# Remi Chidi Nwaogu v. State

> Texas Court of Appeals, 1st District (Houston) · April 11, 2013

URL: https://www.frixlaw.com/law-library/cases/3118848

## Case

- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** April 11, 2013
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3118848

## How later opinions describe it (automated extraction)

- holding that, because victim’s name was not an element of the offense, it did not have to be alleged in indictment

## Opinion text

Opinion issued April 11, 2013

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-11-00597-CR
NO. 01-11-00598-CR
———————————
REMI CHIDI NWAOGU, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court
Harris County, Texas
Trial Court Case No. 1285509 & 1285510

MEMORANDUM OPINION

The trial court found appellant Remi Chidi Nwaogu guilty of the first-degree

felony offense of possession with intent to deliver cocaine weighing between 4 and
200 grams 1 and of the third-degree felony offense of unlawful possession of a

firearm by a felon.2 Finding an enhancement allegation in each indictment to be

true, the trial court sentenced appellant to 25 years in prison for the possession-of-

cocaine-with-intent-to-deliver offense and 18 years in prison for the possession-of-

a-firearm-by-a-felon offense, with the sentences to run concurrently.

In each appeal, appellant raises two identical issues, contending (1) the

evidence was not sufficient “to corroborate the testimony of a covert witness” and

(2) the trial court unreasonably limited his right to cross-examine a State’s witness.

Appellant presents two additional issues in his appeal of the conviction for the

offense of possession of a firearm by a felon. He asserts (1) the trial court erred by

allowing the State to amend the indictment on the day of trial and (2) the evidence

was insufficient to link him to the firearm.

We affirm the judgment of conviction in each appellate cause.

Background

Relevant to this case, on November 12, 2010, a magistrate found probable

cause to support the issuance of a search and arrest warrant. The search warrant

was for the residence located at 11007 Great Hawk Lane, Houston, Texas. The

1
Trial court cause no. 1285509, appellate court cause no. 01–11–00597–CR; see
TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), 481.112(a), (d) (Vernon
2010).
2
Trial court cause no. 1285510, appellate court cause no. 01–11–00598–CR; see
TEX. PENAL CODE ANN. § 46.04(a), (e) (Vernon 2011).
2
arrest warrant was for “a black male who is only known as ‘Remmie,’ more fully

described as 25–30 years old, approximately 5’09” to 5’10” tall in height,

weighing approximately 220 to 230 pounds, with a dark complexion and tattoos on

both arms and both sides of his neck.” The magistrate based his probable-cause

determination on the affidavit of Officer R. Ybanez of the Houston Police

Department’s Narcotics Division.

In her affidavit, Officer Ybanez described the residence at 11007 Great

Hawk Lane. She also attested that it was “controlled by” a black male known as

“Remmie.” The officer gave a physical description of Remmie matching the

description set out in the arrest warrant.

Officer Ybanez recited that she had met with a confidential informant who

“was checked and found not to be in possession of any type of controlled

substance.” She stated that the confidential informant was given “buy money”

with which to purchase powder cocaine. The confidential informant went to 11007

Great Hawk Lane and purchased from Remmie a white powdery substance that the

officer field tested to be cocaine. Officer Ybanez testified that she and her partner,

Officer M. Ong, maintained surveillance of the residence. The confidential

informant reported that Remmie told him “to come back that he sells all the time.”

Officer Ybanez also stated that the confidential informant had reported seeing a

3
firearm on the coffee table at the residence. Officer Ybanez signed the affidavit on

the same date the magistrate issued the warrant.

Three days after its issuance, Officers Ybanez and Ong executed the

warrant. Before entering the house, the officers saw appellant leave the residence

in a white Acura. The officers stopped appellant and determined that he was the

subject of the arrest warrant. The officers brought appellant back to the house to

search the residence.

When they entered the residence, the officers found a woman, who they took

into custody. The officers proceeded with the search. A K–9 unit was also part of

the search team. The K–9 unit’s dog alerted positively to a shoe box on the floor

of the master bedroom closet. The shoebox contained 17 small plastic baggies

containing what a laboratory later determined to be 5.9 grams of white powder

cocaine and 5.3 grams of rock cocaine. Baggies containing 2.3 grams of

methamphetamine were also found in the shoebox. A handgun was located in the

drawer of the nightstand in the master bedroom.

