Justin Allen Lee v. State ( 2019 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-18-00571-CR
NO. 03-18-00572-CR
Justin Allen Lee, Appellant
v.
The State of Texas, Appellee
FROM THE 35TH DISTRICT COURT OF MILLS COUNTY
NOS. 3234 & 3255, THE HONORABLE STEPHEN ELLIS, JUDGE PRESIDING
MEMORANDUM OPINION
Justin Allen Lee was indicted in trial court cause number 3234 for two counts of
abandoning or endangering a child, enhanced by a prior final felony conviction, and separately
indicted in trial court cause number 3255 for possession of a controlled substance
(methamphetamine). See Tex. Penal Code §§ 12.42(d), 22.041; see also Tex. Health & Safety
Code §§ 481.102(6), .115(a), (b). The indictments in both causes were joined for trial to the
bench. The district court convicted Lee of all three offenses as charged, sentencing him to fifty
years’ imprisonment on the child-abandonment offenses and two years’ imprisonment on the
possession offense with the sentences running concurrently.
In two issues on appeal, Lee challenges the sufficiency of the evidence supporting
his convictions. We will affirm the district court’s judgments of conviction.
BACKGROUND 1
Lee and his wife, Kendra, lived with their daughter L.L., 2 and Kendra’s two sons,
M.H. and G.H., in a rural location in Goldthwaite, Mills County, without immediate neighbors.
During the timeframe set forth in the indictment—between October 2016 and March of 2017—
G.H. was eleven years old and turning twelve, and M.H. was twelve years old and turning
thirteen.
During that time, Lee had an irregular work schedule “moving rigs” in New
Mexico. Shortly before taking that job, sometime during the first eight months of 2016, Lee
started using methamphetamine “on occasion.” Kendra testified that in the six months before the
children were removed from the home, she and Lee were heavily involved in using
methamphetamine. She stated that Lee smoked methamphetamine, that she primarily injected it,
that they used together in the garage of the house, and that the garage was where they kept their
paraphernalia. During the time of their heavy usage, Kendra testified that she and Lee had to
buy methamphetamine at least once a week, and they made trips to San Angelo to purchase their
drugs. Lee testified that he and Kendra used drugs together “maybe just a few times,” but that he
knew Kendra used methamphetamine even when she was not using it with him. He
acknowledged having his “offs and ons” with methamphetamine use when the children were
removed.
Kendra testified that she and Lee went to her cousin’s house in Coleman multiple
times to use methamphetamine, leaving the boys at home alone. During these times M.H. would
call Kendra and Lee, and sometimes no one would answer the phone. Sometimes during the
1 The facts are summarized from the testimony and exhibits admitted at trial.
2 Five-year-old L.L. was not involved in the underlying case against Lee.
2
school year, M.H. woke in the morning to find that only he and G.H. were home. On those days,
M.H. and G.H. would get ready, care for the pets and animals on the property, and ride the bus to
school. M.H. also agreed that it was “pretty common” for Kendra and Lee to come home after
the children were asleep.
Children’s awareness of Lee’s drug use
M.H. testified about indications of Lee’s drug use. M.H. recalled an incident on
the first day of seventh grade when he saw Lee and thought that he was high on
methamphetamine: “[W]e were late and I don’t know, he [Lee] was just acting really weird. And
then my mom said—my mom was like—they were arguing, I guess, and she said that he was
high.” M.H. also told a Child Protective Services (CPS) investigator 3 that one morning when
Lee and Kendra did not know he was awake at the stairs in their home, he overheard his mother
yelling at Lee, “Stop smoking meth in the garage, you idiot.” Additionally, M.H. testified that in
a closet of the master bedroom he found a marihuana pipe, and he found another in a drawer in
the game room. M.H. further testified that G.H. showed him a “meth pipe” that G.H. found in a
sock drawer in their “parents’ room.”
G.H. testified similarly about indications of Lee’s drug use. G.H. stated that he
found marihuana inside a guitar-shaped container in the house, a marihuana pipe in a dresser
drawer in the master bedroom, and a “crack pipe” in the bathroom. He also testified that the
garage had “[a] weed smell” that made him believe that Lee was using drugs.
