Lutheran Gordon v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 10, 2023
• Docket: 06-22-00120-CR
• Status: Published

Opinion

In the Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-22-00120-CR

LUTHERAN GORDON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 6th District Court Lamar County, Texas Trial Court No. 29573

Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Chief Justice Stevens MEMORANDUM OPINION

A Lamar County jury convicted Lutheran Gordon of possessing more than four, but less

than two hundred, grams of methamphetamine, a second-degree felony.1 After Gordon pled true

to the State’s punishment enhancement allegations, the trial court sentenced him to forty years’

imprisonment. In his sole point of error on appeal, Gordon argues that the jury’s finding of guilt

was not supported by legally sufficient evidence. Because the record reveals sufficient evidence

of guilt, we affirm the trial court’s judgment.

I. Standard of Review

“In evaluating legal sufficiency, we review all the evidence in the light most favorable to

the trial court’s judgment to determine whether any rational jury could have found the essential

elements of the offense beyond a reasonable doubt.” Williamson v. State, 589 S.W.3d 292, 297

(Tex. App.—Texarkana 2019, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010) (plurality op.); Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hartsfield v.

State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d)). “Our rigorous [legal

sufficiency] review focuses on the quality of the evidence presented.” Id. (citing Brooks, 323

S.W.3d at 917–18 (Cochran, J., concurring)). “We examine legal sufficiency under the direction

of the Brooks opinion, while giving deference to the responsibility of the jury ‘to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts.’” Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)

1 See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (Supp.). 2 (citing Jackson, 443 U.S. at 318–19; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007))).

In our review, we consider “events occurring before, during and after the commission of

the offense and may rely on actions of the defendant which show an understanding and common

design to do the prohibited act.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)

(quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)). It is not required that

each fact “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.” Id.

“Circumstantial evidence and direct evidence are equally probative in establishing the guilt of a

defendant, and guilt can be established by circumstantial evidence alone.” Paroline v. State, 532

S.W.3d 491, 498 (Tex. App.—Texarkana 2017, no pet.) (citing Ramsey v. State, 473 S.W.3d

805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13 (citing Guevara v. State, 152

S.W.3d 45, 49 (Tex. Crim. App. 2004))).

“Legal sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge.” Williamson, 589 S.W.3d at 298 (quoting Malik v. State,

953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “The ‘hypothetically correct’ jury charge is ‘one

that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase

the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and

adequately describes the particular offense for which the defendant was tried.’” Id. (quoting

Malik, 953 S.W.2d at 240). Here, to obtain a conviction under the relevant statute and the

indictment, the State was required to prove beyond a reasonable doubt that Gordon

3 (1) intentionally or knowingly (2) possessed (3) four or more, but less than two hundred, grams

(4) of methamphetamine, including any adulterants or dilutants. See TEX. HEALTH & SAFETY

CODE ANN. § 481.115(a), (d).

II. The Evidence at Trial

Jeremy Helms, a patrol officer with the Paris Police Department, testified that he knew

Gordon had outstanding warrants for his arrest when he spotted Gordon during his patrol. Helms

activated his body camera, stepped out of his patrol unit, and asked Gordon to walk towards him.

Gordon immediately ran, prompting Helms to chase him with the patrol unit. Helms testified,

and his body-camera footage showed, that Gordon was carrying a blue shirt as he was running

away.

Helms said that Gordon ran into a “gravel and dirt” parking lot at an apartment complex,

tripped, and fell to the ground. According to Helms, Gordon left the shirt on the ground but got

back up and continued running. Although the body-camera footage did not show the moment

that Gordon dropped the blue shirt, it showed him running away from the shirt, which was on the

ground just a few feet away. Helms apprehended Gordon, arrested him, and placed him in the

back of his patrol unit. Helms went to retrieve the dirtied blue shirt and then noticed a clear,

plastic bag containing a “clear crystal-like” substance on the ground in the general proximity of

where Gordon had dropped the shirt. The Texas Department of Public Safety Crime Laboratory

tested the substance, which weighed 5.81 grams, and confirmed that it contained

methamphetamine.

4 Helms admitted that he never saw Gordon throw the plastic bag but testified that he

believed it was recently deposited because it was clean and dry even though it “had been raining

off and on all day” and the parking lot was “damp.” Although Helms testified that it was

possible that the bag could have been thrown earlier in the day by someone else, he believed it

“highly unlikely.”

III. The Jury’s Verdict of Guilt Is Supported by Legally Sufficient Evidence

“Possession” is defined as “actual care, custody, control, or management.” TEX. PENAL

CODE ANN. § 1.07(a)(39). To obtain a conviction for possession of a controlled substance, the

State must show that the accused not only “exercised actual care, control, or custody” of the

controlled substance, but that he was conscious of his connection with it and “possessed it

knowingly.” Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Smith v. State, 118

S.W.3d 838, 842 (Tex. App.—Texarkana 2003, no pet.).

