Affirmed as Modified and Memorandum Opinion filed July 19, 2018.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-16-00971-CR

                      MARVIN RAY AUGUST, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee

                     On Appeal from the 56th District Court
                           Galveston County, Texas
                      Trial Court Cause No. 16-CR-1399

                  MEMORANDUM OPINION
      A jury convicted appellant Marvin Ray August of possession of a controlled
substance with intent to deliver and sentenced him to 50 years’ confinement. See
Tex. Health & Safety Code Ann. § 481.102 (Vernon Supp. 2017), § 481.112(a), (c)
(Vernon 2017). In three issues, appellant asserts that the jury’s “guilty” finding is
not supported by legally sufficient evidence and that the trial court erred in ordering
appellant to repay his court-appointed attorney fees. We affirm as modified.
                                   BACKGROUND

      Appellant resided at a townhome in Texas City with his mother, his 12-year
old daughter, and his girlfriend, Brandy Saenz.

      In 2016, the Texas City Police Department Crime Suppression Unit was
investigating appellant and Saenz in connection with the sale of narcotics. During
the investigation, Saenz sold methamphetamine to a confidential police informant at
the Texas City townhome. The police concluded that Saenz and appellant were
“responsible for the selling of narcotics” and obtained a search warrant for the
townhome; appellant and Saenz were the “targets” of the warrant. The Crime
Suppression Unit executed the search warrant on May 18, 2016.

      Corporals Allen Bjerke and Richard Valdivia participated in the warrant’s
execution and testified at appellant’s trial. Corporal Bjerke testified that the police
arrived at the townhome, “knock[ed] loudly” on the front door, and “announce[d]
police search warrant.” Corporal Bjerke stated that, in these situations, the “main
focus is to make sure everybody inside the house knows that we are the police and
allow them an opportunity to open the door so we don’t have to damage any
property.” No one answered the front door and the officers broke through the door
with a ram.

      Corporal Bjerke testified that appellant was in the living room when the
officers proceeded through the front door; a floor plan of the townhome shows that
the front door opened directly into the living room. Corporal Bjerke agreed that
appellant “was within ear view area to hear the knock and the statements” made
before the officers broke through the door. Appellant was instructed to get on the
ground while the officers searched the rest of the townhome. Appellant’s 12-year
old daughter was found in the kitchen and the officers located Saenz in a bedroom
upstairs. Corporal Bjerke testified that Saenz was “[v]ery argumentative” when she
                                          2
encountered the officers. In contrast, Corporal Bjerke testified that appellant “did
not give [the officers] any problems.” Appellant’s mother was not in the townhome
when the warrant was executed.

      Corporal Valdivia testified regarding the officers’ search of the townhome.
Corporal Valdivia’s testimony also addressed photographs taken during the search,
which were admitted as exhibits at trial.

      According to Corporal Valdivia, while the officers were searching an
unlocked outdoor storage closet accessed from the back patio, they found a “small
disco ball.” A photograph of the disco ball shows that, when it was opened, the disco
ball contained individually-wrapped “small bundles” of white crystals and an
electronic weight scale. Corporal Valdivia searched a small chest of drawers also
located inside the storage closet. The first drawer contained a glass pipe, a small
tray with white crystals that Corporal Valdivia “believed to be methamphetamine,”
and a prescription pill bottle with appellant’s mother’s name on it. The second
drawer contained a second electronic weight scale. A third scale was found in the
townhome near a purse and a set of men’s hair clippers.

      A photograph of the storage closet shows a set of plastic baggies hanging on
the side wall. The plastic baggies were not concealed and were visible from the
doorway of the storage closet. Corporal Valdivia testified that plastic baggies are
what the police “normally find for the intent to deliver,” and the “small baggies . . .
[are] easy to conceal, easy to pass.”

