COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-133-CR
MICHAEL SCOTT NELSON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Introduction
Arlington police arrested appellant Michael Scott Nelson after finding
methamphetamine and a semi-automatic pistol in a truck that he was standing
next to, and “fumbling” in, late at night in the parking lot of a closed business.
A jury later convicted appellant of possession of four or more, but less than two
hundred, grams of methamphetamine with the intent to deliver and also found
1
… See Tex. R. App. P. 47.4.
that appellant had used a deadly weapon in the commission of the offense. In
accordance with the jury’s assessment, the trial court sentenced appellant to
fifty-five years’ confinement. In a single point, appellant challenges the legal
and factual sufficiency of the evidence to support his conviction and the deadly
weapon finding. We affirm.
Standard of Review - Legal Sufficiency
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all the evidence in the light most favorable to the prosecution in order
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); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
Standard of Review - Factual Sufficiency
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129
S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.
2006). We then ask whether the evidence supporting the conviction, although
legally sufficient, is nevertheless so weak that the factfinder’s determination is
clearly wrong and manifestly unjust or whether conflicting evidence so greatly
2
outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704
(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417. To reverse
under the second ground, we must determine, with some objective basis in the
record, that the great weight and preponderance of all the evidence, though
legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to
overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly
wrong or manifestly unjust simply because we would have decided differently
than the jury or because we disagree with the jury’s resolution of a conflict in
the evidence. Id. We may not simply substitute our judgment for the
factfinder’s. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain
v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record
clearly reveals that a different result is appropriate, we must defer to the jury’s
determination of the weight to be given contradictory testimonial evidence
because resolution of the conflict “often turns on an evaluation of credibility
and demeanor, and those jurors were in attendance when the testimony was
delivered.” Johnson, 23 S.W.3d at 8. Thus, unless we conclude that it is
3
necessary to correct manifest injustice, we must give due deference to the
factfinder’s determinations, “particularly those determinations concerning the
weight and credibility of the evidence.” Id. at 9. Our deference in this regard
safeguards the defendant’s right to a trial by jury. Lancon, 253 S.W.3d at 704.
An opinion addressing factual sufficiency must include a discussion of the
most important and relevant evidence that supports the appellant’s complaint
on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
Moreover, an opinion reversing and remanding on factual insufficiency grounds
must detail all the evidence and clearly state why the finding in question is
factually insufficient and under which ground. Goodman v. State, 66 S.W.3d
283, 287 (Tex. Crim. App. 2001); Johnson, 23 S.W.3d at 7.
Applicable Facts
Officer Paul Shackelford of the Arlington Police Department testified that
on January 19, 2007 at around 1:53 a.m., he and Officer Jason Rash were
riding on patrol in the North District of Arlington. As Officer Shackelford turned
onto Centennial Road, he noticed a truck in the parking lot of Cavender’s Boots 2
2
… Officer Shackelford testified that the particular area of the North
District in which the Cavender’s is located is “a specific area that [the officers]
had been targeting due to a lot of illegal activity with subjects involved in guns
and narcotics.” He also explained on cross-examination that there was an
eight-liner game room next to the Cavender’s and that “the clientele that
frequented [the] game room dealt with narcotics and weapons.”
4
that had both its doors open. The business was not open at that time,
however. Officer Shackelford noticed a man, whom he identified at trial as
appellant, standing by the wheel well part of the truck on the passenger side;
appellant was “leaning over the bed of the truck moving things around on the
interior of the bed.” Officer Shackelford testified that based on the “early
morning hours, the secluded parking lot, [and] the business not being open,” he
found appellant’s behavior suspicious. 3
Officer Shackelford noticed that after appellant saw him and Officer Rash
in the patrol car, he “made several hurried or furtive movements inside the truck
as if he was trying to conceal something inside the bed of the truck.”
