 PD-0527&0528-15
                                                 May 6, 2015
           No. _______________

                  IN THE

TEXAS COURT OF CRIMINAL APPEALS

        ________________________

 Nos. 01-14-00343-CR and 01-14-00344-CR

         In the First Court of Appeals
                    of Texas
        ________________________



   Damion Cornelius Gordwin, Appellant

                      v.

        The State of Texas, Appellee



        ________________________

Appellant’s Petition for Discretionary Review

        ________________________


                             Jerald K. Graber
                             TSB # 08240320
                             917 Franklin, Suite 510
                             Houston, Texas 77002
                             Tel. 713-224-232
                             graberlaw@sbcglobal.net
                             Attorney for Appellant
            Statement Regarding Oral Argument


Appellant waives oral argument.




                              2
                       Table of Contents

                                           Page

STATEMENT REGARDING ORAL ARGUMENT          2

TABLE OF CONTENTS                          3

INDEX OF AUTHORITIES                       4

STATEMENT OF THE CASE                      6

STATEMENT OF PROCEDURAL HISTORY            7

APPELLANT’S GROUND FOR REVIEW              7

REASON FOR REVIEWING GROUND FOR REVIEW     7

ARGUMENT                                   8

CONCLUSION and PRAYER FOR RELIEF           14

CERTIFICATE OF COMPLIANCE                  14

CERTIFICATE OF SERVICE                     15




                               3
                          Index of Authorities

Cases                                                          Page

Brooks v. State,
     323 S.W.3d 893, 895 (Tex. Crim. App. 2010)                9, 11

Ervin v. State,
      331 S.W.3d 49, 55 (Tex. App.—Houston [1st Dist.]         10, 12
      2010, pet. ref'd)

Evans v. State,
      202 S.W.3d 158, 162 (Tex. Crim. App. 2006)               10

Hyett v. State, 58 S.W.3d 826, 830
      (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd)        10

In re Winship,
       397 U.S. 358, 361, 90 S. Ct. 1068, 1071,                9, 12
       25 L. Ed. 2d 368 (1970)

Jackson v. Virginia,
      443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560, (1979)   9, 11

King v. State,
      895 S.W.2d 701, 703 (Tex. Crim. App. 1995)               10, 12

Laster v. State,
      275 S.W.3d 512, 517 (Tex. Crim. App. 2009)               9, 12

Poindexter v. State,
      153 S.W.3d 402, 405 (Tex. Crim. App. 2005)               10

Williams v. State,
      235 S.W.3d 742, 750 (Tex. Crim. App. 2007)               9, 12




                                      4
Statutes, Codes and Rules


Tex. Health & Safety Code § 481.002(38)   10

Tex. Pen. Code § 1.07(a)(39)              10

Tex. Pen. Code § 37.09(d)(1)              12

Tex. R. App. Proc. 66.3 (c) and (f)       7




                                      5
To the Honorable Court of Criminal Appeals:


                              Statement of the Case

      Appellant was charged by indictment with the felony offenses of

tampering with physical evidence in cause number 1397495 and possession of

a controlled substance in cause number 1397496. (CR 9, 9)¹. Appellant

entered a plea of not guilty and the cases were tried before a jury. (RR III 10).

The jury found appellant guilty of both charges. (RR III 171-172). After a

sentencing hearing, the jury sentenced appellant to three years in prison on the

tampering with evidence case and two years in prison on the possession of a

controlled substance case. (RR V 55).

      Appellant timely filed a written notice of appeal. (CR 57, 58). The trial

court certified the defendant’s right of appeal. (CR 56, 57). Appellant requests

oral argument in this case.




____________________________________________________________
   1- Cause number 1397495 is cited first, followed by cause number 1397496.


                                          6
                       Statement of Procedural History

       On April 30, 2015, a panel of the First Court of Appeals issued an un-

published opinion affirming the trial court’s judgments in these two cases.

Appellant files this first petition for discretionary review with this Court.




                        Appellant’s Ground for Review


   1) The Court of Appeals erred in finding that the evidence is sufficient to
      support the conviction of possession of a controlled substance since
      appellant never maintained care, custody, or control over the cocaine
      that was found in a baggie in a toilet.

   2) The Court of Appeals erred in finding that the evidence is sufficient to
      support the conviction of tampering with evidence under the theory that
      appellant “concealed” the evidence. The indictment and jury charge did
      not allege that appellant “concealed” the evidence. The evidence is
      insufficient to support the conviction for tampering with evidence since
      appellant did not alter or destroy the cocaine that was found in a baggie
      in a toilet.




           Reason for Reviewing Appellant’s Ground for Review


       The lower Court’s ruling should be reviewed pursuant to Tex. R. App.

P. 66.3(c) and (f).




                                         7
                                  Argument

      The evidence is insufficient to support the conviction for possession of a

controlled substance since appellant never maintained care, custody, or control

over the cocaine that was found in a baggie in a toilet. Appellant never touched

the cocaine or the baggie containing the cocaine. In fact, the police indicated

that they never saw appellant put any item into the toilet. While the testimony

established that the officers saw appellant flush the toilet numerous times,

there is no evidence that appellant ever possessed the cocaine. Therefore, the

Court of Appeals erred in finding that the evidence is sufficient to support the

verdict.