      Hanging on the back wall of the storage closet were several men’s shirts with
the name “Cocky” on them. Officer Valdivia testified that appellant’s nickname was
“Cocky.” A citation from the Texas City Police Department was thumbtacked to a
wall in the storage closet. The citation was signed by appellant and dated “May 17,
2016” — the day before the officers executed the search warrant at the townhome.
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A separate piece of paper thumbtacked to the wall listed the telephone number for
“Diamond.” According to Corporal Bjerke, “Diamond” was Saenz’s “street name.”

      After the officers concluded their search of the townhome, appellant and
Saenz were arrested.

      Rachel Aubel, a forensic scientist at the Texas Department of Public Safety
Crime Laboratory, testified regarding the analysis performed on the white crystal
substance recovered from the disco ball found in the storage closet.             Aubel
determined that the substance was methamphetamine.

      Appellant was indicted for the felony offense of possession of a controlled
substance with intent to deliver and proceeded to a jury trial. See Tex. Health &
Safety Code Ann. §§ 481.102, 481.112(a), (c). After both sides rested, the jury was
instructed in relevant part as follows.

      The Defendant, MARVIN RAY AUGUST, stands charged by
      indictment with the offense of possession of a controlled substance with
      intent to deliver, namely, methamphetamine in an amount of one gram
      or more but less than four grams. The Defendant has pleaded not guilty.
      A person commits the offense stated above if the person knowingly
      possesses, with intent to deliver, a controlled substance.
      A person commits the offense of possession of a controlled substance
      if the person intentionally or knowingly possesses a controlled
      substance.
      Methamphetamine is a controlled substance.
      “Delivery” means the actual or constructive transfer from one person
      to another of a controlled substance, whether or not there is an agency
      relationship.
      “Possession” means actual care, custody, control, or management.
      A person acts knowingly, or with knowledge, with respect to the nature
      of his conduct or to circumstances surrounding his conduct when he is
      aware of the nature of his conduct or that the circumstances exist; A
      person acts knowingly, or with knowledge, with respect to [a] result of

                                          4
      his conduct when he is aware that his conduct is reasonably certain to
      cause the result.
      A person acts intentionally, or with intent, with respect to the nature of
      his conduct or to a result of his conduct when it is his conscious
      objective or desire to engage in the conduct or cause the result.

The jury also was instructed regarding criminal liability for an offense committed
by the conduct of another. After its deliberations, the jury returned a verdict finding
appellant guilty of possession of a controlled substance, methamphetamine, with
intent to deliver, in an amount of one gram or more but less than four grams.

      Appellant stipulated to two enhancement felony convictions and the jury
sentenced appellant to 50 years’ confinement. The trial court signed a “Judgment of
Conviction by Jury” on November 3, 2016; the judgment ordered appellant to pay
$3,031.67 as reimbursement for court-appointed attorney fees. Appellant timely
appealed.

                               STANDARD OF REVIEW

      The legal sufficiency standard of review is the only standard applied to
determine whether the evidence is sufficient to support each element of a criminal
offense that the State is required to prove beyond a reasonable doubt. Temple v.
State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). For this review, we consider
the combined and cumulative force of all admitted evidence and any reasonable
inferences therefrom in the light most favorable to the verdict to determine whether
the jury was rationally justified in its decision. Johnson v. State, 509 S.W.3d 320,
322 (Tex. Crim. App. 2017).

      The jury is the sole judge of credibility and the weight to be attached to
witnesses’ testimony. Temple, 390 S.W.3d at 360. We may not substitute our
judgment for that of the jury and must defer to the jury’s responsibility to fairly
resolve or reconcile conflicts in the evidence. Isassi v. State, 330 S.W.3d 633, 638
                                          5
 (Tex. Crim. App. 2010).

                                            ANALYSIS

        Appellant asserts three issues on appeal.                Appellant’s first two issues
 challenge the jury’s “guilty” finding and contend that there is no legally sufficient
 evidence to support appellant’s conviction as either a principal or as a party to the
 charged offense. Appellant’s third issue asserts that the evidence is insufficient to
 support the trial court’s order that appellant repay his court-appointed attorney fees.

