AFFIRMED; Opinion Filed April 2, 2015.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00378-CR
RONNIE DEAN DAVIS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 5 Dallas County, Texas Trial Court Cause No. F-1358028-L
MEMORANDUM OPINION Before Justices Lang, Stoddart, and Schenck Opinion by Justice Stoddart A jury convicted Ronnie Dean Davis of possession with the intent to deliver
methamphetamine. In four issues, Davis argues the evidence is insufficient to support his
conviction, his sentence is void, the trial court erred by instructing the jury on the law of parties,
and the trial court erred by failing to instruct the jury it must resolve any reasonable doubt in
favor of a lesser-included offense. We affirm the trial court’s judgment.
FACTUAL BACKGROUND
The Dallas Police Department received a citizen’s complaint about a house located at
6045 Wofford Drive in Dallas. They decided to perform a “knock-and-talk,” which is a
consensual encounter between the police and residents of a house during which the officers seek
consent to search the home. On July 16, 2013, when the officers executed the knock-and-talk, a
woman peeked through one of the glass windows in the door. They knocked again, announced “Dallas Police Department,” and a woman answered the door. Officer Joshua Romero testified
the woman, later identified as Monica Day, “seemed real hesitant. She didn’t want to open the
door. Then finally opened it.” Romero introduced himself and explained the citizen’s complaint
about the house. Day said she lived at the house but was not the homeowner. After the police
asked to speak to the homeowner, Day walked away from the door while the officers waited
outside. Ronnie Davis then came to the door. Romero explained the police received a complaint
about drugs at the house and asked for consent to enter and search the home. Davis denied
consent.
While Romero was at the front of the house, two officers were positioned at the back. A
woman, later identified as Laci Martinez, attempted to leave from the back of the house, and the
officers detained her. She told the officers there were drugs in the house. Based on this
information, Romero obtained a search warrant.
Romero entered the house and found “glass pipes that were used to smoke drugs. Along
with bongs. Homemade pipes that were on the kitchen table and the coffee table.” In one
bedroom, the officers found two bottles of testosterone and a baggie with methamphetamine
residue. In Day’s bedroom they found a mixing bowl with methamphetamine residue.
In a third bedroom, the officers found mail addressed to Davis at the Wofford Drive
address, a wooden sign on the wall that said “Ronnie,” and male clothing and shoes (the
Bedroom). The Bedroom had a very large, carved headboard with a Harley-Davidson motif.
Romero testified that inside the Bedroom, the officers found handcuffs, syringes, packaging
materials for narcotics, scales, a BB gun under the mattress, and a shot of methamphetamine.
In the closet, a large cardboard box “was full of packaging materials. Clear plastic baggie [sic]
with [sic] bunch of smaller Ziplock baggies in multiple colors.” He explained plastic baggies are
used for packaging drugs, and a large quantity of baggies indicates a person is selling drugs.
–2– Further, he noted the baggies were different colors, which dealers use to differentiate the type
and quantity of drugs being sold. Likewise, scales like the ones found in the Bedroom are used
to measure drugs being put into the baggies. The officers also found methamphetamine residue
near a torn plastic baggie in the Bedroom. A shard of methamphetamine was on the Harley-
Davidson headboard; a laboratory tested the shard and determined the total weight was 2.75
grams, including adulterants and dilutants.
From the items collected in the house, Romero concluded the residents were using and
distributing drugs. However, Romero testified the officers did not find any narcotics on Davis’s
person.
Laci Martinez testified she was present when the officers arrived on July 16, 2013,
because she spent the preceding night at the house. When she saw the police at the door, she
went to awaken Davis who was asleep in the Bedroom. When asked which bedroom belonged to
Davis, she stated “There is a nice Harley-Davidson headboard, I guess that he made.”
The State entered photos into evidence of Davis’s tattoos and the door to the Bedroom.
Davis’s tattoos include multiple images of skulls. Likewise, the Bedroom door was painted and
included skull images; no other door in the house was painted. Pictures of the Bedroom show a
skeleton head on top of a metal box.