      Also, the evidence is insufficient to support the conviction for tampering

with physical evidence since appellant did not alter or destroy the cocaine that

was found in a baggie in a toilet. The indictment and jury charge alleged that

appellant actually altered or destroyed the physical evidence. The Court of

Appeals erred in finding that the evidence is sufficient to support the verdict

under the theory that appellant “concealed” the evidence.         However, the

indictment and jury charge did not allege that appellant “concealed” the

evidence. The only evidence that was presented to the jury was that appellant

flushed the toilet that contained the baggie of cocaine that was put there by the




                                       8
co-defendant. The physical evidence that was seized by the police was never

altered or destroyed.



      Possession of a Controlled Substance – Cause Number 1397496

      The Jackson v. Virginia legal-sufficiency standard is the only standard

that a reviewing court should apply in determining whether the evidence is

sufficient to support each element of a criminal offense that the State is

required to prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d

893, 895 (Tex. Crim. App. 2010); Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.

2781, 61 L. Ed. 2d 560, (1979). Under this standard, evidence is insufficient

to support a conviction if, considering all the record evidence in the light most

favorable to the verdict, no rational factfinder could have found that each

essential element of the charged offense was proven beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. at 319, 99 S. Ct. at 2789; In re Winship,

397 U.S. 358, 361, 90 S. Ct. 1068, 1071, 25 L. Ed. 2d 368 (1970); Laster v.

State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235

S.W.3d 742, 750 (Tex. Crim. App. 2007). Viewed in a light favorable to the

verdict, the evidence is insufficient when either: (1) the record contains no

evidence, or merely a "modicum" of evidence, probative of an element of the

offense; or (2) the evidence conclusively establishes a reasonable doubt. Laster



                                       9
v. State, 275 S.W.3d at 518. This standard applies equally to both direct and

circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App.

1995); Ervin v. State, 331 S.W.3d 49, 55 (Tex. App.—Houston [1st Dist.]

2010, pet. ref'd).

       Possession is defined as "actual care, custody, control, or management."

Tex. Pen. Code § 1.07(a)(39) (West 2011); Tex. Health & Safety Code §

481.002(38). To prove unlawful possession of a controlled substance, the State

must establish that (1) the accused exercised care, control, or management

over the contraband, and (2) knew the substance was contraband. Poindexter v.

State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). The evidence must

establish that the accused's connection with the substance was more than

fortuitous. Id. at 405-06. Evidence must link the accused to the offense so that

one reasonably may infer that the accused knew of the contraband's existence

and exercised control over it. Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.—

Houston [14th Dist.] 2001, pet. ref'd). Mere presence at the location where the

controlled substance was found is insufficient, by itself, to establish

possession. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006).

       In this case, there is no evidence that appellant actually exercised care,

custody, or control over the subject cocaine. The testimony established that

Christopher Hutchinson discarded the baggie of cocaine into the toilet. There



                                       10
is no evidence that appellant ever touched the cocaine or the baggie containing

the cocaine. In fact, the police indicated that they never saw appellant put any

item into the toilet. (RR III 92, 142). While the testimony established that the

officers saw appellant flush the toilet numerous times, there is no evidence that

appellant ever exercised care, control, or management over the contraband.

Thus, the evidence is insufficient to support the jury’s verdict, and this court

should enter a judgment of acquittal on the possession of a controlled

substance conviction.



      Tampering with Physical Evidence – Cause Number 1397495

      The Jackson v. Virginia legal-sufficiency standard is the only standard

that a reviewing court should apply in determining whether the evidence is

sufficient to support each element of a criminal offense that the State is

required to prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d

893, 895 (Tex. Crim. App. 2010); Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.

2781, 61 L. Ed. 2d 560, (1979). Under this standard, evidence is insufficient

to support a conviction if, considering all the record evidence in the light most

favorable to the verdict, no rational factfinder could have found that each

essential element of the charged offense was proven beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. at 319, 99 S. Ct. at 2789; In re Winship,



                                       11
397 U.S. 358, 361, 90 S. Ct. 1068, 1071, 25 L. Ed. 2d 368 (1970); Laster v.

State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235

S.W.3d 742, 750 (Tex. Crim. App. 2007). Viewed in a light favorable to the

verdict, the evidence is insufficient when either: (1) the record contains no

evidence, or merely a "modicum" of evidence, probative of an element of the

offense; or (2) the evidence conclusively establishes a reasonable doubt. Laster

v. State, 275 S.W.3d at 518. This standard applies equally to both direct and

circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App.

1995); Ervin v. State, 331 S.W.3d 49, 55 (Tex. App.—Houston [1st Dist.]

2010, pet. ref'd).

       A person commits the offense of tampering with physical evidence (as

specifically charged in the indictment) if, knowing that an offense had been

committed, alter or destroy a thing, namely cocaine, with intent to impair its

verity as evidence in any subsequent investigation of or official proceeding

related to the offense. (CR 9); Tex. Pen. Code § 37.09(d)(1).