“[E]vidence which affirmatively links [the accused] to [the drugs] suffices for proof that

he possessed it knowingly,” Brown, 911 S.W.2d at 747, because it tends to show “that the

accused’s connection with the contraband was more than just ‘fortuitous,’” Gill v. State, 57

S.W.3d 540, 544 (Tex. App.—Waco 2001, no pet.) (quoting Harris v. State, 994 S.W.2d 927,

933 (Tex. App.—Waco 1999, pet. ref’d)). Even so, the State must demonstrate that “the accused

was aware of the object, knew what it was, and recognized his or her connection to it.” Smith,

118 S.W.3d at 842 (citing Gill, 57 S.W.3d at 544). For this reason, the mere presence of the

accused at the location where contraband is found is not sufficient, in and of itself, to establish

5 his knowing possession. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016); Evans v.

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

“When the contraband is not in the exclusive possession of the defendant, a fact[-]finder

may nonetheless infer that the defendant intentionally or knowingly possessed the contraband if

there are sufficient independent facts and circumstances justifying such an inference.” Tate, 500

S.W.3d at 413–14. Under the links test, if combined with other evidence, the accused’s presence

or proximity may be sufficient to establish knowing possession. Id. at 414. Some factors that

may be legally sufficient, either alone or in combination, to circumstantially establish an

accused’s knowing 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 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 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.

Id. at 414 (quoting Evans, 202 S.W.3d at 162 n.12); see Smith, 118 S.W.3d at 842; Nguyen v.

State, 54 S.W.3d 49, 53 (Tex. App.—Texarkana 2001, pet. ref’d), overruled on other grounds by

Fagan v. State, 362 S.W.3d 796 (Tex. App.—Texarkana 2012, pet. ref’d).

It is the logical force of the links, rather than the number of links, that is dispositive.

Evans, 202 S.W.3d at 162; Smith v. State, 176 S.W.3d 907, 916 (Tex. App.—Dallas 2005, pet.

ref’d). Also, the links need not exclude every other reasonable hypothesis but the defendant’s 6 guilt. See Tate, 500 S.W.3d at 413; Brown, 911 S.W.2d at 748. Even though the factors in the

links test guide us, “ultimately the inquiry remains that set forth in Jackson: Based on the

combined and cumulative force of the evidence and any reasonable inferences therefrom, was a

jury rationally justified in finding guilt beyond a reasonable doubt?” Tate, 500 S.W.3d at 414

(citing Jackson, 443 U.S. at 318–19).

Here, there was no evidence of several of the links test factors. Gordon (1) was not under

the influence of drugs when arrested, (2) possessed no other contraband or narcotics, (3) made no

incriminating statements, (4) did not smell of contraband, (5) did not own an apartment attached

to the parking lot, (6) was not in an enclosed space, and (7) was not found with a large amount of

cash. Even so, six factors supported the jury’s verdict.

When Helms spotted Gordon and asked him to stop, Gordon immediately fled, indicating

a consciousness of guilt.2 The body-camera footage established that Gordon was the only person

present in the parking lot during Helms’s chase and search of the ground. The plastic bag

containing methamphetamine was found in plain view, relatively close to where Gordon’s shirt

was found after he had dropped it.3 From these facts, and Helms’s testimony that the bag was

clean and dry even though the dirt and gravel parking lot was dirty and damp, the jury could

infer that Gordon had access to the plastic bag and had kept it in a clean, dry place before

dropping it on the ground, either on his person or wrapped in the shirt. The jury could have also

found that Gordon fell intentionally for the purpose of distracting Helms by dropping his shirt on

2 Gordon argues that he fled because he had outstanding warrants, but the jury could have determined it was also because he was carrying contraband. 3 Gordon notes that Helms was unable to state exactly how far the drugs were found from the shirt, but the body- camera footage shows that the items were in the same vicinity. 7 the ground while attempting to rid himself of the contraband and that the act of falling was a

furtive gesture.

“[A]ll reasonable inferences from the evidence must be resolved in favor of the jury’s

guilty verdict.” Id. at 417. Considering the cumulative force of all the evidence when viewed in

the light most favorable to the jury’s verdict, we conclude that the jury’s verdict that Gordon

intentionally or knowingly possessed more than four, but less than two hundred, grams of

methamphetamine is supported by legally sufficient evidence. As a result, we overrule Gordon’s

sole point of error.

IV. Conclusion

We affirm the trial court’s judgment.

Scott E. Stevens Chief Justice

Date Submitted: February 13, 2023 Date Decided: March 10, 2023

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