COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-14-00117-CR
CHRISTOPHER YARBOROUGH APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY TRIAL COURT NO. 1313733D
MEMORANDUM OPINION1
I. INTRODUCTION
After a bench trial, Appellant was convicted of possession with intent to
deliver methamphetamine in an amount of one gram or more but less than four
grams. See Tex. Health & Safety Code Ann. 481.112(c) (West 2010). The trial
court sentenced him to twenty years’ confinement. In four points, Yarbrough
1 See Tex. R. App. P. 47.4. complains of the denial of his motion to suppress, the sufficiency of the evidence,
and the trial court’s withdrawal of its oral ruling granting Yarbrough’s motion for
directed verdict. We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Yarborough and his girlfriend Christi Jo Bass lived together in an
apartment in Arlington, Texas. Police received a tip from a confidential informant
(CI) that Yarborough and Bass were selling methamphetamine from the
apartment. Police arranged for the CI to make a controlled buy of
methamphetamine at the apartment, and the CI purchased methamphetamine
from Bass at the apartment. Detective Eric Curtis of the Tarrant County Sheriff’s
Office obtained a warrant to search the apartment. Detective Curtis, along with
several other officers, executed the warrant a few hours later.
Seven people, including Yarborough and Bass, were inside the apartment
when the police executed the search warrant. The apartment had three
bedrooms; police determined that Yarborough and Bass shared one bedroom
based on items found in the bedroom connecting them to that room and based
on interviews conducted by police. Police found two safes underneath the bed in
that bedroom. The larger safe did not contain any drugs or drug paraphernalia.
The smaller safe contained a digital scale, fifty to one hundred small plastic
baggies, and 3.55 grams of methamphetamine. The phrase “Boss + CJo”—
which police learned were names for Yarborough and Bass—was handwritten
with a hot pink marker on the back of the digital scale. Police also found two
2 syringes filled with liquid methamphetamine inside a dresser drawer in that
bedroom. Police searched the seven individuals and found 27.92 grams of
methamphetamine in a purse belonging to one of the individuals, Cindy Barton.
Yarborough had $650 in cash in his pocket.
Yarborough and three other individuals—Christi Jo Bass, Cindy Barton,
and Brian Perry—were arrested for possession of a controlled substance with the
intent to deliver.
III. MOTION TO SUPPRESS
In his first point, Yarborough argues that the trial court abused its
discretion by denying his motion to suppress the fruits of the search warrant
because the search warrant affidavit was vague and ambiguous.
A magistrate may not issue a search warrant without first finding “probable
cause” that a particular item will be found at a particular location. Flores v. State,
319 S.W.3d 697, 702 (Tex. Crim. App. 2010). Probable cause for a search
warrant exists if, under the totality of the circumstances presented to the
magistrate, there is at least a “fair probability” or “substantial chance” that
contraband or evidence of a crime will be found at the specified location. Illinois
v. Gates, 462 U.S. 213, 238, 243 n.13, 103 S. Ct. 2317, 2332, 2335 n.13 (1983);
Flores, 319 S.W.3d at 702. In reviewing a magistrate’s decision to issue a
warrant, we will uphold the magistrate’s probable cause determination “so long
as the magistrate had a ‘substantial basis for . . . conclud[ing]’ that a search
would uncover evidence of wrongdoing.” Gates, 462 U.S. at 236, 103 S. Ct. at
3 2331; see State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). Both
appellate courts and trial courts alike must give great deference to a magistrate’s
implicit finding of probable cause. McLain, 337 S.W.3d at 271.
In assessing the sufficiency of an affidavit for a search warrant, the
reviewing court is limited to the four corners of the affidavit. Jones v. State, 833
S.W.2d 118, 123 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 921 (1993). The
reviewing court should interpret the affidavit in a common-sense and realistic
manner, recognizing that the magistrate was permitted to draw reasonable
inferences. Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006). The
reviewing court should not analyze the affidavit in a hyper-technical manner.
McLain, 337 S.W.3d at 271.
In the affidavit in support of the search warrant in this case, Detective
Curtis stated that the CI had recently notified him that Yarborough and Bass were
distributing methamphetamine from the Arlington apartment. Detective Curtis
stated that he had met with the CI “[w]ithin the past 24 to 72 hours” and that the
CI had stated that the CI could purchase methamphetamine at the apartment.
