                     PD-0156-15
                                                        February 19, 2015

                              NO.

             IN THE COURT OF CRIMINAL APPEALS OF

                     OF THE STATE OF TEXAS

                       AT AUSTIN, TEXAS

_______________________________________________________________

                        No. 01-14-00003-CR
                    IN THE COURT OF APPEALS
                             FOR THE
                FIRST SUPREME JUDICIAL DISTRICT
                           AT HOUSTON
__________________________________________________________________
LUIS FELIPE SILVA-AGUILAR           §          APPELLANT

     V.                             §

STATE OF TEXAS                     §           APPELLEE
__________________________________________________________________

       APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

__________________________________________________________________



                                         J. SIDNEY CROWLEY
                                         214 Morton St.
                                         Richmond. Tx. 77469
                                         TBC No. 05170200
                                         Attorney for Appellant
                     INTERESTED PARTIES

APPELLANT
Luis Felipe Silva-Aguilar
Texas Department of Criminal Justice
Correctional Division

TRIAL COUNSEL
Richard Detoto
300 Main St., Suite 200
Houston, Texas 77002

APPELLATE COUNSEL
J. Sidney Crowley
214 Morton St.
Richmond, Texas, 77469

STATE OF TEXAS
Devon Anderson
District Attorney, Harris County
1201 Franklin St.
Houston, Texas 77002

Joseph Allard
James O’Donnell
Assistant District Attorneys
Harris County, Texas




                                       2
                                      TABLE OF CONTENTS



INTERESTED PARTIES..........................................................................................2

LIST OF AUTHORITIES..........................................................................................4

STATEMENT REGARDING ORAL ARGUMENT................................................5

STATEMENT OF THE CASE..................................................................................6

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE.....................7

GROUNDS FOR REVIEW.......................................................................................8

GROUND FOR REVIEW NUMBER ONE

        The Court of Appeals erred when that the evidence was legally sufficient

        to support the verdict of the jury.....................................................................9

PRAYER FOR RELIEF...........................................................................................13

CERTIFICATE OF COMPLIANCE.......................................................................14

CERTIFICATE OF SERVICE................................................................................14

APPENDIX A. (OPINION BELOW).....................................................................15




                                                       3
                                           LIST OF AUTHORITIES

Cases

Cedano v. State, 24 S.W.3d 406 (Tex.App.-Houston [1st Dist.] 2000).....................9

Gilbert v. State, 874 S.W.2d 290, 298 (Tex.App.-Houston [1st. Dist.] 1994,

ref’d)................................ .......................................................................................10

Johnson v. State, 658 S.W.2d 623 (Tex.Crim.App. 1983).......................................9

Olivarez v. State, 171 S.W.3d 283, 291 (Tex.App.-Houston [14th Dist.] 2005).....10

Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005)...........................9

Washington v. State, 902 S.W.2d 649, 652 (Tex.App.-Houston [14th Dist.]

1995)........................................................................................................................10




                                                              4
               STATEMENT REGARDING ORAL ARGUMENT

Appellant believes that oral argument is not necessary in this case.




                                         5
                          STATEMENT OF THE CASE

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Appellant was convicted by a jury of the felony offense of possession of a

controlled substance with intent to deliver, namely heroin weighing more than 400

grams. The court assessed his punishment at confinement in the Texas Department

of Criminal Justice, Correctional Division, for a period of twenty three years and a

fine of $1000.




                                         6
      STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      Appellant’s appeal was affirmed in an unpublished opinion of the First

Court of Appeals rendered December 30, 2014. No motion for rehearing was filed.




                                        7
                             GROUNDS FOR REVIEW

GROUND FOR REVIEW NUMBER ONE:

      The Court of Appeals erred when it held that the evidence was legally

sufficient to support the verdict of the jury.




                                           8
                     GROUND FOR REVIEW NUMBER ONE

      The Court of Appeals erred when it held that the evidence was legally

sufficient to support the verdict of the jury.

                              Argument and Authorities

      The Court of Appeals held that the affirmative links were sufficient to allow

a rational jury to find beyond a reasonable doubt that Appellant possessed the

controlled substance in question. The court of appeal’s holding is simply not justified

by the record. To prove the unlawful possession of a controlled substance the state

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

substance and (2) the accused knew the matter possessed was contraband. Whether

this evidence is direct or circumstantial, it must establish, to the requisite level of

confidence, that the accused’s connection with the drug was more than just fortuitous.

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

is not in exclusive possession of the place where the contraband is found, the state

must show additional affirmative links between the accused and the contraband.

