Nos. 05-10-00968-CR, 05-10-01014-CR, 05-10-01015-CR
Opinion Filed October 11, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F10-52783-S, F07-24346-S, F07-24347-S.
Before Justices MOSELEY, LANG, and MYERS.
Opinion By Justice MYERS.
Casey Elton Brugha appeals from his convictions for possession of methamphetamine, aggravated assault, and retaliation. In seven points of error, appellant contends the evidence is legally insufficient, the trial court abused its discretion by adjudicating his guilt based on allegations in the motion to adjudicate, and the trial court's judgment should be modified in the possession case. We modify the trial court's judgment in each case and affirm as modified.
Background
In cause nos. 05-10-01014-CR and 05-10-01015-CR, appellant waived a jury and pleaded guilty to aggravated assault with a deadly weapon, a rifle, and to retaliation. See Tex. Penal Code Ann. §§ 22.02(a)(2), 36.06(a) (West 2011). Pursuant to plea agreements, the trial court deferred adjudicating guilt, placed appellant on five years' community supervision, and assessed a $1,000 fine in each case. The State later moved to adjudicate guilt, alleging appellant violated the terms of his community supervision by committing a new offense of possession of methamphetamine, and other violations. At a hearing on the motions, appellant pleaded not true. The trial court found the allegations true, it adjudicated appellant guilty in each case, and it assessed punishment at thirteen years' imprisonment for aggravated assault and eight years' imprisonment for retaliation. In cause no. 05-10-00968-CR, appellant waived a jury and pleaded not guilty before the trial court to possession of methamphetamine in an amount less than one gram. See Tex. Health Safety Code Ann. § 481.115(a), (b) (West 2010). After finding appellant guilty, the trial court assessed punishment at one year confinement in state jail. Legal Insufficiency
In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). We defer to the jury's credibility and weight determinations because the trier of fact is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326. In cause no. 05-10-00968-CR, appellant was charged with intentionally and knowingly possessing methamphetamine in an amount less than one gram. See Tex. Health Safety Code Ann. § 481.115(a), (b) (West 2010). To prove its case, the State was required to prove appellant exercised actual care, custody, control, or management over the methamphetamine and knew the material possessed was contraband. See Taylor v. State, 106 S.W.3d 827, 830 (Tex. App.-Dallas 2003, no pet.). Possible links between the accused and the drugs include, but are not limited to: (1) the accused's presence during the execution of a search; (2) whether the drugs are in plain view; (3) the accused's proximity to and the accessibility of the drugs; (4) whether the accused attempted to flee; (5) whether other drugs or paraphernalia were present; (6) whether the accused owned or had the right to possess the place where the drugs were found; (7) whether the place where the drugs were found was enclosed; and (8) whether the conduct of the accused indicated a consciousness of guilt. Evans v. State, 202 S.W.3d 158, 162 n. 12 (Tex. Crim. App. 2006). Links between appellant and the drugs may be established by either direct or circumstantial evidence. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). However, no set formula of facts exists to dictate a finding of links sufficient to support an inference of knowing possession. See Taylor, 106 S.W.3d at 830. It is the logical force of the evidence, and not the number of links, that supports a fact-finder's verdict. See Evans, 202 S.W.3d 158 at 166. In his first point of error, appellant contends the trial court erred in finding the evidence legally sufficient to support his conviction for possession of methamphetamine. Appellant asserts there are no affirmative links between him and the drugs because he did not know drugs were in the vehicle he was driving, he did not own the vehicle, and the drugs were not in plain view. The State responds that the evidence is legally sufficient to show appellant had control, management, and care over the methamphetamine and knew the substance was contraband. The evidence presented showed two Dallas police officers found methamphetamine in the vehicle appellant was driving when they pulled appellant over for running through a stop sign. Officer Glen Hurst testified he was standing next to the opened driver's side door of appellant's vehicle and saw a red bag in a dashboard-mounted cup holder. Hurst said the red bag was in plain view from where he stood outside the vehicle. Hurst testified the red bag was the type commonly used to package drugs. Officer Michael Shutka testified the contents of the red bag field-tested positive for methamphetamine. Deborah Floch, a chemist with the Southwestern Institute of Forensic Sciences, testified the red bag contained seventy-eight milligrams of methamphetamine. During an inventory search of the vehicle, Hurst also found a glass pipe with white and brown residue and a blue plastic bag with residue in it. Appellant testified he did not know drugs were in the vehicle, he was driving his sister's vehicle, and other family members also drove the vehicle. According to appellant, there were three other people "kinda of living out the van." Appellant testified that had he known drugs were in the vehicle, he would not have given the officers consent to search the vehicle. Appellant testified he did not see a red bag or glass pipe while he drove the vehicle, and the officer lied when the officer said he could see the red bag in plain view while standing outside the vehicle. It was the trial court's role, as the fact finder in this case, to reconcile any conflicts in the evidence and judge the witnesses' credibility. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003); Lee v. State, 952 S.W.2d 894, 897 (Tex. App.-Dallas 1997, no pet.) (en banc). Viewing the evidence under the proper standard, we conclude a rational trier of fact could find beyond a reasonable doubt that appellant knowingly possessed the methamphetamine. Thus, the evidence is sufficient to support appellant's possession conviction. See Brooks, 323 S.W. 3d at 895; Evans, 202 S.W.3d 158 at 166. We overrule appellant's first point of error. Abuse of Discretion