       In this case, the evidence is insufficient to support a conviction for

tampering with physical evidence since there is no evidence that appellant

actually altered or destroyed the cocaine that was found in the toilet. The

indictment and the jury charge in this case did not allege that appellant

concealed the evidence, one of the methods in which one could commit the



                                      12
offense under § 37.09(d)(1); (CR 9, 39-43). The indictment and the jury charge

only alleged that appellant altered or destroyed the physical evidence. (CR 9).

Therefore, the Court of Appeals erred in finding (1) that “the jury could have

found that [appellant] “conceal[ed]” the evidence, (2) that “the jury could have

reasonably inferred that appellant concealed the cocaine that the officers

recovered from the toilet, and (3) that “the jury could have reasonably found

that appellant concealed…cocaine.” Gordwin v. State, No. 01-14-00343-CR

(April 30, 2015, unpublished), pgs. 8-10. The jury was not authorized to

convict under the theory that appellant “concealed” the evidence.

      The only evidence that was presented to the jury was that appellant

flushed the toilet that contained the baggie of cocaine that was put there by the

co-defendant. There is no evidence that the physical evidence was ever altered

or destroyed. In fact, since the cocaine was inside a plastic baggie, it was

shown that the cocaine was not altered at all. Furthermore, since the cocaine

was retrieved by the police, the evidence was not destroyed in any way. In this

case, the most that the State could prove was that appellant committed the

offense of attempted tampering with physical evidence. However, since the

elements of tampering with physical evidence were not proven by the State,

appellant requests that this Court acquit him of the offense of tampering with

physical evidence.



                                       13
                           Conclusion and Prayer


      Appellant prays that this Honorable Court grant Appellant’s Petition for

Discretionary Review, reverse the decision of the Court of Appeals, and acquit

appellant in each cause.

                                             Respectfully Submitted,

                                             /s/ Jerald Graber
                                             _______________________
                                             Jerald K. Graber
                                             917 Franklin, Suite 510
                                             Houston, Texas 77002
                                             713-224-2323
                                             Attorney for Appellant




                           Certificate of Compliance

      I, Jerald K. Graber, do certify that this petition is in compliance with

Rule 9 since the entire document consists of 2,155 words and is typed using

14-point font.

                                             /s/ Jerald Graber
                                             _______________________
                                             Jerald K. Graber




                                      14
                             Certificate of Service

       I hereby certify that a copy of this PDR was served upon the following

parties via e-file:

Alan Curry
Harris County District Attorney’s Office
1201 Franklin, 6th Floor
Houston, TX 77002

State Prosecuting Attorney
P.O. Box 12405
Austin, Texas 78711


                                              /s/ Jerald Graber
                                              _______________________
                                              Jerald K. Graber




                                      15
OpinionissuedApril 30,2015




                             In The

                        @ourtof 9ppeulg
                             For The

                     fritst Distriotof(Iexsg

                        NO. 0l-14-00343-CR
                        NO. 0l -14-00344-CR


            DAMION CORNELIUSGORDWIN,Appellant
                               V.
                  THE STATE OF TEXAS, Appellee



               On Appealfrom the 248thDistrictCourt
                        Harris County,Texas
               Trial Court CaseNos.1397495& 1397496
                         MEMORANDUM OPINION

     A jury foundappellant,
                         DamionCorneliusGordwin,guittyof the olfensesof

tamperingwith physical evidencerand possessionof a c,rntrolledsubstance,

namelycocaine,weighinglessthan one gram.' [t assessed
                                                    his punishment
                                                                 at

          for threeyearsfor tamperingwith physicalevidenceandconfinement
confinement

for two yearsfor possession                      with the sentences
                          of a controlledsubstance,               to run

concurrently.In threeissues,appellantcontends
                                            thatthe evidenceis insulficientto

supporthis convictionsand the trial court erred in enteringa deadlyweapon

findingin itsjudgment.

      We affirm.

                                 Background

      Houston Police Department("HPD") Officer M. Santuariotestified that on

August 9,2013, while working in the HPD NarcoticsDivision, he and other law

enforcementofficers "servefd] and executefd]a [no knock] searchwarrant" at a

residence. Santuarioacted as the "case agent" and the "pointnnan"for the entry




      SeeTpx. PENRI-                     (VemonSupp.2014);appellate
                   Cooe ANN. $ 37.09(d)(1)                        cause
                         trialcourtcausenumber1397495.
      number01-14-00343-CR;
      S e e T p x. H E R l ru & S n pEr v Coop ANN. $$481.102( 3XD) 481.115(
                                                                     ,         (b)
                                                                              a),
      (Vernon2010);appellate     causenumber01-14-00344-C& trial courlcaurlenumber
      1397496.
team. HPD Officer J. Elkins "breachedthe ffront] door" of'the residence,while

HPD Officer Delacertadeployedthe'"flashbang."i

      As Officer Santuarioentered the residence,he saw appellant,\ ,ho "was

armed," and ChristopherHutchinsonrun into a hallway and then into a restroom.

