John Merritt Pierce v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

TEXAS

COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-06-00492-CR

John

Merritt Pierce, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT

NO. CR-05-639, HONORABLE WILLIAM

HENRY, JUDGE PRESIDING

M E M O R A N D

U M O P I N I O N

John

Merritt Pierce appeals his conviction for possession of methamphetamine in an

amount of 200 grams or more but less than 400 grams. See Tex. Health & Safety Code Ann. §§ 481.102 (West Supp. 2006), .115(a), (e) (West 2003).

After the jury found appellant guilty as to possession, [1]

the trial court assessed punishment at 39 years’ confinement as enhanced by a

prior conviction. In two issues, appellant challenges the legal and factual sufficiency

of the evidence to support his conviction for possession of methamphetamine.

Because we sustain the challenge to the legal sufficiency of the evidence to

support the verdict, we reverse the trial court’s judgment and render a

judgment of acquittal.

BACKGROUND

According

to the State’s evidence at trial, on the afternoon of June 23, 2005, Detective

Tommy Villanueva of the Hays County Narcotics Task Force unit of the San Marcos

Police Department received an anonymous telephone call that a fugitive, Dolores

Burnett, with an escape warrant from Travis County, could be found at a

residence at 2735 FM 2001 in the town of Buda in Hays County. The caller also

advised the officer that Burnett was “staying with a man by the name of John

Pierce,” that the residence was “a place where a lot of people do

methamphetamine and cocaine,” and that there would be a black Chevy Blazer and

possibly a blue Mitsubishi vehicle “that was supposedly Dolores Burnett’s

vehicle” located at the residence.

Villanueva

verified the existence of the warrant and learned that Burnett had a warrant

for an unauthorized absence from a community corrections facility. At trial,

the State introduced into evidence a printout from a law enforcement database

showing the existence of a “flight escape warrant” as well as an additional

warrant for Burnett for possession of methamphetamine in violation of her

probation.

San Marcos police officers conducted a drive-by investigation of the residence, verifying

the location and existence of the residence and the black Chevy Blazer.

Because the house was located 100-150 feet from the road, they were unable to

see the license plates of vehicles parked close to the residence. They

confirmed that a black Chevy Blazer was parked at the residence along with

other vehicles.

Based on

the information received from the anonymous caller and their observations, at

mid-afternoon the officers approached the residence to knock on the front door

and to serve the warrant on Burnett. Villanueva testified that the officers

waited on the blue vehicle that supposedly belonged to Burnett, but then they

decided to knock on the door and ask if she was there. As other officers “set

up a loose perimeter around the residence,” Sergeant Chase Stapp, a sergeant

with the San Marcos Police Department and the commander of the Hays County

Narcotics Task Force, approached the southwest corner of the house to observe

the side of the house in the event someone tried to flee. Stapp explained the

purpose of a “knock-and-talk” investigation:

You try to make contact with someone at

a location and obtain their cooperation in conducting your investigation

whether it be for a warranted person or to find drugs, which is commonly what

we do, or anything else. . . . You knock on the door, you hope to make contact

with someone, and talk to them about whatever it is you’re investigating. We

do these to, again, try and find drugs sometimes where we don’t have a search

warrant in hand, but we want to elicit cooperation from people. We also do

these many times to try to serve arrest warrants. The law would allow us to

breach a door or break down a door to serve a felony arrest warrant if

someone—if your suspect actually lives there, but if they don’t, we—if they’re

staying at a friend’s house, for example, or hiding out or whatever, we may

knock on that door and try to get someone to answer the door and just ask if

the wanted person is there. [2]

As he moved close to an open window

of the house, Stapp smelled the “unmistakable odor” of methamphetamine and

observed through the window a man, later identified as Shane Forester, and an

unidentified woman inside the house. The woman was walking quietly past the

door in an attempt, Stapp testified, to avoid detection of the officers at the

front door. Stapp observed the man carrying a blue “kind of a” square object

into the room. When the man saw Stapp at the window, he ran towards the living

room. When no one responded to Villanueva’s knock at the front door, Stapp

authorized him “to kick the front door open.” Stapp testified that he was

concerned that evidence might be destroyed or weapons obtained, so he

authorized an entry into the house based upon exigent circumstances. [3]

When the

officers entered the house at approximately 2:45 p.m., Dolores Burnett, who was

taking a shower, was the only person present. Stapp testified that Burnett was

not the female he observed through the window. The officers “cleared the

house” and found no one else present in the house. The man and woman Stapp saw

through the window were not found in the house. The officers observed debris

outside one of the windows of the house, indicating that someone had escaped

through the window into a large open field behind the house. Stapp testified

that “[t]hey got out the side window and dropped some belongings on the ground

and the blinds had been moved outside the window.” The officers found

evidentiary items, including plastic tubing and tape, stashed in a brushy area

behind the house. Villanueva testified that the officers also found a cell

phone and a belt buckle on the ground.

Villanueva

testified that, as the officers “cleared” the house looking for additional

occupants, they observed in plain view in the kitchen “a square glass tray with

some powdery residue, a small scale, and small Ziploc baggies.” Villanueva

testified that the items he observed were consistent with “the manufacturing of

methamphetamine:”

In the washroom where the entry was

made by the other officers, detectives observed in plain view two glass jars

inside a soft-sided bag: one jar contained clear liquid with some white

residue, and the second jar contained some clear liquid.

After a search of the house looking

for individuals who might be present, the officers started looking around the

property for the individuals. They searched an outbuilding, or “shed,” and

also saw the blue Mitsubishi automobile parked in back of the house. After

“clearing” the outbuilding and finding no one there, the officers began to

search more widely for the individuals they believed had fled from the house.

Officers spoke with employees at a nearby cabinet shop who had seen “people

going through here.” The employees provided “a very basic description of the

suspects” [4]

that the officers passed on to other law enforcement officers, including other

members of the Hays County Sheriff’s Office, the Department of Public Safety

Air Unit, the San Marcos Police Department Canine Unit, and the United States Marshals, who assisted in the search.

