                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-12-00043-CR


JOHNNY PEREZ                                                     APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

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                       MEMORANDUM OPINION1

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                               I. INTRODUCTION

      Appellant Johnny Perez appeals his conviction for possession of a

controlled substance; namely, methamphetamine—more than four but less than

200 grams.2 In four issues, Perez argues that the evidence is insufficient to

prove that he possessed methamphetamine, that the trial court erred by denying
      1
      See Tex. R. App. P. 47.4.
      2
      See Tex. Health & Safety Code Ann. § 481.115(d) (West Supp. 2010).
his motion for a directed verdict, and that the trial court erred by denying his

request for a jury instruction under Article 38.23(a) of the Texas Code of Criminal

Procedure. We will affirm.

                                 II. BACKGROUND

      Wichita Falls Police Department’s SWAT Team and Organized Crime Unit

executed a narcotics search warrant on a residence located at 308 Lee Street,

Wichita Falls, Texas, on October 1, 2010, at roughly 6:45 a.m. SWAT Team

member Officer Gabriel Vasquez III testified at trial that when he entered the

residence through a side doorway, he encountered Perez in a bedroom, lying on

a bed. As Vasquez approached Perez, while pointing a rifle equipped with a

flashlight at him, Vasquez commanded Perez to raise his hands. Perez initially

complied by raising his hands, but according to Vasquez, Perez then began to

place his hands underneath ―the headboard, pillow region‖ of the bed. Viewing

this as a potential threat, Vasquez said that he ―nudged‖ Perez with his rifle

barrel and re-issued the command for Perez to raise his hands. Perez raised his

hands a second time.      Another officer then handcuffed Perez, and Vasquez

escorted Perez out of the residence. Vasquez testified that after escorting Perez

outside, he conducted ―prisoner watch‖ while other officers searched the

premises.

      Officer Karl King of the Organized Crime Unit testified that in addition to

Perez, two other individuals were located in the 308 Lee Street residence but that

they were located in another living area of the residence. King identified these


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two individuals as ―a Gelacio, and . . . a Jennifer Day.‖    Upon searching the

bedroom where Vasquez found Perez, King discovered an Advil container

between the mattress and the box springs of the bed that Perez had been lying

on. King testified that inside the Advil container, he found approximately twelve

grams of assorted pills and two plastic baggies. King averred that one of the

baggies contained over one gram of methamphetamine and that the other baggie

contained ten separate bags, each containing what King explained were

individual packages of methamphetamine that would typically be sold in the

streets for roughly $20 apiece. King also said that he discovered another plastic

baggie containing .14 grams of methamphetamine on the floor between the wall

and the head of the bed. In all, the total weight of the methamphetamine found in

the bedroom was 5.26 grams. King further testified to having found a set of

digital scales on the dresser in the bedroom.       He also found, between the

mattress and box springs, a wallet containing $211 and two debit cards with the

name ―Johnny Perez‖ on them.

      During the defense’s cross-examination of King, defense counsel

introduced in evidence, and the trial court admitted, the search warrant. Defense

counsel then began to ask King about his use of a confidential informant (CI) who

provided information that led to King obtaining the search warrant. King testified

that while in general confidential informants will assist police for ―[m]oney, [to]

work off charges, [or for] revenge,‖ he had never had a drug dealer ―snitch off on

[an]other drug dealer[].‖ King averred that the CI in this case, who King had used


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in the past, told him that           Perez ―was in possession of suspected

methamphetamine and that [the] substance was for sale.‖ King said that he paid

the CI $200 for that information and for the CI to conduct a controlled buy at the

308 Lee Street residence. Toward the end of his cross-examination, defense

counsel questioned whether the CI had in fact purchased methamphetamine

from someone other than Perez.         King responded, ―No, sir.‖ When defense

counsel inquired further how King knew that the CI had not purchased

methamphetamine from one of the other individuals who were at the 308 Lee

Street residence, King said that the CI knew Perez. Defense counsel responded

with the question, ―Then [the CI] needs to be here testifying, doesn’t he?‖ King

responded, ―No, he [doesn’t].‖ When pressed as to why the CI did not need to

testify, King said ―Because he’s confidential, credible, and reliable.‖    Defense

counsel did not move the trial court for a disclosure of the identity of the CI.3

Defense counsel also did not otherwise make any objections or move the trial

court for further inquiry regarding the CI’s identity or veracity.

