Opinion issued January 23, 2018
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-16-00397-CR ——————————— JIMMY LEE BUTLER, Appellant
V. THE STATE OF TEXAS, Appellee
On Appeal from the 412th District Court Brazoria County, Texas Trial Court Case No. 74634
MEMORANDUM OPINION ON REHEARING
Jimmy Lee Butler was charged with possession of a controlled substance
within 1,000 feet of an intermediate school, enhanced with two prior felony convictions for possession of a controlled substance.1 The jury found Butler guilty
and assessed his punishment at seven years’ imprisonment and a $5,000 fine.
Butler contends on appeal that the trial court erred in (1) entering judgment
on the jury’s guilt finding because the evidence is legally insufficient to support
conviction, (2) denying his motion to suppress evidence obtained under a faulty
search warrant because the supporting affidavit failed to establish probable cause
and omitted material exculpatory evidence, and (3) instructing the jury to consider
whether Butler was guilty as a party to the commission of the charged offense. We
affirm.
BACKGROUND
After receiving a number of citizens’ complaints concerning suspicious
activity around Butler’s home, the City of Freeport Police Department assigned
Officer M. Christopoulos, a narcotics investigator and a member of the Brazoria
County Narcotics Task Force, to conduct surveillance there. Christopoulos spent
close to a year watching Butler’s home. He observed Butler at the home at all hours
of the day. As Butler walked around the home, Christopoulos frequently saw him
go in and out of the door to an enclosed patio.
1 We originally issued an opinion in this case on October 31, 2017. Butler moved for rehearing. We deny his motion for rehearing, but withdraw our prior opinion and judgment issue this opinion and judgment in their stead.
2 Approximately two weeks before executing the affidavit supporting a warrant
to search Butler’s residence, Christopoulos observed Latosha Houston move into the
home. Christopoulos had a confidential source, whom he had used on many
occasions in the past and found to be reliable, attempt to purchase narcotics at
the residence. The confidential source informed Christopoulos that he went inside
the residence and saw Houston in possession of crystal methamphetamine.
Within 72 hours of preparing the affidavit, Christopoulos saw a woman, later
identified as Jessica McEntire, drive to the residence, get out of the car, and have a
brief exchange with Houston. Shortly thereafter, McEntire was stopped and found
to possess methamphetamine.
In September 2014, a magistrate found probable cause existed to support the
issuance of a search warrant for Butler’s residence. In his affidavit supporting the
search warrant, Christopoulos named both Butler and Houston and listed crystal
methamphetamine, all narcotic paraphernalia, and any illegal drugs as items he was
looking for in the search.
The morning of the next day, Christopoulos and his team executed the search
warrant. Christopoulos testified that Butler was sitting on the couch when the
officers entered the residence. During the investigation, deadbolt locks were found
on Butler’s bedroom door and on the door to the enclosed patio room. Christopoulos
testified that, based on his training and experience, individuals involved in dealing
3 drugs or possessing contraband may want to restrict access to other people who may
have access to the residence. Surveillance cameras were found in Butler’s room,
Houston’s room, and throughout the house, with a monitor appearing to be
connected to the surveillance cameras in the patio room. A digital scale was found
in Butler’s bedroom closet. Christopoulos testified that, based on his experience and
training, similar digital scales are used to weigh cocaine. Despite Christopoulos’s
suspicions about the deadbolt locks, surveillance cameras, and digital scale, illegal
drugs were not found in Butler’s room.
Officers did, however, find contraband—cocaine—in open view in the
enclosed patio room on top of mail addressed to Butler. Also in the patio room,
officers found marijuana, a marijuana cigarette, a pipe for smoking marijuana, a pipe
for smoking methamphetamine, and a stack of pornographic magazines containing
female images. Christopoulos testified that Butler regularly accessed the patio over
the year he surveilled the residence.
Undisputed evidence shows that Butler owned, lived in, and had the right to
possess the residence where the cocaine was found. Investigator Christopoulos
testified that his yearlong surveillance of the residence confirmed that Butler lived
there. The Brazoria County property records established that Butler purchased the
residence in 1999. Mail addressed to Butler was found in the residence. Butler’s
driver’s license was found in the residence and contained the same address.
4 Prescription pill bottles labeled with Butler’s name also were found throughout the
residence.
