Junius Sereal v. State

Court of Appeals of Texas·Decided May 10, 2011·No. 14-10-00594-CR·Published

Opinion

Affirmed and Memorandum Opinion filed May 10, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-00594-CR

Junius Sereal, Appellant

v.

The State of Texas, Appellee

On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Cause No. 08CR2114

MEMORANDUM OPINION

            A jury found appellant Junius Sereal guilty of possession of four or more but less than 200 grams of cocaine with intent to deliver and, after finding two enhancement paragraphs true, assessed punishment of thirty-two years’ confinement in the Texas Department of Criminal Justice, Institutional Division.  The trial court sentenced the appellant accordingly.  In a single issue, the appellant contends the evidence is legally insufficient to support his conviction because a rational trier of fact could not have found, beyond a reasonable doubt, that he possessed the cocaine.  We affirm.


I

            In June 2008, City of Dickinson Detective Michael E. Henson, Jr., received information from a confidential informant that Ewa Sereal, the appellant’s wife, possessed and was selling cocaine at 3010 Ohio Avenue in Dickinson.  In preparing a search warrant for the premises, Henson determined that water service to the house was in Ewa’s name.  He also learned that one of the two vehicles frequently parked at the house was registered to the appellant at the 3010 Ohio Avenue address, and the other was registered to Ewa at the same address. 

            The search warrant was executed shortly after noon on June 26 by narcotics units from the Galveston Police Department and the Texas Department of Public Safety, as well as officers from the Dickinson Police Department.  When the team arrived at 3010 Ohio Avenue, the appellant was at the front entrance of the house.  Inside were the appellant’s brothers, Eugene Willie Sereal and Alvin Sereal, and a third man, Tyrone Hazley.  Another man, Mark Norris, was on the back patio.  Three children were also in the house.

            Inside the house, officers found 138.6 grams of cocaine and 9.1 grams of crack cocaine in the back bedroom, along with a microwave, a digital scale, a box of sandwich bags, a box of latex gloves, and money.  Also found in the back bedroom were personal documents and mail addressed to the appellant, men’s clothing, brass knuckles, and a baby carriage.  Another 57.3 grams of crack cocaine and a digital scale were found in a drawer in the kitchen.  On top of a kitchen cabinet was a plate containing 2 grams of powder cocaine, along with a razor blade.  Under the kitchen sink were three Pyrex measuring cups containing a white substance that tested positive for cocaine. 

            The appellant and Eugene Willie Sereal were arrested at the house.  Ewa was not there at the time but was arrested later.  She pleaded guilty to possession of a controlled substance and received probation.


II

A

            In a legal-sufficiency review, we examine all of the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 433 U.S. 307, 319 (1979).  This standard of review applies to cases involving both direct and circumstantial evidence.  Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).  Although we consider everything presented at trial, we do not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder.  Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).  The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence.  Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998).   

            A person commits an offense if he knowingly possesses, with intent to deliver, a controlled substance.  See Tex. Health & Safety Code § 481.112(a).  Cocaine is a controlled substance.  See id. § 481.102(3)(D).  “Possession” means “actual care, custody, control or management.”  Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); see also Tex. Health & Safety Code § 481.002; Tex. Penal Code § 1.07(39).  To prove unlawful possession of a controlled substance, the State must establish that the accused (1) exercised care, control, or management over the contraband, and (2) knew the substance was contraband.  Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005).  A person’s possession of the controlled substance must be more than fortuitous, and his mere presence at the scene where the substance was found is insufficient to demonstrate care, management, or control of the drug.  Evans, 202 S.W.3d at 161–62.  But presence combined with direct or circumstantial evidence affirmatively linking the defendant to the controlled substance may be sufficient to establish the element of possession beyond a reasonable doubt.  Id. at 162; see Olivarez v. State, 171 S.W.3d 283, 291–92 (Tex. App.—Houston [14th Dist.] 2005, no pet.).

            Courts have identified a non-exhaustive list of factors that may help show an accused is linked to a controlled substance, 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 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 fo

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Related

Poindexter v. State
153 S.W.3d 402 (Court of Criminal Appeals of Texas, 2005)
Williams v. State
235 S.W.3d 742 (Court of Criminal Appeals of Texas, 2007)
Clayton v. State
235 S.W.3d 772 (Court of Criminal Appeals of Texas, 2007)
Allen v. State
249 S.W.3d 680 (Court of Appeals of Texas, 2008)
Olivarez v. State
171 S.W.3d 283 (Court of Appeals of Texas, 2005)
Mares v. State
801 S.W.2d 121 (Court of Appeals of Texas, 1990)
Evans v. State
202 S.W.3d 158 (Court of Criminal Appeals of Texas, 2006)
Mosley v. State
983 S.W.2d 249 (Court of Criminal Appeals of Texas, 1998)