The Tarrant County Sheriff’s Office Narcotics/Vice Unit arranged for a controlled
buy, searched the CI’s person and vehicle for contraband and money prior to the
controlled buy, and sent the CI to the apartment to purchase methamphetamine
with departmental funds. The CI purchased a useable amount of
methamphetamine from Bass at the apartment. Detective Curtis stated, “While
inside of the room, the CI observed several plastic bags with a crystal like
4 substance inside of them ready for distribution. The CI knew the crystal like
substance to be methamphetamine.” The substance that the CI purchased at the
apartment tested positive for methamphetamine. The affidavit also stated that
the CI had told Detective Curtis that “within the last 24 to 72 hours, [the CI]
observed . . . Yarbrough [sic] . . . within the suspected place and to be in
possession of a substance [that the CI] recognized to be methamphetamine; the
substance appeared to be packaged for distribution.”
Detective Curtis stated in his affidavit that he believed the CI to be credible
and reliable. Detective Curtis alleged,
Affiant is aware that officers of the Tarrant County Sheriff’s Office Narcotics Unit have utilized said Confidential Informant to make covered buys that have led to narcotics seizures and/or arrests two times in the recent past. Affiant is aware that said Confidential Informant has demonstrated during these past investigations the ability to accurately recognize illegal narcotics such as methamphetamine. Those same seized substances were tested by authorized chemists, and/or a presumptive test, and found to be controlled substances. Affiant is aware that officers of the Tarrant County Sheriff’s Office Narcotics Unit have verified and/or corroborated information provided by said Confidential Informant during the past investigations and found it to be true and correct. Affiant requests that the identity of said Confidential Informant remain anonymous for his/her safety, and for the success of other ongoing narcotics investigations.
Detective Curtis also stated in his affidavit that the FBI had identified Yarborough
as a member of the Aryan Brotherhood. He requested authorization to enter the
apartment without first knocking and announcing the officers’ presence and
purpose because “to do so would be futile, dangerous, and otherwise inhibit the
effective investigation of the offense.” In support of his request, he stated that
5 the Aryan Brotherhood is a violent street gang with a history of violence against
police officers.
On appeal, as he did at the suppression hearing, Yarborough complains
that the affidavit fails to state how the CI knew that Bass and Yarborough were
selling methamphetamine, that the officers did not witness the controlled buy and
had to rely on the CI’s statements of what the CI saw in the apartment, and that
Detective Curtis could not rely on other officers’ determinations that the CI had
been credible in the past. But reading the affidavit as a whole, as we must, and
considering all of the facts in the affidavit along with reasonable inferences from
those facts, we hold that the facts stated in the affidavit were sufficient to support
the magistrate’s determination that there was a fair probability that
methamphetamine would be found in the apartment. See Gates, 462 U.S. at
238, 103 S. Ct. at 2332; McLain, 337 S.W.3d at 273.
Information provided by an informant must contain some indicia of
reliability or be reasonably corroborated by police before it can be used to justify
a search. Gates, 462 U.S. at 242, 103 S. Ct. at 2334. The CI here provided a
specific reason for the CI’s belief that Yarborough and Bass were selling
methamphetamine from the apartment—the CI had observed Yarborough in the
apartment with methamphetamine that appeared to be packaged for distribution
and stated that the CI could purchase methamphetamine at the apartment. And
Detective Curtis stated that he had determined that the CI was credible and
reliable based on other officers’ dealings with this CI in the past; Detective Curtis
6 could rely on other officers’ determinations that the CI was credible. See, e.g.,
Gish v. State, 606 S.W.2d 883, 886 (Tex. Crim. App. [Panel Op.] 1980)
(“Observations reported to the affiant by other officers engaged in the
investigation can constitute a reliable basis for issuing a warrant.”); Blake v.
State, 125 S.W.3d 717, 727 (Tex. App.—Houston [1st Dist.] 2003, no pet.)
(rejecting claim that officer could not rely on another officer’s assertions that an
informant was reliable and credible as support for a search warrant). Detective
Curtis corroborated the information provided by the CI by conducting a controlled
buy in which the CI purchased a useable amount of methamphetamine at the
apartment. See Jones v. State, 364 S.W.3d 854, 857, 862 (Tex. Crim. App.)
(holding that supporting affidavit in which officer stated that an informant had
recently told officer that drugs were present at residence and then conducted a
controlled buy using a second informant provided probable cause justifying
search warrant), cert. denied, 133 S. Ct. 370 (2012). Although the affidavit does
not state whether any officer maintained surveillance on the informant during the
controlled buy, it is not necessary for an officer to have done so to present a
magistrate with sufficient facts to reasonably conclude that a search of the
apartment would probably reveal methamphetamine and evidence of its
distribution, especially in light of Detective Curtis’s statements regarding the CI’s
credibility. See, e.g., State v. Griggs, 352 S.W.3d 297, 305 (Tex. App.—Houston
[14th Dist.] 2011, pet. ref’d); cf. State v. Ozuna, 88 S.W.3d 307, 313 (Tex. App.—
San Antonio 2002, pet. ref’d) (upholding suppression of evidence where search
7 warrant affidavit contained no evidence that informants had been used in the
past and proven to be reliable).