      After calling its expert witness to testify about the toxicology report

regarding the methamphetamine found at the 308 Lee Street residence, the

State rested. At that time, and outside the presence of the jury, Perez’s defense

      3
        See Tex. R. Evid. 508(c)(3) (―If information from an informer is relied upon
to establish the legality of the means by which evidence was obtained and the
court is not satisfied that the information was received from an informer
reasonably believed to be reliable or credible, it may require the identity of the
informer to be disclosed. The court shall, on request of the public entity, direct
that the disclosure be made in camera.‖).


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counsel moved for a directed verdict: ―Yes, your Honor. We’d move for Directed

Verdict. The State has failed to produce the witness that has testified against

him, which actually started this entire case. And I think he’s entitled to confront

this witness, and they have failed to do so.‖ The trial court inquired, ―Which

witness are you talking about?‖      Defense counsel responded, ―This alleged

informant.‖ The trial court overruled Defense counsel’s motion.

      Defense counsel called Perez’s brother, Joe Perez, to the stand.         Joe

testified that Perez could not drive because ―[h]e’s going blind.‖ Joe said that

Perez was not at the 308 Lee Street residence on the day the CI made the

controlled buy and that on the morning of the search, Joe drove Perez from Fort

Worth, leaving at ―about 3:00 in the morning,‖ to the 308 Lee Street residence,

arriving at ―about 6:00 in the morning.‖ Defense also called Perez’s son, Michael

Perez, to testify. Michael testified that his brother, Perez’s other son, owned the

308 Lee Street residence. Michael averred that multiple people in his family

have lived in the residence from time to time while his brother serves a prison

sentence. Michael said that his brother had called him from prison concerned

that somebody was living at the 308 Lee Street residence without permission.

Michael said that he checked on the 308 Lee Street residence ―probably about

September the 7th.‖

      By Michael’s account, Gelacio and a girl were there and Michael informed

them that they were not supposed to be, but Michael said that he did not press

the issue because Gelacio ―has a bad temper to where I really can’t tell him


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anything. So I just left.‖ When questioned about whether Perez lived at the 308

Lee Street residence, Michael said, ―He would go as much as I do to check on

the house. Sometimes he’ll stay a night to make sure no one breaks in. And I do

the same thing.‖ According to Michael, whenever he or Perez stayed at the

residence overnight, they would use the bedroom where Vasquez found Perez

when police executed the search warrant.

      After the State and Perez rested, and outside the presence of the jury,

Perez requested that a Code of Criminal Procedure Article 38.23(a) instruction

be included in the charge.4 During the discussion that ensued, Perez cited the

Confrontation Clause, the Fifth Amendment, hearsay, and at one point stated,

―[T]his is a Franks case -- situation.‖ The trial court denied Perez’s request and

submitted the charge, without an Article 38.23(a) instruction, to the jury. The jury

found Perez guilty. After a punishment hearing, the jury found an enhancement

paragraph true and assessed punishment at life in prison.           The trial court

announced judgment accordingly, and this appeal followed.

                                  III. DISCUSSION

      A.    Sufficiency of the Evidence of Possession

      In his first and second issues, Perez argues that the evidence is ―legally‖

and ―factually‖ insufficient to prove that he possessed the methamphetamine

found in the bedroom where police discovered him lying on the bed when


      4
       See Tex. Code Crim. Proc. Ann. art. 38.23(a) (West Supp. 2005).


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executing their warrant.    Perez’s argument is predicated on the notions that

because there were ―two other people in the house who could have hidden the

contraband anywhere in the house‖ and because ―the State failed to introduce

any evidence showing that [he] actually lived‖ at the 308 Lee Street residence,

the State failed to link Perez to the methamphetamine found there. We conclude

that the evidence is sufficient to support the jury’s determination that Perez

possessed the methamphetamine.