DISCUSSION
I. Legal Sufficiency Challenge
Butler contends that a rational jury could not have found that he exercised
care, custody, control, or management of the cocaine, or that he was a party to
another’s commission of the charged offense. We consider whether legally
sufficient evidence supports these findings.
A. Standard of Review
We review the legal sufficiency of the evidence by considering all of the
evidence in the light most favorable to the jury’s verdict to determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–
89 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role
is that of a due process safeguard, ensuring only the rationality of the factfinder’s
finding of the essential elements of the offense beyond a reasonable doubt. See
Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We defer to the
factfinder’s responsibility to fairly resolve conflicts in testimony, weigh evidence,
and draw reasonable inferences from the facts. Williams, 235 S.W.3d at 750. As
the judge of the facts and credibility of the witnesses, the factfinder could choose to
5 believe or not to believe the witnesses, or any portion of their testimony. Sharp v.
State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Jenkins v. State, 870 S.W.2d
626, 628 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). An appellate court
reviewing an sufficiency challenge is charged with the responsibility of ensuring that
the evidence presented supports the conclusion that the defendant committed the
criminal offense of which he is accused. Williams, 235 S.W.3d at 750. The appellate
court determines whether the necessary inferences are reasonable based on the
combined and cumulative force of all the evidence when viewed in the light most
favorable to the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007)).
When the record supports conflicting inferences, an appellate court presumes that
the factfinder resolved the conflicts in favor of the prosecution and therefore defers
to that determination. Id.; see Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. An
appellate court likewise defers to the factfinder’s evaluation of the credibility of the
evidence and weight to give the evidence. Gonzalez v. State, 337 S.W.3d 473, 479
(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Williams, 235 S.W.3d
at 750). Direct and circumstantial evidence are treated equally: circumstantial
evidence can be as probative as direct evidence and circumstantial evidence alone
can be sufficient to establish guilt. Id. (citing Clayton, 235 S.W.3d at 778).
6 B. Sufficient evidence affirmatively links Butler to the contraband.
1. Affirmative links as proof of possession
To prove unlawful possession of a controlled substance, the State must prove
beyond a reasonable doubt that the defendant exercised control, custody, management,
or care over the substance, and that the accused knew the substance was
contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); see
TEX. HEALTH & SAFETY CODE § 481.115(a) (“[A] person commits an offense if
the person knowingly or intentionally possesses a controlled substance listed in
Penalty Group 1 . . . .”). Possession of the contraband need not be exclusive and
evidence that shows the accused jointly possessed the contraband with another is
sufficient. See McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985).
Whether the evidence is direct or circumstantial, it must establish that the
accused’s connection with the drug was more than just fortuitous. Poindexter, 153
S.W.3d at 405–06; Wiley v. State, 388 S.W.3d 807, 813 (Tex. App.—Houston [1st
Dist.] 2013, pet. ref’d). This is the “affirmative links” rule. Poindexter, 153 S.W.3d
at 406 (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)). This
rule is designed to protect an innocent bystander from conviction based solely upon
fortuitous proximity to someone else’s drugs. Id. It recognizes that “[w]hen 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
7 contraband unless there are additional independent facts and circumstances which
affirmatively link the accused to the contraband.” Deshong v. State, 625 S.W.2d
327, 329 (Tex. Crim. App. 1981); see also Poindexter, 153 S.W.3d at 406.
The affirmative link can be established by additional facts and circumstances
that indicate the accused’s knowledge and control of the contraband. Deshong, 625
S.W.2d at 329. The Court of Criminal Appeals has endorsed the following list of
affirmative links:
(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 narcotics; (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 were present; (11) whether the defendant 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 defendant was found with a large amount of cash; and (14) 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); Burrell v. State,
445 S.W.3d 761, 765 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). The State
need not prove all of these factors. See James v. State, 264 S.W.3d 215, 219 (Tex.
