Gary Wayne Alexander v. State

• Court: Court of Appeals of Texas
• Decided: August 8, 2013
• Docket: 10-12-00224-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-12-00224-CR

GARY WAYNE ALEXANDER, Appellant v.

THE STATE OF TEXAS, Appellee

From the 54th District Court McLennan County, Texas Trial Court No. 2011-1951-C2

MEMORANDUM OPINION

In one issue, appellant, Gary Wayne Alexander, challenges the sufficiency of the

evidence supporting his conviction for unlawful possession of a controlled substance

with intent to deliver in a drug-free zone, a first-degree felony. See TEX. HEALTH &

SAFETY CODE ANN. §§ 481.112, 481.134 (West 2010 & Supp. 2012). We affirm. I. BACKGROUND

On May 6, 2011, agents and officers of the Waco Police Department executed a

search warrant on a house located at 705 Harlem. Witnesses identified this house as a

trap house, which was described as follows:

A trap house is a house that they—that a drug dealer may try to set up to conduct business out of, drug business, have people come to and from the house. There’s usually not that much furniture. And they try not to have anything at the house that may have their name attached to it, like a water bill, rent, where somebody paid rent in their name. There’s usually not any cable television turned on. Bare—bare minimum, bear [sic] furniture. They just don’t want to be tied to it.

While searching the house, agents and officers discovered that the house did not have

much furniture and that there was narcotics residue “here and there.” Further

investigation of the house revealed a hole in the floor of a bathroom. While shining a

light through the hole in the floor, police discovered a clear package containing a white-

rock substance. Believing the package contained narcotics, police retrieved the package

and tested it. Field tests showed that the package contained 14.31 grams of cocaine.

Officer Darrel Don Patterson noted that the package did not have any dust on it,

implying that it had recently been placed in the crawl space of the house. Officer

Patterson also recounted that both a plate and a Pyrex measuring cup in the house

tested positive for cocaine. Scales, baggies, razor blades, and two guns were found

inside the house and inside the cars parked at the house. Officer Patterson also

remembered that photographs, a video camera, and a videotape were seized from the

house.

Alexander v. State Page 2 Witnesses testified that appellant was found inside the house while the search

warrant was being executed. Officer Michael Bucher stated that he observed appellant

running into the living room of the house from a hallway when law enforcement

entered the house.1 In any event, Officer Patterson noted that appellant had $388

dollars in cash on his person at the time of his arrest.

Officers also found photographs contained in a sleeve accompanied by a receipt

listing appellant’s name. Many of the photographs depicted the house at 705 Harlem,

and in several photographs, appellant was inside the house. Officer Jason Barnum

testified that, in one of the photographs, appellant appeared to be sitting in a chair

“holding a wad of money next to a plate of crack,” though he later admitted that the

photograph could have depicted appellant’s brother, Ulis. In another photograph,

Officer Barnum identified appellant as wearing a gold medallion necklace with a t-shirt

stating, “Married to the Game.” Officer Barnum explained that the expression,

“Married to the Game,” is common slang for selling drugs.

Patrol Sergeant John Allovio described the videotape that was seized from the

house. According to Sergeant Allovio, the videotape depicted a drug deal transpiring at

the house at 705 Harlem. At some point during the video, a guy states “Gary Wayne”

or “G Wayne ain’t told me that” regarding how to conduct a drug deal. Sergeant

Allovio testified this statement referenced appellant. Apparently, appellant was the

videographer of the drug deal based on Sergeant Allovio’s identification of appellant

1 According to Officer Bucher, when appellant saw law enforcement enter the house, he ran and fell over on a couch.

Alexander v. State Page 3 holding a video camera from a reflection on a car. Sergeant Allovio also testified that

appellant’s name was called out several other times during the video. And finally,

Sergeant Allovio stated that several cell phones were found at the house and that

multiple cell phones and firearms are typically used in drug dealing.

At the conclusion of the evidence, the jury found appellant guilty of the charged

offense. Appellant pleaded true to an enhancement paragraph contained in the

indictment that referred to his prior conviction for aggravated assault with a deadly

weapon on November 22, 2004. The jury subsequently assessed punishment at forty

years’ incarceration in the Institutional Division of the Texas Department of Criminal

Justice with a $10,000 fine. This appeal followed.

II. STANDARD OF REVIEW

In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of

Criminal Appeals expressed our standard of review of a sufficiency issue as follows:

In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must 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. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. “Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d at 13.

Id.

Alexander v. State Page 4 Our review of "all of the evidence" includes evidence that was properly and

improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if

the record supports conflicting inferences, we must presume that the factfinder resolved

the conflicts in favor of the prosecution and therefore defer to that determination.