As the

officers continued their search for the individuals, Villanueva left the

residence and proceeded to seek a search warrant which was issued by a

magistrate later that afternoon at 5:05 p.m. Other officers remained at the

house to secure the premises until the search warrant could be obtained.

Meanwhile, United States Marshals were in nearby Niederwald looking for a fugitive in an unrelated

case. U. S. Deputy Marshal Tom Shaddix testified that he observed two

individuals running in an open field “quite a distance off the road.” The two

men would run and occasionally stop to see if they were being followed. The

marshal’s first impression was that the men were being chased by a dog or a

bull. As Shaddix continued to drive down the road, the two men continued to

run, and then stop and walk, and then run again until Shaddix lost sight of

them. As Shaddix waited for another officer, a Hays County officer advised him

that “some individuals” had run from a house where the officers were attempting

to execute a “search warrant” and asked him if he had seen anybody. After

executing the arrest for which they were in the area, at the request of the Hays County officers, the marshals assisted in the search for the men who had fled the Buda

residence.

Shortly

thereafter, Shaddix again saw two men near the road, one coming out of a brushy

area on the edge of the road and a second man running in the opposite direction

from the marshals. The first man was “not moving.” As he watched, an old

Suburban vehicle coming in Shaddix’s direction stopped, picked up the second

man who was running, made a u-turn “in the middle of the road spinning his

tires,” and headed back in the direction from which it had come. Shaddix

testified:

It appeared he was trying to get away

in a hurry. I proceeded after him, got behind him, activated my lights and

siren, attempted to pull him over. The individual driving made a right turn

onto another road that I do not know the name of. I proceeded behind them

probably a quarter to a half mile down the road until it ended, at which time

they stopped—the vehicle stopped.

Shaddix detained the two men until Hays County officers arrived. Shaddix placed the car’s passenger, the man who had been

running, in handcuffs. At trial, Shaddix testified that the passenger appeared

extremely “wet from sweat,” flustered, and nervous. The driver was nervous but

not sweating.

U.S. Deputy

Marshal Eric McGill, who apprehended the other individual on the road,

testified that he saw the two men go “up a ditch,” “they were in the weeds,”

and then “cross a field.” He then saw the men as one jogged along the road and

the other walked on the side of the road. The individual walking along the

road was shirtless and was cut up, bleeding, and sweaty. McGill lost sight of

the men until he turned down another road and saw the men again. He approached

one of the men and asked whether anything was wrong. The man replied that he

was fine and kept walking. McGill testified that when he initially approached

the man, “I was under the misunderstanding that we were actually looking for

Hispanic individuals, and this was a white male.” McGill then stopped his

vehicle, showed his badge, and asked the man what he was doing. The man told

McGill that he was “there to meet somebody about a job.” McGill testified that

because he thought the individual might have fled from the Buda house and was

one of the individuals sought by the local officers, he told the man: “I’m not

arresting you, but I am going to detain you until we identify you.” He then detained

the man, later identified as appellant, for identification purposes. McGill

brought appellant to the location where Shaddix had detained the two men in the

Suburban—the passenger was later identified as Shane Forester, and the driver

was his brother, Hoyt. The marshals turned appellant and Shane Forester over

to the officers and released Hoyt Forester.

The record

reflects that the three men were detained in the 3000 block of Windy Hill Road, approximately a quarter to one-half mile from the Buda residence. Officer

Carl Spriegel of the Hays County Narcotics Task Force arrived and took custody

of appellant and Shane Forester from the U.S. Marshals. Spriegel, who also

participated in the execution of the arrest warrant at the Buda residence, described

appellant and Forester when he first saw them in the custody of the marshals:

Very disheveled looking; they were very

sweaty; they were covered in what we refer to as beggar’s lice, the—it’s black

material when you go through a field, it attaches to your clothing and

whatnot—they were covered head to toe in this beggar’s lice.

Spriegel recalled that one of the

men was shirtless. After handcuffing appellant and Forester and frisking them

for weapons and contraband—which they did not find—Spriegel seated them in the

back seat of his squad car and transported them to the Hays County jail.

On their

way to the jail, Spriegel drove by the Buda residence for Officer Stapp to view

the two men. Stapp came over to the police vehicle and identified Forester as

the man he saw through the window carrying the blue object; Stapp testified

that he had not observed appellant at the house. When Spriegel arrived at the

jail and unloaded the two suspects, he found a “little baggy of a white

crystalized substance” underneath the rear seat of the car. Spriegel observed

that the baggy was “extremely wet,” “literally dripping with perspiration,” and

there was actually perspiration on the inside and outside of the baggy. The

State designated the baggy as State’s Exhibit 9A.

In his

testimony, Spriegel explained that he generally operates a marked patrol unit

and that every time he operates the unit he conducts a search of the vehicle.

He testified that before each use of the vehicle he searches the entire car,

including the back seat and every place “that you can conceal something.” In

describing the location of the baggy “underneath the rear seat,” Spriegel

testified: “It was—it looked as if it was going to be more towards the center

of the car, but it was closest to Mr. Pierce.” On cross-examination in

response to questioning on the location of the baggy, Stapp testified that the

baggy was underneath the seat of the car “between the padding of the seat and

the rubber padding that lines the floor of the car of approximately an inch,

and it was in that area,” in the “void between the seat back and seat cushion

itself.” Stapp testified that it was “possible” that either person sitting in

the back seat could have dropped the baggy.

After the

officers obtained the search warrant, they conducted a search of the house and

premises, seizing “approximately 32 items of evidence” and photographing the

evidence and the house. Villanueva testified to the conduct of the search [5]

and the seizures he made. In a closed kitchen cabinet located to the right of

the kitchen sink, he found two 20-ounce plastic bottles, one filled with liquid

separating into two distinctive layers. He also seized the scale and baggies

observed on the kitchen table during the initial sweep of the house. The

baggies were empty; in Villanueva’s experience, they “are usually used to carry

small amounts of any narcotic.” Villanueva testified that the officers

photographed the bottles, measured the liquids inside, and took samples of the

liquid for testing. Villanueva picked up a cell phone laying on the ground,

next to the house. When it rang and Villanueva answered it, a voice on the

other end asked to speak to “Kenny.” The telephone was not fingerprinted.

After the officers seized and photographed the evidence and crime scene, most

of the materials were then disposed of as hazardous waste by a clean-up crew.

No fingerprints were retrieved from the house or evidence. [6]

Some of the

evidence was found in a bin in a brushy area behind the house. The items

included cold medicine containing pseudoephedrine, plastic tubing, tape, power

strip, hot plates, glassware of various types, funnels and dishes used for

drying the final product. The officers also seized charcoal lighter fluid that

they testified is a solvent that can be used to extract a chemical during the

cooking process, red phosphorus, eleven boxes of pseudoephedrine used to

“synthesize into methamphetamine,” a condenser tube, and a triple-beam scale.

Laray

Taylor, a detective with the San Marcos Police Department, also assisted with

the execution of the search warrant. Taylor testified that he personally

seized various items from the residence, including Red Devil Lye, acetone,

muriatic acid, pipes used to smoke methamphetamine, a woman’s driver’s license,

some hydrocodone, an unknown tablet, and some methamphetamine in a tray. Taylor scraped the methamphetamine out of a glass tray and placed it in a baggy. He also

testified that he seized “an affirmative-link document,” [7]

which was a traffic citation dated December 2, 2004, issued to appellant and

located on a desktop in one of the bedrooms. Admitted into evidence, the

citation showed appellant’s residence as 2735 FM 2001 and the vehicle for which

the citation was issued was a 1994 silver Dodge automobile. The citation

showed that appellant received a ticket in Bastrop County for traveling at a

speed of 85 miles per hour in a 60-mile-per-hour zone. The citation also

showed that appellant received a warning for displaying an expired registration

sticker and for failing to have insurance.

Hays County

deputy sheriff Todd Riffe testified that he seized various items from “the

brush line behind the house” including boxes of Equaline allergy medicine

located in a hunting bucket, six glass containers, seven plastic funnels, a

methamphetamine pipe, three burners, plasticware, two glass dishes, a

six-weight test strip, coils of plastic tubing, a baster and gloves located in

a tool case, 456 empty pseudoephedrine pill tablets, and plastic tubing. He also

seized a glass condenser tube located on the living room floor of the

residence. Riffe testified that these items were “previously used for the

production of methamphetamine.”

Joel Budge,

the supervisor of the DPS drug analysis lab, testified that he was the chemist

who conducted tests on various exhibits in the case. Budge testified that the

exhibits believed to contain controlled substances were submitted to him, and

certain of the exhibits were analyzed and found by him to contain

methamphetamine. As to two of the exhibits that contained methamphetamine,

Budge testified: “Using the officers’ pictures and their descriptions

from—that were given to me, I determined that item No. 1A and 1B—that the total

volume was probably 316 milliliters, and that corresponds to about 221 grams of

total weight.” [8]

As to Exhibit No. 2, Budge testified that there was a top layer and a bottom

layer and that he tested only the top layer. If one included both layers, the

mixture that contained methamphetamine weighed 316 grams, but the top layer

that he tested weighed 38 grams. Several of the other exhibits were items used

in the manufacture of methamphetamine, such as iodine and pseudoephedrine

pills. Budge confirmed the existence of 5.50 grams and 0.23 grams of methamphetamine

in two other exhibits. Budge testified that he did not analyze exhibits marked

M360, which is a manufacturer’s code for hydrocodone, and Risperdal. The

record does not show that Budge tested the crystallized substance in the baggy

found in the squad car underneath the seat.

Appellant

called three witnesses to testify on his behalf, as well as Officer Villanueva.

Linda Pyron testified that she had known appellant for two years, that they

were intimate friends, and that appellant had been at the residence until

mid-May 2005 when she helped him pack his belongings and move out of the

house. Appellant was not staying at the house in June. She did not know how

long appellant had lived at the house, but she knew that appellant would allow

others to stay with him at the house. Pyron testified that appellant had his

own business crushing cars for junkyards and that he lived in the city of Alamo, near the border, and sometimes worked in Bertram where his office was located.

Pyron had traveled with appellant to both Alamo and Bertram where appellant

lived in a cabin.

Pyron

recounted that, in late March or early April, Shane Forester’s brother, Hoyt,

along with another person named “Jeff” were staying with appellant at the

house. When Pyron and appellant returned home from an out-of-town trip,

appellant “found things in the house that he was not happy with at all.” Pyron

recalled that appellant was angry and very upset and that he loaded up jars,

baggies, cooking pots and “visionware” in a truck and removed the items:

I saw him start gathering it up,

looking, finding, searching through the trash, searching everywhere through his

whole house. And he gathered up everything that he found, put it in a box–two

boxes, actually, and put it in Jeff’s truck and shortly after that, he left to

go get rid of it.

Pyron testified that the items

appellant disposed of had something to do with methamphetamine. She testified

that when appellant threw the items away he would not let her go with him

“because he didn’t want to endanger me.” When Jeff returned to the house,

Pyron saw appellant “take Jeff to another room to talk to him,” and she heard

raised voices. Although Jeff continued to come and go at the house, he no

longer lived there. Pyron testified that she was a convicted felon, having

pleaded guilty to possession of methamphetamine in 2002.

