Rodney Nathaniel Boone v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00302-CR
RODNEY NATHANIEL BOONE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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In two issues that concern only evidentiary sufficiency, appellant Rodney
Nathaniel Boone appeals his second-degree felony conviction for possessing
while intending to deliver one gram or more but less than four grams of heroin. 2
We affirm.
1
See Tex. R. App. P. 47.4.
2
See Tex. Health & Safety Code Ann. §§ 481.102(2), .112(a), (c) (West
2010).
Background Facts
In July 2012, Fort Worth Police Department (FWPD) Officer Juan Sandoval
obtained a search warrant for a house. Officer Sandoval organized a team of
approximately twenty officers to execute the warrant. On an early evening, after
knocking on the house’s front door and receiving no response, the officers
opened the door by force and entered the house. Seconds later, while Officer
Sandoval stood in the backyard of the house, he saw six people, including
appellant, running out of the back door. 3 While fleeing, appellant dropped a clear
plastic baggie in the back room of the house.
Officer Sandoval found the baggie that appellant had dropped. In the
baggie and near it, Officer Sandoval saw several clear capsules containing a
brown powdery substance that he believed was heroin.
In the house, officers found another person who had possessed drugs,
more narcotics (heroin, cocaine, and Xanax) in the kitchen and bedroom areas of
the house, 4 a coffee grinder containing residue, a digital scale containing brown
residue, and two cell phones. Appellant said that one of the cell phones
belonged to him. The police did not find evidence on the phones that connected
anyone to the delivery or sale of drugs.
3
There were ten people in the house altogether, and the police eventually
arrested seven of them. Two of the seven had pending arrest warrants.
4
As explained below, the evidence connects heroin that the police found in
a bedroom to appellant.
2
When the police detained appellant, he had roughly $666. Specifically,
appellant had two $100 bills, one $50 bill, seven $20 bills, twelve $10 bills,
twenty-six $5 bills, twenty $1 bills, and over $5 in change. Officer Sandoval
believed that the amount of money that appellant had possessed was “consistent
with individuals who sell narcotics.” Also, Officer Sandoval believed that
appellant had possessed an amount of heroin that exceeded what he could
personally use.
The police arrested appellant. A grand jury indicted him with possessing
and intending to deliver one gram or more but less than four grams of heroin. He
retained counsel and filed several pretrial documents, including a request for a
jury trial and an election of the trial court to set his punishment if he was
convicted. At trial, he pled not guilty.
The jury convicted appellant of possessing the heroin while intending to
deliver it. 5 The trial court sentenced him to thirty years’ confinement after finding
that an enhancement paragraph contained in the indictment was true. 6 Appellant
brought this appeal.
5
A forensic scientist’s tests revealed that some of the capsules that the
police found in the house contained heroin. While Officer Sandoval testified that
he found approximately twenty capsules near the back of the house, the
evidence indicates that the forensic scientist received fourteen capsules that
came from that location and two that came from a bedroom.
6
This paragraph alleged that appellant had been previously convicted of
two felony drug offenses. Appellant pled true to the paragraph. The trial court’s
finding that the paragraph was true set his minimum punishment at twenty-five
years’ confinement. See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2013).
3
Evidentiary Sufficiency
In his two issues, appellant contends that the evidence is insufficient to
prove that he possessed and intended to deliver the heroin that the police found
upon executing the search warrant. In our due-process review of the sufficiency
of the evidence to support a conviction, we view all of the evidence in the light
most favorable to the verdict to determine whether any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v.
State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013). This standard gives full play
to the responsibility of the trier of fact to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Blackman v. State,
350 S.W.3d 588, 595 (Tex. Crim. App. 2011). We determine whether necessary
inferences supporting the verdict are reasonable based upon the cumulative
force of the evidence when viewed in the light most favorable to the verdict.
Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); see Temple v.
State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
To obtain appellant’s conviction for possessing heroin while intending to
deliver it, the State was required to prove beyond a reasonable doubt that he
exercised care, custody, control, or management over the heroin; intended to
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deliver 7 it to another; and knew that it was a controlled substance. See Tex.
Health & Safety Code Ann. §§ 481.002(38), .112(a); Cadoree v. State, 331
S.W.3d 514, 524 (Tex. App.—Houston [14th Dist.] 2011, pet ref’d); see also
Franklin v. State, Nos. 02-12-00342-CR, 02-12-00343-CR, 2013 WL 2631167, at
*2 (Tex. App.—Fort Worth June 13, 2013, no pet.) (mem. op., not designated for
publication). These elements may be proved by direct or circumstantial
evidence. See Cadoree, 331 S.W.3d at 524; Jordan v. State, 139 S.W.3d 723,
726 (Tex. App.—Fort Worth 2004, no pet.).
When a person is not in exclusive possession of the place where a
controlled substance is found, it cannot be concluded that the person had
knowledge of and control over the substance unless there are additional
independent facts that link the person to the substance. Poindexter v. State, 153
S.W.3d 402, 406 (Tex. Crim. App. 2005); Wilson v. State, No. 02-10-00439-CR,
2012 WL 662339, at *3 (Tex. App.—Fort Worth Mar. 1, 2012, no pet.) (mem. op.,
not designated for publication). Possible links that may support a factfinder’s
decision that a defendant possessed drugs include the defendant’s presence
when the drugs were found, the drugs’ appearance in plain view, the defendant’s
proximity to and the accessibility of the drugs, the influence of drugs upon the
defendant when arrested, the defendant’s possession of other contraband or
drugs when arrested, the defendant’s incriminating statements, the defendant’s
7
To deliver means to actually or constructively transfer a controlled
substance. Tex. Health & Safety Code Ann. § 481.002(8) (West Supp. 2013).
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attempt to flee, the defendant’s furtive gestures, an odor of drugs, the presence
of other contraband or other drug paraphernalia, the defendant’s ownership or
right to possess the place where the drugs were found, the defendant’s
possession of a large amount of cash, and conduct of the defendant indicating a
consciousness of guilt. Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim.
App. 2006); Wilson, 2012 WL 662339, at *4; see also Robles v. State, Nos. 02-
12-00048-CR, 02-12-00049-CR, 2013 WL 5175569, at *6 (Tex. App.—Fort Worth
Sept. 12, 2013, no pet.) (mem. op., not designated for publication) (stating that
the “links rule” described above protects “innocent bystanders from conviction
merely because of their proximity to someone else’s drugs”); Black v. State, 358
S.W.3d 823, 833 (Tex. App.—Fort Worth 2012, pet. ref’d) (“The evidence, direct
or circumstantial, must establish, to the requisite level of confidence, that [the
defendant’s] connection with the [drugs] was more than just fortuitous.”).
We conclude that the evidence sufficiently connects appellant to the heroin
that the officers found at the back of the house and in the bedroom. As to the
capsules found at the back of the house, Officer Sandoval testified, without
equivocation, that he saw appellant drop the baggie containing the capsules
while attempting to flee from the house. Officer Sandoval explained that when he
saw this occur, he was standing behind a car and was approximately ten to
twelve feet from the back door. According to Officer Sandoval, although he was
behind the car to protect himself, he “maintained a visual” of the back door so
that he could see anyone coming out of it. On questioning by appellant’s
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counsel, Officer Sandoval reiterated that he had maintained a “direct . . . line of
sight to the door” while standing behind the car.
Officer Sandoval’s testimony provided direct evidence of appellant’s
dominion and control over the heroin in the back of the house. See Sneed v.
