PD-0527&0528-15 May 6, 2015 No. _______________

IN THE TEXAS COURT OF CRIMINAL APPEALS

________________________ Nos. 01-14-00343-CR and 01-14-00344-CR

In the First Court of Appeals of Texas ________________________

Damion Cornelius Gordwin, Appellant v. The State of Texas, Appellee

________________________ Appellant’s Petition for Discretionary Review

________________________

Jerald K. Graber TSB # 08240320 917 Franklin, Suite 510 Houston, Texas 77002 Tel. 713-224-232 [email protected] Attorney for Appellant

Statement Regarding Oral Argument

Appellant waives oral argument.

Table of Contents

Page STATEMENT REGARDING ORAL ARGUMENT 2 TABLE OF CONTENTS 3 INDEX OF AUTHORITIES 4 STATEMENT OF THE CASE 6 STATEMENT OF PROCEDURAL HISTORY 7 APPELLANT’S GROUND FOR REVIEW 7 REASON FOR REVIEWING GROUND FOR REVIEW 7 ARGUMENT 8 CONCLUSION and PRAYER FOR RELIEF 14 CERTIFICATE OF COMPLIANCE 14 CERTIFICATE OF SERVICE 15 Index of Authorities Cases Page Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) 9, 11 Ervin v. State, 331 S.W.3d 49, 55 (Tex. App.—Houston [1st Dist.] 10, 12 2010, pet. ref'd) Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006) 10 Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd) 10 In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071, 9, 12 25 L. Ed. 2d 368 (1970) Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560, (1979) 9, 11 King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995) 10, 12 Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009) 9, 12 Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005) 10 Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) 9, 12 Statutes, Codes and Rules

Tex. Health & Safety Code § 481.002(38) 10 Tex. Pen. Code § 1.07(a)(39) 10 Tex. Pen. Code § 37.09(d)(1) 12 Tex. R. App. Proc. 66.3 (c) and (f) 7 To the Honorable Court of Criminal Appeals:

Statement of the Case

Appellant was charged by indictment with the felony offenses of tampering with physical evidence in cause number 1397495 and possession of a controlled substance in cause number 1397496. (CR 9, 9)¹. Appellant entered a plea of not guilty and the cases were tried before a jury. (RR III 10). The jury found appellant guilty of both charges. (RR III 171-172). After a sentencing hearing, the jury sentenced appellant to three years in prison on the tampering with evidence case and two years in prison on the possession of a controlled substance case. (RR V 55).

Appellant timely filed a written notice of appeal. (CR 57, 58). The trial court certified the defendant’s right of appeal. (CR 56, 57). Appellant requests oral argument in this case.

____________________________________________________________ 1- Cause number 1397495 is cited first, followed by cause number 1397496.

Statement of Procedural History

On April 30, 2015, a panel of the First Court of Appeals issued an un- published opinion affirming the trial court’s judgments in these two cases. Appellant files this first petition for discretionary review with this Court.

Appellant’s Ground for Review

1) The Court of Appeals erred in finding that the evidence is sufficient to support the conviction of possession of a controlled substance since appellant never maintained care, custody, or control over the cocaine that was found in a baggie in a toilet. 2) The Court of Appeals erred in finding that the evidence is sufficient to support the conviction of tampering with evidence under the theory that appellant “concealed” the evidence. The indictment and jury charge did not allege that appellant “concealed” the evidence. The evidence is insufficient to support the conviction for tampering with evidence since appellant did not alter or destroy the cocaine that was found in a baggie in a toilet.

Reason for Reviewing Appellant’s Ground for Review

The lower Court’s ruling should be reviewed pursuant to Tex. R. App. P. 66.3(c) and (f).

Argument

The evidence is insufficient to support the conviction for possession of a controlled substance since appellant never maintained care, custody, or control over the cocaine that was found in a baggie in a toilet. Appellant never touched the cocaine or the baggie containing the cocaine. In fact, the police indicated that they never saw appellant put any item into the toilet. While the testimony established that the officers saw appellant flush the toilet numerous times, there is no evidence that appellant ever possessed the cocaine. Therefore, the Court of Appeals erred in finding that the evidence is sufficient to support the verdict.

Also, the evidence is insufficient to support the conviction for tampering with physical evidence since appellant did not alter or destroy the cocaine that was found in a baggie in a toilet. The indictment and jury charge alleged that appellant actually altered or destroyed the physical evidence. The Court of Appeals erred in finding that the evidence is sufficient to support the verdict under the theory that appellant “concealed” the evidence. However, the indictment and jury charge did not allege that appellant “concealed” the evidence. The only evidence that was presented to the jury was that appellant flushed the toilet that contained the baggie of cocaine that was put there by the co-defendant. The physical evidence that was seized by the police was never altered or destroyed.

