Joel Thomas Bowen A/K/A J. T. Bowen v. State

• Court: Court of Appeals of Texas
• Decided: October 17, 2012
• Docket: 08-11-00129-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

' JOEL THOMAS BOWEN No. 08-11-00129-CR AKA J.T. BOWEN, ' Appeal from Appellant, ' Criminal District Court No. 1 v. ' of Tarrant County, Texas ' THE STATE OF TEXAS, ' (TC # 1189455D) Appellee.

OPINION

Joel Thomas Bowen appeals his conviction of possession of more than four grams but

less than 200 grams of methamphetamine (Count II), enhanced by a prior felony conviction.

After finding Appellant guilty of Count II, the jury found the enhancement paragraph true and

assessed Appellant’s punishment at imprisonment for fifteen years. We affirm.

FACTUAL SUMMARY

In April 2009, Detective Dusty Smith of the Hurst Police Department was assigned to the

Tarrant Regional Auto Crimes Task Force which investigates auto theft and auto-related crimes.

While investigating a motorcycle theft case, Smith obtained and executed a search warrant for a

residence located at 7048 Glen Hills in Tarrant County. The warrant did not list Appellant as the

owner of the property but he was present in the residence along with three females. Two of the

females were in the living room and the third female was in a back bedroom. The officers found

Appellant’s personal property in the converted garage. Smith testified without objection that he

had spoken with the homeowner, David Rouse, who told him that Appellant was living at the

residence. The officers had also seen Appellant’s Chevy truck parked in the driveway when they conducted surveillance prior to executing the search warrant and they had found Appellant’s

personal property in the converted garage.

Detective Bryan Laurie is employed by the Haltom City Police Department and assigned

to the Tarrant County Narcotics Unit. Laurie participated in the execution of the search warrant

and briefly entered the bedrooms before moving to the converted garage bedroom. Laurie

estimated that only thirty-five to forty-five seconds had elapsed since he first entered the house.

The bedroom contained a couch, coffee table, dresser, closet with some clothing, desk, an end

table and lamp, and some moving boxes. Other detectives had already entered and Laurie saw

Appellant, wearing only a pair of red boxers, standing between the sofa and coffee table. In a

search of the moving boxes, Laurie found a high school diploma and some mail bearing

Appellant’s name. The officers found methamphetamine on the coffee table and scattered on the

floor. It appeared to Detective Laurie that the methamphetamine had been thrown. A small

baggie of methamphetamine weighing a total of 7.34 grams was located on the coffee table.

Inside a Cheez-It box on the coffee table, the officers found small baggies and a digital scale. A

digital scale is commonly used for weighing narcotics and the small baggies are used to package

narcotics for sale on the street. Appellant’s wallet containing his driver’s license was on the

coffee table only inches away from the loose methamphetamine. The room also contained a

washing machine which was not connected. Beneath the washer, the officers found a handgun

inside an unlocked floor safe.

Appellant’s girlfriend, Libby Franklin, testified that she and Appellant were in the

process of moving in together in April 2009. Appellant had been living on Gill Street in Blue

Mound, Texas. They dropped off Appellant’s truck at a house located at 7048 Glen Hills. She

met David Rouse and his girlfriend, Lisa, at the house that day. Rouse was going to fix

-2- Appellant’s truck. Appellant also left his dog at the house because he and Rouse intended to

breed their dogs. On April 17, 2009, she drove Appellant to the house so he could pick up his

truck and dog while she went to pick up her daughter. She did not see him again until the

following morning when she bonded him out of jail. Franklin testified that some of Appellant’s

belongings were taken from the truck into the house.

Appellant testified that he knew David Rouse because they had worked construction

together. Even though they no longer worked together, they socialized. Appellant denied ever

living with Rouse. In April 2009, Appellant called Rouse and asked him to work on his truck.

When Rouse learned that Appellant had a bulldog, he told Appellant to bring his dog to meet

Rouse’s dog and brought up the idea of breeding them in the future. Appellant dropped off his

truck and dog on Sunday, April 12, 2009. Appellant went back the following day to give Rouse

$450 to buy parts and fix the truck. The following day, April 14, Appellant called Rouse and

asked him to move some of the boxes from the truck into the house where they would be safer.

