Gordwin, Damion Cornelius

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