Stephen Armstrong, Jr. v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00748-CR

Stephen Armstrong, Jr., Appellant

v.

The State of Texas, Appellee

FROM THE 264TH DISTRICT COURT OF BELL COUNTY
NO. 80557, THE HONORABLE PAUL L. LEPAK, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted appellant Stephen Armstrong, Jr., of possession of a controlled

substance, less than one gram, and assessed his sentence at eighteenth months in state jail and a

fine of $750. Tex. Health & Safety Code §§ 481.115(a), (b); Tex. Penal Code § 12.35. In three

issues, Armstrong challenges the legal and factual sufficiency of the evidence supporting his

conviction and complains about error in the jury charge. We will affirm the judgment

of conviction.

BACKGROUND

Officers with the Belton Police Department were called out to the Hilltop Mobile

Home Park on the morning of May 13, 2019, in response to a stabbing incident. The
complainant, Andrea Andersen,1 reported that her ex-boyfriend Armstrong, against whom she

had a protective order, had climbed in through a window of her trailer home, and she had stabbed

him. Officer Richard Spurgeon testified at trial that he searched and photographed the trailer.

During his search, Spurgeon saw a broken phone on the floor of the trailer and found a knife one

to two feet inside the door area; there did not appear to be blood on the knife.

While searching the outside of the trailer, officers noticed a path of footprints on

the grass. Following the footprints, they discovered a black “wind breaker type [sic]” jacket next

to an air conditioning unit underneath a window of the trailer. All of the trailer’s windows were

“off the ground.” It had rained the night before, but although the grass, A/C unit, and side of the

trailer were still wet, the jacket was dry, from which Spurgeon concluded it had not lain there

long. Inside a pocket were a cell phone; lighter; stocking cap; baggie containing a white

crystalline substance that appeared to be methamphetamine; and mail addressed to Armstrong,

including a medical bill. Some of the mail was dated January 2019. A field test of the

crystalline substance subsequently yielded a positive result for methamphetamine.

Spurgeon also testified that another officer, Sergeant William Hamilton, could be

seen on a body-camera recording of the search wearing a short-sleeved shirt and that it was

“fairly warm” during the daytime but “comfortable” the morning of the search. Spurgeon added

that officers wear body armor underneath the shirt, which “keep[s] heat well.”

Hamilton testified that he had been made aware that the “suspect,” who had “fled

the scene” prior to his arrival, was Armstrong. An individual saw Armstrong walking near a

1
The complainant’s surname is written as both “Anderson” and “Andersen” in the
Reporter’s Record. We will refer to her as “Andersen,” the spelling used in the briefs of both
parties, the witness index, and the caption immediately preceding her testimony.
2
highway, and Hamilton located Armstrong at a gas station near the sighting. Armstrong did not

try to flee at Hamilton’s approach. Although a police report described Armstrong as wearing

dark pants and a white shirt, Hamilton agreed that he was wearing a black shirt when Hamilton

located him. However, Hamilton clarified that he was “looking for Stephen Armstrong and

[knew] him very well from many previous experiences.” Armstrong insisted that he had not

violated the protective order, been stabbed, or done anything wrong, but Hamilton could “see

evidence on [Armstrong’s] person that he’d been stabbed.” Hamilton arrested Armstrong for

violation of a protective order and photographed him at the jail. While there, Armstrong asked

Hamilton to return his phone, which he indicated he had left at the trailer home. Hamilton

returned to the trailer to search “[a]round the house.” Although he acknowledged that a phone

was found in the jacket, Hamilton testified that he did nothing further with the phone.

Andersen testified that Armstrong had been living with her in the three-bedroom

trailer since February 2019, despite the existence of the protective order. On May 12, 2019,

Armstrong, Andersen, and a friend smoked methamphetamine at the trailer. The friend left

around 1 p.m., and Armstrong and Andersen spent the rest of the day smoking and arguing. The

argument became physical when Andersen attempted to leave the trailer, and Armstrong tried to

stop her. Andersen managed to leave, but Armstrong followed her to a friend’s house. Andersen

then returned to the trailer, while Armstrong stayed to speak with the friend. Andersen locked

the door to the trailer because she “knew [Armstrong] was going to be insane at that point” and

“feared for [her] life.” Armstrong climbed through a window of the trailer and ran toward

Andersen. For about an hour, he kept her from leaving, and, when she attempted to call 911, he

stepped on her phone, breaking it. Andersen grabbed a knife and testified that she stabbed

3
Armstrong multiple times; Armstrong, bleeding, ran from the trailer. Andersen charged her

phone and called 911 to “turn[ her]self in.” She testified that the jacket found by officers

belonged to Armstrong and that she had seen him wear it before.

