Opinion issued July 9, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NOS. 01-18-00694-CR & 01-18-00695-CR ——————————— OSBIEL GOMEZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court Harris County, Texas Trial Court Case Nos. 1565507 & 1565508
MEMORANDUM OPINION
A jury convicted appellant Osbiel Gomez of possession with intent to deliver
at least 400 grams of methamphetamine and possession with intent to deliver
between 200 and 400 grams of heroin. The jury assessed his punishment in both
cases at twenty-five years’ incarceration, with the sentences to run concurrently. Gomez argues on appeal that the evidence supporting both convictions is insufficient
to prove that he knowingly possessed methamphetamine and heroin by exercising
care, custody, or control over the drugs. Finding no reversible error, we affirm the
trial court’s judgment.
Background
In September 2017, Houston Police Department (HPD) Narcotics Officers
Marco Valles and Robert Bradley received a tip from a confidential informant that
someone was selling drugs from a second-floor apartment located at 8751 Broadway
Street in Houston. The confidential informant told Valles that the suspected
trafficker who lived in the apartment was named Osbiel Gomez.
After speaking with the informant, Officer Valles conducted surveillance on
the apartment at random times during the day from September 11, 2017 to September
21, 2017. During his surveillance, Valles observed a male who he recognized as
Gomez entering and exiting the apartment multiple times. According to Valles,
Gomez’s primary vehicle, a white truck, was parked in the parking lot unless Gomez
went somewhere. Valles observed Gomez leaving in the truck and returning a short
time later; he did not appear to be going to work.
Valles often saw Gomez come and go from the apartment with Lisa Le and
two young children. Valles testified that Gomez, Le, and the two children appeared
2 to be a family unit. Le, whose name is on the apartment’s lease, was also referred to
by the officers as Gomez’s wife.
On three occasions, Valles observed Gomez leave the apartment to meet up
with someone who had just driven into the apartment’s parking lot. Gomez would
get into the passenger side of their vehicle for very short periods of time before
returning to the apartment. Valles, who could not see what was happening inside the
vehicles, agreed that such behavior provided extra information that possible illegal
activity was occurring in the apartment. Officer Bradley testified that he had seen
Gomez on September 21, 2017, the last day of surveillance. When asked what he
saw Gomez doing, Bradley replied, “[t]hat was the day we did the—I think that was
the day of the controlled buy.”
Valles obtained a search warrant for the apartment on September 22, 2017,
the day after the controlled buy. The following day, Valles and Bradley went to the
apartment complex and waited for the right time to execute the warrant. Gomez’s
truck was parked in the parking lot when they arrived. Gomez, who exited the
apartment with Le and the children around midday, opened the truck’s door for the
family. Valles testified that the apartment’s door had been left open and that Gomez,
who had a key to the apartment at that time, “walked back up and locked it and came
back in the truck.”
3 When Gomez and the family returned to the apartment complex a few hours
later, uniformed officers stopped Gomez in the parking lot and arrested him for
municipal warrants. Le was also asked to step out of the vehicle.1 HPD K-9 Officer
Peter Esbrandt and his drug dog searched Gomez’s truck, but the dog did not alert
to the truck and the dog did not perform a sniff of Gomez’s person.
Although Le denied having a key to the apartment, the officers located the key
in a woman’s Victoria’s Secret wallet found near the passenger seat in appellant’s
truck where Le had been sitting. The officers did not find an apartment key on
Gomez’s key ring. Officer Bradley, however, testified that it is not uncommon for a
couple to leave their house when only one person has a key.
After obtaining the key from the wallet, Officer Esbrandt and the drug dog
searched the empty apartment. According to Officer Esbrandt, the drug dog alerted
on “a giant pile of clothes” on the floor of the master bedroom’s closet and a cabinet
underneath the sink in the master bathroom. Officer Esbrandt reported the results to
the officers who then searched the areas identified by the drug dog. Officer Esbrandt
also assisted with the ensuing search.
1 Lisa Le was also arrested and charged with possession with intent to deliver controlled substances. 4 During the search, officers found 368.86 grams of methamphetamine2 in
Tupperware container on the floor of the master bedroom closet. Officer Bradley
recalled that the Tupperware container was not hidden or under any item of clothing
and that there were some adult tennis shoes next to the container, but he could not
tell if the shoes were for men or women. He also could not recall what kind of
clothing was on the bed in the master bedroom. Esbrandt, who had testified that the
location where the drug dog alerted “had a big pile of clothes on top of it,” did not
recall anything about the clothing he saw other than the fact that there was a large
pile of them.
