Damien Renwick Jones v. the State of Texas

NUMBER 13-24-00236-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

DAMIEN RENWICK JONES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 130TH DISTRICT COURT
OF MATAGORDA COUNTY, TEXAS

MEMORANDUM OPINION

Before Justices Silva, Peña, and Fonseca
Memorandum Opinion by Justice Peña

Appellant Damien Renwick Jones was indicted for possession of a controlled

substance with intent to deliver. See TEX. HEALTH & SAFETY CODE § 481.112(a), (d). The

indictment contained two enhancement paragraphs alleging that he had previously been

convicted of two felony offenses. See. TEX. PENAL CODE § 12.42(d) Following a jury trial,

appellant was found guilty of the indicted offense and was sentenced to seventy-five
years’ imprisonment. Appellant argues by two issues, which we consider as three, that

the trial court erred when (1) it denied his motion to suppress, (2) denied his motion for

continuance, and (3) the evidence was insufficient to support a conviction. We affirm.

I. BACKGROUND

Sergeant Joseph Bruno, a Bay City Police Department Narcotics unit supervisor,

was investigating an anonymous tip of suspected drug dealing from a residence. Sergent

Bruno conducted surveillance on the residence when appellant arrived at the residence

and “did not leave.” Sergeant Bruno testified that this “raised [his] suspicions” about

appellant’s participation in drug dealing activity. Sergeant Bruno then “[c]onducted an in-

house search” and discovered that appellant had a “history of Code II narcotics related

activities.” Additional anonymous tips revealed that appellant “frequently walked Highway

60 1 towards Maverick . . . distributing large amounts of methamphetamine” and that he

had an active warrant for his arrest. Sergeant Bruno, after verifying that the warrant was

active, instructed Officer Jerome Estrada, who was on patrol, to be on the lookout for

appellant and to “[g]o ahead and make the stop.” Officer Estrada testified that he received

a photograph from Sergeant Bruno depicting appellant. Officer Estrada, requested and

received from dispatch, a driver’s license photograph and verified that appellant had an

active warrant. When Officer Estrada saw appellant, appellant matched the description of

“the individual . . . in[] question” and Officer Estrada “initiated a traffic stop” to execute the

warrant. Officer Estrada approached appellant “to initiate a pedestrian traffic stop.” He

“initiated [his] lights and parked [his] unit to make contact.” Appellant, according to Officer

Estrada’s testimony [was] not obeying verbal commands.” Officer Estrada attempted to

1 Through testimony, Sergeant Bruno established that “Highway 60” is also known as “Avenue F.”

Avenue F is the location where the stop and subsequent interaction with appellant took place.

2
guide appellant towards the front of the unit but appellant resisted. Dash camera video

footage and footage from Officer Estrada’s body worn camera introduced as evidence

showed appellant pull his arm away from Officer Estrada. Sergeant Bruno then arrived

on the scene to assist in the detention. Appellant then began to “use the front bumper of

the patrol car as a stabilizer and [tried] to buck [the officers] off.” Appellant was taken to

the ground where he was handcuffed and subsequently searched. After he was placed in

the patrol unit, a search of the vicinity where the struggle commenced resulted in the

discovery of a black plastic bag containing methamphetamine and other clear baggies

containing pills.

Appellant was indicted for possession with intent to deliver methamphetamine.

TEX. HEALTH & SAFETY CODE § 481.122(a), (d). On April 29, 2024, appellant and the State

appeared and announced ready for trial. Jury selection was conducted and the trial

recessed until the next day. On April 30, 2024, appellant’s trial counsel urged a motion to

suppress evidence filed on the evening after jury selection. Trial counsel for appellant

alleged that the State produced evidence the night after jury selection that consisted of

transcripts of a jail call and an audio recording of the jail call. Particularly, the jail call

pertained to a jail visit that occurred on December 6, 2022. Trial counsel contended that

he “did not have a meaningful chance to review this evidence to be able to put it in the

trial strategy or counsel [his] client.” He requested that the evidence be excluded. The

motion to suppress was denied. The trial court asked appellant’s trial counsel how much

time he would need to review the evidence before continuing with trial. Counsel requested

and received one hour to review the evidence before trial resumed.

