NUMBERS 13-13-00607-CR and 13-13-00608-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
COLE CANYON LOCKHART, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 424th District Court
of Llano County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Perkes
Memorandum Opinion by Justice Benavides
By three issues on appeal, appellant Cole Lockhart asserts that (1) the trial court
erred in denying his motion to suppress evidence obtained from a search warrant; (2) the
trial court erred in denying his request for a jury instruction under article 38.23 of the
Texas Code of Criminal Procedure; and (3) the evidence is insufficient to sustain his
conviction for possession of methamphetamines. We affirm.
I. BACKGROUND1
On April 5, 2012, Sheriff Bill Blackburn received a tip that an individual by the
name of Allen Stone had purchased methamphetamines from Lockhart, and Stone
subsequently died. Acting on a tip, Llano County Sheriff Investigator Mark Burke,
Deputy John Gillespie along with his canine partner Chack, Lieutenant Brad Evans, and
Sheriff Bill Blackburn approached a travel trailer occupied by Lockhart located on the
premises of Long’s Fishing Camp2 in Llano County. The record shows that Sheriff
Blackburn had previously spoken to Lockhart over the telephone regarding the
investigation.
Investigator Burke testified that upon arriving at the travel trailer, his eyes, nose,
and throat began to burn from an “ammonia” or “cat-urine type odor,” and that based
upon his training as a narcotics investigator, such a smell is “normally associated” with
the manufacture of methamphetamines. Deputy Gillespie also experienced a similar
reaction. Deputy Gillespie’s canine, Chack, performed a “free air sniff” of the exterior
front door of the travel trailer, and Chack alerted Deputy Gillepsie of a positive alert of
narcotics.
Lockhart spoke with the sheriff’s investigators outside of the trailer. The
Investigators asked Lockhart for his consent to search the travel trailer, but Lockhart
refused. After Lockhart refused, Investigator Burke inspected a 55-gallon drum
1 This appeal was transferred from the Third Court of Appeals pursuant to a docket equalization
order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
Ch. 46, 2015 R.S.).
2 Long’s Fishing Camp was described as a “recreation area that’s frequented by lots of people from
lots of different areas.”
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trashcan located in the front of the travel trailer. Inside of the trashcan, Investigator
Burke found: (1) an empty container of Good Sense Iodine, which he testified is used in
the manufacture of drugs; (2) coffee filters, which he testified is used in the manufacture
of drugs to “filter substances out from other substances”; and (3) Wal-Finate, a cold
tablet which contains pseudoephedrine, a common ingredient used in the manufacture of
drugs. Investigator Burke testified that the iodine, coffee filters, and cold tablets were
found together inside of a discarded Chicken Express bag located inside of the trashcan.
Using the information gathered at the scene, Investigator Burke subsequently
applied for and received a warrant to search the travel trailer. After executing the
search warrant on the travel trailer, investigators found, among other things: (1) a Marlin
.22-caliber rifle; (2) a tool bag with chemicals in it; (3) glass pipes typically used for
smoking methamphetamines; and (3) a substance weighing 0.27 grams that tested
positive for methamphetamines.
The State indicted Lockhart for: (1) unlawful possession of a firearm by a felon, a
third-degree felony, see TEX. PENAL CODE ANN. § 46.04 (West, Westlaw through Ch. 46,
2015 R.S.), enhanced by a prior felony conviction 3, see id. § 12.42(a) (West, Westlaw
through Ch. 46, 2015 R.S.); and (2) possession of methamphetamine, a substance listed
in Penalty Group 1, in an amount of less than one gram, a state-jail felony. See TEX.
HEALTH & SAFETY CODE ANN. § 481.115(b) (West, Westlaw through Ch. 46, 2015 R.S.).