According to Officer Shackelford, this increased his suspicion, so the officers
pulled into the parking lot and identified themselves to appellant as police
officers. They performed a Terry frisk on appellant and checked to see if he
had any outstanding warrants. After discovering that appellant had an
outstanding warrant,4 Officer Shackelford handcuffed him and placed him under
arrest.
3
… Officer Shackelford testified on cross-examination that the parking lot
is in a commercial area near the access road (Watson) to Highway 360; thus,
he agreed that the lot is not secluded in the sense that it is located behind
another building. Officer Shackelford also agreed that there is a fair amount of
traffic on 360 and Watson at night.
4
… The State entered the warrant into evidence.
5
Officer Shackelford searched the interior of the truck and found a loaded
magazine for a semi-automatic pistol on the passenger side. He also found a
cell phone. He then searched the truck bed and, under a spare tire in the center
rear part where appellant had been reaching earlier,5 found four plastic baggies
with “a white crystal-like substance in each” and a Crown Royal bag. The
substance in the baggies field tested positive for crystal methamphetamine.
Inside the Crown Royal bag was a nine millimeter pistol of “such a type that it
could hold” the magazine Officer Shackelford had found in the truck’s interior.
Officer Shackelford testified that, based on his training and experience, (1) he
believed the baggies held a “large amount” of crystal methamphetamine and (2)
such an amount showed an intent to deliver.
While the officers were with appellant in the parking lot, appellant’s cell
phone rang and Officer Shackelford answered it. The caller ID showed the
name “Marcus,” and the caller identified himself as Marcus. Officer
Shackelford did not identify himself as a police officer; instead, he asked
Marcus where he was and where he would like to meet. Officer Shackelford
suggested a meeting place near the arrest scene and asked Marcus if he was
ready to pick up the “stuff”; he understood from the conversation with Marcus
5
… Officer Shackelford testified that this area was within appellant’s
reach when the officers first saw him.
6
that it was methamphetamine. After he ended the conversation, the phone
rang a second time. Officer Shackelford answered it, spoke to Marcus again,
and changed the meeting place to a different location. He then contacted some
other officers to meet Marcus. There is no evidence regarding what happened
with the other officers and Marcus.
Officer Rash testified that when he and Officer Shackelford pulled into the
parking lot, appellant “backed up [from the truck] and then started moving
towards the front right passenger area of the door that was open.” He said he
checked appellant’s driver’s license for warrants, notified Officer Shackelford
of the outstanding warrant, and helped Officer Shackelford place appellant in
the police car after he was placed under arrest. He then started working on
booking paperwork while Officer Shackelford searched the truck. Officer
Shackelford called Officer Rash to the truck to look at the various items he
found as he found them. According to Officer Rash, the amount of
methamphetamine in the truck, in his training and experience, “was much
greater than personal use” and was consistent with the intent to deliver.
Michelle O’Neal, a senior forensic chemist with the Tarrant County
Medical Examiner’s office, testified that the substance in the baggies tested to
be methamphetamine weighing a total of 111.87 grams, including adulterants
and dilutants.
7
Appellant testified that the truck in which the drugs were found was his
wife’s truck and that he had loaned it to a friend earlier that day. That night
and the next morning, he was at a twenty-four hour game room that is close
to the Cavender’s; because the parking lot of the game room was full, his friend
parked the truck in the Cavender’s parking lot. When the police arrived, he was
“standing out there talking to about five people . . . sitting in the grass between
the two parking lots and the truck.” Appellant said he walked over to the truck
when the police arrived because
there was a police car coming up. And I wasn’t going to turn and
run the other way. So I just felt--I had no reason to not feel
comfortable to walk up to that truck. It’s my wife’s truck. So I
could have turned and went the other way, yeah. But I had no
reason to.
Appellant testified that he opened the doors because he was going to send his
friend back to his house with the truck. According to appellant, he was not
leaning into the truck; he was just standing there. He did not see the loaded
magazine, nor did he touch anything in the truck bed.
