Jimmy Lee Butler v. State

Opinion issued January 23, 2018

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-16-00397-CR

———————————

JIMMY LEE BUTLER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Case No. 74634

MEMORANDUM OPINION ON REHEARING

Jimmy Lee Butler was charged with possession of a controlled substance

within 1,000 feet of an intermediate school, enhanced with two prior felony

convictions for possession of a controlled substance.1 The jury found Butler guilty

and assessed his punishment at seven years’ imprisonment and a $5,000 fine.

Butler contends on appeal that the trial court erred in (1) entering judgment

on the jury’s guilt finding because the evidence is legally insufficient to support

conviction, (2) denying his motion to suppress evidence obtained under a faulty

search warrant because the supporting affidavit failed to establish probable cause

and omitted material exculpatory evidence, and (3) instructing the jury to consider

whether Butler was guilty as a party to the commission of the charged offense. We

affirm.

BACKGROUND

After receiving a number of citizens’ complaints concerning suspicious

activity around Butler’s home, the City of Freeport Police Department assigned

Officer M. Christopoulos, a narcotics investigator and a member of the Brazoria

County Narcotics Task Force, to conduct surveillance there. Christopoulos spent

close to a year watching Butler’s home. He observed Butler at the home at all hours

of the day. As Butler walked around the home, Christopoulos frequently saw him

go in and out of the door to an enclosed patio.

1

We originally issued an opinion in this case on October 31, 2017. Butler moved

for rehearing. We deny his motion for rehearing, but withdraw our prior

opinion and judgment issue this opinion and judgment in their stead.

2

Approximately two weeks before executing the affidavit supporting a warrant

to search Butler’s residence, Christopoulos observed Latosha Houston move into the

home. Christopoulos had a confidential source, whom he had used on many

occasions in the past and found to be reliable, attempt to purchase narcotics at

the residence. The confidential source informed Christopoulos that he went inside

the residence and saw Houston in possession of crystal methamphetamine.

Within 72 hours of preparing the affidavit, Christopoulos saw a woman, later

identified as Jessica McEntire, drive to the residence, get out of the car, and have a

brief exchange with Houston. Shortly thereafter, McEntire was stopped and found

to possess methamphetamine.

In September 2014, a magistrate found probable cause existed to support the

issuance of a search warrant for Butler’s residence. In his affidavit supporting the

search warrant, Christopoulos named both Butler and Houston and listed crystal

methamphetamine, all narcotic paraphernalia, and any illegal drugs as items he was

looking for in the search.

The morning of the next day, Christopoulos and his team executed the search

warrant. Christopoulos testified that Butler was sitting on the couch when the

officers entered the residence. During the investigation, deadbolt locks were found

on Butler’s bedroom door and on the door to the enclosed patio room. Christopoulos

testified that, based on his training and experience, individuals involved in dealing

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drugs or possessing contraband may want to restrict access to other people who may

have access to the residence. Surveillance cameras were found in Butler’s room,

Houston’s room, and throughout the house, with a monitor appearing to be

connected to the surveillance cameras in the patio room. A digital scale was found

in Butler’s bedroom closet. Christopoulos testified that, based on his experience and

training, similar digital scales are used to weigh cocaine. Despite Christopoulos’s

suspicions about the deadbolt locks, surveillance cameras, and digital scale, illegal

drugs were not found in Butler’s room.

Officers did, however, find contraband—cocaine—in open view in the

enclosed patio room on top of mail addressed to Butler. Also in the patio room,

officers found marijuana, a marijuana cigarette, a pipe for smoking marijuana, a pipe

for smoking methamphetamine, and a stack of pornographic magazines containing

female images. Christopoulos testified that Butler regularly accessed the patio over

the year he surveilled the residence.

Undisputed evidence shows that Butler owned, lived in, and had the right to

possess the residence where the cocaine was found. Investigator Christopoulos

testified that his yearlong surveillance of the residence confirmed that Butler lived

there. The Brazoria County property records established that Butler purchased the

residence in 1999. Mail addressed to Butler was found in the residence. Butler’s

driver’s license was found in the residence and contained the same address.

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Prescription pill bottles labeled with Butler’s name also were found throughout the

residence.

