Peter Ezebunwa v. State ( 2016 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00682-CR
Peter Ezebunwa, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 427TH JUDICIAL DISTRICT
NO. D-1-DC-10-206948, HONORABLE JIM CORONADO, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant pled guilty to possession of a controlled substance and was placed on
deferred adjudication community supervision. See Tex. Health & Safety Code § 481.115(d); see also
Tex. Code Crim. Proc. art. 42.12, § 5. Less than three years later,1 he was adjudged guilty and
sentenced to five years in prison. The trial court found that he violated a term of his community
supervision by committing a subsequent criminal offense of possession of a controlled substance.
On appeal, appellant challenges the sufficiency of the evidence to support this finding. We conclude
that the evidence was sufficient. However, through our own review of the record, we have found
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During that time period, the State filed three motions to adjudicate, after which appellant
was continued on deferred adjudication community supervision. Modifications to his terms and
conditions included the SMART residential treatment program (after testing positive for marijuana),
SAFPF (Substance Abuse Felony Punishment Facility), see Tex. Gov’t Crim. Proc. art. 493.009,
(after an unsuccessful discharge from the SMART residential treatment program), and Relapse
SAFPF (after an unsuccessful discharge from the SAFPF aftercare transitional center).
non-reversible error in the judgment adjudicating guilt. We modify the judgment to correct the
clerical error and affirm as modified.
FACTUAL AND PROCEDURAL BACKGROUND
On November 1, 2011, appellant pled guilty to possession of a controlled substance,
and the trial court placed appellant on four years’ deferred adjudication community supervision. One
of the terms of his community supervision was that appellant could not commit a subsequent
criminal offense. On April 10, 2014, appellant was arrested for possession of a controlled substance
and the State filed a motion to proceed with adjudication of guilt on several grounds, including the
subsequent possession of a controlled substance offense. The trial court thereafter held a hearing
on the motion to adjudicate.
The witnesses at the adjudication hearing included officers Joshua Euhus and
Jeremy Bolin, the officers who were dispatched on the night of April 9, 2014, to investigate a
complaint of drug activity in an alley. Officer Euhus testified that upon arriving at the scene, the
complainant, whose home abuts the alley, described appellant as the “primary suspect” but that there
were also other individuals selling drugs behind her home. The complainant identified appellant to
the officers by the distinctive color of the jacket that he was wearing.2 Officer Euhus further testified
that he observed appellant, who matched the description given by the complainant, and he “appeared
to be very nervous, shifting his weight and looking around for law enforcement.” The officers made
contact with appellant and three other individuals. Officer Euhus testified that he discovered a bag
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According to the testimony, appellant’s jacket was a “green jacket with orange sleeves.”
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of cocaine underneath “recently constructed rock piles” where appellant had been standing,3 and he
knew from his experience that it was “very common” for drug dealers in that area to hide their drugs
from the police by placing them under rocks where they were standing.
During their testimony, both officers conceded that they never saw appellant sell
drugs. Officer Bolin, however, testified that: (i) the area where appellant was found was a “very,
very high drug area in our part of town for a very, very long time”; (ii) the specific area was
“notorious” for people dealing crack cocaine; (iii) the complainant observed the individuals dealing
drugs, including the individual who matched appellant’s description; and (iv) it was out of the
ordinary for someone to stand in the “dark” alley for no apparent reason. Officer Bolin also found
$740 in small denominations on appellant’s person, and testimony indicated that large sums of
money in small denominations are consistent with street level drug sales. Further, the evidence
showed that the officers were dispatched to the alley around 11:00 p.m. and that none of the
individuals, including appellant, lived in the residences adjacent to the alley.
STANDARD OF REVIEW
We review the decision to adjudicate guilt in the same manner as a community
supervision revocation in which an adjudication of guilt was not deferred. Tex. Code Crim. Proc.
art. 42.12, § 5(b); Leonard v. State, 385 S.W.3d 570, 571 n.1 (Tex. Crim. App. 2012). A trial court’s
decision to revoke community supervision is reviewed for an abuse of the trial court’s discretion.