State, 875 S.W.2d 792, 795 (Tex. App.—Fort Worth 1994, no pet.) (“Here, Officer
Carter testified that he saw Sneed take the cocaine capsule out of his pocket and
throw it on the floor. . . . We hold that there was sufficient evidence to prove that
Sneed knowingly possessed a controlled substance.”); Ortega v. State, 861
S.W.2d 91, 93, 95 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d) (holding that
an officer’s testimony that he saw a defendant drop something on a car’s
floorboard was sufficient to sustain a conviction for possession of cocaine that
was found on the floorboard). Moreover, appellant’s presence when the heroin
at the back of the house was found, his proximity to the drugs (before he dropped
them), his connection to the other heroin in a bedroom (as described below), his
attempt to flee, the presence of other drug paraphernalia in the house that he
paid rent on (as explained below), and his possession of a large amount of cash
further enabled the jury to rationally find beyond a reasonable doubt that
appellant possessed the heroin from the back of the house. See Evans, 202
S.W.3d at 162 n.12; Robles, 2013 WL 5175569, at *6.
The evidence is likewise sufficient to link appellant to the heroin found in a
bedroom. During the execution of the search warrant, FWPD Officer Christopher
Jones entered a bedroom that contained a dresser and men’s clothes. In that
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bedroom, Officer Jones found a social security card, mail items, a pistol, and
capsules containing heroin. Officer Jones found the mail items on top of the
dresser; the heroin capsules were in the dresser’s top drawer along with the
social security card and other papers. The mail that Officer Jones found was
addressed to appellant (at a different address than the house subject to the
search), and the social security card stated appellant’s name. The papers that
Officer Jones found contained appellant’s rent receipts for the house where the
search occurred. Officer Jones opined that the presence of appellant’s items
together in the bedroom near the heroin produced a reasonable belief that the
heroin in the bedroom belonged to appellant.
We agree. The jury could have rationally concluded beyond a reasonable
doubt that appellant had possessed the heroin from the bedroom based on the
proximity of the heroin to his personal items and male clothing, his presence at
the scene, the accessibility of the drugs in the drawer, his possession of the other
heroin capsules, his attempt to flee, and his possession of approximately $666.
See Evans, 202 S.W.3d at 162 n.12; Robles, 2013 WL 5175569, at *6; see also
Johnson v. State, No. A14-92-01279-CR, 1994 WL 652784, at *2 (Tex. App.—
Houston [14th Dist.] Nov. 17, 1994, no pet.) (not designated for publication)
(“Based upon the evidence of the clothing, receipts, photographs, medicine and
mail, the jury had reason to conclude that appellant had care, custody, and
control over the room where the drugs were found.”); Goodall v. State, 774
S.W.2d 821, 821–22 (Tex. App.—Fort Worth 1989, pet. ref’d) (holding that
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evidence was sufficient to prove the defendant’s possession of cocaine when the
police found the drug in a satchel that also contained the defendant’s checkbook
and his utility bill).
Appellant argues that the evidence is insufficient to prove his possession
of any of the heroin that the police found because (1) Officer Sandoval was
“mistaken . . . or simply was being disingenuous” while testifying that he saw
appellant drop a baggie containing heroin, (2) the police did not attempt to obtain
fingerprints from the baggie containing the heroin found near the back of the
house, and (3) the State did not introduce photographs to support the testimony
that officers found heroin close to appellant’s belongings in the bedroom.
The weight and credibility of Officer Sandoval’s testimony was in the
exclusive province of the jury, which received an exhibit depicting the car that he
stood behind while looking toward the back of the house. 8 See Tex. Code Crim.
Proc. Ann. art. 38.04 (West 1979); Winfrey, 393 S.W.3d at 768; see also Isassi v.
State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (explaining that when
performing an evidentiary sufficiency review, we may not re-evaluate the weight
and credibility of the evidence and substitute our judgment for that of the
factfinder). Also, the jury was free to accept the testimony of the State’s
witnesses without the introduction of photographs supporting the testimony. See
8
Appellant contends that this photo “shows that the location of the [car]
was far enough away from the back door that it would be hard for anyone to see
a person throwing a small amount of drugs.”
9
Franklin v. State, 193 S.W.3d 616, 620 (Tex. App.—Fort Worth 2006, no pet.).
Finally, although fingerprints could have provided an additional link between
appellant and the heroin, 9 they were not necessary to support his conviction
considering the other evidence presented by the State. See Callahan v. State,
502 S.W.2d 3, 6 (Tex. Crim. App. 1973) (“Appellant calls attention to the fact that
there were no fingerprints discovered and that he was not found inside the store.
. . . [O]n appeal these facts are not enough for this court to overturn the jury’s
verdict.”); Walker v. State, No. 05-93-00236-CR, 1994 WL 316331, at *3 (Tex.
App.—Dallas June 30, 1994, no pet.) (not designated for publication).
For all of these reasons, viewing the evidence in the light most favorable to
the jury’s verdict, we conclude that a rational jury could have found beyond a
reasonable doubt that appellant possessed the heroin that the police found in the
house. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Winfrey, 393 S.W.3d at
768. We hold that the evidence is sufficient to prove possession, and we
overrule appellant’s first issue.
Next, appellant contends that the evidence is insufficient to prove his intent
to deliver the heroin. We may consider several factors in reviewing the
sufficiency of the evidence to prove an appellant’s intent to deliver, including the
nature of the location where the appellant was arrested, the quantity of drugs the
9
Officer Jones and FWPD Officer Anthony Taylor testified that the FWPD
does not typically attempt to find fingerprints on narcotics packaging; Officer
Taylor stated that he had seen such fingerprinting done only “a handful of times
in two years.”
10
appellant possessed, the manner of packaging the drugs, the presence or
absence of drug paraphernalia (for use or sale), whether the appellant
possessed a large amount of cash in addition to the drugs, and the appellant’s
status as a drug user. Jones v. State, 195 S.W.3d 279, 288 (Tex. App.—Fort
Worth 2006) (op. on reh’g), aff’d, 235 S.W.3d 783 (Tex. Crim. App. 2007); see
also Gard v. State, No. 02-11-00087-CR, 2012 WL 3736091, at *5 (Tex. App.—
Fort Worth Aug. 30, 2012, no pet.) (mem. op., not designated for publication)
(explaining that intent to deliver is a question of fact for the jury to resolve and
that it may be inferred from the acts, words, or conduct of the accused). The
number of these factors is not as important as the logical force they have in
establishing intent. Moreno v. State, 195 S.W.3d 321, 326 (Tex. App.—Houston
[14th Dist.] 2006, pet. ref’d) (op. on reh’g).
Here, appellant was arrested after possessing heroin in a house that also
contained a coffee grinder with residue and digital scales with residue. Officer
Sandoval testified that from his training and experience, he believed that the
residue on the coffee grinder was heroin. He recognized that digital scales and
coffee grinders may have legitimate, legal uses. He testified, however, that
people involved with illegal drugs have been known to use coffee grinders to
“grind up . . . tar heroin with cutting agents to make . . . powder heroin.” He
expressed that from his training and experience, people who cut up narcotics
with a coffee grinder usually do so for resale, not for personal use. Also, he
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stated that digital scales are used by drug dealers to measure specific amounts
of drugs for resale.
Although the digital scales and coffee grinder did not bear internal
characteristics that particularly linked them to appellant, they were contained in
the house where appellant had paid rent for several months, and they had
residue from what appeared to be the same drug that appellant had possessed.
Also, appellant possessed a large amount of cash—approximately $666—upon
his arrest. FWPD Officer Nathan Danford testified that the possession of a large
amount of cash indicates that someone may be in the business of selling
narcotics. 10
Next, the evidence indicates that appellant possessed an amount of heroin
that is greater than what a mere user of the drug would normally carry, even if
the amount was not enormous. The capsules that Officer Sandoval found near
the back of the house collectively weighed 2.47 grams, and the total gross weight
of the capsules found within the house was 2.74 grams. The aggregate net
weight of the heroin that the forensic scientist tested 11 was 1.15 grams. Officer
10
Appellant contends that $666 is not an “amount that screams drug
dealer.” But courts have concluded that lesser amounts created inferences of
defendants’ intent to deliver drugs. See Gard, 2012 WL 3736091, at *6 ($590);
King v. State, 129 S.W.3d 680, 684 (Tex. App.—Waco 2004, pet. ref’d) ($508);
Elder v. State, 100 S.W.3d 32, 34 (Tex. App.—Eastland 2002, pet. ref’d) ($596).
11
The net weight is the weight of the substance without the capsules. The
forensic scientist tested only ten of the sixteen capsules that the police seized
from the house.
12
Taylor testified that one gram of powder heroin has a market value of $60 to
$150. He said that the capsules of heroin that the police collected from the
house would sell for $10 to $20. According to Officer Taylor, a user of heroin
would usually possess one to two pills, although there could be circumstances
where users could carry more. The evidence establishes that appellant
possessed sixteen capsules.
Finally, Officer Taylor testified that in some circumstances, drug dealers
trade drugs for guns. In the same bedroom where the police found heroin in
close proximity to appellant’s personal items, they also found a loaded gun. Cf.
Leadon v. State, No. 02-08-00163-CR, 2009 WL 1815663, at *3–4 (Tex. App.—
Fort Worth June 25, 2009, no pet.) (mem. op., not designated for publication)
(considering a gun found in the defendant’s home with drugs as evidence of the
defendant’s intent to deliver).
According to appellant, the evidence is insufficient to prove his intent to
deliver the heroin because (1) the gun, digital scale, grinder, and money that the
police found “all . . . could have benevolent purposes”; (2) the heroin that officers
seized amounted to only a few grams and was not packaged in a way that would
indicate drug dealing; (3) the cell phones that the police found did not contain
evidence about drug exchanges; and (4) the State did not present evidence of
fingerprints from the digital scales, the gun, or the coffee grinder. It is true that
the heroin was not packaged in such a way that was determinative of appellant’s
intent to deliver it and that the cell phones did not provide evidence necessarily
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supporting the verdict. Although a hypothetical factfinder could have weighed
this evidence against a finding of intent to deliver, the other evidence described
above creates reasonable inferences supporting the jury’s verdict. We must
presume that jury resolved any conflicting inferences in favor of the verdict and
defer to that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793;
Temple, 390 S.W.3d at 360.
Next, although the items found in the home and on appellant’s person
could have legal uses, based on the facts recited above (including the residue on
the coffee grinder and digital scales), it was not irrational for the jury to conclude
that they were connected to the delivery of heroin. Cf. Hicks v. State, 255
S.W.3d 351, 355 (Tex. App.—Texarkana 2008, no pet.) (concluding that the
presence of a digital scale with drug residue and a loaded firearm supported a
jury’s finding that a defendant intended to deliver cocaine); Browning v. State,
No. 05-99-00736-CR, 2000 WL 714569, at *1–2 (Tex. App.—Dallas June 5,
2000, no pet.) (not designated for publication) (affirming a conviction for
possession of cocaine with intent to deliver when, among other facts, the police
found scales, coffee grinders, and guns in the defendant’s residence). Finally, as
stated above, fingerprint evidence could have supported the verdict but was not
necessary to do so. See Callahan, 502 S.W.2d at 6.
Considering the evidence in the light most favorable to the jury’s verdict,
we conclude that a rational jury could have found appellant’s intent to deliver the
heroin beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at
14
2789; Winfrey, 393 S.W.3d at 768; Jordan, 139 S.W.3d at 726. We therefore
hold that the evidence is sufficient to prove appellant’s intent to deliver, and we
overrule his second issue.
Conclusion
Having overruled both of appellant’s issues, we affirm the trial court’s
judgment.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 13, 2014
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