Juan Manuel Ramos v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NOS. 2-07-118-CR
2-07-119-CR

JUAN MANUEL RAMOS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

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MEMORANDUM OPINION 1

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I. INTRODUCTION

Appellant Juan Manuel Ramos appeals his convictions for possession of

a controlled substance and possession of a firearm by a felon. In four issues,

Ramos challenges the legal and factual sufficiency of the evidence to support

both of his convictions. We will affirm.

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See T EX. R. A PP. P. 47.4.
 II. F ACTUAL B ACKGROUND

Detective Moi Tran, a narcotics detective with the Carrollton Police

Department, received intelligence from a school resource officer. The school

resource officer said that someone he knew had gone to a house located at

1826 Kensington Drive in Carrollton and had observed an illegal tattoo parlor

operating in the garage, that a peephole existed from the garage to the outside,

and that drugs were present in the garage. Detective Tran also received

intelligence regarding weapons at the location.

Following up on this information, Detective Tran and other officers

conducted surveillance of the house. The officers noted that most of the

activity at the house occurred late at night. One night, Detective Tran drove

by the house, obtained the license plate numbers of the vehicles parked at the

house, and ran them to see whom the vehicles were registered to. Detective

Tran also researched real estate records to determine who owned the house.

She also performed “trash runs” to ascertain whose name was on the mail

received at the house.2

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Detective Tran testified that once people put trash beside the curb, it is
considered abandoned property. A “trash run” occurs when an officer
confiscates trash placed for pick up in front of a particular house and examines
the contents of the trash.

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 As a result of three trash runs that Detective Tran performed at the

house, she found illegal substances and evidence of narcotics use.3 Based on

the evidence discovered in her trash runs, Detective Tran obtained a search

warrant for the house.

On August 3, 2006, Detective Tran went to execute the no-knock

warrant at the house. She was accompanied by the SWAT team, an

operational support unit working patrol, and a K-9 unit. As the group

approached the house, officers observed a car leaving the house and stopped

it. The driver of the car was Ramos’s wife, Latonya; her younger brother or a

relative was with her in the car. Latonya told the officers that she lived with

Ramos at the house.

The SWAT team entered the house through the front door, using a

breaching ram and throwing multiple flash-bang grenades into the house.

Officers found Ramos and two children in the house.

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During Detective Tran’s trash run on July 17, 2006, she found a green
leafy substance that tested positive for marijuana, some drawings of tattoos,
and a clear plastic baggie with a blue plastic straw in it. During Detective
Tran’s trash run on July 24, 2006, she found green leafy stems and seeds that
tested positive for marijuana, a burnt joint, a cigarette, and some pictures.
During Detective Tran’s trash run on July 31, 2006, she found personal papers
and mail in the name of Latonya Montoya and Christine Laparo (though no
testimony at trial explained the latter individual’s connection to the house) and
a plastic baggie that contained a white powdery residue that tested positive for
cocaine.

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 When Detective Tran came into the house, she saw that the officers had

Ramos seated in the living room. Because she was assigned as the primary

narcotics agent, she was responsible for doing a walk-through of the residence

to determine the layout of the house, to determine whether there were any

weapons that were exposed or that had been missed by the SWAT team, to

determine whether there were any substances in plain view, and to determine

where everyone was situated so that she could assign an agent to search each

room.

During the search of the house, a K-9 unit alerted on the water heater

closet in the garage near Ramos’s tattoo workstation, and inside the closet

officers found a dusty baggie of cocaine. In that same water heater closet,

officers also found a red straw, which signified to Detective Tran that “they’re

snorting cocaine.” Testing revealed that the net weight of the contents in the

baggie was 0.01 grams and that the substance contained in the baggie was

cocaine. However, no viable fingerprints were obtained from the baggie.

Detective Tran and Officer Sanchez, the K-9 handler, had begun searching

the master bedroom closet for narcotics when Detective Tran was called

outside. W hen Detective Tran returned, Officer Sanchez notified her that he

had located an SKS assault rifle in the master bedroom closet, which was

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shared by Ramos and his wife. No viable fingerprints were obtained from the

rifle.

The only fingerprints that the State entered into evidence were those

contained in Ramos’s pen packet and those taken by Investigator Jack

Grassman on the day of the trial. Grassman compared the two sets of

fingerprints and found that they matched, concluding that Ramos was the same

person who had been convicted of the felony offense in the pen

packet—unlawful possession of a controlled substance, to-wit, cocaine in June

2001.

At the conclusion of the evidence, the jury found Ramos guilty of the

offense of possession of a controlled substance and guilty of the offense of

possession of a firearm by a felon. The jury assessed punishment at 180 days’

confinement for the offense of possession of a controlled substance and at five

years’ confinement for the offense of possession of a firearm by a felon. The

trial court sentenced Ramos in accordance with the jury’s recommendations.

