Edward Dwayne Henry v. State

Opinion issued June 20, 2013.

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-12-00523-CR
———————————
EDWARD DWAYNE HENRY, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court
Harris County, Texas
Trial Court Case No. 1315578

OPINION

Appellant Edward Dwayne Henry was convicted by a jury of possession of

cocaine, more than four grams but less than two hundred grams, with intent to

deliver. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d) (West 2010).

After Henry pleaded true to a sentencing enhancement based on his prior felony
conviction for possession of a controlled substance with intent to deliver, the trial

court sentenced him to twenty-five years’ imprisonment. On appeal, Henry

challenges the legal and factual sufficiency of the evidence and the trial court’s

denial of his pretrial motion to suppress. We affirm.

Background

On August 4, 2011, officers from the Drug Enforcement Agency, including

Special Agent James Wilson, and the Houston Police Department, including

Officer Steve Bryant with the narcotics unit, Officer Mark Prendergrast with the

gang unit, and Officer Griff Maxwell, a trained canine officer, executed a search

warrant at Goodfellaz Master Barber Shop. Henry is listed as the owner of

Goodfellaz Master Barber Shop in the assumed-name records of Harris County.

The search warrant stated that Henry was suspected of possession and delivery of

cocaine and authorized the officers to search Goodfellaz Master Barber Shop and

seize any and all controlled substances, including but not limited to crack cocaine.

Upon arriving at the barbershop, Officer Bryant and other members of the

HPD set up surveillance. Officer Bryant observed Henry sitting in a black Charger

parked directly in front of the barbershop. Fifteen minutes after Officer Bryant

arrived on the scene, the rest of the DEA and HPD officers arrived to execute the

search. DEA agents parked their van in front of Henry’s vehicle and entered the

barbershop. Officer Prendergrast secured the outside area of the barbershop,

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including Henry’s vehicle. Officer Prendergrast secured Henry at the rear of his

vehicle and patted Henry down for safety reasons. During the pat down, Officer

Prendergrast discovered $7,000 in cash in Henry’s pocket. Inside Henry’s vehicle,

officers discovered a small amount of marijuana, codeine, $1,700 in cash, and a

semiautomatic pistol.

Agent Wilson and the other DEA agents entered the barbershop and

observed eight barber stations along the left side of the wall. They saw two

individuals at the third station, one individual at the fourth station, and one

individual at the eighth station. The agents detained the individuals inside the

barbershop, moved them outside, and initiated a search of the barbershop.

Maxwell and his drug-detection dog, Rex, searched the interior of the barbershop.

Rex alerted to the presence of narcotics at stations five, six, and seven. Officer

Maxwell then hid the two stacks of money found in Henry’s possession in different

places outside and had Rex search the area outside the barbershop for the presence

of narcotics. Rex alerted to the odor of narcotics in both areas.

Inside a cabinet at station five, officers discovered a Styrofoam cup that

contained crack cocaine, powder cocaine, and some money. Amanda Phillips, a

criminalist at the HPD Crime Laboratory, testified at trial that the substances found

inside the Styrofoam cup were cocaine and had a combined weight of 52.9 grams.

Officer Maxwell testified that the amount of cocaine found at station five was more

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than what would be used for personal consumption and that the cookie form of

crack would usually be cut up into smaller pieces and sold at $10 to $20 per piece.

Officer Maxwell also testified that he estimated the monetary value of the cocaine

at approximately $100 per gram.

The officers also discovered the following narcotics at other stations in the

barbershop: (1) station one—3,475 grams of codeine; (2) station six—286 grams

of codeine and 453 grams of marijuana; (3) station seven—481 grams of codeine,

11.8 grams of powder cocaine, 553 grams of marijuana, 780 hydrocodone pills,

and 120 xanax pills; and (4) station eight—511 grams of marijuana and 73 grams

of codeine. Agent Wilson testified that he checked each barber station for a

barber’s license to determine to whom the drugs belonged. Only three stations had

licenses displayed, including station five, where Henry’s barber’s license was on

display. In addition to Henry’s license, a photograph of Henry with another

individual was also found at station five.