Lindsay Hatfield, an analyst with the Texas Department of Public Safety, testified

that she tested the crystals seized from the jacket and determined that they contained

methamphetamine in a weight of approximately .60 grams.

The jury found Armstrong guilty of possession of less than a gram of

methamphetamine. Following a hearing on punishment, it assessed his sentence at eighteen

months in state jail and a fine of $750. This appeal followed.

DISCUSSION

In three issues, Armstrong challenges the legal and factual sufficiency of the

evidence proving possession and complains about an error in the jury charge.

Legal Sufficiency

Due process requires that the State prove, beyond a reasonable doubt, every

element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Lang v. State,

561 S.W.3d 174, 179 (Tex. Crim. App. 2018). When reviewing the sufficiency of the evidence

to support a conviction, we consider all the evidence in the light most favorable to the verdict to

determine whether, based on that evidence and reasonable inferences therefrom, any rational trier

of fact could have found the essential elements of the offense beyond a reasonable doubt.

Jackson, 443 U.S. at 319; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); see

Musacchio v. United States, 577 U.S. 237, 243 (2016); Johnson v. State, 560 S.W.3d 224, 226

4
(Tex. Crim. App. 2018). In our sufficiency review, we consider all the evidence in the record,

whether direct or circumstantial, properly or improperly admitted, or submitted by the

prosecution or the defense. Thompson v. State, 408 S.W.3d 614, 627 (Tex. App.—Austin 2013,

no pet.); see Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We assume that the trier of fact resolved conflicts

in the testimony, weighed the evidence, and drew reasonable inferences in a manner that

supports the verdict. Jackson, 443 U.S. at 318; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.

App. 2009). We consider only whether the factfinder reached a rational decision. Arroyo

v. State, 559 S.W.3d 484, 487 (Tex. Crim. App. 2018); see Morgan v. State, 501 S.W.3d 84, 89

(Tex. Crim. App. 2016) (observing that reviewing court’s role on appeal “is restricted to

guarding against the rare occurrence when a fact finder does not act rationally” (quoting Isassi

v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010))).

The trier of fact is the sole judge of the weight and credibility of the evidence.

See Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018); Blea v. State, 483 S.W.3d 29,

33 (Tex. Crim. App. 2016); see also Tex. Code Crim. Proc. art 36.13 (explaining that “the jury is

the exclusive judge of the facts”). Thus, when performing an evidentiary-sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our judgment for

that of the factfinder. Arroyo, 559 S.W.3d at 487; see Montgomery v. State, 369 S.W.3d 188,

192 (Tex. Crim. App. 2012). Instead, we must defer to the credibility and weight determinations

of the factfinder. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016); Nowlin v. State,

473 S.W.3d 312, 317 (Tex. Crim. App. 2015). When the record supports conflicting reasonable

inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we

5
defer to that resolution. Zuniga, 551 S.W.3d at 733; Cary, 507 S.W.3d at 757; see Musacchio,

577 U.S. at 243 (reaffirming that appellate sufficiency review “does not intrude on the jury’s role

‘to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts’” (quoting Jackson, 443 U.S. at 319)). We 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.” Murray v. State,

457 S.W.3d 446, 448 (Tex. Crim. App. 2015) (quoting Clayton, 235 S.W.3d at 778); accord

Arroyo, 559 S.W.3d at 487. The jury is not allowed, however, to make conclusions based on

speculation, which, unlike reasonable inferences, are “insufficiently based on the evidence to

support a finding beyond a reasonable doubt.” Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim.

App. 2016); see Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (“Speculation is

mere theorizing or guessing about the possible meaning of facts and evidence presented.”).

Because factfinders are permitted to make reasonable inferences, “[i]t is not

necessary that the evidence directly proves the defendant’s guilt; circumstantial evidence is as

probative as direct evidence in establishing the guilt of the actor, and circumstantial evidence

alone can be sufficient to establish guilt.” Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim.

