Flores v. State

• Decision Date: 01 October 2013
• Docket Number: No. 14–12–00623–CR.,14–12–00623–CR.
• Citation: 440 S.W.3d 180
• Parties: Damian Ricardo FLORES, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

440 S.W.3d 180

Damian Ricardo FLORES, Appellant

v.The STATE of Texas, Appellee.

No. 14–12–00623–CR.

Court of Appeals of Texas, Houston (14th Dist.).

Oct. 1, 2013.

Discretionary Review Refused April 16, 2014.

Jani J. Maselli Wood, Houston, for Appellant.

Carly Dressauer, Houston, for Appellee.

Panel consists of Justices BROWN, CHRISTOPHER, and McCALLY.

OPINION

TRACY CHRISTOPHER, Justice.

Appellant Damian Ricardo Flores was convicted by a jury of possession of cocaine weighing more than 4 and less than 200 grams. The jury answered a deadly weapon special issue in the affirmative. The jury sentenced him to 20 years' confinement. On appeal, he presents four issues: (1) whether the evidence is legally sufficient (a) to support his conviction for cocaine possession and (b) to support the jury's deadly weapon finding; (2) whether the trial court committed charge error by refusing appellant' punishment phase the trial court erred in allowing testimony regarding his alleged involvement in a previous shooting; and (4) whether the court costs imposed against him are supported by sufficient evidence. We sustain appellant's fourth issue. Finding no reversible error in his remaining issues, we modify the trial court's judgment to delete the specific amount of court costs, and affirm the judgment as modified.

I. Factual and Procedural Background

Appellant was indicted for felony possession with intent to deliver a controlled substance, namely, cocaine, weighing at least 4 and less than 200 grams, including any adulterants and dilutants, alleged to have been committed on or about November 30, 2009.

At trial, Officer Vanderberry, a narcotics investigator representing the Houston Police Department (HPD) as part of a multi-agency drug trafficking task force, testified that he was conducting initial surveillance on a residence on Sarita Street on the afternoon of November 30, 2009. Vanderberry observed a number of hand-to-hand transactions between individuals coming up to the front door and a male inside the residence, identified as appellant. Based on his observations and experience in drug trafficking, Vanderberry mobilized a team, which included Sergeant Ohland with the Texas Department of Public Safety, returned to Sarita Street, and set up surveillance.

Ohland and Vanderberry observed a black Dodge Magnum containing appellant and a woman drive up to the residence. Appellant entered the residence using a key, and the woman drove away. About one hour later, a couple approached the residence on foot. The male knocked on the door, appellant answered, the male handed something to appellant, appellant closed the door and returned in a minute or so, appellant handed something to the male, and the male put the item in his pocket. Ohland followed, stopped, and detained the couple; the male was found with a baggy of marijuana in his pocket.

Vanderberry continued his surveillance. About half an hour later, appellant exited the residence, locked the front door, and drove off in a Lincoln SUV. Vanderberry observed appellant commit multiple traffic violations, and radioed for a marked police car to conduct a stop. Police recovered a set of keys from appellant,¹ a Santa Muerte medallion, and about $600 in cash. Santa Muerte is known as the patron saint of narcotics traffickers.

Police obtained a search warrant for the Sarita Street residence and used appellant's key to enter. No one had entered the residence since appellant left, and no one was inside when the search warrant was executed. In the kitchen, there was a tray containing loose marijuana on a countertop. Police recovered from kitchen drawers several large baggies containing marijuana, a large baggy containing cocaine, and Xanax prescription pills. The cocaine weighed 8.8 grams. Also in the kitchen were smaller “sandwich-type” baggies, a digital scale, and a fake drink canister of the type used to smuggle narcotics. In the living room, on the end table by the sofa, was a loaded 9–millimeter semiautomatic pistol with an “obliterated” serial number. This pistol was located approximately 15 feet from the front door, and its hammer was “cocked back.” Also in the living room were framed photos of appellant and his wife, and a shrine to Santa Muerte. In the guest bedroom, police located a manila folder filled with various documents containing appellant's name.² In the master bedroom, in a drawer, police located a loaded .38–caliber pistol, various pistol magazines, and a high-powered rifle magazine.

