Opinion
NUMBER 13-17-00363-CR
02-14-2019
JARRETT LEON DAVENPORT SR., Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Hinojosa
Memorandum Opinion by Justice Longoria
Appellant Jarrett Leon Davenport Sr. appeals from a judgment convicting him of one count of unlawful possession of a controlled substance in penalty group one, between one and four grams of methamphetamine, a third-degree felony, see TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (c) (West, Westlaw through 2017 1st C.S.), and one count of unlawful possession of a controlled substance in penalty group one, less than one gram of cocaine, a state-jail felony. See id. § 481.115 (a), (b). Appellant was found to be a repeat offender for count one and a habitual felony offender for count two, and his punishments were enhanced. See TEX. PENAL CODE ANN. §§ 12.42(d), 12.425 (West, Westlaw through 2017 1st C.S.). The trial court assessed appellant's punishment at forty-five years' imprisonment for count one and twenty-years' imprisonment for count two, to be served concurrently in the Texas Department of Criminal Justice Institutional Division. In two issues, appellant complains that: (1) there is insufficient evidence to corroborate the testimony of the accomplice witness; and (2) there is insufficient evidence to convict appellant for unlawful possession of methamphetamine. We affirm.
I. BACKGROUND
Appellant was indicted on two counts of manufacture-delivery of a substance in penalty group one, count one being between one and four grams of methamphetamine and count two being less than one gram of cocaine. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(c), (b) (West, Westlaw through 2017 1st C.S.). Before trial, the State abandoned the manufacture-delivery charges for both counts and elected to go forward on the lesser included offenses of possession for both counts. As part of a plea agreement, Ashley Gonzales, an accomplice, agreed to testify against appellant. Appellant was convicted on both counts.
A. Jonathan De La Rosa's Testimony
Officer Jonathan De La Rosa of the Victoria Police Department testified that in the early morning hours of March 8, 2016, he stopped appellant's vehicle due to an expired vehicle registration. Appellant was traveling with a passenger, who was identified as Ashley Gonzales. As part of his standard procedure to identify the vehicle occupants, Officer De La Rosa ran Gonzales's information through his computer system to identify her and determine whether there were any outstanding warrants. Gonzales's check came back with an active warrant and Officer De La Rosa arrested her. Appellant was given a warning and was allowed to leave the scene at that time.
Officer De La Rosa transported Gonzales to the Victoria County Jail where Gonzales was taken in by the detention officers for processing. Officer De La Rosa was then informed by Deputy Bernice Hulsey of the Victoria County Sheriff's Office that contraband had been located on Gonzales. Officer De La Rosa took possession of the contraband and testified that it was a white powdery substance confirmed to be cocaine, pills confirmed to be methamphetamine, and drug paraphernalia in the form of a glass pipe.
B. Bernice Hulsey's Testimony
Victoria County Sheriff's Deputy Bernice Hulsey testified that she was the detention officer who "in-processed" Gonzales. When Gonzales was given a jail uniform to change into, Hulsey noticed something protruding from Gonzales' t-shirt. Deputy Hulsey testified that the protrusion was a glass pipe. Deputy Hulsey explained that the glass pipe is considered contraband and indicated to her that Gonzales may have additional contraband on her person. Deputy Hulsey then strip-searched Gonzales to determine if there was additional contraband. During the search, Deputy Hulsey located "two bags of multicolored pills and a little baggie of white powder" that Gonzales had hidden in her vagina. Once the examination was complete, Deputy Hulsey turned the seized contraband over to Officer De La Rosa.
C. Ashley Gonzales's Testimony
Gonzales testified that she and appellant had previously been in a relationship. On March 8, 2016, Gonzales was traveling in the passenger's seat with appellant driving when they were stopped by Victoria Police for a traffic violation. She testified that as they were being pulled over, appellant tossed a bag of cocaine at her and she hid it for him in her pants. She knew it was cocaine because prior to being pulled over, she and appellant had gone to someone's house so that appellant could buy cocaine. She stated appellant went into the house and got the cocaine while she waited in the car. From there, they were driving home when they were stopped by the police.
Gonzales also testified that appellant told her that he had pills in a bag in the backseat. She said she took his words to mean to grab the pills and hide those as well, since she was already hiding the cocaine for him, but she explained that he never directly told her to do so. Gonzales testified that she knew that appellant had "been selling X pills" which were methamphetamine because she had gone to Houston with him to buy the pills before and was aware that he had bought pills on other occasions without her. She further stated that she knew he was selling the pills because he had told her and because she witnessed it herself. Gonzales identified State's exhibits 18 and 21 as the pills and cocaine that were found on her on March 8, 2016. She also identified State's exhibit 19 as a glass pipe she used for taking drugs; she explained that the glass pipe was hers.