One of those boxes contained Appellant’s diploma. The boxes were in Appellant’s truck

because he was in the process of moving from Blue Mound to Grapevine. Rouse called

Appellant on Wednesday, April 15, and told him that his truck would be finished by the next

morning. On Thursday afternoon, April 16, Lisa called and told Appellant that Rouse had been

arrested. She instructed him to pick up his truck. Appellant went to the house the next evening

after work and talked to Lisa about what had happened to Rouse. Appellant was dressed in a

muscle shirt and gym shorts. He was in the kitchen talking to Lisa when he heard a loud boom

and suddenly men were in the house yelling, “Get on the ground!” Appellant stayed on the floor

until the officers stood him up and made him sit in the living room. They made him remove his

muscle shirt so they could look at his tattoos while asking him whether his tattoos were gang-

-3- related. The officers handcuffed Appellant and made him sit on the couch for about thirty

minutes before moving him into the converted garage. Appellant told them that the

methamphetamine was not his and he did not know whose it was because he did not live there.

Appellant admitted being convicted of resisting arrest and criminal mischief in 2002. In 2003,

he was convicted of possession of methamphetamine with intent to deliver. He entered a plea of

guilty and was placed on community supervision. The court revoked his community supervision

because Appellant left a treatment center and failed to provide a urinalysis when requested.

Appellant had admitted at the time that his drugs of choice were marihuana and

methamphetamine and he was having problems with methamphetamine. The trial court

sentenced Appellant to serve a four year term of imprisonment and he was on parole at the time

of his arrest in this case.

The jury rejected Appellant’s defense and found him guilty of possessing more than four

grams but less than 200 grams of methamphetamine as charged in Count II of the indictment.

The jury found the enhancement paragraph true based on Appellant’s plea of true and assessed

his punishment at imprisonment for a term of fifteen years.

SUFFICIENCY OF THE EVIDENCE

In his sole point of error, Appellant challenges the sufficiency of the evidence to prove

beyond a reasonable doubt that he possessed methamphetamine. More specifically, he contends

that the evidence shows nothing more than mere presence at the residence where the

methamphetamine was found.

Standard of Review and Applicable Law

In reviewing the sufficiency of the evidence to determine whether the State proved the

elements of the offense beyond a reasonable doubt, we apply the Jackson v. Virginia standard.

-4- Brooks v. State, 323 S.W.3d 893, 895-95 (Tex.Crim.App. 2010), citing Jackson v. Virginia, 443

U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under that standard, a reviewing court

must consider all evidence in the light most favorable to the verdict and in doing so determine

whether a rational justification exists for the jury’s finding of guilt beyond a reasonable doubt.

Brooks, 323 S.W.3d at 894-95, citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. As the trier of

fact, the jury is the sole judge as to the weight and credibility of witness testimony, and therefore,

on appeal we must give deference to the jury’s determinations. Brooks, 323 S.W.3d at 894–95.

If the record contains conflicting inferences, we must presume the jury resolved such facts in

favor of the verdict and defer to that resolution. Id. On appeal, we serve only to ensure the jury

reached a rational verdict, and we may not reevaluate the weight and credibility of the evidence

produced at trial and in so doing substitute our judgment for that of the fact finder. King v. State,

29 S.W.3d 556, 562 (Tex.Crim.App. 2000). In our review, we consider both direct and

circumstantial evidence and all reasonable inferences that may be drawn from the evidence.

Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). The standard of review as to the

sufficiency of the evidence is the same for both direct and circumstantial evidence cases. Id.;

Arzaga v. State, 86 S.W.3d 767, 777 (Tex.App.--El Paso 2002, no pet.). Each fact need not point

directly and independently to the guilt of the accused, so long as the cumulative force of all the

evidence, when coupled with reasonable inferences to be drawn from that evidence, is sufficient

to support the conviction. Id. 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. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004); Arzaga, 86 S.W.3d at 777.

The Penal Code defines “possession” as actual care, custody, control, or management.

TEX.PENAL CODE ANN. § 1.07(a)(39)(West Supp. 2012). To prove unlawful possession of a

-5- controlled substance, the State must prove that (1) the accused exercised control, management, or

care over the substance; and (2) the accused knew the matter possessed was contraband.

Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005); see TEX.HEALTH &

SAFETY CODE ANN. § 481.115(a)(West 2010). Mere presence at a location where drugs are

found is insufficient, by itself, to establish actual care, custody, or control of those drugs. Evans

v. State, 202 S.W.3d 158, 162 (Tex.Crim.App. 2006). 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. Poindexter, 153 S.W.3d

at 406.

A nonexclusive list of factors that can be sufficient, either singly or in combination, to

establish someone's possession of contraband include: (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 contraband, (4) whether he was under the influence of a controlled

substance or narcotic when arrested, (5) whether he possessed other contraband when arrested,

(6) whether he made incriminating statements when arrested, (7) whether he attempted to flee,

(8) whether he made furtive gestures, (9) whether there was an odor of contraband, (10) whether

other contraband or drug paraphernalia were present, (11) whether he owned or had the right to

possess the place where the contraband was found, (12) whether the contraband was found in an

enclosed place, (13) whether he was found with a large amount of cash, (14) whether his conduct

indicated a consciousness of guilt, (15) whether he made incriminating statements connecting

himself to the contraband, (16) the quantity of the contraband, and (17) whether he was observed

in a suspicious area under suspicious circumstances. Evans, 202 S.W.3d at 162 n. 2; Lassaint v.

-6- State, 79 S.W.3d 736, 740-41 (Tex.App.--Corpus Christi 2002, no pet.). These are simply some

factors which may circumstantially establish the legal sufficiency of the evidence to prove

knowing “possession.” Evans, 202 S.W.3d at 162 n. 12. They are not a litmus test. Id. It is not

the number of links that is dispositive, but rather the logical force of all of the evidence, both

direct and circumstantial. Evans, 202 S.W.3d at 162.

Review of the Evidence

Appellant argues that the evidence is insufficient because nothing links him to the house

or the methamphetamine and he was in the kitchen when the officers entered the house.

Appellant’s argument fails to review the evidence in the light most favorable to the verdict.

When viewed in the proper light, the evidence demonstrated the presence of affirmative link

factors one, two, three, ten, eleven, and fourteen. Appellant was present when the search warrant

was executed (first factor) and there is at least some evidence that officers found him in the

converted garage near the coffee table where loose and packaged methamphetamine and

paraphernalia was in plain view (factors two, three, and ten). Appellant testified that he did not

go into the converted garage until the officers took him in there approximately thirty minutes

after they entered the house. Detective Laurie testified, however, that he went into the converted

garage only thirty-five to forty-five seconds after entering the house and other officers were

already in there with Appellant. Appellant’s claim he had not gone into the converted garage

prior to the officers taking him in there is also contradicted by the presence of his wallet on the

coffee table. That wallet was found only inches from the loose methamphetamine, a digital scale

and small baggies. Appellant also testified he had never lived in the residence, but the

homeowner, David Rouse, told the police that Appellant was living at the house (factor eleven).

Rouse’s statement is supported by the evidence showing that boxes containing Appellant’s

-7- personal property were in the converted garage. There is also evidence that Appellant knew the

substance he possessed was methamphetamine because he admitted that he had used

methamphetamine in the past. See Joseph v. State, 897 S.W.2d 374, 376 (Tex.Crim.App.

1995)(presence of drug paraphernalia in home with contraband supported conclusion the

defendant knew he possessed cocaine). Detective Laurie testified that it appeared to him that

someone had thrown some of the methamphetamine from the coffee table onto the floor of the

converted garage. This evidence indicates a consciousness of guilt and permits an inference that

Appellant exercised control over the methamphetamine by attempting to scatter it in the seconds

after the police entered the house to execute the search warrant (factor fourteen). We conclude

that the evidence is legally sufficient to support the jury’s finding that Appellant knew the

substance on the coffee table was methamphetamine and he exercised control, management, or

care over it. See Evans, 202 S.W.3d at 163-66 (in possession of cocaine case, evidence was

sufficient to show that the defendant exercised care, control, or management of cocaine

discovered on coffee table in house where his aunt lived even though aunt told police officers

that cocaine was hers, and defendant offered reasonable alternative hypothesis that he was

merely checking on aunt while his grandmother was away; defendant was sitting directly in front

of 14 grams of cocaine on coffee table, cocaine was within arm’s reach and was in plain view,

and defendant was alone in house, knew that “[d]rugs” were why officers had entered house, and

received mail at house). Issue One is overruled. The judgment of the trial court is affirmed.

-8- October 17, 2012 _______________________________________________ ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)

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