Opinion issued June 21, 2012
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-00017-CR NO. 01-11-00018-CR ——————————— BRYANT WILLIAMS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Case Nos. 08DCR049851 &08DCR049852
MEMORANDUM OPINION
A jury convicted appellant, Bryant Williams, of the felony offenses of
money laundering1 and possession with intent to deliver a controlled substance,
1 See TEX. PENAL CODE ANN. § 34.02 (Vernon 2011). cocaine,in an amount over 400 grams, in a drug-free zone,2 and it assessed his
punishment at nine years‘ confinement for money laundering and seventy-three
years‘ confinement and a $70,000 fine for possession with intent to deliver.3 In
three issues, appellant argues that (1) the evidence supporting his convictions was
insufficient; (2) the trial court erred in denying his motion to suppress evidence;
and (3) the trial court erred in ―stacking‖ his sentences rather than ordering them to
run concurrently.
We affirm.
Background
Pursuant to a search warrant, officers with the Texas Department of Public
Safety (―DPS‖) and the Rosenberg Police Department (―RPD‖) searched a home at
4820 Dogwood (―the Property‖) and discovered over 600 grams of cocaine,
$140,803 in currency, and various drug paraphernalia such as scales and baggies.
2 See TEX. HEALTH & SAFETY CODE ANN. § 481.102(3)(D) (Vernon 2010) (providing that cocaine is penalty group one substance); id. § 481.112 (a), (f) (Vernon 2010) (providing that manufacturing, delivery, or possession with intent to deliver penalty group one substance in amount over 400 grams is punishable by imprisonment for between 15 and 99 years or life and fine not to exceed $250,000); id. § 481.134 (c) (Vernon Supp. 2011) (providing that minimum term of imprisonment for offense punishable under section 481.112(f) is increased by five years and maximum fine is doubled if offense is committed in, on, or within 1,000 feet of school). 3 The charge of money laundering was tried in trial court cause number 08DCR049851 and resulted in appeal number 01-11-00017-CR. The charge of possession with intent to deliver a controlled substance was tried in trial court cause number 08DCR049852 and resulted in appeal number 01-11-00018-CR. 2 The officers arrested appellant and charged him with money laundering and
possession with intent to deliver a controlled substance.
Appellant moved to suppress the evidence collected pursuant to the search of
the Property, arguing that the affidavit presented to the magistrate failed to
demonstrate the existence of probable cause for issuing the warrant. At the
suppression hearing, Sergeant P. Luna, a specialist in narcotics and drug trafficking
with the DPS drug division, testified regarding the facts that he included in the
affidavit he presented to the magistrate, and the trial court admitted the search
warrant into evidence without objection from appellant.Sergeant Lunatestified that
a confidential informant who had provided reliable information to his department
in the past first alerted him to appellant‘s possible involvement with narcotics at
the Property. Sergeant Luna began to testify regarding the confidential informant‘s
previous experience with his agency, but appellant objected on the ground that
such information was irrelevant because it was not included in the affidavit. The
trial court sustained the objection and admonished the State to ―just stick to what is
in the search warrant or the affidavit.‖
Sergeant Luna further testifiedthat, in his subsequent investigation, he
conducted a ―trash run‖ at the Property, which involved his examining trash
discarded by the property owner. He found ―a kilogram wrapping‖ with an interior
of clear plastic and an exterior of what appeared to be black electrical tape, and he
3 stated that the clear wrapping had a white residue on the inside ―which [was]
indicative of drug trafficking‖ in his experience. He testified that drug traffickers
typically wrap packages of cocaine in this manner to protect it and to conceal it.
He stated that the residue inside the wrapper recovered from the trash outside the
Property field-tested positive for cocaine. He testified that the trash also included
several letters addressed to appellant.
Sergeant Luna also discovered that several vehicles that were parked outside
the Property were registered to appellant. The same day that he conducted the
trash run, he contacted the canine unit of the RPD, and Officer D. Morales brought
a dog to the property. Officer Morales took the dog around the perimeter of the
house, and the dog alerted to the presence of narcotics at several locations around
the doors and windows of the home. Officer Morales reported these findings to
Sergeant Luna, who included them in the search-warrant affidavit.4 Sergeant Luna
testified that the magistrate issued the search warrant the next day.
On cross-examination, Sergeant Luna testified that the drugs and other
paraphernalia seized were located in the master bedroom, kitchen, and crawl space
above the garage, ―a fair distance‖ from the areas around the outside of the house
where the dog alerted to the presence of narcotics. Sergeant Luna also testified
that the officers did not receive permission from the property owner to bring a drug
4 Officer Morales also testified at the suppression hearing. 4 dog onto the Property. He further testified that the drug dog alerted to the presence
of narcotics in two of the vehicles outside the Property, but no drugs were
recovered from either vehicle. The trial court denied appellant‘s motion to
suppress.
At trial, Officer Morales and Sergeant Luna testified about the investigation
leading up to the search of the Property, the results of the search, and appellant‘s
arrest. Officer Morales testified that DPS contacted him to assist in an
investigation of the Property by bringing his dog to ―do a sniff of the outer
residence.‖ Officer Morales testified that he presented the area along the front of
the house, including the front door and windows leading to the garage area, to his
dog, who alerted to the presence of narcotics. Officer Morales also testified that
the officers requested that he conduct a traffic stop on appellant‘s vehicle for a
registration violation, which he did. Morales informed appellant that ―a search
warrant had been secured for his residence‖ and placed appellant under arrest for
the registration violation. He also had his dog sniff around the vehicle appellant
was driving at the time of his arrest, and the dog alerted to the presence of
narcotics in the car. However, appellant did not have any drugs on his person or in
his vehicle at the time of his arrest. Officer Morales then returned to the Property
with appellant and remained to help conduct the search.