In his second through fifth points of error, appellant contends the trial court abused its discretion by adjudicating his guilt and revoking his community supervision in two cases based upon allegations he failed to pay costs, fees, fines, and failed to participate in continuum care. Appellant asserts that because the deferred probation order did not require him to pay the entire amounts by the date a motion to adjudicate was filed, and there is no evidence that he did not participate in the continuum care program, the trial court abused its discretion in finding those allegations true. Appellant also argues the State failed to establish that he was able to pay. In his sixth point of error, appellant contends the trial court abused its discretion in cause no. 05-10-01015-CR by adjudicating his guilt and revoking his community supervision because the State had not filed a motion to adjudicate at the time of the hearing. Appellant argues the State filed its motion to adjudicate after he was already adjudicated. The State responds that appellant had notice of the motion and was not harmed by the cause number being left out of the heading on the motion to adjudicate. Appellate review of an order revoking community supervision is limited to determining whether the trial court abused its discretion. See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). An order revoking community supervision must be supported by a preponderance of the evidence, meaning the greater weight of the credible evidence that would create a reasonable belief that the defendant has violated a condition of probation. Id. at 763-64. A finding of a single violation of community supervision is sufficient to support revocation. See Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980). Thus, in order to prevail, appellant must successfully challenge all the findings that support the revocation order. See Jones v. State, 571 S.W.2d 191, 193-94 (Tex. Crim. App. [Panel Op.] 1978). In cause no. 05-10-01014-CR, the aggravated assault case, the State filed a motion to adjudicate alleging appellant violated the conditions of his community supervision by committing a new offense of possession of methamphetamine and other violations. At a hearing on the motion, the trial judge announced the proceeding would be a "combination trial and revocation hearing," and he called the case numbers in the aggravated assault, retaliation, and possession of methamphetamine cases. Appellant orally stipulated that he was the same person placed on deferred community supervision in the aggravated assault and retaliation cases, and that he received, read, and understood the allegations in the State's motion to adjudicate. After hearing testimony from several witnesses, including appellant, the trial court found appellant guilty of the new offense of possession of methamphetamine and found the allegations in the State's motion true. Although the State filed a motion to adjudicate in the retaliation case eleven days after appellant was adjudicated guilty and the sentence imposed, the record shows the trial court conducted the revocation hearing on both cases contemporaneously with the trial in the possession of methamphetamine case. Appellant did not object to the lack of notice in the one case at the time of the hearing. See Tex. R. App. P. 33.1(a); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.) (for error to be preserved for appeal, the record must show appellant made a timely request, objection, or motion). Thus, appellant has not preserved his issue for our review. Moreover, we have already found the evidence sufficient to support appellant's conviction for the new offense of possession of methamphetamine. Because the evidence is sufficient to prove appellant committed a new offense, the trial court did not abuse its discretion in revoking appellant's community supervision. See Rickels, 202 S.W.3d at 763-64; Sanchez, 603 S.W.2d at 871. We overrule appellant's second, third, fourth, fifth, and sixth points of error. Modify Judgment
Appellant requests that we modify the trial court's judgment in cause no. 05-10-00968-CR to show there was no plea agreement and no open plea because he entered a not guilty plea before the court. The State agrees to the modification, and further asks us to modify the judgments adjudicating guilt to show there was no plea agreement and no open plea. After reviewing the record, we agree that appellant pleaded not true to the allegations in the State's motion to adjudicate and not guilty to the indictment in the possession of methamphetamine case. We sustain appellant's seventh point of error and the State's cross-point. We modify the judgments adjudicating guilt and the judgment in the drug case to show the terms of the plea bargain as "none." See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). Conclusion
We affirm the trial court's judgments as modified.