Officer Valles testified that the master bedroom appeared to be shared by Le
and Gomez. He also testified that a combination of men’s and women’s, along with
children’s clothing and shoes, was around the Tupperware container, and that
clothing for men, women, and children was scattered “all throughout” the bedroom.
Valles, however, did not document specific items of male clothing in his report and
he agreed that specific items of male clothing were not discernible from the scene
photographs.
2 The quantity of methamphetamine found in the apartment is based on the amount of the drug admitted at trial, not the weight of the drug calculated at the scene, which includes the weight of the container. 5 The officers also found 240.97 grams of heroin3 and 101.1 grams of Xanax4
in a bag inside the master bathroom cabinet, “[u]nder the sink and tucked away
behind a bunch of dirty clothes.” Bradley did not recall seeing any men’s toiletries
in the bathroom.
The officers also found a clear baggy of 54.5 grams of methamphetamine and
$4,990 in cash in a dresser in the master bedroom. The methamphetamine was found
in a drawer with clothing that appeared to be for women and children. The cash was
found in a drawer containing child and adult clothing; Valles could not tell from the
scene photograph if the adult clothing was for men or women. Although the drug
dog did not alert to the drugs or money in the dresser initially, the dog later alerted
to the presence of narcotics odor on the money. Valles testified that the amount of
cash recovered at the scene was significant because drug dealers typically have a
large amount of cash in their homes, transactions are usually done on a cash-basis
and, after observing Gomez for over a week, he did not believe that Gomez had
another source of income apart from possible drug sales.
3 The quantity of heroin found in the apartment is based on the amount of the drug admitted at trial, not the weight of the drug calculated at the scene, which includes the weight of the container. 4 Unlike the heroin and methamphetamine, the Xanax was not admitted into evidence. Therefore, we will rely on the officer’s testimony regarding the amount of the drug found in the apartment.
6 Two digital scales were found on a shelf in a living-room or dining area and
Ziploc bags were found in the master bathroom. Bradley and Valles testified that
drug traffickers use scales to weigh individual amounts of drugs. Bradley agreed that
Ziploc bags are commonly found where someone is selling drugs; and Valles
testified that Ziploc bags are typically used for packaging individual amounts of
drugs.
Officer Bradley noted that the Tupperware container they found in the closest
contained a “significant amount of crystal methamphetamine.” When asked if he
would characterize the amount of methamphetamine as a large amount, Officer
Bradley testified, “[I]t’s not a user’s amount and it’s a significant amount.” Officer
Valles also testified that the amounts of methamphetamine and heroin found in the
apartment were “not for personal use. They’re normally for sale at those amounts.”
Documents connected to Gomez were also found at the apartment, including:
(1) a Houston Municipal Courts receipt, (2) an employment-verification letter, and
(3) a binder with his name on it. The records, however, were dated over a year and
a half before the search, and none of them listed an address for Gomez.
The white truck Gomez drove was registered to his father in Crosby, Texas
and the address listed for Gomez on the police report was his parents’ address in
Crosby. The State did not present any evidence that Gomez was listed on the
apartment’s lease or that he paid utilities for the apartment. Valles testified, however,
7 that he would not have been surprised if Gomez was not on the lease because drug
traffickers use vehicles and homes listed in other people’s names to prevent law
enforcement from finding them or identifying them.
No drug paraphernalia was found in the apartment and neither Gomez nor Le
displayed any symptoms of methamphetamine or heroin use. No fingerprint or DNA
evidence was collected.
Sufficiency of the Evidence
In his sole issue on appeal, Gomez argues that the evidence supporting his
convictions is insufficient to prove that he knowingly possessed methamphetamine
and heroin by exercising care, custody, or control over the drugs.
A. Standard of Review
In a review for legal sufficiency, we view all of the evidence in the light most
favorable to the verdict and determine whether a rational factfinder could have found
the essential elements of the crime beyond a reasonable doubt. Gear v. State, 340
S.W.3d 743, 746 (Tex. Crim. App. 2011) (relying on Jackson v. Virginia, 443 U.S.
307, 318–19 (1979)). We must not re-evaluate the weight or credibility of the
testimony; rather, we defer to the jury’s resolution of conflicts in the evidence. Isassi
v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). When the record supports
conflicting inferences, the reviewing court is to presume that the fact-finder resolved
the conflicts in favor of the prosecution and defer to that determination. Clayton v.