At trial the State introduced witness testimony from the officers involved in the

3
interaction with appellant and Harry Ehmann, a forensic scientist for the Texas

Department of Public Safety. Ehmann testified to the presence of methamphetamine in

the substance that was found in the black bag and indicated that it weighed 32.66 grams.

Sergeant Bruno testified to the tips that led to the investigation; he testified that the

location where appellant was apprehended and detained was known as Avenue F and

Highway 60; and finally he testified that, in his experience, the amount of

methamphetamine found, and attributed to appellant’s possession, is typically “an amount

you would have for distribution.” Officer Estrada testified to the events leading him to

approach and detain appellant. He testified to the events seen on the video footage from

the dash camera and body worn camera, and how the black bag containing controlled

substances was found. Officer Estrada testified that a person who uses

methamphetamine typically possesses “less than one gram” of methamphetamine. Crime

scene investigators testified to the chain-of-custody and handling of the evidence after it

was found. The record does not reflect that the State sought to admit the audio recording

or transcript of the phone call into evidence. After considering the evidence submitted,

the jury found appellant guilty of possession of a controlled substance under Texas Health

and Safety Code Section 481.112(a), and (d). The jury assessed punishment at seventy-

five years’ imprisonment. See TEX PENAL CODE § 12.42(d). This appeal followed.

II. DISCUSSION

A. Denial of Motion to Suppress

When we review a trial court's ruling on a motion to suppress, we apply a bifurcated

standard of review. State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019);

Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We give almost total

4
deference to the trial court’s findings of historical facts as well as mixed questions of law

and fact that turn on an evaluation of credibility and demeanor. Abney v. State, 394

S.W.3d 542, 547 (Tex. Crim. App. 2013).

“Generally, appellate courts view the evidence in the light most favorable to the

trial judge’s ruling, regardless of whether the judge granted or denied the suppression

motion.” State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011). “[C]ourts afford

the prevailing party the strongest legitimate view of the evidence and all reasonable

inferences that may be drawn from that evidence.” (citation modified) Id. Finally, “the

ruling will be upheld if it is supported by the record and correct under any theory of law

applicable to the case. Young v. State, 283 S.W.3d 854, 873 (Tex. Crim. App. 2009).

Having reviewed the record, it does not appear that the evidence that was the

subject of the motion to suppress was used at trial. In similar cases, where motions to

suppress evidence were denied but the evidence was not introduced or admitted into

evidence, appellate courts have determined that the issue is moot and the point on appeal

should be overruled. See Long v. State, 525 S.W.3d 351, 368 (Tex. App.—Houston [14th

Dist.] 2017) (quoting Gonzalez v. State, 296 S.W.3d 620, 633 (Tex. App.—El Paso 2009,

pet ref’d)).

In Long, appellant argued that the trial court erred when it denied his motion to

suppress evidence obtained pursuant to his written consent to search his residence. 2 525

S.W.3d at 368. However, the appellate court overruled his issue as moot when it

determined that the record did not reflect that any of the items seized were offered or

admitted at trial. Id. We apply the same reasoning here. We find that appellant cannot

2 Appellant in Long argued that the consent was not valid as to the residence. Long v. State, 525

S.W.3d 351, 368 (Tex.App.—Houston [14th Dist.] 2017).

5
show he was harmed by any error. Thus, the issue is moot. We overrule appellant’s first

issue. Id. (quoting Gonzalez, 296 S.W.3d at 633).

B. Motion for Continuance

We employ an abuse of discretion standard to review the grant or denial of a

motion for continuance. Brumfield v. State, 641 S.W.3d 568, 580 (Tex. App.—Tyler 2022,

pet. ref’d). “A criminal action may be continued on the written motion of the State or of the

defendant, upon sufficient cause shown, which cause shall be fully set forth in the motion.”

Tex. Code Crim. Proc. Art 29.03; see Anderson v. State, 301 S.W.3d 276, 278–789 (Tex.