Possession of a Controlled Substance – Cause Number 1397496

The Jackson v. Virginia legal-sufficiency standard 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. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010); Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560, (1979). Under this standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational factfinder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071, 25 L. Ed. 2d 368 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Viewed in a light favorable to the verdict, the evidence is insufficient when either: (1) the record contains no evidence, or merely a "modicum" of evidence, probative of an element of the offense; or (2) the evidence conclusively establishes a reasonable doubt. Laster v. State, 275 S.W.3d at 518. This standard applies equally to both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995); Ervin v. State, 331 S.W.3d 49, 55 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd).

Possession is defined as "actual care, custody, control, or management." Tex. Pen. Code § 1.07(a)(39) (West 2011); Tex. Health & Safety Code § 481.002(38). To prove unlawful possession of a controlled substance, the State must establish that (1) the accused exercised care, control, or management over the contraband, and (2) knew the substance was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). The evidence must establish that the accused's connection with the substance was more than fortuitous. Id. at 405-06. Evidence must link the accused to the offense so that one reasonably may infer that the accused knew of the contraband's existence and exercised control over it. Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.— Houston [14th Dist.] 2001, pet. ref'd). Mere presence at the location where the controlled substance was found is insufficient, by itself, to establish possession. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006).

In this case, there is no evidence that appellant actually exercised care, custody, or control over the subject cocaine. The testimony established that Christopher Hutchinson discarded the baggie of cocaine into the toilet. There is no evidence that appellant ever touched the cocaine or the baggie containing the cocaine. In fact, the police indicated that they never saw appellant put any item into the toilet. (RR III 92, 142). While the testimony established that the officers saw appellant flush the toilet numerous times, there is no evidence that appellant ever exercised care, control, or management over the contraband. Thus, the evidence is insufficient to support the jury’s verdict, and this court should enter a judgment of acquittal on the possession of a controlled substance conviction.

Tampering with Physical Evidence – Cause Number 1397495

The Jackson v. Virginia legal-sufficiency standard 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. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010); Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560, (1979). Under this standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational factfinder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071, 25 L. Ed. 2d 368 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Viewed in a light favorable to the verdict, the evidence is insufficient when either: (1) the record contains no evidence, or merely a "modicum" of evidence, probative of an element of the offense; or (2) the evidence conclusively establishes a reasonable doubt. Laster v. State, 275 S.W.3d at 518. This standard applies equally to both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995); Ervin v. State, 331 S.W.3d 49, 55 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd).

A person commits the offense of tampering with physical evidence (as specifically charged in the indictment) if, knowing that an offense had been committed, alter or destroy a thing, namely cocaine, with intent to impair its verity as evidence in any subsequent investigation of or official proceeding related to the offense. (CR 9); Tex. Pen. Code § 37.09(d)(1).

In this case, the evidence is insufficient to support a conviction for tampering with physical evidence since there is no evidence that appellant actually altered or destroyed the cocaine that was found in the toilet. The indictment and the jury charge in this case did not allege that appellant concealed the evidence, one of the methods in which one could commit the offense under § 37.09(d)(1); (CR 9, 39-43). The indictment and the jury charge only alleged that appellant altered or destroyed the physical evidence. (CR 9). Therefore, the Court of Appeals erred in finding (1) that “the jury could have found that [appellant] “conceal[ed]” the evidence, (2) that “the jury could have reasonably inferred that appellant concealed the cocaine that the officers recovered from the toilet, and (3) that “the jury could have reasonably found that appellant concealed…cocaine.” Gordwin v. State, No. 01-14-00343-CR (April 30, 2015, unpublished), pgs. 8-10. The jury was not authorized to convict under the theory that appellant “concealed” the evidence.

The only evidence that was presented to the jury was that appellant flushed the toilet that contained the baggie of cocaine that was put there by the co-defendant. There is no evidence that the physical evidence was ever altered or destroyed. In fact, since the cocaine was inside a plastic baggie, it was shown that the cocaine was not altered at all. Furthermore, since the cocaine was retrieved by the police, the evidence was not destroyed in any way. In this case, the most that the State could prove was that appellant committed the offense of attempted tampering with physical evidence. However, since the elements of tampering with physical evidence were not proven by the State, appellant requests that this Court acquit him of the offense of tampering with physical evidence.

