# Bryant Williams v. State

> Texas Court of Appeals, 1st District (Houston) · June 21, 2012

URL: https://www.frixlaw.com/law-library/cases/3123129

## Case

- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** June 21, 2012
- **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/3123129

## How later opinions describe it (automated extraction)

- holding that drugs in plain view may serve as affirmative link between appellant and drugs
- observing that ―we give exclusive effect of a specific provision over a more general provision . . . when the two irreconcilably conflict‖
- holding that conduct of defendant indicating consciousness of guilt may serve to link defendant to drugs
- holding that duty of reviewing court is simply to determine whether, considering 27 totality of circumstances, magistrate had substantial basis for concluding that probable cause existed to support issuance of warrant
- holding that State need not ―exclude every reasonable hypothesis other than the defendant‘s guilt, but it must show facts and circumstances that, viewed in the totality of the circumstances, indicate the defendant‘s knowledge and control over the drugs‖

## Opinion text

Opinion issued June 21, 2012

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-11-00017-CR
NO. 01-11-00018-CR
———————————
BRYANT WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Case Nos. 08DCR049851 &08DCR049852

MEMORANDUM OPINION

A jury convicted appellant, Bryant Williams, of the felony offenses of

money laundering1 and possession with intent to deliver a controlled substance,

1
See TEX. PENAL CODE ANN. § 34.02 (Vernon 2011).
cocaine,in an amount over 400 grams, in a drug-free zone,2 and it assessed his

punishment at nine years‘ confinement for money laundering and seventy-three

years‘ confinement and a $70,000 fine for possession with intent to deliver.3 In

three issues, appellant argues that (1) the evidence supporting his convictions was

insufficient; (2) the trial court erred in denying his motion to suppress evidence;

and (3) the trial court erred in ―stacking‖ his sentences rather than ordering them to

run concurrently.

We affirm.

Background

Pursuant to a search warrant, officers with the Texas Department of Public

Safety (―DPS‖) and the Rosenberg Police Department (―RPD‖) searched a home at

4820 Dogwood (―the Property‖) and discovered over 600 grams of cocaine,

$140,803 in currency, and various drug paraphernalia such as scales and baggies.

2
See TEX. HEALTH & SAFETY CODE ANN. § 481.102(3)(D) (Vernon 2010)
(providing that cocaine is penalty group one substance); id. § 481.112 (a), (f)
(Vernon 2010) (providing that manufacturing, delivery, or possession with intent
to deliver penalty group one substance in amount over 400 grams is punishable by
imprisonment for between 15 and 99 years or life and fine not to exceed
$250,000); id. § 481.134 (c) (Vernon Supp. 2011) (providing that minimum term
of imprisonment for offense punishable under section 481.112(f) is increased by
five years and maximum fine is doubled if offense is committed in, on, or within
1,000 feet of school).
3
The charge of money laundering was tried in trial court cause number
08DCR049851 and resulted in appeal number 01-11-00017-CR. The charge of
possession with intent to deliver a controlled substance was tried in trial court
cause number 08DCR049852 and resulted in appeal number 01-11-00018-CR.
2
The officers arrested appellant and charged him with money laundering and

possession with intent to deliver a controlled substance.

Appellant moved to suppress the evidence collected pursuant to the search of

the Property, arguing that the affidavit presented to the magistrate failed to

demonstrate the existence of probable cause for issuing the warrant. At the

suppression hearing, Sergeant P. Luna, a specialist in narcotics and drug trafficking

with the DPS drug division, testified regarding the facts that he included in the

affidavit he presented to the magistrate, and the trial court admitted the search

warrant into evidence without objection from appellant.Sergeant Lunatestified that

a confidential informant who had provided reliable information to his department

in the past first alerted him to appellant‘s possible involvement with narcotics at

the Property. Sergeant Luna began to testify regarding the confidential informant‘s

previous experience with his agency, but appellant objected on the ground that

such information was irrelevant because it was not included in the affidavit. The

trial court sustained the objection and admonished the State to ―just stick to what is

in the search warrant or the affidavit.‖

Sergeant Luna further testifiedthat, in his subsequent investigation, he

conducted a ―trash run‖ at the Property, which involved his examining trash

discarded by the property owner. He found ―a kilogram wrapping‖ with an interior

of clear plastic and an exterior of what appeared to be black electrical tape, and he

3
stated that the clear wrapping had a white residue on the inside ―which [was]

indicative of drug trafficking‖ in his experience. He testified that drug traffickers

typically wrap packages of cocaine in this manner to protect it and to conceal it.

He stated that the residue inside the wrapper recovered from the trash outside the

Property field-tested positive for cocaine. He testified that the trash also included

several letters addressed to appellant.

Sergeant Luna also discovered that several vehicles that were parked outside

the Property were registered to appellant. The same day that he conducted the

trash run, he contacted the canine unit of the RPD, and Officer D. Morales brought

a dog to the property. Officer Morales took the dog around the perimeter of the

house, and the dog alerted to the presence of narcotics at several locations around

the doors and windows of the home. Officer Morales reported these findings to

Sergeant Luna, who included them in the search-warrant affidavit.4 Sergeant Luna

testified that the magistrate issued the search warrant the next day.

On cross-examination, Sergeant Luna testified that the drugs and other

paraphernalia seized were located in the master bedroom, kitchen, and crawl space

above the garage, ―a fair distance‖ from the areas around the outside of the house

where the dog alerted to the presence of narcotics. Sergeant Luna also testified

that the officers did not receive permission from the property owner to bring a drug

4
Officer Morales also testified at the suppression hearing.
4
dog onto the Property. He further testified that the drug dog alerted to the presence

of narcotics in two of the vehicles outside the Property, but no drugs were

recovered from either vehicle. The trial court denied appellant‘s motion to

suppress.

