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Opinion filed September 25, 2008
In The
Eleventh Court of Appeals
__________
No. 11-07-00354-CR
__________
IRA JAMES BANKS, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR18750
M E M O R A N D U M O P I N I O N
The jury convicted Ira James Banks of possession of cocaine. The trial court found the enhancement allegations to be true and assessed his punishment at confinement for sixty years. We affirm.
In his sole issue, appellant argues that the evidence is factually insufficient to support his conviction. Specifically, appellant contends that testimony connecting him with the cocaine recovered on the ground is contradictory and, therefore, factually insufficient.
To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.
Brownwood Police Officers James Fuller and Patrick E. Sloan were in pursuit of a robbery suspect at 1:55 a.m. The officers were in an area of known drug-related activity and entered the backyard of an abandoned house. The house was used for drug trafficking and was also used by homeless people. The backdoor was missing. Officer Fuller was in front and shined his flashlight at a figure at the back of the house. Appellant said, AHey, man, what do you want.@ Officer Fuller realized that appellant thought they were there to buy drugs and told appellant to come forward with his hands in the air. Appellant was wearing a sweatshirt with pockets across the front. Appellant put one hand in the air but put the other in his sweatshirt pocket.
Officer Fuller yelled for appellant to put both of his hands on the back wall of the house. Officer Fuller saw a knife and a pair of binoculars in appellant=s free hand. When Officer Fuller yelled that appellant had a knife, Officer Sloan holstered his weapon and used both of his hands to restrain appellant against the wall. Appellant still had one hand in his sweatshirt pocket. As Officer Sloan grabbed appellant=s hand that was in his pocket, appellant moved his hand. Officer Fuller saw a small, dark object leave appellant=s hand. He saw the trajectory of the object. Appellant also looked down at where the object landed. Officer Sloan did not see anything leave appellant=s hand; however, he did hear a Alight plunking sound@ and looked down briefly.
The officers searched appellant and found a crack pipe in the pocket of his pants. After appellant was secured, the officers returned to where appellant had been standing and found a small container wrapped in black electrical tape. The container matched the object that Officer Fuller saw appellant throw, and Officer Fuller testified that, in his mind, Ait was the object@ appellant threw. The only other dark objects in that area were one or two beer bottles. The container held ten to fifteen white chunks of crack cocaine.
At trial, both officers testified that appellant kept his right hand in his sweatshirt pocket. Officer Sloan testified on cross-examination that, in his report he made the night of the offense, he wrote appellant had his left hand in his pocket. Appellant argues that this discrepancy between which hand he had in his pocket and Officer Fuller=s testimony that he had Aa fair degree of certainty@ that the container of crack cocaine was what appellant had had in his hand shows that the evidence is factually insufficient. We disagree.
The appellate court reviews the factfinder=s weighing of the evidence and cannot substitute its judgment for that of the factfinder. Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 133. Due deference must be given to the factfinder=s determination, particularly concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d at 10-11; Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996). The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses= testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). This court has the authority to disagree with the factfinder=s determination Aonly when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.@ Johnson, 23 S.W.3d at 9.
When all of the evidence is viewed in a neutral light, a rational jury could have concluded that appellant threw the container of crack cocaine during his struggle with the officers. The object matched the object Officer Fuller saw appellant throw, and it was recovered from the place where Officer Fuller saw the object land. The record does not clearly indicate that the jury=s resolution of which hand appellant kept in his pocket resulted in a manifest injustice. Therefore, we find that the evidence supporting the verdict is not so weak that the verdict is clearly wrong and manifestly unjust and that the verdict is not against the great weight and preponderance of the conflicting evidence. The sole issue is overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
September 25, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.