Dolores

Burnett also testified on appellant’s behalf. She testified that she was in

the shower when the officers arrived and knocked on the front door of the

residence. Appellant was a long-time friend, and Burnett had previously stayed

at the house. Although Burnett testified that the residence “was [appellant’s]

home” and he told her she could stay there, she had not stayed at the house

recently and was aware that he was no longer living at the house. She was “not

sure” who was living at the house and, on the morning in question, saw only

Shane Forester and a person named “Wendy” at the house:

I think it was Wendy and Shane that was

living there, I’m not sure. I had seen a lot of people there a couple of

times. Sometimes there was Hoyt, Faith, Wendy, and Shane. But just that

morning I just saw Wendy and Shane.

She was not sure whether an

individual named Kenny Rictoby was there that day. [9]

Burnett

testified that she arrived at the house in her car at approximately 10:00 p.m.

and then slept in her car parked behind the house until later that night. At

about 3:00 or 4:00 a.m., Burnett entered the house and fell asleep on the

couch. She testified that she slept until mid-afternoon when she got up to

take a shower: “I went in and fell asleep on the couch and woke up and went

straight to the shower, and that’s when the cops came in.” Although she

testified that she did not see appellant at the house that day, on

cross-examination Burnett testified that she did not know who was on the

property that day and that it was “possible” appellant was at the house that

day.

Burnett

admitted that she had fled the treatment facility and that “pretty much” the

first place she went was a place where she knew methamphetamine was available.

Burnett testified that she has a record of three or four felonies and “a couple

of misdemeanors,” was on probation in Travis County, and that she had walked

away, or escaped, from the treatment facility. At the time of trial, she was

on probation for escape and for possession of methamphetamine.

Appellant’s

next-door neighbor testified that she had lived on the property next door to

appellant until he moved out prior to June. He was a “nice neighbor.” After

appellant left, she often saw other people at the house and knew appellant was

no longer living there. On the day in question, she saw two “guys” who were at

the house “take off running;” she was unaware appellant was found in the vicinity.

Appellant did not testify.

At the end

of trial, the jury found appellant guilty of possession of methamphetamine, and

a mistrial was declared on a count of possession of chemicals with intent to

manufacture methamphetamine. This appeal followed.

DISCUSSION

On appeal,

appellant challenges the legal and factual sufficiency of the evidence to

support the conviction. Specifically, appellant urges that the State failed to

“affirmatively link” him to the contraband. Because the evidence is legally

insufficient to support the verdict, we will confine our discussion to that

ground because it is dispositive of this appeal. See Tex. R. App. P.

47.1.

In a legal

sufficiency review, we view the evidence in the light most favorable to the

verdict and decide whether any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 316 (1979); Hampton v. State , 165 S.W.3d 691, 693

(Tex. Crim. App. 2005); Moff v. State , 131 S.W.3d 485, 488 (Tex. Crim. App. 2004). In addition, we should “determine whether the necessary inferences

are reasonable based upon the cumulative force of all the evidence when viewed

in the light most favorable to the verdict.” Hooper v. State , 214 S.W.3d

9, 16-17 (Tex. Crim. App. 2007).

We consider

all evidence the jury was permitted to consider. Moff , 131 S.W.3d at

488 . The jury is the sole judge of the credibility of the witnesses and of the

weight assigned to their testimony and may accept or reject any or all of a

witness’s testimony. Margraves v. State , 34 S.W.3d 912, 919 (Tex. Crim. App. 2000); Jones v. State , 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).

We resolve any inconsistencies in the evidence in favor of the verdict. Id .; Matson v. State , 819 S.W.2d 839, 843 (Tex. Crim. App. 1991); Moreno v. State , 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). The verdict

may not be overturned unless it is irrational or unsupported by proof beyond a

reasonable doubt. Matson , 819 S.W.2d at 846 .

The State

is required to prove every element of the offense set forth in the indictment

beyond a reasonable doubt. [10]

See Juarez v. State , 198 S.W.3d 790, 793 (Tex. Crim. App. 2006) (stating

that elements of offense must be charged in indictment, submitted to jury, and

proven by State beyond reasonable doubt). A person commits the offense of

possession of a controlled substance if he knowingly or intentionally possesses

it. Tex. Health & Safety Code Ann. § 481.115 (a). Under this indictment,

the State had to prove beyond a reasonable doubt that the accused (i)

intentionally or knowingly (ii) possessed, i.e. , exercised actual care,

custody, control, and management over methamphetamine (iii) in an amount of

more than 200 grams but less than 400 grams on or about the date set forth in

the indictment. See Tex. Health & Safety Code Ann. §§ 481.002 (38),

.112(a); Poindexter v. State , 153 S.W.3d 402, 405-06 (Tex. Crim. App.

2005); Brown v. State , 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). The

State alone has the burden of proving beyond a reasonable doubt every essential

element of the offense charged. Wright v. State , 603 S.W.2d 838, 840

(Tex. Crim. App. 1980).

When the

accused is not in exclusive possession or control of the place where the

contraband is found, it cannot be concluded that he had knowledge of and

control over the contraband unless there are additional independent facts and

circumstances linking him to the contraband. Poindexter , 153 S.W.3d at

405 . These elements may be established by circumstantial evidence. Id . at 405-06; McGoldrick v. State , 682 S.W.2d 573, 578 (Tex. Crim. App.

1985). The evidence must establish, to the requisite level of confidence, that

the accused’s connection with the contraband was more than just fortuitous. Poindexter ,

153 S.W.3d at 406 ; Brown , 911 S.W.2d at 747 . This link or connection

generates a reasonable inference that the accused knew of the contraband’s

existence and exercised control over it. Id . There is no set formula

of facts necessary to support an inference of knowing possession. The force of

these links need not be such as to exclude every other alternative hypothesis

except the defendant’s guilt. Id . at 748. Possession of contraband

need not be exclusive, and evidence that shows an accused jointly possessed the

contraband with another is sufficient. Martin v. State , 753 S.W.2d 384,

387 (Tex. Crim. App. 1988); Whitworth v. State , 808 S.W.2d 566, 569

(Tex. App.—Austin 1991, pet. ref’d). But mere presence at the location where

drugs are found is insufficient, by itself, to establish actual care, custody,

control or management of those drugs. Evans v. State , 202 S.W.3d 158,

162 (Tex. Crim. App. 2006).

