Virgil Raymond Stewart, Jr. v. The State of Texas--Appeal from 184th District Court of Harris County

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State: Texas

Court: Texas Northern District Court

Docket No: 08-04-00272-CR

Case Date: 08/31/2007

Plaintiff: Virgil Raymond Stewart, Jr.

Defendant: The State of Texas--Appeal from 184th District Court of Harris County

Preview:Virgil Raymond Stewart, Jr. v. The State of Texas--
Appeal from 184th District Court of Harris County
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
VIRGIL RAYMOND STEWART JR.,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
No. 08-04-00272-CR
Appeal from the
184th District Court
of Harris County, Texas
(TC#987643)
O P I N I O N
This is an appeal from a conviction for the offense of possession of methamphetamine in an amount greater than one
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gram and less than four grams, enhanced by the allegation of two prior felony convictions. Appellant pleaded not
guilty to the court, and the court assessed punishment at thirty-five years' imprisonment. We affirm Appellant's
conviction.
On February 23, 2006, this Court issued an opinion reversing and remanding the judgment of the trial court, on the
ground that the evidence was factually insufficient to support the conviction. See Stewart v. State, 187 S.W.3d 249, 258
(Tex. App.--El Paso), rev'd and remanded, 209 S.W.3d 127 (Tex. Crim. App. 2006). On December 13, 2006, the Court
of Criminal Appeals held that, when this Court issued its opinion in this case, it did so without the benefit of the Court
of Criminal Appeals' recent opinion in Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006). The Court of
Criminal Appeals remanded the case to this Court to consider the effect, if any, of Watson on our reasoning and
analysis. Stewart, 209 S.W.3d at 127-28.
I. SUMMARY OF THE EVIDENCE
Sarah Conley testified that she was Appellant's parole officer. On June 17, 2003, she and Appellant had scheduled a
home parole visit at Appellant's home at 301 Graham Street in Baytown, Texas. (1) As Conley approached the house,
she encountered an individual who asked whether he could help her. When Conley identified herself as Appellant's
parole officer, the individual ran into the house and slammed the door. Seconds later, he came out of the house and
apologized, stating that he had been up all night tattooing people and was not thinking clearly. They entered the house
through the back door, and she observed a hose running out the back door. The house smelled like rotten eggs or
leaking natural gas. One of the men present stated that Appellant was not there, but he would try to call him.
There were two males and a female in the house. Conley was taken into the living room. The doors to the rest of the
house were closed. She was informed that Appellant could not be reached. Conley asked the man to tell Appellant to
call her to reschedule the visit. Conley became suspicious and, upon leaving the residence, she notified the Baytown
Police Department of her concerns.
On June 18, 2003, Appellant called Conley and stated that he had a new girlfriend and he was at her house, recovering
from an illness. He gave Conley the address of the house, which was in the Sharpstown area, in southwest Houston.
Appellant stated that his home had been raided, because a girl named Sissy had been making methamphetamine at the
house. Conley advised Appellant to call the Baytown Police Department.
Patrick O' Dell testified that he was the director of the special audit division and was the chief investigator for the
Harris County Appraisal District. He stated that his investigation revealed that Appellant was the owner of the home at
301 Graham in Baytown, Texas.
Detective Chris Zucha testified that he was a police officer with the Baytown Police Department, assigned to the
narcotics division. On June 17, 2003, Detective Zucha became involved in an investigation at the residence on Graham
Street. He spoke to Conley and, as a result of that conversation, he and his partner traveled to the location. When they
arrived, they encountered a man named James Stutts. Stutts stated that the residence belonged to Appellant and that he
himself had arrived at the house within the last two days. The officers found narcotics paraphernalia on Stutts and
arrested him.
The officers then made contact at the house with a female named Donna Kahn. They also found narcotics
paraphernalia on her person and arrested her. The officers observed some large garbage cans in plain view by the back
door of the house. They saw beakers, syringes, empty antihistamine packages, and empty fuel supplement containers.
The officers suspected that the location was being used as a methamphetamine lab. They obtained a search warrant
and, upon entering the residence, they found anhydrous ammonia containers, directions on how to produce
methamphetamine, and illicit narcotics. The search area consisted of a main residence, a converted garage residence,
and a car. Paraphernalia were found in all three locations. Appellant was never encountered at the residence.
Other officers who assisted in the search testified that three envelopes addressed to Appellant were found in the
mailbox, and chemicals used to manufacture methamphetamine were found in a locker in the detached garage
residence. Further, there was evidence that an anhydrous ammonia container was found in the kitchen.
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Officer Jimmy Pemelton, a sergeant with the Texas Department of Public Safety Narcotics Service, testified that he
worked specifically on cases involving methamphetamine and methamphetamine laboratories. He was called out to the
301 Graham location to aid in the investigation. When he inspected the house, it looked like a typical