5 Officer Morales testified that, while aiding with the search inside the
Property, his dog alerted to the presence of narcotics in the dresser, the nightstands,
and along the bed area of the largest bedroom. Morales further stated that the dog
alerted to the presence of narcotics on two other vehicles parked outside the
residence at the Property. On cross-examination, Officer Morales clarified that his
dog was trained to detect the ―odor of narcotics‖ and that a positive alert did not
mean that actual narcotics were present in that location at that exact time. He
stated that it was possible that an odor could linger for several days after some kind
of contact with narcotics.
Sergeant Luna testified that he had received information that appellant was
possibly involved with narcotics-related activity at the Property. Sergeant Luna
began his investigation by conducting surveillance of the Property, and he
observed appellant, appellant‘s girlfriend, Larissa Robinson, and their teenaged
songoing to and from the Property on multiple occasions. He also testified that
there were usually two or three vehicles parked in front of the Property and that all
three of the vehicles that were typically parked at the residence were registered to
appellant. He again testified regarding the trash run that resulted in the recovery of
what Luna identified as a wrapper used to protect and to mask the odor of a
kilogram of cocaine and several letters addressed to appellant at that Property.
6 Upon executing the search warrant, Sergeant Luna discovered narcotics in
the master bedroom, including both powdered cocaine and crack cocaine. Some
narcotics were in plain view on top of the dresser, and he discovered various sizes
of baggies and cellophane-wrapped packages of cocaine under the bed and in the
dresser. In searching the dresser, the bedroom closet, and under the bed, officers
also found approximately $72,000 in currency bundled in thousand-dollar
increments, baggies, measuring cups, a set of scales, duct tape, cellophane, and a
microwave. Sergeant Luna testified that, in his experience, drug traffickers use
measuring cups and a microwave to turn powdered cocaine into crack cocaine, and
they use the scales, baggies, cellophane, and duct tape to package large amounts of
cocaine into smaller amounts for distribution. He also testified that drug dealers
frequently keep their cash bundled in thousand-dollar increments to allow them to
keep track of the amount of money they have.
The officers discovered pictures of appellant and Robinson on the dresser,
male and female clothing in the room, and various bank statements and other items
in appellant‘s name. Using a photograph of the bedroom introduced by the State,
Luna also identified a bottle of prescription medication with the name ―Williams‖
on it.Sergeant Luna testified that he was aware of several other addresses appellant
used on various documents, such as the addresses where appellant‘s brother and
Robinson‘s mother lived, but he determined through his surveillance that appellant
7 lived with Robinson and their son at the Property. Sergeant Luna testified that, in
his experience, drug dealers frequently used several different addresses and
vehicles registered to different family members or addresses in an effort to
―distance‖ themselves from a property where they conduct narcotics-related
activities and to make it more difficult for law enforcement to locate them.
The search of the remainder of the Property uncovered approximately 3.5
grams of cocaine in the kitchen above the oven and a large bag of cash bundled in
thousand-dollar increments, totaling approximately $60,000, in the garage attic.
Sergeant Luna testified that the officers recovered more than $140,000 in cash and
approximately 600 grams of narcotics from the Property. Sergeant Luna stated
that, in his experience, that amount of drugs was indicative of intent to distribute
rather thanpossession for personal use. He testified that he had contact with
appellant at the time he executed the search warrant and that appellant seemed
―somber, kind of expecting this day to come. . . .‖
Sergeant Luna also testified about his investigation into appellant‘s financial
records. He discovered that appellant had been employed at a concrete plant for
approximately two years and eight months preceding his arrest and that, based on
records from the Texas Workforce Commission,he earned approximately $117,000
during the five years leading up to his arrest. He stated that Robinson‘s financial
records indicated that she made approximately $24,000 per year. He also testified
8 that appellant had a money-market account, a checking account, and a savings
account in his name and that Robinson had her own separate bank account.
DPS Agent J. Moreno assisted Sergeant Luna with the search of the Property
by collecting and photographing the evidence. He also testified regarding the
various items of evidence collected during the investigation and search of the
Property. Jonathan Salvador, a forensic chemist with DPS, testified about the
testing completed on the evidence taken from the Property. His lab report showed
that the total cocaine collected from the Property, not including wrappings or
containers, weighed 585.38 grams.
RPD Lieutenant A. Slater testified about his experience with narcotics
trafficking. Specifically, he stated that crack cocaine is generally more profitable
than powdered cocaine because crack is made by mixing cocaine with another inert
substance and water and cooking it, frequently using Pyrex measuring cups like the
ones recovered from the Property and a microwave. He testified that the amount of
cocaine recovered from the Property would be valued at approximately $9,500 to
$12,500 wholesale and that it could be re-packaged and sold for anywhere between
$28,311 in its pure powdered form and $169,866 in crack form. Lieutenant Slater
testified that the amounts of narcotics and the type of paraphernalia found on the
Property indicated someone who was a ―mid-level‖ dealer who distributed drugs to
street sellers and that he ―saw nothing that was indicative‖ of someone who
9 maintained a stash of drugs for personal use. He also testified that, in his
experience, it was common for drug dealers to ―distance themselves from the drugs
themselves‖ by utilizing ―what they call a stash house or a work house or a shop
that is distanced from an address that he claims‖ on a driver‘s license or other
official document.
