David Franklin Ayers v. State

• Court: Court of Appeals of Texas
• Decided: September 25, 2003
• Docket: 11-03-00123-CR
• Status: Published

Opinion

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

David Franklin Ayers

Appellant

Vs.                   No.  11-03-00123-CR B Appeal from Palo Pinto County

State of Texas

Appellee

The jury convicted David Franklin Ayers of possession of a controlled substance, methamphetamine, in an amount less than 1 gram.  The jury assessed appellant=s punishment at confinement in a state jail facility for 18 months and a $5,000 fine.  We affirm.

In his sole point of error, appellant argues that the evidence is insufficient to support his conviction.  In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000).   In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).    We review the fact finder=s weighing of the evidence and cannot substitute our judgment for that of the fact finder.  Cain v. State, supra; Clewis v. State, supra.  Due deference must be given to the jury=s determination, particularly concerning the weight and credibility of the evidence.  Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000); Jones v. State, 944 S.W.2d 642 (Tex.Cr.App.1996), cert. den=d, 522 U.S. 832 (1997).  This court has the authority to disagree with the fact finder=s determination “only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.”  Johnson v. State, supra at 9.

Johnny McKee, formerly with the Brazos River Authority, testified that on June 23, 2001, he was patrolling the water on Possum Kingdom Lake with Deputy Tommy Shawver, formerly with the Palo Pinto County Sheriff=s Office.  McKee stated that he saw appellant fishing and that appellant was breaking limbs off trees along the shoreline.  It is against Brazos River Authority regulations to break tree limbs on Brazos River Authority property.  McKee and Deputy Shawver approached appellant to inform him of the regulations.  McKee asked appellant for his fishing license and identification.  McKee stated that appellant went to his van to retrieve the license and identification.

After appellant retrieved his fishing license and identification, McKee asked appellant if  “he had any other weapons or drugs” at his camp site.  Appellant responded that he did not, and he gave McKee and Deputy Shawver consent to search the camp site and his van.  The van was a cargo van with the company name England Plumbing on it.  McKee testified that there was a lady and two teenage boys with appellant at the camp site, but that they were not near the van at the time.  McKee stated that, on the way to search the van, appellant said that “he was not the only one that uses the van.”

McKee testified that, when searching the van, he saw two clear plastic bags containing a brown powder substance lying on top of the console.  McKee further testified that he found a black camera bag.  Inside of the camera bag, there was a clear plastic bag containing what McKee believed to be marihuana.  McKee stated that he also found a “red, round tube” inside of a pocket on the driver=s side door.  The tube had two clear plastic bags with a brown powder substance inside.  The brown powder substance was later determined to be methamphetamine.  McKee said that he also found a glass pipe used to smoke methamphetamine.

Misty Dawn Bryant testified at trial that she works for England Plumbing.  Bryant said that appellant was employed by England Plumbing at the time of the offense.  Bryant stated that England Plumbing assigned a company van to appellant, and that he was the only person who used that vehicle.  Bryant further testified that appellant did not have the authority to drive the vehicle to Possum Kingdom Lake.

Brenda Byars, appellant=s former girlfriend, testified that she was with appellant at the camp site at the time of the offense.  Byars said that she saw the game warden observing the camp site.  Byars went to the van to get the fishing license.  Byars said that she “ransacked” the van looking for the fishing license.  When she returned to appellant, he had found his identification and fishing license in his wallet.  Byars said that the officer asked to search the camp site and van and that appellant gave consent.

Appellant testified that he was fishing and that he broke a tree limb that was in front of him.  Appellant did not know that that was against Brazos River Authority regulations.  McKee and Deputy Shawver approached appellant in their boat.  McKee asked appellant for his fishing license.  Appellant said that his fishing license was in the van, and McKee sent Byars to get the license.  McKee asked appellant for permission to search the van, and appellant consented.  Appellant said that he told McKee he was not the only one who used the van.  Appellant said that he did not know there was anything illegal in the van. 

Appellant further testified at trial that  McKee approached him with a plastic baggie and said:  “[T]he only fingerprints going to be on this is mine and yours.”  Appellant told McKee that he did not know anything about the baggie and that appellant=s fingerprints would not be on it.  Appellant stated that he was not the only one with access to the van at the camp site and that other employees at England Plumbing also had access to the van.

Appellant argues that the evidence is insufficient to show that he possessed methamphetamine.  In cases involving unlawful possession of a controlled substance, the State must prove that the accused exercised care, custody, control, or management over the substance and that the accused knew that the matter possessed was contraband.  Martin v. State, 753 S.W.2d 384 (Tex.Cr.App.1988); Young v. State, 842 S.W.2d 364 (Tex.App. - Eastland 1992, no pet=n).  When the accused is not shown to have had exclusive possession of the place where the contraband was found, the evidence must affirmatively link the accused to the contraband.  Pollan v. State, 612 S.W.2d 594 (Tex.Cr.App.1981); Young v. State, supra.  Factors which have been considered as establishing affirmative links with contraband include: (1) presence when the search was executed; (2) contraband in plain view; (3) proximity to and accessibility of the contraband; (4) accused under the influence of contraband when arrested; (5) accused=s possession of other contraband when arrested; (6) accused=s incriminating statements when arrested; (7) attempted flight; (8) furtive gestures; (9) odor of the contraband; (10) presence of other contraband; (11) accused=s right to possession of the place where contraband was found; and (12) narcotics found in an enclosed place.  State v. Derrow, 981 S.W.2d 776, 779 (Tex.App. ‑ Houston [1st Dist.] 1998, pet=n ref=d).

The jury heard testimony that appellant went to the van to retrieve his fishing license and identification and that no one else went to the van between that time and the time of the search.  The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony.  TEX. CODE CRIM. PRO. ANN. arts. 36.13 & 38.04 (Vernon 1979 and 1981); Wesbrook v. State, 29 S.W.3d 103 (Tex.Cr.App.2000), cert. den=d, 532 U.S. 944 (2001). It is also the exclusive province of the jury to reconcile conflicts in the evidence.  Wesbrook v. State, supra.  The record shows that methamphetamine was found on the console of the van in plain view and also  in a pocket on the driver=s side door.  Byars testified that appellant drove the van to the lake.  The jury also heard evidence that the van was assigned to appellant and that no one else used the van.  After reviewing all of the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found that appellant was in possession of methamphetamine.  After reviewing all of the evidence in a neutral light favoring neither party, we hold that the jury=s verdict is not so against the great weight of the evidence as to be clearly wrong and unjust.  Appellant=s sole point of error is overruled.

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

September 25, 2003

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.