                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-12-00048-CR
                            NO. 02-12-00049-CR


ANDREA ROBLES                                                   APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE


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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                       MEMORANDUM OPINION1

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                              I. INTRODUCTION

     Appellant Andrea Robles appeals her convictions for possession with

intent to deliver more than 400 grams of methamphetamine and possession with

intent to deliver more than four but less than 200 grams of cocaine. In three

points, Robles argues that the trial court erred by denying her motion to

     1
      See Tex. R. App. P. 47.4.
suppress, that the evidence is insufficient to support the jury’s finding that she

possessed methamphetamine and cocaine, and that the evidence is insufficient

to support her convictions. We will affirm.

                                 II. BACKGROUND

      Fort Worth Police Department Narcotics Unit Officer Alfredo Dominguez

sought a search warrant on June 4, 2010, for a residence located at 2307 Dell

Street, Fort Worth, Texas. In his affidavit, Dominguez averred that in April 2010,

he received a tip from a confidential informant that narcotics trafficking and sales

were taking place at that address. Dominguez stated that during the months of

May and June 2010, he conducted surveillance on 2307 Dell Street and

―observed short term vehicle and pedestrian traffic which is consistent with the

sales and distribution of illegal narcotics.‖ He also stated that he had observed

what appeared to be a ―lookout‖ outside of 2307 Dell Street and that ―[l]ookouts

are typically used to warn others of the presence of the [p]olice.‖

      According to Dominguez’s affidavit, he also observed a man walking

around the front of 2307 Dell Street, whom he later identified as Jose Orozco by

using a jail booking photograph. Dominguez further averred that on May 11,

2010, and June 2, 2010, he conducted two separate controlled buys at 2307 Dell

Street using ―a reliable and confidential informant.‖ Dominguez said that he field

tested the drugs purchased and determined that they were cocaine and

methamphetamine. Dominguez further stated that the confidential informant he

utilized during his investigation ―has assisted in multiple investigations in the


                                         2
past‖ and ―has provided information in the past that has been proved correct and

reliable.‖ Based on this affidavit, a judge issued a search warrant on June 4,

2010, for 2307 Dell Street. Fort Worth SWAT and the Narcotics Unit executed

the warrant on 2307 Dell Street on June 7, 2010. There they discovered Orozco,

Robles, and a third unidentified individual,2 as well as copious amounts of

cocaine, methamphetamine, marijuana, and drug paraphernalia.

      At trial, the State and Robles stipulated that State’s marked exhibits 15

through 20, 31 through 33, and 40 through 46 contained substances that had

been tested using ―scientifically and legally accepted practices.‖ Specifically, the

parties stipulated that State’s exhibits 45 and 46 contained a total of 10.51 grams

of cocaine, including adulterants and dilutants; that State’s exhibit 41 contained a

total of 124.39 grams of cocaine, including adulterants and dilutants; and that

State’s exhibits 15 through 20, 31 through 33, and 40 through 46 contained a

total of 737.24 grams of methamphetamine, including adulterants and dilutants.

During the trial, Robles also moved the trial court to suppress this evidence

because she believed that the warrant was not based on probable cause. The

trial court denied the motion.

      Dominguez testified that SWAT officers detained Orozco and Robles in the

lone bedroom of 2307 Dell Street when executing their search. Dominguez said


      2
        The record indicates that Orozco was tried for similar charges in a
separate trial and that the third individual was released from the residence shortly
after police searched 2307 Dell Street.


                                         3
that ―it was evident that both a male and a female lived‖ at 2307 Dell Street

because of the shoes and clothing they discovered in the bedroom closet.

Dominguez also described the residence and bedroom as clean. Dominguez

discovered guns and ―methamphetamine bags‖ in the bedroom closet. On the

bed in the bedroom, Dominguez found Robles’s purse. In it he found a pawn

ticket for jewelry in her name. Dominquez found mail addressed to Robles in the

residence, but it was addressed to a post office box.           He also found two

identification cards and a debit card with Robles’s name on them, a picture of

Orozco and Robles, and a piece of paper with ―numbers and drug notes.‖

Dominguez     stated   that   the   drug   notes   contained    numbers,   and   the

methamphetamine slang term ―frio‖ and cocaine slang term ―soda.‖ And as the

State laid the exhibits ―out here before‖ him, Dominguez identified State’s

exhibits 15 through 20 as being the cocaine and methamphetamine that he had

discovered in the master bedroom closet.

