Opinion issued August 27, 2013.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00719-CR
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PRESTON WAYNE LEE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 23rd Judicial District Court
Brazoria County, Texas
Trial Court Case No. 67269
MEMORANDUM OPINION
A jury convicted Preston Wayne Lee of possession of methamphetamine in
an amount of more than one, but less than four, grams. The jury assessed
punishment at three years in prison. See TEX. HEALTH & SAFETY CODE ANN.
§§ 481.102(6), 481.115 (West 2010). The State moved to stack Lee’s prison
sentence with a five-year term from a conviction that the trial court imposed before
the trial of this cause. On appeal, Lee contends that (1) the evidence is insufficient
to support Lee’s conviction for possession of methamphetamine; (2) the trial court
erred in denying Lee’s motion to suppress evidence obtained from a search
warrant; and (3) the trial court erred in granting the State’s motion to stack
sentences. Finding no error, we affirm.
Background
Oyster Creek Police Department Officer R. Gonzalez received several
complaints from Lee’s neighbors about heavy traffic at Lee’s home. Officer
Gonzalez conducted surveillance of the home and sent a confidential informant to
attempt to buy methamphetamine at the home.
The informant successfully purchased methamphetamine from Lee’s
girlfriend, Kira Campbell, who also resided at the home. Officer Gonzalez filed an
affidavit and secured a warrant to search the home. The affidavit identified
Campbell as the individual suspected of possession of a controlled substance, and
named both Campbell and Lee as suspects.
When Officer Gonzalez arrived at the residence, he found Lee and Campbell
at home. Officer Gonzalez informed them of the warrant and read them their
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Miranda warnings. A female officer searched Campbell and found two plastic
sandwich bags containing methamphetamine in her right front pocket. Officer
Gonzalez then questioned Lee, who told him that the rest of the methamphetamine
was in the bedroom. They headed for the bedroom, where Lee pointed Officer
Gonzalez toward several zippered pouches that contained methamphetamine, as
well as a safe that Lee identified as belonging to him. Lee removed the key for the
safe from his key ring and handed it to Officer Gonzalez. Officer Gonzalez opened
the safe and found various drug paraphernalia, including a shot glass that contained
methamphetamine residue. The police did not discover any narcotics on Lee’s
person.
In all, the officers collected five plastic bags of methamphetamine from the
house. The drug paraphernalia they collected included a pipe, a scale, a butane
lighter, a playing card, and hypodermic syringes—all of which were consistent
with methamphetamine use. Field tests revealed that the bags contained
methamphetamine. Later lab tests confirmed those results. The bags’ contents
amounted to a total of 2.9655 grams of methamphetamine. One bag weighed
2.3918 grams, and the remaining bags weighed less than 0.3 grams each.
Lee testified in his own defense. He admitted that he transported Campbell
to Lake Jackson to purchase the methamphetamine found at the residence. Lee also
admitted that he had used methamphetamine, supplied by Campbell, in the week
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before the search. Lee’s brother also testified that Lee knowingly kept drugs in the
house even though his teenage children lived with him.
In January 2010, Lee pleaded guilty to driving while intoxicated, and
received seven years’ probation. The State later moved to revoke Lee’s probation.
Lee pleaded true to violating some terms of his probation, but not to this drug
possession charge. The trial court revoked his probation and assessed punishment
at five years’ imprisonment.
Discussion
I. Motion to Suppress
Lee claims that the trial court erred in denying his motion to suppress the
evidence obtained through executing the search warrant, contending that Officer
Gonzalez’s affidavit does not provide probable cause to support the search warrant.
Specifically, Lee contends that the affidavit does not identify evidence that
supports Gonzalez’s statement that the confidential informant was credible and
reliable, and observes that the informant purchased narcotics only from Campbell
and not from Lee.
A. Standard of Review
We apply a bifurcated standard of review, deferring to the trial court’s
determination of historical facts, while reviewing de novo the court’s application
of the law. See Dyar v. State, 125 S.W.3d 460, 462 (Tex. Crim. App. 2003). In a
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hearing on a motion to suppress, the trial court is the sole trier of fact and judge of
the credibility of the witnesses and the weight to be given to their testimony. State
v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Foster v. State, 101 S.W.3d
490, 495 (Tex. App.—Houston [1st Dist.] 2002, no pet.).
In determining whether an affidavit contains probable cause to support the
issuance of a search warrant, the trial court is constrained to the four corners of the
affidavit; it does not make credibility determinations. State v. McLain, 337 S.W.3d
268, 271 (Tex. Crim. App. 2011). We apply a deferential standard of review to the
decision to issue a warrant, because the constitution prefers for searches to be
conducted pursuant to a warrant, as opposed to a warrantless search. Swearingen v.