        We address these issues in turn.

I.      Sufficiency of the Evidence
        A.      Principal Actor Liability
        Appellant’s first issue asserts that the evidence is legally insufficient to
 support his conviction for possession of controlled substance.1

        To prove unlawful possession of a controlled substance, the State must
 establish that the accused (1) exercised care, control, or management over the
 contraband, and (2) knew the substance was contraband. Tex. Health & Safety Code
 Ann. § 481.002(38) (Vernon 2017); Haggerty v. State, 429 S.W.3d 1, 5 (Tex. App.—
 Houston [14th Dist.] 2013, pet. ref’d). The jury instructions incorporated these
 standards.

        Possession may be shown through direct or circumstantial evidence, although
 the evidence must establish that the accused’s connection with the substance was
 more than fortuitous. Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim. App.
 2005), overruled in part on other grounds by Robinson v. State, 466 S.W.3d 177,
 173 & n.32 (Tex. Crim. App. 2015); see also Roberts v. State, 321 S.W.3d 545, 549

        1
          Appellant does not challenge the sufficiency of the evidence to support a finding of intent
 to deliver.

                                                  6
(Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).

      When the accused is not in exclusive possession of the location where the
controlled substance was found, the State must “affirmatively link” the accused to
the controlled substance. Poindexter, 153 S.W.3d at 406; see also Jackson v. State,
495 S.W.3d 398, 405 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). The
accused’s presence at the scene where the contraband is recovered is insufficient, by
itself, to establish possession. Roberts, 321 S.W.3d at 549. “However, presence or
proximity combined with other direct or circumstantial evidence (e.g., ‘links’) may
be sufficient to establish the elements of possession beyond a reasonable doubt.” Id.

      “An affirmative link generates a reasonable inference that the accused knew
of the contraband’s existence and exercised control over it.” Haggerty, 429 S.W.3d
at 6. Courts have identified the following factors that may help to show an accused’s
affirmative links to a controlled substance: (1) the accused’s presence when a search
is conducted; (2) whether the contraband was in plain view; (3) the accused’s
proximity and the accessibility of the narcotic; (4) whether the accused was under
the influence of narcotics when arrested; (5) whether the accused possessed other
contraband or narcotics when arrested; (6) whether the accused made incriminating
statements when arrested; (7) whether the accused attempted to flee; (8) whether the
accused made furtive gestures; (9) whether there was an odor of contraband;
(10) whether other contraband or drug paraphernalia were present; (11) whether the
accused 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
accused was found with a large amount of cash; and (14) whether the conduct of the
accused indicated a consciousness of guilt. Jackson, 495 S.W.3d at 406 (citing
Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006)). The number of
links present is not dispositive; rather, establishing possession depends on “the

                                         7
logical force of all of the evidence, direct and circumstantial.” Evans, 202 S.W.3d
at 162.

      The evidence, viewed in the light most favorable to the verdict, is legally
sufficient to support the jury’s findings that appellant (1) exercised care, control, or
management over the methamphetamine found at the townhome, and (2) knew the
substance was methamphetamine. In making its guilt-innocence determination, the
jury considered the following evidence:

            Appellant resided at the townhome where the methamphetamine was
             found. Corporal Valdivia, who also worked as a security guard at the
             townhome complex, testified that appellant lived there with Saenz, his
             mother, and his 12-year old daughter. Appellant’s driver’s license
             listed the townhome as his address.
            Corporal Bjerke testified that, when the officers executed the search
             warrant, they “knock[ed] loudly” on the front door and “announce[d]
             police search warrant.” Corporal Bjerke agreed that appellant “was
             within ear view area to hear the knock and the statements.” Appellant
             did not open the door.
            The methamphetamine was found in an outdoor storage closet that
             included other items belonging to appellant, including shirts with his
             nickname on them and a recent citation from the Texas City Police
             Department.
            The police citation was issued to appellant the day before the search
             warrant was executed, indicating that appellant recently had accessed
             the storage closet.
            The closet contained items consistent with the sale of drugs, including
             small plastic baggies hanging on the wall; a glass pipe; and two
             electronic weight scales. The glass pipe and one scale were located in
             a chest of drawers, and the plastic baggies were hanging on the wall.
            A third electronic weight scale was recovered during a search of the
             townhome.

