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Date: 07-09-2021
Case Style:
Demetrice M. Gilstrap v. The State of Texas
Case Number: 02-20-00015-CR
Judge: Lee Gabriel
Court: Court of Appeals Second Appellate District of Texas at Fort Worth
Plaintiff's Attorney: Joseph W. Spence
Victoria A. Ford Oblon
Defendant's Attorney:
Description:
Fort Worth, Texas - Criminal defense attorney represented Demetrice M. Gilstrap with a Poss of a Controlled Substance charge.
During the late-night hours of October 31, 2018, Christopher Lovely was
working as a security guard for A.P. Securities and was assigned to Motel 6 in Euless,
Texas. One of Lovely’s responsibilities was to enforce the posted curfew of the
motel, which had been initiated because of drug activity on the premises. The curfew
was in effect between the hours of 10:00 p.m. and 6:00 a.m.; it prohibited guests and
others from being outside the rooms except to smoke or to make necessary trips to
and from their automobiles. A sign concerning the curfew was posted for guests who
checked in, and other curfew signs were located throughout the buildings.
Lovely was watching the property while parked when he observed a vehicle
with three occupants pull into the parking lot on the south side of the motel. He saw 3
one of the three occupants get out of the car with a backpack. At trial, he identified
that individual as Gilstrap. Lovely saw Gilstrap go into a room on the south side of
the building and leave that room in three to four minutes, after which he entered
another room on the same side. Upon leaving the second room, Gilstrap went
through a breezeway to the other side of the property. As Lovely was about to
approach the car Gilstrap got out of, it pulled out and proceeded to the other side of
the motel where Gilstrap had walked. Lovely followed and was again approaching the
car when he saw Gilstrap coming out of room 256 on the second level of the motel.
Lovely recognized Gilstrap as a man he had seen weeks before at room 256.
Upon seeing Gilstrap leave room 256, Lovely told him that “his actions were a
little suspicious and that [there was] a curfew and that he needed to leave.”
1
Gilstrap
“started getting aggravated” with Lovely and went back into room 256 multiple times.
At one point, Gilstrap told Lovely to “wait right there” and that he had something for
Lovely. Then Gilstrap again went back inside room 256.
When Gilstrap left room 256 that time, he proceeded downstairs where Lovely
had remained. Lovely explained that he felt threatened as Gilstrap approached him
and as a result, he called 911. He described how Gilstrap kept his hands in his
waistband as he came around the car, causing Lovely to be concerned about what he
1At the time this exchange took place, Lovely was wearing a uniform that had
his A.P. patch and a badge on the front, an A.P. patch on his ballistic vest, and a
security placard on his back. 4
might be hiding. Lovely testified that was “when [he] drew [his] pistol from the
holster and kept it at low ready when [he] still had 911 on the phone call.”
2 When
Gilstrap first saw Lovely’s gun, he went behind the car for a matter of seconds and
then went back upstairs and into room 256. Lovely followed Gilstrap upstairs and
remained on the phone with 911 until the police arrived about three minutes later.
Officer Josh Bennett, a nineteen-year veteran of the Euless Police Department,
was the primary officer investigating this call. Bennett testified that he had previously
conducted numerous investigations at that motel including death investigations,
shootings, robberies, burglaries, prostitution, and crimes involving narcotics. Bennett
was dispatched to that location at 11:08 p.m. Upon arriving, Bennett joined his
backup officer, who had arrived first, and observed Lovely and Gilstrap in a verbal
argument in the parking lot. Bennett was wearing a body cam which captured the
events of that night. The officers learned that Gilstrap had multiple warrants for his
arrest, and he was placed into custody at that time.
While in the parking lot, Bennett asked Gilstrap specifically whether he had “a
room here or [was] just visiting?” Gilstrap immediately responded, “I have a room.”