3 The CPS investigator was an outcry witness. See Tex. Code Crim. Proc. art. 38.072.
3
Children left alone for extended periods of time
G.H. testified that when he was ten or eleven and M.H. was twelve or thirteen,
they were left at home unsupervised multiple times for more than one day and night.
Specifically, G.H. testified that when he was ten or eleven he was left alone for two days. This
was similar to Kendra’s testimony that in 2017, before being removed by CPS, G.H. was left
alone from Friday night to Sunday morning.
G.H. also recalled that when M.H. was twelve or thirteen, M.H. was left alone
while the rest of the family went to Dallas for four or five days. G.H. testified that from third
grade on, he and M.H. were left alone overnight four or five times a year. G.H. stated that being
left alone at night was “a little creepy” and that he would hear creaking sounds.
M.H. testified that he and G.H. were left alone for a weekend and that this
occurred sometime during the six-month period before they were removed. M.H. stated that “if
they [Kendra and Lee] were gone for more than a day or two, they’d sometimes have our
neighbor come check on us.” M.H. said that because Kendra and Lee were gone so regularly, he
felt that they did not really care about him.
M.H. and G.H.’s paternal grandmother testified that approximately eight or nine
months before they were removed by CPS (in March 2017), she was aware that M.H. and G.H.
were left alone at their house and she made frequent phone calls from her home in San Angelo
during the night and the next day to check on them.
Effects on children
Multiple witnesses discussed the adverse effects they saw on the children. A CPS
investigator testified that M.H. and G.H. each reported feeling scared when left home alone and
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that G.H. said he would carry a pocketknife or bat around the house because he was scared. The
childrens’ grandmother testified that initially after M.H. and G.H. were removed and came to
live with her that G.H. had a “little tremor” in his face whenever Lee came up in conversation
and that M.H. suffered frequent headaches.
The childrens’ school principal testified that G.H. was withdrawn, would stutter
and shake, and had low self-esteem. The childrens’ school counselor testified that children who
are in unsupervised or neglectful situations at home can suffer stress that affects their classroom
performance and places them at risk for anxiety and depression.
A licensed professional counselor testified that children around the ages of twelve
and thirteen who have been left home alone for significant periods of time may experience
symptoms such as a tremor, headaches, stomachaches, and low self-esteem, and that neglect can
cause physiological changes and developmental problems in the brain.
A CPS supervisor testified that M.H. was diagnosed with adjustment disorder and
child neglect and “was testing at a year behind his grade level,” and that G.H. was diagnosed
with adjustment disorder, child neglect, child physical abuse, and “was actually testing two
levels behind his grade.”
Report to CPS and law-enforcement investigation
A CPS report was filed on March 24, 2017, alleging the abuse and neglect of the
children. Warrants were also issued for the arrest of Kendra and Lee. When deputies with the
Mills County Sheriff’s Office arrived to serve the arrest warrants, Kendra was the only one home
and met the deputies outside the front door of the house as she was stepping outside to smoke.
Kendra was asked to submit to a drug test and for permission to “do a walkthrough of the home
5
to secure the safety of the children that reside in the home.” Kendra was uncooperative, but she
admitted to “binge-using methamphetamine and controlled prescription drugs that were in the
home that she was not able to provide a prescription for, as well as excessive drinking.”
While sheriff’s deputies were still outside the house, G.H. and L.L. arrived home
and went inside where they remained without supervision. At some point, a sheriff’s deputy
accompanied Kendra inside while she retrieved a lighter, and later, CPS staff and another deputy
followed her inside when she attempted to contact Lee. However, Kendra told the officers that
“no way in hell” would she allow anybody in the garage area of the home. A sheriff’s deputy
testified that there were specific concerns about the garage as an area where drugs might be
located “based on reports and investigations that had already gone on.”
