Zachary Winslow Alley v. State

Affirmed and Memorandum Opinion filed February 19, 2008 Affirmed and Memorandum Opinion filed February 19, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-06-01026-CR ____________ ZACHARY WINSLOW ALLEY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 180th District Court Harris County, Texas Trial Court Cause No. 1033851 M E M O R A N D U M   O P I N I O N A jury convicted appellant, Zachary Winslow Alley, of possession with intent to deliver heroin and assessed punishment at twenty years= imprisonment and a $100 fine. In his sole issue, appellant challenges the factual sufficiency of the evidence. We affirm. Factual and Procedural Background On the night of July 13, 2005, appellant and Alberto Montemayor were playing video games in the living room of the house located at 12322 Flushing Meadows Drive. Three African-American men wearing masks kicked in the front door and, brandishing firearms, ordered appellant and Montemayor to lie down and keep quiet. When one of the gunmen shot a pit bull owned by Montemayor, appellant retreated toward the back door of the house. Once outside, appellant was shot once in the back, but managed to climb over the fence and escape to a neighbor=s house, where one of the occupants called 911. Montemayor was not injured during the shooting, but the gunmen stole five pounds of marijuana from the home.[1] Officers Patrick Boone and Richard Pi_a were the first to respond to the neighbor=s 911 call. Officer Pi_a testified that, while he was being treated by paramedics, appellant informed him Athat he was at his house with his roommate, and guys came in shooting, three black guys came in shooting and he ran out the back.@ He further testified that (1) appellant told him that he lived at the house at 12322 Flushing Meadows; (2) appellant gave him the telephone number of the home at the Flushing Meadows address as that of the residence where appellant lived; and (3) he noted this information in his offense report. After appellant was placed in an ambulance and transported to Ben Taub Hospital, Officers Boone and Pi_a reported to the house at 12322 Flushing Meadows. When no one answered their knocks at the front door, they began to search for another way into the home. Some moments later, Montemayor exited the front door of the house, visibly shaken and nervous, and related the details of the robbery and shooting to the officers. At this point, neither Officer Boone nor Officer Pi_a knew whether the gunmen were still in the house, or whether there were other shooting victims present at the scene. The officers entered the house to check for the presence of the gunmen or other victims. Upon entry, they immediately observed spent shell casings and blood on the floor, and bullet holes in the wall. Officer Pi_a continued to question Montemayor about the robbery, while Officer Boone secured the remainder of the house. On the top shelf of the closet in one of the bedrooms, Officer Boone found a brown paper bag, the contents of which were bundled in brown packing tape and smelled like vinegar, an odor characteristic of heroin.[2] Officer Boone signaled Pi_a that he may have found some contraband in the bedroom closet, and Pi_a placed Montemayor in handcuffs. The officers then called robbery and narcotics detectives to investigate further. Officer Roger Chappell of the robbery division and Officer Robert Bradley of the narcotics division responded to the crime scene. Officer Chappell interviewed Montemayor, who then signed a written consent to search the home. Officers Boone and Pi_a turned over the heroin to Officer Bradley, and Officer Chappell briefed him about the details of the robbery. Officer Bradley then interviewed Montemayor, who informed him that the gunmen had stolen five pounds of marijuana from the home, and that there was a plastic bag containing a small quantity of cocaine in the entertainment center in the living room. The amount of cocaine was less than one gram. Officer Bradley then searched the bedroom where the heroin was found to determine whose bedroom it was. On a television stand in that bedroom, he found (1) a wallet containing appellant=s driver=s license; (2) a credit card solicitation, dated March 7, 2005, addressed to appellant at the Flushing Meadows address; and (3) a Harris County Justice of the Peace ADefendant Information Form,@ dated September 7, 2004, listing appellant=s mother=s address as his home address, but the telephone number of the home at the Flushing Meadows address as his home telephone number. It also listed Macaroni Grill as his employer. On the same shelf in the closet where the heroin was found, Officer Bradley found a Macaroni Grill receipt, dated May 29, 2005, listing appellant as the waiter. He also found several articles of men=s clothing in the bedroom and specifically within the closet. Officer Chappell later interviewed appellant at Ben Taub Hospital. Officer Chappell testified that appellant informed him that Ahe and his roommate were watching TV and playing video games when two[3] black, male suspects wearing camouflage masks broke into the house. They kicked the front door in on the house, brandishing pistols. One of the dogs inside the house attacked one of the suspects. And the suspect shot the dog.