DISCUSSION

I. Legal Sufficiency Challenge

Butler contends that a rational jury could not have found that he exercised

care, custody, control, or management of the cocaine, or that he was a party to

another’s commission of the charged offense. We consider whether legally

sufficient evidence supports these findings.

A. Standard of Review

We review the legal sufficiency of the evidence by considering all of the

evidence in the light most favorable to the jury’s verdict to determine 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, 318–19, 99 S. Ct. 2781, 2788–

89 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role

is that of a due process safeguard, ensuring only the rationality of the factfinder’s

finding of the essential elements of the offense beyond a reasonable doubt. See

Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We defer to the

factfinder’s responsibility to fairly resolve conflicts in testimony, weigh evidence,

and draw reasonable inferences from the facts. Williams, 235 S.W.3d at 750. As

the judge of the facts and credibility of the witnesses, the factfinder could choose to

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believe or not to believe the witnesses, or any portion of their testimony. Sharp v.

State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Jenkins v. State, 870 S.W.2d

626, 628 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). An appellate court

reviewing an sufficiency challenge is charged with the responsibility of ensuring that

the evidence presented supports the conclusion that the defendant committed the

criminal offense of which he is accused. Williams, 235 S.W.3d at 750. The appellate

court determines whether the necessary inferences are reasonable based on the

combined and cumulative force of all the evidence when viewed in the light most

favorable to the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007)).

When the record supports conflicting inferences, an appellate court presumes that

the factfinder resolved the conflicts in favor of the prosecution and therefore defers

to that determination. Id.; see Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. An

appellate court likewise defers to the factfinder’s evaluation of the credibility of the

evidence and weight to give the evidence. Gonzalez v. State, 337 S.W.3d 473, 479

(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Williams, 235 S.W.3d

at 750). Direct and circumstantial evidence are treated equally: circumstantial

evidence can be as probative as direct evidence and circumstantial evidence alone

can be sufficient to establish guilt. Id. (citing Clayton, 235 S.W.3d at 778).

6

B. Sufficient evidence affirmatively links Butler to the contraband.

1. Affirmative links as proof of possession

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

beyond a reasonable doubt that the defendant exercised control, custody, management,

or care over the substance, and that the accused knew the substance was

contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); see

TEX. HEALTH & SAFETY CODE § 481.115(a) (“[A] person commits an offense if

the person knowingly or intentionally possesses a controlled substance listed in

Penalty Group 1 . . . .”). Possession of the contraband need not be exclusive and

evidence that shows the accused jointly possessed the contraband with another is

sufficient. See McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985).

Whether the evidence is direct or circumstantial, it must establish that the

accused’s connection with the drug was more than just fortuitous. Poindexter, 153

S.W.3d at 405–06; Wiley v. State, 388 S.W.3d 807, 813 (Tex. App.—Houston [1st

Dist.] 2013, pet. ref’d). This is the “affirmative links” rule. Poindexter, 153 S.W.3d

at 406 (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)). This

rule is designed to protect an innocent bystander from conviction based solely upon

fortuitous proximity to someone else’s drugs. Id. It recognizes that “[w]hen the

accused 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

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contraband unless there are additional independent facts and circumstances which

affirmatively link the accused to the contraband.” Deshong v. State, 625 S.W.2d

327, 329 (Tex. Crim. App. 1981); see also Poindexter, 153 S.W.3d at 406.

The affirmative link can be established by additional facts and circumstances

that indicate the accused’s knowledge and control of the contraband. Deshong, 625

S.W.2d at 329. The Court of Criminal Appeals has endorsed the following list of

affirmative links:

(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 narcotics; (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.

Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006); Burrell v. State,

445 S.W.3d 761, 765 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). The State

need not prove all of these factors. See James v. State, 264 S.W.3d 215, 219 (Tex.