After Kendra was arrested, deputies accompanied her inside the residence to
gather clothes for the children. A sheriff’s deputy saw two Xanax (Alprazolam) pills on a short
dresser in her bedroom. The deputy testified that the pills were unsecured and “very easily”
accessible to a child reaching up and grabbing something off the top of the dresser. Kendra
initially lied to the deputy about what type of pills they were, and she was unable to provide a
prescription for them.
Sheriff’s deputies executed a search warrant for Lee’s residence after the children
left with CPS and officers transported Kendra to jail. The door from the house to the garage was
unlocked, and no key was necessary for the deputies to access it. The garage contained multiple
children’s items including a little girl’s backpack, children’s clothing, books, children’s books,
paints, a youth four-wheeler, and a pair of child’s safety scissors. A baggie containing 3.31
grams of marihuana was found next to some of the children’s books.
6
Deputies also found and photographed drug paraphernalia that was scattered
throughout the garage, including numerous used and unused hypodermic needles, rubber tubing,
marihuana pipes, a grinder, baggies, cotton swabs, torch lighters, rolling papers, tweezers, and
cut straws. The pipes had heavy marihuana residue and what appeared to be methamphetamine
residue in the baggies and a container. More Xanax pills were found in the garage. Further,
there were items in the garage connected specifically to Lee, including a magazine with his name
and address on it (found inside a container holding numerous items of drug paraphernalia) and a
letter bearing his name.
Subsequently, when a CPS investigator explained the nature of the allegations to
Lee, he stated that he was not M.H. and G.H.’s biological parent, and the allegations about them
being left alone did not pertain to him because he had no legal responsibility for them.
At the conclusion of the bench trial, the district court convicted Lee of two counts
of endangering a child and one count of possession of a controlled substance and imposed
sentences for all three offenses. This appeal followed.
DISCUSSION
Standard of review
Both of Lee’s appellate issues challenge the sufficiency of the evidence
supporting his convictions. When reviewing such legal-sufficiency complaints, we consider the
evidence in the light most favorable to the verdict and 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 (1979); Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App.
2018). The factfinder is the sole judge of the weight and credibility of the evidence. See Zuniga
7
v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018). A factfinder may accept one version of
the facts and reject another, and the factfinder may reject any part of a witness’s testimony.
Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. App. 2018). We defer to the factfinder’s
resolution of conflicts in the evidence, weighing of the testimony, and drawing of reasonable
inferences from basic facts to ultimate facts. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim.
App. 2010).
We apply the same standard to direct and circumstantial evidence. Id.
Circumstantial evidence is as probative as direct evidence in establishing a defendant’s guilt, and
circumstantial evidence can alone be sufficient to establish guilt. Nisbett, 552 S.W.3d at 262.
Each fact need not point directly and independently to the defendant’s guilt if the cumulative
force of all incriminating circumstances is sufficient to support the conviction. Id.; see Mayberry
v. State, 351 S.W.3d 507, 511 (Tex. App.—San Antonio 2011, pet. ref’d) (considering direct and
circumstantial evidence in affirming convictions for child endangerment); Gomez v. State,
Nos. 01-18-00694-CR, 01-18-00695-CR, 2019 Tex. App. LEXIS 5705, at *19 (Tex. App.—
Houston [1st Dist.] July 9, 2019, no pet.) (mem. op., not designated for publication) (concluding
that circumstantial and direct evidence and reasonable inferences therefrom supported conviction
for possession of methamphetamine).
Sufficient evidence supports Lee’s convictions for child endangerment
Lee challenges the sufficiency of the evidence supporting his two convictions for
endangering a child. He complains specifically that: (1) the district court heard evidence about
abandonment that occurred outside the timeframe alleged in his indictment and (2) there is no
evidence that when he abandoned his stepsons, he placed them in imminent danger.
8
a. Timeframe for offense against M.H.
Within his first issue, Lee points out that his indictment alleged the timeframe for
the child-endangerment offenses as “on or between the 1st day of October, 2016 and March 24,
2017.” Lee contends that M.H.’s testimony about being abandoned at age eleven—along with
M.H.’s testimony about his birthdate—involves a timeframe that would have preceded the dates
alleged in Lee’s indictment and constitutes a variance between the charged offense and the proof
at trial.