App. 2013) (citing Hooper, 214 S.W.3d at 13); accord Johnson, 560 S.W.3d at 226. The

standard of review is the same for direct and circumstantial evidence cases. Jenkins, 493 S.W.3d

at 599; Nowlin, 473 S.W.3d at 317.

Under the Texas Health and Safety Code, an individual commits an offense if he

or she “knowingly or intentionally possesses” methamphetamine in an amount of less than one

gram. Tex. Health & Safety Code §§ 481.102(6), .115(a), (b). “Possession” means “actual

6
care, custody, control, or management.” Id. § 481.002(38). Accordingly, to prove unlawful

possession of a controlled substance, the State must prove that the accused: (1) “exercised care,

control, and management over the contraband” and (2) “knew the matter was contraband.”

Ex parte Lane, 303 S.W.3d 702, 709 (Tex. Crim. App. 2009). “Possession is a voluntary act if

the possessor knowingly obtains or receives the thing possessed or is aware of his control of the

thing for a sufficient time to permit him to terminate his control.” Tex. Penal Code § 6.01(b).

We have explained the requirements for proving possession of contraband when

the accused is not in exclusive possession or control of the place where the contraband is found:

When an accused is not in exclusive possession and control of the place where the
contraband is found, it cannot be concluded or presumed that the accused had
knowledge of or control over the contraband unless there are additional
independent facts and circumstances connecting or linking the accused to the
knowing possession of contraband . . . . Similarly, when the contraband is not
found on the accused’s person or it is not in the exclusive possession of the
accused, additional independent facts and circumstances must link the accused to
the knowing possession of the contraband.

Allen v. State, 249 S.W.3d 680, 690–91 (Tex. App.—Austin 2008, no pet.). “Mere presence at

the location where drugs are found is thus insufficient, by itself, to establish actual care, custody,

or control of those drugs.” Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006).

“However, presence or proximity, when combined with other evidence, either direct or

circumstantial (e.g., ‘links’), may well be sufficient to establish that element beyond a reasonable

doubt.” Id.

7
 The Court of Criminal Appeals (“CCA”) has noted that the following non-

exhaustive2 list of “links”3 may circumstantially establish the legal sufficiency of the evidence to

prove knowing possession:

(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 (quoting Evans v. State, 185 S.W.3d 30, 35 (Tex. App.—San Antonio 2005),

rev’d on other grounds by Evans, 202 S.W.3d 158). The absence of links does not constitute

evidence of innocence to be weighed against the links present. James v. State, 264 S.W.3d 215,

219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). In performing this review, “[i]t is . . . not

the number of links that is dispositive, but rather the logical force of all of the evidence, direct

2
Additional links have been identified by our sister courts. See e.g., Black v. State,
411 S.W.3d 25, 28-29 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (incriminating statements
made by accused connecting himself to contraband); Villegas v. State, 871 S.W.2d 894, 896
(Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (proximity of contraband to defendant’s
personal belongings).
3
Although both parties’ briefing used the term “affirmative links,” the Court in Evans
recognized that “affirmative” added nothing to the plain meaning of “link” and declared that,
going forward, it would use “only ‘link’ so that it is clear that evidence of drug possession is
judged by the same standard as all other evidence.” Evans v. State, 202 S.W.3d 158, 161 n.9
(Tex. Crim. App. 2006).
8
and circumstantial.” Id. at 162. The force of the links need not be such as to exclude every other

alternative hypothesis except the defendant’s guilt. Brown v. State, 911 S.W.2d 744, 748 (Tex.

Crim. App. 1995). “Whether the evidence be direct or circumstantial, ‘it must establish, to the

requisite level of confidence, that the accused’s connection with the [contraband] was more than

just fortuitous.’” Allen, 249 S.W.3d at 691 (quoting Brown, 911 S.W.2d at 747); see Poindexter

v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005), abrogated on other grounds by Robinson

v. State, 466 S.W.3d 166 (Tex. Crim. App. 2015) (“The ‘affirmative links rule’ is designed to

protect the innocent bystander from conviction based solely upon his fortuitous proximity to

someone else’s drugs.”). Ultimately, however, the links merely help to guide a reviewing court’s

analysis; the fundamental sufficiency inquiry is still the standard set forth in Jackson: “Based on

the combined and cumulative force of the evidence and any reasonable inferences therefrom, was

a jury rationally justified in finding guilt beyond a reasonable doubt?” Tate, 500 S.W.3d at 414.