Crim. App. 2009). Additionally, Texas Rule of Appellate Procedure 33.1 provides that an

objection must be timely made with sufficient specificity to apprise the trial court of the

complaint and the basis for the objection, and the party making the objection must obtain

a ruling on that objection. See TEX. R. APP. P. 33.1(a)(1); Garza v. State, 126 S. W.3d 79,

81–82 (Tex. Crim. App. 2004). “Ultimately, an unsworn oral motion preserves nothing for

appeal.” Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012) (citing

Anderson, 301 S.W.3d at 280).

Appellant’s motion to suppress alleged that new evidence was provided after the

jury was seated and before making opening remarks; that the evidence was unavailable

to guide pretrial negotiations; and that the evidence should be excluded. There is nothing

in the record that indicates appellant requested a continuance. Nonetheless, when asked

how much time he needed in order to be ready for trial, he requested and received one

hour. Not only has appellant failed to preserve the issue for appellate review, there is no

indication that a request for continuance was denied. We overrule appellant’s second

issue.

6
C. Sufficiency of the Evidence

In reviewing the sufficiency of the evidence to support a conviction, we consider

the evidence in the light most favorable to the verdict and determine whether, based on

the evidence and reasonable inferences therefrom, a rational juror could have found the

essential elements of the crime beyond a reasonable doubt. Edward v. State, 635 S.W.3d

649, 655 (Tex. Crim. App. 2021) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

The jury is the exclusive judge of the credibility of the witnesses and the weight to be

given to the evidence. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

We defer to the jury’s responsibility to fairly resolve conflicts in testimony, weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. This

standard applies to both circumstantial and direct evidence. Id.

Sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex.

Crim. App. 2009). A hypothetically correct jury charge “accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State’s burden of proof

or unnecessarily restrict the State’s theories of liability, and adequately describes the

particular offense for which the defendant was tried.” Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997); Villarreal, 286 S.W.3d at 327.

The elements of the offense of possession of a controlled substance as charged

are (1) the defendant; (2) knowingly or intentionally; (3) possessed; (4) with intent to

deliver; (5) at least four grams or more but less than 200 grams. TEX. HEALTH & SAFETY

CODE § 481.112(a), (d).

7
“Possession” means “actual care, custody, control, or management.” TEX. PENAL

CODE § 1.07(2)(39). “To support a defendant’s conviction as a principal actor, the State

had to prove the defendant ‘knowingly possessed’ the contraband, which requires proof

that the defendant (1) exercised ‘actual care, custody, control, or management’ over the

substance and (2) knew the substance was contraband.” Espino-Cruz v. State, 586

S.W.3d 538, 543 (Tex. App.—Houston [14th Dist.] 2019, pet. ref’d) (citing TEX. HEALTH &

SAFETY CODE § 481.002(38)); see also Romero v. State, No. 13-20-00103-CR, 2021 WL

1045804, at *4 (Tex. App.—Corpus Christi–Edinburg Mar. 18, 2021, no pet.) (mem. op.,

not designated for publication).

The State must prove that the defendant's connection with the contraband “was

more than fortuitous”; in other words, “[m]ere presence at the location where drugs are

found is . . . insufficient, by itself, to establish actual care, custody, or control of those

drugs.” Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim. App. 2006). “[E]vidence

which affirmatively links [the defendant] to [the contraband] suffices for proof that [he]

possessed it knowingly.” Barbosa v. State, 537 S.W.3d 640, 645 (Tex. App.—San Antonio

2017, no pet.) (citing Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995) (en

banc); see also Romero, 2021 WL 1045804, at *4.

The defendant does not need to be in exclusive possession of the contraband—a

fact finder may otherwise infer that the defendant knowingly or intentionally possessed

the contraband if sufficient facts and circumstances support the inference of possession.

Tate v. State, 500 S.W.3d 410, 413–14 (Tex. Crim. App. 2016). The Texas Court of

Criminal Appeals has compiled a non-exhaustive list of factors which may indicate a link

connecting the defendant to the knowing possession of contraband,

8
(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.