Lieutenant Slater further testified that drug dealers typically do not deposit
their drug money in a bank or other financial institution, because depositing money
in a bank creates a ―paper trail‖ that might raise ―red flags‖ and is easy to follow
once an investigation is opened. Slater stated that money gained through illegal
activities is usually either kept in close proximity to the person who earned it or
hidden at a place thatthe earner ―feel[s] comfortable that nobody else can get to
and nobody else can find.‖ He also stated that drug dealers typically bundle money
in five-hundred or one-thousand-dollar stacks because its helps them keep track of
the money without having to use counting machines or other more complicated
methods. Finally, Lieutenant Slater testified that a drug dog alerted to the odor of
narcotics on the money taken from the Property.
Finally, the State admitted a certified copy of a public document filed in the
civil forfeiture case that was then pending against appellant. The document
contained requests for admission, and, in it, appellant admitted that he was the sole
owner of $141,103 seized on the day the officer executed the search warrant on the
10 Property. Appellant objected to the admission of the document on the ground that
it was ―fruits of the poisonous tree of . . . the illegal search and seizure of these
items.‖ The trial court overruled the objection and admitted the document.
The jury found appellant guilty of money laundering and possession with
intent to deliver.
At the punishment phase, the State presented the enhancement paragraph of
the indictment, which alleged that the offense of possession with intent to deliver
―was committed in a drug-free zone, to-wit, within a thousand feet of premises
owned, rented or leased by a school, to-wit, Terry High School. . . .‖ Appellant
pleaded ―not true‖ to the enhancement allegation. The State also presented
evidence of appellant‘s two prior convictions for possession with intent to deliver.
Lieutenant Slater testified regarding the location where the offense was
committed. He testified that ―anything a thousand feet from a public school
constitutes a drug-free zone‖ that can be presented to the city council for approval
and certification. He further testified that, once the drug-free zone is established, it
is a drug-free zone ―24/7‖ and that it does not matter whether school was in session
at the time the particular offense was committed. The trial court admitted the
Rosenberg City Council‘s resolution certifying the area around Terry High School
as a drug-free zone. Lieutenant Slater testified that his understanding, based on the
survey in the resolution certifying the drug-free zone around Terry High School,
11 was that the Property fell within the drug-free zone. Slater testified that the
Property was approximately five or six blocks from Terry High School.
The jury assessed appellant‘s punishment at nine years‘ confinement and no
fine for the money laundering conviction. The jury found that the offense of
possession with intent to deliver occurred in a drug-free zone and assessed
appellant‘s punishment for that offense at seventy-three years‘ confinement and a
fine of $70,000. In pronouncing appellant‘s sentence, the trial court stated that
appellant‘s sentences would run concurrently.
Three days later, on December 10, 2010, the trial court held a hearing on the
State‘s oral motion to change the trial court‘s ruling that the sentences would run
concurrently to enter judgment that the sentences would run consecutively. The
State argued that Health and Safety Code section 481.134(h) required that the
sentences run consecutively because appellant was convicted of offenses under two
different sections of the code. Appellant opposed the motion, arguing that Penal
Code section 3.03 provides that sentences for convictions for separate offenses
arising out of the same criminal episode and prosecuted together must run
concurrently. Appellant also argued that he agreed to the joinder of the offenses
believing that any sentences would run concurrently, and he objected to any
resentencing on double-jeopardy grounds. The trial court granted the State‘s
motion and pronounced the new sentence to appellant for the sentences to run
12 consecutively. The trial court then signed and entered the final judgment on the
conviction for money laundering on December 13, 2010, and on the conviction for
possession with intent to deliver on December 17, 2010.
Sufficiency of the Evidence
In his first issue, appellant argues that the State failed to present sufficient
evidence to support his convictions.
A. Standard of Review
When reviewing the sufficiency of the evidence, we view the evidence in the
light most favorable to the verdict to determine whether any rational fact finder
could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); see also
Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010) (holding that Jackson
standard is only standard to use when determining sufficiency of evidence). The
jurors are the exclusive judges of the facts, the credibility of the witnesses, and the
weight to be given to the testimony. Brooks, 323 S.W.3d at 899; Bartlett v. State,
270 S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury may accept one version of
the facts and reject another, and it may reject any part of a witness‘s testimony. See
Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000), overruled on other
grounds,Laster v. State, 275 S.W.3d 512 (Tex.Crim.App.2009); see also
Henderson v. State, 29 S.W.3d 616, 623 (Tex.App.—Houston [1st Dist.] 2000, pet.
13 ref‘d) (stating that jury can choose to disbelieve witness even when witness‘s
testimony is uncontradicted). We may not re-evaluate the weight and credibility of
the evidence or substitute our judgment for that of the fact finder. Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We afford almost complete
deference to the jury‘s determinations of credibility. SeeLancon v. State, 253
S.W.3d 699, 705 (Tex. Crim. App. 2008). We resolve any inconsistencies in the
evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406
(Tex.Crim.App.2000); see also Clayton v. State, 235 S.W.3d 772, 778
(Tex.Crim.App.2007) (―When the record supports conflicting inferences, we
presume that the factfinder resolved the conflicts in favor of the prosecution and
therefore defer to that determination.‖).
