to prove the "intent to deliver" element, but he does not provide any argument or cite any cases supporting the claim. Therefore, we do not address the intent element. See Tex. R. App. P. 38.1(i).
In any event, we note that Officer Elkin testified that the following was consistent with the sale or intent to deliver narcotics: (1) activity he observed during surveillance of the residence; (2) surveillance cameras on the outside of the home; (3) burglar bars and various firearms throughout the residence; and (4) individuallypacked baggies and scales found in the home. See Mack v. State, 859 S.W.2d 526, 529 (Tex. App.—Houston [1st Dist.] 1993, no pet.) (holding that 8.9 grams of crack cocaine in 29 rocks in a known drugdealing area, without paraphernalia for smoking or otherwise using cocaine, was sufficient to show intent to deliver); see also Moreno v. State, 195 S.W.3d 321, 326 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd) (citing Mack).
When, as here, the accused is not in exclusive possession of the place where the contraband is found, the reviewing court must examine the record to determine if there are any additional independent facts that "affirmatively link" the defendant to the contraband. Id. at 406; Torres v. State, 466 S.W.3d 329, 331-32 (Tex. App.—Houston [14th Dist.] 2015, no pet.). This requirement protects innocent bystanders from conviction based solely on their proximity to someone else's contraband. Poindexter, 53 S.W.3d at 406. Courts have identified the following factors that may help to show an accused's affirmative links to a controlled substance: (1) the accused's presence when a search is conducted; (2) whether the contraband was in plain view; (3) the accused's proximity to and the accessibility of the narcotic; (4) whether the accused was under the influence of narcotics when arrested; (5) whether the accused possessed other contraband or narcotics when arrested; (6) whether the accused made incriminating statements when arrested; (7) whether the accused attempted to flee; (8) whether the accused made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia was present; (11) whether the accused 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 accused was found with a large amount of cash; and (14) whether the conduct of the accused indicated a consciousness of guilt. Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006). Additionally, a large quantity of contraband may be a factor affirmatively linking the appellant to the contraband. See Olivarez v. State, 171 S.W.3d 283, 291-92 (Tex. App.—Houston [14th Dist.] 2005, no pet.). No set formula necessitates a finding of an affirmative link sufficient to support an inference of knowing possession; affirmative links are established by the totality of the circumstances. See Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd). 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.
A. Analysis
Appellant contends that the evidence is insufficient to show that he "knowingly possessed" the contraband because he lacked exclusive possession of the residence, citing Medina v. State, 01-10-01134-CR & 01-10-01135-CR, 2011 WL 6013094 (Tex. App.—Houston [1st Dist.] Dec. 1, 2011, pet. ref'd) (mem. op., not designated for publication). But the mere fact that a defendant was not in exclusive possession of the place where the contraband was found does not mean that the evidence is insufficient to affirmatively link him to the contraband. See Evans, 202 S.W.3d at 165-66 (holding that evidence was sufficient to support appellant's conviction, despite evidence that contraband belonged to someone else). Furthermore, appellant misconstrues the Medina court's application of the affirmative links doctrine. In that case, the court did not conclude that the evidence was insufficient because the defendant lacked exclusive possession of the apartment where the contraband was found, but because there were insufficient links between the defendant and the contraband, despite evidence establishing that the defendant had a right to possess the apartment. Medina, 2011 WL 6013094, at *4-7. Although officers found mail and bills addressed to the defendant at the apartment, the court noted that the defendant was not present during the execution of the search warrant and had not been at the apartment for at least four hours prior to the search. Id. at *2, *5. In sustaining Medina's sufficiency challenge, the court focused on the fact that another person with a right to possess the residence was present at the time the officers entered, and there were no other affirmative links. Id. at *5.
Here, not only was appellant present when officers executed the search warrant, but also he was alone at the residence when officers arrived. Officers testified that appellant was the only individual seen leaving the house as they approached the residence and that no other individuals were found inside during the search. See Haggerty v. State, 429 S.W.3d 1, 6-7 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd) (stating that affirmative link existed where officers witnessed the accused leave the residence, lock the door with a key, and did not see any other individuals enter the house in the accused's absence). A reasonable factfinder could infer that the residence would have been in the same condition when officers entered as when appellant was seen running through the front door. See id.
Additionally, appellant relies on Allen v. State, 249 S.W.3d 680 (Tex. App.—Austin 2008, no pet.), to support his argument that the affirmative links presented by the State are insufficient to establish knowing possession of the contraband. In Allen, the Third Court of Appeals held that the evidence was insufficient to support the defendant's conviction for possession of cocaine because: (1) the defendant was alone in the apartment only for the hours she was babysitting the owner's child; (2) the defendant cooperated with authorities and did not attempt to flee; (3) no contraband was found on the defendant; (4) there was no evidence that the defendant used drugs; and (5) the defendant could not be linked to contraband hidden throughout the apartment without additional facts establishing she knew of and exercised control over the contraband. Id. at 694-704.
