COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-16-00288-CR
THOMAS WAYNE LESTER APPELLANT
V.
THE STATE OF TEXAS STATE
—————
FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1366479D
MEMORANDUM OPINION 1
I. INTRODUCTION
A jury convicted Appellant Thomas Wayne Lester of possessing 4 or more
but less than 200 grams of the controlled substance methamphetamine, and
upon finding the habitual-offender allegation true, the trial court sentenced him to
thirty-five years’ confinement. See Tex. Health & Safety Code Ann. § 481.102(6)
1 See Tex. R. App. P. 47.4. (West Supp. 2017), § 481.115(a), (d) (West 2017); Tex. Penal Code Ann.
§ 12.42(d) (West Supp. 2017). Appellant brings two issues on appeal. First, he
contends that the evidence is insufficient to support his conviction. Second, he
contends that the trial court abused its discretion during the punishment phase by
admitting State’s Exhibit No. 12, a penitentiary packet (pen packet), over his
objection. Because (1) the evidence viewed in the light most favorable to the
verdict amply supports a rational juror’s finding that Appellant knowingly
possessed the methamphetamine in question beyond a reasonable doubt and
(2) the trial court was well within its discretion to admit State’s Exhibit No. 12 into
evidence during the punishment phase, we overrule both of Appellant’s issues
and affirm the trial court’s judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
At around 1:30 a.m. on April 12, 2014, Appellant and a passenger were
riding a motorcycle when Arlington Police Officer Dalton Rosenbaum pulled them
over. Officer Rosenbaum ordered Appellant and his passenger to sit on the curb,
where Appellant admitted that he was driving without a license. Appellant, who
said he was making payments to another person for the motorcycle, consented
to a search of it. The search revealed a digital scale, a cooking spoon, and
numerous empty baggies. Around 2:12 a.m., Appellant’s passenger was
released, and the officers searched Appellant before arresting him for driving with
a suspended license. During this search, the police discovered that Appellant
was wearing multiple layers of pants or shorts but only one T-shirt.
2 As Officer Rosenbaum led Appellant to the police cruiser, Sergeant James
Swoope, who was also on the scene, followed from behind. Along the path that
Appellant had just walked, Sergeant Swoope saw a baggie filled with a crystalline
substance he believed to be methamphetamine (the ground baggie). This
baggie was not on the ground before Appellant walked to the car. As Appellant
lifted his leg to climb into the police cruiser, Officer Rosenbaum saw a second
baggie containing a crystalline substance fall out of Appellant’s pants leg (the
pants baggie). The pants baggie also contained five other baggies of a
crystalline substance. At the time of the stop, Appellant was carrying $434.00 in
cash.
The police did not label any of the seven baggies containing the crystalline
substance, and the crystalline substance from only one of the seven baggies was
tested. Nichole Huddleston, chemist, forensic scientist, and technical team
leader for National Medical Services, testified that she labelled the seven baggies
A through G, weighed their contents, and tested the contents of baggie A.
Baggie A contained 6.76 grams of methamphetamine. Officer Rosenbaum
testified that the ground baggie was “either the one labeled A or B” and “was the
one with the larger quantity inside of it.” Based on the record, it is
undeterminable whether baggie A was the ground baggie, the pants baggie, or
one of the five baggies found in the pants baggie. The total weight of the
apparent methamphetamine found in all seven baggies was 17.78 grams.
3 III. SUFFICIENCY OF THE EVIDENCE
Under these facts, “a person commits an offense if the person knowingly or
intentionally possesses” methamphetamine in the charged amount. See Tex.
Health & Safety Code Ann. §§ 481.102(6), 481.115(a), (d). To possess means to
have “actual care, custody, control, or management” of the drugs. Id.
§ 481.002(38) (West 2017). “A person acts knowingly, or with knowledge, with
respect to the nature of his conduct or to circumstances surrounding his conduct
when he is aware of the nature of his conduct or that the circumstances exist.”
Tex. Penal Code Ann. § 6.03(b) (West 2011).
In his first issue, Appellant contends that whether the tested baggie,
Baggie A, was the ground baggie, the pants baggie, or one of the baggies inside
the pants baggie, the evidence is insufficient to support his conviction.
Specifically, he argues that (1) the evidence is insufficient to prove that he
exercised care, custody, control, or management over the ground baggie; (2) the
evidence is insufficient to show that he knew he physically possessed the pants
baggie or the baggies it contained; and (3) the evidence is insufficient to show
that he knew the substance he possessed was methamphetamine.