Appellant testified that the officers grabbed him and made him stand in
front of the police car, telling him that the video was running.6 He said one of
the officers was holding him and the other kept running around the truck with
6
… Officer Rash testified that there was no video equipment in the car.
8
a flashlight, leaning in, and looking in the tool box and the truck bed.
According to appellant, the officer was getting mad and finally asked for
consent to search the truck, which appellant refused. He testified that the
police officers then locked him in the police car and searched the truck for
twenty minutes, after which they arrested him.
Appellant denied possessing the gun and drugs; he also testified that he
never intended to sell any drugs that night.
On cross-examination, appellant testified that he did have a friend named
Marcus; however, he denied that he was going to sell drugs to Marcus that
night. He also denied owning the cell phone. He admitted that he had
previously written in a letter that he was trying to help Marcus obtain a 16th
of an ounce of ice, but he explained at trial that
[h]e [Marcus] was trying to get a 16th of Ice and he was
asking me if I knew anyone to get it from or whatnot. So I was
actually sitting there waiting for a ride from him. So that’s what
we were waiting for. If I had all this we wouldn’t have been
waiting. So why would we be waiting - - something that I had a
large amount of, why are we waiting for something? I mean I was
there with roughly ten people and that’s what he was waiting for.
But I wasn’t going to sell him anything, no.
According to appellant, he was waiting outside with Marcus because Marcus
wanted to buy some ice, and appellant did not have any, nor did he have any
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money to buy some with; thus, he and Marcus were “sitting there waiting” to
get some before they went to go shoot pool.7
The State recalled Officer Shackelford, who testified that no one was
with appellant when the officers saw him and the truck, that appellant was
fumbling around in the bed of the pickup truck when the officers saw him, that
they never asked for permission to search the truck, that Marcus was not at the
scene, and that the police report had not been changed.
Applicable Law
To prove unlawful possession of a controlled substance, the State must
prove that the accused exercised control, management, or care over the
substance and that he knew the matter possessed was contraband. Tex.
Health & Safety Code Ann. § 481.002(38) (Vernon Supp. 2008); Joseph v.
State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995); Tucker v. State, 183
S.W.3d 501, 510 (Tex. App.—Fort Worth 2005, no pet.). The evidence “must
establish, to the requisite level of confidence, that the accused’s connection
with the drug was more than just fortuitous. This is the whole of the so-called
7
… Appellant claimed that Marcus’s name was originally listed in the
police report as being at the scene but that by the time of trial, it was no longer
shown in the report.
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‘affirmative links’ rule.” Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim.
App. 1995); Tucker, 183 S.W.3d at 510.
The “affirmative links rule” is designed to protect the innocent
bystander from conviction based solely upon his fortuitous
proximity to someone else’s drugs. This rule simply restates the
common-sense notion that a person--such as a father, son, spouse,
roommate, or friend--may jointly possess property like a house but
not necessarily jointly possess the contraband found in that house.
Thus, we have formulated the rule that “[w]hen the accused is not
in exclusive possession of the place where the substance is found,
it cannot be concluded that the accused had knowledge of and
control over the contraband unless there are additional independent
facts and circumstances which affirmatively link the accused to the
contraband.”
Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) (footnotes
omitted); Tucker, 183 S.W.3d at 510; McQuarters v. State, 58 S.W.3d 250,
259 (Tex. App.—Fort Worth 2001, pet. ref’d).
Nonexclusive factors we may consider include (1) the defendant’s
presence when a search warrant is executed, (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 the
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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 accused was the driver of the automobile in which
the contraband was found, (14) whether the defendant was found with a large
amount of cash, and (15) whether the conduct of the accused indicated a
consciousness of guilt. Tucker, 183 S.W.3d at 510; McQuarters, 58 S.W.3d
at 259.
