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Date: 01-09-2021
Case Style:
Rolando Castillo v. The State of Texas
Case Number: 07-19-00183-CR
Judge: Lawrence M. Doss
Court: Court of Appeals
Seventh District of Texas at Amarillo
Plaintiff's Attorney: Jeffrey S. Ford
Defendant's Attorney:
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Description:
Amarillo, TX - Criminal defense attorney represented Rolando Castillo with a Poss of a Controlled Substance charge.
In March 2018, Appellant drove his Cadillac Escalade to the home of Angalic
Bishop in Slaton, Texas. Alex Ybarra was Appellant’s passenger. Outside the Escalade,
Appellant and Bishop argued as Appellant accused Bishop of telling lies about him.
Bishop replied that the gossip originated with another woman.
During the argument, Appellant retrieved a rifle from his vehicle that Bishop said
resembled “an AR” rifle, waved it in front of Bishop and her two-year-old daughter and
father. Appellant said while holding the rifle that he would shoot up Bishop’s house, even
if her children were inside, if she mentioned Appellant again. Bishop also saw a handgun
on the dashboard of the Escalade. Appellant told Bishop he was going to the other
woman’s house and departed. Bishop called 9-1-1 to report Appellant’s intended
destination and that he displayed a weapon.
Police officer James DeKraker received Bishop’s call. Within ten minutes, he
arrived at the other woman’s home, where he found Appellant’s parked Escalade, and
Appellant, Ybarra, and Demetric White standing outside. Officer DeKraker testified that
during the encounter Appellant was calm and cooperative, but Ybarra and White were
“agitated.”
3
With Appellant’s permission, a backup police officer entered Appellant’s vehicle
and took possession of a rifle from the front passenger seat. The rifle contained a round
of ammunition in the chamber. Through the open front passenger window of the vehicle,
DeKraker observed a glass pipe in the cupholder and smelled “a strong odor” of marijuana
coming from inside the vehicle. The officer opined based on his experience that this type
of pipe is commonly used to smoke illegal substances, most commonly
methamphetamine.
The evidence shows that DeKraker observed Appellant getting out of the Escalade
on the driver’s side, and the passenger getting out from the passenger’s side. Based on
the plain view evidence of the drug paraphernalia, officer DeKraker then searched
Appellant’s Escalade, where he discovered a box bearing a Batman insignia between the
driver’s seat and the console. The box contained 75 grams of methamphetamine, a vape
pen containing what appeared to be THC3
residue, a pack of cigarettes, cigarillos, a small
hammer, and cardboard packages of THC wax.4
A digital scale and a handgun were
found on the dashboard. Inside the Escalade’s center console, DeKraker found empty
plastic baggies and $600.
Appellant denied ownership of the contents of the Batman box but stated he would
accept the blame for it. Officer DeKraker testified that it would have been impossible for
Appellant to operate the vehicle without being aware of the Batman box in the driver’s
seat area.
3
“THC,” or tetrahydrocannabinol, is an active substance in marijuana.
4 Testimony at trial indicates that THC wax is the resinous extract from marijuana.
4
At trial, Cody Kidd, a sergeant with the narcotics division of the Lubbock County
Sheriff’s Office who also serves on a task force with the Lubbock office of the Drug
Enforcement Administration, testified that “typically” the quantity of methamphetamine as
found in Appellant’s Escalade is a “dealer amount.” Both Kidd and DeKraker testified that
methamphetamine and other narcotics are often packaged in bags of the kind found in
the console. Kidd opined that in drug operations, tools like the hammer are sometimes
used to break larger pieces of methamphetamine into smaller amounts. Kidd opined
without objection that the presence of a digital scale in the same vehicle as baggies,
hammer, methamphetamine, and “a large amount of cash” would be consistent with
someone selling narcotics.
In addition, testimony was elicited regarding potential uses of firearms during drug
dealing operations. Kidd testified that narcotics dealers often possess firearms “in order
to protect the product, the currency involved, the profit from it from people robbing them
of their money or product.”
Analysis
Issue One
Appellant first asserts that the evidence was insufficient to prove beyond a
reasonable doubt that he possessed methamphetamine with intent to deliver. An
appellate court reviews the sufficiency of the evidence under the standard of Jackson v.
Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim.