At trial, Officer Morales and Sergeant Luna testified about the investigation

leading up to the search of the Property, the results of the search, and appellant‘s

arrest. Officer Morales testified that DPS contacted him to assist in an

investigation of the Property by bringing his dog to ―do a sniff of the outer

residence.‖ Officer Morales testified that he presented the area along the front of

the house, including the front door and windows leading to the garage area, to his

dog, who alerted to the presence of narcotics. Officer Morales also testified that

the officers requested that he conduct a traffic stop on appellant‘s vehicle for a

registration violation, which he did. Morales informed appellant that ―a search

warrant had been secured for his residence‖ and placed appellant under arrest for

the registration violation. He also had his dog sniff around the vehicle appellant

was driving at the time of his arrest, and the dog alerted to the presence of

narcotics in the car. However, appellant did not have any drugs on his person or in

his vehicle at the time of his arrest. Officer Morales then returned to the Property

with appellant and remained to help conduct the search.

5
Officer Morales testified that, while aiding with the search inside the

Property, his dog alerted to the presence of narcotics in the dresser, the nightstands,

and along the bed area of the largest bedroom. Morales further stated that the dog

alerted to the presence of narcotics on two other vehicles parked outside the

residence at the Property. On cross-examination, Officer Morales clarified that his

dog was trained to detect the ―odor of narcotics‖ and that a positive alert did not

mean that actual narcotics were present in that location at that exact time. He

stated that it was possible that an odor could linger for several days after some kind

of contact with narcotics.

Sergeant Luna testified that he had received information that appellant was

possibly involved with narcotics-related activity at the Property. Sergeant Luna

began his investigation by conducting surveillance of the Property, and he

observed appellant, appellant‘s girlfriend, Larissa Robinson, and their teenaged

songoing to and from the Property on multiple occasions. He also testified that

there were usually two or three vehicles parked in front of the Property and that all

three of the vehicles that were typically parked at the residence were registered to

appellant. He again testified regarding the trash run that resulted in the recovery of

what Luna identified as a wrapper used to protect and to mask the odor of a

kilogram of cocaine and several letters addressed to appellant at that Property.

6
Upon executing the search warrant, Sergeant Luna discovered narcotics in

the master bedroom, including both powdered cocaine and crack cocaine. Some

narcotics were in plain view on top of the dresser, and he discovered various sizes

of baggies and cellophane-wrapped packages of cocaine under the bed and in the

dresser. In searching the dresser, the bedroom closet, and under the bed, officers

also found approximately $72,000 in currency bundled in thousand-dollar

increments, baggies, measuring cups, a set of scales, duct tape, cellophane, and a

microwave. Sergeant Luna testified that, in his experience, drug traffickers use

measuring cups and a microwave to turn powdered cocaine into crack cocaine, and

they use the scales, baggies, cellophane, and duct tape to package large amounts of

cocaine into smaller amounts for distribution. He also testified that drug dealers

frequently keep their cash bundled in thousand-dollar increments to allow them to

keep track of the amount of money they have.

The officers discovered pictures of appellant and Robinson on the dresser,

male and female clothing in the room, and various bank statements and other items

in appellant‘s name. Using a photograph of the bedroom introduced by the State,

Luna also identified a bottle of prescription medication with the name ―Williams‖

on it.Sergeant Luna testified that he was aware of several other addresses appellant

used on various documents, such as the addresses where appellant‘s brother and

Robinson‘s mother lived, but he determined through his surveillance that appellant

7
lived with Robinson and their son at the Property. Sergeant Luna testified that, in

his experience, drug dealers frequently used several different addresses and

vehicles registered to different family members or addresses in an effort to

―distance‖ themselves from a property where they conduct narcotics-related

activities and to make it more difficult for law enforcement to locate them.

The search of the remainder of the Property uncovered approximately 3.5

grams of cocaine in the kitchen above the oven and a large bag of cash bundled in

thousand-dollar increments, totaling approximately $60,000, in the garage attic.

Sergeant Luna testified that the officers recovered more than $140,000 in cash and

approximately 600 grams of narcotics from the Property. Sergeant Luna stated

that, in his experience, that amount of drugs was indicative of intent to distribute

rather thanpossession for personal use. He testified that he had contact with

appellant at the time he executed the search warrant and that appellant seemed

―somber, kind of expecting this day to come. . . .‖

Sergeant Luna also testified about his investigation into appellant‘s financial

records. He discovered that appellant had been employed at a concrete plant for

approximately two years and eight months preceding his arrest and that, based on

records from the Texas Workforce Commission,he earned approximately $117,000

during the five years leading up to his arrest. He stated that Robinson‘s financial

records indicated that she made approximately $24,000 per year. He also testified

8
that appellant had a money-market account, a checking account, and a savings

account in his name and that Robinson had her own separate bank account.

DPS Agent J. Moreno assisted Sergeant Luna with the search of the Property

by collecting and photographing the evidence. He also testified regarding the

various items of evidence collected during the investigation and search of the

Property. Jonathan Salvador, a forensic chemist with DPS, testified about the

testing completed on the evidence taken from the Property. His lab report showed

that the total cocaine collected from the Property, not including wrappings or

containers, weighed 585.38 grams.

RPD Lieutenant A. Slater testified about his experience with narcotics

trafficking. Specifically, he stated that crack cocaine is generally more profitable

than powdered cocaine because crack is made by mixing cocaine with another inert

substance and water and cooking it, frequently using Pyrex measuring cups like the

ones recovered from the Property and a microwave. He testified that the amount of

cocaine recovered from the Property would be valued at approximately $9,500 to

$12,500 wholesale and that it could be re-packaged and sold for anywhere between

$28,311 in its pure powdered form and $169,866 in crack form. Lieutenant Slater

testified that the amounts of narcotics and the type of paraphernalia found on the

Property indicated someone who was a ―mid-level‖ dealer who distributed drugs to

street sellers and that he ―saw nothing that was indicative‖ of someone who

9
maintained a stash of drugs for personal use. He also testified that, in his

experience, it was common for drug dealers to ―distance themselves from the drugs

themselves‖ by utilizing ―what they call a stash house or a work house or a shop

that is distanced from an address that he claims‖ on a driver‘s license or other

official document.

Lieutenant Slater further testified that drug dealers typically do not deposit

their drug money in a bank or other financial institution, because depositing money

in a bank creates a ―paper trail‖ that might raise ―red flags‖ and is easy to follow

once an investigation is opened. Slater stated that money gained through illegal

activities is usually either kept in close proximity to the person who earned it or

hidden at a place thatthe earner ―feel[s] comfortable that nobody else can get to

and nobody else can find.‖ He also stated that drug dealers typically bundle money

in five-hundred or one-thousand-dollar stacks because its helps them keep track of

the money without having to use counting machines or other more complicated

methods. Finally, Lieutenant Slater testified that a drug dog alerted to the odor of

narcotics on the money taken from the Property.

Finally, the State admitted a certified copy of a public document filed in the

civil forfeiture case that was then pending against appellant. The document

contained requests for admission, and, in it, appellant admitted that he was the sole

owner of $141,103 seized on the day the officer executed the search warrant on the

10
Property. Appellant objected to the admission of the document on the ground that

it was ―fruits of the poisonous tree of . . . the illegal search and seizure of these

items.‖ The trial court overruled the objection and admitted the document.

The jury found appellant guilty of money laundering and possession with

intent to deliver.

At the punishment phase, the State presented the enhancement paragraph of

the indictment, which alleged that the offense of possession with intent to deliver

―was committed in a drug-free zone, to-wit, within a thousand feet of premises

owned, rented or leased by a school, to-wit, Terry High School. . . .‖ Appellant

pleaded ―not true‖ to the enhancement allegation. The State also presented

evidence of appellant‘s two prior convictions for possession with intent to deliver.

Lieutenant Slater testified regarding the location where the offense was

committed. He testified that ―anything a thousand feet from a public school

constitutes a drug-free zone‖ that can be presented to the city council for approval

and certification. He further testified that, once the drug-free zone is established, it

is a drug-free zone ―24/7‖ and that it does not matter whether school was in session

at the time the particular offense was committed. The trial court admitted the

Rosenberg City Council‘s resolution certifying the area around Terry High School

as a drug-free zone. Lieutenant Slater testified that his understanding, based on the

survey in the resolution certifying the drug-free zone around Terry High School,

11
was that the Property fell within the drug-free zone. Slater testified that the

Property was approximately five or six blocks from Terry High School.

The jury assessed appellant‘s punishment at nine years‘ confinement and no

fine for the money laundering conviction. The jury found that the offense of

possession with intent to deliver occurred in a drug-free zone and assessed

appellant‘s punishment for that offense at seventy-three years‘ confinement and a

fine of $70,000. In pronouncing appellant‘s sentence, the trial court stated that

appellant‘s sentences would run concurrently.

Three days later, on December 10, 2010, the trial court held a hearing on the

State‘s oral motion to change the trial court‘s ruling that the sentences would run

concurrently to enter judgment that the sentences would run consecutively. The

State argued that Health and Safety Code section 481.134(h) required that the

sentences run consecutively because appellant was convicted of offenses under two

different sections of the code. Appellant opposed the motion, arguing that Penal

Code section 3.03 provides that sentences for convictions for separate offenses

arising out of the same criminal episode and prosecuted together must run

concurrently. Appellant also argued that he agreed to the joinder of the offenses

believing that any sentences would run concurrently, and he objected to any

resentencing on double-jeopardy grounds. The trial court granted the State‘s

motion and pronounced the new sentence to appellant for the sentences to run

12
consecutively. The trial court then signed and entered the final judgment on the

conviction for money laundering on December 13, 2010, and on the conviction for

possession with intent to deliver on December 17, 2010.

Sufficiency of the Evidence

In his first issue, appellant argues that the State failed to present sufficient

evidence to support his convictions.

A. Standard of Review

When reviewing the sufficiency of the evidence, we view the evidence in the

light most favorable to the verdict to determine whether any rational fact finder

could have found the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); see also

Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010) (holding that Jackson

standard is only standard to use when determining sufficiency of evidence). The

jurors are the exclusive judges of the facts, the credibility of the witnesses, and the

weight to be given to the testimony. Brooks, 323 S.W.3d at 899; Bartlett v. State,

270 S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury may accept one version of

the facts and reject another, and it may reject any part of a witness‘s testimony. See

Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000), overruled on other

grounds,Laster v. State, 275 S.W.3d 512 (Tex.Crim.App.2009); see also

Henderson v. State, 29 S.W.3d 616, 623 (Tex.App.—Houston [1st Dist.] 2000, pet.

