Sean Rodriguez Osborn v. the State of Texas ( 2021 )

NUMBER 13-20-00189-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
SEAN RODRIGUEZ OSBORN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 216th District Court
of Kerr County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Tijerina
Appellant Sean Rodriguez Osborn appeals his conviction for possession of a
controlled substance in penalty group one, namely methamphetamine, in the amount of
four grams or more but less than 200 grams, a second-degree felony. See TEX. HEALTH
& SAFETY CODE ANN. § 481.115(a), (b). Osborn received a five-year sentence of
confinement for this conviction. By one issue, Osborn contends that the evidence is
insufficient to support the jury’s finding that he possessed the contraband.1 We affirm.2
I. PERTINENT FACTS3
Shiloh Edwards, “a caregiver for people who are developmentally disabled,”
testified that on November 20, 2018, at approximately 3:00 a.m., she heard “a loud bang”
at a neighbor’s residence. Edwards was providing home service to her clients, who live
in a home located in the same neighborhood where Osborn’s residence is located.
Edwards stated that she heard a second bang that she recognized as a gunshot.
According to Edwards, at approximately 5:00 a.m., she saw “a shadow” at Osborn’s
residence, and she heard shouting. Edwards called 911, and officers were dispatched to
Osborn’s residence.
Kris Keller, an officer with the Kerrville Police Department, testified that he was
dispatched to Osborn’s residence to investigate gunshots. Officer Keller stated that when
he arrived at Osborn’s residence, he observed the front door open, and he saw a gun on
the floor. According to Officer Keller, Osborn was throwing household items at the police
officers at the scene, and he was talking to himself. The State played a video of Officer
Keller’s body camera for the jury during his testimony. In the video, Osborn can be heard
yelling and appears to be having a conversation with someone named “Rusty” who was
1 The Fourth Court of Appeals in San Antonio, Texas transferred this cause to our Court pursuant
to a docket equalization order from the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
2 This cause was tried to the jury along with three other charged offenses. Those offenses include,
appellate cause number 13-20-00190-CR, which is for aggravated assault, and two other causes not before
this Court and not at issue in this appeal.
3 The bulk of the witnesses’ testimony pertained to the aggravated assault of a public servant
cause, and some of the evidence pertained to the other two charged offenses not before us; therefore, we
will not discuss those facts in detail, as they are not relevant to this cause.
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not present. The evidence established that only Osborn and his child were in the home
during the incident. The State asked Officer Keller to describe Osborn’s demeanor; Officer
Keller said, “I believe it was common with being intoxicated on methamphetamine from
my job as a patrol officer.” The State asked Officer Keller to explain, and he replied, “Being
paranoid, talking to someone that’s not there, angry. Those [behaviors].” Officer Keller
stated that he did not go into Osborn’s home, and he did not arrest Osborn.
Harold Degenhardt, a sergeant with the Kerrville Police Department, testified that
Osborn was arrested when he eventually came out of his house. The State asked
Sergeant Degenhardt to describe Osborn’s behavior. Sergeant Degenhardt stated, “That
day, I would say, my experience as a police officer, it would be some kind of narcotics-
induced psychosis.” The State asked Sergeant Degenhardt to explain; he replied, “Seen
it countless times before . . . [they] can’t be reasoned with, [they are] just out of control,
[his behavior was] totally different than his demeanor now.” Sergeant Degenhardt
believed that Osborn was paranoid, which according to Sergeant Degenhardt is common
in people suffering from narcotics-induced psychosis. Sergeant Degenhardt stated that
Osborn’s behavior was consistent with a person who has used methamphetamine.
Jesse Baldwin, an officer with the Kerrville Police Department, testified that when
he arrived at Osborn’s residence, he “heard loud screaming, yelling, and obscenities
coming just from within the threshold of the residence.” The State asked Officer Baldwin
to characterize Osborn’s actions. Officer Baldwin replied, “To me, due to my experience
in the profession of law enforcement, to me it appeared that there was some sort of
delusion. There was some sort of anxiety, high anxiety, paranoia, that sort of thing.” The
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State asked, “And in your experience, what is that consistent with?” Officer Baldwin said,
“In my professional law enforcement experience, anytime that I’ve encountered someone
with these types of demeanors, being highly paranoid, altered mental status, specifically
the paranoia is a big one, and delusion, that’s normally an interaction I have with someone
that is under the influence of methamphetamine.”