Lockhart pleaded not guilty and was tried before a jury on guilt-innocence, as well as on
punishment. The jury found Lockhart guilty as charged for both offenses4 and assessed
3 At trial, Lockhart stipulated to his prior conviction for manufacture of a controlled substance, a
first-degree felony. See TEX. PENAL CODE ANN. § 481.112(a), (d) (West, Westlaw through Ch. 46, 2015
R.S.).
4 Appellate cause number 13-13-00607-CR is assigned to the unlawful possession of a firearm
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punishment at ten years and one day imprisonment with the Texas Department of
Criminal Justice—Institutional Division (TDCJ-ID) for the unlawful possession of a
firearm by a felon conviction and two years’ confinement with TDCJ-ID for the
possession of methamphetamine conviction, both sentences to run concurrently.
This appeal followed.
II. MOTION TO SUPPRESS
By his first issue, Lockhart contends that the trial court erred by denying his
motion to suppress the evidence seized from the travel trailer.
A. Standard of Review
In reviewing a trial court’s ruling on a motion to suppress, we must view the
evidence in the light most favorable to the trial court’s ruling. Johnson v. State, 414
S.W.3d 184, 192 (Tex. Crim. App. 2013); State v. Garcia-Cantu, 253 S.W.3d 236, 241
(Tex. Crim. App. 2008). Motions to suppress are reviewed pursuant to a bifurcated
standard under which the trial judge’s determinations of historical facts and mixed
questions of law and fact that rely on credibility are granted almost total deference when
supported by the record. Johnson, 414 S.W.3d at 192. But when mixed questions of
law and fact do not depend on the evaluation of credibility and demeanor, we review the
trial judge’s ruling de novo. Id. (citing State v. Kerwick, 393 S.W.3d 270, 273 (Tex.
Crim. App. 2013); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).
B. Discussion
Lockhart bases his suppression argument solely on the grounds that the sheriff’s
conviction, and appellate cause number 13-13-00608-CR is assigned to the possession of
methamphetamine conviction.
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investigators conducted an unlawful search upon his property prior to obtaining the
warrant. Relying heavily on Florida v. Jardines, 133 S.Ct. 1409 (2013), Lockhart argues
that the sheriff’s investigators entered his property with the intent to search his premises
in violation of the Fourth Amendment. See id. at 1417. Stated another way, the
question before us is whether the sheriff’s investigators’ conduct in this case was an
objectively reasonable search. The answer to this question depends upon whether the
officers had an implied license to enter the area outside of Lockhart’s travel trailer, which
in turn depends upon the purpose for which they entered. See id. As noted in
Jardines, “a police officer not armed with a warrant may approach a home and knock,
precisely because that is no more than any private citizen might do.” Id. at 1416 (citing
Kentucky v. King, 131 S.Ct. 1849, 1862 (2011)) (internal quotation).
In this case, the trial court’s findings of fact shed some light on this inquiry. The
trial court made the following relevant findings:
2. ‘On April 5, 2012, an individual named Amanda Robinson reported
to Llano County Sheriff’s Office that Cole Lockhart . . . [was] cooking
methamphetamine at the subject property. Amanda Robinson
reported that she witnessed her friend, Allen Stone, purchase
methamphetamine from the Defendant and Amanda Meager at the
subject property on April 4, 2012.
3. On April 5, 2012 [Lockhart] contacted Llano County Sheriff . . .
Blackburn by telephone regarding the death of Allen Stone which
had occurred on April 5, 2012.
4. On April 5, 2012, at 10:45 p.m., Llano County Sheriff . . . Blackburn,
together with other deputies, went to the subject property to speak
with [Lockhart]. On arrival, [Lockhart] was not present. Sheriff
Blackburn contacted [Lockhart] by cell phone and asked [Lockhart]
to return to the subject property to talk. [Lockhart] arrived at the
subject property approximately 10 minutes later.
5. [Lockhart] spoke with Sheriff Blackburn about the death of Allen
Stone and about how [Lockhart] knew of individuals that were
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selling narcotics to Allen Stone.
