In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-15-00133-CR
BRANDON BERNARD BATTLE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 220th District Court
Bosque County, Texas
Trial Court No. CR 14972
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Brandon Bernard Battle, charged with possession of at least one gram but less than four
grams of methamphetamine, waived a jury and elected to present his entire case to the trial court.
Found guilty, Battle entered a plea of “true” to the enhancement allegations, which raised his
sentence to that of an habitual offender, and he was sentenced to twenty-five years’ imprisonment.1
Battle has filed an appeal, raising three issues for determination. He alleges that the
evidence is legally insufficient to support his conviction, that the evidence is factually insufficient
to support his conviction, and that the judgment of conviction erroneously reflects that Battle was
convicted of a first degree felony and not the third degree felony of which he was actually
convicted. We affirm Battle’s conviction.
I. Facts of the Case
Misti Millican Black2 was a passenger in an automobile that was involved in a collision
with another car. Apparently, Black (who had an outstanding arrest warrant on theft by check
charges) fled the scene and was being sought by the Clifton, Texas, Police Department when she
turned herself in. She explained that immediately prior to the collision, she had purchased illicit
drugs and did not want to be found with them on her person. Clifton Police Chief Trace Hendricks
began an exchange with Black and convinced her to assist the police department in drug
investigations in exchange for leniency on a charge of “evading arrest or running from the police.”
1
Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are unaware
of any conflict between precedent of the Tenth Court of Appeals and that of this Court on any relevant issue. See
TEX. R. APP. P. 41.3
2
Throughout the record, the parties often make reference to this person as “Misti Millican.”
2
Black and some peace officers went to Black’s apartment, and Black proceeded to use her
cell phone to call two people whom she professed to know were in the business of selling drugs.
In these phone conversations, she requested that each of the call recipients deliver drugs to her
apartment. Among the two Black called was Battle, whom Black indicated she had known for
about fifteen years and from whom she said she had previously purchased drugs. Black first
communicated with Battle by text message and then spoke with him by telephone, asking him to
bring her a “teener” (1/16th of an ounce) of drugs. Sheriff’s Deputy Darren Glenn (at that time, a
policeman with the Clifton police force) and two other peace officers listened in on the call, and
Glenn indicated that he recognized Battle’s voice. Black, Glenn, and the other two peace officers
testified that during this call, Battle said that he needed to first put on some clothes and would then
bring the requested methamphetamine.
Black also called a second person, Kevin Williams, requesting the delivery of
methamphetamine. As things developed, Williams appeared at Black’s apartment before Battle
and was immediately taken into custody, handcuffed, and taken to be held in the restroom of the
apartment so his apprehension by the police would not be evident if Battle appeared.
Battle then arrived and accompanied Black into the apartment, Black saying that she
needed to get the $170.00 purchase price of the methamphetamine from her purse. As the two
were standing in the kitchen, Glenn stepped into the hallway and yelled out his identity as a
member of law enforcement and directed Battle not to move. In the words of Black, Battle
immediately “proceeded to turn around, get close to the wall by where the television was and -- so
he could throw his body that way behind the television.” Although Black (nor any of the three
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peace officers present) did not see narcotics in Battle’s hand, she saw his hand go behind the
television set. Black indicated that she had never placed methamphetamine in that location, not
having any reason to do so. The police found a package of methamphetamine behind the television
set; it is that methamphetamine that is the basis of the proceedings against Battle.
Glenn testified that he and three other law enforcement officers had gone to Black’s
apartment to participate in the methamphetamine purchase sting operation. Glenn overheard
Black’s telephone conversation with Battle and read the cell phone text messages that they
exchanged, and he recognized Battle’s voice. Glenn went on to say that before Battle or Williams
arrived, he had made a thorough search of Black’s apartment in the area where the illicit drugs
were eventually located and had found no methamphetamine there. He said that at the time Battle
was first apprehended, he was carrying the methamphetamine in his shirt. After Battle arrived in
the apartment, Glenn and one of the other law enforcement officers tackled Battle and threw him
to the floor beside the television set after a short struggle. Two baggies of methamphetamine were
found behind the television set in the area where Battle was subdued. Glenn was certain that the
methamphetamine had been carried by Battle when he entered Black’s apartment.
The other law enforcement officers present (Clint Pullin and Casey Wilks, both with the
Bosque County Sheriff’s Office) each testified fairly substantially in accord with the testimony of
Glenn. A video recording of Battle’s take-down and arrest was played for the trial court.
Black admitted that she later posted a Facebook message that the methamphetamine found
in her apartment actually belonged to her and not to Battle. However, she testified that this was
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not the truth, maintaining that she had made that posting only because she was afraid of Battle,
whom she said had threatened her life.
Battle testified in his own defense, indicating that he believed that Black’s telephone call
to him was in the vein of an invitation for him to have sex with her and that he came to her
apartment solely to engage in sex, not for the purpose of selling her drugs. During his testimony,
Battle acknowledged the veracity of the criminal convictions used to enhance his punishment.
II. Sufficiency of the Evidence
In his brief, Battle raises points as to both the factual sufficiency and the legal sufficiency
of the evidence to sustain his conviction.
For well over a decade, courts in Texas were mandated by Clewis v. State, 922 S.W.2d 126
(Tex. Crim. App. 1996), to review the quality and quantity of evidence to determine whether it
was factually sufficient as well as legally sufficient to sustain a conviction.
Under a factual sufficiency standard, we could find the evidence insufficient in two ways:
(1) that the evidence supporting the conviction was “too weak” to support the fact-finder’s verdict,
or (2) considering conflicting evidence, the fact-finder’s verdict was against the great weight and
preponderance of the evidence. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009).