Conclusion and Prayer

Appellant prays that this Honorable Court grant Appellant’s Petition for Discretionary Review, reverse the decision of the Court of Appeals, and acquit appellant in each cause.

Respectfully Submitted, /s/ Jerald Graber _______________________ Jerald K. Graber 917 Franklin, Suite 510 Houston, Texas 77002 713-224-2323 Attorney for Appellant

Certificate of Compliance

I, Jerald K. Graber, do certify that this petition is in compliance with Rule 9 since the entire document consists of 2,155 words and is typed using 14-point font.

/s/ Jerald Graber _______________________ Jerald K. Graber Certificate of Service

I hereby certify that a copy of this PDR was served upon the following parties via e-file: Alan Curry Harris County District Attorney’s Office 1201 Franklin, 6th Floor Houston, TX 77002 State Prosecuting Attorney P.O. Box 12405 Austin, Texas 78711

/s/ Jerald Graber _______________________ Jerald K. Graber OpinionissuedApril 30,2015

In The @ourtof 9ppeulg For The fritst Distriotof(Iexsg

NO. 0l-14-00343-CR NO. 0l -14-00344-CR

DAMION CORNELIUSGORDWIN,Appellant V. THE STATE OF TEXAS, Appellee

On Appealfrom the 248thDistrictCourt Harris County,Texas Trial Court CaseNos.1397495& 1397496

MEMORANDUM OPINION

A jury foundappellant, DamionCorneliusGordwin,guittyof the olfensesof tamperingwith physical evidencerand possessionof a c,rntrolledsubstance, namelycocaine,weighinglessthan one gram.' [t assessed his punishment at

for threeyearsfor tamperingwith physicalevidenceandconfinement confinement for two yearsfor possession with the sentences of a controlledsubstance, to run concurrently.In threeissues,appellantcontends thatthe evidenceis insulficientto supporthis convictionsand the trial court erred in enteringa deadlyweapon findingin itsjudgment.

We affirm.

Background

Houston Police Department("HPD") Officer M. Santuariotestified that on August 9,2013, while working in the HPD NarcoticsDivision, he and other law enforcementofficers "servefd] and executefd]a [no knock] searchwarrant" at a residence. Santuarioacted as the "case agent" and the "pointnnan"for the entry

SeeTpx. PENRI- (VemonSupp.2014);appellate Cooe ANN. $ 37.09(d)(1) cause trialcourtcausenumber1397495. number01-14-00343-CR; S e e T p x. H E R l ru & S n pEr v Coop ANN. $$481.102( 3XD) 481.115( , (b) a), (Vernon2010);appellate causenumber01-14-00344-C& trial courlcaurlenumber 1397496. team. HPD Officer J. Elkins "breachedthe ffront] door" of'the residence,while HPD Officer Delacertadeployedthe'"flashbang."i

As Officer Santuarioentered the residence,he saw appellant,\ ,ho "was armed," and ChristopherHutchinsonrun into a hallway and then into a restroom. He followed them because"fn]ormally in a situationlike th[is]" people run to "discard or destroy narcotics." When Santuarioarrived in lJrerestroom,he saw Hutchinson"kneeling down in front of the toilet," "on the floor'," while appellant threw a small "pistol" onto the restroom floor and then lllushed the toilet repeatedly. The "pistol" "was a floaded]semiautomaticf,] . . . small sil'rer gufl," with "a round in the chamber." Although Santuarioordered appellantto "stop" flushing the toilet, he refusedand "[c]ontinued flushing or pulling the ltoilet] lever." When Santuariotried to removeappellantfrom the toilet,he resisted.

While appellantflushedthe toilet, Hutchinson"had his hands in the toilet bowl," and Officer Santuario"saw something leave his hands." As liantuario explained:"[I]t was [a] couplethingsthat were small[,which] []ooked lilceplastic bags . . . ." Generally,people do not "flush ernpty plastic bags down the toilet," but rather "narcotics." Thus, it appeared to Santuario thLatappellant and Hutchinson were working together to flush the items dou'n the toilet. When Officer Elkins commandedHutchinsonto oostop" and "put his handsaway from the

Officer Santuarioexplainedthat a "flash bang""is a distractiondevice"t;hatmakes a loudgunshot-likesound,flasheslight,andreleases minimalsmoke. toilet," he did not comply. Elkins, therefore,"reached in and basicall'yyanked fHutchinson] away from the toilet." After the officers relno'vedappellant and Hutchinsonfrom the restroom,they "handcuffedand . . . escorted[them] out of the residence."