Henry was arrested, charged with possession of cocaine with intent to

deliver, and, following a jury trial, convicted. Henry appeals.

Sufficiency of the Evidence

In his first and second points of error, Henry contends that the evidence was

insufficient to support his conviction because the evidence presented at trial failed

to establish that he knowingly possessed the cocaine. Henry argues that the State’s

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evidence, which he contends showed his mere presence near the scene, only

amounted to a suspicion of his guilt, which is insufficient to support his conviction.

A. Standard of Review

An appellate court reviews legal and factual sufficiency challenges using the

same standard of review. See Griego v. State, 337 S.W.3d 902, 902 (Tex. Crim.

App. 2011). “Under this standard, evidence is insufficient to support a conviction

if considering all record evidence in the light most favorable to the verdict, a

factfinder could not have rationally found that each essential element of the

charged offense was proven beyond a reasonable doubt.” Gonzalez v. State, 337

S.W.3d 473, 478 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)). Evidence is

insufficient under this standard in four circumstances: (1) the record contains no

evidence probative of an element of the offense; (2) the record contains a mere

“modicum” of evidence probative of an element of the offense; (3) the evidence

conclusively establishes a reasonable doubt; or (4) the acts alleged do not

constitute the criminal offense charged. Gonzalez, 337 S.W.3d at 479. The

sufficiency of the evidence is measured by the elements of the offense as defined

in a hypothetically correct jury charge, which is “one that accurately sets out the

law, is authorized by the indictment, does not unnecessarily increase the State’s

burden of proof or unnecessarily restrict the State’s theories of liability, and

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

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). If an appellate court

finds the evidence insufficient under this standard, it must reverse the judgment

and enter an order of acquittal. Gonzalez, 337 S.W.3d at 479.

An appellate court “determine[s] whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence

viewed in the light most favorable to the verdict.” Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17

(Tex. Crim. App. 2007)). When the record supports conflicting inferences, an

appellate court presumes that the factfinder resolved the conflicts in favor of the

verdict and defers to that resolution. Id. (citing Jackson, 443 U.S. at 326, 99 S. Ct.

at 2793). “An appellate court likewise defers to the factfinder’s evaluation of the

credibility of the evidence and weight to give the evidence.” Gonzalez, 337

S.W.3d at 479. A court treats direct and circumstantial evidence equally:

circumstantial evidence can be as probative as direct evidence, and circumstantial

evidence alone can be sufficient to establish guilt. Clayton, 235 S.W.3d at 778

(quoting Hooper, 214 S.W.3d at 13).

B. Applicable Law

To demonstrate possession of cocaine with intent to deliver, the State is

required to show that: (1) appellant knowingly (2) possessed (3) cocaine (4) in an

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amount greater than four but less than two hundred grams (5) with the intent to

deliver. TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d). In order to prove

unlawful possession, the State must present evidence that: (1) the accused

exercised control, management, custody, or care over the substance; and (2) the

accused knew the matter possessed was contraband. Id. § 481.002(38); Poindexter

v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005).

Possession need not be exclusive. Wiley v. State, 388 S.W.3d 807, 813 (Tex.

App.—Houston [1st Dist.] 2012, pet. ref’d). “When the accused is not in exclusive

possession of the place where the contraband is found, then additional, independent

facts and circumstances must link the defendant to the contraband in such a way

that it can reasonably be concluded that [the defendant] had knowledge of the

contraband and exercised control over it.” Kibble v. State, 340 S.W.3d 14, 18

(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d); see also Roberts v. State, 321

S.W.3d 545, 549 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). The

evidence, whether direct or circumstantial, “must establish, to the requisite level of

confidence, that the accused’s connection with the drug[s] was more than just

fortuitous.” Poindexter, 153 S.W.3d at 405–06 (quoting Brown v. State, 911

S.W.2d 744, 747 (Tex. Crim. App. 1995)). “This rule simply [states] the common-

sense notion that a person—such as a father, son, spouse, roommate, or friend—

may jointly possess property like a house but not necessarily jointly possess the

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contraband found in that house.” Id. at 406. The accused’s presence at the scene

where contraband is found is insufficient, by itself, to establish possession.

