Gordwin, Damion Cornelius
PD-0527-15
| Tex. App. | May 7, 2015Background
- Police executed a no-knock search warrant at a Houston residence; officers encountered appellant Damion Gordwin and co-defendant Christopher Hutchinson fleeing to a bathroom.
- Officers observed Hutchinson kneeling at the toilet and discarding small plastic items into the bowl; Gordwin threw a small loaded pistol onto the bathroom floor and repeatedly flushed the toilet.
- Officers removed both men; later they removed the toilet and recovered a small baggie containing 0.83 grams of cocaine from its base.
- Jury convicted Gordwin of tampering with physical evidence (Tex. Pen. Code § 37.09(d)(1)) and possession of a controlled substance (less than one gram of cocaine); sentenced to concurrent prison terms (3 and 2 years).
- On appeal, Gordwin argued (1) insufficient evidence of possession because he never had care, custody, or control of the recovered cocaine and (2) insufficient evidence of tampering because the indictment charged alteration or destruction (not concealment) and the baggie was recovered intact.
- The First Court of Appeals affirmed; this opinion reviews sufficiency of the evidence and a deadly-weapon finding.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Gordwin) | Held |
|---|---|---|---|
| Sufficiency of evidence for possession of a controlled substance | Circumstantial affirmative links (presence during search, proximity to toilet, flushing, firearms, large cash, drug paraphernalia, residence indicia) permit reasonable inference Gordwin exercised control over the cocaine | No evidence Gordwin touched or put the baggie in the toilet; Hutchinson discarded the baggie; Gordwin merely flushed the toilet | Affirmed: cumulative affirmative links suffice to support possession conviction |
| Sufficiency of evidence for tampering with physical evidence | Officers saw Hutchinson discard one or more small plastic bags while Gordwin flushed; jury could infer Gordwin concealed/altered/destroyed cocaine (including other un-recovered cocaine) | Indictment alleged alteration or destruction, not concealment; recovered baggie was intact and not destroyed — at most attempted tampering | Affirmed: jury could reasonably infer concealment/alteration/destruction via flushing and possible other narcotics destroyed; tampering conviction supported |
| Deadly-weapon finding in judgment | Jury was instructed on deadly-weapon issue, answered affirmatively; indictment alleged exhibition/use of a firearm | Gordwin argued there was no express jury finding of weapon use or exhibition | Affirmed: jury made an affirmative finding and trial court properly entered deadly-weapon finding |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (establishes legal sufficiency standard under due process)
- Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (applies Jackson standard in Texas reviewing courts)
- Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005) (elements of possession require care, custody, or control and knowledge)
- Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006) (proximity/presence plus additional links can establish possession)
- Polk v. State, 693 S.W.2d 391 (Tex. Crim. App. 1985) (jury affirmative finding required for deadly-weapon entry in judgment)
- Rabb v. State, 434 S.W.3d 613 (Tex. Crim. App. 2014) (permitting inference of destruction of evidence where circumstantial proof supports it)