According to Officer Baldwin, Osborn eventually surrendered, and although Officer
Baldwin did not recall every item Osborn was wearing, Officer Baldwin said that what
stood out to him was that Osborn was wearing a construction hat and a coat. Officer
Baldwin heard Osborn yell “there’s two more in the attic”; however, upon his search of the
home, no one was in the attic.
Ryan Cockrell, a sergeant with the Kerrville Police Department, testified that he
helped apprehend Osborn. The State asked Sergeant Cockrell to describe Osborn’s
appearance. Sergeant Cockrell said,
He looked disheveled . . . just kind of like someone who’s been up all night,
but wide-eyed. And I felt like, at the time, that him saying that there was [sic]
people climbing around in his attic, and what information I had about the
call so far from officers on the scene, was that he was probably paranoid or
seeing things that weren’t there.
The State asked, “And generally, what is that [behavior] consistent with, based on your
experience?” Sergeant Cockrell responded, “That they’ve been using
methamphetamine.” Sergeant Cockrell testified that he asked Osborn if he had used
methamphetamine, and Osborn replied that he had not used methamphetamine but had
“smoked marihuana earlier.”
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Daniel Haas, a sergeant with the Kerrville Police Department, testified that Osborn
was acting “[v]ery erratic, paranoid, [making] weird comments” and that it appeared that
Osborn was under the influence of methamphetamine. The State asked Sergeant Haas
to elaborate. Sergeant Haas responded, “My training and experience. People that are
under the influence of methamphetamine, they will exhibit paranoia, erratic movements,
just very unpredictable.” Sergeant Haas testified that he had encountered similar behavior
on numerous occasions in others who had been under the influence of
methamphetamine. According to Sergeant Haas, after a prolonged stand-off, Osborn was
arrested.
Jimmie Dresden Mitchell, a child protection investigator with the Department of
Family and Protective Services (CPS), testified that she investigated the facts of this case
because Osborn’s four-year old child was at Osborn’s residence on November 20, 2018,
when Osborn was arrested. Mitchell stated that she contacted Osborn in the Kerr County
Jail. The State asked Mitchell to describe how Osborn appeared to her. Mitchell replied
as follows:
Well, descriptive-wise from what I observed, he was very disheveled. His
hair was, you know, kind of all over the place, wasn’t brushed. I had
previously known him from prior cases, and he appeared that he had lost a
whole lot of weight. He had scabs, various scabs on his face and his arms,
to me, that were, through my training and experience, indicative of picking.
Which it is a common sign of methamphetamine use.
Mitchell testified that she has encountered numerous people who use
methamphetamine and that she has observed similar characteristics in those people.
According to Mitchell, she asked Osborn if he used drugs, and he responded that he
does. Specifically, Mitchell said, “Mr. Osborn reported that . . . he uses
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methamphetamine, mostly cocaine and marijuana, and he stated that he smokes
marijuana like he smokes cigarettes, which is all the time.” The State asked if Osborn
talked about this case. Mitchell replied, “Yes, he did. I asked him what was going on?
And . . . that was when he admitted that he was using meth, cocaine, and marijuana, and
that the house made him do it.” According to Mitchell, Osborn refused to take a drug test.
However, Osborn permitted CPS to test his child for drugs. The trial court admitted the
lab report of the child’s hair follicle drug test performed on December 5, 2018, showing
that the child tested positive for methamphetamine.
Gary Stephens, an officer with the Kerrville Police Department who is the custodian
of evidence, testified that a bong and “a propane small torch” were found in “a back
bedroom in the west back corner of the residence.” Officer Stephens stated that the bong
contained a liquid which he emptied into a sterile container and sent to the lab for testing.