13
ref‘d) (stating that jury can choose to disbelieve witness even when witness‘s

testimony is uncontradicted). We may not re-evaluate the weight and credibility of

the evidence or substitute our judgment for that of the fact finder. Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We afford almost complete

deference to the jury‘s determinations of credibility. SeeLancon v. State, 253

S.W.3d 699, 705 (Tex. Crim. App. 2008). We resolve any inconsistencies in the

evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406

(Tex.Crim.App.2000); see also Clayton v. State, 235 S.W.3d 772, 778

(Tex.Crim.App.2007) (―When the record supports conflicting inferences, we

presume that the factfinder resolved the conflicts in favor of the prosecution and

therefore defer to that determination.‖).

B. Conviction for Possession with Intent to Deliver

Appellant argues that there was insufficient evidence linking him to the

contraband found in this case.

To demonstrate that appellant possessed cocaine with the intent to deliver,

the State was required to prove that appellant knowingly or intentionally possessed

cocaine in an amount greater than 400 grams with the intent to deliver the cocaine.

See TEX. HEALTH & SAFETY CODE ANN. §§481.102(3)(D), 481.112(a), (f) (Vernon

2010). The ―intent to deliver‖ element may be proved by circumstantial evidence,

including evidence that the accused possessed the contraband and the quantity of

14
the drugs possessed. Moreno v. State, 195 S.W.3d 321, 325 (Tex. App.—Houston

[14th Dist.] 2006, pet. ref‘d).

To prove unlawful possession of a controlled substance, the State must

demonstrate that (1) the defendant exercised care, custody, control, or management

over the substance; and (2) the defendant knew the matter possessed was

contraband. SeeTEX. HEALTH & SAFETY CODE ANN.§ 481.002(38) (Vernon 2010);

Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App.2005). The evidence,

either direct or circumstantial, ―must establish, to the requisite level of confidence,

that the accused‘s connection with the drug was more than just fortuitous.‖

Poindexter, 153 S.W.3d at 405–06 (quoting Brown v. State, 911 S.W.2d 744, 747

(Tex.Crim.App.1995)). This rule is designed ―to protect the innocent bystander

from conviction based solely upon his fortuitous proximity to someone else‘s

drugs.‖Id. at 406. Thus, when the defendant ―is not in exclusive possession of the

place where the substance is found, it cannot be concluded that the accused had

knowledge of and control over the contraband unless there are additional

independent facts and circumstances which affirmatively link the accused to the

contraband.‖ Id. (quoting Deshong v. State, 625 S.W.2d 327, 329

(Tex.Crim.App.1981)).

―The mere fact that a person other than the accused might have joint

possession of the premises does not require the State to prove that the defendant

15
had sole possession of the contraband, only that there are affirmative links between

the defendant and the drugs such that he, too, knew of the drugs and constructively

possessed them.‖ Id.; see also Cole v. State, 194 S.W.3d 538, 548 (Tex.App.—

Houston [1st Dist.] 2006, pet. ref‘d) (―The State need not prove exclusive

possession of the contraband for conviction.‖).The State need not ―exclude every

reasonable hypothesis other than the defendant‘s guilt, but it must show facts and

circumstances that, viewed in the totality of the circumstances, indicate the

defendant‘s knowledge and control over the drugs.‖ Armstrong v. State, 82 S.W.3d

444, 449 (Tex. App.—Austin 2002, pet. ref‘d).

Texas courts have identified a non-exclusive list of possible ―affirmative

links,‖ including (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 other contraband or drug

paraphernalia was present; (5) whether the defendant owned or had the right to

possess the place where the drugs were found; (6) whether the defendant was

found with a large amount of cash; and (7) whether the conduct of the defendant

indicated a consciousness of guilt.Evans v. State, 202 S.W.3d 158,162 n.12 (Tex.

Crim. App. 2006).Additional link factors include a defendant‘s ―lack of surprise or

concern‖ during an investigation and the amount of contraband discovered. See

Fields v. State, 932 S.W.2d 97, 104 (Tex. App.—Tyler 1996, pet. ref‘d) (holding

16
defendant‘s ―unnatural equanimity and lack of concern‖ is link factor);

Bethancourt–Rosales v. State, 50 S.W.3d 650, 655–56 (Tex. App.—Waco 2001,

pet. ref‘d) (same); Robinson v. State, 174 S.W.3d 320, 328–29 (Tex. App.—

Houston [1st Dist.] 2005, pet. ref‘d) (considering amount of contraband).

The Court of Criminal Appeals cautioned that these factors are ―not a litmus

test,‖ but are ―simply some factors which may circumstantially establish the legal

sufficiency of the evidence to prove a knowing ‗possession.‘‖ Evans, 202 S.W.3d

at 162 n.12. It is not the number of links that is dispositive, but rather the logical

force of all of the evidence, direct and circumstantial.Id. at 162.We need not

consider affirmative link factors that are absent from the evidence. Batiste v. State,

217 S.W.3d 74, 80 (Tex. App.—Houston [1st Dist.] 2006, no pet.)(citingHurtado

v. State, 881 S.W.2d 738, 745 (Tex. App.—Houston [1st Dist.] 1994, pet. ref‘d));

see also Satchell v. State, 321 S.W.3d 127, 134 (Tex. App.—Houston [1st Dist.]

2010, pet. ref‘d) (―The absence of various links does not constitute evidence of

innocence to be weighed against the links present.‖).