The State played portions of a few telephone calls made by Davis during his incarceration
prior to trial. In one call, he stated: “I’m telling the truth; that room aint [sic] mine.” In another
call, Davis had the following conversation with a woman:
Davis: Take me a picture of that door too. I want a picture of that door. Woman: Of what door? Davis: My door. In my room. Woman: You want me to print those out so you know what it looks like? Davis: No, the door. I’m talking about . . . the side that’s painted.
–3– The defense presented testimony from a woman who stated she lived in the house at the
time of Davis’s arrest. She said the house belonged to Davis’s cousin and the room with the
Harley-Davidson headboard was the cousin’s room; she testified Davis slept in a different room.
Davis’s ex-wife testified she would take their daughter to the house to visit Davis. Davis did not
have a Harley-Davidson headboard in his room; the room with the Harley-Davidson headboard
belonged to his roommate.
LAW & ANALYSIS
1. Sufficiency of the Evidence
In his first issue, Davis challenges the sufficiency of the evidence showing he was either
the primary actor or a party to the offense. Davis concedes he was present when the drugs were
found and the drugs were in plain view, but argues the room where the methamphetamine was
found was not his room, and there is no evidence linking the drugs to him.
We review a challenge to the sufficiency of the evidence of a criminal offense for which
the State has the burden of proof under the single sufficiency standard set forth in Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). Matlock v. State, 392 S.W.3d 662, 667 (Tex.
Crim. App. 2013). We examine all the evidence in the light most favorable to the verdict and
determine whether a rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. Id. We defer to the jury’s credibility and weight determinations
because the jury is the sole judge of the witnesses’ credibility and the weight to be given to their
testimony. Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013). The jury can choose
to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805
S.W.2d 459, 461 (Tex. Crim. App. 1991). 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.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Evidence is
–4– sufficient if “the inferences necessary to establish guilt are reasonable based upon the cumulative
force of all the evidence when considered in the light most favorable to the verdict.” Wise v.
State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).
To prove unlawful possession of a controlled substance with intent to deliver, the State
was required to establish beyond a reasonable doubt that Davis (1) exercised care, custody,
control, or management over a controlled substance, (2) intended to deliver the controlled
substance to another, and (3) knew the matter possessed was a controlled substance. TEX.
HEALTH & SAFETY CODE ANN. §§ 48.102(6), 481.112(a). Whether direct or circumstantial, the
evidence must establish that the accused’s connection with the controlled substance was more
than fortuitous. Blackman v. State, 350 S.W.3d 588, 594–95 (Tex. Crim. App. 2011); Poindexter
v. State, 153 S.W.3d 402, 405–06 (Tex. Crim. App. 2005). Mere presence at a location where
drugs are found is insufficient, by itself, to establish possession. Evans v. State, 202 S.W.3d 158,
162 (Tex. Crim. App. 2006). Further, 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; see also
Blackman, 350 S.W.3d at 594–95.
A nonexclusive list of factors that can be sufficient, either alone or in combination, to
establish possession of contraband include: (1) presence when a search is conducted, (2) whether
the contraband was in plain view, (3) proximity to and the accessibility of the contraband, (4) the
accused being under the influence of narcotics when arrested, (5) possession of other contraband
or narcotics when arrested, (6) incriminating statements made by the accused when arrested, (7)
an attempt to flee, (8) furtive gestures, (9) an odor of contraband, (10) the presence of other
contraband or drug paraphernalia, (11) whether the accused owned or had the right to possess the
–5– place where the drugs were found, (12) whether the place where the drugs were found was
enclosed, (13) possession of a large amount of cash, (14) conduct of the accused indicating a
consciousness of guilt, (15) the quantity of the contraband, and (16) the accused’s presence in a
suspicious area under suspicious circumstances. Evans, 202 S.W.3d at 162 n.12; Wright v. State,
401 S.W.3d 813, 818–19 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d); Lassaint v. 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 sufficiency of the evidence to prove knowing
possession. Evans, 202 S.W.3d at 162 n.12. However, no set formula of facts exists to dictate a
finding of links sufficient to support an inference of knowing possession. Taylor v. State, 106
S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.). The number of linking factors present is
not as important as the logical force they create to prove the crime was committed. Evans, 202
S.W.3d at 162; Taylor, 106 S.W.3d at 831.