State, 143 S.W.3d 808, 810–1l (Tex. Crim. App. 2004) (citing Illinois v. Gates,
462 U.S. 213, 234–37, 103 S. Ct. 2317, 2330–32 (1983)). If the trial court has a
substantial basis for concluding that probable cause exists, we should uphold its
probable cause determination. Gates, 462 U.S. at 236, 103 S. Ct. at 2331.
The facts set forth in an affidavit filed in support of the issuance of a search
warrant must show a fair probability that the search will result in discovery of the
suspected contraband on the premises. State v. Duarte, 389 S.W.3d 349, 354 (Tex.
Crim. App. 2012). Information about a controlled purchase in an affidavit can
support a reasonable inference that additional drugs are present at the location,
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even if the informant fails to see them. See State v. Griggs, 352 S.W.3d 297, 303–
04 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d)
B. Analysis
Lee challenges Officer Gonzalez’s reliance on a confidential informant as
support for a search warrant. Officer Gonzalez received a tip that
methamphetamine had been sold out of Lee’s residence and that Campbell was
involved. He received this information from an informant who had provided true
information in previous investigations. An informant’s history of providing reliable
information can support a police officer’s conclusion that the informant is reliable.
See Capistran, 759 S.W.2d at 128; Blake, 125 S.W.3d at 726.
Lee responds that no evidence demonstrates that the informant had provided
information in the past that had resulted in any convictions. This contention
conflates reliable information with convictable information. See Blake, 125 S.W.3d
at 726. Information or evidence can be true, even if the information does not lead
to a conviction. See id.
In addition, the affidavit states that the informant bought methamphetamine
from Campbell on more than one occasion, while officers watched the residence.
The controlled purchases, coupled with the facts set forth in the search warrant,
show a fair probability that a search would result in the discovery of contraband on
the suspected premises. See Duarte, 389 S.W.3d at 354. Because sufficient
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probable cause exists to support the search warrant, we hold that the trial court did
not err in denying Lee’s motion to suppress.
II. Sufficiency of the Evidence
Lee maintains that insufficient evidence exists to support his conviction for
possession of methamphetamine in an amount of more than one, but less than four
grams.
A. Standard of Review
We review legal and factual sufficiency challenges using the same standard
of review. Ervin v. State, 331 S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.]
2010, pet. ref’d). Under this standard, evidence is insufficient to support a
conviction if, considering all the record evidence in the light most favorable to the
verdict, no rational factfinder could have found that each essential element of the
charged offense was proven beyond a reasonable doubt. See Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); In re Winship, 397 U.S. 358, 361,
90 S. Ct. 1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.
App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Viewed in the light most favorable to the verdict, the evidence is insufficient under
this standard in two circumstances: (1) the record contains no evidence, or merely
a “modicum” of evidence, probative of an element of the offense; or (2) the
evidence conclusively establishes a reasonable doubt. See Jackson, 443 U.S. at
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314, 318 n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; Laster, 275 S.W.3d at 518;
Williams, 235 S.W.3d at 750. Additionally, the evidence is insufficient as a matter
of law if the acts alleged do not constitute the criminal offense charged. Williams,
235 S.W.3d at 750.
An appellate court considers the combined and cumulative force of all the
evidence, viewed in the light most favorable to the verdict, to determine whether
the necessary inferences have a reasonable basis in the evidence. Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Hooper v. State, 214 S.W.3d
9, 16–17 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence can be
sufficient to establish guilt. Id. We presume that the factfinder resolved any
conflicting inferences in favor of the verdict and defer to that resolution. See
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.
B. Possession of a controlled substance
Lee challenges the jury’s findings that he exercised control, management, or
care over the substance; he contends that Campbell possessed the
methamphetamine weighing between one and four grams.
In prosecuting a defendant for possession of a controlled substance, the State
must prove that (1) the accused exercised control, management, or care over the
substance; and (2) the accused knew the substance possessed was contraband.
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Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); see TEX. HEALTH &
SAFETY CODE ANN. § 481.115 (West 2010). A defendant’s presence at the location
where drugs are found is not enough to establish that the defendant had care,
custody, or control of the drugs. Evans, 202 S.W.3d at 161–62. But the State need
not prove that the defendant had exclusive possession; joint possession is enough
to establish the defendant’s actual care, custody, or control of the drugs.
McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1987); Hubert v.
State, 312 S.W.3d 687, 691–92 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).
For either joint or sole possession, the State must prove, however, that a link exists
between the defendant and the drugs. Id. Evidence of an affirmative link may
include:
(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.