However, only a “material” variance that prejudices a defendant’s substantial
rights will render the evidence insufficient. Ramjattansingh v. State, 548 S.W.3d 540, 547 (Tex.
Crim. App. 2018). A material variance occurs when the indictment fails to adequately inform a
defendant of the charge against him or subjects a defendant to the risk of being prosecuted later
for the same crime. Id. “The bottom line is that, in a sufficiency review, we tolerate variances as
long as they are not so great that the proof at trial ‘shows an entirely different offense’ than what
was alleged in the charging instrument.” Id. (quoting discussion of nonstatutory variances in
Johnson v. State, 364 S.W.3d 292, 295 (Tex. Crim. App. 2012)).
M.H.’s testimony does not reference an entirely different offense than the one that
Lee was charged with committing against M.H. and does not reflect a material variance. Rather,
the trial record shows that M.H.’s response about his age was an approximation and that he was
recalling the first time, but not the only time, he was left home alone:
[Prosecutor:] Did they ever leave you home alone overnight?
[M.H.:] Yes, ma’am.
[Prosecutor:] Let’s start with the first time you remember being home alone.
How old were you? Do you remember?
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[M.H.:] Um, probably about eleven.
....
[Prosecutor:] When you and I were talking before, did you tell me it was kind
of difficult to remember the details of when you had been left?
[M.H.:] Yes, ma’am.
[Prosecutor:] Why is that?
[M.H.:] It happened pretty often.
Further, M.H.’s brother G.H. testified that when he was ten or eleven 4 he was left
alone for two days, and that when M.H. was twelve or thirteen, M.H. was left alone while the
rest of the family went to Dallas for four or five days. M.H. and G.H.’s paternal grandmother
testified that M.H. and G.H. were left alone at their house approximately eight or nine months
before they were removed from the home by CPS (in March 2017). Kendra similarly testified
that in 2017, before being removed by CPS, her eleven-year-old son G.H. was left alone from
Friday night to Sunday morning. Given that M.H. estimated the age when he was first left alone
as “probably about eleven,” that he had difficulty remembering the details of being left alone
because of how frequently it happened, that other witnesses testified about the children being left
alone within the timeframe set forth in the indictment, and that we must consider the evidence in
the light most favorable to the court’s verdict, we conclude that M.H.’s testimony does not show
a material variance as to Lee’s indictment or that the evidence is insufficient to support Lee’s
child-endangerment conviction as to M.H.
4 G.H. also provided his date of birth in his testimony.
10
b. Imminent danger
Also within his first issue, Lee contends that there is no evidence that he placed
his stepsons in imminent danger.
A person commits the offense of endangering a child if he intentionally,
knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that
places a child younger than fifteen years of age in imminent danger of death, bodily injury, or
physical or mental impairment. Tex. Penal Code § 22.041(c). The Penal Code does not define
“imminent,” but the Texas Court of Criminal Appeals has defined it as “ready to take place, near
at hand, impending, hanging threateningly over one’s head, menacingly near.” Garcia v. State,
367 S.W.3d 683, 689 (Tex. Crim. App. 2012) (quoting Devine v. State, 786 S.W.2d 268, 270
(Tex. Crim. App. 1989)). “A measure of the imminence of a danger is the nature of the response
the danger should provoke.” Hernandez v. State, 531 S.W.3d 359, 364-65 (Tex. App.—Eastland
2017, no pet.).
Here, Lee contends that none of the dangers alleged at trial were “near at hand”
for any period during which he abandoned the boys and “at best,” the State’s evidence showed
only “a potential or future threat.” In support of his contention, Lee points to two cases reversing
child-endangerment convictions because the danger to the children was not considered imminent.
See Millslagle v. State, 81 S.W.3d 895, 898 (Tex. App.—Austin 2002, pet. ref’d); Elder v. State,
993 S.W.2d 229, 230 (Tex. App.—San Antonio 1999, no pet.). One case is distinguishable and
the other is not precedential for this Court.