“‘[U]sed . . . a deadly weapon’ during the commission of the offense
means that the deadly weapon was employed or utilized in order to achieve its
purpose.” Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989);
Sanchez v. State, 243 S.W.3d 57, 72 (Tex. App.—Houston [1st Dist.] 2007,
pet. ref’d). A deadly weapon may be “used” even if it is merely possessed, if
that possession facilitates the associated felony offense. Davis v. State, Nos.
05-06-01613–20-CR, 2008 WL 542460, at *5 (Tex. App.—Dallas Feb. 29,
2008, pets. ref’d); Smith v. State, 176 S.W.3d 907, 919 (Tex. App.—Dallas
2005, pets. ref’d). Thus, in determining the sufficiency of the evidence to
support a finding that the defendant used a deadly weapon 8 during the
8
… A firearm is a deadly weapon per se. Tex. Penal Code Ann. §
1.07(a)(17)(A) (Vernon Supp. 2008); Ex parte Huskins, 176 S.W.3d 818, 820
12
commission of a felony offense, we must determine “whether a rational trier of
fact could find beyond a reasonable doubt that the mere possession of firearms
facilitated the associated felony.” Gale v. State, 998 S.W.2d 221, 224 (Tex.
Crim. App. 1999); Smith, 176 S.W.3d at 918.
Analysis
According to appellant, there is not a sufficient nexus linking him to either
the drugs or the gun to show that he intentionally and knowingly possessed
either, nor is there any evidence that he used or exhibited the gun in any way.9
Appellant thus challenges the legal and factual sufficiency of the evidence to
show “(1) that he intentionally or knowingly possessed a controlled substance,
(2) that he intentionally or knowingly used or exhibited a deadly weapon in
connection with that offense, and (3) that he possessed any controlled
substance with the intent to deliver the same.” 10 Specifically, appellant points
to the following as showing the legal and factual insufficiency of the evidence:
(Tex. Crim. App. 2005).
9
… In his argument, appellant also challenges the reasonableness of the
officers’ initial detention but does not raise it as a separate issue in his brief, nor
did he raise the issue at trial.
10
… Appellant does not challenge the intent to deliver evidence other than
in connection with his contention that there is insufficient evidence to show he
intentionally and knowingly possessed the methamphetamine. Thus, we
confine our review to that evidence.
13
No attempt was made to determine the ownership of the
truck herein, beyond the Appellant’s admission that it belonged to
his wife. No keys were found on the Appellant’s person and with
both its doors and truck bed open to the public anyone could have
put something into the truck at any time without Appellant
knowing it. No ownership of the firearm or finger prints were
offered to connect any of the contraband (drugs, gun or
ammunition) to the Appellant. The Appellant made no incriminatory
statements to the police and did not attempt to flee or elude them.
No money, drugs, weapons, ammunition, or ‘dope notes’ were
found on the Appellant’s person. There is no evidence that the
officers even saw the Appellant touch the spare tire in this case
and thus no evidence of knowledge, intent or possession. There is
no evidence to show that the Appellant owned, touched or had any
connection with the cell phone found in the truck’s cab. There is
no showing that the ‘Marcus’ who called on the phone was indeed
calling in fact to speak to this Appellant. There is no evidence to
show that the Appellant was intoxicated or high on dope at the
time of this incident. In fact the evidence shows a cooperative
Appellant who produced ID upon request. Being in the vicinity
does not establish possession.
Appellant’s brief at 9–10.
Legal Sufficiency - Intentional and Knowing Possession of Controlled
Substance and Deadly Weapon
Appellant’s argument focuses solely on what was not in evidence rather
than the evidence that was admitted at trial, which is what we must rely upon
in performing both a legal and factual sufficiency review. Here, the jury was
entitled to disbelieve all of appellant’s testimony and believe all of the officers’
testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Schmidt
v. State, 232 S.W.3d 66, 68 (Tex. Crim. App. 2007).
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The officers’ testimony shows that appellant was standing alone next to
the truck, which he apparently had been allowed to drive and possess even
though it belonged to his wife. It was 1:53 a.m., and the business was closed.