Roberts, 321 S.W.3d at 549 (citing Evans v. State, 202 S.W.3d 158, 162 (Tex.

Crim. App. 2006)). However, when combined with other direct or circumstantial

evidence, presence or proximity may be sufficient to establish the elements of

possession beyond a reasonable doubt. Id. Additionally, when narcotics are

secreted, the State must address whether the accused knew of the existence of the

secret place and its contents. Id. (citing Medina v. State, 242 S.W.3d 573, 576

(Tex. App.—Waco 2007, no pet.)).

Links that may establish knowing possession include: (1) the defendant’s

presence when a search is conducted; (2) whether the substance was in plain view;

(3) the defendant’s proximity to and the accessibility of the substance; (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 substance was found; (12) whether the place where the

substance was found was enclosed; (13) whether the defendant was found with a

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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 “number of . . . links

proven is not as important as the logical force that they collectively create.” Wiley,

388 S.W.3d at 814 (quoting Hubert v. State, 312 S.W.3d 687, 691 (Tex. App.—

Houston [1st Dist.] 2009, pet. ref’d)). “The absence of various affirmative links

does not constitute evidence of innocence to be weighed against the affirmative

links present.” Id. (quoting James v. State, 264 S.W.3d 215, 219 (Tex. App.—

Houston [1st Dist.] 2008, pet. ref’d)).

C. Analysis

Here, the evidence establishes several factors that link Henry to the cocaine

found in station five. First, Henry was present at the scene when DEA and HPD

officers arrived. Henry argues he “was not even on the premises at all when the

search warrant was executed” because he was not physically inside the barbershop

at the time. However, the evidence shows that he was sitting in his parked vehicle

directly in front of the barbershop when the first police officers arrived on the

scene to conduct surveillance, and remained there for approximately fifteen

minutes before the rest of the police officers arrived to execute the warrant.

Next, Henry owned and had the right to possess the place where the cocaine

was found. Although Henry was not in exclusive possession of the barbershop—

there were four people inside at the time the police officers executed the search

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warrant—he was the owner of the barbershop. And, Henry’s barber’s license and a

personal photograph were on display at station five, where the cocaine was found.

Henry points to the fact that his barber’s license expired in 2009 as evidence that

he did not have control over station five. However, the jury could have reasonably

concluded that station five was Henry’s workspace because the only personal

effects found at station five, even if outdated, belonged to Henry.

Finally, when he was arrested, Henry was in possession of other contraband

and a large amount of cash. After searching Henry’s vehicle, police officers found

marijuana, codeine, and a handgun. They also discovered $1,700 in Henry’s car

and $7,000 in his pocket. Furthermore, Officer Maxwell testified that after he hid

the two stacks of money found in Henry’s possession, his dog Rex alerted to the

odor of narcotics in both areas where the two stacks of money were hidden.

We conclude that this evidence establishes sufficient facts linking Henry to

the cocaine found at station five, thus showing Henry’s knowledge of and control

over the contraband. See Poindexter, 153 S.W.3d at 405. Viewing the evidence in

a light most favorable to the verdict, a rational jury could have concluded that

Henry exercised actual care, custody, control, or management over the 52.9 grams

of cocaine found at station five in the Goodfellaz Master Barber Shop. See Wiley,

388 S.W.3d at 814–15 (holding evidence sufficient where cocaine was found in

plain view in car registered to appellant and parked on public street in area known

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for narcotics activity; paperwork found in car indicated it was owned by appellant;

appellant was found with more than $2,000 cash when he was stopped by police;

and appellant made furtive gestures when police officers approached him);

Roberts, 321 S.W3d at 549–50 (holding evidence sufficient where appellant was in

sole control of vehicle when it was stopped by police; appellant’s wife testified that

she and appellant owned vehicle together; appellant told police officer he would

take possession charge when cocaine was found in jacket belonging to wife; and

appellant was carrying large amount of cash when arrested); Evans, 202 S.W.3d at

166 (holding evidence was sufficient to support jury’s finding that appellant

knowingly possessed cocaine where evidence showed appellant was present and

alone in house where drugs were found; he was sitting on couch and drugs were in

plain view on table in front of him when police entered; he immediately knew why

police were at house; he received mail at that house; and he was found with $160

cash in his pockets, even though he was apparently unemployed). We hold that

there was sufficient evidence to support Henry’s conviction. 1

1
Henry does not expressly challenge the sufficiency of the evidence of his intent to
deliver. To the extent that his arguments on appeal can be construed as challenges
to both the knowing possession of the cocaine and the intent to deliver elements of
his conviction, we note that the intent to deliver can be determined by looking at a
variety of factors, including the quantity of drugs the defendant possessed; the
manner of packaging of the drugs; and whether the defendant possessed a large
amount of cash in addition to the drugs. See Kibble, 340 S.W.3d at 18–19. Here,
Officer Bryant testified that, when the police officers conducted a search of station
five, they discovered a Styrofoam cup in the cabinet, which contained a crack
cocaine cookie, crack rocks, powder cocaine, and two twenty-dollar bills. Officer
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 We overrule Henry’s first and second points of error.

Denial of Motion to Suppress

In his third point of error, Henry argues that the trial court erred by denying

his motion to suppress the evidence obtained by a “sniff test” conducted by a drug-

detection dog. Relying on two recent Florida Supreme Court cases, which have

since been reviewed and decided by the United States Supreme Court, Henry

contends that the sniff test conducted by the drug dog was an illegal and unlawful

search and, therefore, the contraband discovered as a result of this search should

have been suppressed. See Florida v. Harris, 568 U.S. ___, 133 S. Ct. 1050

(2013); Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409 (2013). We conclude

neither case supports Henry’s contention on appeal.

In Harris, the Supreme Court considered “how a court should determine if

the ‘alert’ of a drug-detection dog during a traffic stop provides probable cause to

search a vehicle” without a warrant. Harris, 568 U.S. at ___, 133 S. Ct. at 1053.

After Harris challenged the reliability of the drug-detection dog, the Florida

Supreme Court held that the officer in that case lacked probable cause to search

Maxwell testified that the amount of cocaine found in the Styrofoam cup in station
five, 52.9 grams, was a larger amount than would be typical for personal use. He
further testified that the fact that the crack rocks and powder cocaine were
separated into individual bags and the crack cookie was whole rather than broken
up into smaller pieces indicated that the drugs were for sale and not for personal
use. Finally, Henry was arrested with $7,000 on his person and $1,700 in his
vehicle. We conclude that the evidence was sufficient to establish that he
knowingly possessed the cocaine found at station five with the intent to deliver.
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Harris’s vehicle because “the fact that the dog has been trained and certified is

simply not enough to establish probable cause.” Id. at ___, 133 S. Ct. at 1055

(citing Harris v. State, 71 So. 3d 756, 767 (Fla. 2011)). The Florida Supreme

Court held that the State was required to produce a wider array of evidence, such

as “an exhaustive set of records, including a log of the dog’s performance in the

field, to establish the dog’s reliability.” Id. at ___, 133 S. Ct. at 1053 (citing

Harris, 71 So. 3d at 775).

The Supreme Court disagreed and reversed, holding that this standard was

inconsistent with the “flexible, common-sense standard” of probable cause. Id.