             1.     Standard of Review

      The court of criminal appeals has held that there is no meaningful

distinction between the legal sufficiency standard and the factual sufficiency

standard. Brooks v. State, 323 S.W.3d 893, 895, 912 (Tex. Crim. App. 2010)

(overruling Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 1996)).

Thus, the Jackson standard, which is explained below, 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.‖ Id. at 912.

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

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, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex.

Crim. App. 2012).


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             2.      Law of Possession

      A person possesses an object if he has actual care, custody, control, or

management of that object.       Tex. Health & Safety Code Ann. § 481.002(38)

(West 2010).       When drugs are found and the accused is not in exclusive

possession of the place where they are found, the connection to the drugs must

be more than fortuitous, and to this end, Texas courts utilize a links rule that is

designed to protect innocent bystanders from conviction merely because of their

proximity to someone else’s drugs. Evans v. State, 202 S.W.3d 158, 161–62

(Tex. Crim. App. 2006); Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.—

Houston [14th Dist.] 2005, no pet.). Mere presence at the location where drugs

are found is insufficient, by itself, to establish actual care, custody, or control, but

presence or proximity, when combined with other evidence, direct or

circumstantial, may be sufficient. Evans, 202 S.W.3d at 161–62. Such ―links‖

generate a reasonable inference that the accused knew of the contraband’s

existence and exercised control over it.       See id.    Courts have identified the

following factors that may help to show an accused’s links to a controlled

substance:        (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


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flee; (8) whether the defendant made furtive gestures; (9) whether there was an

odor of contraband; (10) whether other contraband or drug paraphernalia were

present; (11) whether the defendant owned or had the right to possess the place

where the drugs were found; (12) whether the place where the drugs were found

was enclosed; (13) whether the defendant was found with a large amount of

cash; and (14) whether the conduct of the defendant indicated a consciousness

of guilt.   Olivarez, 171 S.W.3d at 291.         It is not the number of links that is

dispositive but, rather, the logical force of all of the evidence, direct and

circumstantial. Evans, 202 S.W.3d at 162.

       The evidence in this case establishes sufficient links that raise reasonable

inferences of Perez’s knowledge and control of the methamphetamine. Perez

was not only present at the 308 Lee Street residence when police searched but

Vasquez discovered him lying on a bed in the front bedroom where officers found

methamphetamine. Vasquez testified that as he entered the bedroom, he gave a

verbal command for Perez to raise his hands. Initially, Perez complied. Vazquez

said, however, that Perez then began to place his hands underneath ―the

headboard, pillow region,‖ and Vasquez described this as a ―furtive movement.‖

The    search    team    found   a   plastic     baggie    containing   .14   grams    of

methamphetamine between the ―wall and the head of the bed.‖ Perez’s furtive

movement        tends   to   demonstrate       that   he   had   knowledge     of     this

methamphetamine, as well as control over it. See Davis v. State, 855 S.W.2d

855, 857 (Tex. App.—Eastland 1993, no pet.) (reasoning that the defendant’s


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furtive gestures ―[g]oing towards the bottom of the passenger’s seat‖ linked the

defendant to the contraband found there). The logical force of this evidence is

that Perez was attempting to conceal the contraband that King found in that very

location. The force of this evidence is even more compelling considering that

despite having a gun pointed directly at him as he was commanded to raise his

hands, Perez was willing to hide his hands from Vasquez’s view. The movement

caused Vasquez to strike Perez with his rifle barrel: ―I struck him with my rifle

barrel -- nudged him [and t]old him once again to raise his hands.‖

      King also found an Advil bottle containing approximately twelve grams of

assorted pills and two plastic baggies containing methamphetamine located

between the mattress and the box spring of the bed where Perez was found

lying. One of the baggies of methamphetamine contained ten individual baggies

of methamphetamine that King testified was segregated into individual amounts

that were common portions to be sold in the streets for roughly $20 each.