Reviewing the entirety of the information contained in Detective Curtis’s
affidavit, we hold that the trial court did not err by denying Yarborough’s motion to
suppress based on the issuing magistrate’s determination that the search
warrant affidavit contained sufficient facts to justify a conclusion that a search of
the apartment would probably uncover methamphetamine and evidence of its
distribution. See McLain, 337 S.W.3d at 271. We overrule Yarborough’s first
point.
IV. SUFFICIENCY OF THE EVIDENCE
In his second point, Yarborough argues that the evidence is insufficient to
support his conviction. He argues that the evidence failed to show that he
actually possessed a controlled substance and that the only evidence tending to
show his possession was the uncorroborated testimony of Bass.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170
(Tex. Crim. App. 2014). This standard gives full play to the responsibility of the
trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to
8 draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434
S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010). Instead, we determine whether the necessary inferences are
reasonable based upon the cumulative force of the evidence when viewed in the
light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.
Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013). We must presume that the factfinder resolved any conflicting inferences
in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99
S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.
To prove possession, the State must prove that the accused (1) exercised
actual care, custody, control, or management over the substance and (2) knew
that the matter possessed was a controlled substance. See Tex. Health & Safety
Code Ann. § 481.002(38) (West Supp. 2014); Tex. Penal Code Ann.
§ 1.07(a)(39) (West Supp. 2014); Evans v. State, 202 S.W.3d 158, 161 (Tex.
Crim. App. 2006). When the accused does not have actual possession of the
controlled substance or exclusive possession of the location where the controlled
substance was found, additional independent facts or circumstances connecting
9 or linking the accused to the knowing possession of the contraband must support
a conclusion that the accused had possession over the contraband. Poindexter
v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). This is because, whether
the evidence is direct or circumstantial, it must establish that the defendant’s
connection with the contraband was more than fortuitous. Evans, 202 S.W.3d at
161. The “affirmative links rule” is designed to protect the innocent bystander
from conviction based solely upon his fortuitous proximity to someone else’s
drugs. Poindexter, 153 S.W.3d at 405–06.
Relevant non-exclusive links tending to connect a defendant to knowing
possession include (1) whether the defendant was present when the search was
conducted, (2) whether the contraband was in plain view, (3) whether the
contraband was in close proximity to and accessible by the defendant, (4)
whether the defendant was under the influence of narcotics when arrested, (5)
whether the defendant possessed other contraband or narcotics when arrested,
(6) whether the defendant made incriminating statements when arrested, (7)
whether the defendant attempted to flee, (8) whether the defendant made furtive
gestures, (9) whether there was an odor of contraband, (10) whether other
contraband or drug paraphernalia was 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, 202 S.W.3d at 162 n.12;
10 Isbell v. State, 246 S.W.3d 235, 238 (Tex. App.—Eastland 2007, no pet.). It is
not the number of links that is dispositive but the logical force of all of the
evidence. Evans, 202 S.W.3d at 162.
Yarborough complains on appeal that the only evidence connecting him to
the drugs found in the apartment was the uncorroborated testimony of his co-
defendant, Bass. But even excluding her testimony, the record reveals ample
evidence tending to connect him to the methamphetamine and drug
paraphernalia found in the apartment. Yarborough was present inside the
apartment when police executed the search warrant. Police found 3.55 grams of
methamphetamine, small baggies, and a digital scale in a small combination safe
under the bed in the bedroom shared by Yarborough and Bass. Detective Curtis
testified that the scale, the plastic baggies, and the large amount of
methamphetamine indicated that the methamphetamine was intended for
distribution. The scale had the words “Boss + CJo” handwritten on it. Detective
Curtis testified that his investigation revealed that “Boss” referred to Yarborough
and that “CJo” referred to Bass. The State had Yarborough show the trial court
his knuckles, which were tattooed with the word “Boss.” Police also found two
syringes loaded with liquid methamphetamine in a dresser drawer in the
bedroom. The bedroom also contained Yarborough’s personal items, including
legal documents with his name and signature on them, men’s clothing in his size,
and a bag containing men’s personal hygiene items. These direct and
circumstantial links proved by the State establish that Yarborough’s connection
11 with the methamphetamine was more than just fortuitous. See, e.g., Figueroa v.
