Opinion
NO. 02-15-00061-CR
04-21-2016
SCOTT WAYNE BURDINE APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 271ST DISTRICT COURT OF WISE COUNTY
TRIAL COURT NO. CR17863 MEMORANDUM OPINION
A jury convicted Appellant Scott Wayne Burdine of possession of between 4 and 200 grams of methamphetamine, and the trial court sentenced him to twenty years' confinement. In a single issue, Burdine argues that the evidence is insufficient to support his conviction. We will affirm.
Wise County Sheriff's Deputy Brett Yaro was responding to a livestock call at approximately 11:55 p.m. on October 5, 2013, when a vehicle pulled out in front of him. Officer Yaro was traveling at about seventy-five miles per hour in his patrol unit, but the other vehicle accelerated at such a rate of speed that it left him "pretty much in the dust." This attracted Officer Yaro's attention, so he increased his speed to catch up with the vehicle. When the vehicle slowed and turned onto a different road, Officer Yaro activated his overhead lights and noticed that the driver's side window was down and that the driver's arm was out of the window. Officer Yaro had also noticed that the vehicle was moving around within its lane. The vehicle, which was being driven by Burdine, stopped on the shoulder.
Officer Yaro made contact with Burdine, and when he began to ask him some questions, Burdine said that there was no dope in the vehicle and that Officer Yaro could search it if he wanted to. Officer Yaro found Burdine's statement "kind of odd" because he had not asked for permission to search the vehicle. Officer Yaro placed Burdine in his patrol unit and called for assistance from Officer Joshua Manoushagian, a K9 officer.
When Officer Yaro looked inside of Burdine's vehicle, he noticed an open duffle bag located behind the driver's seat with drug paraphernalia inside of it. The bag contained a propane torch, butane, syringes, a glass bong, a glass stem with a rubber extender, silver metallic scales, and some masculine-type products. White- or brown-colored residue was on the inside of both the bong and the pipe.
While searching Burdine's vehicle, Officer Yaro suspected that Burdine may have discarded drugs from the vehicle, so he asked Officer Manoushagian to search along the side of the road. About 100 feet from where Burdine's vehicle was stopped, Officer Manoushagian discovered a blue nylon bag and a small container wrapped in black electrical tape laying on the side of the road in close proximity to each other. The blue nylon bag contained a cut straw, q-tips, pills, a glass pipe, and a bag containing a leafy substance. Inside of the container that was wrapped in electrical tape were a number of small plastic bags that contained a white crystal substance that was later determined to be methamphetamine. It was a damp, dewy night, but neither item had accumulated any moisture on its surface. Officer Yaro arrested Burdine, who had two identification cards and $660 on his person.
In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015).
To prove unlawful possession of a controlled substance, the State must prove (1) that the accused exercised control, management, or care over the substance and (2) that the accused knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005); see Tex. Health & Safety Code Ann. § 481.115(a) (West 2010); Tex. Penal Code Ann. § 1.07(a)(39) (West Supp. 2015) (defining "Possession"). Mere presence alone is insufficient to establish possession. Oaks v. State, 642 S.W.2d 174, 177 (Tex. Crim. App. 1982). However, when the contraband is not found on the accused's person or is not in the exclusive possession of the accused, independent facts and circumstances may link the accused to the contraband such that it may be justifiably concluded that the accused knowingly possessed the contraband. Evans v. State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006).
Relevant factors connecting the defendant to possession of an illegal substance include (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 162 n.12; Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.). These factors are non-exclusive, and it is not the number of links but the "logical force" of all the evidence that supports a finding of guilt. Olivarez, 171 S.W.3d at 291-92.
The logical force of the evidence viewed in the light most favorable to the verdict sufficiently connects Burdine to the contraband. See Evans, 202 S.W.3d at 161-62. Officer Manoushagian located the contraband on the side of the road where Burdine had just driven his vehicle. Officer Yaro saw Burdine's window down and his arm out of the window when he negotiated the turn just before pulling over. Burdine had an open duffle bag in his vehicle that contained drug paraphernalia, and he offered to let Officer Yaro search the vehicle before Officer Yaro made any request to do so. Officer Manoushagian testified that Burdine's actions were not necessarily uncommon—"In situations where there is a more serious drug, a lot of times users will give up something like a small amount of drugs or paraphernalia in an effort to distract [the officer] from a larger amount, maybe a hidden amount or a discarded amount." Officer Manoushagian explained that it was dewy that night but that the items found on the side of the road had not accumulated any moisture "beads." Burdine had two unexpired identification cards and over $600 cash on his person. No other cars drove through the intersection while the almost one-and-a-half-hour investigation proceeded.
Burdine makes a number of observations about the evidence and argues that it must therefore be insufficient to support his conviction, but it is not:
•Burdine argues that Officer Yaro's initial belief that he was attempting to evade Officer Yaro proved unfounded. The logical force of the evidence set out above is no weaker if Burdine was not attempting to evade Officer Yaro when he pulled out onto the road and accelerated.
•Burdine argues that there is no evidence that he made any furtive movements inside of the vehicle, but Officer Yaro conceded as much. He clarified that he had seen the vehicle moving around within its lane before negotiating the turn.
•Burdine argues that Officer Yaro did not know if Burdine's window was down during the pursuit, but Officer Yaro testified unequivocally that he saw Burdine's arm out of the window when Burdine slowed and turned just before pulling over and that the window "remained down" when he made contact with Burdine.
•Burdine argues that his invitation to search his vehicle can be explained by another reason, but this disregards the standard of review's requirement that we consider only the evidence and inferences in the light most favorable to the jury's verdict.
•Burdine argues that the duffle bag found in the truck could have belonged to someone else, but the jury could have rationally concluded that it belonged to Burdine because he was the only person in the vehicle.
•Burdine points out that the residue on the bong found in the duffle bag was not identified, but that is inconsequential to our possession analysis. It suffices that the items were the same type of paraphernalia that is commonly used to smoke the methamphetamine that was found on the side of the road, as both Officers Yaro and Manoushagian testified.
•Burdine contends that the $660 is no evidence of possession, but the jury could have concluded that the relatively large sum of money was one factor to weigh in determining the possession inquiry. See Olivarez, 171 S.W.3d at 291-92.
•Burdine argues that the two items found on the side of the road could have been dropped instead of thrown, but the jury could have used its common sense to infer that Burdine had discarded the items from his vehicle as he drove by the location where they were ultimately found.
•Burdine argues that Officer Manoushagian "changed his testimony three times" about the moisture, or lack thereof, on the two items found on the side of the road, but he did not. Officer Manoushagian clarified that the surface of the two objects did not have any moisture "beads" that commonly accumulate on objects when it is dewy and damp outside, as it was that night. Further, this was but one factor that the jury could have considered in determining whether Burdine possessed the contraband.
•Burdine argues that no one witnessed him throw anything from the window, but that fact did not prohibit the jury from considering the remainder of the evidence that supports its verdict. Further, one of the items was covered in black electrical tape, making it more difficult to see at nighttime.
The evidence is sufficient to support Burdine's conviction for possession of between 4 and 200 grams of methamphetamine. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. We overrule his sole issue and affirm the trial court's judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE PANEL: DAUPHINOT, GARDNER, and MEIER, JJ. DAUPHINOT, J., concurs without opinion. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: April 21, 2016
See Tex. R. App. P. 47.4.