FRANK HERBERT DOZIER JR v. THE STATE OF TEXAS

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Court of Appeals of Texas, Texarkana.

FRANK HERBERT DOZIER, JR., Appellant v. THE STATE OF TEXAS, Appellee

No. 06-16-00030-CR

Decided: February 24, 2017

Before Morriss, C.J., Moseley and Burgess, JJ.

MEMORANDUM OPINION

A jury convicted Frank Herbert Dozier, Jr., of possessing, within a drug-free zone and with intent to deliver, more than four grams but less than 200 grams of methamphetamine. The jury further found as true the State's enhancement allegations that Dozier had previously been convicted of two felony offenses. In accordance with the jury's verdict, the trial court sentenced Dozier to ninety-five years' imprisonment and ordered him to pay a $9,500.00 fine.1

Pursuant to a search warrant, officers found the drugs in a “stash house” at a time when Dozier was not present. On appeal,2 Dozier challenges the legal sufficiency of the evidence supporting the jury's finding that the drugs in the “stash house” belonged to him. Because we find that legally sufficient evidence links Dozier to the drugs, we overrule his sole point of error and affirm the trial court's judgment.

I. The Evidence at Trial

The Lamar County Sheriff's Office targeted Dozier during a six-month long narcotics investigation after people who were arrested for small amounts of methamphetamine implicated him as their drug dealer. Anson Amis, a deputy with the Lamar County Sheriff's Office, testified that he and Detective Leigh Foreman “were receiving information that ․ [Dozier] was selling large amounts of methamphetamine.” According to Amis, the tip that led to Dozier's arrest came from Melody Whitworth, who told officers that Dozier had recently acquired a “stash house” located at 1167 Grove Street in Paris, Texas (the Grove house).

At trial, Melody testified that her husband, Josh Whitworth, had formed a dangerous addiction to methamphetamine and that Dozier was Josh's supplier. In the hope that an arrest would result in getting help for Josh's addiction, Melody called the police to inform them that Josh was going to the Grove house to buy drugs from Dozier. According to Amis, on the day before Dozier's arrest, Melody told officers that she, Josh, and Freddy Anderson, Sr., were en route to the Grove house in a gold-colored Toyota Tacoma. Amis and Foreman surveilled the Grove house and waited for Dozier to pull up in a maroon-colored Mercury Grand Marquis, a car they knew he drove often.

Amis testified that both cars pulled up to the Grove house and that Dozier and Josh exited the vehicles, went inside the home for a brief period, returned to the cars, and drove off. Because Melody's tip was corroborated, Amis believed that a drug deal had just occurred in the Grove house. He and Foreman stopped the Toyota and made contact with Josh, who admitted that he had methamphetamine and marihuana on his person.

Following his interview with Josh, Amis obtained a warrant to search the Grove house and a house located at 1418 Lamar Avenue, Paris, Texas (the Lamar house), where he believed Dozier was actually residing with his girlfriend, Deidra Sims, and her children. The Lamar County Sheriff's Office and the Paris Police Department cooperated in executing the warrants. Because no one was in the Grove house when the first warrant was executed, David Rowton, a detective with the Paris Police Department, stayed behind to search the Grove house while Amis and other officers attempted to apprehend Dozier.

Amis located Dozier and Sims on the Lamar house patio.3 He detained Dozier and found a loaded revolver in his back pocket, along with a “large amount of cash”4 and a set of keys that proved critical in connecting Dozier to the Grove house and the car parked in front of it. Amis testified that officers confiscated loose marihuana from Dozier's bedroom and living room, three bags of marihuana from the front porch, as well as other paraphernalia in the Lamar house. Dozier and Sims were both arrested.

Amis travelled back to the Grove house and, using the keys obtained from Dozier, unlocked a silver Ford Crown Victoria that had been parked out front. Inside of the Crown Victoria, Amis found a loaded shotgun. He also found an animal print bag and a Nike shoebox, both containing loose marihuana and marihuana packaged to sell. Amis also noticed that Dozier's keys opened the deadbolt on the Grove house door. Upon entering the Grove house, Rowton located several bags of methamphetamine next to plastic spoons and smaller, empty plastic bags inside a drawer. According to Chance Cline, a forensic scientist with the Texas Department of Public Safety Tyler Regional Crime Laboratory, the methamphetamine from the Grove house weighed a total of thirty-five grams. Rowton also found over twenty-two ounces of marihuana, burnt marihuana cigarettes, a glass pipe, and a digital scale.

At trial, Sims explained how and why Dozier came to acquire the Grove house. Sims testified that she and Dozier had been living in the Lamar house since 2012 and that they both sold marihuana from that house. Sims testified that, when Dozier began selling methamphetamine, she became concerned for her children's health and alarmed by the increase in foot traffic to the house. To assuage her concern, she rented the Grove house as a “stash house” for Dozier to use and allowed her cousin, Justin Sims, to live there. Sims testified that the Crown Victoria parked in front of the Grove house belonged to Dozier, but that Dozier always drove her maroon Mercury Grand Marquis.