Id. at 414 (quoting Evans, 202 S.W.3d at 162 n.12; Huan Phuoc Le v. State, 479 S.W.3d

462, 467 (Tex. App.—Houston [14th Dist.] 2015, no pet)). “Although these factors can

help guide a court’s analysis, ultimately the inquiry remains that set forth in Jackson . . . .”

Id. (citing Jackson, 443 U.S. at 318–19). Further, it is “not the number of links that is

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

Evans, 202 S.W.3d at 162. “[J]uries trump both trial and appellate judges on weight-of-

evidence determinations.” Id. at 164 (citing Jackson, 443 U.S. at 326).

Appellant’s counsel argued at trial that “[n]o frame of video and no photo shows

[appellant] in possession” of the black bag containing the drugs that were discovered after

the interaction with appellant. His sole contention on appeal is that “a rational jury could

not have found beyond a reasonable doubt that [appellant] exercised care, custody,

control or management over the bag of drugs or controlled substance found on the

sidewalk.” The State argues that the evidence established affirmative links between

appellant and the drugs to the extent “that a reasonable inference may arise that he knew

of the contraband’s existence and that he exercised control over it.” Jenkins v. State, 76

9
S.W.3d 709, 711–12 (Tex. App.—Corpus Christi-Edinburg 2002, pet. ref’d (citing King v.

State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). We agree with the State.

Considering first the issue of possession in light of the Evans factors, although the

drugs were not found on his person, according to the testimony and video evidence

admitted at trial, the black bag containing the methamphetamine was located near the

police unit where appellant began to struggle with the officers. This tends to show

appellant’s connection to the drugs in question was more than simply fortuitous. Jones,

963 S.W.2d at 830; Evans, 202 S.W.3d at 162 n.12; Hung Phuoc Le, 479 S.W.3d at 467.

Second, appellant’s “attempt to resist arrest and get away from the officers” as

testified to and seen on video indicates a “consciousness of guilt.” Evans, 202 S.W.3d at

162 n.12. The testimony showed that when Officer Estrada approached appellant to

execute the warrant, appellant did not obey verbal commands. As Officer Estrada

attempted to gain control of the situation and guide appellant towards the front of the

vehicle, appellant began resisting and began to pull away from Officer Estrada. When

Sergeant Bruno arrived to assist appellant began to “use the front bumper of the patrol

car as a stabilizer and [tried] to buck [the officers] off.”

Finally, we consider the unobjected to testimony from Sergeant Bruno that he was

investigating anonymous tips about drug dealing at the residence which appellant visited

prior to his arrest. Sergeant Bruno testified that he noticed high traffic coming in and out

of the residence and that appellant was one of those who went to the residence “and did

not leave,” raising suspicions that he was involved in drug trafficking. Sergeant Bruno’s

testimony also revealed that appellant had a history of narcotics-related activity and a tip

that he “frequently walks . . . highway 60 distributing large amounts of methamphetamine.”

10
The location where appellant was approached by Officer Estrada and Sergeant Bruno

was identified through testimony as Avenue F, also known as highway 60. After

examining the evidence in light most favorable to the verdict, we find that a jury could

reasonably conclude that appellant’s connection to the contraband was more than just

fortuitous and the logical force of the factors could lead them to determine that the

elements of the indicted offense were established beyond a reasonable doubt.

With regard to the element of intent to deliver, Officer Estrada testified that

methamphetamine users “typically have less than a gram on them if they’re a user.”

Sergent Bruno testified that “the amount that [appellant] possessed “was approximately

forty doses of methamphetamine. This is an amount you would have for distribution.”

Because we defer to the jury’s responsibility to fairly resolve conflicts in testimony, weigh

the evidence, and to draw reasonable inferences from basic facts to ultimate facts, as

established in Isassi, 330 S.W.3d at 638, we conclude that the jury could have found that

appellant possessed the methamphetamine with intent to distribute. We overrule

appellant’s third issue.

III. CONCLUSION

We affirm.

L. ARON PEÑA JR.
Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed on the
30th day of April, 2026.

11