Appellant was charged with the offense of possession with intent to deliver

cocaine weighing between 4 and 200 grams and with the offense of unlawful

possession of a firearm by a felon. In each case, appellant filed a motion to

suppress the evidence obtained as a result of the search and arrest warrant. He

asserted that the affidavit supporting the issuance of the warrant did not contain

4
sufficient facts to establish that probable cause existed for its issuance. Appellant

also alleged that the information in the affidavit was false.

Appellant waived his right to a jury in both cases. The motions to suppress

were carried with the trial on the merits. Among the State’s witnesses were

Officers Ybanez and Ong. They testified regarding the execution of the arrest and

search warrant, including the officers’ recovery of the narcotics from the bedroom

closet and the handgun from the nightstand. The K-9 officer testified regarding the

role he and his canine partner played in locating the narcotics. A criminologist

from the crime lab also testified. She confirmed that the substances contained in

the baggies recovered from the residence were tested and determined to be cocaine

and methamphetamine.

Appellant testified solely for purposes of the motion to suppress. He denied

selling cocaine to the confidential informant and denied knowledge of the

handgun.

The State offered the arrest and search warrant “specifically and only for the

purpose of the Motion to Suppress, not for the trial itself.” The trial court admitted

the warrant and affidavit “for the purposes of the suppression hearing.”

The trial court denied appellant’s motion to suppress in each case. The court

also found appellant guilty of each charged offense. The trial court sentenced

appellant to 25 years in prison for the offense of possession with intent to deliver

5
cocaine and to 18 years in prison for the offense of possession of a firearm by a

felon. These appeals followed.

Corroboration of Confidential Informant’s Allegations

In his first issue, presented in each appeal, appellant asserts that there is

insufficient evidence to corroborate the confidential informant’s allegation that he

purchased cocaine from appellant. Appellant relies on Code of Criminal Procedure

article 38.141. The article provides that a person may not be convicted of an

offense under Chapter 481 of the Health and Safety Code (Texas Controlled

Substances Act) on the testimony of someone who is not a licensed peace officer

or special investigator, but who is acting covertly for law enforcement, unless the

person’s testimony is corroborated by other evidence tending to connect the

defendant to the offense. See TEX. CODE CRIM. PROC. ANN. art. 38.141(a) (Vernon

2005). The corroboration requirement is similar to the corroboration required of an

accomplice witness. See id. art. 38.14 (Vernon 2005).

Appellant cites cases in which courts analyzed the sufficiency of the

corroborating evidence under article 38.141. In the cited cases, the confidential

informant, who had purchased illegal drugs from the defendant, actually testified at

trial. See, e.g., Malone v. State, 253 S.W.3d 253, 255 (Tex. Crim. App. 2008);

Jeffery v. State, 169 S.W.3d 439, 446–48 (Tex. App.—Texarkana 2005, pet. ref’d);

Young v. State, 95 S.W.3d 448, 449 (Tex. App.—Houston [1st Dist.] 2002, pet.

6
ref’d). The informant’s testimony in each of those cases was offered to support an

element of the charged offense.

Significantly, here, the confidential informant did not testify at trial. The

confidential informant’s allegations were used only to establish probable cause to

support issuance of the warrant. This is a critical distinction between the instant

cases and the cases cited by appellant. Unlike the cited cases, the controlled drug

buy here was not used to prove an element of the charged offense in either case.

Instead, the State prosecuted appellant for the cocaine and firearm found in his

residence on execution of the search warrant. Appellant was not prosecuted for

selling cocaine to the confidential informant. In addition, the record makes clear

that Officer Ybanez’s affidavit, containing the allegations regarding the

confidential informant’s purchase of cocaine from appellant, was admitted solely

for purposes of evaluating the motion to suppress.

In short, there was no confidential informant testimony to corroborate.

Thus, the requirements of article 38.141 have no application to the instant cases.

See TEX. CODE CRIM. PROC. ANN. art. 38.141(a). We conclude that appellant’s

assertion that the State was required to offer corroborating evidence to support the

confidential informant’s allegations is without merit.

We overrule appellant’s first issue in each appeal.