The officer then inquired whether “[Gilstrap had] belongings in that room.” Gilstrap
then changed his previous answer and responded, “Well, I don’t, well, I don’t have a
2Lovely related his qualifications for the security job he performed and detailed
his training to become a personal protection officer, commissioned security officer,
and private investigator. At the time of these events, he was a licensed security officer
and certified to carry a weapon. 5
room . . . . I like, I mean, my friend has a room[.]” After his arrest, the officers
searched Gilstrap and recovered $1,789 in assorted bills. He was then transported to
jail.
Acting upon a drug complaint made by Lovely concerning room 256, Bennett
and his backup officer went to follow up with the other resident of that room. Again,
Bennett’s body cam recorded everything that occurred while the officers were at the
door and in the room. When the officers knocked, the door was answered by a
female who identified herself as Rachel Denison and as a friend of Gilstrap.3
Denison
told the officers that she had been staying in the room for about three months. She
allowed the officers to enter the room, and when the officers requested permission to
search the room, she responded,“I mean, is there, do I have a choice? I mean I don’t
have a problem with it. I don’t have anything in here, so . . . .” She remained in the
room for over thirty minutes while the search occurred and never withdrew her
consent.
Officer Bennett generally described the room as “personalized. What I mean
by personalized is hats hung up on the wall. . . . They were there for [an] extended
amount of time. . . . [L]ots of clothes, lots of food and beverages.” Bennett found
five to ten pieces of mail addressed to Gilstrap, at an address other than the motel, in
different locations in the room. Mail addressed to Denison was also found in the
3The extent of Gilstrap’s relationship with Denison was never fully explained,
but Denison agreed with Bennett when he characterized it as “friends with benefits.” 6
room. Bennett further found drug paraphernalia in multiple locations in the room.
These items included scoop spoons for measuring, digital scales, a glass
methamphetamine smoking pipe, and a marijuana grinder.
Early in the process of the search, Bennett found methamphetamine and live
rounds of ammunition in Denison’s purse.4 He also found a Smith & Wesson
revolver in a blue tennis shoe located on the bottom dresser shelf. While searching
the closet in the motel room, Bennett found a black duffle bag. Inside the duffle bag,
Bennett found men’s clothing, two scales, and methamphetamine.
5
In addition, the
officer found a credit card issued to Gilstrap as well as a receipt from Foot Action
with his name on it among the items in the duffle bag.
Gilstrap was indicted for possession with intent to deliver a controlled
substance of four grams or more but less than 200 grams. See Tex. Health & Safety
Code Ann. § 481.112(a), (d). The jury found him guilty of the lesser-included offense
of possession of a controlled substance of four grams or more, but less than 200
grams. See id. § 481.115(a), (d). After a punishment trial, the court assessed Gilstrap’s
punishment at five years’ confinement in the Institutional Division of the Texas
Department of Criminal Justice. Gilstrap brought this appeal.
4At the conclusion of the search, Denison was arrested by the officers.
5
It is undisputed that the substance found in the duffle bag is
methamphetamine.7
II. DISCUSSION
In his sole issue, Gilstrap challenges the sufficiency of the evidence to establish
that he intentionally or knowingly possessed the controlled substance found by the
police in the duffle bag located in the closet in room 256. Specifically, Gilstrap
contends that the evidence is insufficient to affirmatively link him to the
methamphetamine.
Federal due process requires that the State prove beyond a reasonable doubt
every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.
2781, 2787 (1979); see U.S. Const. amend. XIV. In our evidentiary-sufficiency review,
we view all the evidence in the light most favorable to the verdict to determine
whether any rational factfinder could have found the crime’s essential elements
beyond a reasonable doubt. Jackson, 443 U.S. at 316, 99 S. Ct. at 2787; Queeman v.
State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This standard gives full play to the
factfinder’s responsibility to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443
U.S. at 319, 99 S. Ct. at 2789; Queeman, 520 S.W.3d at 622.
The factfinder alone judges the evidence’s weight and credibility. See Tex. Code
Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622. We may not re-evaluate the
evidence’s weight and credibility and substitute our judgment for the factfinder’s.