At trial, Whitworth confirmed that Dozier was his drug dealer and that he purchased drugs from Dozier at the Grove house. Anderson testified that he purchased methamphetamine from Dozier approximately 500 times in a six-month span and that he had spent at least $20,000.00 during his drug binge. Anderson stated that he picked up drugs from Dozier at both the Lamar and Grove houses.

After hearing all of the evidence, the jury convicted Dozier.

II. Standard of Review

Dozier argues that the evidence is legally insufficient to support the jury's finding that he possessed the methamphetamine. In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917–18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The “hypothetically correct” jury charge is “one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id. Here, the State had the burden to prove that Dozier “knowingly ․ possess[ed] with intent to deliver a controlled substance in Penalty Group I,” that the “aggregate weight, including adulterants or dilutants, [was] four grams or more but less than 200 grams,” and that the offense occurred in a drug-free zone.5 TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d) (West 2010); see TEX. HEALTH & SAFETY CODE ANN. § 481,134 (West Supp. 2016).

Dozier challenges only the element of possession. “ ‘Possession’ means actual care, custody, control, or management.” TEX. PENAL CODE ANN. § 1.07(a)(39) (West Supp. 2016). The crime is established by showing that Dozier exercised control, custody, management, or care over the drugs and that he knew the matter possessed was contraband. See Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); see also TEX. PENAL CODE ANN. § 1.07(a)(39).

“When the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband.” Hutchison v. State, 424 S.W.3d 164, 170 (Tex. App.—Texarkana 2014, no pet.) (quoting Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981)). This is because “[m]ere presence at the location where drugs are found is insufficient, by itself, to establish actual care, custody, or control of those drugs.” Id. (citing Evans, 202 S.W.3d at 162). “Presence or proximity to drugs, however, when combined with other direct or circumstantial evidence, may be sufficient to establish control, management, custody, or care provided the proof amounts to more than a strong suspicion.” Id. “Requiring that evidence link a defendant with the contraband protects ‘the innocent bystander from conviction based solely on his fortuitous proximity to someone else's drugs.’ ” Id. (quoting Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005)).

III. Analysis

Dozier argues that the evidence was legally insufficient to show that he possessed the drugs found in the Grove house because Justin Sims lived in the home and “[t]here is no evidence that [he] either owned, lived in, or spent significant time at the Grove Street house.” We disagree.

We have recognized that the following factors, or links, tend to establish a person's possession of contraband:

(1) the accused's presence when a search is conducted; (2) whether the contraband was in plain view; (3) the accused's proximity to 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.

Id. at 170–71 (citing Wright v. State, 401 S.W.3d 813, 818–19 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd); Evans, 202 S.W.3d at 162 n.12)). “The number of links present is not as important as the degree to which they tend to link the defendant to the controlled substance.” Id. at 172. Moreover, although “each defendant must still be affirmatively linked with the drugs he allegedly possessed, ․ this link need no longer be so strong that it excludes every other outstanding reasonable hypothesis except the defendant's guilt.” Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995).

In this case, Dozier was not present during the search of the Grove house, was not under the influence of drugs when arrested, did not make incriminating statements or furtive gestures, and did not attempt to flee. While we agree with Dozier that a number of the links did not apply in this case, we disagree with his conclusion that the State failed to link him to the methamphetamine.

The evidence at trial did not, as Dozier argues, establish that he was merely an innocent bystander who was convicted based solely on his fortuitous proximity to someone else's drugs. Rather, it demonstrated that Dozier was a drug dealer who had acquired the Grove house as a “stash house.” Not only was Dozier present when the Lamar house was searched, the officers found marihuana in plain view at the house. They also caught Dozier carrying a loaded gun, a large amount of cash, and a set of keys that opened the Crown Victoria and the Grove house front door. Sims' testimony established (1) that Dozier had access to the Grove house, (2) that the Crown Victoria parked in front of the Grove house belonged to Dozier, and (3) that Dozier sold methamphetamine and marihuana from the Grove house. Amis testified that, on the day before Dozier's arrest, he witnessed Dozier conduct a drug deal with Josh at the Grove house. At trial, Josh and Anderson both testified that Dozier was their drug dealer and that he sold drugs out of the Grove house.

Viewing the evidence in the light most favorable to the jury's verdict, we conclude that a rational jury could find, beyond a reasonable doubt, that Dozier exercised control, management, or care over the methamphetamine found in the Grove house. Because we find that sufficient evidence linked Dozier to the methamphetamine found in the Grove house, we overrule his sole point of error.

IV. Conclusion

We affirm the trial court's judgment.

FOOTNOTES

1.   See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West 2010).

2.   In related cause number 06-16-00031-CR, Dozier also appeals from his conviction of possession of marihuana in an amount of more than four ounces but less than five pounds.

3.   Amis testified that he knew Dozier and Sims lived in the home. He took photographs of mail addressed to Sims at the Lamar house, an order enforcing child support against Dozier that was found in the master bedroom of the Lamar house, and an “offender card from prison” listing the Lamar house as Dozier's home.

4.   Amis testified that, although Dozier was not actively employed, he found $3,800.00 in cash during the search of the Lamar house, with “[r]oughly $2,400” located inside of the home.

5.   Because the evidence at trial demonstrated that the location of the offense was 800 feet from a park, Dozier does not challenge the jury's drug-free zone finding.

Ralph K. Burgess Justice