7
Limitation of Cross–Examination

In his second issue raised in each appeal, appellant contends “an

unreasonable restriction was placed on appellant when he was not allowed to

properly cross-examine [Officer Ybanez].” During trial, appellant asked Officer

Ybanez a number of questions regarding the details and circumstances related to

the controlled drug buy made by the confidential informant. Appellant asserts that

the trial court should have permitted him to ask Officer Ybanez about the

following topics:

• Did the officer give money to the confidential informant to purchase the
cocaine?

• Was a record made regarding the money?

• Was the money registered with the City of Houston as buy money?

• How much cocaine did the confidential informant obtain from appellant?

• Was the cocaine purchased by the confidential informant submitted to the
crime lab for testing?

• Was paperwork filled out for the cocaine that the confidential informant
brought from appellant’s house?

• Was “destruction paper work” submitted for the cocaine which the
confidential informant brought back from appellant’s house?

• What shoes was the confidential informant wearing?

• Was the confidential informant wearing glasses?

• Was the confidential informant wearing anything on his head?

8
The State objected to these questions on relevance grounds. The trial court

sustained the State’s objections.

The trial court has broad discretion to impose reasonable limits on cross-

examination to avoid harassment, prejudice, confusion of the issues, endangering

the witness, and the injection of cumulative or collateral evidence. Lopez v. State,

18 S.W.3d 220, 222 (Tex. Crim. App. 2000). Pursuant to Rule of Evidence 611,

which governs the interrogation and presentation of witnesses at trial, the trial

court has reasonable discretion to control the mode and order of interrogating

witnesses and presenting evidence, including whether to permit a witness to be

cross-examined on a matter that is relevant to an issue. See TEX. R. EVID. 611(a),

(b). Relevant evidence is evidence that has “any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” TEX. R. EVID. 401.

Evidence that is not relevant is not admissible. TEX. R. EVID. 402.

Appellant contends that he “was convicted on the uncorroborated

information” of the confidential informant. He asserts that he sought to question

Officer Ybanez “to establish the theory of his case that the [confidential informant]

was fabricating and never bought drugs from Appellant.”

9
Contrary to appellant’s assertions, the allegations made by the confidential

informant regarding the controlled drug buy were not introduced at trial to prove

any element of either the possession-of-cocaine-with-intent-to-deliver offense or

the possession-of-a-firearm-by-a-felon offense. In meeting its burden of proof for

each offense, the State relied on evidence related to the execution of the warrant

and concomitant recovery of the cocaine and firearm from appellant’s residence.

The State did not rely on events related to obtaining the warrant. Thus, the

disallowed questions were not relevant to the issue of guilt-innocence in either

case. See TEX. R. EVID. 401. We hold that the trial court did not abuse its

discretion when it sustained the State’s objections, limiting appellant’s cross-

examination of Officer Ybanez. 3

We overrule appellant’s second issue in each appeal.

Amendment of Indictment

Appellant presents a third and fourth issue in appellate cause number 01–11–

00598–CR, which is his appeal of the conviction for the possession-of-a-firearm-

by-a-felon offense. In his third issue, appellant contends that the trial court erred

when it permitted the State to amend the indictment on the day of trial.

3
As mentioned, appellant’s motions to suppress were carried with the trial.
Appellant offers no substantive argument or legal authority indicating that the
limitation of cross-examination effected the presentation of his motions to
suppress or how such evidence related to his motions to suppress.
10
The indictment originally read:

The duly organized Grand Jury of Harris County, Texas, presents in
the District Court of Harris County, Texas, that in Harris County,
Texas, REMI CHIDI NWAOGU, hereafter styled the defendant,
heretofore on or about NOVEMBER 15, 2010, did then and there
unlawfully, intentionally and knowingly possess a firearm after
having been convicted of the felony offense of POSSESSION OF A
CONTROLLED SUBSTANCE, in the District Court for the 179th
Judicial District, HARRIS County, Texas, in Cause Number 1102604
on July 13, 2009, and said possession of the firearm occurred before
the fifth anniversary of the Defendant’s release from supervision
under parole on MARCH 27, 2012.

At the start of trial, the following exchange occurred:

[Prosecutor]: The State is going to abandon some language as
surplusage in the first paragraph. Specifically, the last five words of
the first paragraph which are under parole on March 27, 2012. Period.
So it would just simply end after the word supervision. Period.

THE COURT: All right.

....

[Defense Counsel]: Objection.

THE COURT: What’s the basis of your objection?