Gonzales admitted that she has battled with drug addiction for years. She also testified about her prior arrest in 2011 for possession of cocaine, marijuana, and drug paraphernalia. The circumstances of her prior arrest began with a traffic stop, during which she was found to be without a license. There was cocaine found in her car. During the search of her person at the jail, marijuana was located in Gonzales' bra and a crack pipe was located in her vaginal area. Gonzales was also arrested in 2014 for drug possession. As a result of that arrest, her prior probation was revoked, and she was sent to the Texas Department of Criminal Justice-Institutional Division. She was released on parole in 2015.
Gonzales testified that she agreed to testify in the case against appellant as part of her guilty plea in which she received five years' probation for the charges stemming from the March 8, 2016 arrest. At the time of her arrest, she was on parole which was subsequently revoked as a result of her guilty plea. Gonzales testified that she did not know that she would have her parole revoked as a result of the guilty plea and felt that she did not get a fair deal.
Gonzales testified that she contacted appellant from the jail by telephone. The State admitted the recorded telephone conversation between Gonzales and appellant without objection. The recorded conversation, in part, was played for the jury. Gonzales testified about the conversation and said that when appellant asked her on the call if she told "them it was [her] dope," she said that she told "them" it was hers. During their conversation, Gonzales asked appellant how many pills and "how much powder" there was, and appellant responded that there was "a 20." Gonzales explained that "a 20" was referring to an amount of cocaine; she further confirmed it was the amount found on her.
In the recorded call, appellant stated that he had personally weighed "the powder." Appellant also refers to a little bag that Gonzales took from his bag in the backseat, which Gonzales testified was the bag of methamphetamine pills. On the recording, appellant says that he told Gonzales not to touch the bag in the backseat, but she grabbed it anyway because she was already hiding the cocaine. On the recording, appellant also suggests that he believed Gonzales was going to hide the drugs in her purse, but she testified that he did not tell her where to hide them. Gonzales and appellant also discussed the fact that she hid the drugs in her vagina and that the glass pipe was poking out of her bra.
D. Other Witnesses' Testimony
Tracy Marbach of the Victoria County Sheriff's Office also testified. She is tasked with responsibility for the jail inmate phone call recording system at the Victoria County Jail. She explained that each inmate has an assigned PIN number for making phone calls. By using that number, she is able to access the calls made by a particular inmate. Marbach confirmed that the recorded call played for the jury, State's exhibit three, was an accurate reflection of the contents of the recorded call placed by Gonzales from the jail on March 8, 2016. Marbach also testified that the inmate calls are often used in criminal proceedings.
The State also called Erik Orozco to testify. Orozco works for the Weslaco crime lab for the Texas Department of Public Safety. His duties consist of analyzing for the presence or absence of controlled substances. He testified that he tested the drugs located on Gonzales and determined that the pills contained methamphetamine with caffeine and the white powder was positive for the presence of cocaine. E. Jury Charge, Verdict, and Judgment
The jury charge instructed the jury that Gonzales was an accomplice as a matter of law. The jury was also instructed that it could not find appellant guilty unless it first believed Gonzales's testimony and then found that Gonzales's testimony was corroborated by other evidence tending to connect the appellant with the offense charged; explaining that the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the appellant with its commission. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (West, Westlaw through 2017 1st C.S.).
The jury found appellant guilty of unlawful possession of a controlled substance in penalty group one in an amount more than one gram but less than four grams, TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (c), and unlawful possession of a controlled substance in penalty group one in an amount less than one gram. See id. § 481.115(a), (b). The trial court assessed punishment at forty-five years and twenty years, for each respective conviction. It signed a judgment in accordance with the jury's verdict and its assessment of punishment. This appeal followed.
II. DISCUSSION
A. Corroboration of Accomplice-Witness Testimony
By appellant's first issue, he argues that the State failed to present sufficient non-accomplice corroborating evidence to connect him to the possession charges.
1. Standard of Review and Applicable Law
Article 38.14 of the Texas Code of Criminal Procedure sets out that a conviction cannot stand on an accomplice witness's testimony unless that testimony is sufficiently corroborated by other evidence tending to connect the defendant to the offense. See TEX. CODE CRIM. PROC. ANN. art. 38.14. The corroborative evidence need not be sufficient in itself to establish guilt, nor must it directly link the accused to the commission of the offense. Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008) (citing Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997)). Corroborating evidence may be direct or circumstantial. See Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011).
An accomplice is someone who participates with the defendant before, during, or after the commission of a crime and acts with the required culpable mental state. Brown, 270 S.W.3d at 567; Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004) (citing TEX. PENAL CODE ANN. § 7.02(a) (West, Westlaw through 2017 1st C.S.)). Here, Gonzales provided the accomplice testimony. Thus, for the conviction to rest upon her testimony, "there must simply be some non-accomplice evidence which tends to connect appellant to the commission of the offense alleged in the indictment." Brown, 270 S.W.3d at 567 (internal quotations omitted) (emphasis in original); McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (en banc).
