COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00043-CR

JOHNNY PEREZ APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

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MEMORANDUM OPINION1

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I. INTRODUCTION

Appellant Johnny Perez appeals his conviction for possession of a 

controlled substance; namely, methamphetamine—more than four but less than 

200 grams.2In four issues, Perez argues that the evidence is insufficient to 

prove that he possessed methamphetamine, that the trial court erred by denying 

 

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

2See Tex. Health & Safety Code Ann. § 481.115(d) (West Supp. 2010).
2

his motion for a directed verdict, and that the trial court erred by denying his 

request for a jury instruction under Article 38.23(a) of the Texas Code of Criminal 

Procedure. We will affirm.

II. BACKGROUND

Wichita Falls Police Department’s SWAT Team and Organized Crime Unit

executed a narcotics search warrant on a residence located at 308 Lee Street, 

Wichita Falls, Texas, on October 1, 2010, at roughly 6:45 a.m. SWAT Team 

member Officer Gabriel Vasquez III testified at trial that when he entered the 

residence through a side doorway, he encountered Perez in a bedroom, lying on 

a bed. As Vasquez approached Perez, while pointing a rifle equipped with a 

flashlight at him, Vasquez commanded Perez to raise his hands. Perez initially 

complied by raising his hands, but according to Vasquez, Perez then began to 

place his hands underneath ―the headboard, pillow region‖ of the bed. Viewing 

this as a potential threat, Vasquez said that he ―nudged‖ Perez with his rifle 

barrel and re-issued the command for Perez to raise his hands. Perez raised his 

hands a second time. Another officer then handcuffed Perez, and Vasquez 

escorted Perez out of the residence. Vasquez testified that after escorting Perez 

outside, he conducted ―prisoner watch‖ while other officers searched the 

premises.

Officer Karl King of the Organized Crime Unit testified that in addition to 

Perez, two other individuals were located in the 308 Lee Street residence but that

they were located in another living area of the residence. King identified these 
3

two individuals as ―a Gelacio, and . . . a Jennifer Day.‖ Upon searching the 

bedroom where Vasquez found Perez, King discovered an Advil container 

between the mattress and the box springs of the bed that Perez had been lying 

on. King testified that inside the Advil container, he found approximately twelve 

grams of assorted pills and two plastic baggies. King averred that one of the 

baggies contained over one gram of methamphetamine and that the other baggie 

contained ten separate bags, each containing what King explained were 

individual packages of methamphetamine that would typically be sold in the 

streets for roughly $20 apiece. King also said that he discovered another plastic 

baggie containing .14 grams of methamphetamine on the floor between the wall 

and the head of the bed. In all, the total weight of the methamphetamine found in 

the bedroom was 5.26 grams. King further testified to having found a set of 

digital scales on the dresser in the bedroom. He also found, between the 

mattress and box springs, a wallet containing $211 and two debit cards with the 

name ―Johnny Perez‖ on them.

During the defense’s cross-examination of King, defense counsel

introduced in evidence, and the trial court admitted, the search warrant. Defense 

counsel then began to ask King about his use of a confidential informant (CI) who 

provided information that led to King obtaining the search warrant. King testified 

that while in general confidential informants will assist police for ―[m]oney, [to] 

work off charges, [or for] revenge,‖ he had never had a drug dealer ―snitch off on 

[an]other drug dealer[].‖ King averred that the CI in this case, who King had used 
4

in the past, told him that Perez ―was in possession of suspected 

methamphetamine and that [the] substance was for sale.‖ King said that he paid 

the CI $200 for that information and for the CI to conduct a controlled buy at the 

308 Lee Street residence. Toward the end of his cross-examination, defense 

counsel questioned whether the CI had in fact purchased methamphetamine 

from someone other than Perez. King responded, ―No, sir.‖ When defense 

counsel inquired further how King knew that the CI had not purchased 

methamphetamine from one of the other individuals who were at the 308 Lee 

Street residence, King said that the CI knew Perez. Defense counsel responded 

with the question, ―Then [the CI] needs to be here testifying, doesn’t he?‖ King 

responded, ―No, he [doesn’t].‖ When pressed as to why the CI did not need to 

testify, King said ―Because he’s confidential, credible, and reliable.‖ Defense 

counsel did not move the trial court for a disclosure of the identity of the CI.3 

Defense counsel also did not otherwise make any objections or move the trial 

court for further inquiry regarding the CI’s identity or veracity.