A. We Review the Evidence in the Light Most Favorable to the Verdict.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
4 307, 319, 99 S. Ct. 2781, 2789 (1979); Jenkins v. State, 493 S.W.3d 583,
599 (Tex. Crim. App. 2016). This standard gives full play to the responsibility of
the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Jenkins, 493 S.W.3d at 599.
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Blea v. State,
483 S.W.3d 29, 33 (Tex. Crim. App. 2016). Thus, when performing an
evidentiary sufficiency review, we may not re-evaluate the weight and credibility
of the evidence and substitute our judgment for that of the factfinder. See
Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we
determine whether the necessary inferences are reasonable based upon the
cumulative force of the evidence when viewed in the light most favorable to the
verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied,
136 S. Ct. 198 (2015). We must presume that the factfinder resolved any
conflicting inferences in favor of the verdict and defer to that resolution. Id. at
448–49; see Blea, 483 S.W.3d at 33.
The standard of review is the same for direct and circumstantial evidence
cases; circumstantial evidence is as probative as direct evidence in establishing
guilt. Jenkins, 493 S.W.3d at 599.
In determining the sufficiency of the evidence to show a defendant’s intent,
and faced with a record that supports conflicting inferences, we “must presume—
5 even if it does not affirmatively appear in the record—that the trier of fact
resolved any such conflict in favor of the prosecution, and must defer to that
resolution.” Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
B. The Evidence Sufficiently Supports a Jury Finding that Appellant Exclusively Possessed the Pants Baggie and the Baggies It Contained.
Because the pants baggie and five other baggies of the crystalline
substance dropped out of clothing Appellant was wearing while Officer
Rosenbaum watched, the evidence is sufficient to support the finding that
Appellant exercised exclusive control, management, or care of those six baggies.
See Yates v. State, No. 02-14-00516-CR, 2015 WL 4154168, at *2 (Tex. App.—
Fort Worth July 9, 2015, no pet.) (mem. op., not designated for publication); cf.
Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) (explaining that
more analysis is required in evidentiary sufficiency review when the “accused is
not in exclusive possession of the place where the [controlled] substance is
found”) (emphasis added).
C. A Defendant Can Be Guilty of Intentionally or Knowingly Possessing Illegal Drugs Without Having Exclusive, Physical Possession.
That Appellant was not in exclusive possession of the ground baggie when
the police discovered it does not preclude his conviction for possession of
methamphetamine.
1. Sufficient Links Can Support an Inference of Possession.
When proving a defendant’s connection to illegal drugs not in his exclusive
6 possession, the State must rely on additional independent facts and
circumstances to link the defendant to the drugs. Poindexter, 153 S.W.3d at 406;
see also Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995). The
State need only establish “affirmative links between the defendant and the drugs
such that he, too, knew of the drugs and constructively possessed them.”
Poindexter, 153 S.W.3d at 412. These “links” are designed to protect innocent
people from conviction just because they accidentally stumbled upon someone
else’s drugs. Id. at 406.
In Evans v. State, the Texas Court of Criminal Appeals provided a non-
exclusive list of factors that tend to establish a link between a defendant and a
given quantity of illegal drugs. 202 S.W.3d 158, 162 n.12 (Tex. Crim. App.
2006). This list includes:
(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;
7 (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. It is pertinent to note, however, that “[t]hese are simply some factors which
may circumstantially establish the legal sufficiency of the evidence to prove a
knowing ‘possession.’ They are not a litmus test.” Id.
Importantly, we only “consider links (well) supported by the record.”
Dominguez v. State, 474 S.W.3d 688, 695 (Tex. App.—Eastland 2013, no pet.)
(citing Satchell v. State, 321 S.W.3d 127, 134 (Tex. App.—Houston [1st Dist.]
2010, pet. ref’d) (“The absence of various links does not constitute evidence of
innocence to be weighed against the links present.”)). The number of factors
present is not as significant as the “logical force” each factor bears in linking the
accused to the drugs. See Evans, 202 S.W.3d at 162 n.12, 166; Hurtado v.
State, 881 S.W.2d 738, 743 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).