He followed them because"fn]ormally in a situationlike th[is]" people run to

"discard or destroy narcotics." When Santuarioarrived in lJrerestroom,he saw

Hutchinson"kneeling down in front of the toilet," "on the floor'," while appellant

threw a small "pistol" onto the restroom floor and then lllushed the toilet

repeatedly. The "pistol" "was a floaded]semiautomaticf,]
                                                      . . . small sil'rer gufl,"

with "a round in the chamber." Although Santuarioordered appellantto "stop"

flushing the toilet, he refusedand "[c]ontinued flushing or pulling the ltoilet]

lever." When Santuariotried to removeappellantfrom the toilet,he resisted.

      While appellantflushedthe toilet, Hutchinson"had his hands in the toilet

bowl," and Officer Santuario"saw something leave his hands." As liantuario

explained:"[I]t was [a] couplethingsthat were small[,which] []ooked lilceplastic

bags . . . ." Generally,people do not "flush ernpty plastic bags down the toilet,"

but rather "narcotics."    Thus, it appeared to Santuario thLatappellant and

Hutchinson were working together to flush the items dou'n the toilet. When

Officer Elkins commandedHutchinsonto oostop"
                                           and "put his handsaway from the

      Officer Santuarioexplainedthat a "flash bang""is a distractiondevice"t;hatmakes
      a loudgunshot-likesound,flasheslight,andreleases   minimalsmoke.
toilet," he did not comply. Elkins, therefore,"reached in and basicall'yyanked

fHutchinson] away from the toilet." After the officers relno'vedappellant and

Hutchinsonfrom the restroom,they "handcuffedand . . . escorted[them] out of the

residence."

      Officer Santuariothen took "a closer look at th[e] toilet" and "removed it

from the base [on] the floor." Inside the toilet, he found "a small baggie,that had

crack cocaine in it." HPD officers also searchedthe remainder:of the residence,

appellant,and Hutchinson,and they recovered$2,103 in casrh,marijuanaand

related paraphernalia,a "small digital scale," a beaker, a revolver, and a "baby

bottle with what appearedto be codeineinsideof it."

      Officer Elkins testifiedthat he assistedwith the executionof the "no knock"

searchwarrant at the residence. He breachedthe residence'sfront door with a

"[b]attering device," and Officer Delacerta deployed the "flesh bang." After

Elkins followed Officer Santuariointo the residence,Santuarioy'elled,"[r]unners,"

to alert the other officers that "individuals inside the residence[were] nunning."

Generally,peoplerun in situationssuch as this to "hide," "get rid.of sometihing,"or

to "get away from officers." Elkins saw appellantand Hutctrinslonrun toward the

restroom,and he and Santuariopursued.

      Once inside the restroom,Officer Elkins saw appellanl."cliscard"a."[s]ilver

automatic pistol" onto the floor and Hutchinson "by the toil,et area discarding
somethinginside the toilet." Hutchinsonhad his hands "iLnsidethe toilet," and it

looked like he was "[d]iscarding items into the toilet." After E,lkinscornmanded

Hutchinsonto o'showhis hands" and "get down on the ground," he did not comply.

Although his focus was on Hutchison,Elkins saw appellant''reachingtoward the

lever of the toilet." "observed his hands on the lever." and cor"rldhear the toilet

flushing. According to Elkins, the toilet "had been llushed several times."

Eventually,Elkins "forcefully. . .pull[ed] [Hutchinson]off the toilet" and took

him into custody. In a subsequentsearch of the restroom.,Elkins savyOfficer

Santuario"recover a small bag of what appearfed]to be crack r:ocainecut of the

bottom of the toilet."   HPD oft-rcersalso recovered mariiiuerna.codeine" and

"anotherpistol" from the residence.

      Mona Colcatestifiedthat she.as a criminalistwith the controlledsubstances

sectionof the HPD Crime Laboratory,"receive[s]and anallyze[s]evidence"to "test

it for the presenceof controlled substances." She anerlyzedthe "small bag"

recoveredfrom the toilet and found that it contained0.83 eramsof cocaine.

                           Sufficiency of the Evidence

      ln his third issue,appellantarguesthat the evidenceis i.nsuLfficient
                                                                        to support

his conviction for tampering with physical evidencebecausehe did not "actually

alterf] or destroy[] the cocaine that was found in the toilet." In his first issue,

appellant argues that the evidence is insufficient to support his conviction for
possessionof a controlled substancebecause"there is no evidence that [he]

actuallyexercisedcare,custody,or control over the subjectcocaine."

      We review the legal sufficiency of the evidenceby conr;ideringall of the

evidence"in the light most favorableto the prosecution"to determinewhr:therany

"rational trier of fact could have found the essentialelementsof the crime beyonda

reasonable
         doubt." Jacksonv. Virginia.443 U.S. 307,319,99 S. Ct. 2781,2789

(1979). Our role is that of a due processsafeguard,ensuringonl.ythe rationalityof

the trier of fact's finding of the essential elements of the offense treyond a

reasonabledoubt. See Moreno v. State,755 S.W.2d 866, 857 (Tex. Crim. App.

