Debbie Perez v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-01-00514-CR

Debbie Perez, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT

NO. A-01-0062-S, HONORABLE THOMAS GOSSETT, JUDGE PRESIDING

A jury convicted appellant Debbie Perez for possession with the intent to deliver four

grams or more but less than 200 grams of cocaine, and possession of methamphetamine in an amount

less than one gram. See Tex. Health & Safety Code Ann. §§ 481.112 (d), .115(b) (West Supp. 2002).

The district court sentenced appellant to imprisonment for eight years. By seven issues, appellant

challenges the legal and factual sufficiency of the evidence, and alleges other procedural errors.

Because the evidence supports the jury's verdict and her procedural challenges are without merit,

we affirm the district court's judgment.

BACKGROUND

In November 2000, appellant lived in a house with her eighteen-year-old son, Sesario

Perez, III, just outside the San Angelo city limits. After developing probable cause that appellant's

son possessed cocaine, San Angelo police officers obtained and executed a search warrant for

appellant's house. (1) Police entered the house at approximately 10:46 a.m. and encountered three

individuals sleeping in various areas of the house: Sesario was on a mattress in the living room,

Sesario's friend was on the living room couch, and Sesario's female cousin was in appellant's

bedroom. (2) Officers detained all three individuals as they searched appellant's house.

Police found marihuana, cocaine, and methamphetamine hidden in appellant's kitchen

freezer and a triple beam digital scale in the kitchen trash receptacle. They also recovered an

electronic gram scale from appellant's vanity in the master bathroom. A search of appellant's

bedroom revealed plastic "corner bags" hidden in a photo album on top of her dresser. (3) Inside

appellant's dresser drawer, police found plastic bags with missing corners. In the living room, police

discovered marihuana and "finger" scales. (4)

After completing their search, the officers arrested Sesario; (5) they released his friend

and cousin. Later that evening, officers returned to appellant's house with a warrant and arrested her.

Subsequently, a grand jury returned a two-count indictment against appellant. Count one alleged

possession with the intent to deliver more than four but less than 200 grams of cocaine; count two

alleged possession with the intent to deliver less than one gram of methamphetamine. At the

conclusion of the trial, the district court submitted its charge to the jury. The charge included

instructions on both charges for possession with the intent to distribute and the lesser included

offense of possession. On count one, the jury found appellant guilty as charged in the indictment.

See Tex. Health & Safety Code Ann. § 481.112 (d). On count two, the jury found appellant guilty

only of the lesser included offense of possession. See id. § 481.115(b). Appellant appeals her

conviction on both counts.

DISCUSSION

Appellant's first four issues challenge the legal and factual sufficiency of the

evidence. The standards of review for legal and factual sufficiency are well established. In

reviewing the legal sufficiency of evidence, we ask whether, viewing the evidence in the light most

favorable to the jury's verdict, any rational trier of fact could have found beyond a reasonable doubt

all the essential elements of the charged offense. Jackson v. Virginia , 443 U.S. 307, 319 (1979);

Griffin v. State , 614 S.W.2d 155, 159 (Tex. Crim. App. 1981). When conducting a factual

sufficiency review, however, we ask whether a neutral review of all the evidence, both for and

against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our

confidence in the jury's determination, or that the proof of guilt, although adequate when considered

alone, is greatly outweighed by contrary proof. Johnson v. State , 23 S.W.3d 1, 6-7 (Tex. Crim. App.

2000). The evidence supporting a verdict is factually insufficient only when the reviewing court

determines that the factual findings are against the great weight and preponderance of the evidence

so as to be clearly wrong and unjust. Clewis v. State , 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).

Appellant contends in her first issue that the evidence is legally insufficient to support

her conviction for possession with the intent to distribute cocaine (count one). Her second issue

challenges the legal sufficiency of the evidence regarding her conviction for possession of

methamphetamine (count two). To support a conviction on count one, the State had the burden to

prove beyond a reasonable doubt that appellant knowingly or intentionally possessed cocaine with

intent to deliver it to another person. See Tex. Health & Safety Code Ann. § 481.112 (a), (d). To

support a conviction for count two, the evidence must establish that appellant knowingly or

intentionally possessed methamphetamine. See id. § 481.115(a), (b).