App.—Houston [1st Dist.] 2008, pet. ref’d). It is not the number of links that is

dispositive, but the cumulative logical force of the evidence. Evans, 202 S.W.3d at

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162; James, 264 S.W.3d at 219. Each case must be examined on its own facts for

evidence of sufficient affirmative links. See Roberson v. State, 80 S.W.3d 730, 736

(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). A factor that contributes to

sufficiency in one case may be of little value under a different set of facts. Id. And,

the absence of some of the factors is not evidence of innocence that weighs against

the factors that are present. James, 264 S.W.3d at 219 (citing Hernandez v. State,

538 S.W.2d 127, 131 (Tex. Crim. App. 1976)).

2. Analysis

Butler contends that the evidence presented does not support a conclusion that

he exercised care, custody, control, or management of the cocaine, either

individually or as a party through Houston. Butler argues that although the house

belonged to him, he shared the home with Houston, and the evidence before the jury

shows that Houston exercised care, custody, control, and management over the

cocaine. The State responds that, despite Butler’s insistence that Houston

possessed the cocaine, the evidence was sufficient to support his conviction.

The evidence establishes multiple affirmative links between Butler and the

cocaine. The undisputed evidence shows that Butler owned, lived in, and had the

right to possess the residence where the cocaine was found. Investigator

Christopoulos testified that his yearlong surveillance of the residence confirmed that

Butler lived there. Christopoulos further testified that the Brazoria County property

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records showed that Butler purchased the residence in 1999. Butler’s driver’s

license contained the same address. The search of the residence yielded a number of

prescription pill bottles labeled with Butler’s name as well as mail addressed to

Butler at that residence. The only room that did not contain any drugs or drug

paraphernalia was painted pink and contained personal effects that appeared to

belong to a woman.

Butler was sitting inside on the couch when the officers entered the house.

The cocaine was found in the enclosed patio room, which could be accessed

through an outside door with a locking latch similar to that used on Butler’s bedroom

door. See Torres v. State, 466 S.W.3d 329, 333 (Tex. App.— Houston [14th Dist.]

2015, no pet.) (“[T]he contraband was enclosed as it was found in the residence, a

location not generally accessible to the public.”) (citing Gregory v. State, 159

S.W.3d 254, 260 (Tex. App.—Beaumont 2005, pet. ref’d)). The cocaine was on

a table in plain view, on top of mail addressed to Butler. See Hughes v. State, 612

S.W.2d 581, 582 (Tex. Crim. App. 1981) (marijuana found on coffee table in

enclosed patio area was in plain view); Deshong, 625 S.W.2d at 328, 330 (marijuana

found on driver’s side floorboard was in plain view once officer opened car door);

see also Douglas v. State, 794 S.W.2d 98, 100 (Tex. App.—Houston [1st Dist.] 1990,

pet. ref’d) (small amount of marijuana found on bed in one-bedroom apartment

was in “open view”).

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In the patio room where the officers found the cocaine, they also found

marijuana; a marijuana cigarette; a pipe for smoking marijuana and another for

smoking methamphetamine; a water bill and mail addressed to Butler; and a stack

of pornographic magazines containing female images. Christopoulos testified that

digital scales like the one found in Butler’s closet are used to weigh cocaine.

Christopoulous saw Butler access the patio numerous times over the year he

watched the residence.

We conclude that these affirmative links are sufficient to support the jury’s

finding that Butler possessed the contraband. See Robles v. State, 104 S.W.3d 649,

651–52 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (affirmative links were

sufficient despite absence of drug paraphernalia, money, weapons, and lack of

fingerprint analysis on bottle where contraband was found where appellant matched

physical description of suspect in search warrant and was only person inside

residence when officers entered; appellant dropped baseball cap that was later found

to contain cocaine; appellant’s W-2 was found inside residence, and only men’s

clothing was found in the apartment even though woman’s name was on lease);

Coleman v. State, 113 S.W.3d 496, 501 (Tex. App.—Houston [1st Dist.] 2003) (links

sufficient where appellant rented and had key to house, lived alone, had utilities

registered in his name; mail found in search was addressed to appellant; appellant’s

identification, contraband and money were found together in enclosed place; and

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other contraband was found in other areas of house), aff’d, 145 S.W.3d 649 (Tex.

Crim. App. 2004); see also Stubblefield v. State, 79 S.W.3d 171, 174–75 (Tex.

App.—Texarkana 2002, pet. ref’d) (affirmative links sufficient to support jury’s

finding that appellant possessed contraband where appellant had been living in house

for at least two weeks, was lying on couch in home when officers entered, cocaine

was in plain view on nearby coffee table, and marijuana and drug paraphernalia were

found throughout house, even though appellant did not appear to be under the

influence, did not attempt to flee, and did not make incriminating or furtive gestures

during search).

Butler contends that a rational jury could not find him guilty of the charged

offense, pointing out that other factors show no link between him and the narcotics.

These include (1) no evidence that he was under the influence at the time of arrest;

he made no attempt to flee and made no incriminating statements or furtive

gestures during the search; and (3) no contraband, currency, or weapon was found

on his person. Our review, however, does not focus on the absence of particular

links, but the logical force that the existing links have in establishing the elements

of the offense. See Evans, 202 S.W.3d at 166 (holding that sufficient evidence

connected appellant to care, custody, control or management of cocaine when

viewing evidence “in combination and its sum total”); see also Burrell, 445 S.W.3d

at 766 (citing Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.—Houston [1st

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Dist.] 1994, pet. ref’d)) (rejecting appellant’s argument that evidence of many

affirmative links was absent and finding sufficient affirmative links where

appellant lived in residence where cocaine was found, appeared concerned

about being linked to that residence, made statements and took actions shortly after

arrest that showed consciousness of guilt, and recognized bag that contained

cocaine); 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”); Gant v. State,

116 S.W.3d 124, 132–33 (Tex. App.—Tyler 2003, pet. ref’d) (holding

evidence sufficient to support verdict where appellant argued seven links were not

present and noting that number of links present is not as important as degree to

which they tend to link defendant to contraband).

Viewing the evidence in the light most favorable to the jury’s verdict, we hold

that legally sufficient evidence connects Butler to the cocaine and, as a result,

a rational factfinder could have found beyond a reasonable doubt that Butler

exercised care, custody, control, or management over the cocaine knowing that it

was contraband.2 See Hill v. State, 755 S.W.2d 197, 201 (Tex. App.—Houston

[14th Dist.] 1988, pet. ref’d) (holding that sufficient affirmative links connected

2

This holding obviates the need to address Butler’s contention that legally

insufficient evidence supports the jury’s guilty finding under the theory that Butler

was a party to Houston’s conduct.

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appellant to cocaine where appellant admitted apartment was his, crack cocaine

was found in plain view in one bedroom as well as on surfaces throughout

apartment, appellant was present when search was conducted, and appellant

admitted to officers that he should not have had cocaine in apartment); Watson v.

State, 861 S.W.2d 410, 415–16 (Tex. App.—Beaumont 1993, pet. ref’d) (evidence

sufficient where appellant was found alone in motel room where contraband

was found, contraband was found inside chest of drawers in room and was

accessible to appellant, and crack pipe was in plain view, despite evidence that

contraband itself was not in plain view, no strong odors were detected, appellant did

not indicate consciousness of guilt, appellant was not under the influence when

search occurred, no contraband found on appellant’s person, appellant did not

attempt to flee, and appellant did not make any self-incriminating statement); see

also Evans, 202 S.W.3d at 166 (holding that evidence was sufficient to support jury’s

finding that appellant knowingly possessed cocaine where evidence showed

appellant was found alone in residence, cocaine was in plain view on table, and

appellant received mail at house, immediately knew why police came to residence,

and was carrying $160 cash despite being unemployed).

II. The trial court did not err in denying Butler’s motion to suppress.

Butler contends that the trial court erred in denying his motion to suppress the

evidence obtained during the search of his residence because the officer’s affidavit

14

lacked probable cause and because the affidavit omitted material exculpatory

evidence. We consider each contention in turn.

A. Probable cause supported the warrant’s issuance.

We apply a bifurcated standard to review a trial court’s denial of a motion

to suppress. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013)

(citing Valtierra v. State, 310 S.W.3d 442, 447–48 (Tex. Crim. App. 2010)). When

determining probable cause to support the issuance of a search warrant, the trial court

is constrained to reviewing the four corners of the supporting affidavit, which we

“interpret . . . in a commonsensical and realistic manner, recognizing that the

magistrate may draw reasonable inferences.” State v. McLain, 337 S.W.3d 268, 271

(Tex. Crim. App. 2011). “When in doubt, we defer to all reasonable inferences that

the magistrate could have made.” Id. (quoting Rodriguez v. State, 232 S.W.3d 55,

61 (Tex. Crim. App. 2007)); Jones v. State, 338 S.W.3d 725, 733 (Tex. App.—

Houston [1st Dist.] 2011), aff’d, 364 S.W.3d 854 (Tex. Crim. App. 2012).