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This evidence supports several “affirmative links” and generates a reasonable
inference that appellant knew of the methamphetamine’s existence and exercised
control over it.

      First, appellant had a “right to possess” the townhome where the search
warrant was executed. Witness testimony and evidence show that appellant lived at
the townhome with Saenz, his mother, and his 12-year old daughter. See Burrell v.
State, 445 S.W.3d 761, 765 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d)
(evidence showing that appellant lived in shared apartment where contraband was
found “affirmatively linked” appellant to the contraband).

      Second, the location where the methamphetamine was found — an unlocked
outdoor storage closet — would have been accessible by appellant. Moreover, the
methamphetamine was found in a storage closet that also contained shirts with
appellant’s nickname on them and a recent citation signed by appellant, suggesting
that appellant indeed accessed the storage closet. See Figueroa v. State, 250 S.W.3d
490, 502-03 (Tex. App.—Austin 2008, pet. ref’d) (affirmative link connecting
appellant to contraband where “the cocaine was found in a bedroom that also
contained appellant’s personal belongings”). The citation was dated “May 17, 2016”
— the day before the officers executed the search warrant at the townhome,
suggesting that appellant recently had accessed the storage closet.

      Third, the evidence shows that other drug paraphernalia was found at the
townhome. The officers found an electronic weight scale and a glass pipe in a chest
of drawers in the outdoor storage closet, and another scale was located in the
townhome. Hanging on a wall inside the storage closet were small plastic baggies;
Corporal Valdivia testified that plastic baggies are commonly used in narcotics
transactions. See Torres v. State, 466 S.W.3d 329, 333 (Tex. App.—Houston [14th
Dist.] 2015, no pet.) (drug paraphernalia found in home included plastic baggies and

                                          9
scales).

      Finally, appellant did not answer the front door although, as Corporal Bjerke
testified, the officers “knock[ed] loudly” on the front door and “announce[d] police
search warrant.” Corporal Bjerke testified that appellant “was within ear view area
to hear the knock and the statements.” This behavior can be construed as consistent
with consciousness of guilt. See Cox v. State, No. 14-08-01053-CR, 2010 WL
738689, at *5 (Tex. App.—Houston [14th Dist.] March 4, 2010, no pet.) (mem. op.,
not designated for publication) (evidence supported jury’s finding that appellant
possessed cocaine where “appellant did not immediately respond to the officers’
knocking on the door, and only opened the door after a long delay”).

      The cumulative force of this evidence is legally sufficient to support
appellant’s conviction for possession of a controlled substance.

      Appellant asserts that he was convicted because “his girlfriend, Brandy Saenz,
sold methamphetamine from Appellant’s mother’s apartment” and that “[t]here is
no evidence in the record that Appellant possessed methamphetamine.”            But
evidence linking Saenz to the methamphetamine does not discount the evidence
supporting the jury’s findings that appellant knew of the contraband’s existence and
exercised control over it. See Avila v. State, 15 S.W.3d 568, 574 (Tex. App.—
Houston [14th Dist.] 2000, no pet.) (to support a conviction for possession of a
controlled substance, “control over the contraband need not be exclusive, but can be
jointly exercised by more than one person”).