8 State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Appellate courts cannot use a
divide-and-conquer strategy in a sufficiency analysis, because that approach does
not consider the cumulative force of all the evidence. Murray v. State, 457 S.W.3d
446, 448 (Tex. Crim. App. 2015).
The court considers both properly and improperly admitted evidence. Jenkins
v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). Each fact need not point
directly and independently to the guilt of the defendant, as long as the cumulative
force of all the incriminating circumstances is sufficient to support the conviction.
Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App. 2011). The prosecution
has no affirmative duty to rule out every hypothesis except that of guilt. Id.
Circumstantial evidence is as probative as direct evidence in establishing guilt, and
circumstantial evidence alone can be sufficient. Jenkins, 493 S.W.3d at 599. While
inferences based on mere speculation are insufficient to support a conviction, the
trier of fact is the exclusive judge of the credibility and weight of the evidence and
is permitted to draw any reasonable inference from the evidence so long as it is
supported by the record. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App.
2015).
B. Applicable Law
Gomez was charged with (1) possession with intent to deliver at least 400
grams of methamphetamine, and (2) possession with intent to deliver between 200
9 and 400 grams of heroin. TEX. HEALTH & SAFETY CODE §§ 481.102(2), (6);
481.112(a), (e), (f). “Possession” means actual care, custody, control, or
management. TEX. PENAL CODE § 1.07(a)(39).
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 defendant 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 . . . .”).5 Possession of the contraband does not have to be exclusive.
Wiley v. State, 388 S.W.3d 807, 813 (Tex. App.—Houston [1st Dist.] 2013, pet.
ref’d).
When the accused is not in exclusive possession of the place where the
contraband is found, the State must establish that the defendant’s connection with
the drugs was more than fortuitous, a requirement known as the “affirmative links”
rule. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); Poindexter, 153
S.W.3d at 405–06; Wiley, 388 S.W.3d at 813. This rule is designed to protect an
innocent bystander from conviction based solely upon his mere presence in the
5 Gomez was only charged with “knowingly” possessing methamphetamine and heroin. 10 vicinity of someone else’s drugs. Evans, 202 S.W.3d at 161–62. It recognizes that a
defendant who is not in exclusive possession of the place where the controlled
substance was found may not have knowledge of and control over the drugs; in such
cases, additional independent facts and circumstances beyond mere presence must
link him to the drugs. Tate v. State, 500 S.W.3d 410, 413–14 (Tex. Crim. App. 2016)
(citing Poindexter, 153 S.W.3d at 406, and Deshong v. State, 625 S.W.2d 327, 329
(Tex. Crim. App. 1981)).
The Texas Court of Criminal Appeals has instructed that direct or
circumstantial evidence of one or more of the following links may provide the logical
force that demonstrates possession and not mere presence:
(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.
Evans, 202 S.W.3d at 162 n.12; Burrell v. State, 445 S.W.3d 761, 765 (Tex. App.—
Houston [1st Dist.] 2014, pet. ref’d). The State is not required to prove all of these
links. See Evans, 202 S.W.3d at 162; James v. State, 264 S.W.3d 215, 219 (Tex.
11 App.—Houston [1st Dist.] 2008, pet. ref’d). Further, the absence of some links is
not evidence of innocence that weighs against those links that are present. Id. (citing
Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App. 1976)). It is not the
number of links that is dispositive, but the cumulative weight of the evidence. Evans,
202 S.W.3d at 162; James, 264 S.W.3d at 219. Though this framework guides an
appellate court in analyzing the evidence, the dispositive inquiry remains the one set
forth in Jackson—whether the combined and cumulative force of the evidence and
any permissible inferences permit a jury to rationally find the defendant guilty of the
offense beyond a reasonable doubt. Tate, 500 S.W.3d at 414.
C. Analysis
It is undisputed that Gomez was not in exclusive possession of the apartment
where the officers found the methamphetamine and heroin; thus, the State had to
present evidence linking Gomez to the methamphetamine and heroin and prove
beyond a reasonable doubt that Gomez’s connection to the narcotics “was more than
fortuitous.” See Evans, 202 S.W.3d at 161. We therefore examine the evidence to
determine whether the State presented sufficient evidence such that a rational jury
could have found beyond a reasonable doubt that Gomez possessed—that is,
exercised actual care, custody, control, or management over—the methamphetamine
and heroin. See Tate, 500 S.W.3d at 414 (noting that, in “affirmative links” cases,
12 court’s ultimate inquiry remains whether evidence was sufficient under Jackson v.