methamphetamine lab. The house was unclean, with a strong chemical smell. The search revealed connection tubing,
coffee filters, containers of ammonia, coke bottles filled with different layers of strange-colored liquids, solvents, and
camping fuel. Taken together, these items were indicative of methamphetamine production. These items were spread
out among all three of the search areas. Male clothing was found in the living areas, and the witnesses believed that
people were living in both residences.
Steve Dorris, a detective with the Harris County Organized Crime Unit, testified that he helped in the investigation at
Appellant's house. He and another officer encountered Stutts at the house. They found a syringe on his person, and he
was placed under arrest. They then went to the back door of the residence, where they encountered Kahn. She stated
that the house belonged to Appellant and that she had been staying there for a few days. Kahn stated that Appellant
had left the day before, and she had not spoken to him since. She responded affirmatively when asked whether she had
been left in care and control of the house. After explaining why they were there, the officers asked for consent to go
into the house. Kahn became nervous and stated, "No, because Virgil wouldn't appreciate it."
By the side of the back door, Detective Dorris observed trash bags containing refuse that was indicative of
methamphetamine manufacture. After a search warrant was obtained, they entered the house and Dorris searched what
appeared to be a master bedroom in the northwest part of the main residence. He searched the closet in the bedroom
and found men's clothing. A search of the dresser in the bedroom revealed men's and women's clothing, and a letter
from the Department of Public Safety addressed to Appellant. The detective found numerous items associated with
methamphetamine manufacture in the master bedroom. Furthermore, there was evidence of methamphetamine
production in the living area, the master bedroom, and the detached garage apartment.
The parties stipulated that methamphetamine in the amounts of 2.18 grams and 76.13 grams was found in the
residence. The lesser amount was found in a first aid kit in a locker, which was in a bedroom closet of the garage
residence apartment. The larger amount was found in the living room in an ice chest.
Lisa Petty testified on Appellant's behalf. She stated that Appellant was her uncle, and she had lived at the house on
Graham Street for a period during 2003. She stated that Appellant moved in with a woman named Simone at a location
on the other side of Houston. She had seen a man and a woman at the house, and she believed that Appellant had
rented the house to them. She thought that Appellant had moved in with Simone in the early part of April.
Kelly Waltmon stated that he was a project manager for Brand Services, a scaffolding company. Appellant had worked
for him prior to being hospitalized for cancer. Waltmon was aware that Appellant had moved out of his Baytown
house and was living "on the other side of town."
Tony Herrington testified that he also worked for Brand Services. Appellant had worked with him at the company for
two or three years. Herrington did not believe Appellant lived at the house on Graham Street in mid-June of 2003. He
drove by Appellant's house on numerous occasions to visit another employee who lived on the same street, and he
never saw Appellant or his vehicles at the residence.
Simone Crutcher testified that Appellant had been hospitalized with cancer. She took him home from the hospital, and
they originally lived in Appellant's house on Graham Street for about a month. They then moved to her house in the
Sharpstown area of Houston. She took Appellant to his house where they gathered some clothes, although they left
some other clothes at the house. She had last been at the house at the end of May. She did not notice anything unusual
or illegal occurring at the house at that time. She was privy to the rental arrangements with the two renters, and she
knew that Appellant had told them not to engage in any illegal conduct.
James Lamar Stutts testified that he had been arrested by the Baytown Police Department outside the residence on
Graham Street on June 17, 2003. He pleaded guilty to the possession of methamphetamine charges arising out of that
incident and received deferred adjudication. Eventually, he lost his probationary status and was sentenced to prison.
Stutts related that he and Donna Kahn were renting different portions of the entire residence from Appellant.
Appellant was living across town with his friend Simone. The witness stated that he had last seen Appellant a month
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prior to Stutts's arrest at the house. Stutts testified that Appellant had not been involved in the manufacturing of the
methamphetamine at the residence.
Appellant testified on his own behalf. He related that he had served time in prison for possession of methamphetamine
and that he had been addicted to methamphetamine in the past. Appellant stated that he did not know that the
methamphetamine had been manufactured at his house. He testified that he was last in the house in the middle of May.
He rented the house to Stutts and Donna Kahn. Appellant explained that he had been groggy, due to his medication,
thereby missing the appointment with his parole officer at his house. He stated that he called his parole officer on the
18th of June, because his brother called him and told him that police had been at the house on the 17th. Appellant
testified that he had warned Stutts and Kahn not to cause trouble, because he was continuing to use his house as his
parole address.
II. DISCUSSION
