PD-0527&0528-15
May 6, 2015
No. _______________
IN THE
TEXAS COURT OF CRIMINAL APPEALS
________________________
Nos. 01-14-00343-CR and 01-14-00344-CR
In the First Court of Appeals
of Texas
________________________
Damion Cornelius Gordwin, Appellant
v.
The State of Texas, Appellee
________________________
Appellant’s Petition for Discretionary Review
________________________
Jerald K. Graber
TSB # 08240320
917 Franklin, Suite 510
Houston, Texas 77002
Tel. 713-224-232
graberlaw@sbcglobal.net
Attorney for Appellant
Statement Regarding Oral Argument
Appellant waives oral argument.
2
Table of Contents
Page
STATEMENT REGARDING ORAL ARGUMENT 2
TABLE OF CONTENTS 3
INDEX OF AUTHORITIES 4
STATEMENT OF THE CASE 6
STATEMENT OF PROCEDURAL HISTORY 7
APPELLANT’S GROUND FOR REVIEW 7
REASON FOR REVIEWING GROUND FOR REVIEW 7
ARGUMENT 8
CONCLUSION and PRAYER FOR RELIEF 14
CERTIFICATE OF COMPLIANCE 14
CERTIFICATE OF SERVICE 15
3
Index of Authorities
Cases Page
Brooks v. State,
323 S.W.3d 893, 895 (Tex. Crim. App. 2010) 9, 11
Ervin v. State,
331 S.W.3d 49, 55 (Tex. App.—Houston [1st Dist.] 10, 12
2010, pet. ref'd)
Evans v. State,
202 S.W.3d 158, 162 (Tex. Crim. App. 2006) 10
Hyett v. State, 58 S.W.3d 826, 830
(Tex. App.—Houston [14th Dist.] 2001, pet. ref'd) 10
In re Winship,
397 U.S. 358, 361, 90 S. Ct. 1068, 1071, 9, 12
25 L. Ed. 2d 368 (1970)
Jackson v. Virginia,
443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560, (1979) 9, 11
King v. State,
895 S.W.2d 701, 703 (Tex. Crim. App. 1995) 10, 12
Laster v. State,
275 S.W.3d 512, 517 (Tex. Crim. App. 2009) 9, 12
Poindexter v. State,
153 S.W.3d 402, 405 (Tex. Crim. App. 2005) 10
Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007) 9, 12
4
Statutes, Codes and Rules
Tex. Health & Safety Code § 481.002(38) 10
Tex. Pen. Code § 1.07(a)(39) 10
Tex. Pen. Code § 37.09(d)(1) 12
Tex. R. App. Proc. 66.3 (c) and (f) 7
5
To the Honorable Court of Criminal Appeals:
Statement of the Case
Appellant was charged by indictment with the felony offenses of
tampering with physical evidence in cause number 1397495 and possession of
a controlled substance in cause number 1397496. (CR 9, 9)¹. Appellant
entered a plea of not guilty and the cases were tried before a jury. (RR III 10).
The jury found appellant guilty of both charges. (RR III 171-172). After a
sentencing hearing, the jury sentenced appellant to three years in prison on the
tampering with evidence case and two years in prison on the possession of a
controlled substance case. (RR V 55).
Appellant timely filed a written notice of appeal. (CR 57, 58). The trial
court certified the defendant’s right of appeal. (CR 56, 57). Appellant requests
oral argument in this case.
____________________________________________________________
1- Cause number 1397495 is cited first, followed by cause number 1397496.
6
Statement of Procedural History
On April 30, 2015, a panel of the First Court of Appeals issued an un-
published opinion affirming the trial court’s judgments in these two cases.
Appellant files this first petition for discretionary review with this Court.
Appellant’s Ground for Review
1) The Court of Appeals erred in finding that the evidence is sufficient to
support the conviction of possession of a controlled substance since
appellant never maintained care, custody, or control over the cocaine
that was found in a baggie in a toilet.
2) The Court of Appeals erred in finding that the evidence is sufficient to
support the conviction of tampering with evidence under the theory that
appellant “concealed” the evidence. The indictment and jury charge did
not allege that appellant “concealed” the evidence. The evidence is
insufficient to support the conviction for tampering with evidence since
appellant did not alter or destroy the cocaine that was found in a baggie
in a toilet.
Reason for Reviewing Appellant’s Ground for Review
The lower Court’s ruling should be reviewed pursuant to Tex. R. App.