B. Conviction for Possession with Intent to Deliver
Appellant argues that there was insufficient evidence linking him to the
contraband found in this case.
To demonstrate that appellant possessed cocaine with the intent to deliver,
the State was required to prove that appellant knowingly or intentionally possessed
cocaine in an amount greater than 400 grams with the intent to deliver the cocaine.
See TEX. HEALTH & SAFETY CODE ANN. §§481.102(3)(D), 481.112(a), (f) (Vernon
2010). The ―intent to deliver‖ element may be proved by circumstantial evidence,
including evidence that the accused possessed the contraband and the quantity of
14 the drugs possessed. Moreno v. State, 195 S.W.3d 321, 325 (Tex. App.—Houston
[14th Dist.] 2006, pet. ref‘d).
To prove unlawful possession of a controlled substance, the State must
demonstrate that (1) the defendant exercised care, custody, control, or management
over the substance; and (2) the defendant knew the matter possessed was
contraband. SeeTEX. HEALTH & SAFETY CODE ANN.§ 481.002(38) (Vernon 2010);
Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App.2005). The evidence,
either direct or circumstantial, ―must establish, to the requisite level of confidence,
that the accused‘s connection with the drug was more than just fortuitous.‖
Poindexter, 153 S.W.3d at 405–06 (quoting Brown v. State, 911 S.W.2d 744, 747
(Tex.Crim.App.1995)). This rule is designed ―to protect the innocent bystander
from conviction based solely upon his fortuitous proximity to someone else‘s
drugs.‖Id. at 406. Thus, when the defendant ―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. (quoting Deshong v. State, 625 S.W.2d 327, 329
(Tex.Crim.App.1981)).
―The mere fact that a person other than the accused might have joint
possession of the premises does not require the State to prove that the defendant
15 had sole possession of the contraband, only that there are affirmative links between
the defendant and the drugs such that he, too, knew of the drugs and constructively
possessed them.‖ Id.; see also Cole v. State, 194 S.W.3d 538, 548 (Tex.App.—
Houston [1st Dist.] 2006, pet. ref‘d) (―The State need not prove exclusive
possession of the contraband for conviction.‖).The State need not ―exclude every
reasonable hypothesis other than the defendant‘s guilt, but it must show facts and
circumstances that, viewed in the totality of the circumstances, indicate the
defendant‘s knowledge and control over the drugs.‖ Armstrong v. State, 82 S.W.3d
444, 449 (Tex. App.—Austin 2002, pet. ref‘d).
Texas courts have identified a non-exclusive list of possible ―affirmative
links,‖ including (1) the defendant‘s presence when a search is conducted;
(2) whether the contraband was in plain view; (3) the defendant‘s proximity to and
the accessibility of the narcotic; (4) whether other contraband or drug
paraphernalia was present; (5) whether the defendant owned or had the right to
possess the place where the drugs were found; (6) whether the defendant was
found with a large amount of cash; and (7) whether the conduct of the defendant
indicated a consciousness of guilt.Evans v. State, 202 S.W.3d 158,162 n.12 (Tex.
Crim. App. 2006).Additional link factors include a defendant‘s ―lack of surprise or
concern‖ during an investigation and the amount of contraband discovered. See
Fields v. State, 932 S.W.2d 97, 104 (Tex. App.—Tyler 1996, pet. ref‘d) (holding
16 defendant‘s ―unnatural equanimity and lack of concern‖ is link factor);
Bethancourt–Rosales v. State, 50 S.W.3d 650, 655–56 (Tex. App.—Waco 2001,
pet. ref‘d) (same); Robinson v. State, 174 S.W.3d 320, 328–29 (Tex. App.—
Houston [1st Dist.] 2005, pet. ref‘d) (considering amount of contraband).
The Court of Criminal Appeals cautioned that these factors are ―not a litmus
test,‖ but are ―simply some factors which may circumstantially establish the legal
sufficiency of the evidence to prove a knowing ‗possession.‘‖ Evans, 202 S.W.3d
at 162 n.12. It is not the number of links that is dispositive, but rather the logical
force of all of the evidence, direct and circumstantial.Id. at 162.We need not
consider affirmative link factors that are absent from the evidence. Batiste v. State,
217 S.W.3d 74, 80 (Tex. App.—Houston [1st Dist.] 2006, no pet.)(citingHurtado
v. State, 881 S.W.2d 738, 745 (Tex. App.—Houston [1st Dist.] 1994, pet. ref‘d));
see also Satchell v. State, 321 S.W.3d 127, 134 (Tex. App.—Houston [1st Dist.]
2010, pet. ref‘d) (―The absence of various links does not constitute evidence of
innocence to be weighed against the links present.‖).