2. In Scenarios Analogous to the Facts Presented Here, Courts Have Held Evidence Sufficient to Support Possession.
Texas caselaw has thoroughly addressed instances where drugs appear
after a defendant passes through or occupies an area. For instance, analogous
to the facts at hand are cases in which an officer finds drugs in the back of a
previously-searched police car. See, e.g., Williams v. State, 784 S.W.2d 428,
8 429–30 (Tex. Crim. App. 1990) (holding evidence was sufficient to support
finding that defendant possessed cocaine found in the back of a patrol car after
his arrest, considering that officers checked the back of the car before their shift,
defendant was the first occupant of the back seat during the shift, and he was
fidgeting while being transported to the police station); Gullatt v. State,
368 S.W.3d 559, 564 (Tex. App.—Waco 2011, pet. ref’d) (“The jury heard the
evidence and could rationally have concluded [defendant] placed the
methamphetamine in the back of Officer Chamblee’s patrol car.”).
It is easy enough to see how such precedent could apply outside of
instances involving police cruisers, and other courts have held as much. See,
e.g., Hall v. State, No. 13-11-00102-CR, 2012 WL 1573019, at *5 (Tex. App.—
Corpus Christi May 3, 2012, pet. ref’d) (mem. op., not designated for publication)
(holding that an inference that defendant dropped cocaine was supported by
evidence showing that (1) nothing was on the ground when defendant exited his
pickup, (2) after he was placed in a police car, a bag was found where he had
been standing, and (3) he initially resisted being moved away from that location);
Raleigh v. State, 740 S.W.2d 25, 27–28 (Tex. App.—Houston [14th Dist.] 1987,
no pet.) (holding defendant was sufficiently linked to heroin when an officer saw
him throw something, the officer later recovered heroin from the area where the
object was thrown, the area contained no other objects, and no other person
walked by who could have placed the heroin in the area); see also, e.g., Hughes
v. State, 64 N.E.3d 1268, 2016 WL 5934200, at *2 (Ind. Ct. App. Oct. 12, 2016)
9 (mem. decision, not designated for publication) (holding defendant was
sufficiently linked to cocaine when a chair was determined to be drug-free before
the defendant’s personal items were placed in it and cocaine was found in the
chair after said items were removed), transfer denied, 76 N.E.3d 142 (Ind. 2017);
State v. Kirts, 43,905-KA (La. App. 2 Cir. 2/25/09); 2009 WL 456409, at *3 (not
designated for publication) (holding cocaine was sufficiently linked to defendant
when an officer and defendant fought and cocaine was found within two feet of
the defendant where there had been none previously), writ denied, 2009-KO-
1111 (La. 1/22/10); 25 So. 3d 130.
D. The Evidence Sufficiently Supports a Jury Finding that Appellant Possessed the Ground Baggie.
Appellant presents several arguments as to why he cannot be connected
to the ground baggie beyond a reasonable doubt. First, he argues that there is
no way to establish beyond a reasonable doubt that the ground baggie could be
connected to him because he did not actually possess it. The jury was entitled
(1) to believe the officers’ testimony that the area was clear of any baggies prior
to Appellant passing through and that no other people were present who may
have deposited the ground baggie and (2) to then infer that Appellant had
dropped it. See Blea, 483 S.W.3d at 33; Murray, 457 S.W.3d at 448–49;
Williams, 784 S.W.2d at 429–30. Second, Appellant argues that the ground
baggie must have blown in at the last second from some other location. Again,
the jury was entitled to believe the officers’ testimony. See Blea, 483 S.W.3d at
10 33; Murray, 457 S.W.3d at 448–49. Specifically, given the evidence, the jury was
entitled to believe that the area was well-lit and unoccupied by other persons and
that it was windy enough that the ground baggie would have blown away if it had
been on the path for any significant period before Appellant’s short walk from the
curb to the patrol car. As in Hall, the evidence here indicates that nothing was on
the ground between the curb and patrol car prior to Appellant walking through;
after Appellant reached the car, Sergeant Swoope found the ground baggie
where Appellant had walked. The jury was within its rights to affirmatively link
the ground baggie to Appellant and to infer that no intervening source possessed
it. See Blea, 483 S.W.3d at 33; Murray, 457 S.W.3d at 448–49; Hall,
2012 WL 1573019, at *5.
The factors discussed in Evans further tie Appellant to the ground baggie:
(1) the possession of other narcotics—the pants baggie and the baggies it
contained, all holding crystalline substances—which fell out of Appellant’s pants
in front of Officer Rosenbaum (factors 3, 5, and 12); (2) the matching empty
baggies found in the motorcycle Appellant drove (factors 10 and 11); (3) his
possession of a scale and cooking spoon by virtue of his being the driver of the
motorcycle as well as his “making payments” on it (factors 10 and 11); (4) the
large amount of cash he carried (factor 13); and (5) his wearing multiple layers of
pants or shorts with only a single T-shirt (factors 12 and 14). The jury
appropriately considered all these factors when it determined that Appellant was
11 affirmatively linked to the methamphetamine. See Evans, 202 S.W.3d at
162 n.12.
