Opinion
NO. 01-18-00606-CR
05-30-2019
ALEXANDER STEVEN GASKILL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 355th District Court Hood County, Texas
Trial Court Case No. CR13649
The Supreme Court of Texas transferred this appeal from the Court of Appeals for the Second District to this court. We are unaware of any conflict between precedent of that court and this court on any relevant issue.
MEMORANDUM OPINION
A two-count indictment charged appellant Alexander Steven Gaskill with the first-degree felony offense of possession of a controlled substance (gamma hydroxybutyric acid, or GHB) in count one and the third-degree felony offense of possession of a controlled substance (methamphetamine) in count two. With Gaskill's consent, count one was amended on the date of trial by reducing the amount of GHB allegedly possessed by Gaskill to be between four and 200 grams, thus reducing the offense level to a second-degree felony. A jury found Gaskill guilty on both counts and assessed punishment at fifteen years' imprisonment on count one and ten years' imprisonment on count two.
Gaskill asserts in two issues that the evidence is insufficient to support the convictions and in a third issue that the statute authorizing the assessment of a $40 jury trial fee as a court cost is facially unconstitutional. We affirm.
Background
Hood County Sheriff's Deputy D. Sweeney pulled over the Chevrolet Avalanche pickup truck that Gaskill was driving for failure to display a third brake light (the light on the back of the cab). Bryan Bradshaw, the only passenger, was clinging on to a black laptop bag in his lap, staring straight ahead, and appeared nervous. Gaskill initially told Deputy Sweeney that he was returning the truck to an employee, but he later told Deputy Sweeney that he and Bradshaw had just left Gaskill's residence because of an argument with Gaskill's girlfriend. Deputy Sweeney called for backup, and Deputy S. Batchelor soon arrived.
Gaskill gave Deputy Sweeney permission to search the truck. Bradshaw's bag, which the deputies required him to leave in the truck, contained a small bag of methamphetamine. Deputy Sweeney found in the driver's door pocket a small digital scale that he said was commonly used for weighing drugs. The deputies found numerous personal belongings, such as a television, in the back seat areas. Under the television, the deputies found a Red Bull can with a false bottom. In the false bottom, the deputies found a baggie with methamphetamine residue, a baggie with methamphetamine, a baggie with white Alprazolam tablets, and a baggie with a partial Suboxone sublingual strip. One of the methamphetamine baggies had green markings on it. The substance tested positive for methamphetamine and weighed 3.3 grams. Several Lyrica pills were also found in the truck. Gaskill told the deputies that he took both Lyrica and Xanax (Alprazolam).
While Deputy Sweeney searched the truck, Deputy Batchelor was with Gaskill and Bradshaw. Deputy Batchelor was a trained narcotics investigator. He testified that Gaskill was moving rapidly, talking fast, and sweating, which, according to Deputy Batchelor, indicated drug use, most likely methamphetamine. Deputy Batchelor had Gaskill perform the Romberg test, which he explained indicates whether a suspect may be on stimulants or depressants. According to Deputy Batchelor, Gaskill's results indicated that he was likely under the influence of a stimulant, but Gaskill told Deputy Batchelor that he took Xanax.
Gaskill also told Deputy Batchelor that he had gotten into an altercation with his girlfriend at his residence and that he had started grabbing items from his house to quickly get away. Initially, Gaskill had told the deputies that he lived at 2020 Swaim, but later, when Deputy Batchelor asked him whether he had illegal drugs at his house, Gaskill said that he lived in an apartment that had been flooded.
Deputy Batchelor testified that Bradshaw told him that when Bradshaw and Gaskill were leaving the house, Gaskill told Bradshaw that he "had to go back and get the dope." According to Bradshaw, when Gaskill returned to the truck, the drugs were in the same container that Gaskill hid when he got pulled over. Bradshaw identified the container as the Red Bull can that the deputies found. Bradshaw also told Deputy Batchelor that there were more narcotics at Gaskill's house and that Gaskill had GHB in a container in the refrigerator. Bradshaw also said that he had seen a baggie of methamphetamine in Gaskill's dresser drawer, and he believed that Gaskill was referring to that baggie when he said he had to "go back and get the dope."
Gaskill gave the deputies consent to search his residence at 2020 Swaim. In that search, the deputies found in a nightstand a prescription bottle with Gaskill's name with marijuana residue inside it. In a dresser, the deputies found a glass pipe with methamphetamine residue in it, a baggie with residue, another digital scale, and men's clothing. The baggie had the same green markings on it as one of the baggies found in the Red Bull can. In the refrigerator, the deputies found two 5-hour Energy drink bottles. One of the bottles had been opened, and it contained GHB that weighed 33.00 grams.
Analysis
Gaskill's first and second issues are that the trial court erred in overruling his motion for directed verdict on counts one and two, respectively, because the State had failed to prove every element of the offenses beyond a reasonable doubt. Gaskill contests only the element of possession.