Virginia standard).
Although there was no evidence that Gomez’s name was on the lease or that
he paid utilities for the apartment, the State presented sufficient evidence from which
the jury could have reasonably inferred that Gomez lived in the apartment with Le
and the children or otherwise had a right to possess the apartment. See Evans, 202
S.W.3d at 162 n.12 (noting that defendant’s right to possess place where contraband
is found is affirmative link connecting defendant to contraband); see generally
Burrell, 445 S.W.3d at 765 (noting that evidence showed defendant lived in and had
right to possess apartment where drugs were found, even though he was not named
lessee).
Specifically, the State presented evidence that Gomez was seen multiple times
entering and leaving the apartment during the ten-day surveillance period, and his
primary vehicle was seen in the apartment parking lot unless he went somewhere.
See Hutchison v. State, 424 S.W.3d 164, 171–72 (Tex. App.—Texarkana 2014, no
pet.) (noting as one strong link to contraband that, before search, police observed
defendant leave house, return, enter without knocking, and leave again). Gomez was
also seen several times coming and going from the apartment with Le and the
children, who undisputedly lived in the apartment and were described as Gomez’s
family.
13 Although he did not have a key to the apartment on his key ring, Gomez was
the last person seen leaving the apartment before the search warrant was executed,
Officer Valles saw Gomez use a key to lock the apartment door, and there was no
evidence that anyone else was inside the apartment or entered it after Gomez locked
the door and left. See Haggerty v. State, 429 S.W.3d 1, 6–7 (Tex. App.—Houston
[14th Dist.] 2013, pet. ref’d) (although not present when search occurred, defendant
was last person to leave home before search, officers saw him use key to lock door,
no one else was seen entering home in his absence, and no one was inside when
search was conducted, so home was in same condition when officers found it as
when defendant left it).
The State also presented evidence that documents belonging to Gomez were
found in the apartment, along with items of male clothing. Although none of the
officers were able to identify specific items of male clothing from the photographs,
the jury was entitled to credit Valles’s testimony that he found male clothing “all
throughout” the master bedroom and near the Tupperware container in the master
closet. See Ramsey, 473 S.W.3d at 809. The jury could have reasonably inferred
from this evidence that the clothing belonged to Gomez, given that there was no
evidence indicating that another man lived in or stayed at the apartment. See Evans,
202 S.W.3d at 165.
14 The State also presented evidence that Gomez was present during the search.
See Evans, 202 S.W.3d at 162 n.12 (noting that presence at scene of search is
affirmative link connecting defendant to contraband). Specifically, Gomez had just
returned to the apartment complex with his family and was being detained in the
parking lot when the officers searched his truck and the apartment. See generally
Lipscomb v. State, 526 S.W.3d 646, 653 (Tex. App.—Houston [1st Dist.] 2017, pet.
ref’d); Williams v. State, Nos. 01-09-00257-CR, 01-09-00258-CR, 2010 WL
2991097, at *5 (Tex. App.—Houston [1st Dist.] July 29, 2010, pet. ref’d) (mem. op.,
not designated for publication) (stating that defendant, who was in vehicle backing
out of driveway when police arrived, was present during house search).
The officers also found large amounts of methamphetamine and heroin in the
apartment, along with other drugs and drug-selling paraphernalia—namely, two
digital scales, Ziploc bags, and 101.1 grams of Xanax tablets. See Evans, 202 S.W.3d
at 162 n.12 (noting that presence of other contraband or drug paraphernalia is
affirmative link); see also Roberson v. State, 80 S.W.3d 730, 740 (Tex. App.—
Houston [1st Dist.] 2002, pet. ref’d) (stating amount of contraband can be
affirmative link and this factor can reasonably be expected to increase as amount of
drugs increases).
The officers also found $4,990 in cash inside a dresser drawer in the master
bedroom. The State presented evidence that the cash smelled of narcotics, drug
15 dealers often have large amounts of cash such as this in their homes, Gomez did not
appear to have a job, and Officer Valles did not believe that Gomez had another
source of income apart from possible drug sales.