State, 250 S.W.3d 490, 501 (Tex. App.––Austin 2008, pet. ref’d) (holding
defendant sufficiently linked to cocaine found underneath a bed in bedroom
where documents, prescription bottle, and credit card––all with defendant’s name
on them––were found); Cooper v. State, 852 S.W.2d 678, 681 (Tex. App.––
Houston [14th Dist.] 1993, pet. ref’d) (holding that two envelopes addressed to
defendant in room where drugs were found constituted link between defendant
and drugs).
Viewing all of the evidence in the light most favorable to the prosecution,
as we must, and excluding the testimony of Yarborough’s co-defendant Bass, we
hold that the logical force of the evidence lends itself to the conclusion that
Yarborough possessed the methamphetamine. The links to Yarborough are
sufficient to permit the trial court, as the finder of fact, to find beyond a
reasonable doubt that Yarborough knowingly possessed between one and four
grams of methamphetamine with intent to deliver. See Jackson, 443 U.S. at 319,
99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007);
Evans, 202 S.W.3d at 162 n.12. Accordingly, we hold that the evidence is
sufficient to support Yarborough’s conviction, and we overrule his second point. 2
2 Yarborough argues in his third point that the evidence is factually insufficient to support his conviction, but we review the sufficiency of the evidence under the single sufficiency standard set out in Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. Brooks v. State, 323 S.W.3d 893, 895, 912 (Tex. Crim. App. 2010) (overruling Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 1996)). Consequently, we overrule his third point.
12 V. DOUBLE JEOPARDY
In his fourth point, Yarborough argues that the trial court erred by finding
him guilty in contradiction of its earlier ruling granting his motion for instructed
verdict, thus violating double jeopardy.
At the close of the State’s case, Yarborough made an oral motion for a
directed verdict, arguing that the evidence was insufficient to affirmatively link
him to the methamphetamine found in the safe. The trial court initially granted
the motion, but then the trial court continued to discuss the issues with the
attorneys. After hearing more arguments from both sides and discussing the
court’s concerns, the trial court announced that it was “going to reverse its
decision on that” and denied Yarborough’s motion for directed verdict.
Yarborough did not object and began his case-in-chief.
The Double Jeopardy Clause of the United States Constitution provides
that no person shall be subjected to twice having life or limb in jeopardy for the
same offense. U.S. Const. amend. V. Generally, this clause protects against a
second prosecution for the same offense after acquittals. Brown v. Ohio, 432
U.S. 161, 165, 97 S. Ct. 2221, 2225 (1977); Ex parte Cavazos, 203 S.W.3d 333,
336 (Tex. Crim. App. 2006). In the double jeopardy context, determination of
whether an acquittal has occurred “is not controlled by the form of the judge’s
action” but instead by examining whether the judge’s ruling, “whatever its label,
actually represent[ed] a resolution, correct or not, of some or all of the factual
elements of the offense charged.” State v. Blackshere, 344 S.W.3d 400, 406–
13 407 (Tex. Crim. App. 2011) (citing United States v. Martin Linen Supply Co., 430
U.S. 564, 571, 97 S. Ct. 1349, 1354–55 (1977)).
Yarborough did not raise a double jeopardy objection at trial, but he may
raise it for the first time on appeal if “the undisputed facts show the double
jeopardy violation is clearly apparent on the face of the record and . . .
enforcement of usual rules of procedural default serves no legitimate state
interests.” Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000)
(footnotes omitted).
The trial court’s initial ruling on Yarborough’s motion for directed verdict
was in the nature of an acquittal, but during the same discussion in which the trial
court granted the motion, the trial court reconsidered its ruling and denied the
motion. The trial court was within its discretion to reconsider this ruling. See
Rodriguez v. State, 852 S.W.2d 516, 520 (Tex. Crim. App. 1993) (holding that
trial court acted within its authority by withdrawing its order granting a mistrial
when trial court granted mistrial, immediately conferenced with attorneys, and
then withdrew its ruling after conference); Carter v. State, No. 05-96-00805-CR,
1998 WL 83799, at *1 (Tex. App.—Dallas Feb. 24, 1998, no pet.) (mem. op., not
designated for publication) (applying Rodriguez to trial court’s withdrawal of its
initial ruling granting appellant’s motion for directed verdict). Because the trial
court acted within its authority by withdrawing its initial grant of a directed verdict
in favor of Yarborough after further argument by the parties, no double jeopardy
violation occurred. Thus, we overrule Yarborough’s fourth point.
14 VI. CONCLUSION
Having overruled Yarborough’s four points, we affirm the trial court’s
judgment.
/s/ Sue Walker SUE WALKER JUSTICE
PANEL: WALKER and MEIER, JJ.; and CHARLES BLEIL, J. (Senior Justice, Retired, Sitting by Assignment).
MEIER, J. filed a dissenting opinion.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: April 16, 2015