Sufficiency of the Evidence
We treat a complaint that the trial court improperly denied a motion for directed verdict as a challenge to the sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). The standard of review applicable to a motion for directed verdict is the same used under a sufficiency review. See id.; Pollock v. State, 405 S.W.3d 396, 401 (Tex. App.—Fort Worth 2013, no pet.).
A challenge to the sufficiency of the evidence requires that we identify the essential elements of the charged offense and ask whether the evidence and reasonable inferences therefrom, viewed in the light most favorable to the conviction, would permit a rational juror to find each element of the charged offense beyond a reasonable doubt. Braughton v. State, 562 S.W.3d 592, 607-08 (Tex. Crim. App. 2018). A reviewing court considers all of the evidence adduced at trial, whether it was admissible or inadmissible. See Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013). Whether a conviction rests on direct or circumstantial evidence, the sufficiency standard remains unchanged. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). The analysis requires us to keep in mind that the jury is the sole judge of the evidence's weight and credibility. Braughton, 562 S.W.3d at 608. We presume that the jury resolved any conflicting inferences in favor of the verdict. Id. This standard mandates great deference to the jury, but we do not defer to a jury's conclusions that are based on "mere speculation or factually unsupported inferences or presumptions." Id. (quoting Hooper v. State, 214 S.W.3d 9, 15-16 (Tex. Crim. App. 2007)).
A criminal conviction may be based upon circumstantial evidence. Clayton, 235 S.W.3d at 778; Miller v. State, 566 S.W.2d 614, 617 (Tex. Crim. App. 1978). "Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see Clayton, 235 S.W.3d at 778. In circumstantial evidence cases, it is not necessary that every fact and circumstance "point directly and independently to the defendant's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances." Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993); see Hooper, 214 S.W.3d at 13.Temple v. State, 390 S.W.3d 341, 359-60 (Tex. Crim. App. 2013); see also Gibbs v. State, 555 S.W.3d 718, 728 (Tex. App.—Houston [1st Dist.] 2018, no pet.).
Gaskill specifically argues that the evidence is insufficient to support the jury's guilt findings because the evidence does not support the jury's conclusion that he exercised care, control, or management over the controlled substances.
To prove unlawful possession, the State must establish that the accused (1) exercised care, control, or management over the contraband and (2) knew that the substance was in fact contraband. See Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005), overruled on other grounds by Robinson v. State, 466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015); Henry v. State, 409 S.W.3d 37, 42 (Tex. App.—Houston [1st Dist.] 2013, no pet.). The State may prove these elements through direct or circumstantial evidence, but the evidence must establish that the accused's connection with the substance was more than merely fortuitous. See Blackman v. State, 350 S.W.3d 588, 594-95 (Tex. Crim. App. 2011); Le v. State, 479 S.W.3d 462, 467 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
In Henry, this court articulated applicable Texas law on possession of a controlled substance:
Possession need not be exclusive. Wiley v. State, 388 S.W.3d 807, 813 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd). "When the accused is not in exclusive possession of the place where the contraband is found, then additional, independent facts and circumstances must link the defendant to the contraband in such a way that it can reasonably be concluded that [the defendant] had knowledge of the contraband and exercised control over it." Kibble v. State, 340 S.W.3d 14, 18 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd); see also Roberts v. State, 321 S.W.3d 545, 549 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd). The evidence, whether direct or
circumstantial, "must establish, to the requisite level of confidence, that the accused's connection with the drug[s] was more than just fortuitous." Poindexter, 153 S.W.3d at 405-06 (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)). "This rule simply [states] the common-sense notion that a person—such as a father, son, spouse, roommate, or friend—may jointly possess property like a house but not necessarily jointly possess the contraband found in that house." Id. at 406. The accused's presence at the scene where contraband is found is insufficient, by itself, to establish possession. Roberts, 321 S.W.3d at 549 (citing Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006)). However, when combined with other direct or circumstantial evidence, presence or proximity may be sufficient to establish the elements of possession beyond a reasonable doubt. Id. Additionally, when narcotics are secreted, the State must address whether the accused knew of the existence of the secret place and its contents. Id. (citing Medina v. State, 242 S.W.3d 573, 576 (Tex. App.—Waco 2007, no pet.)).Henry, 409 S.W.3d at 42-43; see also Le, 479 S.W.3d at 467-68.
Links that may establish 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 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. The "number of . . . links proven is not as important as the logical force that they collectively create." Wiley, 388 S.W.3d at 814 (quoting Hubert v. State, 312 S.W.3d 687, 691 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd)). "The absence of various affirmative links does not constitute evidence of innocence to be weighed against the affirmative links present." Id. (quoting James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd)).