App.—Houston [1st Dist.] 2008, pet. ref’d). It is not the number of links that is
dispositive, but the cumulative logical force of the evidence. Evans, 202 S.W.3d at
8 162; James, 264 S.W.3d at 219. Each case must be examined on its own facts for
evidence of sufficient affirmative links. See Roberson v. State, 80 S.W.3d 730, 736
(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). A factor that contributes to
sufficiency in one case may be of little value under a different set of facts. Id. And,
the absence of some of the factors is not evidence of innocence that weighs against
the factors that are present. James, 264 S.W.3d at 219 (citing Hernandez v. State,
538 S.W.2d 127, 131 (Tex. Crim. App. 1976)).
2. Analysis
Butler contends that the evidence presented does not support a conclusion that
he exercised care, custody, control, or management of the cocaine, either
individually or as a party through Houston. Butler argues that although the house
belonged to him, he shared the home with Houston, and the evidence before the jury
shows that Houston exercised care, custody, control, and management over the
cocaine. The State responds that, despite Butler’s insistence that Houston
possessed the cocaine, the evidence was sufficient to support his conviction.
The evidence establishes multiple affirmative links between Butler and the
cocaine. The undisputed evidence shows that Butler owned, lived in, and had the
right to possess the residence where the cocaine was found. Investigator
Christopoulos testified that his yearlong surveillance of the residence confirmed that
Butler lived there. Christopoulos further testified that the Brazoria County property
9 records showed that Butler purchased the residence in 1999. Butler’s driver’s
license contained the same address. The search of the residence yielded a number of
prescription pill bottles labeled with Butler’s name as well as mail addressed to
Butler at that residence. The only room that did not contain any drugs or drug
paraphernalia was painted pink and contained personal effects that appeared to
belong to a woman.
Butler was sitting inside on the couch when the officers entered the house.
The cocaine was found in the enclosed patio room, which could be accessed
through an outside door with a locking latch similar to that used on Butler’s bedroom
door. See Torres v. State, 466 S.W.3d 329, 333 (Tex. App.— Houston [14th Dist.]
2015, no pet.) (“[T]he contraband was enclosed as it was found in the residence, a
location not generally accessible to the public.”) (citing Gregory v. State, 159
S.W.3d 254, 260 (Tex. App.—Beaumont 2005, pet. ref’d)). The cocaine was on
a table in plain view, on top of mail addressed to Butler. See Hughes v. State, 612
S.W.2d 581, 582 (Tex. Crim. App. 1981) (marijuana found on coffee table in
enclosed patio area was in plain view); Deshong, 625 S.W.2d at 328, 330 (marijuana
found on driver’s side floorboard was in plain view once officer opened car door);
see also Douglas v. State, 794 S.W.2d 98, 100 (Tex. App.—Houston [1st Dist.] 1990,
pet. ref’d) (small amount of marijuana found on bed in one-bedroom apartment
was in “open view”).
10 In the patio room where the officers found the cocaine, they also found
marijuana; a marijuana cigarette; a pipe for smoking marijuana and another for
smoking methamphetamine; a water bill and mail addressed to Butler; and a stack
of pornographic magazines containing female images. Christopoulos testified that
digital scales like the one found in Butler’s closet are used to weigh cocaine.
Christopoulous saw Butler access the patio numerous times over the year he
watched the residence.
We conclude that these affirmative links are sufficient to support the jury’s
finding that Butler possessed the contraband. See Robles v. State, 104 S.W.3d 649,
651–52 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (affirmative links were
sufficient despite absence of drug paraphernalia, money, weapons, and lack of
fingerprint analysis on bottle where contraband was found where appellant matched
physical description of suspect in search warrant and was only person inside
residence when officers entered; appellant dropped baseball cap that was later found
to contain cocaine; appellant’s W-2 was found inside residence, and only men’s
clothing was found in the apartment even though woman’s name was on lease);
Coleman v. State, 113 S.W.3d 496, 501 (Tex. App.—Houston [1st Dist.] 2003) (links
sufficient where appellant rented and had key to house, lived alone, had utilities
registered in his name; mail found in search was addressed to appellant; appellant’s
identification, contraband and money were found together in enclosed place; and
11 other contraband was found in other areas of house), aff’d, 145 S.W.3d 649 (Tex.
Crim. App. 2004); see also Stubblefield v. State, 79 S.W.3d 171, 174–75 (Tex.