Cedano v. State, 24 S.W.3d 406, 411 (Tex.App.-Houston [1st Dist.] 2000). The

affirmative link generates a reasonable inference that the accused knew of the

contraband and exercised control over it. Johnson v. State, 658 S.W.2d 623

(Tex.Crim.App. 1983). Some relevant factors that may affirmatively link an accused


                                           9
to contraband include: 1) the defendant’s presence when the search was 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 when

arrested; 6) whether the defendant made incriminating statements when arrested; 7)

whether the defendant attempted to flee; 8) whether there was an odor of contraband;

9) whether other contraband or drug paraphernalia were present; 10) whether the

defendant owned or had the right to possess the place where the drugs were found;

11) whether the place where the drugs were found was enclosed; 12) whether the

defendant was found with a large amount of cash and 13) whether the conduct of the

defendant indicated a consciousness of guilt. Washington v. State, 902 S.W.2d 649,

652 (Tex.App.-Houston [14th Dist.] 1995, ref’d); Olivarez v. State, 171 S.W.3d 283,

291 (Tex.App.-Houston [14th Dist.] 2005). The number of linking factors present is

not as important as the “logical force” they create to prove the crime was committed.

Gilbert v. State, 874 S.W.2d 290, 298 (Tex.App.-Houston [1st Dist.] 1994, ref’d).

      The affirmative links required to link Appellant to the contraband are almost

nonexistent. Appellant was not present in the house when the search was conducted.

The contraband was not in plain view but was in an enclosed bag in a bedroom closet

and in the attic of an attached garage. Appellant was not in proximity to the


                                         10
contraband, but was in a patrol car outside of the residence when the search was

conducted. Appellant was not in possession of any other contraband when arrested.

It is true that methamphetamine was also found in the house but Appellant was

nowhere near it when it was discovered. There was no evidence that Appellant owned

or had the right to possess the premises where the drugs were found. The state never

introduced any lease agreement, bills addressed to Appellant at that address or any

testimony that Appellant in fact lived at that location. The only evidence is Dunn’s

testimony that he had seen Appellant near the house and had observed him leave it

in a white Ford vehicle. No fingerprints of Appellant were found in the house or on

the contraband items. At most it was shown that Appellant may have visited the

house. There no evidence that Appellant attempted to flee. A large amount of cash

was found in the pocket of a jacket in the house but not on Appellant. In fact, the

jacket was never in any way connected to Appellant. Finally, there is no evidence of

any conduct on the part of Appellant that indicated a consciousness of guilt. Although

the chemist testified that MSM, which was in a pail in Appellant’s car was a common

cutting agent for methamphetamine. The fact that it could be legally purchased at a

feed store indicates that there are alternative legitimate uses of the product.

      The court also instructed the jury on liability as a party. Again, there is no

evidence to support a guilty verdict on the basis of party liability. The only person


                                          11
whom Appellant could have possibly aided to possess the drugs was the unknown

woman who supposedly came to the house. There is not a shred of evidence of any

connection between Appellant and this unknown person. In summary, those

affirmative links to the contraband that could prove Appellant’s knowing possession

are all but invisible and completely lacking. Point of Error One should be sustained.

The Court of Appeals conclusion that there were sufficient links to prove that

Appellant possessed the contraband was contrary to well settled law.




                                         12
                              PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this Court

grant this Petition for Discretionary Review, that the case be set for submission; that

after submission this Court reverse the judgement of the Court of Appeals and order

an ACQUITTAL.

                                     Respectfully submitted,

                                       /s/ J. Sidney Crowley

                                       J. Sidney Crowley
                                        214 Morton St.
                                        Richmond, Tx. 77469
                                        (281)232-8332
                                        TBC No. 05170200




                                          13
                       CERTIFICATE OF COMPLIANCE

      I certify that the foregoing document contains 1375 words, generated by

computer.

                          CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the foregoing instrument has been e-

served to the Harris County District Attorney’s Office, and to Lisa C. McMinn, State

Prosecuting Attorney, P.O. Box 12405, Austin, Texas 78711, this the 18th day of

February, 2015.

                                                         /s/ J. Sidney Crowley




                                        14
Opinion issued December 30, 2014




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-14-00003-CR
                            ———————————
                  LUIS FELIPE SILVA-AGUILAR, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee



                    On Appeal from the 262nd District Court
                            Harris County, Texas
                        Trial Court Case No. 1374877



                        MEMORANDUM OPINION

      Luis Felipe Silva-Aguilar was charged by indictment with the first-degree

felony offense of possession with intent to deliver a controlled substance, namely,



                                        1
heroin, weighing at least 400 grams.1 The jury found appellant guilty and the trial

court assessed punishment at twenty-three years’ confinement and a $1,000 fine. In

his sole point of error, appellant contends that the evidence is legally insufficient to

support the jury’s finding that he exercised care, control, or management of the

premises where the controlled substance was discovered. We affirm.