Officer Santuariothen took "a closer look at th[e] toilet" and "removed it from the base [on] the floor." Inside the toilet, he found "a small baggie,that had crack cocaine in it." HPD officers also searchedthe remainder:of the residence, appellant,and Hutchinson,and they recovered$2,103 in casrh,marijuanaand related paraphernalia,a "small digital scale," a beaker, a revolver, and a "baby bottle with what appearedto be codeineinsideof it."

Officer Elkins testifiedthat he assistedwith the executionof the "no knock" searchwarrant at the residence. He breachedthe residence'sfront door with a "[b]attering device," and Officer Delacerta deployed the "flesh bang." After Elkins followed Officer Santuariointo the residence,Santuarioy'elled,"[r]unners," to alert the other officers that "individuals inside the residence[were] nunning." Generally,peoplerun in situationssuch as this to "hide," "get rid.of sometihing,"or to "get away from officers." Elkins saw appellantand Hutctrinslonrun toward the restroom,and he and Santuariopursued.

Once inside the restroom,Officer Elkins saw appellanl."cliscard"a."[s]ilver automatic pistol" onto the floor and Hutchinson "by the toil,et area discarding somethinginside the toilet." Hutchinsonhad his hands "iLnsidethe toilet," and it looked like he was "[d]iscarding items into the toilet." After E,lkinscornmanded Hutchinsonto o'showhis hands" and "get down on the ground," he did not comply. Although his focus was on Hutchison,Elkins saw appellant''reachingtoward the lever of the toilet." "observed his hands on the lever." and cor"rldhear the toilet flushing. According to Elkins, the toilet "had been llushed several times." Eventually,Elkins "forcefully. . .pull[ed] [Hutchinson]off the toilet" and took him into custody. In a subsequentsearch of the restroom.,Elkins savyOfficer Santuario"recover a small bag of what appearfed]to be crack r:ocainecut of the bottom of the toilet." HPD oft-rcersalso recovered mariiiuerna.codeine" and "anotherpistol" from the residence.

Mona Colcatestifiedthat she.as a criminalistwith the controlledsubstances sectionof the HPD Crime Laboratory,"receive[s]and anallyze[s]evidence"to "test it for the presenceof controlled substances." She anerlyzedthe "small bag" recoveredfrom the toilet and found that it contained0.83 eramsof cocaine.

Sufficiency of the Evidence

ln his third issue,appellantarguesthat the evidenceis i.nsuLfficient to support his conviction for tampering with physical evidencebecausehe did not "actually alterf] or destroy[] the cocaine that was found in the toilet." In his first issue, appellant argues that the evidence is insufficient to support his conviction for possessionof a controlled substancebecause"there is no evidence that [he] actuallyexercisedcare,custody,or control over the subjectcocaine."

We review the legal sufficiency of the evidenceby conr;ideringall of the evidence"in the light most favorableto the prosecution"to determinewhr:therany "rational trier of fact could have found the essentialelementsof the crime beyonda reasonable doubt." Jacksonv. Virginia.443 U.S. 307,319,99 S. Ct. 2781,2789 (1979). Our role is that of a due processsafeguard,ensuringonl.ythe rationalityof the trier of fact's finding of the essential elements of the offense treyond a reasonabledoubt. See Moreno v. State,755 S.W.2d 866, 857 (Tex. Crim. App. 1988). We give deferenceto the responsibilityof the facl finder to fairl'y resolve conflicts in testimony,to weigh evidence,and to draw reasonableinferencesfrom the facts. I|rilliams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). However, our duty requires us to "ensure that the evidenc,epresentedactually supportsa conclusionthat the defendantcommitted" the criminal offenseof which he is accused.Id. Tamperingwith PhysicalEvidence

A person commits the offense of tampering with physical evidence it knowing that an offense has been committed,he alters,destroys,or concealsany record,document,or thing, with intent to impair its verity, legibiltity,or availability as evidencein any subsequentinvestigationor official proceeilingrelat,edto the offense.Tpx.PpNnlConpAxx. $ 37.09(d)(1) (VernonSupp.2014). lHere,the underlyingindictmentallegedthat appellant,"knowing that an offenselhadbeen committed, to wit: POSSESSIoN OF CONTROLL,ED SUBSTANCE, ALTERIED] AND DESTROYIED] A THING, NAMELY, COCAINE with intent to impair its VERITY as evidencein any subsequentinvestigationof and of-ficial proceedingrelatedto the aforesaidoffense."

Officer Santuariotestified that after he enteredthe residence,he followed appellant and Hutchinson as they ran into the restroorn. Santuariiofbund Hutchinson"kneelingdown in front of the toilet," "on the,floor," while appellant repeatedlyflushed the toilet. As appellant continuously'flushed the toilet, Santuario"saw something leave [Hutchinson's] hands." The "something" "was small . . . it wasn't just one, it was a couple of things that were srnall. [tt] fl]ooked like plasticbags." Santuariodid not see"any'thingelse in the toilet" "[o]ther than the plasticbags" that he saw Hutchinsondiscard.

Officer Santuarioexplainedthat "normally" peoplerun whLenofficers entera residenceto "discard or destroy narcotics." And, based on his training and experience,"people [do not] flush empty plastic bags do'wn [a] toilet." Instead, they flush "narcotics." And, after officers removedappellantanclHutchinsonfrom the restroom, Santuario"removed [the toilet] from the base [on] the floor" and found "a small baggiethat had crack cocainein it."

Similarly, Officer Elkins testifiedthat he saw appellantand F{utchinsonrun toward the restroom. Once inside the restroom,Elkins saw Hutchinson "by the toilet area discarding something inside the toilet." Hurtchinr;on'shands were "inside the toilet," and he was "discardingitems into the toilet." The only things that Elkins could seein the toilet were the "items" that Hutchinsonwas discarding. Elkins also saw appellant's"hands on the ltoilet] lever," and he heard the toilet being "flushed severaltimes." And Elkins saw Officer Santuario"recove'ra small bag of . . . crack cocaineout of the bottom of the toilet."

Appellant arguesthat "there is no evidence"that showrsh,3"actually altered or destroyedthe cocaine that was found in the toilet" because"the cocaine was insidea plasticbaggie"and "retrievedby the police,"and,thus,"not alteredat all" or "destroyedin any way." We note, however,that appellanl"'sargumentneglects to considerthat the jury was not requiredto find that he altere<J or destroyedthe cocainefound in the single,"small baggie" recoveredfronnthe toilet. Rather,the jury could have fbund that he "conceal[ed]" the cocaine. Id. Ancl Officer Santuariotestified that he saw Hutchinson place a "couple'" oll "small," "plastic bags" in the toilet, which appellantrepeatedlyflushed. And, basedon hir; training and experience,Santuarioexplainedthat "people fdo not] lllushempty plastic bags down [a] toilet," but instead, they flush "narcotics." Officerr Elkins similarly testified that Hutchinson "discardfed] items into the toilet," wtrich appellantwas flushing.

"'Circumstantial evidenceis as probative as direct evidencein establishing the guilt of an actor, and circumstantial evidence alonLecan be sufficient to establishguilt."' Merritt v. State,368 S.W.3d 516, 525 tiTex.Crim. App. 2012) (quotingHooper v. State,2l4 S.W.3d9, l3 (Tex. Crim. App. 2007)). f]asedon the above testimony,the jury could have reasonablyinferred that appellantconcealed the cocainethat the officers recoveredfrom the toilet. I\'zloreover" it could have reasonablyinferredthat cocaine,other than the cocainerecoverr:dliorn the single baggie,was flushed down the toilet by appellant,and, thus, this other cocainewas a l t e r e do r d e stro ye d .S e eR a b b v. State,434S.W .3d613, 617 ( Tex. Cr im. App. 2014) (noting "a fact flnder could reasonablyinfer from the evidence that the baggieand pills were destroyedby their passageinto [a]ppr:llant'sbody"): Hooper, 214 S.W.3dat 15 (fact finderspermittedto draw reasonableinferencesif supported b y e v i d en ce );se e , e .g ., D i a z y. ^S/a/e, l2- 13- 00068- C R , Nos. 13- 13- 00067- CR, 2014 Wt. 1266350,at *2 & n.3 (Tex. App.-Corpus ChristiJan.23,2014, no pet.) (mem. op., not designatedfor publication)(concludingjur.y could reasonablyhave inferred defendantdestroyedcocaineby flushing it down toi.letwhere "there was cocaine found around the rim of the toilet bowl and in the toilet water, and [defendant]had just exited the bathrooffi");Turner v. State,No. 13-12-00335-CR,

at *2 (Tex.App.-CorpusChristil\[ar:.14,2013,no pet.) 2013wL 1092194, (mem. op., not designated for publication)(holdingfactfindercould have reasonably found defendant destroyed cocaine by swallowing based on circumstantial evidence officer saw baggie with "white or beige rock-like substance" in defendant's mouth and cocaine commonll, prackagedin such manner).

Viewingthe evidencein the light mostfavorableto tlhejury's verdict,we concludethat the jury could have reasonablyfound that appellantconcealed, altered,or destroyed cocaine.Accordingly,we hold thatthe evidenceis sufficient to supporthis convictionof the offenseof tamperingwith physicalevidence.

We overruleappellant'sthird issue. Possessionof a Controlled Substsnce

A personcommits the offenseof possessionof a controlledsubstanceif he

-I'nx. "knowingly or intentionally possesses"less than one gran:l of cocaine. H e n l r n & S a p p l v C o o p A N N . $ $ 4 8 1 . 1 0 2 ( 3 X D 4) ,8 1 . 1 l 5 ; ( a (. l)b, )( V e r n o n2 0 1 0 ) . To prove that appellantcommittedthis offense,the Statehradto r:stablishbeyonda reasonabledoubt that he exercisedcontrol. manasement.or care over the cocaine and knew that it was contraband.Poindexterv. State, 153 S.W.3d 402,405 (Tex. Crim. App. 2005); see also TEx. PENnLCoDEAxx. $ 1.07(aX39)(Vernon Supp. 2014). Although the Stateneed not prove exclusivepossessionof cocaine,it must establishthat a defendant'sconnectionwith the cocaine is rnore tharr fortuitous. Evans v. State,202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006): I4tileyv. State, 3 8 8 S. W.3 d8 0 7 ,8 1 3 (T e x. A p p.- Houston IlstDist.] 2012,pet. r efd) . W hen a defendantis not in exclusivepossessionof the place where contrabandis found, the State must show additional affirmative links betweenL ttre rlefendantand the contraband.Deshongv. State,625S.W.2d327,329 (Tex. Crim. App. [PanelOp.] 1 9 8 1 ) ;Ki b b l e v. S ta te .3 4 0S .W.3d 14, 18 ( Tex. App.- - Houston[1st Dist.] 2010, pet. ref d). Mere presencein the sameplace as contrabandis insufficient,by itself, to establishactual care, custody,or control. Evons, 20:l S.W.3d at 162. But, presence or proximity to contraband, when combined withr other direct or circumstantial evidence,may be sufficientto establishpossession.ft/.

Texas courts have recognizedthat the following non-exclusive"affirmative links" may be suff'rcient, eithersingly or in combination,to establisha defendant's possession of narcotics: (l) the defendant'spresencewhen a searchis conducted; (2) whetherthe contrabandwas in plain view; (3) the defendant'rs proximity to and the accessibilityof the narcotic;(4) whetherthe defendantwas under the influence of narcoticswhen arrested;(5) whether the defendantposrsesseil other contraband or narcotics when arrested; (6) whether the defendant made incriminating statementswhen arrested;(7) whetherthe defendantattemptedt<l flee; (8) whether the defendantmade furtive gestures;(9) whether there was an odor of narcotics; (10) whether other contraband or narcotics parapherna.liawere present; (11) whether the defendantowned or had the right to possessthe' place where the narcoticswere found; ( l2) whether the place where the narcotic,su,ere found was enclosed:(13) whether the defendantwas found with a large amount of cash;and (14) whetherthe conductof the def-endant of guilt. Id. at indicateda consciousness 162 n.12. lt is not the numberof links that is dispositive,but rather,the logical force of the evidence,both direct and circumstantial,thar is dispositiveto show possession.Id. at 1621, Jamesv. State,264S.W.3d215,219 (Tex. Aptrr.-Houston I st Dist.] 2008,pet.ref d).

Appellant arguesthat "there is no evidencethat [he] actually exercisedcare, custody, or control over the subject cocaine" because the evidence at trial "establishedthat . . . Hutchinson discardedthe baggie of r;oc:airre into the toilet," "the police indicatedthat they never saw appellantput any iitemirrto the toilet," and it was not shown that "appellantever touchedthe cocaineor the baggiecontaining the cocaine."

Officer Santuariotestifiedthat appellantwas presentin the residence,which was equippedwith surveillanceequipment at the time law enl'orcementofficers executed the search warrant. See Evans, 202 S.W.3d at 162 n.12, 163 64 (presencewhen searchconductedconstitutesaffirmative link); s(re,e.g.,Lavigne v.

2008 WL 3115385,at *3 (Tr:x.App.--Flouston[1st state, No. 01-07-00995-CR, t2 Dist.l Aug. 7, 2008, pet. ref d) (mem. op., not designated.for publication) (concludingevidencesufficient where defendantfound inside rersidence "equipped with the extra securityassociatedwith a housededicatedto manufacturingcrack"). Inside the residence,officers found lettersaddressedto appellan,tat the residence, pictures in the bedrooms,and male clothing that matcherCappellant.'ssize. See Evans,202 S.W.3dat I 62 n.12, 164-65 (receivingmail at residenceand presence of clothing raisesreasonableinferencedefendantoccupied residencr:);Cooper v. St a t e , 8 52 S .W.2 d 6 7 8 .6 8 1 (T ex. App.- Houston [4th Dist.] 1993,pet. r efd) (concluding mail addressed to defendant, defendant's picture, and clothing appearingto fit defendantindicateddefendantoccupiedresidence).

When the officers enteredthe residence,appellant,along with Hutchinson, ran to the restroom,and Officer Santuariofound appellantstandinE;next to and flushing the toilet, from which he later recovered a u'small baggie [of] crack cocaine." SeeEvans,202S.W.3dat 162 n.12 (proximityto narcotic,attemptingto flee, and making furtive gesturesconstituteaffirmative linkslt;see,e.9., Jordan v. State, Nos. 02-12-00470-CR, 02-12-00471-CR, 02-12--0047:2-CR, 2014 WL 1663404^at *3 (Tex. App.-Fort Worth Apr. 24, 2014, no pet.) (nrem. op., not designatedfor publication)(fleeing to restroomdid not inclicatean "innocent state of mind"); Perez v. State.No. 07-II-00249-CR, 2012 W'L Il22lA4, at *4 (Tex. App.-Amarillo Apr.4,2012, no pet.) (mem. op., not designatedfol publication) l3 (concludingevidencesufficientto showpossession wherecocainefound in urinal

was standing");Ga'rretty. State.761 "immediatelyadjacentto where[defendant] S.W.3d664,671(Tex.App.-Fort Worth2005,pet.refd) (evi<lence' sufficientto possessed show def-endant crackcocainewheredefendantfoun<lflus,tring bagsof crackcocainedowntoilet).

Although Hutchinson, rather than appellant, "had his hands in the toilet bowl" and discarded "something" that "[]ooked like plasttic b€rgs," Officer Santuariotestified that it appearedthat appellantand Hurtchinsonv/ere working togetherto flush the items down the toilet. See,e.g., Sanalersv. Stat,z.No. I l-12-

, t *6 (Tex.App.--Eastland 0 0 1 5 1 - C R 2, 0 1 4 W L 3 8 8 2 1 8 5 a Aug. 7,2014. pet. refd) (mem. op., not designatedfor publication)("[DefenLdant's] att:mpt[] to aid his mother's attempt to destroy evidence when officers arrived eLtthe house,

of guilt on his part.");Perez,il.0l'2V/1. I .22704,at *4 indicat[ed]a consciousness ("[A]t the same time fdefendant] was arrested,two other individuals whom [defendant]was observedto be standingvery closelyto, were otrservt:dattempting to throw away or concealbaggiesof cocaine.").

Officer Santuario also saw appellant throw "a sen'liautomaticf,] . . . small silver gun," which was "loaded" with "a round in the charnber,"onto the restroom floor." seePorterv. state,873s.w.2d729,733(Tex.l\pp.--Dallas1994,pet. refd) (concluding presence of firearms in apartment where cocaine located constitutedaffirmative link). And a search of the rema.inderof the residence, appellant, and Hutchinson revealed $2,103 in cash, marijuLana,and related paraphernalia,which had been sitting in "plain view" on a table, a "small digital scale," a beaker,a revolver, and a "baby bottle with what appearedto be codeine inside of it." See Evans, 202 S.W.3d at 162 n.72, 16-\-65 (presenceof other contraband, narcotics paraphernalia, and large amou.nt of' cashLconstitute affirmative links); Hargrove v. State, 211 S.W.3d 379, 386 (Tex. App.-San Antonio 2006, pet. refd) (concluding presence of narcotics paraphernalia. includingdigital scale,and weaponsin houseconstitutedaffirrrrativ'e links).