1988). We give deferenceto the responsibilityof the facl finder to fairl'y resolve

conflicts in testimony,to weigh evidence,and to draw reasonableinferencesfrom

the facts. I|rilliams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

However, our duty requires us to "ensure that the evidenc,epresentedactually

supportsa conclusionthat the defendantcommitted" the criminal offenseof which

he is accused.Id.

Tamperingwith PhysicalEvidence

      A person commits the offense of tampering with physical evidence it

knowing that an offense has been committed,he alters,destroys,or concealsany

record,document,or thing, with intent to impair its verity, legibiltity,or availability

as evidencein any subsequentinvestigationor official proceeilingrelat,edto the
offense.Tpx.PpNnlConpAxx. $ 37.09(d)(1)
                                     (VernonSupp.2014). lHere,the

underlyingindictmentallegedthat appellant,"knowing that an offenselhadbeen

committed, to wit:          POSSESSIoN OF CONTROLL,ED SUBSTANCE,

ALTERIED] AND DESTROYIED] A THING, NAMELY, COCAINE with intent

to impair its VERITY as evidencein any subsequentinvestigationof and of-ficial

proceedingrelatedto the aforesaidoffense."

      Officer Santuariotestified that after he enteredthe residence,he followed

appellant and Hutchinson as they ran into the restroorn. Santuariiofbund

Hutchinson"kneelingdown in front of the toilet," "on the,floor," while appellant

repeatedlyflushed the toilet.       As appellant continuously'flushed the toilet,

Santuario"saw something leave [Hutchinson's] hands." The "something" "was

small . . . it wasn't just one, it was a couple of things that were srnall. [tt] fl]ooked

like plasticbags." Santuariodid not see"any'thingelse in the toilet" "[o]ther than

the plasticbags" that he saw Hutchinsondiscard.

      Officer Santuarioexplainedthat "normally" peoplerun whLenofficers entera

residenceto "discard or destroy narcotics." And, based on his training and

experience,"people [do not] flush empty plastic bags do'wn [a] toilet." Instead,

they flush "narcotics." And, after officers removedappellantanclHutchinsonfrom

the restroom, Santuario"removed [the toilet] from the base [on] the floor" and

found "a small baggiethat had crack cocainein it."
      Similarly, Officer Elkins testifiedthat he saw appellantand F{utchinsonrun

toward the restroom. Once inside the restroom,Elkins saw Hutchinson "by the

toilet area discarding something inside the toilet."          Hurtchinr;on'shands were

"inside the toilet," and he was "discardingitems into the toilet." The only things

that Elkins could seein the toilet were the "items" that Hutchinsonwas discarding.

Elkins also saw appellant's"hands on the ltoilet] lever," and he heard the toilet

being "flushed severaltimes." And Elkins saw Officer Santuario"recove'ra small

bag of . . . crack cocaineout of the bottom of the toilet."

      Appellant arguesthat "there is no evidence"that showrsh,3"actually altered

or destroyedthe cocaine that was found in the toilet" because"the cocaine was

insidea plasticbaggie"and "retrievedby the police,"and,thus,"not alteredat all"

or "destroyedin any way." We note, however,that appellanl"'sargumentneglects

to considerthat the jury was not requiredto find that he altere<J
                                                                or destroyedthe

cocainefound in the single,"small baggie" recoveredfronnthe toilet. Rather,the

jury could have fbund that he "conceal[ed]" the cocaine. Id.              Ancl Officer

Santuariotestified that he saw Hutchinson place a "couple'" oll "small," "plastic

bags" in the toilet, which appellantrepeatedlyflushed. And, basedon hir; training

and experience,Santuarioexplainedthat "people fdo not] lllushempty plastic bags

down [a] toilet," but instead, they flush "narcotics." Officerr Elkins similarly
testified that Hutchinson "discardfed] items into the toilet," wtrich appellantwas

flushing.

      "'Circumstantial evidenceis as probative as direct evidencein establishing

the guilt of an actor, and circumstantial evidence alonLecan be sufficient to

establishguilt."' Merritt v. State,368 S.W.3d 516, 525 tiTex.Crim. App. 2012)

(quotingHooper v. State,2l4 S.W.3d9, l3 (Tex. Crim. App. 2007)). f]asedon the

above testimony,the jury could have reasonablyinferred that appellantconcealed

the cocainethat the officers recoveredfrom the toilet. I\'zloreover"
                                                                  it could have

reasonablyinferredthat cocaine,other than the cocainerecoverr:dliorn the single

baggie,was flushed down the toilet by appellant,and, thus, this other cocainewas

a l t e r e do r d e stro ye d .S e eR a b b v. State,434S.W .3d613, 617 ( Tex. Cr im. App.

2014) (noting "a fact flnder could reasonablyinfer from the evidence that the

baggieand pills were destroyedby their passageinto [a]ppr:llant'sbody"): Hooper,

214 S.W.3dat 15 (fact finderspermittedto draw reasonableinferencesif supported

b y e v i d en ce );se e , e .g ., D i a z y. ^S/a/e,                    l2- 13- 00068- C R ,
                                                   Nos. 13- 13- 00067- CR,

2014 Wt. 1266350,at *2 & n.3 (Tex. App.-Corpus ChristiJan.23,2014, no pet.)

(mem. op., not designatedfor publication)(concludingjur.y could reasonablyhave

inferred defendantdestroyedcocaineby flushing it down toi.letwhere "there was

cocaine found around the rim of the toilet bowl and in the toilet water, and

[defendant]had just exited the bathrooffi");Turner v. State,No. 13-12-00335-CR,
             at *2 (Tex.App.-CorpusChristil\[ar:.14,2013,no pet.)
2013wL 1092194,

(mem. op., not designated
                        for publication)(holdingfactfindercould have

reasonably found defendant destroyed cocaine by swallowing based on

circumstantial evidence officer saw baggie with "white or beige rock-like

substance" in defendant's mouth and cocaine commonll, prackagedin such

manner).

         Viewingthe evidencein the light mostfavorableto tlhejury's verdict,we

concludethat the jury could have reasonablyfound that appellantconcealed,

altered,or destroyed
                   cocaine.Accordingly,we hold thatthe evidenceis sufficient

to supporthis convictionof the offenseof tamperingwith physicalevidence.

         We overruleappellant'sthird issue.

Possessionof a Controlled Substsnce

         A personcommits the offenseof possessionof a controlledsubstanceif he

                                                                                                                  -I'nx.
"knowingly or intentionally possesses"less than one gran:l of cocaine.

H e n l r n & S a p p l v C o o p A N N . $ $ 4 8 1 . 1 0 2 ( 3 X D 4) ,8 1 . 1 l 5 ; ( a (. l)b, )( V e r n o n2 0 1 0 ) .

To prove that appellantcommittedthis offense,the Statehradto r:stablishbeyonda

reasonabledoubt that he exercisedcontrol. manasement.or care over the cocaine

and knew that it was contraband.Poindexterv. State, 153 S.W.3d 402,405 (Tex.

Crim. App. 2005); see also TEx. PENnLCoDEAxx. $ 1.07(aX39)(Vernon Supp.

2014). Although the Stateneed not prove exclusivepossessionof cocaine,it must



                                                           10
establishthat a defendant'sconnectionwith the cocaine is rnore tharr fortuitous.

Evans v. State,202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006): I4tileyv. State,

3 8 8 S. W.3 d8 0 7 ,8 1 3 (T e x. A p p.- Houston IlstDist.] 2012,pet. r efd) . W hen a

defendantis not in exclusivepossessionof the place where contrabandis found,

the State must show additional affirmative links betweenL
                                                        ttre rlefendantand the

contraband.Deshongv. State,625S.W.2d327,329 (Tex. Crim. App. [PanelOp.]

1 9 8 1 ) ;Ki b b l e v. S ta te .3 4 0S .W.3d 14, 18 ( Tex. App.- - Houston[1st Dist.] 2010,

pet. ref d). Mere presencein the sameplace as contrabandis insufficient,by itself,

to establishactual care, custody,or control. Evons, 20:l S.W.3d at 162. But,

presence or proximity to contraband, when combined withr other direct or

circumstantial
             evidence,may be sufficientto establishpossession.ft/.

      Texas courts have recognizedthat the following non-exclusive"affirmative

links" may be suff'rcient,
                        eithersingly or in combination,to establisha defendant's

possession
         of narcotics: (l) the defendant'spresencewhen a searchis conducted;

(2) whetherthe contrabandwas in plain view; (3) the defendant'rs
                                                               proximity to and

the accessibilityof the narcotic;(4) whetherthe defendantwas under the influence

of narcoticswhen arrested;(5) whether the defendantposrsesseil
                                                            other contraband

or narcotics when arrested; (6) whether the defendant made incriminating

statementswhen arrested;(7) whetherthe defendantattemptedt<l flee; (8) whether

the defendantmade furtive gestures;(9) whether there was an odor of narcotics;



                                            11
(10) whether other contraband or narcotics parapherna.liawere present; (11)

whether the defendantowned or had the right to possessthe' place where the

narcoticswere found; ( l2) whether the place where the narcotic,su,ere found was

enclosed:(13) whether the defendantwas found with a large amount of cash;and

(14) whetherthe conductof the def-endant                      of guilt. Id. at
                                       indicateda consciousness

162 n.12. lt is not the numberof links that is dispositive,but rather,the logical

force of the evidence,both direct and circumstantial,thar is dispositiveto show

possession.Id. at 1621,
                     Jamesv. State,264S.W.3d215,219 (Tex. Aptrr.-Houston

I st Dist.] 2008,pet.ref d).

      Appellant arguesthat "there is no evidencethat [he] actually exercisedcare,

custody, or control over the subject cocaine" because the evidence at trial

"establishedthat . . . Hutchinson discardedthe baggie of r;oc:airre
                                                                  into the toilet,"

"the police indicatedthat they never saw appellantput any iitemirrto the toilet," and

it was not shown that "appellantever touchedthe cocaineor the baggiecontaining

the cocaine."