The State

maintains that it demonstrated that appellant exercised actual care, control,

custody or management over the methamphetamine at the residence and in the

patrol car. As the State argued in response to appellant’s motion for an

instructed verdict, which was overruled:

[T]here’s plenty of evidence that the

jury can use to make inferences and conclusions that suggest that Mr. Pierce

was, in fact, at the house and was, in fact, involved in this incident given

his behavior following the police raid upon the house.

It’s true he was not seen by any of the

officers in the house, but he was found in close proximity there on foot,

covered from head to toe with grass burs, and was cut up, which the jury can

certainly make the inference that he was fleeing from the residence and trying

to escape detection and escape capture. So, the jury can certainly infer that

he was in the house and was involved.

And he was found, along with Shane

Forester who was definitely seen in the house. And there w[ere] two individuals

seen running across a field. Although they were not positively identified, I

find it hard to believe that there would be more than one set of two

individuals running around fields in Hays County near this residence at the

time of the police raid.

And in closing argument to the

jury, the prosecutor acknowledged:

John Pierce has never been seen by the

detectives and was not seen by the detectives in that house on that day. And I

told you that at the outset, that none of our witnesses would say that, and it

shouldn’t come to any great shock to anybody that we didn’t produce somebody

that said, yeah, they saw John Pierce in the house, because none of our

detectives did.

As the prosecutor argued, there was

no question that there was a methamphetamine lab and methamphetamine was

recovered in the amount alleged in the indictment: “The real question is whether

or not John Merritt Pierce had anything to do with it.” Relying on the

affirmative-links rule, the State argues that the evidence was sufficient to

link appellant to the methamphetamine. See Poindexter , 153 S.W.3d at

405-06 .

Appellant

argues that no testimony links him to the Buda residence at the relevant time

period and that no witnesses testified that he exercised care, custody,

control, or management over the exhibits found to contain the controlled

substance. Appellant asserts that any link to the residence was insufficient

to establish his guilt, given that no one testified that they saw him at the

house on the day in question and, even assuming he was linked to the residence

in some manner, he was not in exclusive possession or control of the residence

where the contraband was found.

In

reviewing this record, we must determine whether any rational trier of fact

could have found beyond a reasonable doubt that appellant knowingly or

intentionally possessed the contraband found in the Buda residence. To

obtain a conviction for possession of a controlled substance, the State must

prove that the accused exercised actual care, custody, control, or management

over the contraband, and that the accused knew the matter possessed to be

contraband. Whitworth , 808 S.W.2d at 568 . The trier of fact determines

whether the factors presented at trial combine to link the accused and the

contraband in a sufficient manner to establish guilt beyond a reasonable

doubt. The number of factors present is less important than the logical force

of those factors, alone or in combination, in establishing the elements of the

offense. Id . at 569.

Courts have

identified relevant factors that may link an accused to contraband, either

singly or in combination, to establish a person’s possession of contraband:

(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.

See Evans , 202 S.W.3d at 162

n.12 (citing Olivarez v. State , 171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.)). These are some non-exclusive factors that may

circumstantially establish the legal sufficiency of the evidence to prove a

knowing possession. Id.

Generally,

courts have found evidence legally sufficient to show possession where the

appellant actually possessed the drugs or had access to the place where the

drugs were stored. Christopher v. State , 639 S.W.2d 932, 935-36 (Tex.

Crim. App. 1982) (defendant had key to camper shell where drugs found), overruled

on other grounds , Preston v. State , 700 S.W.2d 227, 230 (Tex. Crim.

App. 1985); Martinets v. State , 884 S.W.2d 185, 188 (Tex. App.—Austin

1994, no pet.) (defendant was driver of car in which drugs found); Watson v.

State , 861 S.W.2d 410, 415 (Tex. App.—Beaumont 1993, pet. ref’d) (defendant

in same hotel room with warm crack pipe); Hernandez v. State , 867 S.W.2d

900, 905 (Tex. App.—Texarkana 1993, no pet.) (defendant had key to lock on

spare tire where drugs found); cf. De la Garza v. State , 898 S.W.2d 376,

379 (Tex. App.—San Antonio 1995, no pet.) (defendant seen in possession of

dufflebag containing marihuana immediately before her arrest). In Whitworth ,

this Court upheld a conviction for possession where the defendant had a key to

the trunk of the car, he used the key to open the trunk, marihuana was found in

the trunk, the strong odor of fresh marihuana was present, and the defendant’s

conduct at the time of his arrest showed consciousness of guilt. 808 S.W.2d at

569-70 .

We recognize

that it is the jury, not the reviewing court, that chooses between alternate

reasonable inferences to be drawn from the evidence. See Evans , 202

S.W.3d at 165 . In a legal sufficiency review, when reviewing all the evidence

in a light most favorable to the verdict, courts must assume that jurors made

all inferences in favor of their verdict if reasonable minds could, and

disregard all other inferences. Id . (citing City of Keller v. Wilson ,

168 S.W.3d 802, 821 (Tex. 2005)). We find Evans instructive. In Evans ,

the defendant argued that the evidence was legally and factually insufficient

to prove, beyond a reasonable doubt, that he exercised actual care, custody,

control, or management of the contraband. On appeal, the court of appeals

agreed, concluding that the record evidence failed to affirmatively link

appellant to the drugs other than by evidence of his presence and proximity to

the drugs. See Evans v. State , 185 S.W.3d 30, 37 (Tex. App.—San Antonio

2005), rev’d , 202 S.W.3d 158 (Tex. Crim. App. 2006). In contrast,

because the defendant was sitting directly in front of the drugs and they were

within arms’ reach, the court of criminal appeals concluded that this evidence

constituted “two extremely strong ‘presence’ and ‘proximity’ links.” Evans ,

202 S.W.3d at 163 . The drugs were “right under his nose,” but they were also

in plain view, which the court found to be a third link. Id. The court

found a fourth link in that the defendant was alone in the house. Id. And when the police arrived and asked if he knew why they were there, Evans

replied: “Drugs.” Thus, a fifth link. Id. Evans also received mail

at the address where the drugs were found, which raised an inference that he

lived there [11]

and a sixth link. Id. A final, weaker link was Evans’s possession of

$160 in twenty-dollar bills on his person even though he was unemployed. Id . The court concluded that the sum total of the circumstantial evidence was

sufficient to support a rational jury’s finding beyond a reasonable doubt that

appellant exercised actual care, custody, control or management of the

contraband. Id. at 166 .

We will

examine, then, the links urged by the State as well as the record evidence to

determine if the evidence was sufficient to support a rational jury’s finding

beyond a reasonable doubt that appellant exercised actual care, custody,

control or management of the contraband.

Was appellant present when the

search was conducted?

No witness

places appellant at the Buda house on the day of the search. The State argues

in its brief that “witness testimony established at least Appellant’s guilty

knowledge if not his actual presence in the home at or near a time when

Methamphetamine was being cooked: Lynda Pyron saw Appellant ‘throw away’ parts

of a Methamphetamine cook.” This testimony refers to the episode in late March

or early April 2005 when appellant and Pyron returned to the house from a trip

and discovered two boxes of glassware and paraphernalia presumably belonging to

“Jeff” that appellant then discarded. Pyron testified that appellant was

angry, had an angry exchange with “Jeff,” and that Jeff no longer lived at the

house after the incident. This incident was not “at or near

class=Section2>

the time” of the search and is not

the subject of the indictment. [12]

While one could argue that this evidence showed appellant’s consciousness of

guilt rather than that it was exculpatory, the State did not introduce any

evidence—circumstantial or direct—to support this theory. No evidence placed

appellant at the Buda residence at or about the time of the search.

Was the contraband in plain

view?

The State

does not rely on this factor to establish a link. Regarding the factor of

whether the contraband was in plain sight, Officer Villanueva testified that

when the officers entered the house, they observed in plain view some powdery

residue on a glass tray, a small scale, and Ziploc baggies in the kitchen, and

jars containing clear liquids with some white residue in a washroom where a

washer and dryer were located. In the course of the execution of the search

warrant, two of the bottles seized that contained methamphetamine were seized

from a kitchen cabinet. The speeding citation was seized in one of the

bedrooms.

Stapp

testified that crystal methamphetamine has a unique appearance and he

identified the baking dish as containing methamphetamine. He also testified

that the officers extracted samples of the various material to be analyzed by

the DPS lab.

Many of the

items seized were seized in the brush behind the house. Hays County deputy

sheriff Todd Riffe testified that he seized various items from “the brush line

behind the house,” including boxes of Equaline allergy medicine located in a

hunting bucket, six glass

class=Section3>

containers, seven plastic funnels,

a methamphetamine pipe, three burners, plasticware, two glass dishes, a

six-weight test strip, coils of plastic tubing, a baster and gloves located in

a tool case, 456 empty pseudoephedrine pill tablets, and plastic tubing. He

also seized a glass condenser tube located on the living room floor of the

residence. Riffe testified that these were items “previously used for the

production of methamphetamine.” The items “in plain view” formed the basis for

the search warrant. Other than that, there was sparse testimony about the location

of the various items seized. The State did not present testimony regarding the

visibility of the items seized, nor was it shown whether appellant and the

various occupants had access to the entire house or to areas where the

contraband was seized. There was simply no evidence from which a rational fact

finder could conclude that appellant had knowledge that the drugs were

there—even if one could establish appellant had been in the house.

Was appellant in close proximity

to the narcotics and were they accessible?

There was

no evidence that, on the day in question, appellant was in close proximity to

or the contraband was accessible to appellant. The State urges that appellant

“discarded” methamphetamine in the back seat of Detective Spriegel’s squad car

when he was transported to the jail. Although Spriegel “believed it to be

methamphetamine,” the State does not assert that the powder was tested or

weighed or cite us to the record references where it was. Our review of the

record does not show that the baggy of “white crystalized substance,” State’s

Exhibit 9A, was analyzed or tested. In addition, both appellant and Forester

were in the back seat of Spriegel’s squad car, and the testimony is sparse

about any link to one person rather than the other, except that it “looked as

if it was going to be more towards the center of the car, but it was closest to

Mr. Pierce.”

class=Section4>

Was appellant under the

influence of narcotics when arrested?

The State

does not rely on this factor, and there is no evidence that appellant was under

the influence of narcotics at the time of his arrest.

Was appellant in possession of

contraband when arrested?

Except for

the circumstantial evidence of the baggy of “white crystalized substance” found

underneath the seat in Spriegel’s squad car, there is no evidence of any

contraband found in appellant’s possession. The strongest evidentiary link to

“possession” of contraband, then, is the baggy of “methamphetamine,” State’s

Exhibit 9A, found underneath the back seat in the patrol car. As to State’s

Exhibit 9, consisting of some smaller Ziploc bags and a large Ziploc bag

containing a plastic box with samples, Budge testified only that he removed one

of the items and “put it in another container.” Even if these items contained

methamphetamine, the record is not clear as to the weight of State’s Exhibit 9A

or the items in State’s Exhibit 9. [13]

Did appellant make incriminating

statements when arrested?

The State

does not rely on this factor, and there is no evidence of any statements made by

appellant at the time of his arrest.

Did appellant attempt to flee?