Officer Stephens testified that another bong that resembled a “Gatorade bottle” was found
also containing a liquid which “was also taken to the police department[,] placed into a
sterile container[,] and transported to [the lab].” The liquid from the first bong was tested
and found to contain 60.26 grams of methamphetamine.
James Machetta, an investigator with the Kerrville Police Department, testified that
he asked Osborn if anyone else lived at his residence and Osborn said, “No.” Investigator
Machetta clarified that “whenever I asked him in the interview, he said it was just [his
child] and hi[m] . . . those were the only two that lived in that residence.”
Osborn called Chrystal Barraza during his case-in-chief. Barraza testified that she
stayed at Osborn’s residence “off and on” to take care of his child. Barraza said that she
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would stay the night when Osborn had to leave early. Barraza stated that another woman
named Cassandra Moreno moved in with Osborn at the residence. Barraza testified that
she used methamphetamine, and she saw both Moreno and Osborn using it too.
However, according to Barraza, she never saw Osborn use methamphetamine in front of
his child.
Barraza testified that on November 20, 2018, she went to Osborn’s residence at
approximately 4:00 a.m., put some laundry in the dryer, and went to bed. Subsequently,
Barraza stated that Moreno woke her up. Barraza explained:
[Moreno] came and said, [Barraza], you need to get up. [Osborn’s] acting
crazy. He’s making a lot of noise. So I came out and he was walking down
the hallway with this pole, banging against the wall. And I said, [Osborn],
what are you doing? [Your child is] sleeping. And he didn’t answer me. And
so I was like, I’m sick of this shit. I grabbed my purse off the table and I
walked out the door.
....
So I walked out, got to my car. I was looking for my phone to call his mom.
I couldn’t find my phone. And as I was coming back up to go up the sidewalk,
[Moreno] and two guys [Mario and Chilly] were running out of the house
[because Mario told Barraza that Osborn was shooting his gun].
Barraza stated that she gave the group a ride when she left the residence.
Barraza testified that the bong found by police belonged to Moreno and that it did
not belong to Osborn. According to Barraza, the room where the bong with the
methamphetamine was found was Moreno’s bedroom. Barraza acknowledged that some
of the drawers in the dresser in that room contained Osborn’s child’s clothing.
On cross-examination by the State, Barraza testified that she used
methamphetamine, but she did not smoke it. Barraza stated that although she never used
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methamphetamine with Osborn, on one occasion, she saw him smoke methamphetamine
with a “little pipe.” The State asked Barraza if Osborn used a pipe that resembled the
“Gatorade pipe” found in his residence, and she replied, “Yeah, just a pipe like that.”
Osborn testified that although he used methamphetamine, the methamphetamine
found in his residence did not belong to him. Osborn acknowledged that he had previously
ingested methamphetamine as follows:
Usually I would do what is called parachuting, and that’s either where you
take a piece of tissue and put a shard or a crystal of meth in there and
swallow it. Or I would put it into pill form and take it kind of like Adderall. I
did smoke it occasionally, but ingesting it through my mouth was my biggest
thing because it didn’t draw too much attention.
Osborn denied that his behavior on November 18, 2018, was induced by
methamphetamine. Osborn blamed his behavior on the following:
I heard some commotion across the house. Actually I heard commotion out
in my backyard, which led me to get up. And when I get up, I hear male
voices across my house. And I know that only two females [and my child]
are in my house. So it kind of put me on alert that there’s two male voices.
I open up my door and I’m met right there in the hallway, first Chrystal, then
Cassandra, and two males directly behind them.
....
I met them in the hallway. . . . I followed them into what my [child] calls her
room, which is, whenever I’m watching her, that’s where her videos, that’s
her day room kind of thing. And I see drug paraphernalia everywhere. At
that point I told them that they needed to leave. I turn around to go back to
be with my daughter, and the two males were following me down the hall.
And I told them, y’all need to leave. I already asked y’all to leave. And in
that instance is when they became aggravated, I guess you would say. I
turned around, told one of them, said, look, you need to go.
....
There was a point where . . . they were trying to make it okay for them to be
there, which I wasn’t allowing it after what I had seen. They became
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combative. I turned around. I asked them to leave again. They went to strike
me physically. I pushed them away. I went back into my room . . . .