In sum, ample evidence supports the jury’s finding beyond a reasonable
doubt that Appellant exercised actual care, custody, control, or management over
the ground baggie.
E. The Evidence Also Sufficiently Supports the Jury Finding that Appellant Knowingly Possessed the Methamphetamine.
Beyond his arguments challenging the possession evidence, Appellant
also contends that even if Baggie A was one of the baggies that fell out of his
pants, there is no evidence that he knew he had physical possession of those
baggies, and regardless, there is no evidence that he knew the substance in any
of the seven baggies was methamphetamine. First, as for the baggies that fell
from his pants, Appellant’s mental state was a fact issue for the jury to determine;
Officer Rosenbaum’s seeing the baggies fall from Appellant’s pants, taken alone,
is enough evidence from which the jury could infer that Appellant knowingly
possessed them. See, e.g., Frazier v. State, 480 S.W.2d 375, 381 (Tex. Crim.
App. 1972) (holding evidence sufficient to support knowing possession when
contraband found in defendant’s coat pocket); Yates, 2015 WL 4154168, at *2.
Second, regarding all seven baggies, evidence linking a defendant to the
controlled substance is also proof of knowing possession. Brown, 911 S.W.2d at
747; Santiesteban-Pileta v. State, 421 S.W.3d 9, 12 (Tex. App.—Waco 2013,
pet. ref’d). Thus, all the evidence discussed above that sufficiently links
12 Appellant to the ground baggie for the possession element also sufficiently
proves the “knowing” element for all seven baggies. Third, numerous cases
have relied on the visibility of the substance in assessing its possessor’s
knowledge. See Yates, 2015 WL 4154168, at *3 (cataloging cases). Here,
crystalline rocks in all seven baggies are visible to the naked eye. For all these
reasons, we hold that the evidence sufficiently supports the jury finding that
Appellant knowingly possessed the methamphetamine.
F. The Evidence Is Sufficient to Support the Jury Verdict.
Having held that the evidence sufficiently supports both the “knowing”
element and the possession element, we hold that regardless of which of the
seven baggies was tested for methamphetamine, the evidence supports the jury
verdict beyond a reasonable doubt, and we overrule Appellant’s first issue.
IV. THE PEN PACKET
In his second issue, Appellant contends that the trial court abused its
discretion by admitting during the punishment phase State’s Exhibit No. 12, a
pen packet purportedly of one of Appellant’s prior convictions relied on in the
habitual-offender allegation.
A. We Review the Trial Court’s Admission of the Pen Packet During the Punishment Phase for an Abuse of Discretion.
We review a trial court’s decision to admit or exclude evidence under an
abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.
Crim. App. 1991) (op. on reh’g).
13 B. Prior Convictions Must Be Sufficiently Linked to a Defendant.
To prove that a defendant was convicted of an enhancement offense, the
State must (1) prove the existence of the conviction described in the
enhancement allegation and (2) link that conviction to the defendant. Davis v.
State, 268 S.W.3d 683, 715 (Tex. App.—Fort Worth 2008, pet. ref’d); see Beck v.
State, 719 S.W.2d 205, 209–10 (Tex. Crim. App. 1986). The State may prove a
defendant’s previous conviction by introducing certified copies of a judgment and
sentence (a pen packet). Beck, 719 S.W.2d at 209; Davis, 268 S.W.3d at 715.
However, the State must offer independent evidence linking the pen packet to
the defendant on trial. Beck, 719 S.W.2d at 210; Davis, 268 S.W.3d at 715. A
trial court abuses its discretion by admitting a pen packet absent evidence that
the person convicted of the offense charged in the pen packet is the accused.
Beck, 719 S.W.2d at 210; Davis, 268 S.W.3d at 715.