Rickles v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). In a revocation hearing, the State
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Subsequent laboratory testing reflected the bag contained 8.07 grams of cocaine.
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must prove by a preponderance of the evidence that a defendant violated the terms of his community
supervision. Moreno v. State, 22 S.W.3d 482, 488 (Tex. Crim. App. 1999). “In other words, that
greater weight of the credible evidence which would create a reasonable belief that the defendant has
violated a condition of his probation.” Rickles, 202 S.W.3d at 763. We consider the evidence
presented at the hearing in the light most favorable to the trial court’s findings. Garrett v. State,
619 S.W.2d 172, 174 (Tex. Crim. App. 1981).
DISCUSSION
In his sole point of error, appellant contends there is insufficient evidence to show
by a preponderance of the evidence that he had care, custody, and control of the cocaine, and thus
the evidence is insufficient to show that he violated a term of his community supervision. See Tex.
Health & Safety Code §§ 481.002(38) (defining possession as “actual care, custody, control,
or management”), 481.115(d) (defining offense of possession of substance); Evans v. State,
202 S.W.3d 158, 161 (Tex. Crim. App. 2006) (noting that, to prove possession of controlled
substance, evidence must show that (1) defendant exercised control, management, or care over
substance and (2) defendant knew matter possessed was contraband).
Mere presence where a controlled substance is found is insufficient by itself to
establish possession. Evans, 202 S.W.3d at 162; Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim.
App. 1988); Meeks v. State, 692 S.W.2d 504, 511 (Tex. Crim. App. 1985). However, presence and
proximity when combined with other evidence, direct or circumstantial, may be sufficient to
establish knowing possession. See Evans, 202 S.W.3d at 162. The evidence “must establish that
[appellant’s] connection with the drug was more than fortuitous.” Id. Where, as here, “the accused
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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.”
Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) (quoting Deshong v. State,
625 S.W.2d 327, 329 (Tex. Crim. App. 1981)).
The Texas Court of Criminal Appeals has identified relevant factors that may, alone
or in combination, link an accused to a substance to establish knowing possession:
(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 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; (14) and whether the conduct of the defendant indicated
consciousness of guilt.
Evans, 202 S.W.3d at 162 n.12 (citing Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.—Houston
[14th Dist.] 2005, no pet.)). These are some factors that may circumstantially establish the
sufficiency of the evidence to prove a knowing possession; they are not a litmus test. Id.; see also
Allen v. State, 249 S.W.3d 680, 692 n.13 (Tex. App.—Austin 2008, no pet.) (explaining that
affirmative-link doctrine “is a judicially devised standard to aid appellate courts in determining the
legal sufficiency of the evidence in knowing possession of contraband cases” but is not “a litmus
test”). The number of links or factors is not dispositive. Evans, 202 S.W.3d at 162. Rather, we look
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to “the logical force of all of the evidence.” Id. “Each case must be examined on its own facts.”
Roberson v. State, 80 S.W.3d 730, 736 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).
To support his position that the evidence is insufficient, appellant relies on the fact
that a number of the above listed factors are lacking in this case. See Evans, 202 S.W.3d at 162.
Appellant notes that he was never seen with the cocaine, did not appear to be under the influence of
any substance, and that there was no smell of a substance noted. See id. Appellant further notes that
there were other people around and that he never made any affirmative statement that would link him
to the cocaine. However, the absence of the above factors is not evidence of appellant’s innocence
to be weighed against the evidence tending to connect appellant to the factors or links that are
present. See Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App. 1976). Moreover, in
determining the sufficiency of evidence, we consider all the evidence before the trier of fact.
Poindexter, 153 S.W.3d at 405.
Here, the officers testified that: (1) appellant was in close proximity to—and had
ready access to—the cocaine; (2) appellant was present when the cocaine was found; and
(3) appellant was found with a large amount of cash in small denominations. See Evans, 202 S.W.3d
at 162 n.12 (listing among factors, proximity, presence, and possession of large amount of cash).