Here, Sergeant Luna and Agent Moreno testified that they observed

appellant, his long-time girlfriend Robinson, and their teenaged child come and go

from the Property on multiple occasions during their surveillance and concluded

that they all lived at the Property. The officers observed that the three vehicles that

were regularly parked outside the Property were all registered to appellant. They

17
also testified that they recovered bank statements, pictures of appellant and

Robinson on the dresser, male clothing in the bedroom, and various banks

statements and other items in appellant‘s name from the Property. Luna also

identified a bottle of prescription medication with the name ―Williams‖ in the

master bedroom. The State introduced appellant‘s admission from the civil

forfeiture case against him that he was the sole owner of the money recovered

during the search and of one of the vehicles that was parked in front of the

Property at the time the search warrant was executed. This evidence establishes

that appellant had been present at the location where the contraband was found on

multiple occasions and that he had the right to possess the place where the

contraband was found. See Evans, 202 S.W.3d at 162 n.12 (holding that

appellant‘s proximity to and accessibility of narcotics and whether appellant had

right to possess place where drugs were found are factors linking appellant to

drugs).

Furthermore, Sergeant Luna testified that some of the drugs were located in

plain sight in the master bedroom and that drugs and large amounts of cash were

found in several locations throughout the house. See id. (holding that drugs in

plain view may serve as affirmative link between appellant and drugs). Several

officers testified that the amount of drugs found—nearly 600 grams—exceeded

any amount usually possessed for personal use. See Robinson, 174 S.W.3d at 328–

18
29 (―The power of this factor generally increases as the amount of contraband

found increases. This factor, therefore, is more effective at establishing an

affirmative link when large quantities of contraband are involved.‖). In addition to

the narcotics found at the Property, the search also uncovered large amounts of

cash bundled in thousand-dollar increments, which Sergeant Luna and Lieutenant

Slater both testified was consistent with money obtained through drug dealing, and

other paraphernalia associated with converting powdered cocaine into crack

cocaine and breaking large amounts of cocaine down into smaller units for sale.

See Evans, 202 S.W.3d at 162 n.12 (holding that presence of other contraband or

drug paraphernalia and large amounts of cash may serve to link appellant to drugs).

Sergeant Luna also observed that appellant did not seem surprised when the

officers discovered narcotics and cash at the Property; rather, he seemed somber

and as if he were ―expecting this day to come.‖See id. (holding that conduct of

defendant indicating consciousness of guilt may serve to link defendant to drugs);

Fields, 932 S.W.2d at 104 (considering defendant‘s ―lack of concern‖ or surprise

during investigation as additional linking factor).

Appellant points out that specific affirmative links were not present: he was

not present when the drugs were found, but had to be detained and taken to the

residence by a police officer; he was not under the influence of drugs when he was

arrested and did not possess a weapon; and he did not make incriminating

19
statements, attempt to flee, or make furtive gestures. However, it is not the number

of affirmative links that matter, but the ―logical force‖ that they collectively create,

and we need not consider affirmative link factors that are absent from the evidence.

See Evans, 202 S.W.3d at 162; Batiste, 217 S.W.3d at 80.

We conclude that the direct and circumstantial evidencewas such that the

jury could have concluded that appellant‘s connection with the drugs was more

than just fortuitous.See Poindexter,153 S.W.3d at 405–06. Thus, the evidence was

sufficient to establish that there were affirmative links between appellant and the

drugs such that he knew of the drugs and constructively possessed them.See

Poindexter, 153 S.W.3d at 412; see also Cole, 194 S.W.3d at 548 (―The State need

not prove exclusive possession of the contraband for conviction.‖); Armstrong, 82

S.W.3d at 449 (holding that State need not ―exclude every reasonable hypothesis

other than the defendant‘s guilt, but it must show facts and circumstances that,

viewed in the totality of the circumstances, indicate the defendant‘s knowledge and

control over the drugs‖).

C. Conviction for Money Laundering

Appellant also argues that the evidence supporting his conviction for money

laundering was insufficient. A person commits the offense of money laundering if

he knowingly acquires or maintains an interest in, conceals, or possesses the

proceeds of criminal activity or if he conducts, supervises, or facilitates a

20
transaction involving the proceeds of criminal activity. TEX. PENAL CODE ANN. §

34.02(a)(1)–(2) (Vernon 2011). ―Criminal activity‖ includes any offense that is

classified as a felony in Texas. Id. § 34.01(1)(A) (Vernon 2011). ―Proceeds‖

means funds acquired directly or indirectly from, produced through, or realized

through an act. Id. § 34.01(4).

We have already concluded that the evidence was sufficient to establish that

appellant committed the felony offense of possession with intent to deliver more

than 400 grams of cocaine. The same evidence that we cited to affirm the jury‘s

conclusion that appellant possessed the cocaine also serves to connect appellant to

the more than $140,000 in cash seized from the Property, including appellant‘s

own admission in the related civil-forfeiture proceeding that he was the sole owner

of the currency. The testimony of Sergeant Luna and Lieutenant Slater indicated

that the amount of cash found, the way that it was bundled in thousand-dollar

increments, and the way in which it was hidden were indicative of money earned

through illegal activity such as drug dealing. Sergeant Luna also testified that

appellant had earned a total of only $117,000 through income reported by

employers to the Texas Workforce Commission over the five years preceding his

arrest in this case and that Robinson earned approximately $24,000 a year, and,

thus, it was highly unlikely that the $140,000 in cash discovered at the Property

was the result of any legitimate business.