Here, the jury heard evidence of the following links:

(1) Armstrong resided at the trailer outside of which the jacket containing
methamphetamine was found and had been at the trailer the day before it was
discovered; (2) The jacket belonged to Armstrong, and he had been seen wearing
it on at least one prior occasion; (3) Armstrong had been wearing a jacket the
night before the jacket in question was found but was not wearing one when he
was arrested; (4) Armstrong climbed into the trailer through a window, and the
jacket was found beneath one of the trailer’s windows next to a path of footprints
leading around the trailer; (5) the windows were “off the ground,” and the jacket
was next to an A/C unit providing access to the window; (6) mail addressed to
Armstrong was found in a pocket of the jacket containing the methamphetamine;
(7) Armstrong purchased methamphetamine on May 11th and spent May 12th, the
day before the jacket was found, smoking methamphetamine provided by a friend;
(8) it had rained the night before the jacket was found, and, although the grass
around the jacket was wet, the jacket itself was dry, indicating that it had not lain
there long; (9) a phone was found in the pocket of the jacket, and Armstrong had
indicated to an officer that he had dropped his phone near the trailer; and (10)

9
 Armstrong initially told the arresting officer that he had not been near the trailer
nor been stabbed, despite evidence to the contrary.

Armstrong argues on appeal that “the affirmative links analysis has a chronology

component” and “suggests that this . . . component attaches to every potential affirmative link.”

In support of his contention, Armstrong cites to cases listing links involving a temporal element.

See Damron v. State, 570 S.W.2d 933, 936 (Tex. Crim. App. [Panel Op.] 1978) (listing whether

appellant was at place searched at time of search, whether other persons were present and shown

to be living there, and whether appellant was in possession of contraband at time of arrest as

links to be considered in determining possession); Villegas, 871 S.W.2d at 896 (“whether the

defendant was at the place searched at the time of the search” and “whether there were other

persons present at the time of the search”); Ex parte Stowe, 744 S.W.2d 615, 617 (Tex. App.—

Houston [1st Dist.] 1987, no pet.) (listing Damron links, among others). While it is true that

various putative links listed in these and other cases may include “a chronology component,” no

list is exhaustive, and other links do not include such a component. Moreover, as noted above,

the nonexistence of certain links is “not evidence of innocence” to be balanced against the links

present in this case. James, 264 S.W.3d at 219 (citing Hernandez v. State, 538 S.W.2d 127, 131

(Tex. Crim. App. 1976)). Instead, we must focus on the “logical force” of the “combined pieces

of circumstantial evidence in this case,” together with “reasonable inferences from them.”

Evans, 202 S.W.3d at 166. Insomuch as Armstrong maintains that we should read a temporal

limitation into a link where none is expressly stated, we find nothing in the case law to support

his assertion.

10
 Armstrong also argues that when contraband is “hidden,” the State “must offer

evidence that the defendant knew of the existence of the hidden location and its contents.” In

support of his argument, he cites to our previous decision in Allen v. State, 249 S.W.3d 680, 694

(Tex. App.—Austin 2008, no pet.), as well as two opinions from our sister courts, Roberts

v. State, 321 S.W.3d 545, 549 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d), and Medina

v. State, 242 S.W.3d 573, 576 (Tex. App.—Waco 2007, no pet.). His argument, however,

misconstrues the opinions. In Allen, we noted only that “[w]here the contraband is hidden or

secreted, the State . . . must address whether the accused knew of the existence of the secreted

place and its contents” and must “link the accused to the contraband in such a manner that a

reasonable inference arises that the accused knew of its existence and its whereabouts and that

the object possessed was contraband.” 249 S.W.3d at 694 (internal citations omitted) (emphasis

added). The conclusions of our sister courts were similarly nuanced. See Roberts, 321 S.W.3d

at 549 (“[T]he State must show additional facts and circumstances linking the accused to the

contraband to show the accused’s knowledge of or control over the contraband.”); Medina,

242 S.W.3d at 576 (“[T]he State must address whether the defendant knew of the existence of

the secret place and its contents.”).

