## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 12 - 00342 - CR NO. 02 - 12 - 00343 - CR

CRAIG ANTHONY FRANKL IN APPELLANT V. THE STATE OF TEXAS STATE

---------- FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

---------- 

### MEMORANDUM OPINI ON 1

---------- Appellant Craig Anthony Franklin appeals his convictions for pos session of heroin and cocaine with intent to deliver. 2 In two issues, Appellant argues that the trial court abused its discretion (1) when it failed to grant his request for a directed verdict because the evidence was insuf ficient to link him to the

1 See Tex. R. App. P. 47.4.

2 See Tex. Health & Safety Code Ann. § 481.112 (West 2010).2 controlled substances and (2) by denying his request for a jury instruction on a defensive issue. We overrule the issues and affirm the trial court’s judgments. I. BACKGROUND On December 8, 2011 , Officer Jason Ricks and o ther police officers executed a no - knock search warrant for a house located at 609 East Mulkey Street in Fort Worth

. The warrant allowed the police officers to search the house for heroin and cocaine and any “imp lements or instruments” used to sell drugs. The police officers sought the warrant after an undercover officer bought heroin and cocaine fr om a man in the house

. After the officers entered the house to secure it before the search began , Ricks found Appel lant in the bathroom seated on the toilet, fully clothed and with the lid closed. The water was running as if the toilet had just been flushed. Ricks told Appellant to get on the ground and, when Appellant did not comply, Ricks grabbed Appellant, pulled him to the ground, and handcuffed him. Ricks, believing Appellant was trying to destroy evidence, turned the water off to the toilet “in an effort to prevent the toilet from being flushed again just in the event that there may be evidence trapped in the t rap part of the toilet.” No drugs were recovered from the toilet, however. Two other men were found in the h ouse with Appellant. The own er of the house, Appellant’s mother , state d that although no one lived in the house, Appellant was supposed to be fix ing it up for her so she could use it as a rental property.3 Officer J.C. Frias and several other officers then entered the house to begin the evidentiary search. Frias found heroin and cocaine in a water
- heater closet, which was located in the hallway “r ight across from the restroom.” 3 Officer Joe Pittman searched one of the two bedrooms in the house. Appellant’s social security card and parole card were found in the bedroom. A prescription bottle with Appellant’s name on it was also found in this bedr oom. Pittman found $101 between the cushions of a couch in the bedroom. The closet in the bedroom had a deadbolt lock on the door and the key was in the lock. It does not appear that the closet door was locked. Pittman found heroin and cocaine “in the pocket of a [men’s] clothing item.” Officer Travis Verrett found a locked car parked in the garage that was registered in Ap pellant’s name. Appellant told Verrett that t he keys to the car were on the same key ring as the key found in the deadbolt lock on Appellant’s closet door. Verrett also found a loaded revolver inside a kitchen cabinet. In total, officers found 17.71 grams of heroin and 10.30 grams of cocaine in the house , most of which app eared to be packaged for sale. Appellant was indicted for p ossession with intent to deliver more than four grams but less than 200 grams of cocaine and for possession with intent to deliver more than four grams but less than 200 grams of heroin. A jury found him guilty of both offenses a nd assessed his punishment at eighty years’ confinement

3 The house had only one bathroom.4 for each offense. 4 The trial court sentenced Appellant to two eighty

- year

s entences, to run concurrently. Appellant filed a notice of appeal and now asserts that the evidence that he poss essed the drugs is insufficient becau se he did not have any drugs on his person when arrested, he did not own the house, and there were two other people in the house at the time of the search and therefore the trial court erred by failing to grant his request for a directed verdict

. Appellan t also conten ds that the trial court erred by failing to instruct the jury that evidence of mere presence is insufficient to prove possession bey ond a reasonable doubt. II. SUFFICIENCY OF THE EVIDENCE TO PROVE POSSESSION In addressing Appellant’s first i ssue, we note that his challenge to the trial court’s denial of his motion for instructed verdict is actually a challenge to the sufficiency of the evidence. See Canales v. State , 98 S.W.3d 690, 693 (Tex. Crim. App.), cert. denied , 540 U.S. 1051 (2003 ). As such , we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. C t. 2781, 2789 (1979); Wise v. State , 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). In order to co nvict Appellant of possession with intent to deliver the cocaine and

4 The jury found Appellant did not use or exhibit a deadly weapon during the commission of either offe nse for which they found him guilty.5 heroin found in the house, the State had to prove beyond a reasonable doubt that he (1) exe rcised care, custody, control , or management over the drugs , (2) intended to del iver the controlled substance to another, and (3) knew that the substance in his possession was a controlled substance

. 5 Tex. Health & Safety Cod e Ann. § § 481.002(38) , 481.112 (a) (West 2010); Cadoree v. State , 331 S.W.3d 514, 524 (Tex. App.

— Houston [14 th Dist.] 2011, pet ref’d). Where, as here, the accused was not in exclusive possession of the place where the drugs were found, the State must produce evidence that links the

acc used to the dr ugs in order to show he had knowledge of and control over the drugs. See Poindexter v. State , 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) (quoting Deshong v. State , 625 S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981) ) . In short, “ [ m ] ere p resence at the location where drugs are found is thus insufficient, by itself, to establish actual care, custody, or control of those drugs.” Evans v. State , 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). “However, presence or proximity, when combined with other evidence, either d irect or circumstantial (e.g., ‘links’ ), may well be sufficient to establish that element beyond a reasonable doubt.” Id. Several non

- ex clusive links have been identified that serve to establish an accused ’s possession of contraban d

. See id. at 162 n.12; Classe v. State , 840

5 In his first issue, Appellant challenges the sufficiency of the evidence to support only the first of these offense elements.6 S.W.2d 10, 12 (Tex. App.