Furthermore, King found a wallet with $211 and two debit cards with the name

―Johnny Perez‖ on them in-between the mattress and box springs. See Nhem v.

State, 129 S.W.3d 696, 699–700 (Tex. App.—Houston [1st Dist.] 2004, no pet.)

(reasoning that a driver license and telephone bills in appellant’s name found

between bed mattresses, where cocaine rocks were also found, tended to link

appellant to cocaine). The logical force of this evidence tends to demonstrate

that Perez had accessibility and proximity to the methamphetamine found

between the mattress and the box springs.


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      King testified that he found digital scales located in plain view on top of a

dresser in the bedroom that Perez occupied. King averred that digital scales are

commonly found where drugs are sold. This evidence, when coupled with the

individual baggies containing methamphetamine, tends to link Perez to the

scales and the methamphetamine found in the bedroom.           Furthermore, even

though there is no evidence that Perez owned the 308 Lee Street residence,

Perez introduced evidence that he would sometimes stay the night and sleep in

the bedroom where he was found when the police executed the search warrant.

The logical force of this evidence is that the connection between Perez and the

methamphetamine was more than fortuitous. Given the logical force of all of this

evidence and viewing it in the light most favorable to the verdict, we conclude

that the jury could have found that Perez possessed the methamphetamine

found at the 308 Lee Street residence. See Jackson, 443 U.S. at 326, 99 S. Ct.

at 2793; Wise, 364 S.W.3d at 903. We overrule Perez’s first and second issues.

      B.    Perez’s Motion for Directed Verdict

      In his third issue, Perez argues that the trial court erred by overruling his

motion for directed verdict. Perez’s argument seems to be that he was denied

his right to confront the CI under the Confrontation Clause of the Sixth

Amendment to the United States Constitution when the trial court ―refused his

motion to disclose the name of the CI.‖ See U.S. Const. Amend. VI. Thus,

Perez argues that he was denied his constitutional right to confront a State’s

witness; namely, the CI.


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      Perez does not point to any place in the record where he moved the trial

court for a disclosure of the name of the CI, nor can we find any such motion.

See Tex. R. Evid. 508(c)(3). Furthermore, the first time that Perez ever objected

to an alleged Confrontation Clause error was when he moved for directed verdict

after the State had completed putting on its case in chief, which was well after

Perez and the State had questioned King regarding the CI and the information

King obtained from the CI that served as part of King’s probable-cause affidavit

when seeking the search warrant. All of this testimony was born out of Perez

having introduced the warrant into evidence and first questioning King about

what information was learned from the CI.

      We conclude that Perez has failed to preserve any potential error, invited

or not, because he failed to object to any alleged Confrontation Clause issue at

the earliest opportunity. See Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim.

App. 2000), cert. denied, 531 U.S. 1128 (2001) (―Because he did not object to

error under the Confrontation Clause, appellant waives this argument on

appeal.‖); see also Thornton v. State, No. 12-04-00045-CR, 2006 WL 319015, at

*2 (Tex. App.—Tyler Feb. 10, 2006, pet. ref'd) (mem. op., not designated for

publication) (―To preserve error on Confrontation Clause grounds, an objection

must be made at trial as soon as the basis for such objection becomes

apparent.‖). We overrule Perez’s third issue.




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      C.     Perez’s Requested Jury Instruction

      In his fourth issue, Perez argues that the trial court erred by denying his

request for a jury instruction under Article 38.23(a) of the Texas Code of Criminal

Procedure.    See Tex. Code Crim. Proc. Ann. art. 38.23(a).             Citing the

Confrontation Clause of the Sixth Amendment and alleging that ―the State did not

produce‖ the CI who provided information about Perez that served as part of the

probable-cause warrant to search the 308 Lee Street residence, Perez argues

that the evidence adduced at trial created a genuine dispute about the

―lawfulness . . . in obtaining the [methamphetamine]‖ used to convict Perez for

possession. See U.S. Const. Amend. VI. Specifically, Perez argues that there

exists a fact issue in this case as to whether the CI ―may have lied to [King] in

order to frame [Perez], either to reduce competition, get revenge, or for money,‖

and that the jury should have been allowed to evaluate whether the CI ―may have

lied‖ about purchasing methamphetamine from Perez prior to the search of the

308 Lee Street residence, and thus whether the methamphetamine should have

been ―suppressed.‖

      The State argues that Perez is improperly attempting to raise a ―Franks

claim‖ by way of requesting an Article 38.23(a) jury instruction. See Fenoglio v.