Officer Valles, who had learned from a confidential informant that Gomez
was selling drugs from the apartment, saw Gomez on three occasions, leaving the
apartment and getting into vehicles in the parking lot for a short period of time before
going back into the apartment. Such evidence is consistent with illegal drug activity
originating out of the apartment. See e.g., Hurst v. State, No. 14-15-00539-CR, 2016
WL 3703101, at *4 (Tex. App.—Houston [14th Dist.] July 12, 2016, pet. ref’d)
(mem. op., not designated for publication) (officer testified that defendant’s leaving
apartment, approaching passenger side of car, briefly talking to driver, and returning
to apartment, was behavior consistent with that of drug dealer). Officer Bradley also
testified that he saw Gomez two days before the warrant was executed, and, when
asked what he saw Gomez doing, Bradley stated that he believed that was the day of
the controlled buy. The jury could have reasonably inferred from this evidence that
Gomez was involved in a controlled drug buy and had been selling drugs from the
apartment, and therefore he was not an “innocent bystander” whose proximity to the
drugs in the apartment was merely fortuitous. See generally Evans, 202 S.W.3d at
161–62.
16 The location of the contraband further supports the inference that Gomez had
care, custody, control, or management of the methamphetamine and heroin. All of
the contraband was found in an enclosed place, namely, a private residence occupied
by Gomez. The Ziploc bags and scales were in plain view in the master bathroom
and living room, respectively. Although there was conflicting testimony about
whether the Tupperware containing most of the methamphetamine was in plain view
in the master bedroom’s closet or covered in clothing, we presume that the jury
resolved this conflict in favor of the prosecution and we defer to that determination
when there is support in the record. Clayton, 235 S.W.3d at 778.
It is undisputed that the rest of the narcotics found in the apartment were
hidden or secreted, and therefore, the State had to address whether Gomez “knew of
the existence of the secreted place and its contents.” Allen v. State, 249 S.W.3d 680,
694 (Tex. App.—Austin 2008, no pet.). The rest of the methamphetamine was found
in a dresser drawer in the master bedroom and the heroin was found in a bag that
was hidden behind a pile of dirty clothing and placed in a cabinet underneath the
sink in the master bathroom. These items were hidden in unlocked areas that would
have been readily accessible by Gomez, who shared the master bedroom with Le
and had a right to possession of the apartment. See Evans, 202 S.W.3d at 162 n.12
(listing “the defendant’s proximity to and the accessibility of the narcotic” as link to
be considered). Furthermore, the jury could reasonably infer that Gomez knew about
17 the methamphetamine and heroin in the master bedroom and bathroom from the
evidence in this case, including the significant quantities of the hidden narcotics, the
large amount of cash found in the master bedroom, Officer Valles’s testimony that
he had seen Gomez engaging in activity indicative of someone participating in an
illegal drug transaction and that Gomez did not have an identifiable source of income
other than possible drug dealing, and the evidence indicating that Gomez
participated in a controlled drug buy two days before the search. See Allen, 249
S.W.3d at 694 (“The State must link the accused to the contraband in such a manner
that a reasonable inference arises that the accused knew of its existence and its
whereabouts and that the object possessed was contraband.”).
Gomez argues on appeal that there is no evidence of other specific affirmative
links. For example, there is no evidence that Gomez was under the influence of
narcotics when he was arrested or that he made any furtive gestures or incriminating
statements at that time. There is also no evidence that Gomez attempted to flee. The
number of links, however, is not dispositive and the “absence of various affirmative
links does not constitute evidence of innocence to be weighed against the affirmative
links present.” Jones v. State, 466 S.W.3d 252, 260 (Tex. App.—Houston [1st Dist.]
2015, pet. ref’d) (quoting James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston
[1st Dist.] 2008, pet. ref’d)).
18 The logical force of the direct and circumstantial evidence present in this case,
coupled with reasonable inferences from such evidence, is sufficient to establish,
beyond a reasonable doubt, that Gomez exercised actual care, custody, control, or
management of the heroin and methamphetamine found in the apartment. See Evans,
202 S.W.3d at 166.
Viewing all the evidence in the light most favorable to the verdict, we
conclude that a rational fact finder could have found beyond a reasonable doubt that
Gomez knowingly possessed the methamphetamine and heroin found in the
apartment. See Gear, 340 S.W.3d at 746.
We overrule Gomez’s sole issue.
Conclusion
We affirm the trial court’s judgment.
Russell Lloyd Justice
Panel consists of Justices Lloyd, Kelly, and Hightower.
Do Not Publish. TEX. R. APP. P. 47.2(b).