To determine the sufficiency of the corroboration, we eliminate the testimony of the accomplice and examine the remaining portions of the record to see if there is any evidence that tends to connect the accused to the commission of the offense. Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007); Medrano v. State, 421 S.W.3d 869, 883 (Tex. App.—Dallas 2014, pet. ref'd). We look at the particular facts and circumstances of each case and consider the combined force of all the non-accomplice evidence that tends to connect the accused to the offense. Smith, 332 S.W.3d al 442; Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). There is no set amount of non-accomplice corroboration evidence that is required for sufficiency purposes, but rather each case must be judged on its own facts. Malone, 253 S.W.3d at 257 (citing Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994)); see also Cantelon v State, 85 S.W.3d 547, 461 (Tex. App.—Austin 2002, no pet.) (explaining that the "tends to connect" standard is not a high standard). We view the evidence in the light most favorable to the jury's verdict. Brown, 270 S.W.3d at 567.
2. Analysis
As presented to the jury, there was a recorded phone call between appellant and Gonzales when she was an inmate in the Victoria County Jail. During that call Gonzales asked appellant "how much powder" there was, and appellant replied, "it was just a twenty," and further said that it weighed "right at .4 or something, I know because I weighed it." When discussing the pills, appellant acknowledged that Gonzales took a little bag out of his bag and said that he told her to leave it there. Appellant further goes on to say, "I know you did it for me." Appellant also stated how he believed that Gonzales was going to stash the drugs in her purse, but he admits he was looking in his rearview mirror at the police; he then said he saw her putting the drugs in her pants.
Appellant argues that the recorded call between Gonzales and appellant cannot be considered; we disagree. The testimony which needs corroboration is that which is "adduced 'through live witnesses speaking under oath or affirmation in presence of tribunal.'" See Bingham v. State, 913, S.W.2d 208, 210 (Tex. Crim. App. 1995). The court in Bingham explained that the legislature did not regard out-of-court statements made by accomplices "with the same degree of suspicion as it did an accomplice witness who testifies in court." Id. at 211. The court held that the court of appeals "was mistaken to conclude that the trial court should have given an instruction to the jury that [an accomplice's] out-of-court statement must be corroborated before the jury could rely on it for conviction," and that "the court of appeals erred to hold that the trial court should have instructed the jury that accomplice witnesses cannot corroborate one another . . . [b]ecause [the non-testifying accomplice] did not give 'testimony' within the meaning of Article 38.14." Id. at 213. Therefore, the out-of-court call placed by Gonzales to appellant from the Victoria County jail does not constitute accomplice witness testimony within the meaning of Article 38.14. Id. Instead, it is evidence which may be considered in the Article 38.14 corroboration analysis.
Our court of criminal appeals has held that "under most circumstances, an admission or confession will be sufficient to corroborate the accomplice-witness testimony." Brown, 270 S.W.3d at 568; Jackson v. State, 516 S.W.2d 167, 171 (Tex. Crim. App. 1974) (stating "[i]t is well established that [a defendant's] admission or confession, under most circumstances, will be sufficient to corroborate the accomplice witness"); see also Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim. App. 2007) (stating that a defendant's "admission that he participated in the crime, although he denied being a shooter, is enough to tend to connect him to the offense"). Here, we have appellant discussing how he weighed the drugs himself, how Gonzales took the drugs out of his bag, and how he "know[s] [she] did it for [him]." After considering the combined force of all the non-accomplice evidence, we hold that evidence tends to connect appellant to the offenses for which he was convicted. See TEX. CODE CRIM. PROC. ANN. art. 38.14; Jackson, 516 S.W.2d at 171. We overrule appellant's first issue.
B. Insufficient Evidence
By his second issue, appellant contends that the evidence was legally insufficient to support his conviction for possession of methamphetamine.
1. Standard of Review and Applicable Law
We review the sufficiency of the evidence in the light most favorable to the verdict and then determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Acosta v. State, 429 S.W.3d 621, 624-25 (Tex. Crim. App. 2014); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury is the sole judge of witness credibility and the weight to be attached to witness testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981). When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and we defer to that determination. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014). Moreover, direct and circumstantial evidence are equally probative. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). Not every fact presented must directly indicate that the defendant is guilty, so long as the cumulative force of the evidence is sufficient to support a finding of guilt. Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015).