[Defense Counsel]: Judge, the case has been pending—set for trial
today. The State made the choice as to what they wanted to charge
Mr. Nwaogu with. They decided what they thought was the
appropriate language. And that’s what we’ve done. That’s what
we’re carried forward here to hear and we’re set for trial today. I
think the State should be bound by what they charged Mr. Nwaogu
with and what they presented to a Grand Jury.

THE COURT: Do you think that the date of his release from
supervision on parole is a substantive element?

11
[Defense Counsel]: I think it obviously was important enough for the
State to allege it in the indictment, Judge. A Grand Jury certainly
took notice of that. I think the State should be bound by the proof in
regards to that today.

THE COURT: All right. Your objection is overruled. Interlineate the
indictment.

The record shows that, in the indictment, a line was drawn through the

words “under parole on March 27, 2012” and a notation, “abandoned as

surplusage,” was added.

An amendment to the charging instrument is subject to the limitations and

requirements set out in Code of Criminal Procedure article 28.10, which provides

as follows:

(a) After notice to the defendant, a matter of form or substance in an
indictment or information may be amended at any time before the date
the trial on the merits commences. On the request of the defendant,
the court shall allow the defendant not less than 10 days, or a shorter
period if requested by the defendant, to respond to the amended
indictment or information.

(b) A matter of form or substance in an indictment or information may
also be amended after the trial on the merits commences if the
defendant does not object.

(c) An indictment or information may not be amended over the
defendant’s objection as to form or substance if the amended
indictment or information charges the defendant with an additional or
different offense or if the substantial rights of the defendant are
prejudiced.

TEX. CODE CRIM. PROC. ANN. art. 28.10(c) (Vernon 2006).

12
The Court of Criminal Appeals has determined that an amendment to an

indictment is a change that affects the substance of the indictment, while an

abandonment, even if effected by a physical change in the indictment, does not

affect its substance. Eastep v. State, 941 S.W.2d 130, 132–33 (Tex. Crim. App.

1997), overruled on other grounds by Riney v. State, 28 S.W.3d 561 (Tex. Crim.

App. 2000). An alteration to the charging instrument that constitutes

abandonment, rather than amendment of the instrument, does not invoke the

requirements of article 28.10. See id. at 133.

The Court of Criminal Appeals has held that an abandonment of certain

types of language in an indictment does not amount to an amendment: (1)

abandonment of one or more alternative means of committing the alleged offense;

(2) abandonment of an allegation if the effect is to reduce the prosecution to a

lesser included offense; and (3) abandonment of surplusage. See id. at 133–35.

Surplusage is unnecessary language not legally essential to constitute the offense

alleged in the charging instrument. Id. at 134; see also Curry v. State, 30 S.W.3d

394, 399 (Tex. Crim. App. 2000).

To prove unlawful possession of a firearm by a felon, the State is required to

prove that the person (1) possessed a firearm (2) “after conviction and before the

fifth anniversary of the person’s release from confinement following conviction of

the felony or the person’s release from supervision under community supervision,

13
parole, or mandatory supervision, whichever date is later.” TEX. PENAL CODE

ANN. § 46.04(a)(1). The indictment in this case originally alleged appellant

“intentionally and knowingly possessed a firearm after having been convicted of

the felony offense of Possession Of A Controlled Substance, . . . on July 13, 2009,

and said possession of the firearm occurred before the fifth anniversary of the

Defendant’s release from supervision under parole on March 27, 2012.”

(emphasis added.)

Inclusion of the date on which appellant was released from parole was

unnecessary because the State was only required to allege the elements of the

offense. See Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002) (holding

that, because victim’s name was not an element of the offense, it did not have to be

alleged in indictment). Because the phrase “under parole on March 27, 2012” did

not furnish language legally necessary to constitute the offense of possession of a

firearm by a felon, we conclude that it was surplusage. Thus, the alteration to the

indictment constituted an abandonment and not an amendment. We hold that the

trial court did not err by granting the State’s motion to strike the phrase “under

parole on March 27, 2012.”

We overrule appellant’s third issue in appellate cause number 01–11–

00598–CR.

14
Sufficiency of the Evidence

In his fourth issue, appellant contends that the evidence was insufficient to

link or connect him to the handgun found in the nightstand in the master bedroom.

A. Standard of Review

This Court reviews sufficiency-of-the-evidence challenges applying the

same standard of review, regardless of whether an appellant presents the challenge

as a legal or a factual sufficiency challenge. See Ervin v. State, 331 S.W.3d 49,

53–55 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority

holding of Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)). This

standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789 (1979). See id. Pursuant to this standard, evidence is

insufficient to support a conviction if, considering all the record evidence in the

light most favorable to the verdict, no rational fact finder could have found that

each essential element of the charged offense was proven beyond a reasonable

doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; In re Winship, 397 U.S.

358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex.

Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

We can hold evidence to be insufficient under the Jackson standard in two

circumstances: (1) the record contains no evidence, or merely a “modicum” of

evidence, probative of an element of the offense, or (2) the evidence conclusively

15
establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S.

Ct. at 2786, 2789 n.11, 2789; see also Laster, 275 S.W.3d at 518; Williams, 235

S.W.3d at 750.

The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). An appellate court presumes that the fact finder resolved any conflicts

in the evidence in favor of the verdict and defers to that resolution, provided that

the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.

In viewing the record, direct and circumstantial evidence are treated equally;

circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor, and circumstantial evidence alone can be sufficient to establish guilt.

Clayton, 235 S.W.3d at 778. Finally, “[e]ach fact need not point directly and

independently to the guilt of the appellant, as long as the cumulative force of all

the incriminating circumstances is sufficient to support the conviction.” Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

B. Possession of a Firearm

“To establish unlawful possession of a firearm by a felon, the State must

show that the accused was previously convicted of a felony offense and possessed

16
a firearm after the conviction and before the fifth anniversary of his release from

confinement or from community supervision, parole, or mandatory supervision,

whichever date is later.” James v. State, 264 S.W.3d 215, 218 (Tex. App.—

Houston [1st Dist.] 2008, pet. ref’d); see TEX. PENAL CODE ANN. § 46.04(a)(1).

“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.” James, 264 S.W.3d at 218; see TEX. PENAL CODE

ANN. § 6.01(b) (Vernon 2011).

“If the firearm is not found on the defendant or is not in his exclusive

possession, the evidence must affirmatively link him to the firearm.” James, 264

S.W.3d at 218–19. The State may establish possession by proving links which

demonstrate that the defendant “was conscious of his connection with the weapon

and knew what it was.” Id. at 219. This rule protects the innocent bystander—

such as a relative, friend, or even stranger to the actual possessor—from conviction

merely because of his fortuitous proximity to a firearm belonging to someone else.

Jones v. State, 338 S.W.3d 725, 742 (Tex. App.—Houston [1st Dist.] 2011), aff’d,

364 S.W.3d 854 (Tex. Crim. App. 2012).

A nonexclusive list of factors that may establish a link between a defendant

and firearms found inside a house which was not in the defendant’s exclusive

control includes whether: (1) the defendant was present at the time of the search;

17
(2) the defendant was the owner of or had the right to control the location where

the firearm was found; (3) the firearm was in plain view; (4) the defendant was in

close proximity to and had access to the firearm; (5) firearms or other contraband

was found on the defendant; (6) the defendant attempted to flee; (7) conduct by the

defendant indicated a consciousness of guilt, including extreme nervousness or

furtive gestures; (8) the defendant had a special connection or relationship to the

firearm; (9) the place where the firearm was found was enclosed; and (10)

affirmative statements connected the defendant to the firearm, including

incriminating statements made by the defendant when arrested. Id. (citing

Williams v. State, 313 S.W.3d 393, 397–98 (Tex. App.—Houston [1st Dist.] 2009,

pet. ref’d); James, 264 S.W.3d at 219; Evans v. State, 202 S.W.3d 158, 162 & n.12

(Tex. Crim. App. 2006)).

The link between the defendant and the contraband need not be so strong

that it excludes every other outstanding reasonable hypothesis except the

defendant’s guilt. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).

No formula of facts exists to dictate a finding of links sufficient to support an

inference of knowing possession. See Taylor v. State, 106 S.W.3d 827, 831 (Tex.

App.—Dallas 2003, no pet.). In sum, it is not the number of links that supports a

fact finder’s verdict, rather, it is the logical force of the evidence, direct and

18
circumstantial, which is dispositive. See Jones, 338 S.W.3d at 742; see also Evans,

202 S.W.3d at 166.

C. Analysis

To support his challenge that insufficient evidence was presented to link him

to the recovered handgun, appellant points out that he shared the residence with the

woman who was at the residence when the police executed the search warrant.