6. On arrival at the subject property at 11:30 p.m. Deputy John
Gillespie detected a “cat urine” odor coming from the subject
property causing his eyes, nose, and upper throat to burn slightly.
Deputy Gillespie experienced the same symptoms and reaction on
September 2, 2011, when deputies had located precursor chemicals
and a finished batch of methamphetamine (later confirmed to
contain methamphetamine by the DPS laboratory).
....
10. When confronted with the information received by Amanda
Robinson[,] [Lockhart] denied cooking or selling methamphetamine.
At approximately 11:55 p.m. [Lockhart] declined to give consent to
search the subject property stating that he did not occupy the travel
trailer.
11. The owner of Long’s Fish[ing] Camp and the travel trailer . . . told
Sheriff Blackburn that [Lockhart] was the occupant of the travel
trailer and had occupied the travel trailer for several days.
This record shows that Sheriff Blackburn and his deputies approached Lockhart’s
trailer with the purpose of investigating Stone’s death and the dealing of drugs to Stone,
and not to conduct a search of Lockhart’s trailer. Upon his arrival at the trailer, Lockhart
did not consent to the deputies’ request to search the travel trailer, but did not ask the
officers to leave either. Furthermore, Lockhart voluntarily spoke with Sheriff Blackburn
about Stone’s death and about individuals who may have sold drugs to Stone. Viewing
this evidence in the light most favorable to the trial court’s ruling, we conclude that the
sheriff’s investigators conducted an objectively reasonable search and did not enter
Lockhart’s property with the initial intent to search. Thus, the facts in this case are
factually distinguishable from Jardines. Accordingly, the trial court did not err in denying
Lockhart’s motion to suppress. See id. at 1416–17. Lockhart’s first issue is overruled.
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III. ARTICLE 38.23 INSTRUCTION
By his second issue, Lockhart asserts that the trial court reversibly erred by
denying his request for a jury instruction under article 38.23 of the code of criminal
procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West, Westlaw through Ch. 46,
2015 R.S.).
A. Standard of Review
Our first duty in analyzing a jury-charge issue is to decide whether error exists.
Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If we find error, we then
analyze that error for harm. Id. Preservation of charge error does not become an
issue until we assess harm. Id. (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex.
Crim. App. 2003)).
In assessing harm we first examine whether the defendant objected to the
erroneous charge. Id. If the defendant did not object, “then he must show that the
error was ‘fundamental’ and that he suffered ‘egregious harm.’” Reeves v. State, 420
S.W.3d 812, 816 (Tex. Crim. App. 2013) (quoting Almanza v. State, 686 S.W.2d 157,
171 (Tex. Crim. App. 1985)). The appellant must show “actual, rather than theoretical,
harm.” Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008). Some
examples of egregious harm include those errors that “affect the very basis of the case,”
“deprive the defendant of a valuable right, or vitally affect a defensive theory.” Id.
(internal quotations and citation omitted). This particular standard is a “high and difficult
standard which must be borne out of by the trial record.” Reeves, 420 S.W.3d at 816.
If, however, the defendant properly objected, then he will obtain relief if the record
shows that he suffered “some harm.” Id. This standard requires us to consider (1) the
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jury charge as a whole, (2) the arguments of counsel, (3) the entirety of the evidence,
and (4) other relevant factors revealed by the record as a whole. Wooten v. State, 400
S.W.3d 601, 606 (Tex. Crim. App. 2013).