At trial, appellant objected to the language of the deadly weapon special instruction, and the trial court denied the proposed charge. The jury convicted appellant of possession of a controlled substance, namely, cocaine, weighing more than 4 and less than 200 grams. The jury also found beyond a reasonable doubt that appellant used or exhibited a deadly weapon, namely, a firearm, during the commission of the offense.

During the punishment phase, appellant moved to exclude any testimony from Yvonne Stern and requested that the trial court “make a threshold inquiry as to the admissibility of her testimony.” Appellant also objected that the testimony was “highly prejudicial.” The trial court stated that she “was the trial court Judge that presided over the—Mr. Flores' previous trial regarding the attempted capital murder charge” and so was “aware of the evidence that was presented.” The trial court denied the motion.

Stern testified about an incident occurring on the morning of May 5, 2010. Stern was walking to her car in the parking garage of her apartment complex³ when a Hispanic man “charged” at her and pointed a gun at her. Stern jumped into her car, but the man continued to approach her. He pointed a gun at her head and demanded that she exit the car and give him money. Stern did not have any money, and the man started walking away, but then turned around and shot her in the stomach. Stern initially identified another Hispanic man as the shooter but ultimately identified appellant in a live line-up.

At the conclusion of the punishment hearing, the jury sentenced appellant to 20 years' confinement.

On appeal, appellant argues: (1) the legal insufficiency of the evidence (a) to support his conviction for cocaine possession and (b) to support the jury's deadly weapon finding; (2) the trial court committed charge error by refusing his requested deadly weapon instruction; (3) the trial court erred by allowing Stern's testimony during punishment; and (4) the insufficiency of the evidence to support the court costs imposed in his judgment.

II. Analysis

A. Appellant's legal insufficiency issue

In his first issue, in two subparts, appellant challenges the legal sufficiency of the evidence to support (1) the jury's guilty verdict on cocaine possession and (2) the jury's finding that appellant used or exhibited a deadly weapon during commission of the offense. We conclude that the evidence is legally sufficient to support both appellant's conviction and the deadly weapon special issue.

1. Standard of review

When evaluating the legal sufficiency of the evidence, 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.” Gear v. State, 340 S.W.3d 743, 746 (Tex.Crim.App.2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). We presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution. See Jackson, 443 U.S. at 326, 99 S.Ct. 2781. We also defer to the factfinder's evaluation of the credibility and weight of the evidence. See Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App.2010). In a challenge to the legal sufficiency of the evidence, our role “is restricted to guarding against the rare occurrence when a factfinder does not act rationally.” Id. (quoting Laster v. State, 275 S.W.3d 512, 518 (Tex.Crim.App.2009) ).

2. “Links” to cocaine

Appellant first argues that the evidence is legally insufficient to support his conviction for cocaine possession because the evidence does not affirmatively link him to the cocaine.

A person commits an offense if he knowingly or intentionally possesses over 4 but less than 200 grams of cocaine, including any adulterants or dilutants. Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.115(a), (d) (West 2010). To prove the unlawful possession of a controlled substance, the State must establish that the accused (1) exercised care, control, custody, or management over the contraband and (2) knew that the substance possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App.2005). Possession may be proved through either direct or circumstantial evidence. Id. at 405–06.

“When the accused is not in exclusive possession of the place where the contraband was found, it can not be concluded that appellant had knowledge of or control over the contraband unless there are additional independent facts and circumstances that affirmatively link appellant to the contraband.” Avila v. State, 15 S.W.3d 568, 573 (Tex.App.-Houston [14th Dist.] 2000, no pet.). “Links” are established when the evidence shows that the accused's connection with the contraband was more than just fortuitous. Poindexter, 153 S.W.3d at 405–06. “We consider the totality of the circumstances when determining whether the accused is linked to the recovered contraband.” Roberts v. State, 321 S.W.3d 545, 549 (Tex.App.-Houston [14th Dist.] 2010, pet. ref'd). Mere presence at the scene where contraband is found does not establish possession; “[h]owever, presence or proximity, when combined with other evidence, either direct or circumstantial (e.g., ‘links'), may well be sufficient to establish that element [of actual care, custody, or control] beyond a reasonable doubt.” Evans v. State, 202 S.W.3d 158, 162 (Tex.Crim.App.2006)...