After calling its expert witness to testify about the toxicology report 

regarding the methamphetamine found at the 308 Lee Street residence, the 

State rested. At that time, and outside the presence of the jury, Perez’s defense 

 

3See Tex. R. Evid. 508(c)(3) (―If information from an informer is relied upon 

to establish the legality of the means by which evidence was obtained and the 

court is not satisfied that the information was received from an informer 

reasonably believed to be reliable or credible, it may require the identity of the 

informer to be disclosed. The court shall, on request of the public entity, direct 

that the disclosure be made in camera.‖).
5

counsel moved for a directed verdict: ―Yes, your Honor. We’d move for Directed 

Verdict. The State has failed to produce the witness that has testified against 

him, which actually started this entire case. And I think he’s entitled to confront 

this witness, and they have failed to do so.‖ The trial court inquired, ―Which 

witness are you talking about?‖ Defense counsel responded, ―This alleged 

informant.‖ The trial court overruled Defense counsel’s motion.

Defense counsel called Perez’s brother, Joe Perez, to the stand. Joe 

testified that Perez could not drive because ―[h]e’s going blind.‖ Joe said that 

Perez was not at the 308 Lee Street residence on the day the CI made the 

controlled buy and that on the morning of the search, Joe drove Perez from Fort 

Worth, leaving at ―about 3:00 in the morning,‖ to the 308 Lee Street residence, 

arriving at ―about 6:00 in the morning.‖ Defense also called Perez’s son, Michael 

Perez, to testify. Michael testified that his brother, Perez’s other son, owned the 

308 Lee Street residence. Michael averred that multiple people in his family 

have lived in the residence from time to time while his brother serves a prison 

sentence. Michael said that his brother had called him from prison concerned 

that somebody was living at the 308 Lee Street residence without permission. 

Michael said that he checked on the 308 Lee Street residence ―probably about 

September the 7th.‖

By Michael’s account, Gelacio and a girl were there and Michael informed 

them that they were not supposed to be, but Michael said that he did not press 

the issue because Gelacio ―has a bad temper to where I really can’t tell him 
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anything. So I just left.‖ When questioned about whether Perez lived at the 308 

Lee Street residence, Michael said, ―He would go as much as I do to check on 

the house. Sometimes he’ll stay a night to make sure no one breaks in. And I do 

the same thing.‖ According to Michael, whenever he or Perez stayed at the 

residence overnight, they would use the bedroom where Vasquez found Perez 

when police executed the search warrant.

After the State and Perez rested, and outside the presence of the jury, 

Perez requested that a Code of Criminal Procedure Article 38.23(a) instruction 

be included in the charge.4 During the discussion that ensued, Perez cited the 

Confrontation Clause, the Fifth Amendment, hearsay, and at one point stated, 

―[T]his is a Franks case -- situation.‖ The trial court denied Perez’s request and 

submitted the charge, without an Article 38.23(a) instruction, to the jury. The jury 

found Perez guilty. After a punishment hearing, the jury found an enhancement 

paragraph true and assessed punishment at life in prison. The trial court 

announced judgment accordingly, and this appeal followed.

III. DISCUSSION

A. Sufficiency of the Evidence of Possession

In his first and second issues, Perez argues that the evidence is ―legally‖ 

and ―factually‖ insufficient to prove that he possessed the methamphetamine 

found in the bedroom where police discovered him lying on the bed when 

 

4See Tex. Code Crim. Proc. Ann. art. 38.23(a) (West Supp. 2005).
7

executing their warrant. Perez’s argument is predicated on the notions that 

because there were ―two other people in the house who could have hidden the 

contraband anywhere in the house‖ and because ―the State failed to introduce 

any evidence showing that [he] actually lived‖ at the 308 Lee Street residence, 

the State failed to link Perez to the methamphetamine found there. We conclude 

that the evidence is sufficient to support the jury’s determination that Perez 

possessed the methamphetamine.