App.—Texarkana 2002, pet. ref’d) (affirmative links sufficient to support jury’s
finding that appellant possessed contraband where appellant had been living in house
for at least two weeks, was lying on couch in home when officers entered, cocaine
was in plain view on nearby coffee table, and marijuana and drug paraphernalia were
found throughout house, even though appellant did not appear to be under the
influence, did not attempt to flee, and did not make incriminating or furtive gestures
during search).
Butler contends that a rational jury could not find him guilty of the charged
offense, pointing out that other factors show no link between him and the narcotics.
These include (1) no evidence that he was under the influence at the time of arrest;
he made no attempt to flee and made no incriminating statements or furtive
gestures during the search; and (3) no contraband, currency, or weapon was found
on his person. Our review, however, does not focus on the absence of particular
links, but the logical force that the existing links have in establishing the elements
of the offense. See Evans, 202 S.W.3d at 166 (holding that sufficient evidence
connected appellant to care, custody, control or management of cocaine when
viewing evidence “in combination and its sum total”); see also Burrell, 445 S.W.3d
at 766 (citing Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.—Houston [1st
12 Dist.] 1994, pet. ref’d)) (rejecting appellant’s argument that evidence of many
affirmative links was absent and finding sufficient affirmative links where
appellant lived in residence where cocaine was found, appeared concerned
about being linked to that residence, made statements and took actions shortly after
arrest that showed consciousness of guilt, and recognized bag that contained
cocaine); 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”); Gant v. State,
116 S.W.3d 124, 132–33 (Tex. App.—Tyler 2003, pet. ref’d) (holding
evidence sufficient to support verdict where appellant argued seven links were not
present and noting that number of links present is not as important as degree to
which they tend to link defendant to contraband).
Viewing the evidence in the light most favorable to the jury’s verdict, we hold
that legally sufficient evidence connects Butler to the cocaine and, as a result,
a rational factfinder could have found beyond a reasonable doubt that Butler
exercised care, custody, control, or management over the cocaine knowing that it
was contraband.2 See Hill v. State, 755 S.W.2d 197, 201 (Tex. App.—Houston
[14th Dist.] 1988, pet. ref’d) (holding that sufficient affirmative links connected
2 This holding obviates the need to address Butler’s contention that legally insufficient evidence supports the jury’s guilty finding under the theory that Butler was a party to Houston’s conduct. 13 appellant to cocaine where appellant admitted apartment was his, crack cocaine
was found in plain view in one bedroom as well as on surfaces throughout
apartment, appellant was present when search was conducted, and appellant
admitted to officers that he should not have had cocaine in apartment); Watson v.
State, 861 S.W.2d 410, 415–16 (Tex. App.—Beaumont 1993, pet. ref’d) (evidence
sufficient where appellant was found alone in motel room where contraband
was found, contraband was found inside chest of drawers in room and was
accessible to appellant, and crack pipe was in plain view, despite evidence that
contraband itself was not in plain view, no strong odors were detected, appellant did
not indicate consciousness of guilt, appellant was not under the influence when
search occurred, no contraband found on appellant’s person, appellant did not
attempt to flee, and appellant did not make any self-incriminating statement); see
also Evans, 202 S.W.3d at 166 (holding that evidence was sufficient to support jury’s
finding that appellant knowingly possessed cocaine where evidence showed
appellant was found alone in residence, cocaine was in plain view on table, and
appellant received mail at house, immediately knew why police came to residence,
and was carrying $160 cash despite being unemployed).
II. The trial court did not err in denying Butler’s motion to suppress.
Butler contends that the trial court erred in denying his motion to suppress the
evidence obtained during the search of his residence because the officer’s affidavit
14 lacked probable cause and because the affidavit omitted material exculpatory
evidence. We consider each contention in turn.
A. Probable cause supported the warrant’s issuance.
We apply a bifurcated standard to review a trial court’s denial of a motion
to suppress. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013)
(citing Valtierra v. State, 310 S.W.3d 442, 447–48 (Tex. Crim. App. 2010)). When
determining probable cause to support the issuance of a search warrant, the trial court
is constrained to reviewing the four corners of the supporting affidavit, which we
“interpret . . . in a commonsensical and realistic manner, recognizing that the
magistrate may draw reasonable inferences.” State v. McLain, 337 S.W.3d 268, 271
(Tex. Crim. App. 2011). “When in doubt, we defer to all reasonable inferences that
the magistrate could have made.” Id. (quoting Rodriguez v. State, 232 S.W.3d 55,
61 (Tex. Crim. App. 2007)); Jones v. State, 338 S.W.3d 725, 733 (Tex. App.—
Houston [1st Dist.] 2011), aff’d, 364 S.W.3d 854 (Tex. Crim. App. 2012).