State, 252 S.W.3d 468, 473 (Tex. App.—Fort Worth 2008, pet. ref’d) (―Under

Franks, a search warrant affidavit must be voided, and any evidence obtained

pursuant to the search warrant excluded, if a defendant can establish by a

preponderance of the evidence at a hearing that the affidavit contains a false


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statement made knowingly or intentionally, or with reckless disregard for the

truth.‖) (citing Franks v. Delaware, 438 U.S. 154, 155–56, 98 S. Ct. 2674, 2676

(1978)). We conclude that the trial court was not required to give an instruction

under Article 38.23(a) because the evidence in this case did not raise a disputed

fact issue requiring the instruction.

        When reviewing a claim that the trial court failed to properly charge the

jury, we first determine whether error occurred; if error did not occur, our analysis

ends.    Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).           The

purpose of the trial judge’s jury charge is to instruct the jurors on ―all of the law

that is applicable to the case.‖ Vasquez v. State, 389 S.W.3d 361, 366 (Tex.

Crim. App. 2012). And when there is a disputed fact issue that is material to the

defendant’s claim of a constitutional or statutory violation that would render

evidence inadmissible, an exclusionary-rule instruction is required by Article

38.23(a). Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007).

But a confidential informant’s identity and testimony regarding the information

used to form probable cause to issue a warrant is not relevant to the

determination of guilt for possession of a controlled substance when the

informant is not present at the time a warrant is executed, when the defendant is

arrested, or when the commission of the offense charged is alleged to have

occurred. Edwards v. State, 813 S.W.2d 572, 580 (Tex. App.—Dallas 1991, pet.

ref’d); Washington v. State, 902 S.W.2d 649, 656–57 (Tex. App.—Houston [14th

Dist.] 1995, pet. ref’d).


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        As already discussed, the State charged Perez with possession of a

controlled substance; namely, methamphetamine. A person possesses an object

if he has actual care, custody, control, or management of that object.           Tex.

Health & Safety Code Ann. § 481.002(38). The CI’s identity and any testimony

he could have provided would not have been relevant to the State’s charge that

Perez     had   actual   care,   custody,    control,   or   management     of    the

methamphetamine discovered by the officers when they conducted a search of

the 308 Lee Street residence.       This is so because the CI was not at the

residence when officers executed the warrant, he was not there when the officers

arrested Perez, and he was not there when the officers discovered Perez lying

on a bed with methamphetamine tucked under the mattress and between the

headboard and the wall. See Patterson v. State, 138 S.W.3d 643, 649 (Tex.

App.—Dallas 2004, no pet.) (reasoning that in a possession with intent to deliver

methamphetamine case, trial court did not abuse its discretion by denying

appellant’s motion to compel discovery of confidential informant’s identity

because ―Appellant point[ed] to no evidence that the informant was present

during the execution of the warrant and the arrest or that he had any information

that would be relevant to appellant’s guilt or innocence‖).       In short, Article

38.23(a) was not applicable to the case and the trial court did not err by refusing

Perez’s request that an Article 38.23(a) instruction be included in the jury charge.

See Vasquez, 389 S.W.3d at 366. Because we hold that the trial court did not




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err by refusing to include Perez’s requested instruction, our analysis ends and we

overrule Perez’s fourth issue.

                                 IV. CONCLUSION

      Having overruled all of Perez’s issues on appeal, we affirm the trial court’s

judgment.




                                                  BILL MEIER
                                                  JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 29, 2013




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