Beverley (Beverly) Leon Hollins v. State

• Court: Court of Appeals of Texas
• Decided: May 13, 2009
• Docket: 04-08-00748-CR
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-08-00748-CR

Beverley Leon HOLLINS, Appellant

v.

The STATE of Texas, Appellee

From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 2008-CR-3928 Honorable Sharon MacRae, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Phylis J. Speedlin, Justice

Delivered and Filed: May 13, 2009

AFFIRMED

A jury found defendant, Beverley Leon Hollins, guilty of possession of a controlled substance

and the trial court assessed punishment at five years’ confinement. In a single issue on appeal,

defendant contends the evidence is factually insufficient to support the verdict. We affirm.

DISCUSSION

At around 7:00 p.m. on the evening of December 1, 2007, San Antonio Police Officer Reyna

received a dispatch on a family disturbance. At the same time, San Antonio Police Officer Dyer also

received the dispatch, and the two officers, in separate patrol cars, responded to the location. When 04-08-00748-CR

they arrived at 5118 Oldstead, they saw a man and a woman arguing in front of the house next door.

The woman ran up to Dyer and spoke to him, while Reyna watched the man, whom he identified as

the defendant. Reyna described the scene when they first arrived as follows:

When myself and Officer Dyer first arrived, we observed Mary Helen standing closer to the property end. So, closer to the residence of 5114 Oldstead, as [defendant] was standing closer to the sidewalk of the residence. When we arrived, they switched places. Mary Helen ran to Officer Dyer and [defendant] went to where Mary Helen was originally standing.

...

When I first saw them, [they were standing] about 15 feet [apart].

The closest I saw them get to each other was about two arms lengths.

Reyna observed defendant holding “a clear plastic bag in his hands and he was trying to

conceal it.” Reyna said defendant tried to stay in the shadows and he [Reyna] tried to shine his

flashlight on what looked like a sandwich bag, but all he saw was the light reflecting back. Reyna

said he “could see vaguely what [defendant] had.”

When both officers approached defendant and told him they needed to speak with him,

defendant responded, “you don’t need to talk to me” and he “made an aggressive walking movement

toward the west end of the fence.” Reyna said defendant dropped the bag, and when Dyer told him

to stop, defendant jumped over the fence and ran. Defendant was eventually apprehended and taken

into custody. After securing defendant in one of the patrol cars, Reyna walked back to where he had

seen defendant drop the bag. When asked if he found anything else that could have been the object

defendant threw down, Reyna responded “no” and that the bag was the only thing in the yard. The

contents of the bag tested positive for cocaine. The bag itself was not finger-printed.

-2- 04-08-00748-CR

On appeal, defendant asserts the evidence is factually insufficient because Reyna was the

only witness to testify he saw defendant holding the bag, there was limited lighting, Mary Helen had

“switched places” with defendant when the officers arrived, and the bag was not finger-printed. We

review the sufficiency of the evidence under the appropriate standard of review. See Watson v. State,

204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006) (factual sufficiency); Clewis v. State, 922 S.W.2d

126, 129 (Tex. Crim. App. 1996) (same). The standard of review is the same in both direct and

circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999). We

must defer to the factfinder, and may find the evidence factually insufficient only where necessary

to prevent manifest injustice. See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). The

trier of fact may draw reasonable inferences and is the exclusive judge of the witnesses’ credibility

and the weight to give their testimony. Jones v. State, 944 S.W.2d 642, 647-49 (Tex. Crim. App.

1996). Here, the jury was free to decide whether to believe Officer Reyna’s testimony that he saw

defendant holding the bag, that he saw defendant drop the bag, and that the bag he retrieved from

the scene was the same bag. Other than Officer Reyna, only the forensic scientist who tested the

contents of the bag testified. Considering the evidence as a whole, we conclude the jury’s

determination was not contrary to the overwhelming weight of the evidence.

CONCLUSION

We overrule defendant’s issue on appeal and affirm the trial court’s judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH

-3-