C. The Trial Court Did Not Abuse Its Discretion by Admitting the Pen Packet During the Punishment Phase.
State’s Exhibit No. 12 does not contain a set of fingerprints or a
photograph of the person convicted therein. Other indicia of a common identity
between that person and Appellant, however, do exist. The two men have:
• Identical first, middle, and last names;
• Identical birthdates; and
• Identical County Identification (CID) Numbers.
14 They are also of the same race and gender and listed the same city and state as
their residence.
Appellant contends that the trial court abused its discretion by admitting
the pen packet because no evidence proved identity; that is, no evidence proved
that Appellant was the same person as the Thomas Wayne Lester named in the
pen packet. Our precedent clearly supports the opposite contention.
First, the identical full names and dates of birth are specific enough to
support the conclusion that the pen packet refers to Appellant. See, e.g., Ajak v.
State, No. 07-14-00018-CR, 2014 WL 3002811, at *2 (Tex. App.—Amarillo July
1, 2014, no pet.) (mem. op., not designated for publication) (concluding that a
pen packet fingerprint card was sufficiently linked to the defendant when the
fingerprint card had the “same rather unique name, Mabil Ajak[,]” and the same
date of birth, as the defendant), abrogated on other grounds by Ex parte Pue,
No. WR-85,447-01, 2018 WL 1109471, at *2, *4 & n.21 (Tex. Crim. App. Feb. 28,
2018). Second, our precedent is replete with cases holding that matching CID
numbers strongly support linking defendants with associated prior convictions.
See Davis v. State, No. 02-16-00102-CR, 2017 WL 370953, at *1 (Tex. App.—
Fort Worth Jan. 26, 2017, no pet.) (mem. op., not designated for publication);
Ramirez v. State, No. 02-13-00540-CR, 2015 WL 4652771, at *8 (Tex. App.—
Fort Worth Aug. 6, 2015, pet. ref’d) (mem. op., not designated for publication)
(holding that defendant’s identity in prior convictions was shown through
evidence of a common CID number in other documents with matching
15 fingerprints); Sullens v. State, No. 02-13-00364-CR, 2015 WL 3523143, at
*3 (Tex. App.—Fort Worth June 4, 2015, pet. ref’d) (mem. op., not designated for
publication) (holding where name, date of birth, and CID number appear in non-
challenged exhibits of prior convictions, their repetition in challenged exhibits of
prior convictions satisfies the State’s duty to link a defendant to a challenged
prior conviction); Jones v. State, No. 02-11-00060-CR, 2012 WL 3735890, at
*2 (Tex. App.—Fort Worth Aug. 30, 2012, pet. ref’d) (mem. op., not designated
for publication) (holding that evidence was sufficient to establish defendant’s
identity in challenged exhibit of prior conviction where it and unchallenged exhibit
shared identical CID number and date of birth); Norris v. State, No. 02-10-00468-
CR, 2012 WL 2135594, at *3 (Tex. App.—Fort Worth June 14, 2012, pet. ref’d)
(mem. op., not designated for publication) (holding that evidence of identical CID
number, date of birth, and full name was sufficient to link defendant to prior
convictions). Third, another admitted pen packet, State’s Exhibit No. 10,
unchallenged by Appellant at trial or on appeal, connects the challenged pen
packet—State’s Exhibit No. 12—to Appellant. A witness at trial in the case
before us matched the fingerprints in State’s Exhibit No. 10 to Appellant.
Significantly, in State’s Exhibit No. 10, the offense at issue in the challenged
State’s Exhibit No. 12—burglary of a building in trial court cause number
0270357W—was likewise the subject of a habitual allegation. Appellant pled true
to that habitual offender allegation in the trial proceedings for the offense
depicted in the State’s Exhibit No. 10 pen packet. This is therefore additional
16 evidence indirectly linking State’s Exhibit No. 12 to Appellant. See Alberty v.
State, 528 S.W.3d 702, 707 (Tex. App.—Texarkana 2017, no pet.) (noting that
unobjected-to documents in one exhibit tied the defendant to the challenged prior
judgment of conviction).
For all the above reasons, we hold that the trial court did not abuse its
discretion by admitting State’s Exhibit No. 12 and considering it in determining
Appellant’s sentence. Consequently, we overrule Appellant’s second issue.
V. CONCLUSION
Having overruled both of Appellant’s issues, we affirm the trial court’s
judgment.
/s/ Mark T. Pittman MARK T. PITTMAN JUSTICE
PANEL: WALKER, PITTMAN, and BIRDWELL, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: August 9, 2018