The undisputed evidence shows the police found a shard of crystal methamphetamine on
the Harley-Davidson headboard. Romero testified when he initially knocked on the door and
asked Day to speak to the homeowner, Day left the door and Davis came to talk to the officers.
Davis presented himself to the officers and indicated he had the authority to deny their request to
search the house. The evidence shows the officers found mail addressed to Davis, a wooden sign
with Davis’s first name on it, and male clothing and shoes in the Bedroom. Martinez testified
she awakened Davis when the officers arrived and Davis was sleeping in the Bedroom. And
when asked which bedroom belonged to Davis, Martinez identified his room by the Harley-
Davidson headboard. Further Davis referred to the painted bedroom door as his door, and the
evidence showed Davis’s tattoos had images similar to those painted on the door to the Bedroom
and the decorative skull in the room.
–6– Although the defense presented testimony that the Bedroom belonged to Davis’s cousin
or roommate and Davis stated on the phone “that room aint [sic] mine,” we must defer to the jury
because the jury is the sole judge of the witnesses’ credibility and the weight to be given to their
testimony. See Winfrey, 393 S.W.3d at 768. The jury had the ability to believe all, some, or
none of the testimony offered to show the Bedroom did not belong to Davis. See Chambers, 805
S.W.2d at 461.
Viewing the evidence in the light most favorable to the verdict, we conclude a rational
trier of fact could have concluded from the State’s evidence that the bedroom with the Harley-
Davidson headboard belonged to Davis because it had a “Ronnie” plaque on the wall, had mail
addressed to Davis, had male clothing, had images on the door and a skull decoration that were
similar to Davis’s tattoos, and there was testimony the Bedroom belonged to Davis. Further,
Davis presented himself as having authority over affairs of the home. Therefore, the jury could
have found beyond a reasonable doubt that Davis possessed the drugs and contraband found in
the Bedroom and throughout the house. We conclude the evidence is sufficient to support the
conviction. See Jackson, 443 U.S. at 319. We overrule Davis’s first issue.
2. Jury Instruction
Davis makes two complaints about the jury charge: (1) the trial court erred by instructing
the jury about the law of parties and (2) the trial court erred by failing to instruct the jury about
resolving doubt in favor of the lesser-included offense. Our first duty when analyzing a jury-
charge issue is to decide whether error exists. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim.
App. 2012). If error exists, we then determine whether the error caused sufficient harm to
warrant reversal. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005). When the
error was not objected to, the error must be “fundamental” and requires reversal “only if it was
so egregious and created such harm that the defendant ‘has not had a fair and impartial trial.’”
–7– Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (quoting Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)). Egregious harm exists when the record
shows that a defendant has suffered actual, rather than merely theoretical, harm from jury-charge
error. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013); Almanza, 686 S.W.2d at 174.
Egregious harm consists of error affecting the very basis of the case, depriving the defendant of a
valuable right, or vitally affecting a defensive theory. Nava, 415 S.W.3d at 298 (citing Cosio v.
State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011)). We assess harm in light of “the entire jury
charge, the state of the evidence (including the contested issues and the weight of probative
evidence), the arguments of counsel, and any other relevant information revealed by the record
of the trial as a whole.” Nava, 415 S.W.3d at 298.
a. Law of Parties
In the jury charge, the trial court included a law of parties instruction stating the jury
could find Davis guilty of the charged offense if it found that “Davis, acting alone or as a party,”
committed the offense. Davis timely objected and the trial court overruled the objection. In his
third issue, Davis argues the trial court erred by instructing the jury on the law of parties because
there was no evidence Davis was a party to any of the acts of any of the people who were at his
house on the day of the events.