In Millslagle, a defendant left a three-year-old child alone and unrestrained in a
parked truck with open windows while the defendant used methamphetamine in the restroom of
a sandwich shop. See Millslagle, 81 S.W.3d at 898. Unlike the location of the defendant’s drug
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use in Millslagle, the evidence here showed that Lee used methamphetamine in the garage of the
home where he and the children resided. Cf. id. (noting that defendant’s drug use did not expose
child to imminent danger as long as defendant stayed in sandwich shop’s restroom and away
from child in truck). The garage of Lee’s home was an area that the children could access while
left alone, law-enforcement officers found the garage unlocked, and they found several
children’s items in the garage.
In Elder, the defendant’s daughter was assaulted by a man that the defendant had
allowed to move into her home, knowing that he was on probation for indecency with a child.
Elder, 993 S.W.2d at 230 (characterizing evidence at trial as “scant”). However, Elder is not
binding precedent for this Court and does not align with subsequent decisions from the San
Antonio Court of Appeals. See Sapp v. State, No. 02-17-00161-CR, 2018 Tex. App. LEXIS
2801, at *9 n.6 (Tex. App.—Fort Worth Apr. 19, 2018, no pet.) (mem. op., not designated for
publication) (similarly distinguishing Elder); Meza v. State, 549 S.W.3d 672, 687-88 (Tex.
App.—San Antonio 2017, no pet.) (concluding that child was in imminent danger of bodily
injury based on defendant’s consumption of central-nervous-system-depressing drug or alcohol
and leaving child unsupervised in parking lot); Mayberry, 351 S.W.3d at 510 (concluding that
when defendant allowed her underage son, who was not licensed driver, to operate vehicle at
night with more passengers than there were available seats, danger to children was imminent).
Here, when announcing its ruling to Lee at the close of the guilt-innocence phase,
the district court noted that the “garage was a house of horrors” and that “the drug paraphernalia
is stuff that you and your wife had both been utilizing.” The district court found that “the totality
of the credible evidence shows that the State has met its burden.” Specifically, the court found
that the State “prove[d] beyond a reasonable doubt physical or mental impairment,” and that
12
“placing of the children there alone on repeated occasions with the drug paraphernalia and the
other things in the environment did place them in imminent danger.” Evidence supporting the
court’s determination that the children were placed in imminent danger of physical or mental
impairment included:
• Kendra’s testimony that Lee smoked methamphetamine, that she primarily injected it,
that they used together in the garage of the house, and that the garage was where they
kept paraphernalia;
• Kendra’s testimony that in the six months before the children were removed, both she
and Lee were heavily involved in using methamphetamine;
• Lee’s testimony that he and Kendra used drugs together “maybe just a few times” and
that he knew Kendra used methamphetamine even when she was not using it with him;
• Lee’s testimony that he had his “offs and ons” with methamphetamine use when the
children were removed;
• G.H.’s testimony that he found marihuana inside a guitar-shaped container in the house, a
marihuana pipe in a dresser drawer in the master bedroom, and a “crack pipe” in the
bathroom;
• M.H.’s testimony that he found a marihuana pipe in the master bedroom closet and
another in a drawer in the game room;
• M.H.’s testimony that G.H. showed him a “meth pipe” that G.H. found in a sock drawer
in their parents’ room;
• G.H.’s testimony that the garage had “[a] weed smell”;
• G.H.’s testimony that when M.H. was twelve or thirteen and G.H. was ten or eleven, they
were left at home unsupervised multiple times for more than one day and night;
• G.H.’s testimony that when he was ten or eleven he was left alone for two days;
• G.H.’s testimony that when M.H. was twelve or thirteen, M.H. was left alone while the
rest of the family went to Dallas for four or five days;
• G.H.’s testimony that from third grade on, he and M.H. were left alone overnight four or
five times a year;
13