Appellant was “fumbling” in the truck bed; when he saw the officers, he “made
several hurried or furtive movements inside the truck as if he was trying to
conceal something inside the bed of the truck.” When the officers pulled up to
the truck, appellant moved toward the open passenger side door. Appellant’s
actions, combined with his circumstances, are evidence of a consciousness of
guilt; a reasonable inference is that he knew—and was trying to conceal—not
only what was in the truck bed (the gun and drugs), but also what was on the
passenger side seat (the loaded magazine). See Simmons v. State, 100 S.W.3d
484, 491–92 (Tex. App.—Texarkana 2003, pet. ref’d) (holding that appellant’s
going to great lengths to conceal bag with drugs inside indicated consciousness
of guilt), cert. denied, 541 U.S. 996 (2004); see also Hooper v. State, 214
S.W.3d 9, 16–17 (Tex. Crim. App. 2007) (holding that in performing a legal
sufficiency review, appellate courts must “determine whether the necessary
inferences are reasonable based upon the combined and cumulative force of all
the evidence when viewed in the light most favorable to the verdict”).
Moreover, Officer Shackelford testified that the drugs and gun were within
appellant’s reach. See Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim.
15
App. 1981); Robinson v. State, 174 S.W.3d 320, 326–27 (Tex.
App.—Houston [1st Dist.] 2005, pet. ref’d).
In addition, the jury was entitled to attach significance to the phone call
from Marcus, particularly in light of the other circumstances under which the
officers found appellant. A reasonable inference from the entire record, viewed
in the light most favorable to the verdict, is that the police interrupted appellant
on his way to a drug deal at which he intended to protect either himself or the
drugs, or to facilitate their sale, by possessing a firearm. Accordingly, we hold
that, based on the appropriate standard of review, the evidence is legally
sufficient to support both appellant’s conviction and the deadly weapon finding.
Factual Sufficiency - Intentional and Knowing Possession of Controlled
Substance and Deadly Weapon
We hold that the evidence is likewise sufficient when viewed according
to the standard of review for factual sufficiency. As with legal sufficiency, we
must review all the evidence actually in the record, without focusing solely on
what is missing, to determine if the evidence is too weak to support the
conviction or whether the contrary evidence is so overwhelming that the
conviction cannot stand. Watson, 204 S.W.3d at 414–15, 417.
Regardless of the actual ownership of the truck, appellant’s right to use
it was not disputed; the jury could have disbelieved his testimony that he
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allowed a friend to use the truck. Even if the jury did believe that part of
appellant’s testimony, it did not have to believe appellant’s claim that he did not
know the drugs were there and that he did not intend to sell them, in light of
the other evidence, particularly the evidence of his guilty knowledge when the
officers arrived at the scene. There was no evidence regarding whether keys
were found or not. There is not affirmative testimony that no keys were found;
we simply do not know whether any were found or not. In addition, the
officers testified that appellant was in the parking lot alone and appeared to be
in control of the truck.
As to the rest of the evidence appellant claims is lacking, the “affirmative
links” factors are nonexclusive, meaning that there need not be evidence of
every one of them to link a defendant to contraband. Isbell v. State, 246
S.W.3d 235, 238 (Tex. App.—Eastland 2007, no pet.) (“No set formula exists
to dictate a finding of affirmative links sufficient to support an inference of
knowing possession of contraband. The number of factors present is not as
important as the logical force or the degree to which the factors, alone or in
combination, tend to affirmatively link the defendant to the contraband.”
(citations omitted)). We are satisfied that, here, based on the appropriate
standard of review, the presence of competent evidence as to but a few of
those factors is sufficiently strong, and the evidence to the contrary not so
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overwhelming, that the evidence is also factually sufficient to support
appellant’s conviction and the deadly weapon finding.
We overrule appellant’s sole point.
Conclusion
Having overruled appellant’s sole point, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: LIVINGSTON, J.; CAYCE, C.J.; and DAUPHINOT, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 26, 2009
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