      Dominguez averred that given his training and experience, the amount of

drugs found during the search of 2307 Dell Street was consistent with the

distribution of illegal narcotics. He also testified that the search unit discovered

other paraphernalia consistent with drug distribution, including empty plastic

baggies, a large amount of cash ($4,383 found on Orozco’s person), and digital

scales.   Dominguez also testified that the presence of guns found at the

residence was consistent with illegal narcotics distribution.




                                           4
      During cross-examination, Robles elicited testimony from Dominguez that

during his investigation, he personally had participated in the June 2 controlled

buy. According to Dominguez, he entered the 2307 Dell Street residence and

purchased narcotics from Orozco while Robles was present. On redirect, the

State questioned Dominquez about the specifics of the June 2 controlled buy and

particularly about Robles’s presence. By Dominguez’s account, when he went to

the 2307 Dell Street residence, Robles answered the door. He stated that when

he asked for Orozco, Robles ―went upstairs and got him.‖ He also testified that

he had knowledge of other officers having encountered Robles.

      Fort Worth Police Officer Bryan Clark also testified that during the search,

he found a ―dark garbage sack by the television‖ that contained marijuana and a

clear baggie containing methamphetamine. He also discovered small baggies of

marijuana inside the toilet tank in the bathroom, as well as empty clear baggies

―scattered on the floor, some in the tank, . . . everywhere in [the bathroom].‖

Clark testified that given the amount of narcotics discovered coupled with the

presence of digital scales and ―separate baggies that are used for packaging,‖ he

believed that narcotics were being sold from 2307 Dell Street.

      Fort Worth Police Sergeant Richard Dotson described the residence as

―garage-style,‖ where most of the living area was upstairs and open. Dotson said

that he found ―[n]umerous sets of scales, baggies, things like that . . . laying out

in plain view.‖   Dotson testified that he also searched ―outside of the house

directly below‖ a window because SWAT officers had informed him that Orozco


                                         5
had thrown a bag out of the window when they entered. Dotson specifically

testified that the bag, marked State’s exhibit 41, contained ―130 grams of

cocaine.‖ He also averred that State’s exhibit 42 was cocaine that was found in

plain view in the kitchen. By Dotson’s account, there was mail in the residence

addressed to multiple people, including Robles. When asked whether any of the

mail was addressed to Robles at 2307 Dell Street, Dotson answered, ―I thought it

was to that address, but I can’t be sure.‖

      Fort Worth Police Officer Misty Hayes testified that she performed

custodial duties over the items seized from 2307 Dell Street. Relevant to this

appeal, she identified State’s exhibits 31 through 33 and 41 through 46 as being

items found during the search. On cross-examination, Robles referred to these

items as ―drug evidence.‖

      Fort Worth Police Officer Michael Valdez testified that he took Robles’s

statement after SWAT had secured the residence. Valdez verified, and the State

published to the jury, Robles’s statement which reads:

      I was living here on & off @ 2307 Dell. My original address is 2703
      Roosevelt Ave., Ft. Worth, TX. 76164. I knew what was going on @
      stated address. [Orozco] is my boyfriend. I knew he had drugs,
      meth. I had seen guns prior, but had no idea they were here @
      time. He had meth & coke.

      Trial court administrative clerk Becky Finstad also testified that Robles’s

trial was originally set for May 2, 2011, but that Robles failed to appear. During

closing argument, Robles referenced the State’s exhibits: ―[The State] sure did

want to bring you all this (indicating). Golly, that’s a lot of dope, lot of dope,


                                         6
there’s guns, there is everything.‖ The jury found Robles guilty of both counts of

delivery of a controlled substance.

      At the punishment phase, the State moved to re-introduce all of its

exhibits.     The record reveals an exchange between the trial court and the

attorneys whereby it was discovered that State’s exhibits 15 through 20, 31

through 33, and 41 through 46 had never been formally introduced during the

guilt/innocence phase. Outside the presence of the jury, the following colloquy

took place:

      THE COURT: So you just forgot to offer it?

      [State]: Yes, Judge.

      THE COURT: So all of these items that you laid on the railing in
      front of the jury were not in evidence?

      [State]: That is correct, Your Honor.