The State

argues that there was evidence that appellant “behaved as a guilty party by

running through open fields and looking over his back with Forester, a suspect

who was actually observed by [Officer] Stapp at the residence when it was

raided.” The evidence as adduced does not show that appellant fled from the

residence. Although flight is ordinarily a circumstance from which an

“inference of guilt” may be drawn, here the evidence does not place appellant

at the crime scene or even in proximity to it. He was observed with Forester

approximately a half-mile from the residence an hour after the officers entered

the Buda residence. Other than the speeding citation and testimony that

appellant had lived at the Buda residence prior to June, there was no evidence

linking appellant to the searched premises much less to the contraband. One

officer testified that the two men were found within a fifteen-minute walk from

the Buda residence. With appellant’s prior record of drug offenses, the proof

is just as consistent with Forester alerting appellant to the search and the

presence of the officers in the vicinity. It is, in any event, not proof of

care, custody, control or management over the contraband.

Although

evidence of flight is admissible, it is not grounds for a presumption of guilt,

Solis v. State , 492 S.W.2d 561, 563 (Tex. Crim. App. 1973); Ysasaga

v. State , 444 S.W.2d 305, 308 (Tex. Crim. App. 1969), overruled on other

grounds , Chambers v. State , 711 S.W.2d 240 (Tex. Crim. App. 1986),

and it is not evidence that would logically support a finding of actual care,

custody, control or management beyond a reasonable doubt.

Did appellant make furtive

gestures?

The State

does not rely on this factor, and there is no proof of any furtive gestures

made by appellant.

Was there an odor of contraband?

The State

does not rely on this factor. The only testimony about odor came from Officer

Stapp who testified to the “unmistakable odor”of methamphetamine through the

open window of the residence. Stapp also testified that he did not notice any

stains on appellant’s clothing. Spriegel, the officer who transported

appellant and Forester to jail, did not recall smelling any odor of “amphetamine”

or observing any stains on appellant’s hands. The evidence regarding odor does

not serve to link appellant with possession of the contraband.

Was other contraband or drug

paraphernalia present?

The State

argues that appellant “owned the home where a Methamphetamine lab was being

run.” The record references cited by the State do not support this statement.

The State cites to the following testimony by Officer Villanueva regarding the

anonymous telephone call:

Q. Did the

caller indicate who owned that property?

A. The caller

told me that she was staying with a man by the name of John Pierce.

Although the officers corroborated

that the house itself existed, there is no evidence that anyone verified who

owned the house. As Villanueva testified, after receiving the anonymous call,

“We corroborated that the house did exist, that it was on that street, and that

there was a black Chevy Blazer.” [14]

Dolores Burnet testified that it was appellant’s home even though he was not

living there and she had not recently seen him there. In addition to

quantities of liquids and the finished product of methamphetamine, there were

numerous items seized from inside the home and in the brush behind the house

that would be probative on the issue of whether a methamphetamine lab was in

existence at the residence. But this evidence does not serve to link appellant

to possession of those items.

Did appellant own or have the

right of possession to the place where the drugs were found?

Asserting

that appellant “owned” the home, the State presented as evidence a single

“affirmative-link” document to connect appellant to the residence. [15]

The State argues in its brief: “[A] speeding ticket found on a desk in a

bedroom of Appellant’s house, evidenced Appellant’s actual presence in the

home.” The citation was dated December 4, 2004, more than six months before

the search. The testimony at trial showed that appellant had lived at the

residence, but had moved in May, and no longer lived there. The prosecutor

complained that appellant’s witnesses did not present evidence showing

appellant was living elsewhere, but it was the State’s burden to prove any

links to establish possession. There was no proof of ownership of the

residence, utility listings, or other indicia of ownership or possession. No

other documents were found or seized that connect appellant to the residence.

No evidence was introduced that showed any of the vehicles on the premises

belonged to appellant. The only evidence introduced regarding appellant’s vehicle

showed that he drove a truck and a silver Dodge. Neither vehicle was found on

the premises. Evidence showed only that people lived at the house from time to

time and moved from the house from time to time. Appellant was one of those

people.

Was the place(s) where the drugs

found enclosed?

The State

does not rely on this factor and we have previously discussed that some of the

items seized were in plain view. The drugs were not found in spaces or in

items that were linked in any manner to appellant.

Was appellant found in

possession of a large amount of cash?

The State

does not rely on this factor nor was there any evidence concerning any money

seized at the house or from appellant at the time of his arrest.

Did appellant’s conduct indicate

a consciousness of guilt?

The State

argues only that appellant’s attempt to flee was consciousness of guilt.

Having

examined the links urged by the State, we conclude that the evidence is

class=Section5>

legally insufficient to support the

jury’s finding beyond a reasonable doubt that appellant exercised actual care,

custody, control or management of the contraband. In contrast to Evans ,

here, the evidence of any links is sparse and insufficient. Cf. Evans ,

202 S.W.3d at 163 . No direct or compelling evidence exists to support any of

the linkage factors. The State’s evidence touches only on two of the many

possible linkage factors—the evidence of possible flight and the seizure of a

citation in appellant’s name in one of the bedrooms. Although flight is

ordinarily a circumstance from which an “inference of guilt” may be drawn, here

the evidence does not place appellant at the crime scene or even in proximity

to it. Nor does the traffic citation bridge the evidentiary gap. A single

item of evidence more than six-months’ old does not provide the “independent

facts and circumstances” that would show possession beyond a reasonable doubt.

See Poindexter , 153 S.W.3d at 405-06 ; Brown , 911 S.W.2d at

747-48 . Nor does the evidence that appellant at one time lived at the residence.

No witness placed appellant at the residence during the relevant time period.

When an accused is not in exclusive possession and control of the place where

contraband is found, it cannot be concluded that he had knowledge or control

over the contraband unless evidence connects him to the drugs to the requisite

level of confidence beyond a reasonable doubt. Poindexter , 153 S.W.3d

at 405-06 . While the number of applicable factors is not as important as the

logical force of those factors, they must establish the elements of the

offense.