Here, Sergeant Luna and Agent Moreno testified that they observed
appellant, his long-time girlfriend Robinson, and their teenaged child come and go
from the Property on multiple occasions during their surveillance and concluded
that they all lived at the Property. The officers observed that the three vehicles that
were regularly parked outside the Property were all registered to appellant. They
17 also testified that they recovered bank statements, pictures of appellant and
Robinson on the dresser, male clothing in the bedroom, and various banks
statements and other items in appellant‘s name from the Property. Luna also
identified a bottle of prescription medication with the name ―Williams‖ in the
master bedroom. The State introduced appellant‘s admission from the civil
forfeiture case against him that he was the sole owner of the money recovered
during the search and of one of the vehicles that was parked in front of the
Property at the time the search warrant was executed. This evidence establishes
that appellant had been present at the location where the contraband was found on
multiple occasions and that he had the right to possess the place where the
contraband was found. See Evans, 202 S.W.3d at 162 n.12 (holding that
appellant‘s proximity to and accessibility of narcotics and whether appellant had
right to possess place where drugs were found are factors linking appellant to
drugs).
Furthermore, Sergeant Luna testified that some of the drugs were located in
plain sight in the master bedroom and that drugs and large amounts of cash were
found in several locations throughout the house. See id. (holding that drugs in
plain view may serve as affirmative link between appellant and drugs). Several
officers testified that the amount of drugs found—nearly 600 grams—exceeded
any amount usually possessed for personal use. See Robinson, 174 S.W.3d at 328–
18 29 (―The power of this factor generally increases as the amount of contraband
found increases. This factor, therefore, is more effective at establishing an
affirmative link when large quantities of contraband are involved.‖). In addition to
the narcotics found at the Property, the search also uncovered large amounts of
cash bundled in thousand-dollar increments, which Sergeant Luna and Lieutenant
Slater both testified was consistent with money obtained through drug dealing, and
other paraphernalia associated with converting powdered cocaine into crack
cocaine and breaking large amounts of cocaine down into smaller units for sale.
See Evans, 202 S.W.3d at 162 n.12 (holding that presence of other contraband or
drug paraphernalia and large amounts of cash may serve to link appellant to drugs).
Sergeant Luna also observed that appellant did not seem surprised when the
officers discovered narcotics and cash at the Property; rather, he seemed somber
and as if he were ―expecting this day to come.‖See id. (holding that conduct of
defendant indicating consciousness of guilt may serve to link defendant to drugs);
Fields, 932 S.W.2d at 104 (considering defendant‘s ―lack of concern‖ or surprise
during investigation as additional linking factor).
Appellant points out that specific affirmative links were not present: he was
not present when the drugs were found, but had to be detained and taken to the
residence by a police officer; he was not under the influence of drugs when he was
arrested and did not possess a weapon; and he did not make incriminating
19 statements, attempt to flee, or make furtive gestures. However, it is not the number
of affirmative links that matter, but the ―logical force‖ that they collectively create,
and we need not consider affirmative link factors that are absent from the evidence.
See Evans, 202 S.W.3d at 162; Batiste, 217 S.W.3d at 80.
We conclude that the direct and circumstantial evidencewas such that the
jury could have concluded that appellant‘s connection with the drugs was more
than just fortuitous.See Poindexter,153 S.W.3d at 405–06. Thus, the evidence was
sufficient to establish that there were affirmative links between appellant and the
drugs such that he knew of the drugs and constructively possessed them.See
Poindexter, 153 S.W.3d at 412; see also Cole, 194 S.W.3d at 548 (―The State need
not prove exclusive possession of the contraband for conviction.‖); Armstrong, 82
S.W.3d at 449 (holding that State need not ―exclude every reasonable hypothesis
other than the defendant‘s guilt, but it must show facts and circumstances that,
viewed in the totality of the circumstances, indicate the defendant‘s knowledge and
control over the drugs‖).
C. Conviction for Money Laundering
Appellant also argues that the evidence supporting his conviction for money
laundering was insufficient. A person commits the offense of money laundering if
he knowingly acquires or maintains an interest in, conceals, or possesses the
proceeds of criminal activity or if he conducts, supervises, or facilitates a
20 transaction involving the proceeds of criminal activity. TEX. PENAL CODE ANN. §
34.02(a)(1)–(2) (Vernon 2011). ―Criminal activity‖ includes any offense that is
classified as a felony in Texas. Id. § 34.01(1)(A) (Vernon 2011). ―Proceeds‖
means funds acquired directly or indirectly from, produced through, or realized
through an act. Id. § 34.01(4).
We have already concluded that the evidence was sufficient to establish that
appellant committed the felony offense of possession with intent to deliver more
than 400 grams of cocaine. The same evidence that we cited to affirm the jury‘s
conclusion that appellant possessed the cocaine also serves to connect appellant to
the more than $140,000 in cash seized from the Property, including appellant‘s
own admission in the related civil-forfeiture proceeding that he was the sole owner
of the currency. The testimony of Sergeant Luna and Lieutenant Slater indicated
that the amount of cash found, the way that it was bundled in thousand-dollar
increments, and the way in which it was hidden were indicative of money earned
through illegal activity such as drug dealing. Sergeant Luna also testified that
appellant had earned a total of only $117,000 through income reported by
employers to the Texas Workforce Commission over the five years preceding his
arrest in this case and that Robinson earned approximately $24,000 a year, and,
thus, it was highly unlikely that the $140,000 in cash discovered at the Property
was the result of any legitimate business.
21 We conclude that the evidence was sufficient to show that appellant
knowingly possessed the proceeds of criminal activity. See id. § 34.02(a)(1).
We overrule appellant‘s first issue.
Motion to Suppress
In his second issue, appellant argues that the trial court erred in denying his
motion to suppress.