A search warrant may not issue unless police present an affidavit setting forth
sufficient facts to show that probable cause exists for its issuance. TEX. CODE CRIM.
PROC. art. 18.01(b). The affidavit must show that:
(1) a specific offense has been committed,
(2) the specifically described property or items that are to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense, and
15 (3) the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched.
Id. art. 18.01(c). Probable cause exists if, under the totality of the circumstances,
there is a “fair probability” or “substantial chance” that contraband or evidence of
a crime will be found at the specified location. Flores v. State, 319 S.W.3d 697,
702 (Tex. Crim. App. 2010) (citing Illinois v. Gates, 462 U.S. 213, 238, 243 n.13,
103 S. Ct. 2317, 2332, 2335 n.13 (1983)).
Butler claims that the warrant was defective because (1) it does not state that
suspicious drug activity occurred at Butler’s residence; (2) it does not state sufficient
facts to make clear that the drugs found in McEntire’s car were purchased during the
transaction at Butler’s house, which occurred shortly before McEntire was stopped;
and (3) while the affidavit recites that Christopoulos received the information within
72 hours of the affidavit’s execution, it does not make clear whether the confidential
informant obtained the information within 72 hours of the affidavit’s execution.
With respect to the timing of the confidential source information, Butler
acknowledges that in State v. McLain, the Court of Criminal Appeals upheld the
magistrate’s finding of probable cause on a similarly worded affidavit even though
the “statement, read literally, fails to clearly indicate exactly when the informant
observed Appellee in possession of the methamphetamine . . . .” 337 S.W.3d at
273. Butler contends, however, that McLain is distinguishable. There, he points 16 out, the facts supporting probable cause, gleaned following an extensive
investigation, included:
(1) multiple anonymous reports that the suspect was selling and storing methamphetamine;
(2) the officer’s prior knowledge of the suspect as a methamphetamine user;
(3) observation of traffic at the residence, particularly at night, which the officer identified as a sign of drug trafficking;
(4) the use of multiple confidential informants, whom the officer had found reliable in the past, who provided information about how the suspect took payment and where he hid contraband at the residence.
Id. at 269–70.
We find the circumstances that supported probable cause in McLain more like
the ones here than different from them. Christopoulos’s affidavit summarizes
his seven years’ experience as a narcotics investigator. Based on his training
and experience, Christopoulos averred that over the past several months, he had
received information about Butler’s involvement in the distribution of illegal
narcotics and had previously conducted a narcotics investigation of Butler,
which resulted in Butler’s prior conviction for possession of a controlled
substance. Christopoulos further declared that he had “personally observed Butler
enter and exit the suspected residence on a daily basis,” which can reasonably be
read as supporting his reason to believe that methamphetamine and other
contraband could be found at Butler’s residence. Like the affidavit in McLain, 17 Christopoulos’s affidavit states that the confidential informant from whom he
received information concerning Butler’s possession of methamphetamine had
provided reliable information in the past, that the informant had assisted
Christopoulos with many prior narcotics investigations, and had in the past
provided information supporting search warrants that, when executed, led to the
seizure of narcotics.
McLain also disposes of Butler’s contention that the affidavit is defective
because it does not specify that the confidential informant both obtained the
information and provided it to Christopoulos within 72 hours of the affidavit’s
execution. The Court of Criminal Appeals in McLain, considering virtually the
same language, held that, when read with the proper deference, the affidavit
before it supported the magistrate’s probable cause determination. See id. at
273. As in McLain, the reference in Christopoulos’s affidavit to information
received from the confidential source “within 72 hours of today’s date” supports a
reasonable inference that the informant saw narcotics inside Butler’s home within
that period.
We hold that the affidavit demonstrates a fair probability that a search
of Butler’s residence would result in the discovery of methamphetamine and
other contraband. State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012).
18 B. The affidavit is not invalid under Franks v. Delaware
Butler next contends that Christopoulos’s affidavit omits material
exculpatory information, thereby rendering it invalid under Franks v. Delaware.