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial

evidence are treated equally: “Circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that

the factfinder is entitled to judge the credibility of the witnesses and can choose to

believe all, some, or none of the testimony presented by the parties. Chambers v. State,

805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). A person commits an offense if he knowingly

manufactures, delivers, or possesses with intent to deliver a controlled substance listed

in Penalty Group 1. TEX. HEALTH & SAFETY CODE ANN. § 481.112(a). Cocaine is a

controlled substance listed in Penalty Group 1. Id. § 481.102(3)(D) (West 2010). Section

481.112 of the health and safety code further provides that an offense under 481.112(a) is

a felony of the first degree if the amount of the controlled substance to which the

Alexander v. State Page 5 offense applies is, by aggregate weight, including adulterants and dilutants, four grams

or more but less than 200 grams.2 Id. § 481.112(d).

III. ANALYSIS

In his sole issue, appellant contends that the evidence is insufficient to establish

that he was directly involved in or a party to the possession or distribution of a

controlled substance.

A. Applicable Law

To prove unlawful possession of a controlled substance with intent to deliver, the

State was required to prove, beyond a reasonable doubt, that appellant: (1) exercised

custody, control, management, or care over the substance; (2) intended to deliver the

controlled substance to another; and (3) knew that the matter possessed was

contraband. See id. § 481.112(a); see also Cadoree v. State, 331 S.W.3d 514, 524 (Tex.

App.—Houston [14th Dist.] 2011, pet. ref’d). Whether this evidence is direct or

circumstantial, “it must establish, to the requisite level of confidence, that the accused’s

connection with the drug was more than just fortuitous. This is the whole of the so-

called ‘affirmative links’ rule.” Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim.

App. 2005). The affirmative links rule is designed to protect the innocent bystander

from conviction based solely upon his fortuitous proximity to someone else’s drugs. Id.

2 The fact that appellant was convicted of charged offense in a drug-free zone only affected the

corresponding punishment range. See TEX. HEALTH & SAFETY CODE ANN. § 481.134(c) (West Supp. 2012) (providing that when an offense is committed in a designated drug-free zone, the minimum term of confinement is increased to ten years, and the maximum fine is increased to $20,000); cf. TEX. PENAL CODE ANN. § 12.32 (West 2011) (stating that the punishment range for first-degree felonies is a term of imprisonment for five to ninety-nine years or life and a maximum fine of $10,000). Appellant does not challenge this aspect of his conviction.

Alexander v. State Page 6 at 406. When the accused 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. The

affirmative link may be shown by direct or circumstantial evidence, but in either case, it

must establish, to the requisite level of confidence, that the accused’s connection with

the drug was more than just fortuitous. Id. Furthermore, intent to deliver can be

proven by circumstantial evidence, including the nature of the area where the accused

was arrested, the quantity of drugs he possessed when he was arrested, and the manner

in which the drugs were packaged. See Kibble v. State, 340 S.W.3d 14, 18-19 (Tex. App.—

Houston [1st Dist.] 2010, pet. ref’d).

A link between the accused and the contraband may be established by the

following non-exclusive list of factors: (1) the contraband was in plain view; (2) the

accused owned the premises or had the right to possess the place where the contraband

was found; (3) the accused had a large amount of cash when found; (4) the accused’s

access to the contraband; (5) the accused’s close proximity to the contraband; (6) there

was a strong residual odor of the contraband; (7) the accused possessed other

contraband when arrested; (8) paraphernalia to use the contraband was present on the

accused or in plain view; (9) the accused was under the influence of narcotics when

arrested; (10) the accused’s conduct indicated a consciousness of guilt; (11) the accused

attempted to escape or flee; (12) the accused made furtive gestures; (13) the accused had

a special connection to the contraband; (14) conflicting statements about relevant

Alexander v. State Page 7 matters were made by the occupants; (15) the accused made incriminating statements

connecting himself to the contraband; (16) the quantity of the contraband; and (17) the

accused was observed in a suspicious area under suspicious circumstances. See Lopez v.

State, 267 S.W.3d 85, 92 (Tex. App.—Corpus Christi 2008, no pet.) (citing Lassaint v.

State, 79 S.W.3d 736, 740-41 (Tex. App.—Corpus Christi 2002, no pet.)); see also Crenshaw

v. State, No. 10-11-00244-CR, 2012 Tex. App. LEXIS 8909, at **7-8 (Tex. App.—Waco Oct.

25, 2012, no pet.) (mem. op., not designated for publication). The sufficiency of the links

is not based on the number of factors established, but on the logical force of all the

circumstantial and direct evidence. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App.

2006); see Lopez, 267 S.W.3d at 92.

Further, according to the law of parties, each party to an offense may be charged

with the commission of the offense. TEX. PENAL CODE ANN. § 7.01(b) (West 2011). A

person is a party to an offense if “acting with intent to promote or assist the commission

of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person

to commit the offense.” Id. § 7.02(a)(2) (West 2011). When a party is not the “primary

actor,” the State must prove conduct constituting an offense plus an act by the

defendant alone with the intent to promote or assist such conduct. Beier v. State, 687

S.W.2d 2, 3 (Tex. Crim. App. 1985). Evidence may be deemed sufficient to sustain a

conviction under the law of parties if the evidence shows that the defendant was

physically present at the commission of the offense and encouraged the commission of

the offense either by words or other agreement. Miller v. State, 83 S.W.3d 308, 313-14

(Tex. App.—Austin 2002, pet. ref’d) (citing Urtado v. State, 605 S.W.2d 907, 911 (Tex.

Alexander v. State Page 8 Crim. App. 1980); Tarpley v. State, 565 S.W.2d 525, 529 (Tex. Crim. App. 1978)).

Circumstantial evidence may suffice to show that one is a party to the offense. Id.

(citing Wygal v. State, 555 S.W.2d 465, 469 (Tex. Crim. App. 1977)). While mere presence

at the scene, or even flight, is not enough to sustain a conviction, such facts may be

considered in determining whether an appellant was a party to the offense. Id. at 314

(citing Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1981) (op. on reh’g); Guillory

v. State, 877 S.W.2d 71, 74 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d)).

B. Discussion

Here, it is undisputed that appellant was found in the house where 14.31 grams

of cocaine were found. In addition, the evidence establishes that scales, razor blades,

guns, baggies, several cell phones, cocaine residue, and products used to make and

distribute crack cocaine were found inside the house and cars parked at the house. See

Lopez, 267 S.W.3d at 92; Lassaint, 79 S.W.3d at 740-41. Witnesses testified that these

items are commonly used by drug dealers. Moreover, several witnesses identified the

house as a trap house where drug transactions regularly occurred. In fact, witnesses

testified that appellant’s name was on the search warrant of the house based on

constant police surveillance of the house and information from a confidential informant

who had purchased drugs at the house many times. Appellant admits in his brief that

the State proved that he was aware of illegal drug transactions transpiring at the house

and that he recorded drug transactions on a video camera.

Officer Barnum testified regarding several photographs of appellant at the house.

In one photograph, Officer Barnum noted that appellant appeared to be sitting in a

Alexander v. State Page 9 chair “holding a wad of money next to a plate of crack.” In another photograph,

appellant wore a t-shirt stating, “Married to the Game,” which witnesses stated refers to

selling drugs. Sergeant Allovio testified about the video that appellant created.

According to Sergeant Allovio, appellant’s name was referenced several times on the

video about how to conduct a drug deal.3 In one instance, an individual conducting the

drug deal said “Gary Wayne” or “G Wayne ain’t told me that”—a statement from

which a reasonable factfinder could infer that appellant planned or aided and

encouraged the drug deals occurring at the house. See TEX. PENAL CODE ANN. §

7.02(a)(2); see also Urtado, 605 S.W.2d at 911; Tarpley, 565 S.W.2d at 529; Miller, 83 S.W.3d

at 314-15. Furthermore, when Officer Bucher entered the house, he observed appellant

running from the hallway into the living room. See Miller, 83 S.W.3d at 314; see also

Valdez, 623 S.W.2d at 321; Guillory, 877 S.W.2d at 74. Along the hallway was the

bathroom where the cocaine was found in the crawl space underneath the house

without any dust on the packaging. A reasonable factfinder could infer, based on

appellant’s location in the house and the fact that the package did not have any dust on

it, that appellant hid the cocaine in the crawl space just prior to the execution of the

search warrant.4 See Miller, 83 S.W.3d at 314; see also Valdez, 623 S.W.2d at 321; Guillory,

877 S.W.2d at 74. And finally, when he was arrested, appellant had a large amount of

3Sergeant Allovio recounted that appellant’s video documented disagreements between several individuals regarding how to keep a proper lookout during a drug deal and whether “bites” of crack cocaine would be sold.

4 The record reflects that appellant was aware of the presence of law enforcement just prior to the execution of the search warrant. Officer Bucher stated that: “As I was getting out of the van, I looked at the house. I saw the blinds on this window, they started moving. I could see a black male with a white shirt. . . . They were looking out the blinds directly at us.”

Alexander v. State Page 10 cash—$388—on his person, which was determined to be contraband and subsequently

confiscated by police. See Lopez, 267 S.W.3d at 92; Lassaint, 79 S.W.3d at 740-41.

Viewing the evidence in the light most favorable to the verdict, and based on the

logical force of all the circumstantial and direct evidence, we do not believe that the

evidence demonstrates that appellant’s contact with the cocaine in this case was merely

fortuitous. See Poindexter, 153 S.W.3d at 405-06; see also Jackson, 443 U.S. at 319, 99 S. Ct.

at 2789; Lucio, 351 S.W.3d at 894. Applying the appropriate standards of review, we

believe that a reasonable factfinder could determine, beyond a reasonable doubt, that

appellant participated in the charged offense. See TEX. HEALTH & SAFETY CODE ANN. §§

481.112(a), 481.134; see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Lucio, 351 S.W.3d at

894. Accordingly, we conclude that the evidence is sufficient to support appellant’s

conviction. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Lucio, 351 S.W.3d at 894. As

such, we overrule appellant’s sole issue on appeal.

IV. CONCLUSION

Having overruled appellant’s sole issue on appeal, we affirm the judgment of the

trial court.

AL SCOGGINS Justice

Alexander v. State Page 11 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed August 8, 2013 Do not publish [CRPM]

Alexander v. State Page 12