                                     Background

      On December 18, 2012, in the course of a narcotics investigation, Houston

Police Department Officer Jason Dunn was conducting surveillance on a residence

located at 11130 Bentley when he observed appellant drive from the residence to

another residence located at 3907 Sandy Meadow Lane and move furniture into the

second residence. Over the next few weeks, Dunn continued to conduct surveillance

on the Sandy Meadow residence during which he periodically observed appellant and

a woman entering and leaving the home.

      On January 23, 2013, Dunn saw appellant leave the Sandy Meadows residence

in a white Ford Escape. He followed appellant to a feed store and observed appellant

leave the store with a yellow bucket of MSM, which Dunn and the State’s forensic

chemist testified is a common cutting agent for methamphetamine. After appellant

failed to signal a left-hand turn, Dunn radioed Officer Susanna Salazar2 who stopped


1
       See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) & (f) (West 2010).
2
      Salazar was known by her maiden name, Sealy, at the time of the events in question.
                                            2
appellant’s vehicle for the traffic violation. When appellant was unable to produce

any identification or proof of insurance, Salazar arrested him. When Dunn arrived at

the scene, Salazar translated Dunn’s questions for appellant into Spanish and

appellant’s responses into English for Dunn. Salazar asked for appellant’s consent to

search his residence. Appellant consented and Salazar drove him to the Sandy

Meadow residence that appellant said was his. Once outside, appellant signed a

written consent form authorizing the officers’ search.

        As Dunn and Salazar, now joined by two other officers, began the search, an

 unidentified woman who claimed that she lived there walked in and out of the

 home. The search yielded two baggies of methamphetamine in a black bag, $3,845

 in a men’s jacket, and 34.8 grams of methamphetamine and several bricks of heroin

 weighing more than four hundred grams inside the garage attic of the residence.

                                     Discussion

      Appellant’s point of error contends that the evidence was insufficient to prove

beyond a reasonable doubt that he possessed a controlled substance with intent to

deliver. Specifically, he argues that the evidence to show that he exercised care,

control, or management of the premises where the heroin was discovered was legally

insufficient.

    A. Standard of Review



                                          3
      We review evidentiary sufficiency challenges under the Jackson v. Virginia

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

this standard, we review the evidence in the light most favorable to the verdict, and

ask whether any rational fact-finder could have found that each essential element of

the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex.

Crim. App. 2009). Our review includes both direct and circumstantial evidence, as

well as any reasonable inferences that may be drawn therefrom. See Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The jury is the sole judge of the

credibility of witnesses and the weight to give that testimony, and our role on appeal

is simply to ensure that the evidence supports the jury’s verdict. Montgomery v.

State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). The jury may reasonably infer

facts from the evidence presented, credit the witnesses it chooses, disbelieve any or

all of the evidence or testimony proffered, and weigh the evidence as it sees fit. See

Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Inconsistencies in the

evidence are resolved in favor of the verdict. See Curry v. State, 30 S.W.3d 394, 406

(Tex. Crim. App. 2000).

    B. Applicable Law

      To prove unlawful possession of a controlled substance, the State must prove

that the accused (1) exercised control, management, or care over the substance, and

                                          4
(2) knew the matter possessed was contraband. Evans v. State, 202 S.W.3d 158, 161

(Tex. Crim. App. 2006); see also TEX. HEALTH & SAFETY CODE ANN. § 481.002(38)

(West 2010) (“‘Possession’ means actual care, custody, control, or management.’”).

Possession, however, need not be exclusive. Poindexter v. State, 153 S.W.3d 402,

406 (Tex. Crim. App. 2005). When the accused is not in exclusive possession of the

place where the controlled substance is found, then additional, independent facts and

circumstances must affirmatively link the accused to the substance in such a way that

it can reasonably be concluded that the accused possessed the substance and had

knowledge of it. Kibble v. State, 340 S.W.3d 14, 18 (Tex. App.—Houston [1st Dist.]

2010, pet. ref’d). In other words, whether direct or circumstantial, the evidence

“must establish, to the requisite level of confidence, that the accused’s connection

with the [contraband] was more than just fortuitous.” Brown v. State, 911 S.W.2d

744, 747 (Tex. Crim. App. 1995).