B. Applicable Law
A defendant's right to the submission of jury instructions under article 38.23(a) is
limited to disputed issues of fact that are material to his claim of a constitutional or
statutory violation that would render evidence inadmissible. Madden v. State, 242
S.W.3d 504, 509–10 (Tex. Crim. App. 2007). The terms of the statute are mandatory,
and when an issue of fact is raised, a defendant has a statutory right to have the jury
charged accordingly. Id. at 510 (internal citation omitted). The only question is
whether under the facts of a particular case an issue has been raised by the evidence so
as to require a jury instruction. Id. Where no issue is raised by the evidence, the trial
court acts properly in refusing a request to charge the jury. Id. (citing Murphy v. State,
640 S.W.2d 297, 299 (Tex.Crim.App.1982)). Before a defendant is entitled to an article
38.23 instruction, (1) the evidence heard by the jury must raise an issue of fact; (2) the
evidence on that fact must be affirmatively contested; and (3) the contested factual issue
must be material to the lawfulness of the challenged conduct in obtaining evidence. Id.
Without a genuine dispute about a material fact, the legality of the conduct is
determined by the trial judge alone, as a question of law. Id. And if other facts, not in
dispute, are sufficient to support the lawfulness of the challenged conduct, then the
disputed fact issue is not submitted to the jury because it is not material to the ultimate
admissibility of the evidence. Id. In other words, the disputed fact must be an essential
one in deciding the lawfulness of the challenged conduct. Id.
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C. Discussion
Here, Lockhart argues that disputed material facts existed at trial regarding
whether access to Long’s Fishing Camp by police was allowed despite a “No
Trespassing” sign located on the front of the camp property. We disagree. There was
no evidence that Lockhart owned the recreational fishing camp property that he alleges
the sheriff’s investigators trespassed on. Furthermore, there is no disputed evidence to
show that Lockhart sought to exclude the sheriff’s investigators from his trailer or the
fishing camp in general. To the contrary, Lockhart engaged in conversation with Sheriff
Blackburn near the travel trailer that he occupied without once asking Sheriff Blackburn
or the other deputies to leave the premises. Finally, the evidence is undisputed that
Long’s Fishing Camp is a “recreation area” that is frequented by the public who pay
access fees to the property. Deputy Burke testified that the “No Trespassing” sign was
likely intended for individuals who wanted to fish on the camp without paying an access
fee.
Based on the record, we agree with the trial court’s conclusion that no genuine
dispute about a material fact existed to challenge the legality of the sheriff’s investigators’
entrance onto Long’s Fishing Camp, or the area around the trailer that Lockhart occupied.
As a result, the trial court did not err in denying Lockhart’s request for an article 38.23 jury
instruction. See id. Because we find that no error exists, our analysis ends here. See
Ngo, 175 S.W.3d at 743. Lockhart’s second issue is overruled.
IV. SUFFICIENCY CHALLENGE
By his final issue, Lockhart asserts that the evidence is insufficient to sustain his
conviction for possession of methamphetamines.
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A. Standard of Review
In reviewing sufficiency of evidence to support a conviction, we consider all of the
evidence in the light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could have found
the essential elements of the crime beyond a reasonable doubt. Winfrey v. State, 393
S.W.3d 763, 768 (Tex. Crim. App. 2013); Gear v. State, 340 S.W.3d 743, 746 (Tex.
Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)); see Brooks
v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). In viewing the
evidence in the light most favorable to the verdict, we defer to the fact-finder’s credibility
and weight determinations because the fact-finder is the sole judge of the witnesses’
credibility and the weight to be given to their testimony. Brooks, 323 S.W.3d at 899. It
is unnecessary for every fact to point directly and independently to the guilt of the
accused; it is enough if the finding of guilty is warranted by the cumulative force of all
incriminating evidence. Winfrey, 393 S.W.3d at 768.
The elements of the offense are measured as defined by a hypothetically correct
jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge is one that
accurately sets out the law, is authorized by the charging instrument, does not
unnecessarily increase the State's burden of proof or unnecessarily restrict the State's
theories of liability, and adequately describes the particular offense for which the
defendant was tried. Id. Under a hypothetically correct jury charge, Lockhart is guilty
of possession of methamphetamines if he knowingly or intentionally possessed
methamphetamines in an amount of less than one gram. See TEX. HEALTH & SAFETY
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CODE ANN. § 481.115(b).
