Jackson v. State

• Decision Date: 05 May 2016
• Docket Number: NO. 14–15–00244–CR, NO. 14–15-00247–CR, NO. 14–15-00245–CR, NO. 14–15–00246–CR,14–15–00244–CR
• Citation: 495 S.W.3d 398
• Parties: Walter Louis Jackson, Jr., Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

495 S.W.3d 398

Walter Louis Jackson, Jr., Appellant

v.The State of Texas, Appellee

NO. 14–15–00244–CR

NO. 14–15-00245–CR

NO. 14–15–00246–CR

NO. 14–15-00247–CR

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

Opinion filed May 5, 2016

Discretionary Review Refused September 21, 2016

Gerald C. Moton, San Antonio, TX, for Appellant.

Jason Travis Bennyhoff, Richmond, TX, for State.

Panel consists of Chief Justice Frost and Justices Boyce and Wise.

OPINION

Ken Wise, Justice

This case concerns the exclusion of evidence seized from an apartment-home and garage pursuant to search warrants based, in part, upon two warrantless dog sniffs. Appellant Walter Louis Jackson, Jr. appeals his convictions for four counts of possession with intent to deliver. The jury found appellant guilty on all counts and sentenced him to 75 years in prison.¹

Appellant's primary issues on appeal concern whether the warrantless use of the narcotics-detection dog at his apartment and garage was unconstitutional and whether officers had sufficient probable cause to subsequently obtain search warrants for those locations. Appellant raises additional issues regarding the sufficiency of the evidence, ineffective assistance of counsel, alleged due process and Brady² violations, and the denial of his motion for mistrial.

FACTUAL AND PROCEDURAL BACKGROUND

After receiving a tip from a confidential informant that appellant was selling drugs in the Katy area, the Fort Bend County Sheriff's Department began an investigation in February 2012. By October, investigators believed they had gathered sufficient information to link appellant to apartment # 10206 at The Residences at Cinco Ranch. On October 24, 2012, an investigator asked Officer Hricko to have his canine partner conduct a dog sniff of appellant's apartment door and garage. The dog alerted Hricko to the presence of narcotics at both the apartment and garage. Based on the dog's positive alerts and other information the officers collected during the investigation, officers obtained a search warrant for the garage and apartment later that evening.

Officers first executed the search warrant for the apartment. The only person inside at the time was Laura Cline, appellant's girlfriend. In the apartment, officers found the following items: marijuana, pills, cocaine, two scales, money, a brown bag containing two large pharmacy bottles, a key, and a garage remote. Officers then executed the search warrant for the garage. Inside, they recovered pills, money, cocaine, the drug Ecstasy, another scale, and a garage remote. Appellant was subsequently charged with four counts of possession with intent to distribute a controlled substance.

Appellant filed a motion to suppress the contraband recovered as a result of the searches, arguing that the use of the narcotics-detection dog at both locations violated his Fourth Amendment rights under United States v. Jardines, ––– U.S. ––––, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013). The trial judge denied appellant's motion with respect to the items found in both the garage and the apartment.³ Following a jury trial, appellant was convicted on all four counts and sentenced to 75 years in prison.⁴

ISSUES AND ANALYSIS

On appeal, appellant raises seven issues: (1) the warrantless dog sniffs were unconstitutional under Jardines, and although Jardines had not been decided at the time, Texas does not recognize a good-faith exception to the exclusionary rule; (2) the search warrants failed to establish probable cause; (3) appellant did not have exclusive possession of the place where the contraband was found so as to affirmatively link him to the contraband; (4) appellant received ineffective assistance of counsel at trial; (5) the State's failure to preserve evidence violated appellant's due process rights; (6) the prosecution violated its duty to provide appellant a fair trial; and (7) the trial court's denial of appellant's motion for a mistrial was an abuse of discretion.

I. Sufficiency of the Evidence

In his third issue, appellant challenges the legal sufficiency of the evidence to support his conviction.⁵ Specifically, appellant alleges that there is insufficient evidence of affirmative links showing he exercised care, custody, or control over the controlled substances found in the apartment and garage.