438 U.S. 154, 155–56, 98 S. Ct 2674, 2676 (1978); see Blake v. State, 125 S.W.3d
717, 724 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (holding that Franks
exclusionary rule applies equally to allegations of material omission as it does
to those of false statements). We review a trial court’s ruling on a Franks
suppression issue under a mixed standard of review that gives almost total
deference to the trial court’s ruling on questions of fact that depend upon
evaluations of credibility and demeanor, but reviews de novo the application of
the law. Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002);
Jones, 338 S.W.3d at 739. Though this same mixed standard of review applies
to an alleged probable-cause deficiency, in deciding a Franks motion, the court
may look beyond the four corners of the warrant affidavit and consider evidence
offered by the movant “because this attack on the sufficiency of the affidavit arises
from claims that it contains false statements.” Jones, 338 S.W.3d at 739 (citing,
inter alia, Franks, 438 U.S. at 155–56, 98 S. Ct. at 2676).
During surveillance, Christopoulos observed a vehicle driven by McEntire
pull up to Butler’s residence. McEntire parked the car and met briefly with Houston.
Houston went back into the residence and McEntire drove away. Christopoulos
19 asked the Freeport Police Department to conduct a traffic stop on McEntire’s
vehicle. Freeport officers stopped McEntire and recovered a small plastic bag
of crystal methamphetamine along with a pipe and syringes.
At the Franks hearing, Butler argued that the warrant was invalid because
Christopoulos’s affidavit did not mention that McEntire denied having recently
purchased the drugs found in her car during the traffic stop. Butler, however, did
not provide any evidence that Christopoulos intentionally or knowingly, with
reckless disregard for the truth, omitted McEntire’s statement from the affidavit.
Christopoulos relied on information from the Freeport officers concerning the stop;
he did not stop McEntire himself. And although the Freeport officers video-
recorded McEntire’s statement, Butler fails to show that Christopoulos ever saw the
video. As a result, Butler has not met Franks’s requirement that Christopoulos
intentionally or recklessly failed to mention McEntire’s denial in the affidavit.
Butler also has failed to show that his motion to suppress would have been
granted if McEntire’s statement had been included in the affidavit. See Jackson
v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). In addition to McEntire’s
stop, the affidavit lists numerous facts supporting probable cause. In light of these
other facts, Butler has not shown that the inclusion of McEntire’s statement
would render the affidavit, as a whole, insufficient to show probable cause. See
Volk v. State, Nos. 01-07-00265-CR, 01-07-00266-CR, & 01-17-00326-CR, 2008
20 WL 2854166, at *5 (Tex. App.—Houston [1st Dist.] July 24, 2008, pet. ref’d)
(mem. op., not designated for publication) (citing McKissick v. State, 209 S.W.3d
205, 213 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d)).
III. The charge properly instructed the jury on party liability.
Butler contends that the trial court erred by including a party liability
instruction in the charge because the jury heard no evidence that he solicited,
encouraged, directed, aided, or attempted to aid Houston in the possession of a
controlled substance.
The State is entitled to have the jury instructed on party liability if party
liability can legally apply to the charged offense and is supported by the evidence.
In re State ex rel. Weeks, 391 S.W.3d 117, 124 (Tex. Crim. App. 2013). Under
party liability, a person is criminally responsible for an offense committed by
another if “acting with the 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.” TEX. PENAL CODE § 7.02(a)(2). Mere presence at the scene of a crime
does not make one a party to the crime. See Thompson v. State, 697 S.W.2d 413,
417 (Tex. Crim. App. 1985). The circumstances, however, may permit a
reasonable inference that the defendant participated in a criminal offense.
Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987).
21 Here, the circumstances permit a reasonable inference that Butler assisted
Houston in gaining possession of the methamphetamine. Butler owned the
residence where Houston was seen with the methamphetamine, and he and Houston
shared the areas in the home where the drugs were found. Because we determine
that there was no error in the jury charge, we need not consider whether there was
harm.
CONCLUSION
We affirm the judgment of the trial court.
Jane Bland Justice
Panel consists of Justices Jennings, Bland, and Brown. Do
not publish. TEX. R. APP. P. 47.2(b).