A search warrant may not issue unless police present an affidavit setting forth

sufficient facts to show that probable cause exists for its issuance. TEX. CODE CRIM.

PROC. art. 18.01(b). The affidavit must show that:

(1) a specific offense has been committed,

(2) the specifically described property or items that are to be searched

for or seized constitute evidence of that offense or evidence that

a particular person committed that offense, and

15

(3) the property or items constituting evidence to be searched for or

seized are located at or on the particular person, place, or thing to

be searched.

Id. art. 18.01(c). Probable cause exists if, under the totality of the circumstances,

there is a “fair probability” or “substantial chance” that contraband or evidence of

a crime will be found at the specified location. Flores v. State, 319 S.W.3d 697,

702 (Tex. Crim. App. 2010) (citing Illinois v. Gates, 462 U.S. 213, 238, 243 n.13,

103 S. Ct. 2317, 2332, 2335 n.13 (1983)).

Butler claims that the warrant was defective because (1) it does not state that

suspicious drug activity occurred at Butler’s residence; (2) it does not state sufficient

facts to make clear that the drugs found in McEntire’s car were purchased during the

transaction at Butler’s house, which occurred shortly before McEntire was stopped;

and (3) while the affidavit recites that Christopoulos received the information within

72 hours of the affidavit’s execution, it does not make clear whether the confidential

informant obtained the information within 72 hours of the affidavit’s execution.

With respect to the timing of the confidential source information, Butler

acknowledges that in State v. McLain, the Court of Criminal Appeals upheld the

magistrate’s finding of probable cause on a similarly worded affidavit even though

the “statement, read literally, fails to clearly indicate exactly when the informant

observed Appellee in possession of the methamphetamine . . . .” 337 S.W.3d at

273. Butler contends, however, that McLain is distinguishable. There, he points

16

out, the facts supporting probable cause, gleaned following an extensive

investigation, included:

(1) multiple anonymous reports that the suspect was selling and storing

methamphetamine;

(2) the officer’s prior knowledge of the suspect as a methamphetamine

user;

(3) observation of traffic at the residence, particularly at night, which

the officer identified as a sign of drug trafficking;

(4) the use of multiple confidential informants, whom the officer had

found reliable in the past, who provided information about how the

suspect took payment and where he hid contraband at the residence.

Id. at 269–70.

We find the circumstances that supported probable cause in McLain more like

the ones here than different from them. Christopoulos’s affidavit summarizes

his seven years’ experience as a narcotics investigator. Based on his training

and experience, Christopoulos averred that over the past several months, he had

received information about Butler’s involvement in the distribution of illegal

narcotics and had previously conducted a narcotics investigation of Butler,

which resulted in Butler’s prior conviction for possession of a controlled

substance. Christopoulos further declared that he had “personally observed Butler

enter and exit the suspected residence on a daily basis,” which can reasonably be

read as supporting his reason to believe that methamphetamine and other

contraband could be found at Butler’s residence. Like the affidavit in McLain,

17

Christopoulos’s affidavit states that the confidential informant from whom he

received information concerning Butler’s possession of methamphetamine had

provided reliable information in the past, that the informant had assisted

Christopoulos with many prior narcotics investigations, and had in the past

provided information supporting search warrants that, when executed, led to the

seizure of narcotics.

McLain also disposes of Butler’s contention that the affidavit is defective

because it does not specify that the confidential informant both obtained the

information and provided it to Christopoulos within 72 hours of the affidavit’s

execution. The Court of Criminal Appeals in McLain, considering virtually the

same language, held that, when read with the proper deference, the affidavit

before it supported the magistrate’s probable cause determination. See id. at

273. As in McLain, the reference in Christopoulos’s affidavit to information

received from the confidential source “within 72 hours of today’s date” supports a

reasonable inference that the informant saw narcotics inside Butler’s home within

that period.

We hold that the affidavit demonstrates a fair probability that a search

of Butler’s residence would result in the discovery of methamphetamine and

other contraband. State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012).

18

B. The affidavit is not invalid under Franks v. Delaware

Butler next contends that Christopoulos’s affidavit omits material

exculpatory information, thereby rendering it invalid under Franks v. Delaware.