Viewing the evidencein the light most favorableto the.jury's verdict,we concludethat sufficient affirmative links connectappellantto the cocaine. And the jury could have reasonablyinferred from the cumulativefcrrceolithe evidencethat appellantexercisedactual care,custody,or control of the cocain,o.See'Evans,202 S.W.3d at 166 (concludingevidence,'owhenviewed in combinationand its sum total, constituted amply sufficient evidence"). Accordingll,, we trold that the

Officer Elkins similarly testified that he saw appellant '''discarrl" a "silver automatic pistol" on the f1oor, saw appellant"reachin5ltowa.rdthe lever of the toilet," "observedfappellant's]hands on the lever," and heerrdthe toilet flushing. In a subsequentsearchof the restroom, Ofllcer Santuario"recc,ver[ed]a small bag of what appearfed]to be crack cocaineout of the bottomLof'the toilert." And FIPD ofllcers recoveredmariiuana.codeine.and "anotherpistol" in the residence.

evidenceis sufficientto supportappellant'sconvictionof tlheoffenseof possession of a controlled substance.

We overruleappellant's first issue.

DeadlyWeaponFinding

In his secondissue,appellantarguesthat the trial courterredin "enteringa deadlyweaponfindingin thejudgmentfor possession of'a controllecl substance" because"there[was] no expressfinding by the jury that lhe] usedo,rexhibiteda deadlyweapon,namelya firearm."

When a jury is the factfinder,it must make an affirmretirre f indinLgconcerning the use or exhibition of a deadly weapon before the trial couLrtr:anenter a deadly weaponfinding in its judgment. Lafleur v. State, 106 S.V/.3d9)1,911 (Tex. Crim.

by the jury App. 2003). "Aff-rrmativefinding" meansan "expressdel.errnination" that a deadly weaponwas actually used or exhibiteddurinlgthe r;omm.ission of the o f f e n s e . P o l k v. S ta te ,6 9 3S .W .2d391,393 ( Tex. Cr im. App, 1985) . The jur y makesthe requiredaffirmative finding when: (l) the indic,tmentalletr;es the use or exhibition of a deadly weapon and the jury's verdict states that it found the defendant"guilty as chargedin the indictment"; (2) the juqr finds the defendant guilty as allegedin the indictmentand, althoughthe use o1'a deerdlyweapon is not specificallypleaded,the indictmentallegesthe use or exhibitiorrof a weaponthat is deadly per se; or (3) the jury affirmatively answersa sp,ecialissueon the use or exhibitionof a deadlyweapon. Polk, 693 S.w.2d at 396; Jcthnsa,nt v. State,6 S.W.3d709,713-14(Tex.App.-Houston[1stDist.] 1999,pet.refd').

Here,the indictmentspecificallyallegedthe useor exhib,ition of a "deadly weapon"by appellant.5OfficersSantuario andElkinstestifiedtlhatappellant"was armed"and threw a "small silver gun" onto the restroomfl.oorbeforehe began flushing the toilet. And the jury, in its verdict, fourrd appellant"guilty of possession of a controlledsubstance, namely,cocaine. . . . as chargedin the indictment."Further,the trial court'schargeto thejury inclurJed, a questionasking thejury to determine whetherappellant usedor exhibiteda deadlyweaponduring the commissionof the offenseor duringthe immediatefltighttherefiom,and the jury answeredthe questionin the affirmative. See Polk, 693 S.\4,'.2d at 394; J o h n s o n .S 6.W.3d at713 14.

Once the jury made the affirmative finding, the trial court was required to e n t e rt h e fi n d i n g i n i ts j u d g me nt. SeeTpx. CooE Cnr v..Pnr tc.ANtl. ar ts.42.0l , l i 1 ( 2 1 ) ,1 2 .1 2 ,$ 3 g (a )(2 )(V e rn onSupp.2014) ;Johnson.6lS.V/.3dat 714 ( when jury makes affirmative finding on use of deadly weapon:,'''enteringthLeaff-irmative finding in the judgment is mandatory; the trial court lhas no discretion").

The indictment states: "[A]t the time that the Def'end;antcommitted the f-elony ofl'ense of POSSESSION OF CONTROLLED SUflSTAllCFl on or about AIIGUST 9,2013, as hereinabovealleged,he usedand exhibiteda cleadlyweapon namely, a FIREARM, during the commission of saicl off-ensea.nd during the immediate flight from said ofl-ense." t1 Accordingly,we hold that the trial courtdid not err in enterirrg the deadlyweapon findingin itsjudgment.

We overruleappellant's secondissue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings Justice Panelconsistsof JusticesJennings,Keyes,and Massengale. D o n o t p u b l i sh . T t-x.R . A p p .P . 47.2( b) .