P. 66.3(c) and (f).
7
Argument
The evidence is insufficient to support the conviction for possession of a
controlled substance since appellant never maintained care, custody, or control
over the cocaine that was found in a baggie in a toilet. Appellant never touched
the cocaine or the baggie containing the cocaine. In fact, the police indicated
that they never saw appellant put any item into the toilet. While the testimony
established that the officers saw appellant flush the toilet numerous times,
there is no evidence that appellant ever possessed the cocaine. Therefore, the
Court of Appeals erred in finding that the evidence is sufficient to support the
verdict.
Also, the evidence is insufficient to support the conviction for tampering
with physical evidence since appellant did not alter or destroy the cocaine that
was found in a baggie in a toilet. The indictment and jury charge alleged that
appellant actually altered or destroyed the physical evidence. The Court of
Appeals erred in finding that the evidence is sufficient to support the verdict
under the theory that appellant “concealed” the evidence. However, the
indictment and jury charge did not allege that appellant “concealed” the
evidence. The only evidence that was presented to the jury was that appellant
flushed the toilet that contained the baggie of cocaine that was put there by the
8
co-defendant. The physical evidence that was seized by the police was never
altered or destroyed.
Possession of a Controlled Substance – Cause Number 1397496
The Jackson v. Virginia legal-sufficiency standard is the only standard
that a reviewing court should apply in determining whether the evidence is
sufficient to support each element of a criminal offense that the State is
required to prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d
893, 895 (Tex. Crim. App. 2010); Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.
2781, 61 L. Ed. 2d 560, (1979). 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. Jackson v. Virginia, 443 U.S. at 319, 99 S. Ct. at 2789; In re Winship,
397 U.S. 358, 361, 90 S. Ct. 1068, 1071, 25 L. Ed. 2d 368 (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 a light favorable to the
verdict, the evidence is insufficient when either: (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. Laster
9
v. State, 275 S.W.3d at 518. This standard applies equally to both direct and
circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App.
1995); Ervin v. State, 331 S.W.3d 49, 55 (Tex. App.—Houston [1st Dist.]
2010, pet. ref'd).
Possession is defined as "actual care, custody, control, or management."
Tex. Pen. Code § 1.07(a)(39) (West 2011); Tex. Health & Safety Code §
481.002(38). To prove unlawful possession of a controlled substance, the State
must establish that (1) the accused exercised care, control, or management
over the contraband, and (2) knew the substance was contraband. Poindexter v.
State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). The evidence must
establish that the accused's connection with the substance was more than
fortuitous. Id. at 405-06. Evidence must link the accused to the offense so that
one reasonably may infer that the accused knew of the contraband's existence
and exercised control over it. Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.—
Houston [14th Dist.] 2001, pet. ref'd). Mere presence at the location where the
controlled substance was found is insufficient, by itself, to establish
possession. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006).
In this case, there is no evidence that appellant actually exercised care,
custody, or control over the subject cocaine. The testimony established that
Christopher Hutchinson discarded the baggie of cocaine into the toilet. There
10
is no evidence that appellant ever touched the cocaine or the baggie containing
the cocaine. In fact, the police indicated that they never saw appellant put any
item into the toilet. (RR III 92, 142). While the testimony established that the
officers saw appellant flush the toilet numerous times, there is no evidence that
appellant ever exercised care, control, or management over the contraband.
Thus, the evidence is insufficient to support the jury’s verdict, and this court
should enter a judgment of acquittal on the possession of a controlled
substance conviction.
Tampering with Physical Evidence – Cause Number 1397495
The Jackson v. Virginia legal-sufficiency standard is the only standard
that a reviewing court should apply in determining whether the evidence is
sufficient to support each element of a criminal offense that the State is
required to prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d
893, 895 (Tex. Crim. App. 2010); Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.
2781, 61 L. Ed. 2d 560, (1979). 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. Jackson v. Virginia, 443 U.S. at 319, 99 S. Ct. at 2789; In re Winship,
11
397 U.S. 358, 361, 90 S. Ct. 1068, 1071, 25 L. Ed. 2d 368 (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 a light favorable to the
verdict, the evidence is insufficient when either: (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. Laster
v. State, 275 S.W.3d at 518. This standard applies equally to both direct and
circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App.
1995); Ervin v. State, 331 S.W.3d 49, 55 (Tex. App.—Houston [1st Dist.]
2010, pet. ref'd).