      [Defense Counsel]: Judge, if I may, at this point, having learned that
      all of the items that were, in fact, shown to the jury and published
      without priorly -- prior being admitted into evidence, we’d ask that
      this could have unfairly prejudiced the jury panel into making their
      decision on guilt/innocence. We would move for a mistrial at this
      point based upon the fact that the drugs that are the basis of the
      Counts 1 and 2 in each indictment haven't been admitted for -- from
      the Court, and they've been unfairly published to the jury.

      ...

      [Defense Counsel]: We are asking for a mistrial at this point, Judge.
      We’ve gotten all the way to the point where they found her guilty
      based upon the evidence that’s already been shown and laid out in
      front of them during closing, which is the basis --

      THE COURT: But you didn’t object. I mean, we got all the way
      through to this point and you never objected to them using items in


                                        7
      evidence that weren’t in evidence, so you can’t ask for a mistrial if
      you’ve never had an objection in an adverse ruling. I am going to
      deny your request for a mistrial.

After the punishment phase, the jury assessed punishment of ninety-nine years’

incarceration for each count. The trial court entered judgment accordingly. This

appeal followed.

                                  III. DISCUSSION

      A.      Robles’s Motion to Suppress

      In her first point, Robles argues that the trial court erred by denying her

―motion to suppress the warrant and the resulting fruits of the illegal search.‖

Robles’s argument is that Dominguez’s affidavit in support of the search warrant

contains ―conclusory and generalized factual assertions . . . insufficient to

establish . . . a proper finding of probable cause.‖ Robles’s argument contains a

number of discrete attacks on the information contained in the affidavit.

      First, Robles argues that even though the affidavit states the month that

Dominguez first received information that illegal drugs were being sold from the

residence, it does not state the specific day. Second, Robles argues that even

though the affidavit states that Dominguez conducted surveillance of the

residence for two months, it does not provide ―specifics as to how many times he

saw people go in and out [of] the house, how many days he watched the house,

what dates he watched the house nor how many different people he saw go to

the house.‖    Third, Robles argues that even though the affidavit states that

Dominguez conducted two controlled buys from the residence, the ―affidavit


                                         8
[does] not state if it was the same informant or two different informants on each

occasion.‖   Fourth, Robles argues that Dominguez failed to verify with the

―informants‖ Dominguez’s own observations of Orozco coming out of the

residence. Finally, Robles argues that the affidavit contains ―no information . . .

as to the character of the unnamed informant, as to his employment, criminal

history, drug usage or relationship to the parties‖ at the residence. Thus, Robles

argues, a warrant should not have been issued and the trial court erred by

denying her motion to suppress the evidence gathered during the search. We

conclude that the affidavit provided sufficient probable cause to support the

issuing magistrate’s implicit finding of probable cause.

      A search warrant may not legally issue unless it is based on probable

cause. U.S. Const. amend. IV; Tex. Const. art. I, § 9; Tex. Code Crim. Proc.

Ann. art. 1.06 (West 2005). When reviewing a trial court’s decision on a motion

to suppress, we normally use a bifurcated standard of review. Guzman v. State,

955 S.W.2d 85, 89 (Tex. Crim. App. 1997).           We defer to the trial court’s

determination of historical fact or questions of mixed fact and law when they

involve credibility determinations. Id. But we review de novo the application of

law to the facts, or mixed questions that do not turn on the determination of

credibility. Id. As to search warrants, however, both appellate courts and trial

courts alike must give great deference to a magistrate’s implicit finding of

probable cause. State v. McLain, 337 S.W.3d 268, 271–72 (Tex. Crim. App.

2011).   The issuing magistrate’s determination of probable cause will be


                                         9
sustained if the magistrate had a substantial basis for concluding that a search

would uncover evidence of wrongdoing. Illinois v. Gates, 462 U.S. 213, 236, 103

S. Ct. 2317, 2331 (1983).

      When reviewing a magistrate’s determination, we should interpret the

affidavit in a ―commonsensical and realistic‖ manner, recognizing that the

magistrate may draw reasonable inferences.           McLain, 337 S.W.3d at 271

(quoting Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007)). When

in doubt, we defer to all reasonable inferences that the magistrate could have

made. Id. A ―grudging or negative attitude‖ by reviewing courts toward warrants

is inconsistent with the Fourth Amendment’s strong preference for searches

conducted pursuant to a warrant. Gates, 462 U.S. at 236, 103 S. Ct. at 2331.

Whether the facts alleged in a probable-cause affidavit sufficiently support a

search warrant is determined by examining the totality of the circumstances. Id.

at 230–31, 103 S. Ct. at 2328. A search warrant is supported by probable cause

when the facts set out within the ―four corners‖ of the affidavit are ―sufficient to

justify a conclusion that the object of the search is probably on the premises to

be searched at the time the warrant is issued.‖ Davis v. State, 202 S.W.3d 149,

154 (Tex. Crim. App. 2006).

      Here, the affidavit recites facts that demonstrate drug-related activity of a

protracted and continuous nature. Although Dominguez did not recite a play-by-

play activity log of his observations, he concisely articulated his involvement in an

ongoing surveillance of the residence–-surveillance he conducted because he


                                         10
had received information that cocaine and methamphetamine were being sold

there. This information, coupled with the details of two specific controlled buys

that Dominguez stated he orchestrated and observed, including giving the dates

and times when the controlled buys happened, support a finding of probable

cause to search. See Jones v. State, 364 S.W.3d 854, 857 (Tex. Crim. App.),

cert. denied, 133 S. Ct. 370 (2012) (holding that supporting affidavit in which

officer stated that he had ―recently‖ received information from one informant that

drugs were present at residence, and after receiving information, used second

informant to conduct a controlled buy coupled with officer’s expressed belief that

drugs were currently on premises provided probable cause justifying search

warrant); State v. Griggs, 352 S.W.3d 297, 304–05 (Tex. App.—Houston [14th

Dist.] 2011, pet. ref’d) (―The circumstances of a controlled buy, standing alone,

may corroborate an informant’s tip and provide probable cause to issue a

warrant.‖); see also United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972)

(―Where the affidavit recites a mere isolated violation it would not be

unreasonable to imply that probable cause dwindles rather quickly with the

passage of time. However, where the affidavit properly recites facts indicating

activity of a protracted and continuous nature, a course of conduct, the passage

of time becomes less significant.‖). This finding of probable cause was further

buttressed by Dominguez’s statement in the affidavit that during his investigation

he utilized ―a reliable and confidential informant‖ who had ―provided information

in the past that has been proved correct and reliable.‖ See Blake v. State, 125


                                       11
S.W.3d 717, 726 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (―When an

unnamed informant is relied upon in an affidavit for a search warrant, his

credibility may be established by allegations that the informant has proven

reliable on previous occasions.‖)

      We hold that the trial court did not err by denying Robles’s motion to

suppress based on the issuing magistrate’s implicit finding that Dominguez’s

affidavit contained sufficient facts to justify a conclusion that a search of 2307

Dell Street would probably uncover cocaine and methamphetamine on the

premises. See McLain, 337 S.W.3d at 271. We overrule Robles’s first point.

      B.     Evidence of Possession

      In her second point, Robles argues that the evidence does not support a

finding that she possessed the methamphetamine and cocaine that officers found

at 2307 Dell Street. We conclude that the evidence is sufficient to support the

jury’s determination that Robles possessed the methamphetamine and cocaine.

             1.     Standard of Review

      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).




                                         12
             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


                                          13
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.

       Here, while not all of the factors are present, a number of them are.

Robles was one of two individuals found in the sole bedroom of 2307 Dell Street

when the SWAT team entered to secure the premises as the warrant was being

executed. Dominguez testified that Robles was present at 2307 Dell Street when

he personally conducted a controlled buy on June 2, 2010, and that Robles

answered the door and responded to Dominguez’s request for Orozco.             He

testified that Robles immediately went upstairs and retrieved Orozco so that

Dominguez could purchase narcotics.         Robles, in a written statement taken

during the search, stated that she lived at 2307 Dell Street ―on & off.‖ She also

made this statement in reference to her ―original address‖ of 2703 Roosevelt

Avenue. There is also evidence in the record that officers discovered male and

female clothing in the closet where Robles and Orozco were found when SWAT

entered the residence. Robles stated that Orozco is her boyfriend, and police


                                       14
found pictures of Robles, identification cards and a debit card in Robles’s name,

as well as mail addressed to Robles, in the residence. See Nhem v. State, 129

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

that telephone bills in appellant’s name found under bed where cocaine rocks

were also found tended to link appellant to cocaine). The logical force of all of

this evidence implies that Robles was present at the time police searched 2307

Dell Street and that she had the right to possess the place where officers found

the methamphetamine and cocaine.

