Affirm as Modified and Opinion Filed May 24, 2023
In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-01077-CR
DUSTIN MICHAEL ENGELKE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 15th Judicial District Court Grayson County, Texas Trial Court Cause No. 072395
MEMORANDUM OPINION Before Justices Partida-Kipness, Nowell, and Kennedy Opinion by Justice Partida-Kipness Appellant Dustin Engelke challenges his conviction for possession of
methamphetamine, a penalty group one controlled substance, in an amount of four
grams or more but less than 200 grams, with intent to deliver. In a single issue,
Engelke argues the evidence was insufficient to support the conviction. Engelke also
submitted a post-submission motion asking us to modify the judgment to correctly
reflect his sentence. We affirm as modified. BACKGROUND
On May 5, 2020, Sherman police officers were dispatched to the local Wal-
Mart for a welfare check. Wal-Mart employees had called police to report a man
who was asleep in his vehicle with the driver’s side door open. Upon their arrival,
Wal-Mart employees told police they had attempted to wake the driver, Engelke, but
were unsuccessful.
Officer Austin Ross observed the vehicle parked in the middle of multiple
lanes near the Wal-Mart tire department. The tire department was closed because of
Covid-19. Officer Ross approached the vehicle and made contact with Engelke, who
initially seemed disoriented. After Engelke stepped out of the vehicle, Officers Ross
and Logan Rogers continued questioning him to determine why Engelke was
stopped at the Wal-Mart. During their questioning, both officers testified that
Engelke was sweating profusely, even though the weather was mild, stated he
“didn’t believe there” was anything illegal in the vehicle, and stated the vehicle was
registered to his cousin, Katie. Officer Rogers explained Engelke had noticeable
changes in his behavior when asked if there were drugs in the vehicle and kept
staring at the open driver’s side door.
Officer Ross brought his K-9 partner to Engelke’s vehicle and conducted an
open-air sniff. His K-9 alerted immediately and they conducted a search of
Engelke’s vehicle. In the driver’s side door pocket, over 57 grams of
–2– methamphetamine was located within a black bag. Engelke denied knowledge of the
methamphetamine. Officers also located $750 in cash in Engelke’s front left pocket.
Engelke was indicted for possession of methamphetamine, a penalty group
one controlled substance, in an amount of four grams or more but less than 200
grams, with intent to deliver. TEX. HEALTH & SAFETY CODE § 481.112(d). Engelke
pleaded not guilty. The jury found him guilty as charged. Engelke pleaded true to
two enhancement paragraphs and was sentenced to twenty-five years’ imprisonment.
Engelke filed a motion for new trial, which was denied. This appeal followed.
ANALYSIS
A. Sufficiency of the Evidence
In his sole issue, Engelke challenges the sufficiency of the evidence
supporting his conviction.
We review a sufficiency challenge by considering all of the evidence in the
light most favorable to the verdict and determine, whether, based on the evidence
and reasonable inferences therefrom, a rational jury could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
318–19 (1979); Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013);
Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We defer to the fact
finder’s credibility and weight determinations because the fact finder is the sole
judge of the witnesses’ credibility and the weight to be given to their testimony. See
Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013). The fact finder can
–3– choose to believe all, some, or none of the testimony presented by the parties.
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). “Circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt.” Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Evidence is sufficient if “the inferences
necessary to establish guilt are reasonable based upon the cumulative force of all the
evidence when considered in the light most favorable to the verdict.” Wise v. State,
364 S.W.3d 900, 903 (Tex. Crim. App. 2012).
We measure whether the evidence presented at trial was sufficient to support
a conviction by comparing it to “the elements of the offense as defined by the
hypothetically correct jury charge for the case.” Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997). The 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
liabilities, and adequately describes the particular offense for which the defendant
was tried.” Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App.