@ He further testified that appellant informed him that he became fearful of his own life and started running toward the back door, that when he neared the door, he was shot in the back, and that he ran out the back door to the neighbor=s house and called the ambulance and the police. Officer Chappell also testified that appellant gave the Flushing Meadows address as his home address. Appellant was charged by indictment with the offense of possession of over 400 grams of heroin with the intent to deliver. He entered a plea of not guilty. The jury found appellant guilty as charged in the indictment, and assessed punishment at twenty years= confinement in the Texas Department of Criminal Justice, Institutional Division, and a $100 fine. This appeal followed. Analysis Standard of Review In his sole issue, appellant argues the evidence is factually insufficient to support his conviction.[4] We apply the usual standard of review. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003); Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Applicable Law A person commits the offense of possession with intent to deliver heroin if he knowingly or intentionally possesses heroin with the intent to deliver it. See Tex. Health & Safety Code __ 481.102(2), 481.112(a); Moreno, 195 S.W.3d at 325. The State must show that (1) appellant exercised, either singularly or jointly, actual care, custody, control, or management over the controlled substance; (2) knew that he possessed a controlled substance; and (3) had the intent to deliver the controlled substance. See Tex. Health & Safety Code __ 481.002(38), 481.112(a); see also Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985) (noting the well-settled rule that possession of narcotics need not be exclusive). Possession with intent to deliver heroin may be proven by direct or circumstantial evidence. See Moreno, 195 S.W.3d at 325 (citing McGoldrick, 682 S.W.2d at 578; Patterson v. State, 138 S.W.3d 643, 649 (Tex. App.CDallas 2004, no pet.); Mack, 859 S.W.2d at 528). When the contraband is not found on the accused=s person or when the accused is not in exclusive possession of the place where the contraband is found, additional facts and circumstances must link the accused to the contraband.[5] Poindexter, 153 S.W.3d at 406; McMillon v. State, 940 S.W.2d 767, 768B69 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d). The State must establish this link from the totality of the circumstances, demonstrating the accused=s knowledge of and control over the contraband. Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995). Texas courts have identified several factors that may help to establish a sufficient link between the accused and the contraband, though none is necessarily determinative: 1) whether there were other persons present at the time of the search and whether they were shown to be living on the premises so that appellant was not actually in exclusive possession of the contraband, Damron v. State, 570 S.W.2d 933, 936 (Tex. Crim. App. 1978); Langford v. State, 632 S.W.2d 650, 651 (Tex. App.CHouston [14th Dist.] 1982, no pet.); 2) whether the defendant owned or had the right to possess the place where the narcotics were found, Swarb v. State, 125 S.W.3d 672, 684 (Tex. App.CHouston [1st Dist.] 2003, pet. dism=d); 3) whether the contraband, if found in a bedroom closet, was in a closet that contained appellant=s personal belongings or men=s clothing if the appellant is male, Damron, 570 S.W.2d at 936; Langford, 632 S.W.2d at 651; 4) whether there is any other evidence establishing appellant=s occupancy of the premises, Williams v. State, 498 S.W.2d 340, 341 (Tex. Crim. App. 1973); and 5) whether the amount of contraband found was large enough to indicate that appellant knew of its presence, Ex parte Stowe, 744 S.W.2d 615, 617 (Tex. App.CHouston [1st Dist.] 1987, no pet.) (citing Pollan v. State, 612 S.W.2d 594, 596 (Tex. Crim. App. 1981)). When examining these links, it is not the number of factors present, but the logical force they have in establishing the elements of the offense. Moreno, 195 S.W.3d at 326 (citing Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d)). We now turn to appellant=s specific arguments. Application of Law to the Facts Appellant argues, quite simply, that the State did not prove that he possessed the heroin found at the Flushing Meadows address. He contends that the State failed to prove that he was anything more than an invitee at that address, regardless of the amount of