Queeman, 520 S.W.3d at 622. Instead, we determine whether the necessary inferences
are reasonable based on the evidence’s cumulative force when viewed in the light 8
most favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App,
2015). We must presume that the factfinder resolved any conflicting inferences in
favor of the verdict, and we must defer to that resolution. Id. at 448–49. The standard
of review is the same for direct- and circumstantial-evidence cases; circumstantial
evidence is as probative as direct evidence in establishing guilt. Jenkins v. State, 493
S.W.3d 583, 599 (Tex. Crim. App. 2016).
A person commits possession of a controlled substance, as charged in this case,
if that “person knowingly or intentionally possesses a controlled substance listed in
penalty Group 1,” and the offense is “a felony of the second degree if the amount of
the controlled substance possessed is . . . four grams or more but less than 200
grams.” Tex. Health & Safety Code Ann. § 481.115(a), (d); see also id. § 481.102(6)
(identifying methamphetamine as a penalty group one controlled substance).
Both the Texas Health and Safety Code and the Texas Penal Code provide the
same definition for “possession”: “actual care, custody, control or management.”
Id. § 481.002(38); Tex. Penal Code Ann. § 1.07(a)(39). Thus, “[t]o prove unlawful
possession of a controlled substance, the State must prove that: (1) the accused
exercised control, management, or care over the substance; and (2) the accused knew
the matter possessed was contraband.” Poindexter v. State, 153 S.W.3d 402, 405 (Tex.
Crim. App. 2005), overruled in part on other grounds by Robinson v. State, 466 S.W.3d 166,
173 & n.32 (Tex. Crim. App. 2015). Gilstrap only challenges only the first prong.9
The facts surrounding the search of the motel room are clear—Gilstrap was
not present in room 256 when the methamphetamine in the duffle bag was found but
Denison was. When, as here, the accused is not in exclusive possession of the place
where the controlled substance is found, additional independent facts and
circumstances must “link” the accused to the contraband “in such a way that it can be
concluded that the accused had knowledge of the contraband and exercised control
over it.” Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002,
pet. ref’d); McKeever v. State, No. 02-14-00466-CR, 2015 WL 1967308, at *3 (Tex.
App.—Fort Worth Apr. 30, 2015, no pet.) (mem. op., not designated for publication).
The factfinder may infer that the accused intentionally or knowingly possessed
contraband if there are sufficient independent facts and circumstances justifying such
an inference, even if the contraband was not in the accused’s exclusive possession.
Tate v. State, 500 S.W.3d 410, 413–14 (Tex. Crim. App. 2016); see also Tex. Penal Code
Ann. § 6.03(a) (“A person acts intentionally, or with intent, with respect to the nature
of his conduct . . . when it is his conscious objective or desire to engage in the
conduct . . . .”), § 6.03(b) (“A person acts knowingly, or with knowledge, with respect
to the nature of his conduct or to circumstances surrounding his conduct when he is
aware of the nature of his conduct or that the circumstances exist.”). Relevant facts
that may affirmatively link an accused to contraband include:
(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 10
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 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.
Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006).
It is undisputed by the State that some of the Evans factors are not present in
this case. The State is not required to prove all possible affirmative links or even
present evidence on each factor, and the absence of factors is not evidence of
innocence that must be weighed against the factors present. Espino-Cruz v. State, 586
S.W.3d 538 (Tex. App.—Houston [14th Dist.] 2019, pet. ref’d); see Wiley v. State, 388
S.W.3d 807, 814 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). The number of
factors present is not as important as the “logical force” each factor bears in linking
the accused to the drugs. Espino-Cruz, 586 S.W.3d at 544; Hurtado v. State, 881 S.W.2d
738, 743 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Gilstrap argues there are
insufficient links to connect him to the methamphetamine found in the duffle bag.
We disagree.
Lovely observed Gilstrap enter a motel room that evening, remain for a matter
of moments, and after leaving, repeat that scenario at another room. When searched
upon arrest, Gilstrap had a large amount of cash in his pocket. Lovely recognized 11
Gilstrap from having seen him at room 256 on a date previous to October 31, 2018.
