Opinion
06-19-00252-CR
07-29-2020
MARVIN WAYNE DUNN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 124th District Court Gregg County, Texas
Trial Court No. 48067-B Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
A Gregg County jury convicted Marvin Wayne Dunn of possession of less than one gram of methamphetamine. After Dunn pled true to the State's punishment enhancement allegations, he was sentenced to ten years' imprisonment and was ordered to pay a $500.00 fine. In his sole point of error on appeal, Dunn argues that the evidence was legally insufficient to support the jury's verdict of guilt. We overrule Dunn's sole point of error because we find the evidence legally sufficient to support the verdict. However, we must modify the trial court's judgment to reflect that Dunn's offense was a state jail felony, not a third-degree felony. As modified, the trial court's judgment is affirmed.
(1) The Evidence Is Legally Sufficient to Support the Verdict of Guilt
In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The "hypothetically correct" jury charge is "one that 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." Id.
To obtain a conviction under the applicable statute and this indictment, the State was required to prove beyond a reasonable doubt that Dunn (1) intentionally or knowingly (2) possessed (3) less than one gram (4) of methamphetamine, including any adulterants or dilutants. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a)-(b). Possession is "actual care, custody, control, or management." TEX. PENAL CODE ANN. § 1.07(a)(39) (Supp.). Dunn argues that the evidence is legally insufficient to show that he intentionally or knowingly possessed the drug.
At trial, Brant Smith, a trooper with the Texas Department of Public Safety, testified that he initiated a stop of Dunn's vehicle at 10:00 p.m. because "the left-side taillight was out." According to Smith, Dunn rose in his seat and moved "from side to side and up and down like he was . . . trying to hide something" before eventually coming to a stop. Smith approached Dunn, the sole occupant of the vehicle, and noticed that he was "extremely nervous" with "[b]oth of his hands . . . visibly shaking." Dunn claimed that his movement inside of the vehicle was the result of him reaching for his cigarettes. When Smith noticed a large-blade knife and an open bottle containing beer, he asked Dunn to exit the vehicle.
In plain view, Smith saw a "charred glass meth pipe" on the passenger seat. Dunn admitted to having used methamphetamine several years ago. Smith placed Dunn under arrest, continued searching the vehicle, and found a bag inside of a pack of cigarettes that was tucked into the crevice of the driver's seat. The bag contained a white substance that laboratory testing confirmed was 0.49 grams of methamphetamine. In a suitcase on the front passenger seat, Smith also found unused syringes, which he said were commonly used to inject methamphetamine, and a butane burner typically used to light glass pipes.
Because Dunn claimed that someone else had ridden with him and that the drugs were not his, Dunn argues that the evidence is legally insufficient. We disagree. Dunn was found in exclusive possession of the drugs in a vehicle owned by him. In plain view, Smith found a charred glass meth pipe and an open container of beer. All the contraband located within Dunn's vehicle was found in close proximity and accessibility to Dunn. Smith noticed that Dunn had shifted in his seat before pulling over, a gesture Dunn claimed was made to reach for his cigarettes, but the item found in the cigarette package wedged in the driver's seat was methamphetamine, a drug which Dunn admitted to having used in the past. A rational finder of fact could have concluded that these facts, combined with Dunn's extreme nervousness and shakiness, showed that Dunn was conscious of his connection with the methamphetamine and possessed it knowingly.
Because we find the evidence legally sufficient to prove beyond a reasonable doubt that Dunn intentionally or knowingly possessed less than one gram of methamphetamine, we overrule Dunn's sole point of error.
(2) We Modify the Trial Court's Judgment to Reflect the Correct Degree of Offense
Possession of methamphetamine in an amount less than one gram is a state jail felony. TEX. HEALTH & SAFETY CODE ANN. § 481.115(b). As a result of the State's punishment-enhancement allegations, Dunn's state jail felony became punishable as a third-degree felony. See TEX. PENAL CODE ANN. § 12.425(a). Even so, "statutes enhancing punishment ranges for the primary offense do 'not increase the severity level or grade of the primary offense.'" Bledsoe v. State, 480 S.W.3d 638, 642 n.11 (Tex. App.—Texarkana 2015, pet. ref'd) (quoting Ford v. State, 334 S.W.3d 230, 234 (Tex. Crim. App. 2011)). As a result, although the State's punishment-enhancement allegations elevated Dunn's range of punishment, the degree of offense remained the same.
Therefore, we modify the trial court's judgment to reflect that Dunn was convicted of a state jail felony. We affirm the trial court's judgment, as modified.
Josh R. Morriss, III
Chief Justice Date Submitted: July 22, 2020
Date Decided: July 29, 2020 Do Not Publish