Here, the State, in presenting evidence of the links listed above, sufficiently tied

Amstrong to the methamphetamine in such a manner that the jury could have reasonably inferred

that he knew of its existence, location, and nature as contraband. Viewing the evidence in the

light most favorable to the verdict, the logical force of the evidence, coupled with reasonable

inferences therefrom, was sufficient to establish beyond a reasonable doubt that Armstrong

exercised actual care, custody, control, or management of the methamphetamine and knew that it

11
was in fact methamphetamine. The jury was not required to believe evidence to the contrary.

See Evans, 202 S.W.3d at 166. And although Armstrong attempted in closing argument to

impugn Andersen’s credibility and suggest that she planted the jacket and methamphetamine, it

was the jury’s prerogative as the exclusive judge of facts to make decisions on the weight and

credibility of the evidence. See Zuniga, 551 S.W.3d at 733; Tex. Code Crim. Proc. art. 36.13.

Assuming that the jury resolved conflicts in the evidence and drew reasonable inferences in a

manner supporting the verdict, we cannot conclude that it reached an irrational decision. Arroyo,

559 S.W.3d at 487; see Jackson, 443 U.S. at 318. Consequently, we overrule Armstrong’s

first issue.

Factual Sufficiency

On appeal, and citing Article V, Section 6 of the Texas Constitution and

Article 44.25 of the Code of Criminal Procedure, Armstrong contends that Brooks v. State,

323 S.W.3d 893 (Tex. Crim. App. 2010), which overruled the factual-sufficiency standard,

should be reconsidered.

However, we are bound to follow the CCA’s holding in Brooks and its progeny.

“When the Court of Criminal Appeals has deliberately and unequivocally interpreted the law in a

criminal matter, we must adhere to its interpretation under the dictates of vertical stare decisis.”

Mason v. State, 416 S.W.3d 720, 728 n.10 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d);

see Temple v. State, 342 S.W.3d 572, 628 (Tex. App.—Houston [14th Dist.] 2010) (Brown, J.,

concurring), aff’d, 390 S.W.3d 341 (Tex. Crim. App. 2013) (“Even if Brooks were an

abomination, it is not the role of lower courts to rein in our courts of last resort . . . . When the

Supreme Court of Texas and the Court of Criminal Appeals interpret our state’s constitution, we
12
must follow. That’s how our system works.”); see also State ex rel. Wilson v. Briggs,

351 S.W.2d 892, 894 (Tex. Crim. App. 1961) (“The Court of Criminal Appeals is the court of

last resort in this state in criminal matters. This being so, no other court of this state has

authority to overrule or circumvent its decisions, or disobey its mandates.”). Because the CCA

has consistently and stridently disavowed the factual-sufficiency standard, we will not now apply

it in this case.

Jury Charge Error

In his third issue, Armstrong contends that the trial court failed to instruct the jury

properly regarding the culpable mental states applicable to the offense of possession of a

controlled substance. Armstrong alleges that the charge was erroneous because it included

definitions of culpable mental states relating to result-oriented offenses or, alternatively,

because it failed to tailor the applicable definitions to the nature and circumstances of the

proscribed conduct.

A trial court is statutorily obligated to instruct the jury on the “law applicable to

the case.” See Tex. Code Crim. Proc. art. 36.14; Mendez v. State, 545 S.W.3d 548, 552 (Tex.

Crim. App. 2018); Arteaga v. State, 521 S.W.3d 329, 334 (Tex. Crim. App. 2017). The jury

charge should tell the jury what law applies and how it applies to the case. Delgado v. State, 235

S.W.3d 244, 249 (Tex. Crim. App. 2007). The trial court’s duty to instruct the jury on the “law

applicable to the case” exists even when defense counsel fails to object to inclusions or

exclusions in the charge. Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013) (citing

Taylor v. State, 332 S.W.3d 483, 486 (Tex. Crim. App. 2011)). The trial court is “ultimately

13
responsible for the accuracy of the jury charge and accompanying instructions.” Mendez,

545 S.W.3d at 552 (quoting Delgado, 235 S.W.3d at 249).

We review alleged jury charge error in two steps: first, we determine whether

error exists; if so, we then evaluate whether sufficient harm resulted from the error to require

reversal. Arteaga, 521 S.W.3d at 333; Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App.

2005). When no error exists, as here, the inquiry ends, and we need not address the question of

harm. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015).