The

evidence may well have established the existence of a methamphetamine

manufacturing operation with which certain of the persons present on the

premises could be connected. The jury was unable to reach a verdict on that

count as to appellant. A rational trier of fact could find that the State

proved that the aggregate weight of the methamphetamine in the residence

exceeded 200 grams, establishing this element of the offense of possession.

But the State

class=Section6>

was required to establish that

appellant exercised custody and control over the methamphetamine and that he

had knowledge that the substance in his possession was contraband. Except for

the discarded baggy found in the patrol car underneath the seat between appellant

and Forester, there is nothing with any “logical force” that would connect

appellant to the actual care, custody, control, or management over the

contraband. We conclude that these links are insufficient to connect appellant

to the contraband so that a rational fact finder could find the element of

possession beyond a reasonable doubt. Measured against the appropriate

standard of review, the evidence is legally insufficient to support appellant’s

conviction for possession of methamphetamine.

CONCLUSION

Accordingly,

we hold that the evidence offered by the State was legally insufficient to

support the jury’s verdict. Therefore, we sustain appellant’s first issue.

Because we sustain this issue, we need not reach appellant’s second issue

regarding factual sufficiency.

We reverse

the judgment of the trial court and render a judgment of acquittal.

__________________________________________

Jan

P. Patterson, Justice

Before Justices Patterson, Puryear

and Pemberton

Reversed and Acquittal Rendered

Filed: December 5, 2007

Do Not Publish

[1] The trial court declared

a mistrial as to a second count of possession of chemicals with intent to

manufacture methamphetamine.

[2] Evidently, the warrant

the officers were executing was not a felony arrest warrant.

[3] Appellant does not

challenge the officers’ entry of the house.

[4] The record does not show

what that description was.

[5] Although the warrant

itself is included as an exhibit, the affidavit incorporated therein is not.

Nevertheless, appellant does not challenge the warrant or the forced entry by

the officers.

[6] Villanueva testified

that he did not attempt to lift fingerprints from any of the items found at the

residence. Stapp could not recall whether the officers attempted to lift

fingerprints, but that none were recovered in the case. He testified that he

could only recall one instance in a narcotics case in the last ten years when

the officers were able to retrieve fingerprints. In response to the

prosecutor’s question, “And so in that 2,000 some-odd investigations, you’ve

gotten one good print that you can recall?” Stapp answered, “Right.” He

further testified that it depended on the situation whether the task force

attempted to obtain fingerprints from the evidence.

[7] Taylor testified that

the item seized was the traffic citation in appellant’s name on a desktop in a

bedroom designated Bedroom I, and that officers use “those items that identify

a person to link them with a residence, to identify them as a person that lives

at a specific residence.” Although Taylor testified that these documents often

include “driver’s licenses, utility bills, citations . . ., different types of

mailings, magazine[s], those types of things,” Taylor “did not find any

others.”

[8] On cross-examination,

Budge testified that the exhibit “real rough” contained 1.3 “grams of pure

meth” and 219 grams of adulterant.

[9] Officer Villanueva

testified that on the day in question Burnett told him that “Kenny” was in the

kitchen “cooking something.” The registration for one of the vehicles came

back to Kenneth Rictoby of Burnet, Texas. When an officer answered a cell

phone found near the house, the caller asked to speak with “Kenny.” There was

no evidence that any of the vehicles were registered to appellant.

[10] The indictment

charges appellant with possession on or about June 23, 2005, of methamphetamine

in an amount by aggregate weight, including adulterants and dilutants, of 200

grams or more but less than 400 grams.

[11] The

evidence showed that the officers found “a lot of letters” in the mail slot

with Evans’s name on them.

[12] The State

does not argue that the “on or about” language of the indictment was intended

to include this incident. Moreover, this evidence is more probative of the

manufacturing charge than of possession since there was no testimony of the

existence of any drugs.

[13] Budge’s lab

report was excluded from evidence on hearsay grounds, and Budge’s testimony

regarding the presence of methamphetamine speaks in terms of items , not exhibits .

Although Budge testified as to the weight of various items, including item nos.

1A, 1B, 2, 9, 15, 30 and 32, there is nothing in the record to cross-reference

the item number with the corresponding exhibit number. For example, item no. 9

is not the same as State’s Exhibit 9 or 9A because Budge testified that item

no. 9 was a bottle containing a “gray substance” that he was unable to open.

In

his final argument when he totaled the aggregate weight of the methamphetamine

in the various exhibits, the prosecutor asserted that the State had proved that

the exhibits included 264.5 grams of “substances including adulterants and

dilutants that contained a controlled substance methamphetamine,” which was

within the range alleged in the indictment. This total, the prosecutor argued,

included the methamphetamine found in the two bottles and the tray, but

“excludes the methamphetamine that was found in the patrol vehicle.” Appellant

does not challenge whether the baggy in the patrol car was tested and contained

quantities of methamphetamine; he argues only that the officers failed to test

the baggy for fingerprints and DNA.

[14] There was

also no evidence linking appellant to the black Chevy Blazer or any other

vehicle referred to by the anonymous caller. Although the caller claimed that

appellant was driving the Blazer, testimony at trial showed that appellant

drove a white, flatbed truck and a silver Dodge. The Dodge was evidently the

vehicle for which appellant received the citation. Later, when the officers

verified the ownership of the Blazer, they learned the vehicle was not

registered to appellant.

[15] One of the

officers testified that it was “normal procedure” to take only one

“affirmative-link” document even though there may be numerous items of evidence

linking an individual to the premises. Villanueva testified that he was not

aware of any personal items at the residence that belonged to appellant other

than the citation. Other than the citation, then, the officers found “nothing”

else belonging to appellant “that we took as evidence.”