A person commits the offense of tampering with physical evidence (as
specifically charged in the indictment) if, knowing that an offense had been
committed, alter or destroy a thing, namely cocaine, with intent to impair its
verity as evidence in any subsequent investigation of or official proceeding
related to the offense. (CR 9); Tex. Pen. Code § 37.09(d)(1).
In this case, the evidence is insufficient to support a conviction for
tampering with physical evidence since there is no evidence that appellant
actually altered or destroyed the cocaine that was found in the toilet. The
indictment and the jury charge in this case did not allege that appellant
concealed the evidence, one of the methods in which one could commit the
12
offense under § 37.09(d)(1); (CR 9, 39-43). The indictment and the jury charge
only alleged that appellant altered or destroyed the physical evidence. (CR 9).
Therefore, the Court of Appeals erred in finding (1) that “the jury could have
found that [appellant] “conceal[ed]” the evidence, (2) that “the jury could have
reasonably inferred that appellant concealed the cocaine that the officers
recovered from the toilet, and (3) that “the jury could have reasonably found
that appellant concealed…cocaine.” Gordwin v. State, No. 01-14-00343-CR
(April 30, 2015, unpublished), pgs. 8-10. The jury was not authorized to
convict under the theory that appellant “concealed” the evidence.
The only evidence that was presented to the jury was that appellant
flushed the toilet that contained the baggie of cocaine that was put there by the
co-defendant. There is no evidence that the physical evidence was ever altered
or destroyed. In fact, since the cocaine was inside a plastic baggie, it was
shown that the cocaine was not altered at all. Furthermore, since the cocaine
was retrieved by the police, the evidence was not destroyed in any way. In this
case, the most that the State could prove was that appellant committed the
offense of attempted tampering with physical evidence. However, since the
elements of tampering with physical evidence were not proven by the State,
appellant requests that this Court acquit him of the offense of tampering with
physical evidence.
13
Conclusion and Prayer
Appellant prays that this Honorable Court grant Appellant’s Petition for
Discretionary Review, reverse the decision of the Court of Appeals, and acquit
appellant in each cause.
Respectfully Submitted,
/s/ Jerald Graber
_______________________
Jerald K. Graber
917 Franklin, Suite 510
Houston, Texas 77002
713-224-2323
Attorney for Appellant
Certificate of Compliance
I, Jerald K. Graber, do certify that this petition is in compliance with
Rule 9 since the entire document consists of 2,155 words and is typed using
14-point font.
/s/ Jerald Graber
_______________________
Jerald K. Graber
14
Certificate of Service
I hereby certify that a copy of this PDR was served upon the following
parties via e-file:
Alan Curry
Harris County District Attorney’s Office
1201 Franklin, 6th Floor
Houston, TX 77002
State Prosecuting Attorney
P.O. Box 12405
Austin, Texas 78711
/s/ Jerald Graber
_______________________
Jerald K. Graber
15
OpinionissuedApril 30,2015
In The
@ourtof 9ppeulg
For The
fritst Distriotof(Iexsg
NO. 0l-14-00343-CR
NO. 0l -14-00344-CR
DAMION CORNELIUSGORDWIN,Appellant
V.
THE STATE OF TEXAS, Appellee
On Appealfrom the 248thDistrictCourt
Harris County,Texas
Trial Court CaseNos.1397495& 1397496
MEMORANDUM OPINION
A jury foundappellant,
DamionCorneliusGordwin,guittyof the olfensesof
tamperingwith physical evidencerand possessionof a c,rntrolledsubstance,
namelycocaine,weighinglessthan one gram.' [t assessed
his punishment
at
for threeyearsfor tamperingwith physicalevidenceandconfinement
confinement
for two yearsfor possession with the sentences
of a controlledsubstance, to run
concurrently.In threeissues,appellantcontends
thatthe evidenceis insulficientto
supporthis convictionsand the trial court erred in enteringa deadlyweapon
findingin itsjudgment.
We affirm.