2013). The “law as authorized by the indictment” includes the statutory elements of
the offense and those elements “as modified by the indictment.” Curry v. State, 30
S.W.3d 394, 404 (Tex. Crim. App. 2000). A hypothetically correct jury charge for
possession of a penalty group 1 controlled substance with intent to deliver states: a
person commits an offense if the person knowingly manufactures, delivers, or
–4– possesses with intent to deliver a controlled substance listed in Penalty Group 1
between four grams or more but less than 200 grams. TEX. HEALTH & SAFETY CODE
§ 481.112(d). “Possession” means “actual care, custody, control, or management.”
Id. § 481.002(38).
The State must prove Engelke intentionally or knowingly possessed a
controlled substance with an intent to deliver it to others. Engelke argues the State
failed to show he had “actual care, control, or management” of the
methamphetamine or that the substance was contraband. Specifically, Engelke
alleges he was not in exclusive possession of the vehicle where the
methamphetamine was found because the vehicle did not belong to him. We
disagree.
The evidence showed Engelke was in the driver’s seat when the officers
approached, was the sole occupant of the vehicle, acted in a nervous manner, kept
looking at the open driver’s side door, and gave Officers Ross and Rogers the wrong
name for the owner of the car. When asked how long he had possessed the car,
Engelke failed to respond. The bag that contained the methamphetamine was located
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Affirm as Modified and Opinion Filed May 24, 2023
In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-01077-CR
DUSTIN MICHAEL ENGELKE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 15th Judicial District Court Grayson County, Texas Trial Court Cause No. 072395
MEMORANDUM OPINION Before Justices Partida-Kipness, Nowell, and Kennedy Opinion by Justice Partida-Kipness Appellant Dustin Engelke challenges his conviction for possession of
methamphetamine, a penalty group one controlled substance, in an amount of four
grams or more but less than 200 grams, with intent to deliver. In a single issue,
Engelke argues the evidence was insufficient to support the conviction. Engelke also
submitted a post-submission motion asking us to modify the judgment to correctly
reflect his sentence. We affirm as modified. BACKGROUND
On May 5, 2020, Sherman police officers were dispatched to the local Wal-
Mart for a welfare check. Wal-Mart employees had called police to report a man
who was asleep in his vehicle with the driver’s side door open. Upon their arrival,
Wal-Mart employees told police they had attempted to wake the driver, Engelke, but
were unsuccessful.
Officer Austin Ross observed the vehicle parked in the middle of multiple
lanes near the Wal-Mart tire department. The tire department was closed because of
Covid-19. Officer Ross approached the vehicle and made contact with Engelke, who
initially seemed disoriented. After Engelke stepped out of the vehicle, Officers Ross
and Logan Rogers continued questioning him to determine why Engelke was
stopped at the Wal-Mart. During their questioning, both officers testified that
Engelke was sweating profusely, even though the weather was mild, stated he
“didn’t believe there” was anything illegal in the vehicle, and stated the vehicle was
registered to his cousin, Katie. Officer Rogers explained Engelke had noticeable
changes in his behavior when asked if there were drugs in the vehicle and kept
staring at the open driver’s side door.
Officer Ross brought his K-9 partner to Engelke’s vehicle and conducted an
open-air sniff. His K-9 alerted immediately and they conducted a search of
Engelke’s vehicle. In the driver’s side door pocket, over 57 grams of
–2– methamphetamine was located within a black bag. Engelke denied knowledge of the
methamphetamine. Officers also located $750 in cash in Engelke’s front left pocket.
Engelke was indicted for possession of methamphetamine, a penalty group
one controlled substance, in an amount of four grams or more but less than 200
grams, with intent to deliver. TEX. HEALTH & SAFETY CODE § 481.112(d). Engelke
pleaded not guilty. The jury found him guilty as charged. Engelke pleaded true to
two enhancement paragraphs and was sentenced to twenty-five years’ imprisonment.
Engelke filed a motion for new trial, which was denied. This appeal followed.
ANALYSIS
A. Sufficiency of the Evidence
In his sole issue, Engelke challenges the sufficiency of the evidence
supporting his conviction.