The Penal Code delineates three “conduct elements” that can be involved in an

offense: (1) the nature of the conduct, (2) the result of the conduct, and (3) the circumstances

surrounding the conduct. McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989); see

Tex. Penal Code § 6.03. The statutory definitions of the culpable mental state in a jury charge

must be tailored to the conduct elements of the offense. Price, 457 S.W.3d at 441; Cook v. State,

884 S.W.2d 485, 487 (Tex. Crim. App. 1994). A trial court errs when it fails to limit the

definitions of the culpable mental states to the conduct element or elements involved in the

particular offense. Price, 457 S.W.3d at 441; Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim.

App. 1995); Cook, 884 S.W.2d at 491.

There is no agreement among Texas courts regarding the classification of

possession of a controlled substance by its constituent conduct elements. See Aguilera v. State,

No. 07-13-00280-CR, 2015 WL 4594118, at *3 (Tex. App.—Amarillo July 30, 2015, pet. ref’d)

(mem. op., not designated for publication) (“Our courts have not placed the offense of possession

of a controlled substance within a single category as a nature-, result- or circumstances-oriented

offense.”); Harris v. State, No. 02-12-00091-CR, 2014 WL 1389756 (Tex. App.–Fort Worth

14
Apr. 10, 2014, pet. ref’d) (mem. op., not designated for publication) (“Possession of a controlled

substance has not been clearly categorized as either result or conduct oriented.”); see also

Ex parte Saucedo, 576 S.W.3d 712, 727 n.13 (Tex. Crim. App. 2019) (Keller, J., dissenting)

(recognizing that “at least one court of appeals has concluded that possession of a controlled

substance can qualify as a result-oriented offense for the purpose of instructing the jury”); Allen,

249 S.W.3d at 690 (“Where the offense is the possession of a controlled substance, the

proscribed conduct is possession.”); Seals v. State, 187 S.W.3d 417, 423–24 (Tex. Crim. App.

2005) (Cochran, J., dissenting) (“The gravamen of the offense is the quantity of the usable

drug.”); Watson v. State, 752 S.W.2d 217, 222 (Tex. App.—San Antonio 1988, pet. ref’d) (“The

mens rea requirement of a possessory offense is knowledge by a defendant that his conduct or

the circumstances surrounding his conduct constitutes possession of a controlled substance.”);

Adams v. State, 744 S.W.2d 622, 628 (Tex. App.—Fort Worth 1987, pet. ref’d) (“[P]ossession

may be a ‘result oriented’ offense, since many cases have held that the defendant’s actions

resulted in possession.”). But see Penrice v. State, No. 14-93-00326-CR, 1995 WL 458954, at

*4 (Tex. App.—Houston [14th Dist.] Aug. 3, 1995, no pet.) (not designated for publication)

(“Appellant does not cite any cases nor do we find any cases which hold that possession of a

controlled substance is a result oriented crime.”).

Where the categorization of an offense is undecided, a trial court does not err by

including the complete statutory definitions of “intentionally” and “knowingly.” See Baker

v. State, 94 S.W.3d 684, 691 (Tex. App.—Eastland 2002, no pet.) (explaining that “[w]here an

offense is not clearly categorized with respect to the conduct elements required, the trial court

may submit the full statutory definitions of ‘intentionally’ and ‘knowingly’”); Murray v. State,

15
804 S.W.2d 279, 281 (Tex. App.—Fort Worth 1991, pet. ref’d) (“[W]hen an offense is not

clearly categorized as either a ‘result’ or a ‘nature of the conduct’ type offense, with respect to

the intent and knowledge required, . . . the trial court may submit statutory definitions of

‘intentional’ and ‘knowingly’ because both definitions allow the jury to consider the nature of

the offender’s conduct or the results of his conduct.”); accord Saldivar v. State, 783 S.W.2d 265,

267–68 (Tex. App.—Corpus Christi–Edinburg 1989, no pet.). Because the CCA has not

definitively ruled on the conduct-elements classification of possession of a controlled substance,

the trial court here did not err in including the definitions of “intentionally” and “knowingly” as

they apply to result-oriented offenses.

We therefore overrule Armstrong’s third issue.

CONCLUSION

Having overruled each of Armstrong’s issues, we affirm the trial court’s judgment

of conviction.

__________________________________________
Edward Smith, Justice

Before Justices Goodwin, Triana, and Smith

Affirmed

Filed: October 15, 2021

Do Not Publish

16