This appeal followed.

III. S UFFICIENCY S TANDARDS OF R EVIEW

A. Legal Sufficiency

In reviewing the legal sufficiency of the evidence to support a conviction,

we view all the evidence in the light most favorable to the prosecution in order

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to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the

sole judge of the weight and credibility of the evidence. See T EX. C ODE C RIM.

P ROC. A NN. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919

(Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute

our judgment for that of the fact-finder. Dewberry v. State, 4 S.W .3d 735,

740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead, we

“determine whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light

most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.

Crim. App. 2007). We must presume that the fact-finder resolved any

conflicting inferences in favor of the prosecution and defer to that resolution.

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.

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 The sufficiency of the evidence should be measured by the elements of

the offense as defined by the hypothetically correct jury charge for the case.

Malik v. State, 953 S.W .2d 234, 240 (Tex. Crim. App. 1997); Bowden v.

State, 166 S.W.3d 466, 470 (Tex. App.—Fort Worth 2005, pet. ref’d). Such

a charge would be one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily restrict the State’s theories of liability, and

adequately describes the particular offense for which the defendant was tried.

Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001); Malik, 953

S.W.2d at 240. The law as authorized by the indictment means the statutory

elements of the charged offense as modified by the charging instrument. See

Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).

The standard of review is the same for direct and circumstantial evidence

cases. Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13.

B. Factual Sufficiency

When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.

State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the fact-finder’s determination is clearly wrong and

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manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the fact-finder’s determination is

manifestly unjust. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23

S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,

we must determine, with some objective basis in the record, that the great

weight and preponderance of all the evidence, though legally sufficient,

contradicts the verdict. Watson, 204 S.W.3d at 417.

In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence. Id. We may not simply substitute our judgment for the fact-

finder’s. Johnson, 23 S.W .3d at 12; Cain v. State, 958 S.W.2d 404, 407

(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result

is appropriate, we must defer to the jury’s determination of the weight to be

given contradictory testimonial evidence because resolution of the conflict

“often turns on an evaluation of credibility and demeanor, and those jurors were

in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.

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Thus, we must give due deference to the fact-finder’s determinations,

“particularly those determinations concerning the weight and credibility of the

evidence.” Id. at 9. An opinion addressing factual sufficiency must include a

discussion of the most important and relevant evidence that supports the

appellant’s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.

Crim. App. 2003).

IV. S UFFICIENCY OF E VIDENCE TO S UPPORT C ONVICTION F OR
P OSSESSION OF C ONTROLLED S UBSTANCE

In his first and second issues, Ramos argues that the evidence is legally

and factually insufficient to support the jury’s finding that he possessed the

cocaine found in the water heater closet in the garage because the State failed

to link it to him. Specifically, Ramos contends that the State failed to establish

that he had exclusive control over the garage where the baggie of cocaine

residue was found or that he knew that the package contained cocaine or even

of its presence in the water heater closet.

The State charged Ramos with “possess[ion of] a controlled substance,

to-wit: cocaine, in an amount of less than one (1) gram by aggregate weight

including any adulterants or dilutants.” 4 See T EX. H EALTH & S AFETY C ODE A NN.

4
Possession is punishable as a third-degree felony if the amount of the
controlled substance is less than one gram. T EX. H EALTH & S AFETY C ODE A NN.
§ 481.115(b) (Vernon 2003).

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§ 481.115(a) (Vernon 2003). To prove possession of a controlled substance,

the State had to prove that Ramos (1) exercised actual care, custody, control,

or management over the contraband and (2) that he knew the matter possessed

was contraband. See id. §§ 481.002(38), 481.115(a); Deshong v. State, 625

S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981); Taylor v. State, 106

S.W.3d 827, 830 (Tex. App.—Dallas 2003, no pet.).

The State does not have to prove that the accused had exclusive

possession of the contraband; joint possession is sufficient to sustain a

conviction. See Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986).

When there is no evidence that the appellant was in exclusive control of the

place where the contraband was found, however, the State must offer

additional, independent facts and circumstances that “link” the accused to the

contraband. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App.

2005); Deshong, 625 S.W.2d at 329; see also Evans v. State, 202 S.W.3d

158, 161 n.9 (Tex. Crim. App. 2006) (“We have used that term ‘affirmative

links,’ but we recognize that ‘affirmative’ adds nothing to the plain meaning of

‘link.’ Henceforth, we will use only ‘link’ so that it is clear that evidence of

drug possession is judged by the same standard as all other evidence.”). The

links between Ramos and the contraband must be established by either direct

or circumstantial evidence. See Poindexter, 153 S.W.3d at 406.