....
So I come back in and I sit down in the rocking chair after being threatened.
I couldn’t go back to sleep, so I’m sitting there and I hear somebody walk
back behind me.
....
At that point I turned around and I could see somebody looking into the
window because . . . there’s blinds but they’re kind of see-through kind of
like my shirt.
Osborn stated that he pointed his finger at the person at his window, the person
ducked down, and Osborn went to get his gun. Then Osborn “hit” the side of the wall and
said, “if you’re still there, you need to leave.” Osborn testified that he heard somebody
“chamber a round” in a pistol, he felt fear, and he shot his gun emptying the whole
magazine. Osborn clarified that he shot sixteen times.
Osborn testified on cross-examination that he started a fire in his bathroom sink
prior to the arrival of the police because he had found a white washcloth that he believed
had methamphetamine, and he did not want his child to find it. Osborn did not explain
how he found the washcloth, and he claimed that he had guessed that the moisture on
the washcloth was methamphetamine. Osborn acknowledged that the room where the
contraband was discovered was his child’s room, and that the dresser where the
contraband had been located contained his child’s clothing, among other things. Osborn
admitted that he had previously used methamphetamine at his residence by smoking it.
The jury found Osborn guilty of the charged offense. This appeal followed.
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II. STANDARD OF REVIEW
In determining the sufficiency of the evidence, we consider all the evidence in the
light most favorable to the verdict and determine whether a rational fact finder could have
found the essential elements of the crime beyond a reasonable doubt based on the
evidence and reasonable inferences from that evidence. Whatley v. State, 445 S.W.3d
159, 166 (Tex. Crim. App. 2014); Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim.
App. 2010) (plurality op.). The fact finder is the exclusive judge of the facts, the credibility
of witnesses, and the weight to be given their testimony. Brooks, 323 S.W.3d at 899. We
resolve any evidentiary inconsistencies in favor of the judgment. Id.Sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex.
Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). “Such a
charge is one that accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s
theories of liability, and adequately describes the particular offense for which the
defendant was tried.” Villarreal, 286 S.W.3d at 327; see Malik, 953 S.W.2d at 240.
A person commits the offense of possession of a controlled substance if that
person knowingly or intentionally possesses a controlled substance listed in penalty group
1 of the Texas Health and Safety Code. See TEX. HEALTH & SAFETY CODE ANN.
§ 481.115(a), (b). Methamphetamine is listed as a controlled substance in penalty group
1. See id. § 481.102(6).
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“When the contraband is not in the exclusive possession of the defendant, a fact
finder 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); see
Poindexter v. State, 153 S.W.3d 402, 405–06 (Tex. Crim. App. 2005). Texas courts have
recognized many non-exhaustive factors that may, either singly or in combination, show
the accused’s affirmative link to contraband. Tate, 500 S.W.3d at 414. Such factors
include, among others, (1) the defendant’s presence when a search was 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 attempted to flee, (5) whether
other contraband or paraphernalia were present, (6) whether the defendant was under
the influence when arrested, and (7) 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).
“A person need not have exclusive possession of a controlled substance in order to be
guilty of possession—joint possession will suffice.” Hughitt v. State, 539 S.W.3d 531, 538
(Tex. App.—Eastland 2018), aff’d, 583 S.W.3d 623 (Tex. Crim. App. 2019) (citing
McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985)). “Affirmative links tend
to establish that the accused’s connection with the contraband was more than just
fortuitous.” Barbosa v. State, 537 S.W.3d 640, 645 (Tex. App.—San Antonio 2017, no
pet.) (internal quotations omitted) (citing and quoting Gill v. State, 57 S.W.3d 540, 544
(Tex. App.—Waco 2001, no pet.); Harris v. State, 994 S.W.2d 927, 933 (Tex. App.—
Waco 1999, pet. ref’d)).
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III. DISCUSSION
By his sole issue, Osborn contends that the evidence is insufficient because there
were no affirmative links connecting him to the contraband. Specifically, Osborn argues
that the evidence showed that other people lived at the house where the contraband was
found, there was no evidence that he was intoxicated, and mere presence at the location
where contraband is found is not enough to support a conviction.