A. Sufficiency of Record
Appellant argues that, because the supporting affidavit was not attached to
the search warrant entered into evidence by the State during the suppression
hearing, the trial court ―could not state that the magistrate had a substantial basis
for concluding that probable cause existed to support the issuance of the warrant
when viewing the affidavit because there is no affidavit.‖
Affidavits filed for the issuance of search warrants must provide the
magistrate with sufficient information to support an independent judgment that
probable cause exists for the warrant. McFarland v. State, 928 S.W.2d 482, 509
(Tex. Crim. App. 1996); Weems v. State, 167 S.W.3d 350, 356 (Tex. App.—
Houston [14th Dist.] 2005, pet. ref‘d). In determining the sufficiency of an
affidavit supporting a search warrant, a reviewing court is limited to the ―four
corners‖ of the affidavit. McFarland, 928 S.W.2d at 510; Weems, 167 S.W.3d at
356.
22 Generally, when the State seeks to justify an arrest on the basis of a warrant,
it is incumbent on the State to produce the warrant and its supporting affidavit for
inspection by the trial court. Paulea v. State, 278 S.W.3d 861, 864 (Tex. App.—
Houston [14th Dist.] 2009, pet. ref‘d) (citing Etheridge v. State, 903 S.W.2d 1, 19
(Tex. Crim. App. 1994)). ―‗This requirement is imposed so that the trial court may
inspect the documents and determine whether probable cause existed and ensure
that the arrestee‘s rights have been fully protected.‘‖ Id. (quoting Etheridge,903
S.W.2d at19).However, if a warrant is required to make a valid arrest, the State‘s
failure to produce it at a suppression hearing does not mandate suppression of
evidence. Id. (citing Weems, 167 S.W.3d at356).Rather, wedetermine whether the
State introduced sufficient evidence at the suppression hearing to provide the trial
court with an opportunity to determine whether probable cause existed for the
accused‘s arrest.Id.; see alsoEtheridge, 903 S.W.2d at 19 (holding that when there
was no testimony contradicting the existence of search warrant, the magistrate
testified that he issued warrant, and appellant had opportunity to cross-examine as
to validity of search warrant, State‘s failure to enter warrant itself into evidence did
not prevent trial court from determining that probable cause existed for appellant‘s
arrest); see also Dorsey v. State, 964 S.W.2d 701, 703–04 (Tex. App.—Houston
[14th Dist.] 1998, pet. ref‘d) (―[W]here probable cause is otherwise established
through evidence and testimony, the arrestee‘s rights are still protected.‖).
23 Here, the State introduced the search warrant into evidence without
objection from appellant, but the supporting probable-cause affidavit was not
attached. However, the warrant itself indicated that the affidavit existed: it
expressly incorporated ―the attached affidavit . . . show[ing] that Affiant has
probable cause for the belief expressed therein.‖ Appellant does not challenge that
the affidavit existed and, in fact, specifically stated during the suppression hearing
that the case ―involves a search warrant affidavit‖ that he believed did not establish
within its ―four corners‖ that the magistrate could have properly found the
existence of probable cause. See Etheridge, 903 S.W.2d at 19 (observing that
―there was no testimony contradicting the existence of arrest warrant‖ in
concluding that trial court had sufficient evidence to conclude probable cause
existed). Furthermore, the affiant, Sergeant Luna, testified extensively regarding
the contents of the affidavit and was subject to cross-examination by appellant.
See id. (observing that ―the magistrate testified, without objection, that he did in
fact issue an arrest warrant‖ and that ―[a]ppellant had the opportunity to cross-
examine the magistrate as to the validity of the arrest warrant‖); Dorsey, 964
S.W.2d at 704 (holding that when officer who provided affidavit testified at
hearing and appellant had opportunity to cross-examine and complaint contained
facts based on officer‘s affidavit, there was sufficient proof of probable cause for
trial court to deny motion to suppress).
24 Thus, we conclude that the State‘s failure to produce the affidavit at a
suppression hearing does not mandate suppression of the evidence; rather, wemust
examine the evidence that the State introduced and determine whether it was
sufficient to provide the trial court with an opportunity to determine whether
probable cause existed for the search. See Paulea, 278 S.W.3d at 864.
B. Standard of Review
Appellant argues that the affidavit was insufficient to support the search
warrant, and, thus, the trial court erred in denying his motion to suppress.
We review a trial court‘s ruling on a motion to suppress using a bifurcated
standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App.
2000); McKissick v. State, 209 S.W.3d 205, 211 (Tex. App.—Houston [1st Dist.]
2006, pet. ref‘d). We give almost total deference to the trial court‘s determination
of historical facts that depend on credibility, and we conduct a de novo review of
the trial court‘s application of the law to those facts, including the trial court‘s
application of the law of search of seizure and probable cause. Carmouche, 10
S.W.3d at 327. Our review of an affidavit in support of a search warrant, however,
is not de novo; rather, we give great deference to the magistrate‘s determination of
probable cause. Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983);
McKissick, 209 S.W.3d at 211.The test for determination of probable cause is
whether the magistrate had a substantial basis for concluding that a search would
25 uncover evidence of wrongdoing.Gates, 462 U.S. at 236, 103 S.Ct. at 2331;
McKissick, 209 S.W.3d at 211. Probable cause to support the issuance of a search
warrant exists when the facts submitted to the magistrate are sufficient to justify a
conclusion that the object of the search is probably on the premises to be searched
at the time the warrant is issued. Cassias v. State, 719 S.W.2d 585, 587 (Tex.
