No. 05-05-00953-CR
Opinion issued March 22, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 422nd Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 23131-422. Affirmed.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
Opinion By Justice WRIGHT.
A jury convicted Shawn Dion Hickey of possession of methamphetamine in an amount of four grams or more but less than 200 grams and assessed punishment at twenty years' imprisonment and a $10,000 fine. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Appellant was indicted for possession with intent to deliver methamphetamine, but the jury found him guilty of the lesser-included offense.
Background
At about 12:30 a.m. on June 24, 2004, Terrell police officers Ty Burnes and Jeremy Mack responded to a silent alarm at a closed convenience store. They saw a two-door Chevrolet Cavalier leaving the store's parking lot. The officers stopped the vehicle, whch had four occupants. Terri Miller was the driver and appellant was in the back seat on the passenger side. Steven Boss and Shannon Boyd were the other two passengers. Miller, Boss, and Boyd gave their correct names and provided valid identification. Appellant had no identification. He told the officers his name was Richard Andrew McFadden. When Mack questioned the others about appellant's name, Miller stated appellant's name was Richard McFadden. While they questioned the four occupants, Burnes and Mack saw a crowbar laying on the back seat next to appellant. Both Burnes and Mack testified they noticed that appellant continually looked at the driver's side floorboard and door. Miller, Boss, and Boyd acted nervous, were sweating, and they "stumbled" over their words. Burnes radioed for a canine unit after Miller refused to allow the officers to search the vehicle. The dog alerted on three different areas of the vehicle. Burnes searched on the passenger side of the vehicle and Mack searched the driver's side. Mack found narcotics and paraphernalia inside the vehicle, including (1) a black bag containing two glass pipes with residue and two small plastic baggies with residue in the driver-side door's storage compartment; (2) a black bag containing a digital scale with residue, three spoons, a small bag that contained marijuana, and a yellow envelope containing four small baggies of methamphetamine on the floorboard between the driver's seat and door; (3) a black pouch and glass pipe with residue in the middle of the back seat; (4) a crowbar on the back seat; (5) a pair of bolt cutters on the back floorboard; (5) several butane lighters throughout the vehicle; and (6) a police scanner and code book in the trunk. Later analysis showed the bags contained a total of 8.15 grams of methamphetamine. None of the occupants claimed ownership of the drugs or other items. The officers arrested all four occupants and transported them to jail, where they learned appellant's true name. Mack testified he arrested all of the occupants of the vehicle because each was within arm's reach of the methamphetamine. Burnes testified that even though appellant was sitting in the right rear passenger seat, he only had to lean forward to reach the drugs found in the driver's door compartment because the vehicle was very small. A videotape of the traffic stop, search of the vehicle, and arrest was played to the jury. Virginia Hampton testified on appellant's behalf. Hampton is Miller's mother and Boyd's grandmother. Hampton testified Miller wrote her and Boyd letters in which Miller admitted the narcotics found in the vehicle belonged to her. The letters were admitted into evidence without objection. The defense also called Miller as a witness, but she invoked the Fifth Amendment and did not testify. Appellant did not testify at trial. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the verdict, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The State was required to prove beyond a reasonable doubt that appellant knowingly or intentionally possessed with the intent to deliver methamphetamine in an amount of four grams or more but less than 200 grams. See Tex. Health Safety Code Ann. §§ 481.112(a), (d) (Vernon 2003). To do so, the State had to prove appellant exercised care, control, or management over the methamphetamine and knew it was contraband. See Taylor v. State, 106 S.W.3d 827, 830 (Tex.App.-Dallas 2003, no pet.). The jury was instructed it could find appellant guilty of possession with intent to deliver methamphetamine, guilty of the lesser-included offense of possession of methamphetamine, or not guilty. The jury was also instructed it could find appellant guilty if it found he acted as a party to the offense. See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). In determining whether the accused is guilty as a party, the fact finder may consider events occurring before, during, and after commission of the offense. Michel v. State, 834 S.W.2d 64, 67 (Tex.App.-Dallas 1992, no pet.). Discussion
Appellant argues the evidence is legally and factually insufficient because nothing affirmatively linked him to the methamphetamine. Appellant points to the fact that he was not driving the vehicle; the drugs were found on the opposite side of the vehicle from where he was sitting; he had no money or paraphernalia on his person; he did not try to flee from the officers; and Miller admitted the drugs belonged to her. The State responds that the evidence is legally and factually sufficient to support the conviction because it shows appellant was a party to possession of the drugs. Mack testified he found over eight grams of methamphetamine inside the vehicle, along with other drug paraphernalia. Both Mack and Burnes saw a glass pipe with methamphetamine residue on the back seat near where appellant had been sitting. Appellant had direct access to the drugs found because the vehicle was small and all of the occupants could reach the drugs. Additionally, appellant gave a false name to the officers at the scene of the stop and maintained the false identity until he was at the jail. Miller helped appellant maintain the false identity while at the scene, although she later wrote letters claiming the drugs as hers. The jury was the exclusive judge of the facts provided and of the weight to be given to the testimony, and it was the jury's role to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Harvey, 135 S.W.2d at 717. Viewed under the proper standards, we conclude the evidence is legally and factually sufficient to support appellant's conviction. We overrule appellant's two points of error. We affirm the trial court's judgment.