First, Osborn argues that because he was not alone in the home where the
contraband was found by police, we must determine whether additional independent facts
and circumstances affirmatively link him to the contraband in such a way that it can be
concluded that he had knowledge of the contraband and exercised control over it.
Osborn’s affirmative link argument is premised on a finding that he was not alone when
the contraband was discovered. Here, however, the jury was free to disbelieve Barraza
and Osborn that she and three other people were in his home prior to the police finding
Osborn alone at his home with the bong containing methamphetamine. And the jury was
free to believe police testimony that only Osborn and his child were present in the home
when the contraband was discovered.
In addition, Osborn argues that the evidence shows that he was not in exclusive
possession of the place where the contraband was found because Barraza and Moreno
lived with him and used the room where the contraband was discovered. However, again,
the jury could have disbelieved Barraza’s and Osborn’s testimony that the women used
the room where the contraband was found and that the contraband belonged to Moreno.
Nonetheless, even assuming that the jury believed that Barraza and Moreno lived with
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Osborn and were there the day before police found the contraband, we conclude as
further explained below that additional independent facts and circumstances affirmatively
link Osborn to the contraband in such a way that it can be concluded that he had
knowledge of the contraband and exercised control over it. See Tate, 500 S.W.3d at 414.
The additional independent facts and circumstances here show that the bong with
the methamphetamine was discovered in plain view on a dresser used by Osborn’s child,
and it was conveniently accessible to Osborn. See Tate, 500 S.W.3d at 417 (finding a link
when the drugs and syringe were in plain view and conveniently accessible to the
appellant). The evidence showed that Osborn was legally residing on the premises as
Osborn testified that the place where the methamphetamine was found was his home.
Thus, the record clearly supports a finding that Osborn had the right to possess the place
where the drugs were found.
In addition, Osborn engaged in a standoff with police, and he prevented them from
entering his home by using a gun to threaten police officers even though he claimed at
trial that he wanted the police to come to his home due to the two male intruders. Further,
Osborn admitted at trial that he burned a washcloth which had methamphetamine on it.
The jury could have reasonably inferred that Osborn did not want police to enter his
residence because he did not want them to discover the methamphetamine and that he
burned the washcloth to hide evidence of the methamphetamine. The jury could have
reasonably found these acts showed a consciousness of guilt. See Evans, 202 S.W.3d
at 162 n.12 (listing a consciousness of guilt as a factor affirmatively linking an accused to
the contraband).
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Police found two bongs in Osborn’s home, including a bong resembling a Gatorade
bottle that Barraza described as similar to the bong she had witnessed Osborn previously
use to smoke methamphetamine. See id. (setting out that factor that may show an
affirmative link to contraband includes whether drug paraphernalia is present). Osborn
admitted that he had in the past smoked methamphetamine in his home.
When he was arrested, although Osborn spoke to the police, he did not inform
them that there had been several people in his home using methamphetamine. In
addition, the police officers who were present during the stand-off with Osborn, each
testified that based on their experience and training as police officers, Osborn’s behavior
was consistent with the behavior of a person under the influence of methamphetamine.
See id. (including that the defendant was under the influence of drugs as a factor linking
the defendant to the drugs).
We conclude that the logical force of the combined evidence is sufficient to
affirmatively link Osborn to the contraband. See Tate, 500 S.W.3d at 414. In other words,
the evidence included factors other than Osborn’s mere presence that connected him to
the methamphetamine. Under these circumstances, the evidence established that
Osborn exercised care, control, and management over the contraband and knew that the
substance was contraband. See id. Thus, viewing the evidence in the light most favorable
to the verdict, a rational trier of fact could have found beyond a reasonable doubt that
Osborn committed the offense of possession of a controlled substance. See Brooks, 323
S.W.3d at 899. The evidence is therefore sufficient to support the verdict. See id. We
overrule Osborn’s sole issue.
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IV. CONCLUSION
We affirm the trial court’s judgment.
JAIME TIJERINA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
28th day of October, 2021.
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