Crim. App. 1986); McKissick, 209 S.W.3d at 211.
To justify the issuance of a search warrant, the affidavit submitted in support
must set forth facts sufficient to establish probable cause that (1) a specific offense
has been committed; (2) the specifically described property or items to be searched
for or seized constitute evidence of that offense; and (3) the property or items
constituting such evidence is located at the particular place to be searched.TEX.
CODE CRIM. PROC. ANN. art.18.01(c) (VernonSupp. 2011); McKissick, 209 S.W.3d
at 211. Whether the facts mentioned in the affidavit are adequate to establish
probable cause depends on the totality of the circumstances. Ramos v. State, 934
S.W.2d 358, 362–63 (Tex.Crim.App.1996); McKissick, 209 S.W.3d at 211.
C. Sufficiency of the Affidavit to Establish Probable Cause
Here, Sergeant Luna testified regarding the facts he related in his affidavit.
He testified that he began his investigation based on information from a
confidential informant who had given reliable information to his agency in the
past. He testified that he conducted a trash run, in which he searched trash placed
26 on the curb in front of the Property and discovered a clear wrapper covered in
black electrical tape that he believed was consistent with the type of packaging
used to protect and conceal a kilogram of cocaine. The residue on this wrapper
field-tested positive for cocaine. He further testified that a trained drug dog alerted
to the odor of narcotics at multiple places along the front of the Property. Sergeant
Luna testified that he searched the trash and called in the drug dog on the same day
and that he drafted the affidavit and search warrant seeking to search the Property
and seize any drugs or other contraband located there on the very next day.
Thus, Luna‘s testimony regarding the contents of his affidavit submitted in
support of the search warrant established facts sufficient to demonstrate probable
cause that the offense of possession of cocaine had been committed at the specific
property that was the subject of the search warrant and that contraband items and
other paraphernalia constituting evidence of that offense were located at that
property. See TEX. CODE CRIM. PROC. ANN. art.18.01(c); McKissick, 209 S.W.3d
at 211. We conclude that probable cause to support the issuance of a search
warrant existed because the facts submitted to the magistrate—as represented by
Sergeant Luna‘s uncontested testimony—are sufficient to justify a conclusion that
narcotics and other contraband were probably on the Property at the time the
warrant was issued. Cassias, 719 S.W.2d at 587; McKissick, 209 S.W.3d at 211
(holding that duty of reviewing court is simply to determine whether, considering
27 totality of circumstances, magistrate had substantial basis for concluding that
probable cause existed to support issuance of warrant).
We overrule appellant‘s second issue.
Sentencing Error
In his third issue, appellant argues that the trial court erred in ordering that
his sentences run consecutively rather than ordering the sentences to run
concurrently. Specifically, he argues that they should run concurrently because the
State sought the joinder of the offenses and prosecuted them as one criminal
episode.
On appeal, appellant does not challenge the jury‘s finding that he committed
the offense of possession with intent to deliver a controlled substance in a drug-
free zone. Rather, he argues that the trial court abused its discretion by applying
Health and Safety Code section 481.134(h), addressing drug-free zones, in
determining whether his sentences should run consecutively or concurrently. He
argues that his sentence should be controlled by Penal Code section 3.03 and
Health and Safety Code section 481.132.5
5 Health and Safety Code section 481.132(d) provides that if a defendant is convicted of ―more than one offense arising out of the same criminal episode‖ prosecuted in one trial, then the sentences for the defendant‘s convictions must run concurrently. TEX. HEALTH & SAFETY CODE ANN. § 481.132(d) (Vernon 2010); Williams v. State, 253 S.W.3d 673, 677 (Tex. Crim. App. 2007). Section 481.132(a) provides that ―criminal episode‖ means the commission of two or more offenses under Chapter 481, the Texas Controlled Substances Act, under certain 28 We interpret a statute in accordance with the plain meaning of its language,
unless the language is ambiguous or the plain meaning leads to absurd results that
the legislature could not possibly have intended. Williams v. State, 253 S.W.3d
673, 677 (Tex. Crim. App. 2008);Thompson v. State, 236 S.W.3d 787, 792 (Tex.
Crim. App. 2007).
Penal Code section 3.03 requires that, except in circumstances not applicable
here, ―[w]hen an accused is found guilty of more than one offense arising out of
the same criminal episode prosecuted in a single criminal action, a sentence for
each offense for which he has been found guilty shall be pronounced‖ and such
sentences ―shall run concurrently.‖ TEX. PENAL CODE ANN. § 3.03 (Vernon 2010).
Health and Safety Code section 481.134(h) provides that ―[p]unishment that
is increased for a conviction for an offense listed under this section may not run
concurrently with punishment for a conviction under any other criminal statute.‖
TEX. HEALTH & SAFETY CODE ANN. § 481.134(h) (Vernon Supp. 2011). The Court
of Criminal Appeals has held:
It is apparent from the language of this statute that a conviction for an offense listed anywhere within [section] 481.134 cannot run concurrently with a conviction for an offense under any other criminal statute. Just reading the statute under the auspices of common usage
circumstances. TEX. HEALTH & SAFETY CODE ANN. § 481.132(a). However, appellant was only charged with one offense under Chapter 481—money laundering is an offense under Penal Code section 34.02. Thus, Health and Safety Code section 481.132(d) does not apply to appellant‘s case.