Evans, 202 S.W.3d at 162 n.12. The logical force of all of the evidence, rather than
the number of links, is dispositive to show possession. Id. at 162.
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C. Analysis
Several pieces of evidence link Lee to the methamphetamine found in his
home, demonstrating that his presence when the police discovered the drugs was
more than fortuitous. See id. at 161–62. Lee voluntarily showed Officer Gonzalez
the methamphetamine and drug paraphernalia in the bedroom safe. Lee admitted
that had he used methamphetamine a week before execution of the search warrant,
and that he drove Campbell to purchase more methamphetamine in Lake Jackson.
Lee’s brother testified that Lee knowingly kept drugs in the house while his
children were present. Lee was the legal resident of the home where the drugs were
found. Also, drug paraphernalia was present at the scene, and Lee possessed the
key to the safe.
Lee contends that the officer failed to separate the bags containing
methamphetamine in the safe from those found on Campbell’s person, and the
record shows that one bag was disproportionately heavier than the other four bags.
However, a rational factfinder could have concluded that Lee jointly possessed the
methamphetamine in the house, including the methamphetamine on Campbell’s
person. Lee’s admission that he had used methamphetamine within the past week,
that Campbell supplied the methamphetamine, and that he drove Campbell to
purchase drugs is enough to support the inference that the methamphetamine was
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within his care, custody, and control and that he knew she had the drug on her
person. See id.
Viewed in favor of the jury verdict, we hold that sufficient evidence supports
the jury’s finding that Lee knowingly possessed between one and four grams of
methamphetamine.
III. Motion to Run Sentences Consecutively
Finally, Lee contends that the trial court erred in granting the State’s motion
to stack sentences because the State failed to provide evidence of Lee’s earlier
conviction for felony driving while intoxicated.
A. Standard of Review
Texas statute confers the discretion to cumulate sentences to the trial courts.
See TEX. CODE. CRIM. PROC. ANN. art. 42.08 (West 2006). Like the assessment of
an individual punishment, a trial court’s decision to cumulate under article 42.08(a)
is “a normative, discretionary function that does not turn on discrete findings of
fact.” Barrow v. State, 207 S.W.3d 377, 380 (Tex. Crim. App. 2006). If a trial
court’s lawfully exercises the option to cumulate, that decision is unassailable on
appeal. Id. at 381. But when a trial court unlawfully orders cumulation in a case
that did not involve a negotiated plea agreement, the appellate court should reform
the judgment by deleting the order. Beedy v. State, 250 S.W.3d 107, 110 (Tex.
Crim. App. 2008).
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B. Proof to support cumulation
To support a motion to stack sentences, the State must provide both evidence
of an earlier conviction and evidence that the defendant’s identity is the same as
the person previously convicted. Barela v. State, 180 S.W.3d 145, 148 (Tex. Crim.
App. 2005). A trial court must be aware of a defendant’s prior conviction before it
exercises its discretion to cumulate. Miller v. State, 33 S.W.3d 257, 260 (Tex.
Crim. App. 2000). The State may establish these facts in a variety of ways, such as
through live testimony, admissions, and oral stipulations. Montgomery v. State, 876
S.W.2d 414, 416 (Tex. App.—Austin 1994, pet. ref’d) (per curiam); see also
Mungaray v. State, 188 S.W.3d 178, 183 (Tex. Crim. App. 2006) (holding that
admissions by appellant and her lawyer and undisputed admissions by the State
was enough evidence to connect appellant to prior conviction and support a trial
court’s cumulation order).
C. Analysis
Lee testified during trial that he had a prior DWI conviction, for which he
was placed on probation in February 2010. The State proffered a certified copy of
the DWI judgment, the felony supervision order, and the criminal court docket
entries to corroborate this testimony. Lee further testified that his probation was
revoked before trial in this case, and that, at the revocation proceeding, the trial
court assessed his punishment at five years’ imprisonment. Although the criminal
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court docket entry does not contain the date that the court assessed Lee’s
punishment, Lee’s testimony demonstrates that the DWI sentence preceded the
imposition of his three-year sentence for possession of a controlled substance.
Moreover, Lee’s trial counsel reminded the trial court that it had presided over
Lee’s revocation proceeding earlier in the week and had imposed the five-year
sentence. See Mungaray, 188 S.W.3d at 183. Because the record contains
sufficient evidence of Lee’s prior conviction, we hold that the trial court did not err
in granting the State’s motion to stack sentences.
Jane Bland
Justice
Panel consists of Justices Keyes, Higley, and Bland.
Do not publish. TEX. R. APP. P. 47.2(b).
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