time he was seen there. Appellant further suggests that Montemayor placed the heroin in the bedroom closet where it was eventually recovered by Officer Boone. In support of his factual sufficiency challenge, appellant points to his mother=s testimony that he resided with her from 2001 until the time of trial, and his own testimony that he was nothing more than a frequent overnight guest at the Flushing Meadows address. Appellant also points to several documents which, in his estimation, proved that he resided with his mother as of the night of the robbery and not at the Flushing Meadows address: (1) an unopened bank statement; (2) solicitations from Compass Bank and Capitol One; (3) a jury summons; and (4) a Nextel telephone bill. All of these documents were addressed to appellant at his mother=s address. Although this testimony and the addressing on the foregoing documents support appellant=s position, other evidence points to his guilt. Officers Pi_a and Chappell both testified that appellant informed them, individually, that he lived at the Flushing Meadows address, and Pi_a further testified that appellant gave him the telephone number of the Flushing Meadows address as that of the residence where he lived. In addition, both officers testified that appellant referred to Montemayor as his Aroommate@ during their respective interviews. Five of appellant=s and Montemayor=s friends[6] testified that appellant lived at the Flushing Meadows address. Richard Manross, the neighbor from whose house the 911 call was made the night of the robbery, also testified that he saw appellant at the Flushing Meadows address every other day for the eighteen-month period preceding the robbery, and that on this basis he believed that appellant lived there. Furthermore, there was testimony and other evidence establishing that appellant=s bedroom was the same room as that where the heroin was found. Two of appellant=s and Montemayor=s friends testified to that effect. In addition, appellant=s wallet, his ADefendant Information Form,@ and a credit card solicitation addressed to appellant were found in the bedroom where Officer Boone recovered the heroin. As noted above, the Defendant Information Form listed the telephone number of the Flushing Meadows address as appellant=s home telephone number, and the solicitation was addressed to appellant at the house on Flushing Meadows. And, on the same shelf in the closet where the heroin was found, Officer Bradley found appellant=s Macaroni Grill receipt. Several articles of men=s clothing were also found in that bedroom and within that same closet. This evidence established a sufficient link between appellant and the heroin. See Cooper v. State, 852 S.W.2d 678, 681 (Tex. App.CHouston [14th Dist.] 1993, pet. ref=d) (finding envelopes addressed to the accused in bedroom where cocaine was found and the accused=s wallet in an adjacent bedroom constituted sufficient links between the accused and the contraband); LaPorte v. State, 800 S.W.2d 270, 273 (Tex. App.CHouston [14th Dist.] 1990), aff=d, 840 S.W.2d 412 (Tex. Crim. App. 1992) (finding receipts listing the name of the accused and envelopes addressed to the accused in a desk drawer with methamphetamine constituted sufficient links between the accused and the contraband); see also Classe v. State, 840 S.W.2d 10, 12 (Tex. App.CHouston [1st Dist.] 1992, pet. ref=d) (finding that presence of men=s clothes in bedroom where cocaine seized constituted sufficient link between the accused, who was male, and the contraband); Stowe, 744 S.W.2d at 617 (finding that presence of men=s clothes and the accused=s personal belongings in the closet where methamphetamine was recovered constituted sufficient links between the accused, who was male, and the contraband). Finally, there was evidence that the amount of heroin recovered was a relatively large amount, and had a distinctive smell. According to Officer Bradley=s testimony, the amount of heroin found in the bedroom closetC507.8 gramsCwas equivalent to, at a minimum, over 500 personal uses. Officer Boone also testified that he detected Aa very distinct vinegar, almost a urine smell@ in that bedroom closet when he picked up the bag containing the heroin.[7] This evidence constitutes a sufficient link between appellant and the heroin. See Stowe, 744 S.W.2d at 618 (finding that a recovery of a large amount of methamphetamine, coupled with the distinctive smell of methamphetamine in the area where it was recovered, constitute sufficient links between the accused and the contraband). Viewing the evidence neutrally, we conclude that the evidence supporting the verdict is not so weak that the verdict seems clearly wrong and manifestly unjust, nor was the supporting evidence outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. See Roberts, 220 S.W.3d at 524. The contrary evidence cited by appellant fails to demonstrate that appellant did not exercise care, custody, control, or management over the heroin found in the bedroom closet. And, to the extent that there was any contradictory evidence, we note that the jury, as the trier of fact, is the sole judge of the credibility of witnesses and the weight to be given to testimony. Cain, 958 S.W.2d at 407. Thus, we hold that the evidence is factually sufficient to support appellant=s conviction. We therefore overrule appellant=s sole issue. Conclusion Having addressed and overruled appellant=s sole issue, we affirm the judgment of the trial court. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed February 19, 2008. Panel consists of Justices Fowler, Frost, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b). [1] The investigating officers were never able to locate the gunmen, and no charges were ever filed regarding the robbery. [2] Officer Rosaura Rodriguez, a chemist with the Houston Police Department crime laboratory, later determined that the bag contained 507.8 grams of black tar heroin. [3] There was conflicting testimony as to whether there were two or three gunmen involved in the robbery. However, this discrepancy is not material for the purposes of the present appeal. [4] Appellant=s factual sufficiency challenge is premised solely on the possession element of the charged offense. Accordingly, we address only that aspect of the offense. However, we note that Officer Bradley=s testimonyCthat an amount of heroin for personal use can range anywhere from 0.2 grams to one gram, and that the amount allegedly possessed by appellant, over 500 grams, was Aabsolutely not@ for personal useCwas sufficient to prove the intent to deliver element of the charged offense. See Moreno v. State, 195 S.W.3d 321, 326 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d) (citing Mack v. State, 859 S.W.2d 526, 529 (Tex. App.CHouston [1st Dist.] 1993, no pet.)) (AExpert testimony by experienced law enforcement officers may be used to establish an accused=s intent to deliver.@). [5] Although the requisite connection between the accused and the contraband was once referred to as an Aaffirmative link,@ we now refer to it simply as a Alink.@ See Evans v. State, 202 S.W.3d 158, 161 n.9 (Tex. Crim. App. 2006). [6] Crystal Zink, Gebron Alvarez, John Ganz, James Broyles, and Brandon Chaney each testified to the effect that appellant lived at the Flushing Meadows address, and that his bedroom was the one where the heroin was found. Zink, an ex-girlfriend of Montemayor=s brother and former occupant of the Flushing Meadows address, testified that appellant moved into that house in November or December 2003, a few months after she moved out. Alvarez, Montemayor=s friend since high school, testified that appellant had introduced himself as Montemayor=s Aroommate,@ and that appellant was at the Flushing Meadows address every time Alvarez came over to visit Montemayor, which was once every three months. Ganz, a friend of appellant=s and Montemayor=s since junior high, testified that he Aabsolutely@ believed that appellant lived at the Flushing Meadows address, that he had this belief for at least one year, and that it was Acommon knowledge@ and Aa widely known fact@ that appellant=s bedroom was the same room as that where the heroin was found. Broyles, a friend of Montemayor=s since high school and a flooring contractor who employed appellant on at least two occasions, testified that it was his understanding that appellant was Montemayor=s roommate; that he would call the phone number at the Flushing Meadows address in order to contact appellant about work; that, when questioned about where he lived, appellant told him he lived at the Flushing Meadows address; and that appellant was present at that address every time Broyles visited, which was once or twice each month. Chaney, also a friend of appellant=s and Montemayor=s since junior high, testified that, at the time of the robbery, appellant had lived at the Flushing Meadows address for at least one year, that appellant was usually at that address every time Chaney came over to visit, which varied from once to four times each week, that he believed that appellant paid the telephone bill at that address, that appellant kept his belongings, slept, and showered at that address, that appellant=s bedroom was the same room as that where the heroin was found, and that Chaney knew that this bedroom was appellant=s because appellant kept his clothes and played video games in that bedroom, and Chaney personally saw appellant in that room. [7] Apparently, the smell of vinegar is characteristic of heroin. See Hinojosa v. State, No. 03-00-00489-CR, 2001 WL 1044630, at *2 (Tex. App.CAustin Sept. 13, 2001, no pet.) (not designated for publication); see also Contreras v. State, No. 05-00-00187-CR, 2001 WL 569267, at *2 (Tex. App.CDallas May 29, 2001, no pet.) (not designated for publication).