                                  NO. 12-16-00070-CR

                          IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

KRISTOPHER JOSEPH LALONDE,                       §      APPEAL FROM THE 145TH
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      NACOGDOCHES COUNTY, TEXAS

                                  MEMORANDUM OPINION

       Kristopher Joseph Lalonde appeals from his conviction for possession of a controlled
substance. In two issues, he challenges the denial of his motion to suppress and the sufficiency
of the evidence to support his conviction. We affirm.


                                         BACKGROUND
       On May 2, 2014, Chief Deputy Stephen Godfrey and Deputies Salomon Landeros and
Mario Reyna, all with the Nacogdoches County Sheriff’s Department, conducted a “knock and
talk” at Appellant’s garage apartment to investigate possible narcotics activity.        Landeros
explained that a “knock and talk” involves talking with people at the residence, revealing that the
officers have information that something illegal is occurring inside the residence, and attempting
to obtain consent to search. The officers testified that Appellant consented to a search of the
apartment.
       During the search, the officers found methamphetamine. The State charged Appellant
with possession of a controlled substance in an amount less than one gram, to which Appellant
pleaded “not guilty.” At the conclusion of trial, the jury found Appellant guilty of possession of
a controlled substance, and assessed a sentence of imprisonment for seven years, along with a
$10,000 fine.
                                       MOTION TO SUPPRESS
        In his first issue, Appellant argues that the trial court abused its discretion by denying his
motion to suppress evidence seized as the result of a warrantless search. According to Appellant,
his scope of consent was limited to permitting the officers to identify the other person in the
apartment and did not include a search of the residence.
Standard of Review
        We review a suppression ruling for an abuse of discretion under a bifurcated standard of
review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010); State v. Dixon, 206
S.W.3d 587, 590 (Tex. Crim. App. 2006). First, we afford almost total deference to a trial
court’s determination of historical facts. Valtierra, 310 S.W.3d at 447. The trial court is the sole
trier of fact and judge of the witnesses’ credibility and the weight to give their testimony. Id.
The trial court may believe or disbelieve all or part of a witness’s testimony. Id. Second, we
apply a de novo review to the trial court’s application of law to the facts. Id. We will sustain the
trial court’s ruling if it is reasonably supported by the record and correct on any legal theory. Id.
at 447-48.
Facts
        At the suppression hearing, Captain Michael Davidson of the Nacogdoches County
Sheriff’s Department testified that he received information that Appellant had a party the night
before the search, at which multiple individuals were using methamphetamine. The next day, the
officers went to the house to investigate. When Davidson asked Appellant for permission to
search the residence, Appellant stated that it belonged to his mother and the officers needed to
ask her for consent. Chief Deputy Godfrey and Deputy Reyna testified similarly. Godfrey told
Appellant that, as an occupant, he could consent to search an area that was in his care, custody,
and control. Although Davidson testified that Godfrey had the most contact with Appellant once
they entered the residence, he and Reyna both testified to hearing Godfrey’s conversation with
Appellant.
        Godfrey, Davidson, and Reyna all testified that, after this conversation, Appellant
consented to a search of the residence and his person. Reyna and Davidson testified that
Appellant never refused consent. Reyna explained that Appellant merely stated he needed to
contact his mother. When asked if Appellant gave consent to secure the other occupant, Reyna