As to both counts, possession means more than simply "being where the action is;

it involves the exercise of dominion and control over the thing actually possessed." McGoldrick v.

State , 682 S.W.2d 573, 578 (Tex. Crim. App. 1985). It is not necessary for the State to establish that

the accused exclusively possessed the contraband . See Guiton v. State , 742 S.W.2d 5, 8 (Tex. Crim.

App. 1987). However, when the accused is not in exclusive possession of the place where the

contraband is found, as here, independent facts and circumstances must affirmatively link the

accused to the contraband. Id. That is, the evidence, either direct or circumstantial, must establish

that the accused's connection with the contraband was more than just fortuitous. See Brown v. State ,

911 S.W.2d 744, 747 (Tex. Crim. App. 1995). Although courts routinely identify numerous factors

as being relevant to the determination of whether an accused is affirmatively linked to contraband,

of paramount importance to that determination is the logical force the factors have by themselves

or in conjunction with others, not simply the frequency with which they appear. See Whitworth v.

State , 808 S.W.2d 566, 569 (Tex. App.--Austin 1991, pet. ref'd).

Appellant's first two issues assert the absence of affirmative links. (6) The State

introduced evidence that: the amount of cocaine found at appellant's house--slightly less than

twenty-four grams--and the manner in which it was found (some in bulk-form and some packaged

for sale) was inconsistent with personal use; the scales found in appellant's bathroom and kitchen

trash were commonly used to weigh gram amounts of illegal controlled substances, such as

methamphetamine and cocaine; there was an absence of paraphernalia indicating personal narcotic

usage by the house's occupants; and the bags found in appellant's dresser drawer were the type

commonly used for packaging cocaine for sale on the street. Appellant argues that, despite this

evidence, the State did not carry its burden of proof.

Specifically, appellant contends that the State failed to establish an affirmative link

between her and the contraband because she and her son testified that the drugs belonged to Sesario,

and appellant was not aware of their presence. (7) As additional support, appellant points to the fact

that she was not at home when police searched her house, and the officers testified that the drugs

found in the house were not in plain view. Appellant also contends that, because any of the three

people found in the house had access to the places where the drugs and paraphernalia were found,

the State could not establish that she possessed the drugs or intended to deliver them to anyone.

Regarding count two specifically, appellant claims that because the police never found her in actual

physical possession of methamphetamine, the evidence is legally insufficient to support her

conviction. Appellant also suggests that because the police department determined that there was

insufficient evidence linking Sesario's friend or cousin to the contraband, likewise the link between

herself and the drugs is too attenuated to support her conviction.

Appellant's assertions before this Court are essentially the same ones she made to the

jury: she could not be guilty of possession or possession with the intent to distribute because the

drugs were not hers and she did not know they were in her house. In passing on the weight of the

evidence, we are mindful that the jury is the exclusive judge of the facts proved, the weight to be

given the testimony, and the credibility of the witnesses. See Tex. Code Crim. Proc. Ann. art. 38.04

(West 1979); Alvarado v. State , 912 S.W.2d 199, 207 (Tex. Crim. App. 1995). At trial, appellant

presented evidence that the drugs belonged to Sesario, not appellant, and that appellant did not know

that drugs were present in her house. Sesario testified that he "planted" the drug paraphernalia in

appellant's room "the night before . . . whenever she went to work." The State introduced evidence

that, despite his proclaimed ownership, Sesario was unable to confirm when and where he bought

the drugs. The State's evidence also showed that appellant owned the house, the drugs found in her

house had been there for approximately one month, the amount of drugs found was inconsistent with

personal use, there was a conspicuous absence of paraphernalia indicating personal drug use, and she

had access to and exercised control over the areas where officers found drugs and drug paraphernalia,

i.e. , the kitchen, living room, master bedroom, and master bathroom. (8) Viewing the evidence in the

light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable

doubt that the evidence was sufficient to establish an affirmative link between appellant and the

contraband. Therefore, there was sufficient evidence to support appellant's conviction. We overrule

appellant's first and second issues.

In appellant's third and fourth issues, she challenges the factual sufficiency of the

evidence to support counts one and two of her conviction. It is not the reviewing court's duty to

disregard, realign, or weigh the evidence. Moreno v. State , 755 S.W.2d 866, 867 (Tex. Crim. App.

1988). Because it is up to the jury to accept or reject any or all of the evidence presented by either

party, we cannot set aside a verdict for factual insufficiency unless we find it is manifestly unjust.

See Clewis , 922 S.W.2d at 135 ; Saxton v. State , 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Here,

the jury's decision is not manifestly unjust simply because the jury disbelieved Sesario's and

appellant's testimony that the drugs were his. See Cain v. State , 958 S.W.2d 404, 407 (Tex. Crim.

App. 1997); Rosie v. State , 7 S.W.3d 225, 233 (Tex. App.--Austin 1999, pet ref'd). Viewing the

evidence neutrally and giving due deference to the jury's verdict, we cannot say the verdict is

manifestly unjust. Accordingly, we overrule issues three and four.

In her fifth issue, appellant asserts that the district court violated article 36.27 of the

Texas Code of Criminal Procedure by failing to record all proceedings concerning its

communications with the jury. See Tex. Code Crim. Proc. Ann. art. 36.27 (West 1981).

Specifically, she contends that the district court erred by not requiring the court reporter to make a

record of the proceedings that resulted in the court's written response to a written communication

from the jury. (9) The jury requested "a copy of the transcript of the testimony of [S]esario Perez III.

Specifically, the cross-examination of [S]esario Perez III." In response, the district court "instructed"

the jury in writing to

remember the testimony as you have heard it from the witness stand or from those

exhibits admitted into evidence. If there is a disagreement as to any testimony given

of a particular witness, upon informing the Court of such disagreement, that portion

may be read back to the jury from the Court Reporter's notes. . . . I cannot authorize

the Court Reporter to transcribe the entire testimony of the witness. If you are in

disagreement as to a portion of a witness' testimony, you must state specifically that

portion of the witness' testimony that is in dispute. . . .

Where communication between the jury and the court does not amount to additional instructions,

noncompliance with article 36.27 does not amount to reversible error. Nacol v. State , 590 S.W.2d

481, 486 (Tex. Crim. App. 1979) (instructing jury, "You are only to consider what is contained in

the charge"); Brown v. State , 505 S.W.2d 850, 857 (Tex. Crim. App.1974) (instructing jury regarding

importance of not discussing the case with anyone or following any news account of the trial). As

recognized by appellant in her brief, communication concerning an administrative matter does not

constitute giving the jury additional instructions. See Jones v. State , 963 S.W.2d 826, 829 (Tex.

App.--Texarkana 1998, pet. ref'd). Here, the court instructed the jury to remember the testimony

as they heard it, but if they disagreed about any testimony, the court could read it back to them from

the court reporter's notes. Because the district court gave no additional instructions regarding the

facts or law pertaining to the charged offense, we do not believe the result in this case should be

different than in those cases where the court simply tells the jury to follow the charge that was given.

See Nacol , 590 S.W.2d at 486 ; Brown , 505 S.W.2d at 857 . Moreover, appellant does not assert that

any harm resulted from the court reporter's failure to record the proceeding. See McGowan v. State ,

664 S.W.2d 355, 359 (Tex. Crim. App. 1984) (recognizing that even where a court's answer may

be construed as an additional instruction to the jury, appellant must demonstrate harm). In fact,

appellant's counsel signed the court's communication to the jury. There is also no evidence

indicating that appellant's counsel objected to the procedure or requested the court reporter to make

a further record of the proceeding.

In her sixth issue, appellant urges that the court reporter's failure to record bench

conferences violated the Texas Rules of Appellate Procedure and requires reversal of her conviction.

See Tex. R. App. P. 13.1(a). Again, appellant does not argue that the court reporter's failure to

record such conferences prejudiced appellant's substantial rights or in any way impaired her ability

to argue the merits of her appeal. Rule 13.1(a) requires a court reporter to "attend court sessions and

make a full record of the proceedings unless excused by agreement of the parties." Id. The record

establishes that appellant filed a pretrial motion with the court to direct the court reporter to record

all proceedings. Thus, it is clear that the parties made no agreement to excuse the court reporter from

her obligation to make a full record of all the proceedings, and that her failure to do so without the

parties' constitutes error.