Further, the complainant identified appellant to the officers upon their arrival at the scene by his
clothing as one of the individuals selling drugs in her backyard, and the evidence showed that
appellant did not live in the immediate area and that he was in the alley late at night with no
apparent reason. Finally, Officer Bolin testified that the alley and surrounding area were “notorious”
for drug dealing.
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Appellant also relies on Armstrong v. State, 82 S.W.3d 444 (Tex. App.—Austin 2002,
pet. ref’d), to support his argument that the evidence is insufficient. We find that case factually
distinguishable. In that case, Armstrong, who was on community supervision for possession of
cocaine, was involved in a car accident in which she was the driver of the vehicle. Id. at 446. Her
three children and sister-in-law were passengers. Id. At the scene, the investigating officer observed
the sister-in-law holding a purple bag. Id. Armstrong was later transported to the hospital. Id. At
the hospital, the officer, after noting that Armstrong’s sister-in-law was “still in possession of the
bag,” asked if he could look in the bag. Armstrong’s sister-in-law consented, and the officer found
a sack of cocaine in the bag amongst children’s clothes. Id. However, Armstrong—not the sister-in-
law—was arrested for possession of cocaine, and the State filed a motion to revoke her community
supervision. Id. at 447–48. After Armstrong’s revocation hearing, the trial court found that she
violated her community supervision by intentionally or knowingly possessing cocaine with intent
to deliver. Id. On appeal, this Court reversed the trial court’s decision, finding the affirmative links
too weak to support the trial court’s finding that Armstrong violated her community supervision by
intentionally and knowingly possessing the cocaine found in the bag in her sister-in-law’s
possession. Id. at 450.
In Armstrong, the only evidence linking Armstrong to the cocaine was an
“unidentified” deputy’s statement alleging that Armstrong was more interested in locating the bag
than worrying about the children and her statement at the hospital that the bag was hers. See id. In
contrast, as discussed above, the evidence here showed that appellant was found in close proximity
to the cocaine, that he had a large amount of cash in small denominations on his person, he was
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standing at or near where the cocaine was found (six to twelve inches away), and he did not live in
the area and had no apparent reason for being in the alley late at night. Also, according to Officer
Bolin’s testimony, the alley and surrounding area were “notorious” for drug dealing, and the
complainant witnessed the individuals—including appellant—“dealing drugs.” Crediting this
evidence, the trial court could have found by a preponderance of the evidence that appellant was in
care, custody, and control of the cocaine located in his proximity. See Tex. Health & Safety Code
§ 481.002(38); Evans, 202 S.W.3d at 158.
Based upon our review of the evidence, in the light most favorable to the trial court’s
ruling, we conclude that the evidence was sufficient to support the trial court’s finding that appellant
violated his community supervision by committing a subsequent offense, and that the trial court did
not abuse its discretion in revoking appellant’s community supervision on this basis and proceeding
to adjudicate guilt. We overrule appellant’s sole point of error.
On review of the record, however, we observe that the judgment adjudicating guilt
in this case contains a clerical error. Specifically, the judgment erroneously states that appellant’s
“Plea to Motion to Adjudicate” was “True” when the record of the adjudication hearing reflects that
appellant entered pleas of “Not True” to the allegations contained in the motion to adjudicate. This
Court has the authority to modify incorrect judgments when necessary information is available to
do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993).
Accordingly, we modify the judgment adjudicating guilt to reflect that appellant’s “Plea to Motion
to Adjudicate” was “Not True.”
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CONCLUSION
Having overruled appellant’s sole point of error, we modify the judgment as noted
above to correct the clerical error and affirm the judgment adjudicating guilt as modified.
__________________________________________
Melissa Goodwin, Justice
Before Justices Puryear, Goodwin, and Bourland
Modified and, as Modified, Affirmed
Filed: August 25, 2016
Do Not Publish
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