Background
Houston Police Department("HPD") Officer M. Santuariotestified that on
August 9,2013, while working in the HPD NarcoticsDivision, he and other law
enforcementofficers "servefd] and executefd]a [no knock] searchwarrant" at a
residence. Santuarioacted as the "case agent" and the "pointnnan"for the entry
SeeTpx. PENRI- (VemonSupp.2014);appellate
Cooe ANN. $ 37.09(d)(1) cause
trialcourtcausenumber1397495.
number01-14-00343-CR;
S e e T p x. H E R l ru & S n pEr v Coop ANN. $$481.102( 3XD) 481.115(
, (b)
a),
(Vernon2010);appellate causenumber01-14-00344-C& trial courlcaurlenumber
1397496.
team. HPD Officer J. Elkins "breachedthe ffront] door" of'the residence,while
HPD Officer Delacertadeployedthe'"flashbang."i
As Officer Santuarioentered the residence,he saw appellant,\ ,ho "was
armed," and ChristopherHutchinsonrun into a hallway and then into a restroom.
He followed them because"fn]ormally in a situationlike th[is]" people run to
"discard or destroy narcotics." When Santuarioarrived in lJrerestroom,he saw
Hutchinson"kneeling down in front of the toilet," "on the floor'," while appellant
threw a small "pistol" onto the restroom floor and then lllushed the toilet
repeatedly. The "pistol" "was a floaded]semiautomaticf,]
. . . small sil'rer gufl,"
with "a round in the chamber." Although Santuarioordered appellantto "stop"
flushing the toilet, he refusedand "[c]ontinued flushing or pulling the ltoilet]
lever." When Santuariotried to removeappellantfrom the toilet,he resisted.
While appellantflushedthe toilet, Hutchinson"had his hands in the toilet
bowl," and Officer Santuario"saw something leave his hands." As liantuario
explained:"[I]t was [a] couplethingsthat were small[,which] []ooked lilceplastic
bags . . . ." Generally,people do not "flush ernpty plastic bags down the toilet,"
but rather "narcotics." Thus, it appeared to Santuario thLatappellant and
Hutchinson were working together to flush the items dou'n the toilet. When
Officer Elkins commandedHutchinsonto oostop"
and "put his handsaway from the
Officer Santuarioexplainedthat a "flash bang""is a distractiondevice"t;hatmakes
a loudgunshot-likesound,flasheslight,andreleases minimalsmoke.
toilet," he did not comply. Elkins, therefore,"reached in and basicall'yyanked
fHutchinson] away from the toilet." After the officers relno'vedappellant and
Hutchinsonfrom the restroom,they "handcuffedand . . . escorted[them] out of the
residence."
Officer Santuariothen took "a closer look at th[e] toilet" and "removed it
from the base [on] the floor." Inside the toilet, he found "a small baggie,that had
crack cocaine in it." HPD officers also searchedthe remainder:of the residence,
appellant,and Hutchinson,and they recovered$2,103 in casrh,marijuanaand
related paraphernalia,a "small digital scale," a beaker, a revolver, and a "baby
bottle with what appearedto be codeineinsideof it."
Officer Elkins testifiedthat he assistedwith the executionof the "no knock"
searchwarrant at the residence. He breachedthe residence'sfront door with a
"[b]attering device," and Officer Delacerta deployed the "flesh bang." After
Elkins followed Officer Santuariointo the residence,Santuarioy'elled,"[r]unners,"
to alert the other officers that "individuals inside the residence[were] nunning."
Generally,peoplerun in situationssuch as this to "hide," "get rid.of sometihing,"or
to "get away from officers." Elkins saw appellantand Hutctrinslonrun toward the
restroom,and he and Santuariopursued.
Once inside the restroom,Officer Elkins saw appellanl."cliscard"a."[s]ilver
automatic pistol" onto the floor and Hutchinson "by the toil,et area discarding
somethinginside the toilet." Hutchinsonhad his hands "iLnsidethe toilet," and it
looked like he was "[d]iscarding items into the toilet." After E,lkinscornmanded
Hutchinsonto o'showhis hands" and "get down on the ground," he did not comply.
Although his focus was on Hutchison,Elkins saw appellant''reachingtoward the
lever of the toilet." "observed his hands on the lever." and cor"rldhear the toilet
flushing. According to Elkins, the toilet "had been llushed several times."
Eventually,Elkins "forcefully. . .pull[ed] [Hutchinson]off the toilet" and took
him into custody. In a subsequentsearch of the restroom.,Elkins savyOfficer
Santuario"recover a small bag of what appearfed]to be crack r:ocainecut of the
bottom of the toilet." HPD oft-rcersalso recovered mariiiuerna.codeine" and
"anotherpistol" from the residence.