21
We conclude that the evidence was sufficient to show that appellant

knowingly possessed the proceeds of criminal activity. See id. § 34.02(a)(1).

We overrule appellant‘s first issue.

Motion to Suppress

In his second issue, appellant argues that the trial court erred in denying his

motion to suppress.

A. Sufficiency of Record

Appellant argues that, because the supporting affidavit was not attached to

the search warrant entered into evidence by the State during the suppression

hearing, the trial court ―could not state that the magistrate had a substantial basis

for concluding that probable cause existed to support the issuance of the warrant

when viewing the affidavit because there is no affidavit.‖

Affidavits filed for the issuance of search warrants must provide the

magistrate with sufficient information to support an independent judgment that

probable cause exists for the warrant. McFarland v. State, 928 S.W.2d 482, 509

(Tex. Crim. App. 1996); Weems v. State, 167 S.W.3d 350, 356 (Tex. App.—

Houston [14th Dist.] 2005, pet. ref‘d). In determining the sufficiency of an

affidavit supporting a search warrant, a reviewing court is limited to the ―four

corners‖ of the affidavit. McFarland, 928 S.W.2d at 510; Weems, 167 S.W.3d at

356.

22
Generally, when the State seeks to justify an arrest on the basis of a warrant,

it is incumbent on the State to produce the warrant and its supporting affidavit for

inspection by the trial court. Paulea v. State, 278 S.W.3d 861, 864 (Tex. App.—

Houston [14th Dist.] 2009, pet. ref‘d) (citing Etheridge v. State, 903 S.W.2d 1, 19

(Tex. Crim. App. 1994)). ―‗This requirement is imposed so that the trial court may

inspect the documents and determine whether probable cause existed and ensure

that the arrestee‘s rights have been fully protected.‘‖ Id. (quoting Etheridge,903

S.W.2d at19).However, if a warrant is required to make a valid arrest, the State‘s

failure to produce it at a suppression hearing does not mandate suppression of

evidence. Id. (citing Weems, 167 S.W.3d at356).Rather, wedetermine whether the

State introduced sufficient evidence at the suppression hearing to provide the trial

court with an opportunity to determine whether probable cause existed for the

accused‘s arrest.Id.; see alsoEtheridge, 903 S.W.2d at 19 (holding that when there

was no testimony contradicting the existence of search warrant, the magistrate

testified that he issued warrant, and appellant had opportunity to cross-examine as

to validity of search warrant, State‘s failure to enter warrant itself into evidence did

not prevent trial court from determining that probable cause existed for appellant‘s

arrest); see also Dorsey v. State, 964 S.W.2d 701, 703–04 (Tex. App.—Houston

[14th Dist.] 1998, pet. ref‘d) (―[W]here probable cause is otherwise established

through evidence and testimony, the arrestee‘s rights are still protected.‖).

23
Here, the State introduced the search warrant into evidence without

objection from appellant, but the supporting probable-cause affidavit was not

attached. However, the warrant itself indicated that the affidavit existed: it

expressly incorporated ―the attached affidavit . . . show[ing] that Affiant has

probable cause for the belief expressed therein.‖ Appellant does not challenge that

the affidavit existed and, in fact, specifically stated during the suppression hearing

that the case ―involves a search warrant affidavit‖ that he believed did not establish

within its ―four corners‖ that the magistrate could have properly found the

existence of probable cause. See Etheridge, 903 S.W.2d at 19 (observing that

―there was no testimony contradicting the existence of arrest warrant‖ in

concluding that trial court had sufficient evidence to conclude probable cause

existed). Furthermore, the affiant, Sergeant Luna, testified extensively regarding

the contents of the affidavit and was subject to cross-examination by appellant.

See id. (observing that ―the magistrate testified, without objection, that he did in

fact issue an arrest warrant‖ and that ―[a]ppellant had the opportunity to cross-

examine the magistrate as to the validity of the arrest warrant‖); Dorsey, 964

S.W.2d at 704 (holding that when officer who provided affidavit testified at

hearing and appellant had opportunity to cross-examine and complaint contained

facts based on officer‘s affidavit, there was sufficient proof of probable cause for

trial court to deny motion to suppress).

24
Thus, we conclude that the State‘s failure to produce the affidavit at a

suppression hearing does not mandate suppression of the evidence; rather, wemust

examine the evidence that the State introduced and determine whether it was

sufficient to provide the trial court with an opportunity to determine whether

probable cause existed for the search. See Paulea, 278 S.W.3d at 864.

B. Standard of Review

Appellant argues that the affidavit was insufficient to support the search

warrant, and, thus, the trial court erred in denying his motion to suppress.

We review a trial court‘s ruling on a motion to suppress using a bifurcated

standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App.

2000); McKissick v. State, 209 S.W.3d 205, 211 (Tex. App.—Houston [1st Dist.]

2006, pet. ref‘d). We give almost total deference to the trial court‘s determination

of historical facts that depend on credibility, and we conduct a de novo review of

the trial court‘s application of the law to those facts, including the trial court‘s

application of the law of search of seizure and probable cause. Carmouche, 10

S.W.3d at 327. Our review of an affidavit in support of a search warrant, however,

is not de novo; rather, we give great deference to the magistrate‘s determination of

probable cause. Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983);

McKissick, 209 S.W.3d at 211.The test for determination of probable cause is

whether the magistrate had a substantial basis for concluding that a search would

25
uncover evidence of wrongdoing.Gates, 462 U.S. at 236, 103 S.Ct. at 2331;

McKissick, 209 S.W.3d at 211. Probable cause to support the issuance of a search

warrant exists when the facts submitted to the magistrate are sufficient to justify a

conclusion that the object of the search is probably on the premises to be searched

at the time the warrant is issued. Cassias v. State, 719 S.W.2d 585, 587 (Tex.