App. 2010). Under that standard, a reviewing court must consider all the evidence in the
light most favorable to the verdict and determine whether a rational trier of fact could have
5
found the essential elements of the crime beyond a reasonable doubt. Gear v. State, 340
S.W.3d 743, 746 (Tex. Crim. App. 2011).
The jury is the sole judge of the weight and credibility of the evidence, and we
presume the factfinder resolved any conflicting inferences in favor of the verdict and defer
to that resolution. Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). We
determine whether, based on the evidence and reasonable inferences drawn therefrom,
a rational juror could have found the essential elements of the crime beyond a reasonable
doubt. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
A person commits the offense of possession of a controlled substance with intent
to deliver if he possesses a controlled substance, with the intent to deliver the controlled
substance to another, and knows that the substance in his possession is a controlled
substance. TEX. HEALTH & SAFETY CODE ANN. § 481.112(a); Nhem v. State, 129 S.W.3d
696, 699 (Tex. App.—Houston [1st Dist.] 2004, no pet.). Possession is defined as the
“actual care, custody, control, or management” of the substance. TEX. HEALTH & SAFETY
CODE ANN. § 481.002(38) (West Supp. 2020); Lipscomb v. State, 526 S.W.3d 646, 652
(Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).
To prove possession of a controlled substance, the State must prove beyond a
reasonable doubt that (1) the defendant exercised control, management, or care over the
substance and (2) the defendant knew the substance possessed was contraband.
Lipscomb, 526 S.W.3d at 652 (citing Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim.
App. 2006)). See also Mixon v. State, 481 S.W.3d 318, 323 (Tex. App.—Amarillo 2015,
pet. ref’d). When a defendant is not in exclusive control of the place in which contraband
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is found, the State is required to establish possession through other facts and
circumstances. Mixon, 481 S.W.3d at 323. The many factors by which an accused may,
under the unique circumstances of each case, be sufficiently “linked” to the 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 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. Mixon, 481
S.W.3d at 323-24 (citations omitted); Lipscomb, 526 S.W.3d at 652 (citing Evans, 202
S.W.3d at 161; Poindexter v. State, 153 S.W.3d 402, 409 n.24 (Tex. Crim. App. 2005),
abrogated on other grounds by Robinson v. State, 466 S.W.3d 166, 173 & n.32 (Tex.
Crim. App. 2015)). The number of links is not dispositive; rather, we consider the “logical
force of all of the evidence, direct and circumstantial.” Mixon, 481 S.W.3d at 324 (citation
omitted). The links analysis is designed to protect an innocent bystander from conviction
based solely on his “fortuitous proximity to someone else’s drugs.” Poindexter, 153
S.W.3d at 406.
7
Intent to deliver may be proved circumstantially. Jordan v. State, 139 S.W.3d 723,
726 (Tex. App.—Fort Worth 2004, no pet.). Factors courts have considered for making
the intent determination include: (1) the nature of the location where the defendant was
arrested; (2) the quantity of drugs the defendant possessed; (3) the packaging of the
drugs; (4) the presence or absence of drug paraphernalia (for use or sale); (5) whether
the defendant possessed a large amount of cash in addition to the drugs; and (6) the
defendant’s status as a drug user. Id.; see Herrera v. State, Nos. 07-09-00071-CR, 07-
09-00072-CR, 07-09-00073-CR, 2009 Tex. App. LEXIS 6780, at *10 (Tex. App.—Amarillo
Aug. 26, 2009, no pet.) (mem. op., not designated for publication). Expert testimony may
be introduced to prove intent to deliver. Jordan, 139 S.W.3d at 726; Herrera, 2009 Tex.
App. LEXIS 6780, at *10.
Applying the relevant law to the facts of this case, we hold that a rational jury could
have found beyond a reasonable doubt that Appellant possessed methamphetamine with
intent to deliver. Assessing the evidence in the light most favorable to the verdict and
applying the non-exclusive factors from Mixon, we hold the evidence admitted at trial
could lead a reasonable juror to find beyond any reasonable doubt that Appellant knew
of the contraband’s existence and exercised control over it. 481 S.W.3d at 323. See also
Travis v. State, 638 S.W.2d 502, 503 (Tex. Crim. App. [Panel Op.] 1982). Specifically,
the evidence shows that the methamphetamine and contraband was found in the
Escalade, which Appellant had driven minutes before the search; he was present during
the search (factor 1). The vehicle belongs to Appellant (factor 11). The
methamphetamine was located in a Batman box in Appellant’s driver’s seat area and
accessible to him when he was in the vehicle; it was “impossible” for Appellant not to
8
notice the box in the officer’s opinion (factor 3). The officer was able to open the box, so
it does not appear to have been locked or that access to Appellant was blocked.
Moreover, the Batman box was accompanied by a glass pipe that is commonly used to
smoke methamphetamine and a digital scale, both of which were in plain view (factor 5).
The vehicle also smelled of marijuana (factor 9). When asked about the contents of the
Batman box, Appellant accurately identified the substance as methamphetamine and took
responsibility for the contents (factors 6, 14). Other contraband and drug paraphernalia
were present, including what appeared to be THC residue, a small hammer that can be
used to break up pieces of methamphetamine, and cardboard packages of THC wax
(factor 10). All of these items of contraband were found alongside a large amount of cash
(factor 13).
On appeal, Appellant urges that Ybarra was the one who was visibly upset and
that an officer at the scene believed the contraband belonged to Ybarra based on this
display. Appellant further argues the arresting officer did not see Appellant physically
control the drugs and any nexus between Appellant and the contraband is weakened by
the absence of DNA and fingerprint evidence. Yet, these are evidentiary matters which
the jury was permitted to consider when assessing the evidence. Moreover, the absence
of DNA and fingerprint evidence does not affect the legal sufficiency of the evidence.
Pena v. State, 441 S.W.3d 635, 641-42 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).
We hold that sufficient evidence supports the jury’s verdict that Appellant possessed the
methamphetamine.
Similarly, we hold that sufficient evidence supports the finding that Appellant
possessed the evidence with a requisite intent to distribute it. TEX. HEALTH & SAFETY CODE
9
ANN. § 481.112(a). Officer Kidd testified without objection that the amount found in the
Escalade was “a dealer amount.” This testimony about the quantity of drugs is significant
given the other evidence of drug-dealing activity from the Escalade: the scale; two guns;
the presence of other drug paraphernalia; and the presence of a large amount of cash in
proximity to Appellant. See Herrera, 2009 Tex. App. LEXIS 6780, at *10. When reviewed
in a light most favorable to the jury’s verdict, such evidence permitted the jury to find
beyond a reasonable doubt that Appellant possessed the methamphetamine with an
intent to distribute it. We overrule Appellant’s first issue.
Issue Two
By his second issue, Appellant argues the trial court abused its discretion by
submitting a deadly weapon special issue in the punishment-phase charge. Specifically,
Appellant contends the State failed to present evidence showing a nexus between the
weapons and the associated offense of dealing a controlled substance.5
We review the trial court’s decision to overrule Appellant’s objection and submit
the deadly weapon special issue for abused discretion. See Carter v. State, No. 13-17-
00202-CR, 2018 Tex. App. LEXIS 2427, at *7 (Tex. App.—Corpus Christi Apr. 5, 2018,
pet. ref’d) (mem. op., not designated for publication) (deadly weapon instruction) (citing
Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000)). A court does not abuse
its discretion unless it acts without reference to any guiding rules and principles. Simmons
v. State, No. 07-17-00127-CR, 2019 Tex. App. LEXIS 2760, at *4 (Tex. App.—Amarillo
5 The deadly weapon special issue asked the jury to determine whether “the defendant used or
exhibited a deadly weapon, to-wit: a firearm, during the commission of the offense for which he has been
convicted.” The jury answered, “We do.”
10
Apr. 5, 2019, no pet.) (mem. op., not designated for publication) (citation and internal
quotation marks omitted).
We hold that the district court properly exercised discretion in submitting the
special issue during the punishment phase. A deadly weapon finding affects a
defendant’s eligibility for community supervision and parole. TEX. CODE CRIM. PROC. ANN.
art. 42A.054(b) (West Supp. 2020); TEX. GOV’T CODE ANN. § 508.145(d) (West Supp.
2020). Article 42A.054 requires a trial judge to enter a finding in the judgment when,
among other things, the evidence shows a deadly weapon was used or exhibited during
the commission of the felony offense and the defendant either (1) used or exhibited such
weapon or (2) was a party to the offense and knew the deadly weapon would be used or
exhibited during his role in the commission of the offense. TEX. CODE CRIM. PROC. ANN.
art. 42A.054(b)(1),(2). By definition, a firearm is a deadly weapon. TEX. PENAL CODE ANN.
§ 1.07(a)(17)(A) (West Supp. 2020). Therefore, the only question is whether there was
sufficient evidence that the deadly weapon was used or exhibited during the commission
of the felony offense and that Appellant used or exhibited such weapon.
Appellant’s challenge to the evidence relies exclusively on the Court of Criminal
Appeals’ decision in Plummer v. State, 410 S.W.3d 855, 856 (Tex. Crim. App. 2013). In
Plummer, the defendant who had been moonlighting as a security guard was convicted
of unlawful possession by a felon of a firearm and possession of body armor; the trial
judge found the presence of the gun supported a deadly weapon in the body armor case.
The question thus arose whether the presence of a firearm while the defendant
simultaneously wore illegal body armor constituted use or exhibition of a deadly weapon
under a predecessor statute. The Court of Criminal Appeals “granted review to decide
11
whether the term ‘exhibit’ in the deadly weapon statute carries with it the connotation that
the deadly weapon must somehow facilitate or increase the risk of potential harm while
committing the felony.” Plummer, 410 S.W.3d at 857. The court answered the question
in the affirmative and held the State was required to provide evidence connecting the
deadly weapon and facilitation of the felony. Id. at 865.
Here, our review is not limited to whether a weapon was “exhibited;” affirmance is
required if sufficient evidence shows a deadly weapon was exhibited or used. The
Plummer court distinguished its factual circumstances from those presented in Coleman
v. State, 145 S.W.3d 649 (Tex. Crim App. 2004), when the court found a defendant had
used weapons to facilitate drug dealing. In that case, the court held that even though the
defendant was handcuffed and in a squad car at the time of the search of his home, a
rational jury could have found the defendant “used” two guns found in the home to
facilitate his possession and distribution of cocaine and PCP. Id. at 654-55. Relevant to
the court’s holding was evidence that the guns were found in a room inside a safe that
contained large bottles of PCP and large amounts of cash. Id. at 654. The court held
that the proximity of drug-trade evidence to the guns permitted the jury to consider
whether the defendant used the weapons to facilitate his possession and distribution of
the narcotics. Id. at 655.
We hold that the underlying facts in Coleman are akin to those present in this
appeal and that its analysis should guide ours. The State was not required to prove that
Appellant was near the weapons or brandished them when officers were present. Id. at
654. In fact, as the concurrence in Coleman aptly illustrates, “The king in his castle ‘uses’
his turret cannons both when his soldiers fire them and when they sit for years awaiting
12
a possible attack. He ‘uses’ his halberds hanging in the hall booth for a current war and
to deter a future one.” Id. at 659 (Cochran, J., concurring). We hold that the presence of
“a dealer amount” of narcotics and large sum of money near two readily-accessible guns
in Appellant’s Escalade permitted the jury to infer that Appellant used the weapons to
facilitate Appellant’s drug dealing activity and to protect the proceeds of his illegal trade.
See id. at 655 (holding that the “cumulative effect” of evidence regarding the home’s large
amounts of drugs and money in proximity to the guns “could have allowed a rational jury
to determine that [defendant] used the weapons to protect the narcotics and the proceeds
therefrom.”); Hester v. State, Nos. 07-07-00473-CR, 07-07-00474-CR, 07-07-00475-CR,
2009 Tex. App. LEXIS 8974 (Tex. App.—Amarillo Nov. 19, 2009, pet. ref’d) (mem. op.)
(concluding in challenge of deadly-weapon finding, where gun and contraband were
found in close proximity in defendant’s one-bedroom house, sufficient evidence allowed
fact finder to determine beyond a reasonable doubt that defendant possessed the gun
and used it to facilitate possession and intended distribution of marijuana, cocaine, and
methamphetamine). Even though Appellant was accompanied by Ybarra in the
Escalade, Appellant demonstrated his possession, custody, and control over at least one
deadly weapon when he brandished the rifle in front of Bishop mere minutes before he
encountered the officers. In the face of the admitted evidence, we conclude that the trial
court did not abuse its discretion by overruling Appellant’s objection to the charge and
submitting a deadly weapon special issue. Appellant’s second issue is overruled.
Outcome: Having overruled Appellant’s two issues on appeal, we affirm the judgment of the
trial court.
Plaintiff's Experts:
Defendant's Experts:
Comments: