AFFIRM; and Opinion Filed March 13, 2014.
Court of Appeals S In The
Fifth District of Texas at Dallas No. 05-12-00958-CR No. 05-12-00959-CR
GREGORIO DIAZ LOPEZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4 Dallas County, Texas Trial Court Cause Nos. F09-40834-K and F09-40835-K
MEMORANDUM OPINION Before Justices Francis, Lang-Miers, and Lewis Opinion by Justice Lewis A jury convicted appellant Gregorio Diaz Lopez of two offenses: knowingly possessing,
with intent to deliver, four or more but less than 200 grams of both heroin and cocaine. The trial
court assessed his punishment at five years’ confinement for each offense. In three issues,
appellant challenges the sufficiency of the evidence supporting his convictions and the
assessment of court costs against him. 1 We affirm the trial court’s judgments.
Background
Police officers received a tip about drug activity at a Mesquite apartment and set up
surveillance around the complex. Appellant and his cousin, George Diaz, Jr., left that apartment
1 Appellant initially raised two additional issues concerning the adequacy of what he called the “accomplice-witness testimony” offered by his witness, George Diaz, Jr. The State cited authorities establishing the testimony of appellant’s own witness was not accomplice-witness testimony that required corroboration. See, e.g. Johnson v. State, 853 S.W.2d 527, 531 (Tex. Crim. App. 1992). In his reply brief, appellant acknowledged the State’s legal argument was correct, so we need not address these issues further. at approximately nine o’clock that night. The officers stopped the two men, who told officers
they were on their way to the gym to lift weights. Officers obtained consent to search the men’s
persons. The officers found marijuana and heroin in Diaz’s pockets; they did not find any drugs
in appellant’s possession. Shortly thereafter, a third man left the apartment, and police entered
the apartment to perform a protective sweep. They determined that only this third individual had
been present in the apartment when appellant and Diaz left and that no one else had entered in
the meantime. Police discovered an open shoe box on the kitchen counter that contained a
digital scale, a razor blade with heroin residue on it, small empty baggies, and a baggie
containing marijuana. The police then obtained a search warrant and found large amounts of
heroin and cocaine throughout the apartment. In one bedroom they found a duffel bag
containing appellant’s personal belongings and just under six ounces of heroin. Officers also
discovered appellant’s driver’s license in the apartment kitchen.
Appellant was arrested and charged with possession with intent to distribute heroin and
cocaine. Police officers involved in the surveillance and search testified at appellant’s trial.
Diaz testified for the defense. He acknowledged that he and others kept drugs in the Mesquite
apartment and dealt those drugs on a daily basis. Diaz testified, however, that he had an
agreement with the other occupants of the apartment to keep the drugs hidden during the time
appellant was staying there. Diaz testified appellant knew nothing about the drugs in the house
or the sales taking place connected with those drugs. The jury found appellant guilty on both
counts, and the trial court assessed his punishment at a term of five years for each offense.
In this Court, appellant raises three issues, challenging the sufficiency of the evidence
supporting the jury’s verdicts and the trial court’s assessment of costs.
–2– Sufficiency of the Evidence
In his first issue, appellant contends the evidence is legally insufficient to support his
conviction because there are no affirmative links connecting him to the contraband. Thus, he
argues, there was no evidence he unlawfully possessed the drugs. To prove unlawful possession
of a controlled substance, the State must prove that the accused exercised control, management,
or care over the substance, and that the accused knew the matter possessed was contraband.
Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). The State’s evidence may be
direct or circumstantial, but it must establish that the accused’s connection with the drug was
more than just fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). “This
is the so-called ‘affirmative links’ rule which protects the innocent bystander—a relative, friend,
or even stranger to the actual possessor—from conviction merely because of his fortuitous
proximity to someone else’s drugs.” Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim. App.
2006) (internal footnote omitted). A defendant’s mere presence where drugs are found is
insufficient alone to establish the defendant’s possession of the drugs. Id. at 162. But a
defendant’s presence or proximity to the drugs, when combined with other evidence, can suffice
to establish possession beyond a reasonable doubt. Id. Ultimately, the evidence is sufficient if—
when the evidence is examined in the light most favorable to the judgment—any rational trier of
fact could have found that appellant possessed the contraband beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Because appellant did not have exclusive possession of the apartment where the
contraband was found, the State must connect him to the heroin and cocaine found there. See
Brown, 911 S.W.2d at 748. This Court has looked to a nonexclusive list of possible links that
can make that connection: (1) whether the defendant was present when the drugs were found;
(2) whether the drugs were in plain view; (3) the defendant’s proximity to and the accessibility of
–3– the drugs; (4) whether the defendant was under the influence of drugs when arrested; (5) whether
the defendant possessed other contraband; (6) whether the defendant made any 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 drugs; (10) whether the defendant owned
or had the right to possess the place where the drugs were found; (11) whether the place the
drugs were found was enclosed; (12) the amount of drugs found; (13) whether the defendant
possessed weapons; and (14) whether the defendant possessed a large amount of cash. Taylor v.
State, 106 S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.); Porter v. State, 873 S.W.2d 729,
732 (Tex. App—Dallas 1994, pet. ref’d). We are less concerned with the number of links than
with the degree to which the links tend to connect the defendant to the contraband. See Evans,
202 S.W.3d at 162; Taylor, 106 S.W.3d at 831.
In this case, a number of these factors, alone and in combination, tend to connect
appellant affirmatively to the drugs found in the apartment. Employing the numbers associated
with the factors listed above, we consider the following evidence: (1) appellant was present
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AFFIRM; and Opinion Filed March 13, 2014.
Court of Appeals S In The
Fifth District of Texas at Dallas No. 05-12-00958-CR No. 05-12-00959-CR
GREGORIO DIAZ LOPEZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4 Dallas County, Texas Trial Court Cause Nos. F09-40834-K and F09-40835-K
MEMORANDUM OPINION Before Justices Francis, Lang-Miers, and Lewis Opinion by Justice Lewis A jury convicted appellant Gregorio Diaz Lopez of two offenses: knowingly possessing,
with intent to deliver, four or more but less than 200 grams of both heroin and cocaine. The trial
court assessed his punishment at five years’ confinement for each offense. In three issues,
appellant challenges the sufficiency of the evidence supporting his convictions and the
assessment of court costs against him. 1 We affirm the trial court’s judgments.
Background
Police officers received a tip about drug activity at a Mesquite apartment and set up
surveillance around the complex. Appellant and his cousin, George Diaz, Jr., left that apartment
1 Appellant initially raised two additional issues concerning the adequacy of what he called the “accomplice-witness testimony” offered by his witness, George Diaz, Jr. The State cited authorities establishing the testimony of appellant’s own witness was not accomplice-witness testimony that required corroboration. See, e.g. Johnson v. State, 853 S.W.2d 527, 531 (Tex. Crim. App. 1992). In his reply brief, appellant acknowledged the State’s legal argument was correct, so we need not address these issues further. at approximately nine o’clock that night. The officers stopped the two men, who told officers
they were on their way to the gym to lift weights. Officers obtained consent to search the men’s
persons. The officers found marijuana and heroin in Diaz’s pockets; they did not find any drugs
in appellant’s possession. Shortly thereafter, a third man left the apartment, and police entered
the apartment to perform a protective sweep. They determined that only this third individual had
been present in the apartment when appellant and Diaz left and that no one else had entered in
the meantime. Police discovered an open shoe box on the kitchen counter that contained a
digital scale, a razor blade with heroin residue on it, small empty baggies, and a baggie
containing marijuana. The police then obtained a search warrant and found large amounts of
heroin and cocaine throughout the apartment. In one bedroom they found a duffel bag
containing appellant’s personal belongings and just under six ounces of heroin. Officers also
discovered appellant’s driver’s license in the apartment kitchen.
Appellant was arrested and charged with possession with intent to distribute heroin and
cocaine. Police officers involved in the surveillance and search testified at appellant’s trial.
Diaz testified for the defense. He acknowledged that he and others kept drugs in the Mesquite
apartment and dealt those drugs on a daily basis. Diaz testified, however, that he had an
agreement with the other occupants of the apartment to keep the drugs hidden during the time
appellant was staying there. Diaz testified appellant knew nothing about the drugs in the house
or the sales taking place connected with those drugs. The jury found appellant guilty on both
counts, and the trial court assessed his punishment at a term of five years for each offense.
In this Court, appellant raises three issues, challenging the sufficiency of the evidence
supporting the jury’s verdicts and the trial court’s assessment of costs.
–2– Sufficiency of the Evidence
In his first issue, appellant contends the evidence is legally insufficient to support his
conviction because there are no affirmative links connecting him to the contraband. Thus, he
argues, there was no evidence he unlawfully possessed the drugs. To prove unlawful possession
of a controlled substance, the State must prove that the accused exercised control, management,
or care over the substance, and that the accused knew the matter possessed was contraband.
Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). The State’s evidence may be
direct or circumstantial, but it must establish that the accused’s connection with the drug was
more than just fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). “This
is the so-called ‘affirmative links’ rule which protects the innocent bystander—a relative, friend,
or even stranger to the actual possessor—from conviction merely because of his fortuitous
proximity to someone else’s drugs.” Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim. App.