      Officer Santuariotestifiedthat appellantwas presentin the residence,which

was equippedwith surveillanceequipment at the time law enl'orcementofficers

executed the search warrant. See Evans, 202 S.W.3d at 162 n.12, 163 64

(presencewhen searchconductedconstitutesaffirmative link); s(re,e.g.,Lavigne v.

                         2008 WL 3115385,at *3 (Tr:x.App.--Flouston[1st
state, No. 01-07-00995-CR,



                                         t2
Dist.l Aug. 7, 2008, pet. ref d) (mem. op., not designated.for publication)

(concludingevidencesufficient where defendantfound inside rersidence
                                                                   "equipped

with the extra securityassociatedwith a housededicatedto manufacturingcrack").

Inside the residence,officers found lettersaddressedto appellan,tat the residence,

pictures in the bedrooms,and male clothing that matcherCappellant.'ssize. See

Evans,202 S.W.3dat I 62 n.12, 164-65 (receivingmail at residenceand presence

of clothing raisesreasonableinferencedefendantoccupied residencr:);Cooper v.

St a t e , 8 52 S .W.2 d 6 7 8 .6 8 1 (T ex. App.- Houston [4th Dist.] 1993,pet. r efd)

(concluding mail addressed to defendant, defendant's picture, and clothing

appearingto fit defendantindicateddefendantoccupiedresidence).

      When the officers enteredthe residence,appellant,along with Hutchinson,

ran to the restroom,and Officer Santuariofound appellantstandinE;next to and

flushing the toilet, from which he later recovered a u'small baggie [of] crack

cocaine." SeeEvans,202S.W.3dat 162 n.12 (proximityto narcotic,attemptingto

flee, and making furtive gesturesconstituteaffirmative linkslt;see,e.9., Jordan v.

State, Nos. 02-12-00470-CR, 02-12-00471-CR, 02-12--0047:2-CR,
                                                            2014 WL

1663404^at *3 (Tex. App.-Fort Worth Apr. 24, 2014, no pet.) (nrem. op., not

designatedfor publication)(fleeing to restroomdid not inclicatean "innocent state

of mind"); Perez v. State.No. 07-II-00249-CR, 2012 W'L Il22lA4, at *4 (Tex.

App.-Amarillo Apr.4,2012, no pet.) (mem. op., not designatedfol publication)



                                          l3
(concludingevidencesufficientto showpossession
                                             wherecocainefound in urinal

                                     was standing");Ga'rretty. State.761
"immediatelyadjacentto where[defendant]

S.W.3d664,671(Tex.App.-Fort Worth2005,pet.refd) (evi<lence'
                                                        sufficientto

             possessed
show def-endant      crackcocainewheredefendantfoun<lflus,tring
                                                              bagsof

crackcocainedowntoilet).

      Although Hutchinson, rather than appellant, "had his hands in the toilet

bowl" and discarded "something" that "[]ooked like plasttic b€rgs," Officer

Santuariotestified that it appearedthat appellantand Hurtchinsonv/ere working

togetherto flush the items down the toilet. See,e.g., Sanalersv. Stat,z.No. I l-12-

                                           , t *6 (Tex.App.--Eastland
0 0 1 5 1 - C R 2, 0 1 4 W L 3 8 8 2 1 8 5 a                        Aug. 7,2014. pet.

refd) (mem. op., not designatedfor publication)("[DefenLdant's]
                                                             att:mpt[] to aid

his mother's attempt to destroy evidence when officers arrived eLtthe house,

                        of guilt on his part.");Perez,il.0l'2V/1. I .22704,at *4
indicat[ed]a consciousness

("[A]t the same time fdefendant] was arrested,two other individuals whom

[defendant]was observedto be standingvery closelyto, were otrservt:dattempting

to throw away or concealbaggiesof cocaine.").

      Officer Santuario also saw appellant throw "a sen'liautomaticf,]
                                                                    . . . small

silver gun," which was "loaded" with "a round in the charnber,"onto the restroom




                                         14
floor." seePorterv. state,873s.w.2d729,733(Tex.l\pp.--Dallas1994,pet.

refd) (concluding presence of firearms in apartment where cocaine located

constitutedaffirmative link). And a search of the rema.inderof the residence,

appellant, and Hutchinson revealed $2,103 in cash, marijuLana,and related

paraphernalia,which had been sitting in "plain view" on a table, a "small digital

scale," a beaker,a revolver, and a "baby bottle with what appearedto be codeine

inside of it."   See Evans, 202 S.W.3d at 162 n.72, 16-\-65 (presenceof other

contraband, narcotics paraphernalia, and large amou.nt of' cashLconstitute

affirmative links); Hargrove v. State, 211 S.W.3d 379, 386 (Tex. App.-San

Antonio 2006, pet. refd)       (concluding presence of narcotics paraphernalia.

includingdigital scale,and weaponsin houseconstitutedaffirrrrativ'e
                                                                 links).