We now turn to the evidence linking Gaskill to the drugs. First, the jury was allowed to consider Bradshaw's statements to Deputy Batchelor that linked Gaskill to the drugs, and Bradshaw's statements by themselves had sufficient probative value to link Gaskill to the drugs. See Poindexter, 153 S.W.3d at 407-09. Bradshaw told Deputy Batchelor that when he and Gaskill were leaving Gaskill's house earlier that evening, Gaskill said that he "had to go back and get the dope." According to Bradshaw, when Gaskill came back out, he had a shiny container that was the same Red Bull can that he was holding when he was pulled over and that he hid in the truck. That Red Bull can had a false bottom that contained the bag of methamphetamine and prescription medications.
Bradshaw also told Deputy Batchelor he knew that Gaskill had GHB in a container in the refrigerator at his house. The deputies found a bottle containing GHB in Gaskill's refrigerator, exactly where Bradshaw said it was. Bradshaw also told Deputy Batchelor that he had seen methamphetamine in Gaskill's dresser and that he believed that the methamphetamine was the same "dope" that Gaskill had retrieved when he went back into the house. The deputies found a digital scale, a methamphetamine pipe, and a baggie with methamphetamine residue in the dresser, just as Bradshaw had described.
The drugs in this case were found in hidden places known to Bradshaw and Gaskill. See id. at 409-11. The evidence that Gaskill hid the GHB in an energy drink bottle in the refrigerator indicated that the drugs were accessible to him and not accessible to someone who did not know about the hiding place. Further, there is no evidence that would support a conclusion that Gaskill was merely an innocent bystander to someone else's drugs within his home. See id. at 412. And it also "defies logic" to think that Bradshaw told Deputy Batchelor that Gaskill kept GHB in a container in the refrigerator (exactly where it was found) and yet Gaskill did not know of that secret stash. See id. at 410-11.
Gaskill himself made incriminating statements to the deputies. He admitted that he lived at 2020 Swaim, the house where the deputies found the GHB and drug paraphernalia. And Gaskill's own statements connected him to the drugs found in the Red Bull can: he admitted that he took prescription Xanax and Lyrica, and the deputies found Xanax in the Red Bull Can and Lyrica pills scattered in the truck.
Gaskill also made statements that contradicted his initial story that the truck was not his and that he was returning it to its owner. Gaskill said that he had gotten into an altercation with his girlfriend at his house and that he just started grabbing items from the house to quickly get away. The deputies found numerous personal belongings in the back seat, as well as the Red Bull can hidden under a television. The jury could have reasonably inferred that, because Gaskill's possessions, including his prescription medications, were in the truck, it was likely that the methamphetamine was also Gaskill's.
Gaskill, as the driver of the truck, was in proximity to the drugs and had access to them. While a digital scale for weighing drugs was in the driver's door pocket, easily within the reach of Gaskill, he asserts that the drugs in the Red Bull can were not conveniently accessible to him because they were in the backseat behind the front passenger seat and under a television. See Robinson v. State, 174 S.W.3d 320, 326 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd) (for contraband to be conveniently accessible, it must be "within the close vicinity of the accused and easily accessible while in the vehicle so as to suggest the accused had knowledge of the contraband and exercised control over it"). But the jury could have reasonably concluded that the drugs in the Red Bull can were conveniently accessible to the driver Gaskill precisely because they were behind the front passenger seat, rather than behind the driver's seat. Furthermore, Detective Batchelor testified that Bradshaw told him that Gaskill hid the can under the television when he got pulled over. See, e.g., Le, 479 S.W.3d at 465-68 (affirming pickup truck driver's possession conviction where marihuana was found in the bed of the truck, as well as lesser amounts in several places inside the truck's cab, including a lunch box located between the driver's and the passenger's seats, the glove box, behind the passenger's seat, and in the passenger's-side cup holder, and passenger had stipulated in his guilty plea that marihuana belonged to both him and the driver); Robinson, 174 S.W.3d at 326 (affirming possession conviction of front-seat passenger in truck where cocaine was located in factory compartment in back wall of truck, and noting that cocaine was within vicinity and easily accessible to passenger). Drugs and paraphernalia were also in Gaskill's dresser and nightstand.
Other evidence linked Gaskill to the drugs and paraphernalia. For example, the deputies found a prescription bottle with Gaskill's name on it in his nightstand, and it contained marihuana residue. And in Gaskill's dresser, the deputies found men's clothing, another digital scale (with methamphetamine residue on it), and a baggie with methamphetamine residue inside it. One of the baggies in the Red Bull can had particular green markings on it, and those markings were the same as markings on one of the baggies found in Gaskill's dresser.
Another link to the methamphetamine was Gaskill's appearance to Deputy Batchelor to be under the influence of methamphetamine. According to Deputy Batchelor, Gaskill showed signs of methamphetamine use; he was moving rapidly, talking fast, and sweating. The Romberg test verified to Deputy Batchelor that Gaskill was likely under the influence of a stimulant.