Addressing the same issue Davis raises, the court of criminal appeals stated: “Even where
proper objection is made at trial, we have held that where, as in the instant case, the evidence
clearly supports a defendant’s guilt as the primary actor, error in charging on the law of parties
was harmless.” Cathey v. State, 992 S.W.2d 460, 466 (Tex. Crim. App. 1999) (en banc) (citing
Black v. State, 723 S.W.2d 674, 675 & 676 n.2 (Tex. Crim. App. 1986) and Govan v. State, 682
S.W.2d 567, 570–571 (Tex. Crim. App. 1985)); see also Montes v. State, 724 S.W.2d 54, 56-57
(Tex. Crim. App. 1987) (en banc). The evidence established Davis’s guilt as the primary actor.
–8– Even if we were to assume the trial court erred by submitting the parties charge, Davis failed to
show harm. See Cathey, 992 S.W.2d at 466. We overrule Davis’s third issue.
b. Reasonable Doubt
In his fourth issue, Davis asserts the trial court erred by failing to sua sponte instruct the
jury that if it had reasonable doubt about whether Davis was guilty of the charged offense or the
lesser-included offense, the jury must resolve that doubt in favor of the lesser-included offense.
Davis concedes he did not request this instruction or object to its omission from the jury charge;
however, he argues, the trial court had a duty to raise the issue sua sponte.
The jury charge states:
Now, if you find from the evidence beyond a reasonable doubt that on or about July 16, 2013, in Dallas County, Texas, the Defendant, Ronnie Dean Davis, acting alone or as a party, as herein defined did unlawfully and knowingly possess with intent to deliver, a controlled substance, to-wit: methamphetamine, in an amount by aggregate weight, including any adulterants or dilutants, of 1 gram or more but less than 4 grams, then you will find the Defendant guilty of the offense of Possession with Intent to Deliver a Controlled Substance, and so say by your verdict of “guilty.” If you do not so believe or you have a reasonable doubt thereof, or if you are unable to agree, you will next consider whether the defendant is guilty of the lesser included offense of possession of a controlled substance, to-wit: methamphetamine, in an amount by aggregate weight, including any adulterants or dilutants, of 1 gram or more but less than 4 grams. Therefore, if you find from the evidence beyond a reasonable doubt that on or about July 16, 2013, in Dallas County, Texas, the Defendant, Ronnie Dean Davis, acting alone or as a party, as herein defined did unlawfully and knowingly possess a controlled substance, to-wit: methamphetamine, in an amount by aggregate weight, including any adulterants or dilutants, of 1 gram or more but less than 4 grams, then you will find the Defendant guilty of the offense of Possession of a Controlled Substance as included in the indictment. If you do not so believe, or if you have a reasonable doubt thereof, you will acquit the Defendant, and so say by your verdict of “not guilty.”
As a general rule, where greater and lesser grades or degrees of an offense are charged,
the court must give the jury a “benefit of the doubt” instruction if requested by the defendant.
See Kihega v. State, 392 S.W.3d 828, 835 (Tex. App.—Texarkana 2013, no pet.); Benavides v.
–9– State, 763 S.W.2d 587, 589 (Tex. App.—Corpus Christi 1988, pet. ref’d); Villarreal v. State, No.
05-13-00629-CR, 2014 WL 3056509, at *10 (Tex. App.—Dallas July 7, 2014)(not designated
for publication). The instruction is given to assist the jury if it has no reasonable doubt about the
defendant’s guilt, but is uncertain about the grade or degree of the offense. Benavides, 763
S.W.2d at 589 (citing Richardson v. State, 108 Tex. Crim. 318, 328, 239 S.W. 218, 224 (1922)
(op. on reh’g)); Villarreal, 2014 WL 3056509, at *10. Failure to include a “benefit of the doubt”
instruction is not harmful to the defendant, however, if the charge as a whole leaves no
uncertainty as to how to resolve any doubt. Shelby v. State, 724 S.W.2d 138 (Tex. App.—Dallas
1987) (op. on reh’g), vacated on other grounds, 761 S.W.2d 5 (Tex. Crim. App. 1988) (per
curiam); Benavides, 763 S.W.2d at 589; Villarreal, 2014 WL 3056509, at *10.