The evidence showed that the master bedroom was shared by a male and a female.

The dresser on the left side of the bedroom contained female clothing. The

nightstand, from which the handgun was recovered, contained no items directly

linking appellant to the handgun. Sitting on top of the nightstand was a bottle of

lotion, a Hello Kitty doll, and an alarm clock.

Appellant also points out that the State presented no evidence regarding a

number of the link factors. Appellant relies on evidence indicating that the firearm

was not in plain view nor was it in close proximity to him when he was arrested.

The evidence showed that the police had not tested the firearm for fingerprints. In

addition, appellant did not attempt to flee nor did he make any incriminating

statements indicating that the firearm belonged to him.

Generally, appellant accurately cites the record. Nonetheless, appellant’s

analysis does not appropriately view the evidence in the light most favorable to the

verdict and improperly discounts evidence linking him to the handgun recovered

19
from the nightstand. In addition, the absence of various affirmative links does not

constitute evidence of innocence to be weighed against the affirmative links that

are present. James, 264 S.W.3d at 219. A factor that is of little or no value in one

case may be the turning point in another. See Nhem v. State, 129 S.W.3d 696, 699

(Tex. App.—Houston [1st Dist.] 2004, no pet.). When determining whether the

defendant knew that he possessed contraband, the fact finder is allowed to infer the

defendant’s knowledge from his acts, conduct, remarks, and from the surrounding

circumstances. See Krause v. State, 243 S.W.3d 95, 111 (Tex. App.—Houston [1st

Dist.] 2007, pet. ref’d).

Here, the State offered evidence linking appellant to the firearm. The

undisputed evidence showed that appellant lived at the residence. The State

introduced into evidence mail addressed to appellant at the residence and a one-

year lease agreement for the residence signed by appellant.

Immediately before the warrant was executed, appellant was seen leaving

the residence. The house had surveillance cameras mounted on the exterior.

Officer Ong testified that, in his experience, he has seen, many times, surveillance

cameras set up at houses that “sold dope.” In the kitchen of the house, the officers

found a substance known as “cut,” which, according to Officer Ybanez, is “a

substance that is usually added to cocaine to expand the volume of it for various

reasons.”

20
The police found cocaine and methamphetamine in a shoebox in the master

bedroom closet. The cocaine and methamphetamine were packaged in small

plastic baggies. The master bedroom closet, in which the drugs were found,

contained only men’s clothing and shoes; no women’s clothing were found in the

closet. A number of shoeboxes were also in the closet. All of the boxes were for

men’s shoes, including the shoebox containing the illegal drugs.

While the dresser on the left side of the master bedroom contained women’s

clothing, the chest of drawers on the right side contained men’s clothing. The

handgun was recovered from the drawer of the nightstand on the right side of the

bed. The gun was loaded with live rounds.

Officer Ong testified that, in his opinion, the purpose of the firearm

recovered from the master bedroom was to protect the drug trafficking taking

place. He formed this opinion based on the gun’s close proximity to the narcotics

stash. He explained that, in his training and experience, drug dealers often keep

weapons to close to their narcotics.

The circumstantial evidence outlined above, when viewed in combination,

constitutes sufficient evidence connecting appellant to the actual care, custody,

control or management of the firearm such that a jury could have reasonably

inferred that appellant knowingly possessed it. See Evans, 202 S.W.3d at 166.

Although appellant cites link factors on which the State presented no evidence, as

21
well as evidence that weighs in his favor, “[i]t is the logical force of the

circumstantial evidence, not the number of links, that supports a jury’s verdict.”

See id.

Viewing the evidence in a light most favorable to the verdict, we conclude

that a rational fact finder could have found beyond a reasonable doubt that

appellant knowingly possessed the firearm. See Jackson, 443 U.S. at 319, 99 S. Ct.

at 2789; Jones, 338 S.W.3d at 743. We hold that the evidence is sufficient to

support the judgment of conviction for the offense of possession of a firearm by a

felon.

We overrule appellant’s fourth issue in appellate cause number 01–11–

00598–CR.

Conclusion

We affirm the judgment of conviction in appellate cause number 01–11–

00597–CR and in appellate cause number 01–11–00598–CR.

Laura Carter Higley
Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).

22

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3118848. Public record. Not legal advice.