Gaskill contends that his conduct did not indicate a consciousness of guilt. The State contends to the contrary, pointing out that after Gaskill had already told the deputies that he lived at 2020 Swaim, but as soon as Deputy Batchelor started questioning him about whether drugs were in his residence, Gaskill immediately tried to distance himself from the Swaim address. Deputy Batchelor testified that Gaskill "quickly decided that he did no longer live there and he lived at an apartment here in town, even though it got flooded and he said he didn't live there." As discussed above, Gaskill gave contradictory accounts of what he was doing with the truck and where he was going. And while Gaskill indicated to Deputy Sweeney that he was unaware of the digital scale in the truck and to Deputy Batchelor that he knew nothing about the drugs in the Red Bull can, the jury could have disbelieved Gaskill's exculpatory statements to the deputies.
Regarding the GHB in the refrigerator, Gaskill argues that the evidence linking him to the GHB is too attenuated. We disagree. While it is correct that Gaskill was not present in the house when the search occurred the evening of the traffic stop and arrest, Gaskill admitted that he had been living at the house and had left it that day with some of his possessions that were in the truck. Bradshaw, who had also been living at the house with Gaskill and Gaskill's girlfriend, told Deputy Batchelor that Gaskill had GHB in a container in the refrigerator at his house. The deputies found in a nightstand in Gaskill's bedroom a prescription bottle with Gaskill's name with marijuana residue inside it. A digital scale, a methamphetamine pipe, and a baggie with methamphetamine residue were found in Gaskill's dresser. Finally, the similarity of the concealment of the methamphetamine and the GHB linked the drugs to each other and to Gaskill. Both the GHB and the methamphetamine were concealed in common energy-drink containers. The GHB was concealed in a 5-Hour Energy bottle. The methamphetamine and Xanax were concealed in a Red Bull energy drink can with a false bottom. The jury could have logically concluded that Gaskill chose similar energy-related product containers to conceal his narcotics.
Gaskill argues that there are many absent links between him and the drugs: they were not in plain view; he did not make furtive gestures or attempt to flee; he did not own the truck or the house; there was no evidence of drug odor in the truck or house; he did not have drugs or drug paraphernalia on his person; he did not have weapons or a large amount of cash on his person; and he was not in close proximity to the GHB when it was found. But as noted above, the "number of . . . links proven is not as important as the logical force that they collectively create," Wiley, 388 S.W.3d at 814, and the absence of various links does not constitute evidence of innocence to be weighed against the links present. Id. And to the extent these absent links could have supported an inference against Gaskill's possession of the drugs, the jury was entitled to reject and did reject that inference.
Based on these links and the cumulative force of all of the evidence, a rational jury could have concluded, beyond a reasonable doubt, that Gaskill exercised actual care, custody, or control of the methamphetamine and the GHB. We overrule issues one and two.
Court Costs
In his third issue, Gaskill contends for the first time on appeal, as allowed by Johnson v. State, 537 S.W.3d 929, 929 (Tex. Crim. App. 2017), that the statute authorizing the assessment of a $40 jury trial fee as a court cost, article 102.004(a) of the Texas Code of Criminal Procedure, is facially unconstitutional because it violates the separation-of-powers doctrine in that it does not serve a legitimate criminal justice purpose. See Salinas v. State, 523 S.W.3d 103, 106-10 (Tex. Crim. App. 2017); Peraza v. State, 467 S.W.3d 508, 517-18 (Tex. Crim. App. 2015).
This issue is a matter of first impression for this court, but the Second Court of Appeals (the transferor court of this case), in Alvarez v. State, ___ S.W.3d ___, ___, 2019 WL 983750, at *4-5 (Tex. App.—Fort Worth, Feb. 28, 201, pet. ref'd), recently agreed with and adopted our sister court's reasoning in Johnson v. State, 562 S.W.3d 168, 174-80 (Tex. App.—Houston [14th Dist.] 2018, pet. ref'd) (op. on reh'g). These courts found that the $40 jury trial fee is facially constitutional because it is used for legitimate criminal justice purposes. Alvarez, ___ S.W.3d at ___, 2019 WL 983750, at *4-5; Johnson, 562 S.W.3d at 174-80. We will apply Alvarez and likewise conclude that the $40 jury trial fee in article 102.004(a) is facially constitutional for the reasons set forth in Johnson. Accordingly, we overrule issue three.
See TEX. R. APP. P. 41.3.
Conclusion
Having overruled Gaskill's three issues, we affirm the trial court's judgments of conviction.
Richard Hightower
Justice Panel consists of Chief Justice Radack and Justices Higley and Hightower. Do not publish. TEX. R. APP. P. 47.2(b).