Opinion
Nos. 07-19-00426-CR
08-03-2020
TRESHON STOKES, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 364th District Court Lubbock County, Texas
Trial Court No. 2016-409,596, Honorable William R. Eichman, II, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Treshon Stokes appeals his conviction for possessing, with intent to deliver, from four to 200 grams of a controlled substance, namely cocaine. His sole issue concerns the sufficiency of the evidence underlying his conviction. In his view, "[t]he evidence is insufficient to prove that [he] exercised care, control or possession over cocaine found on the floor, or in the pockets of other people arrested in the home." We affirm.
The evidentiary record developed at trial contains the following. Appellant and five other males were arrested within a "trap house," that is, a house from which controlled substances are sold. This house had a history, according to a SWAT team member who helped effectuate the arrests. Moreover, it was under surveillance shortly before the arrests were made. Those surveilling it saw activity indicative of drug trafficking, described that activity to the jury, and conducted a traffic stop based on that activity. The stop resulted in law enforcement being told that a "heavyset black male" in the house sold them drugs. This information was used to secure another search warrant permitting the arrest of an occupant described as 5'8" and 240 lbs. Upon execution of the warrant, six people were found within the house. Of the six, only one was found to be "heavyset," and that person was appellant. The others were "not heavyset," as their pictures confirmed. Furthermore, appellant was found in a back bedroom with two other individuals. On his person was 3.93 grams of cocaine. Another 5.33 grams along with $385 lay on the floor of the same room. Neither of the two other individuals had drugs on his person, though one carried $240.
Of the remaining three persons arrested in the house, one was in another bedroom with over three grams of an untested substance and $165 on his person. Another was in the kitchen and found with $200 and less than a gram of a grassy looking substance. The third was in the living room with over 5 grams of cocaine on his person and $199 nearby.
A small table was also found in the living room. Atop it was 5.73 grams of cocaine, two parcels weighing less than .2 grams each of a green leafy substance, and several blue beverage bottles labelled "Big Blue." No firearms were recovered from the raid, though.
None of the occupants owned the house. Yet, the utilities were in the name of the person arrested in the living room, Kmydron. He and appellant grew up together and considered themselves brothers. Moreover, both were in a rap video, parts of which were admitted into evidence. That video became a focal point of the State's evidence.
Though its admission was the subject of debate and aspects of it were redacted, we have not been asked to address its admissibility.
Entitled "Juice in da City," its lyrics described drug manufacturing and selling, according to a State's law enforcement witness. See "Juice In Da City" Remix - Big Homie Zoe Ft. Tee Savage & K Lee (Official Music Video), YOUTUBE, https://www.youtube.com/watch?v=Vi0Q5ZlrYNY (last visited July 10, 2020). Reference can be heard therein to the neighborhood in which the aforementioned arrests occurred. The State's witness, who had been deemed as "an expert on drugs," labelled the video as an instance of "self-snitching." Appellant is the lead rapper and can be seen holding a blue beverage bottle like that found atop the table during the raid. He raps about how he and his long-time friends have been involved with drugs for years and that they are not "rookies." Though many people can be seen in the video, five of the six people arrested were also in it, including Kymdron. The group, according to the same witness, comprised appellant's "crew."
Another video featuring rap by appellant was also mentioned at trial. It was about cooking and selling crack cocaine in the same neighborhood, according to the law enforcement drug expert. Appellant can also be heard rapping that the song is not merely a rap but what he actually does. See ParkWay Tee x Lil DMann - In My Trapp Prod. By Jay Bunkin, YOUTUBE, https://www.youtube.com/watch?v=pZbAYsbHELg (last visited July 10, 2020).
Other evidence consists of pages taken from appellant's Facebook account. One shot shows him and another individual within a room standing next to a table. Atop the table is a money counter. Sizeable quantities of money rest 1) in the counter, 2) on the table, 3) in appellant's hand, and 4) in a large cooking pot. A different page from his account shows him holding a large quantity of money in front of his face.
To secure appellant's conviction at bar, the State was obligated to prove beyond a reasonable doubt that he knowingly possessed with intent to deliver a controlled substance, namely, cocaine, in an amount of four grams or more but less than 200 grams. Benson v. State, No. 07-10-00468-CR, 2011 Tex. App. LEXIS 7758, at *6 (Tex. App.—Amarillo Sept. 28, 2011, pet. ref'd) (mem. op., not designated for publication). Furthermore, establishing possession requires evidence that he 1) exercised actual care, custody, control, or management over the substance and 2) knew the matter possessed was contraband. Id. It is not enough that the accused's link to the substance was fortuitous when others may be connected to it, though. And in assessing actual possession as opposed to mere fortuity, we consider multiple indicia. Id. at *6-7. These indicia include, but are not restricted to: 1) appellant's presence when the drugs were found; 2) whether the contraband was in plain view; 3) his proximity to the contraband; 4) his being under the influence of narcotics when arrested; 5) his possession of other contraband when arrested; 6) his utterance of incriminating statements; 7) his attempt to flee; 8) his undertaking of furtive gestures; 9) the presence of an odor emitted by the contraband; 10) appellant's ownership of or entitlement to be at the locale where the drugs were found; 11) the amount of contraband found; 13) appellant's possession of weapons; and 14) his possession of a large amount of cash. Id. "It is not the number of [indicia] present that is important but the logical force of these factors which determines whether the State's evidence links appellant to the contraband." Id.
Considering those indicia and comparing them to the evidence discussed above, we find them sufficient to establish the requisite nexus between appellant and at least the cocaine found within the bedroom in which he was arrested. Again, he had slightly under four grams on his person. Another five were in close proximity to him, in plain view on the floor. Also laying on the floor and accessible to appellant was a large sum of money. So too had a heavyset individual recently sold drugs from the house, and appellant was the only occupant matching that description. Facebook shots also revealed him next to a money counter, which drug traffickers often utilize in conducting business, and large sums of money. And, while appellant may not have owned or rented the house whereat he was found, Kymdron paid its utilities. At the very least, that suggests Kymdron was a legitimate tenant, and being a long-time friend of and fellow rap singer with Kymdron, appellant too was free to be on the premises at the time of the arrest. Jurors were also allowed to consider in the equation his rap songs wherein he portrayed himself as a person involved in the illicit drug trade and assured listeners "this isn't just a rap, boy" but actuality.
It is not the number of indicia present but their logical force which is determinative. The logical force from the foregoing enabled a rational jury to infer, beyond reasonable doubt, that appellant exercised care, custody or control of the cocaine within the bedroom while knowing what it was. See Acosta v. State, 429 S.W.3d 621, 624-25 (Tex. Crim. App. 2014) (stating that we view the evidence in the light most favorable to the verdict to decide whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt). So, we reject appellant's argument that the evidence was insufficient to prove, beyond reasonable doubt, that he possessed at least 4 grams of cocaine, if not more.
We overrule appellant's sole issue and affirm the trial court's judgment.
Per Curiam Do not publish.