1. Standard of Review

The court of criminal appeals has held that there is no meaningful 

distinction between the legal sufficiency standard and the factual sufficiency 

standard. Brooks v. State, 323 S.W.3d 893, 895, 912 (Tex. Crim. App. 2010) 

(overruling Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 1996)). 

Thus, the Jackson standard, which is explained below, is the ―only standard that 

a reviewing court should apply in determining whether the evidence is sufficient 

to support each element of a criminal offense that the State is required to prove 

beyond a reasonable doubt.‖ Id. at 912.

In our due-process review of the sufficiency of the evidence to support a 

conviction, 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. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex. 

Crim. App. 2012).
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2. Law of Possession

A person possesses an object if he has actual care, custody, control, or 

management of that object. Tex. Health & Safety Code Ann. § 481.002(38) 

(West 2010). When drugs are found and the accused is not in exclusive 

possession of the place where they are found, the connection to the drugs must 

be more than fortuitous, and to this end, Texas courts utilize a links rule that is 

designed to protect innocent bystanders from conviction merely because of their 

proximity to someone else’s drugs. Evans v. State, 202 S.W.3d 158, 161–62 

(Tex. Crim. App. 2006); Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.—

Houston [14th Dist.] 2005, no pet.). Mere presence at the location where drugs 

are found is insufficient, by itself, to establish actual care, custody, or control, but 

presence or proximity, when combined with other evidence, direct or 

circumstantial, may be sufficient. Evans, 202 S.W.3d at 161–62. Such ―links‖

generate a reasonable inference that the accused knew of the contraband’s 

existence and exercised control over it. See id. Courts have identified the 

following factors that may help to show an accused’s links to a controlled 

substance: (1) the defendant’s presence when a search is conducted; 

(2) whether the contraband was in plain view; (3) the defendant’s proximity to 

and the accessibility of the narcotic; (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 
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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 drugs were found; (12) whether the place where the drugs were 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. Olivarez, 171 S.W.3d at 291. It is not the number of links that is 

dispositive but, rather, the logical force of all of the evidence, direct and 

circumstantial. Evans, 202 S.W.3d at 162.

The evidence in this case establishes sufficient links that raise reasonable 

inferences of Perez’s knowledge and control of the methamphetamine. Perez 

was not only present at the 308 Lee Street residence when police searched but 

Vasquez discovered him lying on a bed in the front bedroom where officers found 

methamphetamine. Vasquez testified that as he entered the bedroom, he gave a 

verbal command for Perez to raise his hands. Initially, Perez complied. Vazquez 

said, however, that Perez then began to place his hands underneath ―the 

headboard, pillow region,‖ and Vasquez described this as a ―furtive movement.‖ 

The search team found a plastic baggie containing .14 grams of 

methamphetamine between the ―wall and the head of the bed.‖ Perez’s furtive 

movement tends to demonstrate that he had knowledge of this 

methamphetamine, as well as control over it. See Davis v. State, 855 S.W.2d 

855, 857 (Tex. App.—Eastland 1993, no pet.) (reasoning that the defendant’s 
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furtive gestures ―[g]oing towards the bottom of the passenger’s seat‖ linked the 

defendant to the contraband found there). The logical force of this evidence is 

that Perez was attempting to conceal the contraband that King found in that very 

location. The force of this evidence is even more compelling considering that 

despite having a gun pointed directly at him as he was commanded to raise his 

hands, Perez was willing to hide his hands from Vasquez’s view. The movement 

caused Vasquez to strike Perez with his rifle barrel: ―I struck him with my rifle 

barrel -- nudged him [and t]old him once again to raise his hands.‖

King also found an Advil bottle containing approximately twelve grams of 

assorted pills and two plastic baggies containing methamphetamine located 

between the mattress and the box spring of the bed where Perez was found 

lying. One of the baggies of methamphetamine contained ten individual baggies 

of methamphetamine that King testified was segregated into individual amounts 

that were common portions to be sold in the streets for roughly $20 each. 