2006) (internal footnote omitted). A defendant’s mere presence where drugs are found is
insufficient alone to establish the defendant’s possession of the drugs. Id. at 162. But a
defendant’s presence or proximity to the drugs, when combined with other evidence, can suffice
to establish possession beyond a reasonable doubt. Id. Ultimately, the evidence is sufficient if—
when the evidence is examined in the light most favorable to the judgment—any rational trier of
fact could have found that appellant possessed the contraband beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Because appellant did not have exclusive possession of the apartment where the
contraband was found, the State must connect him to the heroin and cocaine found there. See
Brown, 911 S.W.2d at 748. This Court has looked to a nonexclusive list of possible links that
can make that connection: (1) whether the defendant was present when the drugs were found;
(2) whether the drugs were in plain view; (3) the defendant’s proximity to and the accessibility of
–3– the drugs; (4) whether the defendant was under the influence of drugs when arrested; (5) whether
the defendant possessed other contraband; (6) whether the defendant made any 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 drugs; (10) whether the defendant owned
or had the right to possess the place where the drugs were found; (11) whether the place the
drugs were found was enclosed; (12) the amount of drugs found; (13) whether the defendant
possessed weapons; and (14) whether the defendant possessed a large amount of cash. Taylor v.
State, 106 S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.); Porter v. State, 873 S.W.2d 729,
732 (Tex. App—Dallas 1994, pet. ref’d). We are less concerned with the number of links than
with the degree to which the links tend to connect the defendant to the contraband. See Evans,
202 S.W.3d at 162; Taylor, 106 S.W.3d at 831.
In this case, a number of these factors, alone and in combination, tend to connect
appellant affirmatively to the drugs found in the apartment. Employing the numbers associated
with the factors listed above, we consider the following evidence: (1) appellant was present
when heroin was found in his cousin’s pocket, and appellant had left the apartment only minutes
before heroin and cocaine were found there; (2) drugs were in plain view in the apartment shortly
after appellant exited; (3) appellant was staying at the apartment where the drugs were found,
and almost six ounces of heroin was found in the closet of the specific bedroom where evidence
indicated he was staying; (5) police also found marijuana and drug paraphernalia in the
apartment; (9) officers testified to smelling both marijuana and heroin in the apartment; (10)
appellant resided at, and thus had the right to possess, the place where the drugs were found; (11)
the apartment, of course, was an enclosed area; significantly, it was a relatively small area—
estimated in police testimony to contain approximately 800 square feet; (12) testimony
–4– confirmed the testing of more than 112 grams of heroin and more than four grams of cocaine
seized in this case.
Other evidence also supports a finding appellant exercised some control over the drugs.
Diaz admitted carrying two ounces of heroin when stopped, worth $2600; he conceded he had
arranged to sell the heroin when he and appellant arrived at the gym. There was testimony that
drug dealers, especially juveniles like Diaz, were often accompanied by individuals who could
provide protection to the dealer himself during a sale. Appellant’s driver’s license was found in
a kitchen drawer, in close proximity to drugs and paraphernalia being used that night.
There was conflicting testimony at trial concerning how long appellant had been staying
at the apartment: officers said appellant told them he had been at the apartment for a month;
Diaz testified appellant had been there only six days. However, Diaz testified he conducted
between fifteen and thirty drug sales a day and that “on a good day,” he would take in $15,000.
Given the presence of such a large amount of contraband and the large amount of drug activity
going on around him, a jury could have inferred appellant’s knowledge of those drugs and that
activity, even if he had only been present for six days.
We conclude the direct and circumstantial evidence sufficiently links appellant to the
heroin and cocaine seized in this case. Viewing the evidence in the light most favorable to the
judgments, we conclude a rational juror could have found beyond a reasonable doubt that
appellant exercised care, custody, and management over the seized drugs and knew they were
contraband. See Jackson, 443 U.S. at 319. Accordingly, we overrule appellant’s first issue.
Court Costs
In his two remaining issues, appellant argues the evidence is insufficient to support the
trial court’s assessment of court costs against appellant in both cases because the clerk’s records
do not contain appropriate written bills of cost. This Court obtained supplemental clerk’s
–5– records of the costs in both cases below, and appellant objected to those supplements. The
record before us contains the bills of costs. Appellant’s complaints have been addressed and
rejected. See Johnson v. State, No. PD-0193-13, 2014 WL 714736, at *4–8 (Tex. Crim. App.
Feb. 26, 2014); Coronel v. State, 416 S.W.3d 550, 555–56 (Tex. App.—Dallas 2013, pet. ref’d).
We overrule appellant’s objections to the supplemental records, and we decide his final two
issues against him.
We affirm the trial court’s judgments.
/David Lewis/ DAVID LEWIS JUSTICE
Do Not Publish TEX. R. APP. P. 47
120958F.U05
–6– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
GREGORIO DIAZ LOPEZ, Appellant On Appeal from the Criminal District Court No. 4, Dallas County, Texas No. 05-12-00958-CR V. Trial Court Cause No. F09-40834-K. Opinion delivered by Justice Lewis. THE STATE OF TEXAS, Appellee Justices Francis and Lang-Miers participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 13th day of March, 2014.
–7– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
GREGORIO DIAZ LOPEZ, Appellant On Appeal from the Criminal District Court No. 4, Dallas County, Texas No. 05-12-00959-CR V. Trial Court Cause No. F09-40835-K. Opinion delivered by Justice Lewis. THE STATE OF TEXAS, Appellee Justices Francis and Lang-Miers participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
–8–