      Viewing the evidencein the light most favorableto the.jury's verdict,we

concludethat sufficient affirmative links connectappellantto the cocaine. And the

jury could have reasonablyinferred from the cumulativefcrrceolithe evidencethat

appellantexercisedactual care,custody,or control of the cocain,o.See'Evans,202

S.W.3d at 166 (concludingevidence,'owhenviewed in combinationand its sum

total, constituted amply sufficient evidence"). Accordingll,, we trold that the


      Officer Elkins similarly testified that he saw appellant '''discarrl" a "silver
      automatic pistol" on the f1oor, saw appellant"reachin5ltowa.rdthe lever of the
      toilet," "observedfappellant's]hands on the lever," and heerrdthe toilet flushing.
      In a subsequentsearchof the restroom, Ofllcer Santuario"recc,ver[ed]a small bag
      of what appearfed]to be crack cocaineout of the bottomLof'the toilert." And FIPD
      ofllcers recoveredmariiuana.codeine.and "anotherpistol" in the residence.


                                          15
evidenceis sufficientto supportappellant'sconvictionof tlheoffenseof possession

of a controlled
              substance.

       We overruleappellant's
                            first issue.

                                DeadlyWeaponFinding

       In his secondissue,appellantarguesthat the trial courterredin "enteringa

deadlyweaponfindingin thejudgmentfor possession
                                             of'a controllecl
                                                           substance"

because"there[was] no expressfinding by the jury that lhe] usedo,rexhibiteda

deadlyweapon,namelya firearm."

       When a jury is the factfinder,it must make an affirmretirre
                                                                 f indinLgconcerning

the use or exhibition of a deadly weapon before the trial couLrtr:anenter a deadly

weaponfinding in its judgment. Lafleur v. State, 106 S.V/.3d9)1,911
                                                                  (Tex. Crim.

                                                                 by the jury
App. 2003). "Aff-rrmativefinding" meansan "expressdel.errnination"

that a deadly weaponwas actually used or exhibiteddurinlgthe r;omm.ission
                                                                        of the

o f f e n s e . P o l k v. S ta te ,6 9 3S .W .2d391,393 ( Tex. Cr im. App, 1985) . The jur y

makesthe requiredaffirmative finding when: (l) the indic,tmentalletr;es
                                                                      the use or

exhibition of a deadly weapon and the jury's verdict states that it found the

defendant"guilty as chargedin the indictment"; (2) the juqr finds the defendant

guilty as allegedin the indictmentand, althoughthe use o1'a deerdlyweapon is not

specificallypleaded,the indictmentallegesthe use or exhibitiorrof a weaponthat

is deadly per se; or (3) the jury affirmatively answersa sp,ecialissueon the use or



                                             16
exhibitionof a deadlyweapon. Polk, 693 S.w.2d at 396; Jcthnsa,nt
                                                             v. State,6

S.W.3d709,713-14(Tex.App.-Houston[1stDist.] 1999,pet.refd').

       Here,the indictmentspecificallyallegedthe useor exhib,ition
                                                                 of a "deadly

weapon"by appellant.5OfficersSantuario
                                     andElkinstestifiedtlhatappellant"was

armed"and threw a "small silver gun" onto the restroomfl.oorbeforehe began

flushing the toilet. And the jury, in its verdict, fourrd appellant"guilty of

possession
         of a controlledsubstance,
                                namely,cocaine.
                                              . . . as chargedin the

indictment."Further,the trial court'schargeto thejury inclurJed,
                                                              a questionasking

thejury to determine
                   whetherappellant
                                  usedor exhibiteda deadlyweaponduring

the commissionof the offenseor duringthe immediatefltighttherefiom,and the

jury answeredthe questionin the affirmative. See Polk, 693 S.\4,'.2d
                                                                   at 394;

J o h n s o n .S
               6.W.3d
                    at713 14.

       Once the jury made the affirmative finding, the trial court was required to

e n t e rt h e fi n d i n g i n i ts j u d g me nt. SeeTpx. CooE Cnr v..Pnr tc.ANtl. ar ts.42.0l ,

l i 1 ( 2 1 ) ,1 2 .1 2 ,$ 3 g (a )(2 )(V e rn onSupp.2014) ;Johnson.6lS.V/.3dat 714 ( when

jury makes affirmative finding on use of deadly weapon:,'''enteringthLeaff-irmative

finding in the judgment is mandatory; the trial court lhas no discretion").



       The indictment states: "[A]t the time that the Def'end;antcommitted the f-elony
       ofl'ense of POSSESSION OF CONTROLLED SUflSTAllCFl on or about
       AIIGUST 9,2013, as hereinabovealleged,he usedand exhibiteda cleadlyweapon
       namely, a FIREARM, during the commission of saicl off-ensea.nd during the
       immediate flight from said ofl-ense."


                                               t1
Accordingly,we hold that the trial courtdid not err in enterirrg
                                                               the deadlyweapon

findingin itsjudgment.

        We overruleappellant's
                            secondissue.

                                               Conclusion

        We affirm the judgment of the trial court.




                                                           Terry Jennings
                                                           Justice

Panelconsistsof JusticesJennings,Keyes,and Massengale.

D o n o t p u b l i sh . T t-x.R . A p p .P . 47.2( b) .




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