29 and grammar, ―any other criminal statute‖ means a criminal statute not listed within [section] 481.134.
Williams, 253 S.W.3d at 678 (observing that ―we give exclusive effect of a specific
provision over a more general provision . . . when the two irreconcilably conflict‖)
(citing TEX. GOV‘T CODE ANN. § 311.026(b) (Vernon 2005)).
In Newman v. State, the Amarillo Court of Appeals addressed the conflict
between the provisions of Penal Code section 3.03 and Health and Safety Code
section 481.134(h) in a case where the appellant was convicted in the same trial for
possession of a controlled substance in a drug-free zone and for engaging in
organized criminal activity.268 S.W.3d 266, 268–69 (Tex. App.—Amarillo 2008,
pet. ref‘d).The Newman court ―follow[ed] the admonishment in Williams that the
specific must control over general‖ in concluding that, because section 481.134(h)
covered the specific circumstances in the case, ―the trial court had no option but to
order that the sentences run consecutively.‖ Id. at 269.
Here, appellant was convicted in one trial of an offense listed in section
481.134—possession with intent to deliver under section 481.112(f) within a drug-
free zone—and another offense under the Penal Code—money laundering. As in
Newman, we conclude that section 481.134 addresses the specific circumstances of
this case and must control over the more general provision in Penal Code section
3.03. See id. The plain language of section 481.134 provides that a conviction for
an offense listed anywhere within section 481.134 cannot run concurrently with a 30 conviction for an offense under any other criminal statute—i.e., a criminal statute
not listed in section 481.134, such as money laundering under Penal Code section
34.02. See TEX. HEALTH & SAFETY CODE ANN. § 481.134(h); Williams, 253
S.W.3d at 678.
We conclude that Health and Safety Code section 481.134(h) requires that
appellant‘s sentences run consecutively.
Appellant also argues that ―the trial court lacked authority to cumulate his
sentences more than 3 days after pronouncing his sentence . . . because the trial
court did not orally order cumulation when sentencing Appellant on December 7,
2010.‖ Appellant cites Ex Parte Madding, 70 S.W.3d 131 (Tex. Crim. App. 2002)
and State v. Aguilera, 165 S.W.3d 695 (Tex. Crim. App. 2005) to support his
contention.
In Aguilera, the trial court modified the defendant‘s sentence just a few
minutes after it had initially sentenced him and before it adjourned for the day.
165 S.W.3d at 697. The Court of Criminal Appeals held that the trial court acted
within its authority, stating:
At a minimum, a trial court retains plenary power to modify its sentence if a motion for new trial or motion in arrest of judgment is filed within 30 days of sentencing. We hold that a trial court also retains plenary power to modify its sentence if, as in this case, the modification is made on the same day as the assessment of the initial sentence and before the court adjourns for the day. The re-sentencing must be done in the presence of the defendant, his attorney, and counsel for the state. 31 Id.at 697–98. The Court of Criminal Appeals also expressed its approval of other
cases in which the defendants were resentenced after the day of the original
sentencing. Id. at 698 n.7 (citing Junious v. State, 120 S.W.3d 413, 417 (Tex.
App.—Houston [14th Dist.] 2003, pet. ref‘d) (holding trial court was authorized to
alter appellant's sentence fifteen days after original sentencing but within time of
its plenary jurisdiction) and Ware v. State, 62 S.W.3d 344, 353–55 (Tex. App.—
Fort Worth 2001, pet. ref‘d) (holding trial court was authorized to correct mistake
in entering void judgment by resentencing defendant twelve days after original
sentencing)).
Furthermore, a court has power to correct, modify, vacate, or amend its own
rulings, including the sentence, within the time of its plenary jurisdiction.See
Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex. Crim. App. 1998) (holding that
―an order granting or denying a motion for new trial may be freely rescinded so
long as such action occurs within the 75 days provided by the rules‖); Meineke v.
State, 171 S.W.3d 551, 558 (Tex. App.—Houston [14th Dist.] 2005, pet. ref‘d)
(noting trial court can, in interest of judicial economy, exercise its plenary power to
correct illegal sentence by modifying, vacating or amending its rulings);
Junious,120 S.W.3d at 417 (holding trial court was authorized to alter appellant‘s
sentence within the time of its plenary jurisdiction).
32 Here, the trial court had not yet signed the final judgments at the time it
modified appellant‘s sentence, and neither party contests that the trial court had
plenary jurisdiction at the time it resentenced appellant, three days after the
original sentencing. The resentencing was done in the presence of appellant, his
attorney, and counsel for the State. See Aguilera,165 S.W.3d at 698; Madding, 70
S.W.3d at 136 (holding written judgment modifying sentence outside defendant‘s
presence and after oral pronouncement was not void but was reversible because
defendant‘s due process was violated). Furthermore, the Court of Criminal
Appeals expressly approved Ware, in which the Fort Worth Court of Appeals held
that the trial court was authorized to correct its mistake in entering a void judgment
by resentencing defendant twelve days after the original sentencing. See Aguilera,
165 S.W.3d at 698 n.7 (citing Ware, 62 S.W.3d at 353–55). Thus, we conclude
that the trial court had authority to correct its original, mistaken pronouncement
that appellant‘s sentences should run concurrently.
We overrule appellant‘s third issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes Justice 33 Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
Do not publish. TEX. R. APP. P. 47.2(b).