Crim. App. 1986); McKissick, 209 S.W.3d at 211.

To justify the issuance of a search warrant, the affidavit submitted in support

must set forth facts sufficient to establish probable cause that (1) a specific offense

has been committed; (2) the specifically described property or items to be searched

for or seized constitute evidence of that offense; and (3) the property or items

constituting such evidence is located at the particular place to be searched.TEX.

CODE CRIM. PROC. ANN. art.18.01(c) (VernonSupp. 2011); McKissick, 209 S.W.3d

at 211. Whether the facts mentioned in the affidavit are adequate to establish

probable cause depends on the totality of the circumstances. Ramos v. State, 934

S.W.2d 358, 362–63 (Tex.Crim.App.1996); McKissick, 209 S.W.3d at 211.

C. Sufficiency of the Affidavit to Establish Probable Cause

Here, Sergeant Luna testified regarding the facts he related in his affidavit.

He testified that he began his investigation based on information from a

confidential informant who had given reliable information to his agency in the

past. He testified that he conducted a trash run, in which he searched trash placed

26
on the curb in front of the Property and discovered a clear wrapper covered in

black electrical tape that he believed was consistent with the type of packaging

used to protect and conceal a kilogram of cocaine. The residue on this wrapper

field-tested positive for cocaine. He further testified that a trained drug dog alerted

to the odor of narcotics at multiple places along the front of the Property. Sergeant

Luna testified that he searched the trash and called in the drug dog on the same day

and that he drafted the affidavit and search warrant seeking to search the Property

and seize any drugs or other contraband located there on the very next day.

Thus, Luna‘s testimony regarding the contents of his affidavit submitted in

support of the search warrant established facts sufficient to demonstrate probable

cause that the offense of possession of cocaine had been committed at the specific

property that was the subject of the search warrant and that contraband items and

other paraphernalia constituting evidence of that offense were located at that

property. See TEX. CODE CRIM. PROC. ANN. art.18.01(c); McKissick, 209 S.W.3d

at 211. We conclude that probable cause to support the issuance of a search

warrant existed because the facts submitted to the magistrate—as represented by

Sergeant Luna‘s uncontested testimony—are sufficient to justify a conclusion that

narcotics and other contraband were probably on the Property at the time the

warrant was issued. Cassias, 719 S.W.2d at 587; McKissick, 209 S.W.3d at 211

(holding that duty of reviewing court is simply to determine whether, considering

27
totality of circumstances, magistrate had substantial basis for concluding that

probable cause existed to support issuance of warrant).

We overrule appellant‘s second issue.

Sentencing Error

In his third issue, appellant argues that the trial court erred in ordering that

his sentences run consecutively rather than ordering the sentences to run

concurrently. Specifically, he argues that they should run concurrently because the

State sought the joinder of the offenses and prosecuted them as one criminal

episode.

On appeal, appellant does not challenge the jury‘s finding that he committed

the offense of possession with intent to deliver a controlled substance in a drug-

free zone. Rather, he argues that the trial court abused its discretion by applying

Health and Safety Code section 481.134(h), addressing drug-free zones, in

determining whether his sentences should run consecutively or concurrently. He

argues that his sentence should be controlled by Penal Code section 3.03 and

Health and Safety Code section 481.132.5

5
Health and Safety Code section 481.132(d) provides that if a defendant is
convicted of ―more than one offense arising out of the same criminal episode‖
prosecuted in one trial, then the sentences for the defendant‘s convictions must run
concurrently. TEX. HEALTH & SAFETY CODE ANN. § 481.132(d) (Vernon 2010);
Williams v. State, 253 S.W.3d 673, 677 (Tex. Crim. App. 2007). Section
481.132(a) provides that ―criminal episode‖ means the commission of two or more
offenses under Chapter 481, the Texas Controlled Substances Act, under certain
28
We interpret a statute in accordance with the plain meaning of its language,

unless the language is ambiguous or the plain meaning leads to absurd results that

the legislature could not possibly have intended. Williams v. State, 253 S.W.3d

673, 677 (Tex. Crim. App. 2008);Thompson v. State, 236 S.W.3d 787, 792 (Tex.

Crim. App. 2007).

Penal Code section 3.03 requires that, except in circumstances not applicable

here, ―[w]hen an accused is found guilty of more than one offense arising out of

the same criminal episode prosecuted in a single criminal action, a sentence for

each offense for which he has been found guilty shall be pronounced‖ and such

sentences ―shall run concurrently.‖ TEX. PENAL CODE ANN. § 3.03 (Vernon 2010).

Health and Safety Code section 481.134(h) provides that ―[p]unishment that

is increased for a conviction for an offense listed under this section may not run

concurrently with punishment for a conviction under any other criminal statute.‖

TEX. HEALTH & SAFETY CODE ANN. § 481.134(h) (Vernon Supp. 2011). The Court

of Criminal Appeals has held:

It is apparent from the language of this statute that a conviction for an
offense listed anywhere within [section] 481.134 cannot run
concurrently with a conviction for an offense under any other criminal
statute. Just reading the statute under the auspices of common usage

circumstances. TEX. HEALTH & SAFETY CODE ANN. § 481.132(a). However,
appellant was only charged with one offense under Chapter 481—money
laundering is an offense under Penal Code section 34.02. Thus, Health and Safety
Code section 481.132(d) does not apply to appellant‘s case.