In Shelby and Villarreal, this Court considered jury charges that included paragraphs very
similar to the paragraphs quoted above. Shelby, 724 S.W.2d at 139-40; Villarreal, 2014 WL
3056509, at *10-11. This Court concluded in both cases that the jury instructions left no
uncertainty about how to resolve any doubt regarding which verdict to return if the jury believed
the defendants in those cases were guilty but had reasonable doubt as to whether they were guilty
of the greater offenses. Shelby, 724 S.W.2d at 139-40; Villarreal, 2014 WL 3056509, at *11.
In this case, the charge instructs the jury to find Davis guilty of the greater offense if it
finds the evidence shows beyond a reasonable doubt that he committed the offense of possession
with intent to deliver methamphetamine in the designated quantity. The charge further instructs
the jury that if it does not so believe or has reasonable doubt as to the greater offense, it is to find
Davis guilty of the lesser-included offense of possession of methamphetamine. As in Shelby and
Villarreal, the jury charge left no uncertainty about how the jury was to resolve any doubt about
what verdict to return if the jury believed Davis was guilty, but had doubt as to whether he was
guilty of possession with intent to deliver a controlled substance. See Shelby, 724 S.W.2d at
–10– 139-40; Villarreal, 2014 WL 3056509, at *11. No further “benefit of the doubt” instruction was
necessary. See Shelby, 724 S.W.2d at 140. We conclude any error in not charging the jury on
the benefit of the doubt was harmless. See id. We overrule Davis’s fourth issue.
3. Indictment
Davis complains the State failed to properly amend the indictment and, as a result, his
sentence is void. The State alleged two enhancement paragraphs in the indictment:
And it is further presented to said Court that prior to the commission of the offense or offenses set out above, the defendant was finally convicted of the felony offense of POSSESSION OF A CONTROLLED SUBSTANCE/2ND, in the 265TH JUDICIAL DISTRICT COURT of DALLAS County, Texas, in Cause Number F92-43783, on the 23RD day of OCTOBER, 1992,
And that prior to the commission of the offense or offenses for which the defendant was convicted as set out above, the defendant was finally convicted of the felony offense of BURGLARY OF A BUILDING, in the CRIMINAL DISTRICT COURT NO.5 of DALLAS County, Texas, in Cause Number F90- 49507, on the 20TH day of MAY, 1991[.]
Prior to trial, the State filed a motion to amend the enhancement paragraphs as follows:
in line(s) 2 of the first enhancement paragraph regarding #F92-43783, the offense should be listed as Delivery of a Controlled Substance/2d, and in line(s) 4 of the second enhancement paragraph regarding #F90-49507, the conviction date should be listed as May 2, 1991[.]
The trial court granted the motion, stating: “I’m going to go ahead, grant it now, [defense
counsel], so any notice issue, that cures that.”
At another pre-trial hearing, a different judge 1 told the lawyers he had a motion to amend
the enhancement paragraphs, and he noted the amendments the State previously requested and
the initial trial judge previously approved. Unaware the State’s motion to amend had been
granted, the judge asked the parties whether there was any objection to the modification.
1 The record reflects a visiting judge took over the case after the judge originally assigned to Davis’s case granted the State’s motion. The visiting judge presided over the trial.
–11– Counsel for Davis stated: “No, Your Honor. Judge McDowell had granted the motion last
week.” The judge stated his file did not show the motion had been granted and he wanted to
make sure Davis’s counsel did not have “an issue on that.” Defense counsel replied: “No issue.”