A conviction for possession of a controlled substance is supported only when the evidence establishes that the defendant "knowingly or intentionally possesse[d]" the alleged controlled substance. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a). "A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist." TEX. PENAL CODE ANN. § 6.03(b) (West, Westlaw through 2017 1st C.S.). The mere presence of the accused at the place where contraband is located does not make him a party to joint possession, even if he knows of the contraband's existence. Jenkins v. State, 76 S.W.3d 709, 712 (Tex. App.—Corpus Christi 2002, pet. ref'd). Proof of possession requires evidence that the accused exercised "actual care, custody, control, or management" over the substance. See TEX. HEALTH & SAFETY CODE ANN. § 481.002(38) (West, Westlaw through 2017 1st C.S.). Thus, the State must prove the accused (1) "exercised control, management, or care over the substance" and (2) knew that the substance "possessed" was contraband. See Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988) (en banc).
When the accused is not in exclusive control of the place where the contraband is found, the State must establish care, custody, control, or management by linking the accused to the substance through additional facts and circumstances. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) (quoting Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981)). Be it direct or circumstantial, the State's evidence of links must establish, "to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous." See id. at 405-06 (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995) (en banc)); Park v. State, 8 S.W.3d 351, 352-53 (Tex. App.—Amarillo 1999, no pet.). In other words, the evidence must affirmatively connect the accused to the contraband in such a manner and to such a degree that a reasonable inference may arise that the accused knew of the contraband's existence and that he exercised control over it. See Travis v. State, 638 S.W.2d 502, 503 (Tex. Crim. App. [Panel Op.] 1982).
The several factors by which an accused may, under the unique circumstances of each case, be sufficiently "linked" to the contraband, include the following considerations: (1) the defendant's presence when a search is conducted; (2) whether the contraband is in plain view; (3) the defendant's proximity to and the accessibility of the contraband; (4) whether the defendant was under the influence of contraband when arrested; (5) whether the defendant possessed other contraband or narcotics connecting himself to the contraband; (6) whether the defendant made incriminating statements connecting himself to the contraband; (7) whether the defendant made furtive gestures; (8) whether there was an odor of contraband; (9) whether other contraband or drug paraphernalia were present; (10) whether the defendant owned or had the right to possess the place where the contraband was found; (11) whether the place where the contraband was found was enclosed; (12) whether the defendant was found with a large amount of cash; (13) whether the conduct of the defendant indicated a consciousness of guilt, including whether the accused attempted to flee; and (14) whether occupants of the premises gave conflicting statements about relevant matters. See Evans, 202 S.W.3d at 162 n. 12; Jenkins, 76 S.W.3d at 712-13. These factors, however, are simply factors which may circumstantially establish the sufficiency of evidence offered to prove a knowing "possession." See Evans, 202 S.W.3d at 162 n. 12 (explaining that these factors "are not a litmus test"). It is not the number of links that is dispositive; rather, it is the logical force of all the evidence. See id. at 162.
2. Analysis
Here, as with the corroborated accomplice testimony, we have appellant's statements on the audio recording and Gonzales's testimony relating to the methamphetamine. There is also testimony from Officer De La Rosa that based on his experience, it is not uncommon for drug offenders to "pass their drugs off to a female." The jurors heard testimony from Gonzales that appellant had previously purchased methamphetamine pills on other occasions and that Gonzales had seen appellant sell methamphetamine before. Furthermore, they heard the corroborated testimony that Gonzales retrieved the pills from appellant's bag in the backseat of the vehicle, which was driven by appellant. Appellant's own statements on the recording tend to corroborate the testimony of Gonzales that Gonzales retrieved the bag of pills from appellant's bag. On the audio recording, appellant and Gonzales discuss the contraband specifically as "powder" and "pills" and appellant discusses how he thought that Gonzales was going to hide the contraband in her purse. From the jurors' verdict, it is clear that they chose to believe the testimony of Gonzales. See Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (stating that "the reviewing court is required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony").
Through these additional facts and circumstances, the State presented evidence from which the jury could have rationally found that appellant (1) "exercised control, management, or care over the substance" and (2) knew that the substance "possessed" was contraband. See Evans, 202 S.W.3d at 161. In contrast, appellant directs our attention to a number of factors he believes do not link him to the methamphetamine. He argues that there was no evidence that Officer De La Rosa believed appellant had any contraband in his possession, appellant did not attempt to flee, and appellant did not appear to be under the influence of narcotics. However, the "absence of various affirmative links does not constitute evidence of innocence to be weighed against the affirmative links present." Jones v. State, 466 S.W.3d 252, 260 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd) (quoting James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd)). Similarly, although appellant directs the Court's attention to the fact that the contraband was located on or in Gonzales' person, the fact that Gonzales also knew of and possessed the methamphetamine is not a bar to appellant's conviction. See Cole v. State, 194 S.W.3d 538, 548 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) ("The State need not prove exclusive possession of the contraband for conviction."). Accordingly, having found the evidence was sufficient for a jury to rationally conclude that appellant knowingly or intentionally possessed the methamphetamine, we overrule appellant's second issue.
III. CONCLUSION
The judgment of the trial court is affirmed.
NORA L. LONGORIA
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 14th day of February, 2019.