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 No formula of facts exists to dictate a finding of links sufficient to support

an inference of knowing possession. See Taylor, 106 S.W.3d at 830. It is the

logical force of the evidence, and not the number of links, that supports a fact-

finder’s verdict. See Evans, 202 S.W.3d at 166. Possible links include but are

not limited to the following: (1) whether the defendant was present when the

drugs were found; (2) whether the drugs were in plain view; (3) the defendant’s

proximity to and the accessibility of the drugs; (4) whether the defendant was

under the influence of drugs when arrested; (5) whether the defendant

possessed other contraband or drugs when arrested; (6) whether the defendant

made any 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 drugs; (10) whether other contraband or other drug

paraphernalia was present; (11) whether the defendant owned or had the right

to possess the place where the drugs were found; (12) whether the place 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. Id. at 162 n.12.

In this case, the dusty baggie of cocaine residue that the K-9 unit alerted

to was found after Detective Tran had performed three consecutive trash runs

at 1826 Kensington Drive that confirmed what intelligence had reported—that

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an illegal tattoo parlor was being operated and that there were drugs present.

Although the testimony at trial did not establish exactly where Ramos was

found in the house when the search warrant was executed, it did establish that

he was the only adult in the house when the drugs were found. Inside the

same water heater closet, near the baggie with cocaine residue, officers located

a plastic straw that they believed to be for use in snorting cocaine. A business

card for the tattoo parlor advertised that Monolo Montoya, a/k/a Manny 5

operated the tattoo parlor located in the house’s garage. Latonya told Detective

Tran that the substances found belonged to Ramos. The enclosed water heater

closet was close to and accessible from the work area Ramos occupied in the

garage tattoo parlor.

Detective Tran testified, however, that she did not see anything on

Ramos’s tattoo work table in the garage that would indicate narcotics use and

that she was told that there were no fingerprints on the baggie.

Although this evidence satisfies less than the full series of indicia listed

above, viewing the evidence in a favorable or neutral light, the foregoing

evidence is sufficient to enable a rational fact-finder to link Ramos—who had

a prior conviction for possession of cocaine—to the cocaine found in the water

5
The record reflects that Ramos used the alias Monolo Montoya, a/k/a
Manny.

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heater closet in his garage tattoo parlor. See Poindexter, 153 S.W.3d at 405,

411-12 (concluding that appellant exercised care, custody, control, and

management over the contraband and that appellant knew the substance

possessed was contraband because there was no evidence that would support

a conclusion that appellant was an innocent bystander to someone else’s drug

operations within his own home where officers found cocaine hidden in ceiling

of master bedroom’s linen closet—a secret place that was accessible to

appellant as a resident but not to a casual visitor). We hold that evidence is

legally and factually sufficient to link Ramos to the cocaine residue. See

Poindexter, 153 S.W.3d at 405, 412; Berrum v. State, No. 11-01-00011-CR,

2002 WL 32341848, at *2-3 (Tex. App.—Eastland Jan. 10, 2002, no pet.)

(not designated for publication) (holding that evidence was legally and factually

sufficient to link appellant to cocaine that was found in a closet underneath the

stairs, which was conveniently accessible to appellant); Thompson v. State,

No. 07-99-00403-CR, 2000 WL 987303, at *1-2 (Tex. App.—Amarillo July

18, 2000, no pet.) (not designated for publication) (holding that, although

evidence satisfied less than the full series of indicia, evidence was legally

sufficient to link appellant to cocaine found in a space heater in hall closet);

Matthews v. State, No. 01-97-01348-CR, 1999 WL 233510, at *4-5 (Tex.

App.—Houston [1st Dist.] Apr. 22, 1999, pet. ref’d) (not designated for

13
publication) (holding that evidence was legally and factually sufficient to

support jury’s finding that appellant was guilty of possession of cocaine that

was found in bedroom closet that appellant shared with his wife). Cf. Pierce

v. State, No. 03-06-00492-CR, 2007 WL 4269796, at *15-16 (Tex.

App.—Austin Dec. 5, 2007, no pet.) (mem. op.) (not designated for publication)

(holding that evidence was legally insufficient to connect appellant to

methamphetamine lab at house because evidence revealed that appellant had

moved and was no longer living at residence where lab was found). We

overrule Ramos’s first and second issues.

V. S UFFICIENCY OF E VIDENCE TO S UPPORT C ONVICTION F OR
P OSSESSION OF A F IREARM BY A F ELON

In his third and fourth issues, Ramos argues that the evidence is legally

and factually insufficient to support the jury’s finding that he possessed the

firearm that officers found in the master bedroom closet. Specifically, Ramos

contends that there was no evidence that he exercised actual care, control, or

custody of the firearm and that there is no evidence from which the jury could

have determined that he was aware that the firearm was in his closet.