      Evidence at trial demonstrates that 2307 Dell Street is a ―garage-style‖

residence with its primary living area upstairs and that it is an open living area

with one bedroom. Furthermore, the majority of methamphetamine and cocaine

found during the search was in plain view, or had been tossed out of the window

of the bedroom in which both Orozco and Robles were found. The logical force

of this evidence implies that Robles had proximity and accessibility to the

narcotics found at 2307 Dell Street.

      Officers discovered copious amounts of narcotics and contraband during

their search.   The State offered testimony by several officers regarding the

quantity of narcotics discovered during their search as well as weapons and

drug-trafficking paraphernalia, including digital scales and ―methamphetamine

bags‖ discovered in plain view.

      Robles made incriminating statements that she knew ―what was going on‖

at 2307 Dell Street and specifically stated that she knew Orozco ―had meth and


                                       15
coke.‖        Furthermore, testimony at trial indicated that the trial court revoked

Robles’s bond while awaiting her trial for these charges and issued a warrant for

her arrest because she failed to attend the original trial setting. Robles did not

offer any testimony or evidence that this evidence of flight was directly related to

some other transaction that is not connected to these present charges. Hyde v.

State, 846 S.W.2d 503, 505 (Tex. App.—Corpus Christi 1993, pet ref’d) (―To

exclude evidence of flight, the defendant has the burden to affirmatively show

that the flight is directly connected to some other transaction that is not

connected with the offense on trial.‖). This is some evidence of a consciousness

of guilt. See Burks v. State, 876 S.W.2d 877, 903 (Tex. Crim. App. 1994), cert.

denied, 513 U.S. 1114 (1995) (reasoning that evidence of flight is admissible as

a circumstance from which an inference of guilt may be drawn).

         Given the logical force of all of this evidence and viewing it in the light most

favorable to the verdict, we conclude that a reasonable jury could have found that

Robles possessed the methamphetamine and cocaine found at 2307 Dell Street.

See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at 903. We

overrule Robles’s second point.

         C.      Evidence of Cocaine and Methamphetamine

         In her third point, Robles argues that the evidence is insufficient to support

her   convictions       because    the    State   never    formally    introduced    the

methamphetamine or cocaine that the officers seized during their search of the

residence. We disagree.


                                            16
      When physical evidence is marked as an exhibit, physically shown to the

jury, and treated by the court and both parties as having been introduced in

evidence, the evidence is considered sufficiently introduced for consideration by

the jury and appellate review. Heberling v. State, 834 S.W.2d 350, 355–56 (Tex.

Crim. App. 1992).

      In this case, the physical evidence of cocaine and methamphetamine that

Robles complains was not formally introduced was marked as exhibits prior to

trial. Using these exhibit numbers, the parties stipulated that the contents of the

exhibits had been properly analyzed under scientifically and legally accepted

practices and determined to be methamphetamine and cocaine. Both parties

stipulated to the quantities of these drugs contained in the marked exhibits. The

State, without objection by Robles, elicited testimony at trial regarding these

exhibits, including testimony as to whether they contained either cocaine or

methamphetamine, where they were found in the residence, and what quantities

were found.    Furthermore, and again without objection, the State physically

displayed these exhibits on the railing in front of the jury during its case in chief.

Moreover, Robles referenced this demonstration during her closing argument.

And the State, Robles, and the trial court all expressed surprise that these

exhibits had never formally been introduced during the guilt/innocence phase

when the State formally introduced these exhibits during the punishment phase

of trial. Therefore, ―the mere fact that the State did not technically introduce the

exhibit is not dispositive of our determination of whether there is sufficient


                                         17
evidence to support the conviction.‖ See id. (reasoning that an exhibit of cocaine

was properly before the jury when it had been testified to, marked as an exhibit,

physically shown to the jury, and treated by all parties as having been formally

introduced); see also Voelkel v. State, 629 S.W.2d 243, 246–47 (Tex. App.—Fort

Worth 1982) (holding that cigarette case containing amphetamines that was

never formally admitted in evidence properly considered as admitted by the

factfinder because it was treated as evidence by the trial court and the parties

and was referred to by a chemist who testified to its contents) aff’d, 717 S.W.2d

314 (Tex. Crim. App. 1986). We overrule Robles’s third point.

                               IV.   CONCLUSION

      Having overruled all three of Robles’s points, we affirm the trial court’s

judgments.




                                                  BILL MEIER
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

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

DELIVERED: September 12, 2013




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