He saw Gilstrap repeatedly enter room 256 on the night of October 31. When
Gilstrap became aggravated with Lovely, he told Lovely to stay where he was because
he had something for him. Gilstrap then retreated back into room 256. When asked
if he had a room at the motel, Gilstrap’s first answer was that he did. Only after he
was questioned about his belongings in the room did he backtrack on that answer.
Upon searching the room, Bennett found men’s clothing and multiple letters
addressed to Gilstrap.
6 The bag that contained the methamphetamine also contained
drug paraphernalia as well as men’s clothing and a credit card and purchase receipt
with Gilstrap’s name on each.
The jury could have rationally concluded beyond a reasonable doubt that
Gilstrap possessed the methamphetamine from the duffle bag based on applicable
Evans factors including his presence at the scene, his activities that night, and the
accessibility of the drugs in the closet of the room he repeatedly entered. See Evans,
6Gilstrap points out that the mail addressed to him was not admitted into
evidence and that the only opportunity to view that mail was contained in the bodycam video taken during the search. He seems to suggest that the failure to introduce
the actual mail supports his argument that there is insufficient evidence to link him to
the drugs in the duffle bag. Bennett testified about finding the mail, and one piece of
mail addressed to Gilstrap was shown on the body-cam video of the search. Because
we will not second-guess the jury’s assessment of the credibility of the witness and
because we defer to the jury’s resolution of any conflicting inferences, Gilstrap’s
argument that the failure to introduce the mail as exhibits plays no part in our review
of the sufficiency of the evidence. Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim.
App. 2016).12
202 S.W.3d at 162 (“Mere presence at the location where drugs are found is thus
insufficient, by itself, to establish actual care, custody, or control of those drugs.
However, presence or proximity, when combined with other evidence, either direct or
circumstantial [], may well be sufficient to establish that element beyond a reasonable
doubt.”). Gilstrap first admitted he had a room at the motel but quickly reversed
course when asked about what belongings he had in the room. Considered in the
context of Lovely’s repeatedly observing Gilstrap enter and leave room 256 on
October 31, 2018, and having seen Gilstrap at the room previously, this admission
was incriminating on a relevant matter. See Gallegos v. State, 776 S.W.2d 312, 314 (Tex.
App.—Houston [1st Dist.] 1989, no pet.) (holding defendant’s incriminating
statements made at the time of arrest affirmatively linked the defendant and the
controlled substance). Gilstrap then displayed a consciousness of guilt by disowning
that statement and distancing himself from room 256. See Gilbert v. State, 874 S.W.2d
290, 298 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (holding the accused’s
conduct which indicated a consciousness of guilt was an affirmative link between the
accused and the controlled substance). In addition, the drugs were in the same bag as
male clothing and the identifying credit card and receipt bearing Gilstrap’s name. See
Boone v. State, No. 02-13-00302-CR, 2014 WL 982354, at *3 (Tex. App.—Fort Worth
Mar. 13, 2014, no pet.) (mem. op., not designated for publication) (holding heroin
found in dresser drawer along with social security card and other personal papers was
sufficient to link accused to the drugs); Goodall v. State, 774 S.W.2d 821, 822 (Tex. 13
App.—Fort Worth 1989, pet. ref’d) (holding cocaine found in a satchel containing the
defendant’s checkbook and utility bill sufficient to support the defendant’s control
and management of the drugs). Gilstrap also possessed a large amount of cash when
arrested. See Evans, 202 S.W.3d at 162 n.12, 163–65 (considering a large amount of
cash as an affirmative link); Classe v. State, 840 S.W.2d 10, 12 (Tex. App.—Houston
[1st Dist.] 1992, pet. ref’d) (concluding that a large amount of cash discovered on the
defendant was an affirmative link between the defendant and the contraband).
Based on the combined and cumulative force of all the above-described
evidence and any reasonable inference therefrom, the jury was rationally justified in
finding Gilstrap guilty beyond a reasonable doubt of possession of a controlled
substance of four grams or more but less than 200 grams. We overrule Gilstrap’s sole
issue.
Outcome: Having overruled Gilstrap’s sole issue, we affirm the trial court’s judgment.
Plaintiff's Experts:
Defendant's Experts:
Comments: