Josephine Deleon Diaz v. State ( 2018 )

Opinion filed September 20, 2018
In The
Eleventh Court of Appeals
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No. 11-16-00301-CR
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JOSEPHINE DELEON DIAZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 350th District Court
Taylor County, Texas
Trial Court Cause No. 11733-D
MEMORANDUM OPINION
The jury convicted Josephine Deleon Diaz of the second-degree felony
offense of possession of methamphetamine in an amount between four and 200
grams. The trial court sentenced Appellant to confinement for a term of fifteen years
in the Institutional Division of the Texas Department of Criminal Justice. In a single
issue on appeal, Appellant asserts that the evidence is insufficient to support her
conviction. We affirm.
Background Facts
Abilene Police Officer Chris Milliorn stopped a pickup being driven at night
without its back lights operating. The pickup belonged to Kayla Sue Owen, but
Jonathan Cotton was driving it. Appellant occupied the passenger seat of the pickup.
When Officer Milliorn ran their information, he discovered that the pickup’s
registration had expired, but the sticker on the windshield was current. After
Officer Milliorn recognized Owen’s name from previous narcotics investigations,
he called for a canine unit.
Upon the arrival of the canine unit, Officer Milliorn and Officer Matt Stiles
asked Cotton and Appellant to step out of the pickup. Officer Stiles observed a clear
glass pipe wrapped in bubble wrapping in Appellant’s boot. Based on
Officer Milliorn’s experience, a pipe of this type is used for smoking
methamphetamine or crack cocaine. Shortly after Officer Stiles observed the pipe,
the canine alerted on the pickup. The officers searched Cotton, Appellant, and the
pickup. The officers found a small glass pipe in Cotton’s sock. They also found a
purse in the cab of the pickup that contained two separate baggies of
methamphetamine.
Officer Milliorn testified that, when he asked Appellant about the baggies
found in the purse, she said that she bought them a few days before for personal use.
Appellant never claimed during the stop that she did not know what was in the
baggies or that she did not know the baggies were in the purse. Officer Milliorn
gave the purse to Appellant to be booked with her property at the jail. Appellant did
not say or indicate that the purse was not hers.
Cotton testified that the baggies of methamphetamine belonged to him and
that he handed them to Appellant to hide because he thought he was going to jail for
driving without a license. Cotton did not tell the officers at the scene that the
methamphetamine belonged to him because he did not think Appellant would get in
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trouble and because he was under the influence at the time. Cotton testified that he
had had the baggies for about a week and that he and Appellant both smoked
methamphetamine from the baggies about five times. Cotton testified that, before
handing Appellant the baggies in the pickup, Appellant had not handled the baggies
but had watched him remove methamphetamine from the baggies so that they could
smoke it.
Analysis
In her sole issue on appeal, Appellant contends that the State failed to
affirmatively link her to the methamphetamine. She contends that the evidence
failed to show that the purse in which the methamphetamine was found was her purse
as opposed to it belonging to Owen, the owner of the pickup who was a known drug
user. Appellant asserts that the State only showed that she was near the drugs when
she was a passenger in a pickup that was stopped due to a traffic violation. We
disagree.
We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–
89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review
all of the evidence in the light most favorable to the verdict and determine whether
any rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). When conducting a sufficiency review, we consider all the
evidence admitted at trial, including pieces of evidence that may have been
improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.
2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to
the factfinder’s role as the sole judge of the witnesses’ credibility and the weight
their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts
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for the factfinder’s duty 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; Clayton, 235 S.W.3d at 778. When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
verdict and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235
S.W.3d at 778.
A person commits the offense of possession of a controlled substance if she
knowingly or intentionally possesses a controlled substance. See TEX. HEALTH &
SAFETY CODE ANN. § 481.115(a), (d) (West 2017). Possession is defined as “actual
care, custody, control, or management.” TEX. PENAL CODE ANN. § 1.07(a)(39)
(West Supp. 2017). To prove unlawful possession of a controlled substance, the
State must show (1) that the accused exercised control, management, or care over
the substance and (2) that the accused knew the matter possessed was contraband.
Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005), overruled in part
on other grounds by Robinson v. State, 466 S.W.3d 166, 173 & n.32 (Tex. Crim.
App. 2015). The evidence must establish that the accused’s connection with the
drugs was more than just her fortuitous proximity to someone else’s drugs. Id. at
405–06. Possession of drugs need not be exclusive, but, rather, control over
contraband may be jointly exercised by more than one person. McGoldrick v. State,
682 S.W.2d 573, 578 (Tex. Crim. App. 1985).
Texas courts have used an “affirmative links” analysis for instances when “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
contraband unless there are additional independent facts and circumstances which
affirmatively link the accused to the contraband.” Id. at 406 (alteration in original)
(quoting Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981)); see
Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006) (listing affirmative
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links recognized by courts). The affirmative links analysis is routinely employed to
establish joint possession when the accused is not in exclusive possession of the
place where the drugs are found. Poindexter, 153 S.W.3d at 406. The analysis
“simply restates the common-sense notion that a person—such as a father, son,
spouse, roommate, or friend—may jointly possess property like a house but not
necessarily jointly possess the contraband found in that house.” Id. The following
links have been applied to infer knowledge relating to the contraband: (1) the
defendant’s presence when the search was conducted; (2) whether the contraband
was in plain view; (3) the defendant’s proximity to and the accessibility of the
narcotic; (4) whether the defendant was under the influence of narcotics when
arrested; (5) whether the defendant possessed other contraband or narcotics when
arrested; (6) whether the defendant made incriminating statements when arrested;
(7) whether the defendant attempted to flee; (8) whether the defendant made furtive
gestures; (9) whether there was an odor of contraband; (10) whether other
contraband or drug paraphernalia was 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. Tate v. State, 500 S.W.3d 410, 414 (Tex. Crim. App. 2016)
(citing Evans, 202 S.W.3d at 162 n.12).
Although Appellant was not in exclusive possession of the place where the
methamphetamine was found, the independent facts and circumstances justify the
jury’s conclusion that Appellant had possession of the methamphetamine and that
she knew the baggies contained methamphetamine. The State established several
affirmative links between Appellant and the methamphetamine. Appellant was
present when the search occurred. She was in close proximity to the
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methamphetamine because she was in the passenger seat of the pickup and the
methamphetamine was found inside a purse in the cab of the pickup.
We disagree with Appellant’s assertion that the evidence is insufficient
because the State did not establish that the purse belonged to her. Appellant made
incriminating statements after the officers located the methamphetamine inside the
purse. Appellant stated that she purchased the methamphetamine a few days before
for personal use. Cotton’s testimony that they both smoked methamphetamine from
the baggies about five times that week also established Appellant’s knowledge and
use of the methamphetamine irrespective of the presence of the methamphetamine
inside the purse. Also, drug paraphernalia was present at the scene. The officers
located two clear glass pipes: one in Appellant’s boot and the other in Cotton’s sock.
Based on the evidence affirmatively linking Appellant to the methamphetamine, a
rational jury could have found beyond a reasonable doubt that Appellant knowingly
possessed the two baggies of methamphetamine. We overrule Appellant’s sole issue
on appeal.
This Court’s Ruling
We affirm the judgment of the trial court.
September 20, 2018 JOHN M. BAILEY
Do not publish. See TEX. R. APP. P. 47.2(b). CHIEF JUSTICE
Panel consists of: Bailey, C.J.;
Gray, C.J., 10th Court of Appeals1;
and Wright, S.C.J.2
Willson, J., not participating.
1
Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment
to the 11th Court of Appeals.
2
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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