At the punishment phase of the trial, the State read aloud the enhancements as amended,
and Davis pleaded true. After the trial court admonished Davis that by pleading true to the
enhancements the punishment range would be increased, the State offered a “Stipulation of
Evidence” in which Davis stipulated he had been convicted of the two offenses alleged in the
indictment, as amended.
Although Davis complains the indictment was never amended, the allegations in the
enhancement paragraphs were not proved, and his sentence is void, Davis failed to preserve this
complaint for appeal. See TEX. R. APP. P. 33.1. Davis had at least two opportunities to object to
the amendments—or the State’s alleged failure to properly amend—and did not do so. Instead,
Davis’s counsel stated he did not object to the modification and had “no issue” with it. Further,
Davis pleaded true to the two enhancement paragraphs as amended—without objection—when
read aloud by the State. We conclude Davis failed to timely object to the State’s failure to file a
written amended indictment and he waived this argument. See TEX. R. APP. P. 33.1.
Even if Davis had not waived his argument, we would conclude the enhancement
paragraphs were not elements of the charged offense and the State was not required to amend the
indictment. Davis argues the State was required to amend the indictment and an indictment is
not amended when the trial court grants a motion to amend. Rather, he asserts, the indictment
must be physically altered or a new official indictment must be entered into the record. Davis
relies on article 28.10 of the code of criminal procedure to support his argument. Article 28.10
provides the guidelines for amending an indictment. See TEX. CODE CRIM. PROC. ANN. art.
28.10. However, article 28.10 does not apply to the amendment of enhancement allegations in
–12– the indictment. Thomas v. State, 286 S.W.3d 109, 114 (Tex. App.—Houston [14th Dist.] 2009,
no pet.) (citing Stautzenberger v. State, 232 S.W.3d 323, 327 (Tex. App.—Houston [14th Dist.]
2007, no pet.)); Choice v. State, No. 05-11-00629-CR, 2012 WL 3104676, at *3 (Tex. App.—
Dallas July 31, 2012, pet. ref’d) (not designated for publication).
While prior convictions used for enhancement purposes must be raised in some form,
they need not be pleaded in the indictment. Villescas v. State, 189 S.W.3d 290, 292–93 (Tex.
Crim. App. 2006); Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App. 1997). Enhancement
allegations that are not part of the State’s case-in-chief are not part of the “substance” of the
indictment. See Thomas, 286 S.W.3d at 114 (citing Stautzenberger, 232 S.W.3d at 327
(“enhancement allegations are mere surplusage”)); Choice, 2012 WL 3104676, at *3. The
purpose of an enhancement paragraph is to provide the accused with notice of the convictions to
be used for enhancement purposes. Brooks, 957 S.W.2d at 33. When the State moves to amend
the enhancement allegations and the trial court grants the motion, the requisite notice has been
provided. See id. at 34 (“prior convictions used as enhancements must be pled in some form, but
they need not be pled in the indictment . . . the requisite notice was conveyed by the State’s
motion and the trial court’s order.”).
Although the State was required to give Davis notice of its intent to enhance his
punishment, the State was not required to plead enhancement paragraphs in the indictment. The
State’s motion to amend the enhancement paragraphs, which was granted by the trial court,
provided notice to Davis of the prior convictions the State intended to use to enhance his
punishment. The State was not required to physically amend the indictment. We overrule
Davis’s second issue.
–13– CONCLUSION
We affirm the trial court’s judgment.
/ Craig Stoddart/ CRAIG STODDART JUSTICE
Do Not Publish TEX. R. APP. P. 47 140378F.U05
–14– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RONNIE DEAN DAVIS, Appellant On Appeal from the Criminal District Court No. 5, Dallas County, Texas No. 05-14-00378-CR V. Trial Court Cause No. F-1358028-L. Opinion delivered by Justice Stoddart. THE STATE OF TEXAS, Appellee Justices Lang and Schenck participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 2nd day of April, 2015.
–15–