Here, the contraband was found in plain view. Officers testified that the contraband was visible upon entering the residence through the front door. See Evans, 202 S.W.3d at 163 (stating contraband in plain view provided a link between the accused and the contraband); Haggerty, 429 S.W.3d at 7 (concluding a link between defendant and contraband existed where narcotics residue was found in plain view). Furthermore, unlike the appellant in Allen, appellant attempted to flee from officers as they executed the search warrant. Officers testified that appellant ran through the front door of the residence as officers executed the search warrant, and only stopped when confronted by officers approaching the residence. See Evans, 202 S.W.3d at 162 n.12 (listing a defendant's attempt to flee as an affirmative link). Furthermore, officers found a large quantity of contraband in the residence. See Olivarez, 171 S.W.3d at 291-92 (stating a large quantity of contraband supported the inference that a defendant knew of the contraband).
Additionally, the factfinder could have concluded that appellant had the right to possess the residence. It is not required that a defendant own or live at the location where drugs are found in order for him to have a right to possess the premises if there are additional affirmative links supported by the evidence. See Triplett v. State, 292 S.W.3d 205, 210, 213-14 (Tex. App.—Amarillo 2009, pet. ref'd) (holding that evidence was sufficient to uphold conviction because the contraband was in plain view and defendant was present and in close proximity to contraband at the time the search was conducted, even though defendant's aunt owned the garage where the contraband was found); Brown v. State, 243 S.W.3d 141, 149 (Tex. App.—Eastland 2007, pet. ref'd) (holding that evidence was sufficient to uphold defendant's possession conviction, even though he did not rent or own the house, when: defendant was the only person in the home when the search was conducted; drug residue and paraphernalia were found in "open and obvious" areas; and contraband was hidden in an area in close proximity to and easily accessible by defendant).
The State argues that officer testimony and the photograph taken from appellant's phone support the inference that appellant had the right to possess the property. Officer Elkin testified that it was not uncommon for drug dealers to hire individuals to watch over the contraband in order to prevent theft. Furthermore, the photograph taken from appellant's phone suggests appellant had been to the residence on at least one other occasion prior to the day the search occurred. In the photograph, a man can be seen sitting on the couch in the living room of the residence with a shirt hanging from the ceiling in the background. At trial, officers identified the man in the photo as appellant. On the day officers executed the search warrant, a shirt with the same slogan on the front was hanging in the same position from the ceiling behind the couch. However, minor differences in the condition of some of the fixtures in the photograph, which were also in the residence the day of the search, suggest that the photograph had been taken prior to the officers' search of the residence. Additionally, the clothing appellant wore in the photograph was not the same clothing he wore on the day of the search. Because the factfinder is the sole judge of the credibility of the witnesses and weight of the evidence, the trial judge, serving as the factfinder, was free to conclude that appellant had the right to possess the residence, based on the officer's testimony and the photographic evidence. See Dobbs, 434 S.W.3d at 170 (providing that the factfinder is the sole judge of the credibility of witnesses and weight of the evidence); Taylor v. State, 106 S.W.3d 827, 832 (Tex. App.—Dallas 2003, no pet.) (stating that the factfinder had authority to evaluate the credibility of the police officers and detectives and accept police officers' and detectives' accounts as true); Jackson v. State, 05-05-01657-CR, 2006 WL 3200119 at *3 (Tex. App.—Dallas Nov. 7, 2006, pet. dism'd) (mem. op., not designated for publication) (stating that sufficient affirmative links existed to establish possession where officers testified that it was unlikely appellant would have been a casual visitor of the apartment, because visitors were not usually allowed due to the large amounts of money and weapons present).
For the foregoing reasons, we hold that the evidence is legally sufficient to support the trial court's judgment.
We overrule appellant's first issue.
II. Reformation of the Judgment
In his second issue, appellant argues that the judgment should be reformed to reflect a conviction for possession with intent to deliver. This Court has the authority to reform the trial court's judgment under certain circumstances. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). An appellate court may reform or correct a trial court judgment "to make the record speak the truth when it has the necessary data and information to do so, or make any appropriate order as the law and nature of the case may require." Nolanv. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (internal quotation omitted).
The charging instrument states that appellant did "unlawfully possess with intent to deliver a controlled substance, namely, 3,4 Methylenedioxy Methamphetamine, weighing at least four grams and less than four hundred grams by aggregate weight, including any adulterants and dilutants." Furthermore, following the bench trial, the judge stated: "I'm going to find you guilty of the offense of possession with intent to deliver a controlled substance." However, the judgment shows that appellant was convicted of "Man/Deliver of Methamphetamine 4-400 grams." Therefore, we modify the judgment to reflect appellant's conviction for "Possession with Intent to Deliver Methamphetamine 4-400 grams."
CONCLUSION
We modify the trial court's judgment and affirm the judgment as modified.
/s/ Ken Wise
Justice Panel consists of Justices Busby, Donovan, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).