Johnny Perez v. State

Citation: Not availableDocket: 02-12-00043-CR

Court: Court of Appeals of Texas; August 29, 2013; Texas; State Appellate Court

Original Court Document: View Document

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Johnny Perez appeals his conviction for possession of methamphetamine, weighing more than four but less than 200 grams. He raises four issues, claiming insufficient evidence of possession, error in denying his motion for a directed verdict, and error in refusing a jury instruction under Article 38.23(a) of the Texas Code of Criminal Procedure. The Court affirms the conviction. 

The case originated from a narcotics search warrant executed by the Wichita Falls Police Department's SWAT Team and Organized Crime Unit on October 1, 2010. Officer Gabriel Vasquez III encountered Perez in a bedroom, where Perez initially complied with commands to raise his hands but then appeared to reach beneath the bed's headboard. Vasquez, perceiving this as a threat, reissued his command, leading to Perez's handcuffing and removal from the residence. 

Officer Karl King testified that during the search of the bedroom, he found an Advil container containing approximately twelve grams of assorted pills and two plastic baggies, one with over one gram of methamphetamine and another with ten bags of methamphetamine typically sold for $20 each. Additionally, .14 grams of methamphetamine was found on the floor near the bed, totaling 5.26 grams of methamphetamine. Digital scales and a wallet with $211 and two debit cards in Perez's name were also discovered. 

During cross-examination, the defense introduced the search warrant, and King acknowledged using a confidential informant (CI) who claimed Perez was selling methamphetamine, for which King paid the CI $200.

Defense counsel questioned the credibility of a confidential informant (CI) during cross-examination, asserting that the CI may have purchased methamphetamine from individuals other than Perez. King, the witness, confirmed that the CI had only purchased from Perez and stated that the CI was confidential, credible, and reliable, thus not requiring testimony. Defense counsel did not seek to disclose the CI's identity or challenge this assertion. Following the State's presentation of evidence, including a toxicology report, defense counsel moved for a directed verdict, arguing that the State had failed to produce the CI, which impeded Perez's right to confront his accuser. The trial court overruled this motion. 

The defense then called witnesses, including Perez's brother and son. Joe Perez testified that his brother could not drive due to vision loss and was not present at the residence during the CI's controlled buy. Michael Perez stated that his brother had concerns about unauthorized occupants at the residence and confirmed that both he and Perez occasionally stayed overnight to check on the property. 

After both sides rested, Perez requested a jury instruction based on Article 38.23(a) of the Code of Criminal Procedure, citing issues related to the Confrontation Clause and hearsay. The trial court denied this request, and the jury ultimately found Perez guilty, assessing a life sentence after a punishment hearing. An appeal followed the trial court's judgment.

Perez contends that the evidence presented at trial is insufficient to establish his possession of methamphetamine discovered in a bedroom where he was found during a police search. He argues that the presence of two other individuals in the house complicates the connection to the drugs, and the State did not demonstrate that he resided at the location. However, the court concludes that the evidence is adequate to support the jury's finding of possession.

The standard for reviewing evidence sufficiency merges the legal and factual sufficiency standards, as established by the Texas Court of Criminal Appeals. The Jackson standard requires that all evidence be viewed in favor of the verdict to determine if a rational fact-finder could have established the essential crime elements beyond a reasonable doubt.

Possession is defined as having actual care, custody, control, or management of an object. In scenarios where the accused does not have exclusive control of the area where drugs are found, there must be more than mere proximity to establish possession. Texas courts apply a "links rule" to ensure that innocent individuals are not convicted based solely on their presence near drugs. While mere presence is insufficient, it can contribute to establishing possession when combined with other evidence.

Factors that may indicate a defendant's connection to controlled substances include: presence during a search, visibility of the contraband, proximity and accessibility of the drugs, influence of narcotics, possession of other contraband, incriminating statements, attempts to flee, furtive gestures, odors of contraband, presence of drug paraphernalia, ownership or right to possess the location, enclosure of the location, possession of significant cash, and behavior indicating guilt.

The determination of possession hinges not on the number of links but on the overall logical force of the evidence, both direct and circumstantial. In the case against Perez, multiple pieces of evidence suggest his knowledge and control over methamphetamine. He was found at the 308 Lee Street residence during a police search, lying on a bed where methamphetamine was discovered. Testimony indicated that upon entering the bedroom, Officer Vasquez instructed Perez to raise his hands, which he initially did, but then made a furtive movement towards the headboard, indicating possible concealment of contraband. A plastic baggie containing .14 grams of methamphetamine was found in the location he attempted to hide. This behavior is compared to precedents where similar gestures linked defendants to contraband.

Additional evidence included the discovery of an Advil bottle with pills and two plastic baggies of methamphetamine between the mattress and box spring, as well as a wallet with $211 and debit cards in Perez’s name found in the same area. Digital scales, commonly associated with drug sales, were also found in plain sight in the bedroom. Although Perez did not own the residence, he provided evidence of having stayed there previously, strengthening the connection to the drugs. In reviewing all evidence in favor of the verdict, it is concluded that the jury could reasonably find Perez possessed the methamphetamine. Consequently, Perez's first and second issues are overruled.

Perez contends that the trial court erred by denying his motion for a directed verdict, claiming a violation of his right to confront the confidential informant (CI) under the Sixth Amendment's Confrontation Clause. He asserts that the court's refusal to disclose the CI's name prevented him from confronting a key witness. However, Perez did not formally request the CI's name during the trial, nor did he object to the Confrontation Clause issue until after the State presented its case, which undermines his position. As no timely objection was made, he has waived this argument on appeal.

In his fourth issue, Perez argues that the trial court wrongly denied his request for a jury instruction pursuant to Article 38.23(a) of the Texas Code of Criminal Procedure. He claims that the evidence presented created a genuine dispute regarding the legality of obtaining the methamphetamine used in his conviction. Specifically, he alleges the CI may have lied to law enforcement, potentially affecting the validity of the search warrant. The State counters that Perez is improperly raising a "Franks claim," which requires evidence of false statements in a search warrant affidavit. The court concludes that no disputed fact issue warranted the jury instruction under Article 38.23(a), and since no error occurred in the jury charge, the appeal on this point fails.

In Vasquez v. State, the Texas Court of Criminal Appeals clarified that when a disputed fact is material to a defendant's claim of a constitutional or statutory violation affecting evidence admissibility, an instruction under Article 38.23(a) is necessary. However, the identity of a confidential informant (CI) and related testimony are not relevant to guilt in a controlled substance possession charge if the CI was not present during the warrant execution or the defendant's arrest. In this case, Perez was charged with possession of methamphetamine found in his vicinity during a police search. The court determined that the CI's identity was irrelevant since he was not at the scene when officers acted, and thus, the trial court did not err in denying Perez's request for an Article 38.23(a) instruction in the jury charge. Consequently, the court affirmed the trial court's judgment, overruling all of Perez's appeal issues.