      Links that may circumstantially establish the sufficiency of the evidence to

prove knowing possession include (1) the defendant’s presence when a search is

conducted; (2) whether the substance was in plain view; (3) the defendant’s

proximity to and the accessibility of the substance; (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

                                         5
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

substance was found; (12) whether the place where the substance was 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. Evans,

202 S.W.3d at 162 n.12.

      Not all of these factors must be proved; rather, we must consider the

cumulative logical force the factors have in proving possession. See James v. State,

264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). Additionally,

absence of some of the factors is not evidence of innocence that must be weighed

against the factors that are present. Id. Rather, the factors are used to assess the

sufficiency of the evidence linking the defendant to knowing possession of

contraband. See Allen v. State, 249 S.W.3d 680, 694 n.13 (Tex. App.—Austin 2008,

no pet.) (explaining that presence or absence of factors “aid[s] appellate courts in

determining the legal sufficiency of the evidence in knowing possession of

contraband cases”).   Because there was evidence presented of the unidentified

woman who told officers that she lived in the house coming and going during the

search, we examine whether there are sufficient affirmative links between appellant

and the cash and drugs. See Poindexter, 153 S.W.3d at 406.

                                         6
       C. Analysis

      The record reflects that although appellant was not present when the search

was conducted, appellant was the last person Dunn observed occupying the house

before the officers commenced their search. See Haggerty v. State, 429 S.W.3d 1, 7

(Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (noting evidence showing

defendant was last person to leave home before search supported affirmative link

between defendant and contraband). Although Dunn interrupted his surveillance to

follow appellant to the feed store, no other evidence suggests that anyone else entered

the house during his absence. Further, although the unidentified woman entered the

house after the search had begun, the jury could have reasonably inferred that the

house, as the officers found it when they began their search, would have been in the

same condition as it was when appellant left before going to the feed store. See id.

      In the course of his investigation, Dunn saw appellant move furniture into the

Sandy Meadow house, and over the next few weeks, saw appellant and the

unidentified woman enter and leave the residence periodically. Appellant consented

to the search at the time of the traffic stop and was driven straight to the Sandy

Meadows house which he claimed was his. Outside the house, appellant again

provided his consent to search, this time in writing. A rational inference from these

facts (appellant’s oral and written consent to the search, along with Dunn witnessing

                                          7
appellant moving furniture into the residence as well as entering and leaving the

home over several weeks) is that appellant had a right to possession of the

home. See id.

       The record also reflects that several bricks of heroin (as well as a portion of the

methamphetamine), were found inside the residence’s closed garage attic that was

accessible only by a ladder. See Triplett v. State, 292 S.W.3d 205, 210 (Tex. App.—

Amarillo 2009, pet. ref’d) (concluding that garage in which contraband was found

could be considered enclosed space and provided link connecting defendant to

contraband); see also Williams v. State, 01-09-00257-CR, 01-09-00258-CR, 2010

WL 2991097, at *6 (Tex. App.—Houston [1st Dist.] July 29, 2010, pet. ref’d) (mem.

op., not designated for publication) (finding garage in which contraband was found

was enclosed space and linked defendant to contraband).                The baggies of

methamphetamine, as well, were found in a bedroom closet, typically accessible only

to a resident.

       Officers also discovered $3,845 in a men’s jacket in the bedroom closet.

Although the unidentified woman told officers that she lived in the house, a

reasonable inference was that the large amount of cash found in a men’s jacket in the

bedroom closet of appellant’s residence belonged to appellant. See Ex parte Stowe,

744 S.W.2d 615, 618 (Tex. App.—Houston [1st Dist.] 1987, no pet.) (finding

affirmative link established when contraband found in male defendant’s closet

                                            8
containing men’s clothing). Finally, although not one of the enumerated factors, we

note that Dunn observed appellant loading a large bucket of MSM into his car that

was subsequently discovered during the traffic stop. Dunn and the State’s forensic

chemist testified that MSM is known as a common cutting agent for

methamphetamine, one of the illegal substances found in the bedroom closet and the

garage attic of appellant’s residence.

      As noted above, it is not the number of links that is dispositive, but rather, the

logical force of all of the evidence, both direct and circumstantial. Evans, 202

S.W.2d at 162; Nhem v. State, 129 S.W.3d 696, 699–700 (Tex. App.— Houston [1st

Dist.] 2004, no pet.) (finding links consisting of defendant’s personal belongings

found in same room as controlled substance and controlled substance found on

defendant’s person were sufficient to affirm where defendant was arrested

outside of house and defendant was not in exclusive possession of house). Viewing

the evidence in the light most favorable to the verdict, we conclude that a rational

trier of fact could have found the essential elements of the offense, including

the element of possession, beyond a reasonable doubt. Accordingly, we overrule

appellant’s sole point of error.

                                         Conclusion

      We affirm the trial court’s judgment.



                                             9
                                             Jim Sharp
                                             Justice

Panel consists of Justices Higley, Bland, and Sharp.

Do not publish. TEX. R. APP. P. 47.2(b).




                                        10