Furthermore, King found a wallet with $211 and two debit cards with the name

―Johnny Perez‖ on them in-between the mattress and box springs. See Nhem v. 

State, 129 S.W.3d 696, 699–700 (Tex. App.—Houston [1st Dist.] 2004, no pet.) 

(reasoning that a driver license and telephone bills in appellant’s name found 

between bed mattresses, where cocaine rocks were also found, tended to link 

appellant to cocaine). The logical force of this evidence tends to demonstrate

that Perez had accessibility and proximity to the methamphetamine found 

between the mattress and the box springs.
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King testified that he found digital scales located in plain view on top of a 

dresser in the bedroom that Perez occupied. King averred that digital scales are 

commonly found where drugs are sold. This evidence, when coupled with the 

individual baggies containing methamphetamine, tends to link Perez to the 

scales and the methamphetamine found in the bedroom. Furthermore, even 

though there is no evidence that Perez owned the 308 Lee Street residence, 

Perez introduced evidence that he would sometimes stay the night and sleep in 

the bedroom where he was found when the police executed the search warrant.

The logical force of this evidence is that the connection between Perez and the 

methamphetamine was more than fortuitous. Given the logical force of all of this 

evidence and viewing it in the light most favorable to the verdict, we conclude 

that the jury could have found that Perez possessed the methamphetamine 

found at the 308 Lee Street residence. See Jackson, 443 U.S. at 326, 99 S. Ct. 

at 2793; Wise, 364 S.W.3d at 903. We overrule Perez’s first and second issues.

B. Perez’s Motion for Directed Verdict

In his third issue, Perez argues that the trial court erred by overruling his 

motion for directed verdict. Perez’s argument seems to be that he was denied 

his right to confront the CI under the Confrontation Clause of the Sixth 

Amendment to the United States Constitution when the trial court ―refused his 

motion to disclose the name of the CI.‖ See U.S. Const. Amend. VI. Thus, 

Perez argues that he was denied his constitutional right to confront a State’s 

witness; namely, the CI.
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Perez does not point to any place in the record where he moved the trial 

court for a disclosure of the name of the CI, nor can we find any such motion. 

See Tex. R. Evid. 508(c)(3). Furthermore, the first time that Perez ever objected 

to an alleged Confrontation Clause error was when he moved for directed verdict 

after the State had completed putting on its case in chief, which was well after 

Perez and the State had questioned King regarding the CI and the information 

King obtained from the CI that served as part of King’s probable-cause affidavit 

when seeking the search warrant. All of this testimony was born out of Perez 

having introduced the warrant into evidence and first questioning King about 

what information was learned from the CI.

We conclude that Perez has failed to preserve any potential error, invited 

or not, because he failed to object to any alleged Confrontation Clause issue at 

the earliest opportunity. See Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. 

App. 2000), cert. denied, 531 U.S. 1128 (2001) (―Because he did not object to 

error under the Confrontation Clause, appellant waives this argument on 

appeal.‖); see also Thornton v. State, No. 12-04-00045-CR, 2006 WL 319015, at 

*2 (Tex. App.—Tyler Feb. 10, 2006, pet. ref'd) (mem. op., not designated for 

publication) (―To preserve error on Confrontation Clause grounds, an objection 

must be made at trial as soon as the basis for such objection becomes 

apparent.‖). We overrule Perez’s third issue.
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C. Perez’s Requested Jury Instruction

In his fourth issue, Perez argues that the trial court erred by denying his 

request for a jury instruction under Article 38.23(a) of the Texas Code of Criminal 

Procedure. See Tex. Code Crim. Proc. Ann. art. 38.23(a). Citing the 

Confrontation Clause of the Sixth Amendment and alleging that ―the State did not 

produce‖ the CI who provided information about Perez that served as part of the 

probable-cause warrant to search the 308 Lee Street residence, Perez argues 

that the evidence adduced at trial created a genuine dispute about the 

―lawfulness . . . in obtaining the [methamphetamine]‖ used to convict Perez for 

possession. See U.S. Const. Amend. VI. Specifically, Perez argues that there 

exists a fact issue in this case as to whether the CI ―may have lied to [King] in 

order to frame [Perez], either to reduce competition, get revenge, or for money,‖ 

and that the jury should have been allowed to evaluate whether the CI ―may have

lied‖ about purchasing methamphetamine from Perez prior to the search of the 

308 Lee Street residence, and thus whether the methamphetamine should have 

been ―suppressed.‖

The State argues that Perez is improperly attempting to raise a ―Franks

claim‖ by way of requesting an Article 38.23(a) jury instruction. See Fenoglio v. 