The Court explained that the better measure of a dog’s reliability comes from

controlled testing environments and, therefore, “evidence of a dog’s satisfactory

performance in a certification or training program can itself provide sufficient

reason to trust his alert . . . [and] provides probable cause to search.” Id. at ___,

133 S. Ct. at 1057. The Court concluded that a probable-cause hearing considering

the reliability of the dog’s alert should proceed like any other:

If the State has produced proof from controlled settings that a dog
performs reliably in detecting drugs, and the defendant has not
contested that showing, then the court should find probable cause. If,
in contrast, the defendant has challenged the State’s case (by disputing
the reliability of the dog overall or of a particular alert), then the court
should weigh the competing evidence. In all events, the court should
not prescribe, as the Florida Supreme Court did, an inflexible set of
evidentiary requirements. The question—similar to every inquiry into
probable cause—is whether all the facts surrounding a dog’s alert,
viewed through the lens of common sense, would make a reasonably
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 prudent person think that a search would reveal contraband or
evidence of a crime.

Id. at ___, 133 S. Ct. at 1058. Therefore, because training records established the

drug-detection dog’s reliability in detecting drugs and Harris failed to undermine

that showing, the Court determined that the officer had probable cause to search

Harris’s truck. Id. at ___, 133 S. Ct. at 1059.

In Jardines, the Supreme Court considered “whether using a drug-sniffing

dog on a homeowner’s porch to investigate the contents of the home is a ‘search’

within the meaning of the Fourth Amendment.” Jardines, 569 U.S. at ___, 133 S.

Ct. at 1412. After police officers received a tip that marijuana was being grown in

Jardines’s home, they set up a surveillance team to watch it. Id. When police

officers realized Jardines was not home, Detective Bartlet, a trained canine

handler, arrived on scene with his drug-sniffing dog and approached Jardines’s

front porch. Id. His dog began energetically exploring the front porch and, “[a]fter

sniffing the base of the front door, the dog sat, which is the trained behavior upon

discovering the odor’s strongest point.” Id. Based on this positive alert for

narcotics, police officers sought and obtained a search warrant for the residence.

Id. The Florida Supreme Court held that “the use of the trained narcotics dog to

investigate Jardines’ home was a Fourth Amendment search unsupported by

probable cause, rendering invalid the warrant based upon information gathered in

that search.” Id. The Supreme Court affirmed, holding that the government’s use
14
of trained police dogs to investigate the home and its immediate surroundings was

an unlicensed physical intrusion that amounted to a search within the meaning of

the Fourth Amendment. Id. at ___, 133 S. Ct. at 1417–18.

We find both Harris and Jardines inapplicable to the instant case. Henry’s

argument that these cases are controlling overlooks one important fact; here, the

search was conducted pursuant to a search warrant, the validity of which Henry

does not challenge. In Harris and Jardines, by contrast, officers used a drug-

detection dog either to establish probable cause to search a vehicle without a

warrant or to develop probable cause to obtain a warrant. Henry does not provide

this court with citation to any authority, or any argument for that matter, to support

the idea that the use of a drug-detection dog during the execution of a search

warrant for narcotics is constitutionally unreasonable or unlawful.2 Because the

cases relied upon by Henry involve the reasonableness of the use of a drug-

detection dog during a warrantless search, we conclude that he has failed to

establish that the trial court erred by denying his motion to suppress based on the

use of a drug-detection dog during a search for narcotics pursuant to a warrant.

Accordingly, we overrule Henry’s third point of error.

2
In fact, we note that this court previously has held that the presence of a drug-
detection dog during the execution of a search warrant for counterfeit merchandise
at an apparel store did not exceed the scope of the warrant and render the search
illegal. See Amir v. State, No. 01-99-00640-CR, 2002 WL 58571, at *4–5 (Tex.
App.—Houston [1st Dist.] Jan. 17, 2002, pet ref’d).
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 Conclusion

We affirm the judgment of the trial court.

Rebeca Huddle
Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Publish. TEX. R. APP. P. 47.2(b).

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