Texas Penal Code section 46.04 provides that a person who has been

convicted of a felony commits an offense if he possesses a firearm after the

conviction and before the fifth anniversary of the person’s release from

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confinement. T EX. P ENAL C ODE A NN . § 46.04 (Vernon Supp. 2007). Ramos

does not challenge the evidence introduced by the State showing that he was

previously convicted of the felony of unlawful possession of cocaine within the

past five years. Instead, he argues only that he did not possess the firearm that

officers found. Our analysis will therefore focus on this narrow argument.

Possession is defined by the penal code as “actual care, custody, control,

or management.” T EX. P ENAL C ODE A NN. § 1.07(a)(39) (Vernon Supp. 2007).

When there is no evidence that the appellant was in exclusive control of the

place where the firearm was found, the State must offer additional,

independent facts and circumstances that link him to the firearm. Smith v.

State, 176 S.W.3d 907, 916 (Tex. App.—Dallas 2005, pet. ref’d). The links

between Ramos and the firearm may be established by either direct or

circumstantial evidence. See Poindexter, 153 S.W.3d at 406. In determining

whether sufficient links exist, we examine the same factors we looked to in

connection with Ramos’s first and second issues, such as whether the firearm

was in plain view, whether Ramos owned the premises where the firearm was

found, whether he was in close proximity to the firearm and had ready access

to it or whether it was found on him, whether he attempted to flee, whether his

conduct indicated a consciousness of guilt, whether he had a special

connection to the firearm, whether the firearm was found in an enclosed space,

15
and whether he made incriminating statements. Smith, 176 S.W.3d at 916.

It is the logical force of the factors, not the number of factors present, that

determines whether the elements of the offense have been established. Id.

As mentioned above, while Ramos was detained in the living room,

Detective Tran and Officer Sanchez had begun searching the master bedroom

closet for narcotics when Detective Tran was called outside. Officer Sanchez

thereafter located an SKS assault rifle with no bullets in it and pointed it out to

Detective Tran when she came back inside the house. The evidence did not

reveal the exact location within the master bedroom closet where the rifle was

found, and no viable fingerprints were found on the rifle. Officers noted that

the master bedroom closet contained mail addressed to Latonya as well as

pictures of and mail addressed to Ramos and that there was female clothing on

one side and male clothing on the other side of the closet. 6 Based on these

findings, Detective Tran testified that she believed that Latonya and Ramos

shared the closet. Pictures admitted into evidence showed that the closet was

neat and tidy.

6
Although it was never independently established that the men’s clothing
in the master bedroom closet where the rifle was found was Ramos’s clothing,
there was no suggestion that any other male lived at the house or shared a
closet with Latonya, who had admitted that Ramos was her husband; thus, it
was at least “a” reasonable inference that it was Ramos’s clothing and that he
lived there. See Evans, 202 S.W.3d at 165.

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 Viewed in the light most favorable to the verdict, a rational trier of fact

could have found from the foregoing evidence that Ramos possessed the

firearm that officers discovered in the master bedroom closet, which Ramos

shared with his wife. The pictures of the well-organized master bedroom closet

indicated that it would be difficult to conceal an SKS assault rifle from someone

who presumably went into the closet every day to retrieve clothes and shoes.

Viewing all the evidence in a neutral light, the evidence that Ramos shared the

closet with his wife and that there were no viable fingerprints on the rifle

slightly controverts the evidence of guilt but is not so weak that the fact-

finder’s determination is clearly wrong and unjust. We therefore hold that the

evidence is legally and factually sufficient to prove that Ramos knew of,

exercised control over, and therefore possessed the rifle. See Smith v. State,

No. 12-06-00021-CR, 2007 WL 2178541, at *3 (Tex. App.—Tyler July 31,

2007, no pet.) (mem. op.) (not designated for publication) (holding that

evidence was legally and factually sufficient to support conviction for unlawful

possession of firearm when pistol was found in plain view in linen closet next

to bedroom where appellant slept); Austin v. State, Nos. 14-00-01389-CR, 14-

00-01390-CR, 2002 WL 370045, at *3 (Tex. App.—Houston [14th Dist.] Mar.

7, 2002, no pet.) (not designated for publication) (holding that evidence was

legally and factually sufficient to support conviction for unlawful possession of

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firearm that officers found in bedroom closet because closet contained mail

addressed to appellant); Holland v. State, Nos. 05-99-00821-CR, 05-99-00822-

CR, 2002 WL 115582, at *7 (Tex. App.—Dallas Jan. 30, 2002, pet. ref’d) (not

designated for publication) (holding that evidence was legally sufficient to

support conviction for unlawful possession of firearm that officers found in back

center closet that was accessible to appellant). We overrule Ramos’s third and

fourth issues.

VI. C ONCLUSION

Having overruled all of Ramos’s issues, we affirm the trial court’s

judgment.

SUE WALKER
JUSTICE

PANEL A: CAYCE, C.J.; HOLMAN and WALKER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: March 6, 2008

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