Although the court reporter's failure to record bench conferences and the court's

communication with the jury may be violations of Texas practice rules, they are procedural defects

that must be disregarded unless they affect appellant's substantial rights. See Johnson v. State , No.

03-01-00460-CR, slip op. at 4, 2002 Tex. App. LEXIS 2726, at *5 (Tex. App.--Austin Apr. 18,

2002, no pet. h.) (to be published). An error affects appellant's substantial rights if it has a

"substantial and injurious effect or influence in determining the jury's verdict." King v. State , 953

S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States , 328 U.S. 750, 776

(1946)). Because appellant does not claim that the reporter's failure to record the bench conferences

or the proceedings related to the written communication with the jury affected her substantial rights,

and our review of the record fails to disclose that they did, we overrule appellant's fifth and sixth

issues.

Appellant's seventh issue challenges the validity of the district court's jury charge.

Appellant does not complain that the district court's charge misapplied the law to the facts, but urges

that the district court's legal definition of "possession" was wrong, confusing, and injured her rights.

The State responds that appellant's contention is without merit because the district court drafted the

charge using a leading form book on Texas pattern jury charges. See W. Scott Carpenter & Paul J.

McClung, Texas Criminal Jury Charges § 12:1060 (2000). Texas Code of Criminal Procedure

article 36.19 prescribes the manner in which jury charge error is reviewed on appeal. Tex. Code

Crim. Proc. Ann. art. 36.19 (West 1981); Hutch v. State , 922 S.W.2d 166, 170 (Tex. Crim. App.

1996). An appellate court must determine whether error exists in the jury charge and, if so, whether

such error caused harm sufficient to require reversal. Hutch , 922 S.W.2d at 170-71 . The party

alleging a charging error bears the burden of persuading the reviewing court that the erroneous

charge resulted in some actual harm; absent a showing of actual harm, reversal is improper. Abdnor

v. State , 871 S.W.2d 726, 732 (Tex. Crim. App. 1994). The only argument appellant makes

regarding harm is that the district court's charge did not track the language of Texas Health and

Safety Code section 481.002. (10)

See Tex. Health & Safety Code Ann. § 481.002 (38) (West Supp.

2002). Appellant's general assertion that the charge injured her rights because her trial strategy "was

to admit that controlled substances were seized from the house" fails to establish that the proffered

charge harmed her in any manner; thus, appellant failed to meet her required showing. We overrule

her seventh issue.

CONCLUSION

Having overruled appellant's issues, we affirm the district court's judgment.

Jan P. Patterson, Justice

Before Justices Kidd, B. A. Smith and Patterson

Affirmed

Filed: June 13, 2002

Do Not Publish

1. At trial, the officer who obtained the warrant testified that a confidential informant told him

that, in addition to Sesario, appellant might be involved in selling drugs. Appellant does not

challenge the legality of the search warrant.

2. Appellant was at work when police executed the search warrant.

3. According to the testimony at trial, corner bags are made by cutting corners off of plastic

sandwich-type bags. Drug dealers then package and sell controlled substances, such as cocaine, by

placing the substance in the corner of the bag and heat sealing it closed.

4. Officers at trial testified that finger scales are commonly used for weighing marihuana.

5. Sesario later pleaded guilty to possession with intent to distribute cocaine.

6. At trial, appellant stipulated that the substances recovered from her residence were

controlled substances.

7. Appellant and her son both testified as defense witnesses.

8. At trial, appellant testified that her house has two bedrooms and two bathrooms. The

evidence established that appellant's bedroom (the master bedroom) and the master bathroom are

connected.

9. The note from the jury and the court's response appear in the clerk's record but not the

reporter's record.

10. The challenged jury charge reads:

"Possession" means actual care, custody, control or management. Possession

is a voluntary act if the possessor knowingly obtains or receives the thing

possessed or is aware of his control of the thing for a sufficient time to permit

him to terminate his control.

See Tex. Health & Safety Code Ann. § 481.002 (38) (West Supp. 2002); W. Scott Carpenter & Paul

J. McClung, Texas Criminal Jury Charges § 12:1060 (2000).