      Appellant also emphasizes the absence of numerous “affirmative links” and
asserts that this lack of evidence weighs against the jury’s verdict. However, “the
absence of various links does not constitute evidence of innocence to be weighed
against the links present.” Flores v. State, 440 S.W.3d 180, 189 (Tex. App.—
Houston [14th Dist.] 2013), vacated on other grounds, 427 S.W.3d 399 (Tex. Crim.
                                         10
  App. 2014) (per curiam). As discussed above, the evidence is legally sufficient to
  establish the elements of possession beyond a reasonable doubt.

         We overrule appellant’s first issue challenging the sufficiency of the evidence
  to support his conviction.

         B.     Party Liability

         Appellant’s second issue asserts that the trial court erred by instructing the
  jury to consider whether appellant was guilty of the charged offense under a theory
  of party liability. Appellant contends that “[t]he inclusion of this instruction in the
  court’s charge harmed Appellant.”

         As discussed above, the evidence is legally sufficient to support appellant’s
  conviction as the principal actor.       Where “the evidence clearly supports a
  defendant’s guilt as a principal actor, any error of the trial court in charging on the
  law of parties is harmless.” Ladd v. State, 3 S.W.3d 547, 564-65 (Tex. Crim. App.
  1999) (internal quotation omitted); see also Washington v. State, 417 S.W.3d 713,
  723 n.7 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (“Because there is
  sufficient evidence of guilt as a principal, we need not address guilty as a party.”).

         We overrule appellant’s second issue challenging the trial court’s inclusion of
  a party liability instruction.

II.      Court-Appointed Attorney Fees

         Appellant’s third issue asserts that “[t]he evidence is insufficient to support
  the trial court’s order that Appellant reimburse Galveston County for the fees of the
  attorney appointed to him because of his indigent status.” Appellant requests that
  we reform the trial court’s judgment and bill of costs to remove the assessment of
  court-appointed attorney fees. The State agrees with appellant’s third issue and
  requested relief.

                                            11
       Indigent criminal defendants may request the assistance of a court-appointed
attorney. See Tex. Code Crim. Proc. Ann. Art. 26.04(a) (Vernon Supp. 2017). “A
defendant who is determined by the court to be indigent is presumed to remain
indigent for the remainder of the proceedings in the case unless a material change in
the defendant’s financial circumstances occurs.” Id. Art. 26.04(p) (Vernon Supp.
2017). The trial court may order a defendant to repay his court-appointed attorney
fees if “the judge determines that a defendant has financial resources that enable the
defendant to offset in part or in whole the costs of the legal services provided . . . .”
Id. Art. 26.05(g) (Vernon Supp. 2017).

       At the inception of his case, appellant was determined to be indigent under
the applicable guidelines and entitled to the appointment of an attorney. After the
completion of his trial, appellant completed a second pauper’s affidavit and was
appointed counsel to represent him on appeal.

       The record before us does not contain any determination or finding by the trial
court that appellant had any financial resources or was able to pay the attorney fees
incurred during trial. Without any evidence to demonstrate appellant’s financial
resources to offset the cost of legal services, the trial court erred in ordering appellant
to reimburse the fees of his court-appointed attorney. See id.; see also West v. State,
474 S.W.3d 785, 795 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (trial court
erred in ordering reimbursement of court-appointed attorney fees where “the record
contain[ed] no evidence of appellant’s ability to pay for legal representation”).

       We sustain appellant’s third issue.

                                      CONCLUSION

       We overrule appellant’s first two issues and conclude that the evidence is
legally sufficient to support his conviction for possession of a controlled substance


                                             12
with intent to deliver. We sustain appellant’s third issue and conclude that the trial
court erred in ordering appellant to repay his court-appointed attorney fees.

      We modify the trial court’s November 3, 2016 “Judgment of Conviction by
Jury” to remove the assessment of court-appointed attorney fees, and affirm as so
modified.




                                       /s/    William J. Boyce
                                              Justice



Panel consists of Justices Boyce, Jamison, and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).




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