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testified that Appellant consented to a search of the house, and that it was clear he was giving
consent to search the residence and his person. Davidson testified that he never heard Appellant
state that the officers could go upstairs to check on another occupant, but could not search.
       Godfrey testified that they spoke with the other occupant inside the house, Michelle
Reeves, who had been asleep in bed, and that it was evident Appellant had been in bed with
Reeves. Appellant’s personal items were inside the apartment. Davidson and Reyna testified
that it was apparent that Appellant resided in the apartment. The officers testified that they
found methamphetamine in a pair of Appellant’s pants and in his wallet.
       Appellant testified that he temporarily resided in the apartment. He had a party the night
before the search and he met Reeves that night. He admitted that someone, but he did not know
who, brought methamphetamine to the party. He and several others used methamphetamine at
the party. The next morning, when the officers knocked on his door and informed him about the
allegations of narcotics activity, Appellant told them that they were misinformed. He testified
that the officers asked for consent to search, but he told them they had to contact his mother and
stepfather because they owned the property. He told the officers that if his parents consented, he
had no problem with a search.
       At some point, the officers asked if anyone else was in the house. When Appellant told
them about Reeves, the officers stated that they needed to identify her. Appellant told the
officers that they could go upstairs for that purpose. He denied telling officers that they could
search the residence, and he testified to making it clear that they needed to contact his parents if
they wanted to search. He offered to contact his parents, but claimed that the officers would not
entertain that idea. Regarding the methamphetamine found in his pants and wallet, he explained
that Reeves was upstairs by herself for approximately twenty minutes while he was downstairs
talking to the officers.   He stated that other individuals may also have had access to his
belongings.
Analysis
       Voluntary consent to search is an exception to the warrant requirement. Id. at 448.
Consent must be positive, but may be given orally or by action, or shown by circumstantial
evidence.     Id.   “The validity of an alleged consent to search is a question of fact to be
determined from the totality of the circumstances.” Id. Once an officer is permitted into a
residence, he may take action only in accordance with the purpose for which he was invited or



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allowed into the residence. Id. The proper standard for measuring the scope of consent is that of
objective reasonableness, i.e., what the typical reasonable person would have understood by the
exchange between the officer and the suspect. Id. at 449. Voluntary consent must be proven by
clear and convincing evidence. Id. at 448.
       The trial court heard testimony that the officers requested consent to search the garage
apartment and that Appellant did not refuse consent, but initially referred the officers to his
parents. Godfrey, Davidson, and Reyna all testified that Appellant consented to a search of the
residence once he understood that he had the right to give consent. As sole judge of the weight
and credibility of the witnesses’ testimony, the trial court was entitled to reject Appellant’s
contrary testimony. See id. at 447. Based on the totality of the circumstances, the trial court
could have found that it was objectively reasonable for the officers to conclude that Appellant’s
consent was not limited to entering the residence for the sole purpose of identifying another
occupant, but included consent to search the residence. See id. at 448-49. Viewing the evidence
in the light most favorable to the trial court’s ruling, we conclude that the trial court did not
abuse its discretion by denying Appellant’s motion to suppress. See id. at 447. We overrule
issue one.
Motion to Abate
       With regard to his first issue, Appellant has filed a motion to abate this appeal to allow
him to pursue an out of time motion for new trial based on newly discovered evidence. He
argues that Chief Deputy Godfrey has been indicted for aggravated perjury in an unrelated case.
According to Appellant, “Godfrey was [the State’s principal] witness at the [suppression]
hearing (and at trial), and [] he was the only officer who testified unequivocally that he received
[Appellant’s] consent to search.”
       An appellate court may make any appropriate order that the law and the nature of the case
require. TEX. R. APP. P. 43.6. Whether abatement is the proper remedy will depend on the facts
of each case. Jack v. State, 42 S.W.3d 291, 294 (Tex. App.—Houston [1st Dist.] 2001) (order).
As previously discussed, Davidson and Reyna both testified that (1) Appellant initially stated
that the officers had to contact his parents, the owners of the property; (2) Godfrey told
Appellant that he had the authority to consent; (3) they heard this conversation between
Appellant and Godfrey; and (4) after this conversation, Appellant gave consent to search the
residence. Once the officers entered the apartment, Godfrey then had primary contact with



                                                4
Appellant.   Thus, even without Godfrey’s testimony, the trial court could have found that
Appellant voluntarily consented to the search and denied Appellant’s motion to suppress. Under
the facts of this case, we conclude that abatement is not an appropriate remedy. See TEX. R. APP.
P. 43.6; see also Jack, 42 S.W.3d at 294. We overrule Appellant’s motion to abate.