In our previous opinion, we overruled each of Appellant's legal-insufficiency issues. Nothing in the Court of Criminal
Appeals' opinion called into question that portion of our opinion, nor do we discern any reason to reconsider that
holding. (2) Watson (the sole basis for the Court of Criminal Appeals' remand) dealt only with factual-insufficiency
issues, so we will limit our review to Appellant's factual-insufficiency issues, which are Issues Two, Four, Six, and
Eight. (3)
In Issues Two and Six, Appellant asserts that the evidence was factually insufficient to support the conviction.
Specifically, Appellant maintains that the State did not possess enough evidence affirmatively to link him to the drugs
found in the residence, and the evidence did not sufficiently establish that he had knowledge of the fact that there were
drugs in his home.
When conducting a review of the factual sufficiency of the evidence, we consider all of the evidence, but (unlike our
review of legal sufficiency issues) we do not view it in the light most favorable to the verdict. Clewis v. State, 922
S.W.2d 126, 129 (Tex. Crim. App. 1996); Levario v. State, 964 S.W.2d 290, 295 (Tex. App.--El Paso 1997, no pet.).
We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and
compare it with the evidence that tends to disprove that fact. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000);
Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 832, 118 S. Ct. 100 (1997). A
defendant who challenges the factual sufficiency of the evidence may allege that the evidence is so weak as to be
clearly wrong and manifestly unjust, or, in a case where the defendant has offered contrary evidence, he may argue
that the finding of guilt is against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11.
Although we are authorized to set aside the fact finder's determination under either of these two circumstances, our
review must employ appropriate deference and not intrude upon the fact finder's role as the sole judge of the weight
and credibility given to any evidence presented at trial. See id. at 7. We are not free to reweigh the evidence and set
aside a verdict, merely because we feel that a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407
(Tex. Crim. App. 1997); Clewis, 922 S.W.2d at 135. We are authorized to set aside the jury's finding of fact only in
instances where it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. If the evidence is
factually insufficient, we remand to the trial court for a new trial. Id. at 133-35. Also, in conducting a factual-
sufficiency review, we view the evidence in a neutral light to determine whether a jury was rationally justified in
finding guilt beyond a reasonable doubt.
In Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004), the Court of Criminal Appeals stated that the
reviewing court will set aside the fact finder's verdict only if (1) the evidence supporting the verdict, when considered
by itself, is too weak to support the finding of guilt beyond a reasonable doubt or (2) evidence contrary to the verdict is
strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. Significantly,
Zuniga held that, in the second instance, evidence of guilt can "preponderate" in favor of conviction, but still be
insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting
guilt can "outweigh" the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.
Id. at 485.
In Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006), the Court of Criminal Appeals repudiated its
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"preponderate" language, expressly overruled Zuniga, and held:
We therefore disavow such language in Zuniga and reiterate that it is not enough that the appellate court harbor a
subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence. An
appellate court judge cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on
the quantum of evidence admitted, he would have voted to acquit had he been on the jury. Nor can an appellate court
judge declare that a conflict in the evidence justifies a new trial simply because he disagrees with the jury's resolution
of that conflict. We have always held that an appellate court must first be able to say, with some objective basis in the
record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury's verdict
before it is justified in exercising its appellate fact jurisdiction to order a new trial. We have never, at least until
Zuniga, interpreted the factual review jurisdiction of criminal appellate courts to include the ability to overturn a jury
verdict and remand for a new trial when the greater weight and preponderance of the evidence actually favors
conviction! To the extent that Zuniga may be read to allow such a reversal, it was flawed at the outset and has a clear
potential to cause far more reversals for factual insufficiency than was ever contemplated by either Clewis or the many
cases within the last 125 years that have inquired into factual sufficiency. It is therefore, to that extent, overruled.
Id. at 417 (emphases in original) (internal footnote omitted).
A person commits the offense of possession of a controlled substance, if he knowingly or intentionally possesses it.
Tex. Health & Safety Code Ann. 481.115(a). The State must prove the accused exercised actual care, custody, control,
and management over the contraband and that he knew that the substance he possessed was contraband. Brown v.
State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). These elements may be established by circumstantial evidence.
McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985). When the accused is not in exclusive possession or
control of the place where the contraband is found, the State must prove independent facts and circumstances