• M.H.’s testimony that he and G.H. were left alone for a weekend and that this occurred
sometime during the six-month period before they were removed;
• Kendra’s testimony that in 2017, before being removed by CPS, her eleven-year-old son
G.H. was left alone from Friday night to Sunday morning;
• M.H. and G.H.’s grandmother’s testimony that M.H. and G.H. were left alone at their
house approximately eight or nine months before CPS removed them from the home (in
March 2017);
• M.H.’s testimony that because his mother and Lee were gone so regularly, he felt that
they did not really care about him;
• G.H.’s testimony that being left alone at night was “a little creepy”;
• The school principal’s testimony that G.H. was withdrawn, would stutter and shake, and
had low self-esteem;
• The grandmother’s testimony that initially after M.H. and G.H. were removed and came
to live with her that G.H. had a “little tremor” in his face whenever Lee came up in
conversation and that M.H. suffered frequent headaches;
• The CPS investigator’s testimony that M.H. and G.H. each reported feeling scared when
left home alone and that G.H. said he would carry a pocketknife or bat around the house
because he was scared;
• The school counselor’s testimony that children in unsupervised or neglectful situations at
home can suffer stress that affects their classroom performance and places them at risk
for anxiety and depression;
• The licensed professional counselor’s testimony that children around the ages of twelve
and thirteen who have been left home alone for significant periods of time may
experience symptoms such as a tremor, headaches, stomachaches, and low self-esteem,
and that neglect can cause physiological changes and developmental problems in the
brain;
• The CPS supervisor’s testimony that M.H. was diagnosed with adjustment disorder and
child neglect and “was testing at a year behind his grade level”; and
• The CPS supervisor’s testimony that G.H. was diagnosed with adjustment disorder, child
neglect, child physical abuse, and “was actually testing two levels behind his grade.”
14
We conclude that the evidence presented at the bench trial and reasonable
inferences drawn from such evidence, viewed in the light most favorable to the verdict, were
sufficient for a rational trier of fact to have found beyond a reasonable doubt that Lee, by act or
omission, engaged in conduct that placed M.H. and G.H., children under age fifteen, in imminent
danger of physical or mental impairment. See Tex. Penal Code § 22.041(c); Jackson, 443 U.S. at
319; Nisbett, 552 S.W.3d at 262. Contrary to Lee’s assertion, the imminent-harm element of a
child-endangerment offense can be based on a defendant’s pattern of conduct over time; and
further, the district court could have disbelieved testimony suggesting that a locked door 5
prevented the children from accessing the methamphetamine, syringes, and other drug
paraphernalia in the garage of their home. See Febus, 542 S.W.3d at 572; Hernandez, 531
S.W.3d at 364-66 (concluding that there was sufficient evidence of imminent danger to children
based on conduct that “was not a momentary lack of judgment but, rather, a continuing course of
conduct of prolonged duration”); see also State v. Clampitt, No. 05-15-00901-CR, 2016 Tex.
App. LEXIS 7599, at *20 (Tex. App.—Dallas July 15, 2016, pet. ref’d) (mem. op., not
designated for publication) (noting that Texas courts have concluded that “leaving dangerous
items such as weapons or drugs within access of an unsupervised child places the child in
imminent danger”); Manning v. State, No. 05-11-00867-CR, 2013 Tex. App. LEXIS 5364, at *4
(Tex. App.—Dallas Apr. 30, 2013, no pet.) (mem. op., not designated for publication) (rejecting
defendant’s contentions that danger to child was “only potential,” not imminent, and that there
was no evidence of child being left alone in proximity to drugs). Accordingly, we overrule Lee’s
first issue.
5 Kendra’s testimony was that the door from the house to the garage was kept unlocked
during the day and locked when the children came home.
15
Sufficient evidence supports Lee’s conviction for possession of a controlled substance
In his second issue, Lee challenges the sufficiency of the evidence to support his
conviction for possession of a controlled substance.