Mona Colcatestifiedthat she.as a criminalistwith the controlledsubstances
sectionof the HPD Crime Laboratory,"receive[s]and anallyze[s]evidence"to "test
it for the presenceof controlled substances." She anerlyzedthe "small bag"
recoveredfrom the toilet and found that it contained0.83 eramsof cocaine.
Sufficiency of the Evidence
ln his third issue,appellantarguesthat the evidenceis i.nsuLfficient
to support
his conviction for tampering with physical evidencebecausehe did not "actually
alterf] or destroy[] the cocaine that was found in the toilet." In his first issue,
appellant argues that the evidence is insufficient to support his conviction for
possessionof a controlled substancebecause"there is no evidence that [he]
actuallyexercisedcare,custody,or control over the subjectcocaine."
We review the legal sufficiency of the evidenceby conr;ideringall of the
evidence"in the light most favorableto the prosecution"to determinewhr:therany
"rational trier of fact could have found the essentialelementsof the crime beyonda
reasonable
doubt." Jacksonv. Virginia.443 U.S. 307,319,99 S. Ct. 2781,2789
(1979). Our role is that of a due processsafeguard,ensuringonl.ythe rationalityof
the trier of fact's finding of the essential elements of the offense treyond a
reasonabledoubt. See Moreno v. State,755 S.W.2d 866, 857 (Tex. Crim. App.
1988). We give deferenceto the responsibilityof the facl finder to fairl'y resolve
conflicts in testimony,to weigh evidence,and to draw reasonableinferencesfrom
the facts. I|rilliams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
However, our duty requires us to "ensure that the evidenc,epresentedactually
supportsa conclusionthat the defendantcommitted" the criminal offenseof which
he is accused.Id.
Tamperingwith PhysicalEvidence
A person commits the offense of tampering with physical evidence it
knowing that an offense has been committed,he alters,destroys,or concealsany
record,document,or thing, with intent to impair its verity, legibiltity,or availability
as evidencein any subsequentinvestigationor official proceeilingrelat,edto the
offense.Tpx.PpNnlConpAxx. $ 37.09(d)(1)
(VernonSupp.2014). lHere,the
underlyingindictmentallegedthat appellant,"knowing that an offenselhadbeen
committed, to wit: POSSESSIoN OF CONTROLL,ED SUBSTANCE,
ALTERIED] AND DESTROYIED] A THING, NAMELY, COCAINE with intent
to impair its VERITY as evidencein any subsequentinvestigationof and of-ficial
proceedingrelatedto the aforesaidoffense."
Officer Santuariotestified that after he enteredthe residence,he followed
appellant and Hutchinson as they ran into the restroorn. Santuariiofbund
Hutchinson"kneelingdown in front of the toilet," "on the,floor," while appellant
repeatedlyflushed the toilet. As appellant continuously'flushed the toilet,
Santuario"saw something leave [Hutchinson's] hands." The "something" "was
small . . . it wasn't just one, it was a couple of things that were srnall. [tt] fl]ooked
like plasticbags." Santuariodid not see"any'thingelse in the toilet" "[o]ther than
the plasticbags" that he saw Hutchinsondiscard.
Officer Santuarioexplainedthat "normally" peoplerun whLenofficers entera
residenceto "discard or destroy narcotics." And, based on his training and
experience,"people [do not] flush empty plastic bags do'wn [a] toilet." Instead,
they flush "narcotics." And, after officers removedappellantanclHutchinsonfrom
the restroom, Santuario"removed [the toilet] from the base [on] the floor" and
found "a small baggiethat had crack cocainein it."
Similarly, Officer Elkins testifiedthat he saw appellantand F{utchinsonrun
toward the restroom. Once inside the restroom,Elkins saw Hutchinson "by the
toilet area discarding something inside the toilet." Hurtchinr;on'shands were
"inside the toilet," and he was "discardingitems into the toilet." The only things
that Elkins could seein the toilet were the "items" that Hutchinsonwas discarding.
Elkins also saw appellant's"hands on the ltoilet] lever," and he heard the toilet
being "flushed severaltimes." And Elkins saw Officer Santuario"recove'ra small
bag of . . . crack cocaineout of the bottom of the toilet."
Appellant arguesthat "there is no evidence"that showrsh,3"actually altered
or destroyedthe cocaine that was found in the toilet" because"the cocaine was
insidea plasticbaggie"and "retrievedby the police,"and,thus,"not alteredat all"
or "destroyedin any way." We note, however,that appellanl"'sargumentneglects
to considerthat the jury was not requiredto find that he altere