affirmatively linking him to the contraband. In other words, the evidence must establish that the accused's connection
with the contraband was more than just fortuitous. Brown, 911 S.W.2d at 747. An affirmative link generates a
reasonable inference that the accused knew of the contraband's existence and exercised control over it. Id.
The number of factors linking an accused to the contraband is not as important as their logical force in establishing the
elements of the offense. See Jenkins v. State, 76 S.W.3d 709, 713 (Tex. App.--Corpus Christi 2002, pet. ref'd); see also
Jones v. State, 963 S.W.2d 826, 830 (Tex. App.--Texarkana 1998, pet. ref'd); Gilbert v. State, 874 S.W.2d 290, 298
(Tex. App.--Houston [1st Dist.] 1994, pet. ref'd). The baseline is that proof amounting to a strong suspicion or even a
probability of guilt will not suffice. See Hall v. State, 86 S.W.3d 235, 240 (Tex. App.--Austin 2002, pet. ref'd). There
must be an affirmative link between an accused and the drugs to the degree that a reasonable inference may arise that
Appellant knew that the drugs existed and where they were kept. See Gutierrez v. State, 628 S.W.2d 57, 60 (Tex.
Crim. App. 1982), overruled on other grounds, Chambers v. State, 711 S.W.2d 240, 247 (Tex. Crim. App. 1986).
Ultimately, the question of whether the evidence is sufficient to affirmatively link the accused to the contraband must
be answered on a case-by-case basis. Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.--Austin 1991, pet. ref'd).
The State maintains that it demonstrated that Appellant still retained control over the house, because, when the officers
questioned the individuals at the house, they were told that Appellant was not there, that he had left "the day before."
Further, Kahn stated that Appellant would not appreciate their searching the house.
The State argues that Appellant displayed a consciousness of guilt by his actions immediately after the search of the
house. The day after the search, Appellant called his parole officer and told her that he had moved out of his house and
that he had learned that the people in his house had been producing methamphetamine. The State reasons that there
was no evidence of how Appellant knew that had occurred; therefore, he must have known of the drug production
from his own knowledge.
Next, the State suggests that the fact that items belonging to Appellant were found throughout the home connected him
to the drugs. The State points to the fact that mail addressed to Appellant was found at the house. Further, male and
female clothes were found in the house, thereby linking Appellant to the drugs.
The State maintains that the drugs were concealed and drug production paraphernalia were found throughout the
house, accompanied by a strong odor which made it impossible to have entered any room in the house without
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knowing of the drug production.
Finally, the record revealed that Appellant had a prior history with narcotics, and, in particular, methamphetamine.
On the other hand, Appellant argues that Appellant was never seen at the residence at 301 Graham at the time the
methamphetamine was being manufactured. Furthermore, no witnesses saw Appellant exercise care, custody, or control
over the exhibits found to contain the controlled substance. Appellant also asserts that his ownership of the residence
was insufficient to establish his guilt, given that other individuals were also in control of the property.
We find that the evidence is factually sufficient to support the fact finder's determination that Appellant was
affirmatively linked to the contraband and that he had the requisite knowledge that the drugs were in his home. While
Appellant presented evidence that he was unaware of the illicit happenings at his house, the State presented evidence
that Appellant had been at the residence the day before the search, and one of the residents stated that Appellant would
not appreciate the police's searching his residence. Personal articles and letters were found at the house, and evidence
of drug manufacturing was prevalent throughout the house. We find that the evidence contrary to the verdict is not so
strong that the beyond-a-reasonable-doubt standard could not have been met, and we do not find that the great weight
and preponderance of the evidence contradicts the fact finder's determination of guilt. Accordingly, we overrule Issues
Two and Six.
In Issue Four, Appellant asserts that the evidence is factually insufficient under the law of parties. Where, as here, the
evidence is sufficient to establish one's guilt as a principal, the reviewing court need not examine whether the evidence
is sufficient to establish his guilt as a party. See Black v. State, 723 S.W.2d 674, 675 (Tex. Crim. App. 1986). We
overrule Issue Four.
In Issue Eight, Appellant contends that the evidence is factually insufficient to demonstrate that he was aware of the
nature of the substance and his control over the substance for a sufficient period of time for him to have terminated
control over the same. Given the prior discussion where we found the evidence factually sufficient to demonstrate that
Appellant intentionally and knowingly possessed the contraband, we overrule Issue Eight.
III. CONCLUSION
We therefore affirm the judgment of the trial court.
KENNETH R. CARR, Justice
August 31, 2007
Before Chew, C.J., McClure, and Carr, JJ.
(Do Not Publish)
1. Baytown is located in the southeastern-most part of Harris County.
2. We therefore adhere to our prior holding, in which we overruled each of Appellant's legal-insufficiency issues,
Issues One, Three, Five, and Seven.
3. Because we sustained Appellant's Issues Two and Six, we previously found it unnecessary to reach Issues Four and
Eight.
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