A person commits an offense if he “knowingly or intentionally possesses”
methamphetamine in an amount of less than one gram. Tex. Health & Safety Code
§§ 481.102(6), .115(a), (b). Proving unlawful possession of a controlled substance requires
showing that the defendant exercised control, management, or care over the substance and that
the defendant knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402,
405 (Tex. Crim. App. 2005), abrogated on other grounds by Robinson v. State, 466 S.W.3d 166,
173 & n.32 (Tex. Crim. App. 2015); see Tex. Health & Safety Code § 481.002(38) (defining
“possession” under Texas Controlled Substances Act as “actual care, custody, control, or
management”). When, as here, a defendant does not have exclusive possession of contraband, a
factfinder may nonetheless infer that the defendant intentionally or knowingly possessed the
contraband if there are sufficient independent facts and circumstances justifying such an
inference. Tate v. State, 500 S.W.3d 410, 413-14 (Tex. Crim. App. 2016). The Court of
Criminal Appeals has summarized a non-exclusive list of factors that “may indicate a link
connecting the defendant to the knowing possession of contraband”:
(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
16
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.
Id. at 414.
Here, Lee contends that the evidence is insufficient because he was not in
proximity to the contraband when it was found and because the paraphernalia with the residue
was found in the garage that both he and Kendra used and controlled. Lee states that “the
contraband is equally likely to be Kendra’s and [his].” This argument is not persuasive because
joint possession is sufficient to support a conviction. It is well settled that “an accused may with
another or others jointly possess dangerous drugs or narcotics and that such possession need not
be exclusive.” McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985); see De La
Torre v. State, 583 S.W.3d 613, 619 (Tex. Crim. App. 2019) (recognizing that statutory
definition of possession does not preclude theory of joint possession—“the possibility of
simultaneous possession of the same narcotics by multiple people”); Poindexter, 153 S.W.3d at
412 (observing that “[t]he 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 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”), abrogated on
other grounds by Robinson v. State, 466 S.W.3d 166 (Tex. Crim. App. 2015).
Here, while some of the linking factors identified by the Court of Criminal
Appeals do not apply, other linking factors are present and connect Lee to the methamphetamine:
Lee owned or had the right to possess the garage where the methamphetamine was found; the
methamphetamine was found inside the enclosed garage of his house; the methamphetamine in
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the garage was in plain view; other drug paraphernalia was present in the garage; and Lee would
have had full access to the methamphetamine in the garage of his house. See Tate, 500 S.W.3d
at 414; see also Gomez, 2019 Tex. App. LEXIS 5705, at *11-12, *19 (affirming conviction for
methamphetamine possession for defendant who did not have exclusive possession of apartment
where methamphetamine was found and noting that “the absence of some links is not evidence
of innocence that weighs against those links that are present”).
Further, Kendra testified that Lee smoked methamphetamine, that she primarily
injected it, and that they used together in the garage. Lee testified that he had his “offs and ons”
with methamphetamine use when the children were removed. An outcry witness testified that
M.H. overheard his mother yelling at Lee, “Stop smoking meth in the garage, you idiot.” Items
in the garage were specifically connected to Lee, including a magazine with his name and
address on it (found inside a container holding numerous drug paraphernalia items) and a letter
bearing his name. Finally, M.H. testified about an incident on the first day of seventh grade
when he saw Lee and thought that Lee was high on methamphetamine: “[Lee] was just acting
really weird. And then my mom said—my mom was like—they were arguing, I guess, and she
said that he was high.”
On this record, we conclude that the district court could have reasonably inferred
that Lee exercised actual care, custody, control, or management of less than one gram of
methamphetamine found in the garage of his house and that Lee knew that it was contraband.
See Tate, 500 S.W.3d at 413-14; Poindexter, 153 S.W.3d at 405; see also Tex. Health & Safety
Code §§ 481.002(38), .102(6), .115(a), (b). Thus, we conclude that the evidence is legally
sufficient to support Lee’s conviction for possession of a controlled substance. We overrule
Lee’s second issue.
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CONCLUSION
We affirm the district court’s judgments of conviction.
__________________________________________
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Kelly and Smith
Affirmed
Filed: December 13, 2019
Do Not Publish
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