State, 252 S.W.3d 468, 473 (Tex. App.—Fort Worth 2008, pet. ref’d) (―Under 

Franks, a search warrant affidavit must be voided, and any evidence obtained 

pursuant to the search warrant excluded, if a defendant can establish by a 

preponderance of the evidence at a hearing that the affidavit contains a false 
14

statement made knowingly or intentionally, or with reckless disregard for the 

truth.‖) (citing Franks v. Delaware, 438 U.S. 154, 155–56, 98 S. Ct. 2674, 2676 

(1978)). We conclude that the trial court was not required to give an instruction 

under Article 38.23(a) because the evidence in this case did not raise a disputed 

fact issue requiring the instruction.

When reviewing a claim that the trial court failed to properly charge the 

jury, we first determine whether error occurred; if error did not occur, our analysis 

ends. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). The 

purpose of the trial judge’s jury charge is to instruct the jurors on ―all of the law 

that is applicable to the case.‖ Vasquez v. State, 389 S.W.3d 361, 366 (Tex. 

Crim. App. 2012). And when there is a disputed fact issue that is material to the 

defendant’s claim of a constitutional or statutory violation that would render 

evidence inadmissible, an exclusionary-rule instruction is required by Article 

38.23(a). Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007). 

But a confidential informant’s identity and testimony regarding the information 

used to form probable cause to issue a warrant is not relevant to the 

determination of guilt for possession of a controlled substance when the 

informant is not present at the time a warrant is executed, when the defendant is 

arrested, or when the commission of the offense charged is alleged to have 

occurred. Edwards v. State, 813 S.W.2d 572, 580 (Tex. App.—Dallas 1991, pet. 

ref’d); Washington v. State, 902 S.W.2d 649, 656–57 (Tex. App.—Houston [14th 

Dist.] 1995, pet. ref’d).
15

As already discussed, the State charged Perez with possession of a 

controlled substance; namely, methamphetamine. A person possesses an object 

if he has actual care, custody, control, or management of that object. Tex. 

Health & Safety Code Ann. § 481.002(38). The CI’s identity and any testimony 

he could have provided would not have been relevant to the State’s charge that 

Perez had actual care, custody, control, or management of the 

methamphetamine discovered by the officers when they conducted a search of 

the 308 Lee Street residence. This is so because the CI was not at the 

residence when officers executed the warrant, he was not there when the officers 

arrested Perez, and he was not there when the officers discovered Perez lying 

on a bed with methamphetamine tucked under the mattress and between the

headboard and the wall. See Patterson v. State, 138 S.W.3d 643, 649 (Tex. 

App.—Dallas 2004, no pet.) (reasoning that in a possession with intent to deliver 

methamphetamine case, trial court did not abuse its discretion by denying

appellant’s motion to compel discovery of confidential informant’s identity 

because ―Appellant point[ed] to no evidence that the informant was present 

during the execution of the warrant and the arrest or that he had any information 

that would be relevant to appellant’s guilt or innocence‖). In short, Article

38.23(a) was not applicable to the case and the trial court did not err by refusing 

Perez’s request that an Article 38.23(a) instruction be included in the jury charge. 

See Vasquez, 389 S.W.3d at 366. Because we hold that the trial court did not 
16

err by refusing to include Perez’s requested instruction, our analysis ends and we 

overrule Perez’s fourth issue.

IV. CONCLUSION

Having overruled all of Perez’s issues on appeal, we affirm the trial court’s 

judgment.

BILL MEIER

JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: August 29, 2013