— Houston [1st Dist.] 1992, pet. ref’d). Our analysis of the evidentiary links is a weighing test, which considers the cumulat ive logical force of the evidence indicating possession an d not the mere number of links proved. See Evans , 202 S.W.3d at 162. Appellant does not dispute that he was present in the house at the t ime the drugs were found . The evidence shows that police of ficers, who were familiar with A ppellant, noticed him over a year before the search warrant was executed entering the house without knocking and carrying what appeared to be a cooking pot

. Appellant also told Corporal J.R. Seabourn of the Fort Worth Police Department that he lived at the house on East Mulkey less than two months before the warrant was executed . Appellant was repairi ng the house for his mother, had his car parked in the garage , and had personal items in one of the bedrooms. The closet of that bedroom was secured with a deadbolt lock and Appellant had the key and access to the closet where drugs were found. Money was hidden i n the cushions of a couch in this bedroom. When police officers entered the house to execute the warrant, Appellant appeared to act guilty by attempting to destroy evidence an d not comply ing when told to get on the floor. A large amount of drugs was found in the house, part of which was found in the closet of the bedroom Appellant was using. In that bedroom, the police found Appellant’s social security card, parole card, and a prescription bottle with Appellant’s name on it. The closet had a deadbolt lock, and the key to that lock was on a key ring with the key to Appellant’s car. The keys were found hanging7 in the deadbolt lock on the closet door , as if used to gain access to the closet containing the drugs , after A ppellant directed the police where to find the key to his car. Men’s clothing was in the bedroom’s closet, and the drugs were found in a pocket of one of the clothing items. There were no personal items that cou ld be identified as belonging to anyone else in that bedroom. The other portion of the drugs was found in a water

- heater closet that was “right across” the hall from the bathroom where Appellant was found. We conclude that the logical force of the circum stantial evidence, when viewed in combination w ith the reasonable inferences from that evidence, is sufficient to connect Appellant to the actual care, custody, control, or management of the heroin and cocaine seized at that home. See, e.g., id. at 16 6 ; T hacker v. State , No. 12

- 10

- 00013

- CR, 2010 WL 4274771, at *3 (Tex. App.

— Tyler Oct. 29, 2010, pet. ref’d) (mem. op., not designated for publication); Ramos v. State , Nos. 2

- 07

- 118

- CR, 2

- 07

- 119

- CR , 2008 WL 623777, at *5 (Tex. App.

— Fort Worth Aug. 20, 2008, pe t. ref’d) (mem. op., not designated for publication); Classe , 840 S.W.2d at 12

. We overrule issue one. III. JURY INSTRUCTION Appellant next asserts that the trial court erred when it denied his requested jury instruction. Appellant requested that the f ollowing instruction be given to the jury in its guilt

- innocence charge: “Mere presence alone is insufficient to prove possession.” The trial court den ied the requested instruction.8 “[A]ll alleged jury

- charge error must be considered on appellate review regardless of preservation in the trial court.” Kirsch v. State , 357 S.W.3d 645, 649 ( Tex. Crim. App. 2012). In our review of a jury charge, we first determine whether error occurred; if error did not occur, our analysis ends. Id. If error did
occur, w hether it was preserved determines the degree of harm required for reversal. Id. Upon timely request, an accuse d is entitled to an affirmative

- defense instruction on every issue raised by the evidence. See Golden v. State , 851 S.W.2d 291, 295 (Tex. Crim . App. 1993); Warren v. State , 565 S.W.2d 931, 933

– 34 (Tex. Crim. App. [Panel Op.] 1978). But “mere presence” is not a statutorily recognized affirmative defense and serves only to deny the existence of an essential element of the State’s case; thus, a tr ial court is not required to include it in a jury charge. See Green v. State , 566 S.W.2d 578, 584 (Tex. Crim. App. 1978); Williams v. State , 906 S.W.2d 58, 64 (Tex. App.

— Tyler 1995, pet. ref’d). In such a case, a reasonable

- doubt instruction serves to ad equately protect the accused. See Williams , 906 S.W.2d at 64. As discussed above, the State introduced evidence other than Appellant’s presence at the house that linked him to the drugs found in the house. Thus, the evidence did not raise “mere presence ,” which negates the trial court’s need to include such an instruction. See Gilmore v. State , No. 2

- 06

- 302

- CR, 2008 WL 706621, at *7 (Tex. App.

— Fort Worth Mar. 13, 2008, no pet.) (mem. op., not designated for publication) . Further, the reasonable

- doubt i nstruction included in9 the jury charge on possession was sufficient to protect Appellant even if the evidence raised Appellant’s “mere presence” as a defense. See Green , 566 S.W.2d at 584; Williams , 906 S.W.2d at 64. Finally, the trial court was correct to deny Appellant’s requested instruction because to give such an instruction would have been a n improper comment on the weight of the evidence. See Harris v. State , 905 S.W.2d 708, 712 (Tex. App.

— Houston [14th Dist.] 1995, pet. ref’d). The trial court d id not err, and w e overrule issue two. IV. CONCLUSION Having overruled Appellant’s issues, we affirm the trial court’s judgments. See Tex. R. App. P. 43.2(a).

LEE GABRIEL JUSTICE

PANEL: WALKER, MCCOY, and GABRIEL, JJ. DO NOT PUBLISH Tex. R. App

. P. 47.2(b ) DELIVERED: June 13, 2013