In evaluating a sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine, based on that evidence and any reasonable inferences therefrom, whether a rational jury could have found the elements of the offense 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 do not reevaluate the weight and credibility of the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007). The jury “is the sole judge of credibility and weight to be attached to the testimony of witnesses.” Dobbs v. State, 434 S.W.3d 166, 170 (Tex.Crim.App.2014). The jury may choose to believe or disbelieve any portion of the witnesses' testimony. See Thomas v. State, 444 S.W.3d 4, 10 (Tex.Crim.App.2014). When faced with conflicting evidence, we presume the jury resolved conflicts in favor of the prevailing party. Id. at 8.

The jury found appellant guilty of four counts of felony possession with intent to distribute a controlled substance. “Possession” is defined as “actual care, custody, control, or management.” Tex. Penal Code § 1.07(a)(39) ; Tex. Health & Safety Code § 481.002(38). To prove unlawful possession of a controlled substance, the State must establish that the accused exercised care, control, or management over the contraband and knew the substance was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App.2005). The elements of possession may be proven through direct or circumstantial evidence, although the evidence must establish that the accused's connection with the substance was more than merely fortuitous. Id. at 405–06.

When the accused is not in exclusive possession of the place where the contraband is found, the reviewing court must examine the record to determine if there are additional independent facts that “affirmatively link” the defendant to the contraband. Id. at 406 ; Torres v. State, 466 S.W.3d 329, 331–32 (Tex.App.—Houston [14th Dist.] 2015, no pet.). This requirement protects innocent bystanders from conviction based solely on their proximity to someone else's contraband. Poindexter, 153 S.W.3d at 406. Courts have identified the following factors that may help to show an accused's affirmative links to a controlled substance: (1) the accused's presence when a search is conducted; (2) whether the contraband was in plain view; (3) the accused's proximity and the accessibility of the narcotic; (4) whether the accused was under the influence of narcotics when arrested; (5) whether the accused possessed other contraband or narcotics when arrested; (6) whether the accused made incriminating statements when arrested; (7) whether the accused attempted to flee; (8) whether the accused made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the accused owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the accused was found with a large amount of cash; and (14) whether the conduct of the accused indicated a consciousness of guilt. Evans v. State, 202 S.W.3d 158, 162 n. 12 (Tex.Crim.App.2006). Additionally, a large quantity of contraband may be a factor affirmatively linking the appellant to the contraband. See Olivarez v. State, 171 S.W.3d 283, 291–92 (Tex.App.—Houston [14th Dist.] 2005, no pet). No set formula necessitates a finding of an affirmative link sufficient to support an inference of knowing possession; affirmative links are established by the totality of the circumstances. See Hyett v. State, 58 S.W.3d 826, 830 (Tex.App.—Houston [14th Dist.] 2001, pet. ref'd). It is “not the number of links that is dispositive, but rather the logical force of all of the evidence, direct and circumstantial.” Evans, 202 S.W.3d at 162.

A. Sufficiency of the Evidence to Link Appellant to the Contraband Found in the Apartment

Appellant argues that the evidence is insufficient to link him to the contraband found inside the apartment because he did not have control over the contraband. He points out that Cline was the only person inside the apartment when the officers executed the warrant. However, even if appellant did not have exclusive possession of the apartment, an analysis of the affirmative links reflects that the evidence is sufficient to support appellant's convictions.

It is undisputed that the lease to the apartment was in Cline's name alone. Cline testified that although she leased the apartment, appellant paid the rent and bills with money he made by selling drugs. Appellant claims he was not living at the apartment at the time of the search. However, Cline testified that appellant was living with her at that time. She stated that he slept at the apartment the night before the search, and he had his own key to the apartment. Although appellant disputes Cline's testimony, the jury was free to believe Cline's version of events over appellant's version. See Dobbs, 434 S.W.3d at 170 (providing that jury is the sole judge of the credibility of witnesses and weight of the evidence); Thomas, 444 S.W.3d at 10 (providing that jury may choose to believe or disbelieve any portion of the witnesses' testimony).

During the execution of the warrant, officers recovered various pieces of mail addressed to appellant, including a recent cable bill for the apartment in appellant's name. Additionally, male clothing was found in the dresser in the bedroom, and a photo of appellant was displayed in the...