                                    SUFFICIENCY OF THE EVIDENCE
       In his second issue, Appellant challenges the sufficiency of the evidence to support his
conviction. Appellant maintains that the State failed to establish the links necessary to connect
him to the methamphetamine found by the officers.
Standard of Review and Applicable Law
       When reviewing the sufficiency of the evidence, we determine whether, considering all
the evidence in the light most favorable to the verdict, the jury was rationally justified in finding
guilt beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
The jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony.
Id. We give deference to the jury’s responsibility to fairly resolve evidentiary conflicts, weigh
the evidence, and draw reasonable inferences from basic facts to ultimate facts. Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct
evidence in establishing the accused’s guilt. Id.
       A person commits the offense of possession of a controlled substance when he knowingly
or intentionally possesses a controlled substance.               TEX. HEALTH & SAFETY CODE ANN.
§ 481.115(a) (West 2010).          The state must show that the accused (1) exercised control,
management, or care over the controlled substance; and (2) knew the matter possessed was
contraband. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). The accused’s
connection with the controlled substance must be more than merely fortuitous. Id. We consider
the following nonexclusive list of factors when addressing the accused’s connection to a
controlled substance:


       (1) whether the contraband was in plain view or recovered from an enclosed place; (2) whether the
       accused was the owner of the premises or had the right to possess the place where the contraband
       was found, or was the owner or driver of the automobile in which the contraband was found; (3)
       whether the accused was found with a large amount of cash; (4) whether the contraband was
       conveniently accessible to the accused or found on the same side of the vehicle as the accused was
       sitting; (5) whether the contraband was found in close proximity to the accused; (6) whether a
       strong residual odor of the contraband was present; (7) whether the accused possessed other



                                                       5
       contraband when arrested; (8) whether paraphernalia to use the contraband was in view or found
       on the accused; (9) whether the physical condition of the accused indicated recent consumption of
       the contraband in question; (10) whether conduct by the accused indicated a consciousness of
       guilt; (11) whether the accused attempted to escape or flee; (12) whether the accused made furtive
       gestures; (13) whether the accused had a special connection to the contraband; (14) whether the
       occupants of the premises gave conflicting statements about relevant matters; (15) whether the
       accused made incriminating statements connecting himself to the contraband; (16) the quantity of
       the contraband; and (17) whether the accused was observed in a suspicious place under suspicious
       circumstances.


Willis v. State, 192 S.W.3d 585, 593 (Tex. App.—Tyler 2006, pet. ref’d). The number of links is
not dispositive; rather, it is the logical force of all of the evidence, direct and circumstantial.
Evans, 202 S.W.3d at 162.
Analysis
       Several factors link Appellant to the methamphetamine. First, the record indicates that
Appellant resided in the apartment and, therefore, had a right to possess the place where the
methamphetamine was found. Second, the methamphetamine was in close proximity to him and
was conveniently accessible to him.              The trial court heard testimony that one bag of
methamphetamine was found in Appellant’s wallet, which was under a pillow on the bed where
Appellant had been sleeping.             Another bag, which contained a “dirty trace back of
methamphetamine,” was found in Appellant’s pants, which were in the bedroom where the
wallet was found. Third, Appellant was found in possession of other contraband, i.e., a firearm.
       Although not all factors are present in this case, the absence of certain links does not
constitute evidence of innocence to be weighed against those links that are present. James v.
State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). The logical force
of the combined pieces of circumstantial evidence, coupled with reasonable inferences
therefrom, is sufficient to establish, beyond a reasonable doubt, that Appellant exercised actual
care, custody, control, or management of the methamphetamine found in his wallet and pants.
See Evans, 202 S.W.3d at 166. Viewing the evidence in the light most favorable to the verdict,
we conclude that the jury was rationally justified in finding, beyond a reasonable doubt, that
Appellant knowingly or intentionally possessed the methamphetamine. See Brooks, 323 S.W.3d
at 899; see also TEX. HEALTH & SAFETY CODE ANN. § 481.115(a). Because the evidence is
legally sufficient to support Appellant’s conviction for possession of a controlled substance, we
overrule his second issue.




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                                                   DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s
judgment.

                                                                 GREG NEELEY
                                                                    Justice

Opinion delivered October 31, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          OCTOBER 31, 2016


                                         NO. 12-16-00070-CR


                              KRISTOPHER JOSEPH LALONDE,
                                        Appellant
                                           V.
                                  THE STATE OF TEXAS,
                                        Appellee


                                Appeal from the 145th District Court
                      of Nacogdoches County, Texas (Tr.Ct.No. F1420932)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