Under a legal sufficiency review standard, we review the sufficiency of the evidence under
the standard set forth in Jackson v. Virginia, 443 U.S. 307, 318–19 (1979). Under that standard,
it is the duty of the reviewing court to view the evidence in the light most favorable to the verdict
to determine whether any rational trier of fact could have found the elements of the offense beyond
a reasonable doubt. Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).
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Battle acknowledges that the Texas Court of Criminal Appeals disemboweled the concept
of the ability of appellate courts to conduct a factual sufficiency review on the basis that there had
become no meaningful distinction between the legal sufficiency standard of review and the factual-
sufficiency standard, blurring the two so much that those two standards had become
indistinguishable. Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). However, Battle
points out that the opinion in Brooks was only a plurality opinion (not a majority one) and that it
was subject to a great deal of legal criticism. From this, and from the fact that the Court of Criminal
Appeals has granted review of a case dealing with this issue, Battle maintains that the issue of the
viability of the factual sufficiency standard of review remains unsettled. See Walker v. State, No.
PD-1429-14 (Tex. Crim. App. Oct. 14, 2015). However, Battle’s contention does not take into
account a footnote in a 2011 case appealed from the Tenth Court of Appeals in which the Court of
Criminal Appeals unanimously directed that “[o]n remand, the court of appeals need not address
the appellant’s factual sufficiency claim, in light of Brooks v. State, 323 S.W.3d 893 (Tex. Crim.
App. 2010).” Archie v. State, 340 S.W.3d 734, 742 n.30 (Tex. Crim. App. 2011). The unanimity
of that opinion indicates that the Court of Criminal Appeals has no intention of reinstating the
factual sufficiency standard, and we need not parse the same evidence under the factual sufficiency
standard. Therefore, we overrule Battle’s contention that the evidence is not factually sufficient
to sustain the judgment of conviction.
Returning to a review of the legal sufficiency of the evidence, to identify the essential
elements of the crime, we look to the hypothetically correct jury charge of the case. See Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (holding that sufficiency of the evidence
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should be measured by the elements of the offense as defined by the hypothetically correct jury
charge for the case). A hypothetically correct jury charge is “one that accurately sets out the law,
is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or
unnecessarily restrict the State’s theories of liability, and adequately describes the particular
offense for which the defendant was tried.” Id.
Under a hypothetically correct jury charge analysis, Battle committed a third degree felony
if it is proven that (1) Battle (2) knowingly or intentionally (3) possessed at least one gram but less
than four grams of methamphetamine. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c)
(West 2010). Here, not only is the sufficiency of the underlying charge measured by the standard
of the hypothetically correct jury charge, the elements of the enhancements to the punishment are
subjected to the same test.
The evidence that Battle committed the offense of which he was charged is set out above.
To summarize that evidence, it was shown that (1) Black and three peace officers heard a telephone
conversation and read a text message exchange between Black and Battle wherein Black requested
Battle to bring some quantity of methamphetamine to her apartment so she could purchase it;
(2) within minutes of the communications between Battle and Black, Battle appeared at Black’s
apartment; (3) the peace officers and Black all testified that the peace officers had made a cursory
check of Black’s apartment before Battle arrived and found no illicit drugs in the apartment;
(4) Black testified that she had no illicit drugs in the apartment when the call was made; (5) Battle
was tackled by peace officers shortly after he arrived in Black’s apartment and, during the ensuing
struggle, was in the area around Black’s television set; (6) Black saw Battle’s hand go behind the
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television set during his tussle with peace officers; and (7) after the struggle between peace officers
and Battle concluded, plastic baggies of methamphetamine were located on the floor behind the
television set, between it and a piece of furniture, this being within Battle’s reach during his
struggle with peace officers.
There is no direct evidence that the methamphetamine was on Battle’s person. All of the
evidence is circumstantial. The lack of direct evidence, however, does not damage the ability of
the trier of fact to make a finding against Battle.
Because fact[-]finders are permitted to make reasonable inferences, both direct and
circumstantial evidence are probative to a case and it is possible for circumstantial
evidence alone to be enough to establish guilt. Hooper v. State, 214 S.W.3d 9, 14–
15 (Tex. Crim. App. 2007); Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App.
2004) (citing Miles v. State, 165 S.W. 567, 570 (Tex. Crim. App. 1914)). The
standard of review for sufficiency of the evidence is the same whether the evidence
is direct or circumstantial. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.
2012). Not every fact presented must directly indicate the defendant is guilty, but
the cumulative force of the evidence can be sufficient to support a finding of guilt.
Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987).
Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015).
Although there was no direct evidence that Battle actually intentionally possessed the
methamphetamine, which was the basis of the criminal charge against him, the trial court, as the
finder of fact, could rely on the circumstantial evidence adduced to have concluded beyond a
reasonable doubt that Battle possessed the methamphetamine mentioned in his indictment.
Battle did not contest the existence of the prior convictions, which were the basis of the
enhancements of the penalty with which he was assessed.
We reject Battle’s claim that the evidence was legally insufficient to support his conviction.
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III. Error in Recitation in Judgment of Conviction?
Battle pointed out that his judgment of conviction indicated that he had been convicted of
a first degree felony, but although the punishment was enhanced due to previous convictions, the
crime of which he was convicted (possession of at least one gram but less than four grams of
methamphetamine) is only a third degree felony.
The State concurred with this point, and we have been supplied with a nunc pro tunc
judgment of conviction dated April 1, 2016, indicating that Battle was convicted of a third degree
felony and not the first degree felony reflected in the original judgment.
Accordingly, Battle’s third point of error has become moot, and we overrule it.
We affirm the conviction.
Bailey C. Moseley
Justice
Date Submitted: March 4, 2016
Date Decided: April 27, 2016
Do Not Publish
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