B. Discussion
Lockhart solely challenges the sufficiency of the evidence to sustain his conviction
on the element of unlawful possession on the ground that he was not affirmatively linked
to the methamphetamines found in the travel trailer. We disagree.
To prove unlawful 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 matter possessed was contraband. Poindexter v. State, 153 S.W.3d
402, 405–06 (Tex. Crim. App. 2005). Under the so-called “affirmative links” rule,
whether this evidence is direct or circumstantial, “it must establish, to the requisite level of
confidence, that the accused’s connection with the drug was more than just fortuitous.”
Id. (citing Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)). Thus, when the
accused is not in exclusive possession of the place where the substance is found, it
cannot be concluded that the accused had knowledge of and control over the contraband
unless there are additional independent facts and circumstances which affirmatively link
the accused to the contraband. Id. at 406 (internal citation and quotations omitted).
Courts have developed numerous non-exclusive factors to determine whether the
evidence is sufficient to affirmatively link the accused to the controlled substance. These
factors include whether: (1) the contraband was in plain view or recovered from an
enclosed place; (2) the accused was the owner of the premises or had the right to
possess the place where the contraband was found; (3) the accused was found with a
large amount of cash; (4) the contraband was conveniently accessible to the accused, or
found on the same side of the vehicle as the accused was sitting; (5) the contraband was
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found in close proximity to the accused; (6) a strong residual odor of the contraband was
present; (7) the accused possessed other contraband when arrested; (8) paraphernalia to
use the contraband was in view, or found on the accused; (9) the physical condition of the
accused indicated recent consumption of the contraband in question; (10) conduct by the
accused indicated a consciousness of guilt; (11) the accused attempted to escape or flee;
(12) the accused made furtive gestures; (13) the accused had a special connection to the
contraband; (14) the occupants of the premises gave conflicting statements about
relevant matters; (15) the accused made incriminating statements connecting himself to
the contraband; (16) the quantity of the contraband; and (17) the accused was observed
in a suspicious area under suspicious circumstances. Lassaint v. State, 79 S.W.3d 736,
740–41 (Tex. App.—Corpus Christi 2002, no pet.) (internal citations omitted). The
number of factors is not as important as the logical force the factors have in establishing
the elements of the offense. Id.
Here, Deputy Burke testified that a “named cooperating individual” had provided
the Llano County sheriff’s office with a tip that an individual who had died in the county the
previous night had purchased methamphetamines from Lockhart. Tips such as this
have been held to have sufficient probative value to establish an affirmative link between
an accused and the contraband found in his home. See Poindexter, 153 S.W.3d at 409.
Additionally, Deputy Burke further testified that Lockhart and Amanda Meager were the
only individuals who had access to the trailer where the methamphetamines were found.
See Lassaint, 79 S.W.3d at 740–41 (Factor Two). Once inside the trailer, sheriff’s
investigators found a duffle bag with an eyeglasses prescription issued to Lockhart, as
well as parts to a chainsaw. The evidence also shows that Lockhart cut cedar trees for
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landowners in the area. See id. (Factor Two). Furthermore, the evidence shows that
the baggy of methamphetamines and a pipe used to smoke methamphetamines was
seized from the “rafters” of the travel trailer. See id. (Factor One). Finally, Deputy
Burke testified that a strong residual “cat urine” odor permeated the travel trailer, which
indicated the manufacture of methamphetamines. See id. (Factor Six).
After considering all of the evidence in the light most favorable to the verdict, we
determine that based on that evidence and reasonable inferences therefrom, a rational
fact finder could have found that sufficient evidence affirmatively links Lockhart to the
contraband to sustain his conviction for possession of methamphetamines. See id.;
see also Winfrey, 393 S.W.3d at 768. We overrule Lockhart’s third issue.
V. Conclusion
We affirm the trial court’s judgments.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
17th day of September, 2015.
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