29
and grammar, ―any other criminal statute‖ means a criminal statute
not listed within [section] 481.134.

Williams, 253 S.W.3d at 678 (observing that ―we give exclusive effect of a specific

provision over a more general provision . . . when the two irreconcilably conflict‖)

(citing TEX. GOV‘T CODE ANN. § 311.026(b) (Vernon 2005)).

In Newman v. State, the Amarillo Court of Appeals addressed the conflict

between the provisions of Penal Code section 3.03 and Health and Safety Code

section 481.134(h) in a case where the appellant was convicted in the same trial for

possession of a controlled substance in a drug-free zone and for engaging in

organized criminal activity.268 S.W.3d 266, 268–69 (Tex. App.—Amarillo 2008,

pet. ref‘d).The Newman court ―follow[ed] the admonishment in Williams that the

specific must control over general‖ in concluding that, because section 481.134(h)

covered the specific circumstances in the case, ―the trial court had no option but to

order that the sentences run consecutively.‖ Id. at 269.

Here, appellant was convicted in one trial of an offense listed in section

481.134—possession with intent to deliver under section 481.112(f) within a drug-

free zone—and another offense under the Penal Code—money laundering. As in

Newman, we conclude that section 481.134 addresses the specific circumstances of

this case and must control over the more general provision in Penal Code section

3.03. See id. The plain language of section 481.134 provides that a conviction for

an offense listed anywhere within section 481.134 cannot run concurrently with a
30
conviction for an offense under any other criminal statute—i.e., a criminal statute

not listed in section 481.134, such as money laundering under Penal Code section

34.02. See TEX. HEALTH & SAFETY CODE ANN. § 481.134(h); Williams, 253

S.W.3d at 678.

We conclude that Health and Safety Code section 481.134(h) requires that

appellant‘s sentences run consecutively.

Appellant also argues that ―the trial court lacked authority to cumulate his

sentences more than 3 days after pronouncing his sentence . . . because the trial

court did not orally order cumulation when sentencing Appellant on December 7,

2010.‖ Appellant cites Ex Parte Madding, 70 S.W.3d 131 (Tex. Crim. App. 2002)

and State v. Aguilera, 165 S.W.3d 695 (Tex. Crim. App. 2005) to support his

contention.

In Aguilera, the trial court modified the defendant‘s sentence just a few

minutes after it had initially sentenced him and before it adjourned for the day.

165 S.W.3d at 697. The Court of Criminal Appeals held that the trial court acted

within its authority, stating:

At a minimum, a trial court retains plenary power to modify its
sentence if a motion for new trial or motion in arrest of judgment is
filed within 30 days of sentencing. We hold that a trial court also
retains plenary power to modify its sentence if, as in this case, the
modification is made on the same day as the assessment of the initial
sentence and before the court adjourns for the day. The re-sentencing
must be done in the presence of the defendant, his attorney, and
counsel for the state.
31
Id.at 697–98. The Court of Criminal Appeals also expressed its approval of other

cases in which the defendants were resentenced after the day of the original

sentencing. Id. at 698 n.7 (citing Junious v. State, 120 S.W.3d 413, 417 (Tex.

App.—Houston [14th Dist.] 2003, pet. ref‘d) (holding trial court was authorized to

alter appellant's sentence fifteen days after original sentencing but within time of

its plenary jurisdiction) and Ware v. State, 62 S.W.3d 344, 353–55 (Tex. App.—

Fort Worth 2001, pet. ref‘d) (holding trial court was authorized to correct mistake

in entering void judgment by resentencing defendant twelve days after original

sentencing)).

Furthermore, a court has power to correct, modify, vacate, or amend its own

rulings, including the sentence, within the time of its plenary jurisdiction.See

Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex. Crim. App. 1998) (holding that

―an order granting or denying a motion for new trial may be freely rescinded so

long as such action occurs within the 75 days provided by the rules‖); Meineke v.

State, 171 S.W.3d 551, 558 (Tex. App.—Houston [14th Dist.] 2005, pet. ref‘d)

(noting trial court can, in interest of judicial economy, exercise its plenary power to

correct illegal sentence by modifying, vacating or amending its rulings);

Junious,120 S.W.3d at 417 (holding trial court was authorized to alter appellant‘s

sentence within the time of its plenary jurisdiction).

32
Here, the trial court had not yet signed the final judgments at the time it

modified appellant‘s sentence, and neither party contests that the trial court had

plenary jurisdiction at the time it resentenced appellant, three days after the

original sentencing. The resentencing was done in the presence of appellant, his

attorney, and counsel for the State. See Aguilera,165 S.W.3d at 698; Madding, 70

S.W.3d at 136 (holding written judgment modifying sentence outside defendant‘s

presence and after oral pronouncement was not void but was reversible because

defendant‘s due process was violated). Furthermore, the Court of Criminal

Appeals expressly approved Ware, in which the Fort Worth Court of Appeals held

that the trial court was authorized to correct its mistake in entering a void judgment

by resentencing defendant twelve days after the original sentencing. See Aguilera,

165 S.W.3d at 698 n.7 (citing Ware, 62 S.W.3d at 353–55). Thus, we conclude

that the trial court had authority to correct its original, mistaken pronouncement

that appellant‘s sentences should run concurrently.

We overrule appellant‘s third issue.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes
Justice
33
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

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

34

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3123129. Public record. Not legal advice.