438 U.S. 154, 155–56, 98 S. Ct 2674, 2676 (1978); see Blake v. State, 125 S.W.3d

717, 724 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (holding that Franks

exclusionary rule applies equally to allegations of material omission as it does

to those of false statements). We review a trial court’s ruling on a Franks

suppression issue under a mixed standard of review that gives almost total

deference to the trial court’s ruling on questions of fact that depend upon

evaluations of credibility and demeanor, but reviews de novo the application of

the law. Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002);

Jones, 338 S.W.3d at 739. Though this same mixed standard of review applies

to an alleged probable-cause deficiency, in deciding a Franks motion, the court

may look beyond the four corners of the warrant affidavit and consider evidence

offered by the movant “because this attack on the sufficiency of the affidavit arises

from claims that it contains false statements.” Jones, 338 S.W.3d at 739 (citing,

inter alia, Franks, 438 U.S. at 155–56, 98 S. Ct. at 2676).

During surveillance, Christopoulos observed a vehicle driven by McEntire

pull up to Butler’s residence. McEntire parked the car and met briefly with Houston.

Houston went back into the residence and McEntire drove away. Christopoulos

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asked the Freeport Police Department to conduct a traffic stop on McEntire’s

vehicle. Freeport officers stopped McEntire and recovered a small plastic bag

of crystal methamphetamine along with a pipe and syringes.

At the Franks hearing, Butler argued that the warrant was invalid because

Christopoulos’s affidavit did not mention that McEntire denied having recently

purchased the drugs found in her car during the traffic stop. Butler, however, did

not provide any evidence that Christopoulos intentionally or knowingly, with

reckless disregard for the truth, omitted McEntire’s statement from the affidavit.

Christopoulos relied on information from the Freeport officers concerning the stop;

he did not stop McEntire himself. And although the Freeport officers video-

recorded McEntire’s statement, Butler fails to show that Christopoulos ever saw the

video. As a result, Butler has not met Franks’s requirement that Christopoulos

intentionally or recklessly failed to mention McEntire’s denial in the affidavit.

Butler also has failed to show that his motion to suppress would have been

granted if McEntire’s statement had been included in the affidavit. See Jackson

v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). In addition to McEntire’s

stop, the affidavit lists numerous facts supporting probable cause. In light of these

other facts, Butler has not shown that the inclusion of McEntire’s statement

would render the affidavit, as a whole, insufficient to show probable cause. See

Volk v. State, Nos. 01-07-00265-CR, 01-07-00266-CR, & 01-17-00326-CR, 2008

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WL 2854166, at *5 (Tex. App.—Houston [1st Dist.] July 24, 2008, pet. ref’d)

(mem. op., not designated for publication) (citing McKissick v. State, 209 S.W.3d

205, 213 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d)).

III. The charge properly instructed the jury on party liability.

Butler contends that the trial court erred by including a party liability

instruction in the charge because the jury heard no evidence that he solicited,

encouraged, directed, aided, or attempted to aid Houston in the possession of a

controlled substance.

The State is entitled to have the jury instructed on party liability if party

liability can legally apply to the charged offense and is supported by the evidence.

In re State ex rel. Weeks, 391 S.W.3d 117, 124 (Tex. Crim. App. 2013). Under

party liability, a person is criminally responsible for an offense committed by

another if “acting with the intent to promote or assist the commission of the offense,

he solicits, encourages, directs, aids, or attempts to aid the other person to commit

the offense.” TEX. PENAL CODE § 7.02(a)(2). Mere presence at the scene of a crime

does not make one a party to the crime. See Thompson v. State, 697 S.W.2d 413,

417 (Tex. Crim. App. 1985). The circumstances, however, may permit a

reasonable inference that the defendant participated in a criminal offense.

Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987).

21

Here, the circumstances permit a reasonable inference that Butler assisted

Houston in gaining possession of the methamphetamine. Butler owned the

residence where Houston was seen with the methamphetamine, and he and Houston

shared the areas in the home where the drugs were found. Because we determine

that there was no error in the jury charge, we need not consider whether there was

harm.

CONCLUSION

We affirm the judgment of the trial court.

Jane Bland

Justice

Panel consists of Justices Jennings, Bland, and Brown. Do

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

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