We review a sufficiency challenge by considering all of the evidence in the
light most favorable to the verdict and determine, whether, based on the evidence
and reasonable inferences therefrom, a rational jury could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
318–19 (1979); Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013);
Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We defer to the fact
finder’s credibility and weight determinations because the fact finder is the sole
judge of the witnesses’ credibility and the weight to be given to their testimony. See
Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013). The fact finder can
–3– choose to believe all, some, or none of the testimony presented by the parties.
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). “Circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt.” Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Evidence is sufficient if “the inferences
necessary to establish guilt are reasonable based upon the cumulative force of all the
evidence when considered in the light most favorable to the verdict.” Wise v. State,
364 S.W.3d 900, 903 (Tex. Crim. App. 2012).
We measure whether the evidence presented at trial was sufficient to support
a conviction by comparing it to “the elements of the offense as defined by the
hypothetically correct jury charge for the case.” Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997). The 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
liabilities, and adequately describes the particular offense for which the defendant
was tried.” Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App.
2013). The “law as authorized by the indictment” includes the statutory elements of
the offense and those elements “as modified by the indictment.” Curry v. State, 30
S.W.3d 394, 404 (Tex. Crim. App. 2000). A hypothetically correct jury charge for
possession of a penalty group 1 controlled substance with intent to deliver states: a
person commits an offense if the person knowingly manufactures, delivers, or
–4– possesses with intent to deliver a controlled substance listed in Penalty Group 1
between four grams or more but less than 200 grams. TEX. HEALTH & SAFETY CODE
§ 481.112(d). “Possession” means “actual care, custody, control, or management.”
Id. § 481.002(38).
The State must prove Engelke intentionally or knowingly possessed a
controlled substance with an intent to deliver it to others. Engelke argues the State
failed to show he had “actual care, control, or management” of the
methamphetamine or that the substance was contraband. Specifically, Engelke
alleges he was not in exclusive possession of the vehicle where the
methamphetamine was found because the vehicle did not belong to him. We
disagree.
The evidence showed Engelke was in the driver’s seat when the officers
approached, was the sole occupant of the vehicle, acted in a nervous manner, kept
looking at the open driver’s side door, and gave Officers Ross and Rogers the wrong
name for the owner of the car. When asked how long he had possessed the car,
Engelke failed to respond. The bag that contained the methamphetamine was located
in the pocket of the driver’s side door, where Engelke was sitting when officers first
approached him. Engelke denied knowing the drugs were in the vehicle, but was
found with $750 in cash on his person. When asked if there was anything in the
vehicle, Engelke responded he “did not know.” Officers Rogers and Ross both
testified Engelke’s responses to their questions raised their suspicions of illegal
–5– activity. In addition to their testimony, the jury was able to view the body cameras
worn by both Officers Rogers and Ross.
The jury also heard testimony from Grayson County Sheriff’s Department
Investigator Dustin Stacks who was assigned as a narcotics investigator as well as a
member of the FBI’s violent crimes task force. Investigator Stacks stated he had
specialized training in narcotics and explained the effects of using
methamphetamine. For example, the user may stay awake for days and then crash
and “sleep for four or five days coming down” because they had been up for “several
days.” Investigator Stacks stated “meth is considered one of the most addictive of
the narcotics” and the amount found in Engelke’s vehicle was not a “user amount of
meth.” It was his opinion that $750 would be a lot of money for a methamphetamine
dealer and the prices of the drug “skyrocketed” during Covid-19 because the “supply
was cut off.” Investigator Stacks further explained that selling methamphetamine
was a supplier’s “livelihood” and believed they would keep their drugs close to them.
He also stated that when investigating methamphetamine dealers, he would look to
the weight found first.
Viewing the evidence in the light most favorable to the jury’s verdict, we find
the evidence was sufficient to support the jury’s reasonable determination of
“inferences necessary to establish guilt.” Wise, 364 S.W.3d at 903. We overrule
Engelke’s sole issue.
–6– B. Reformation of the Judgment
In a post-submission motion, Engelke requests we also modify the judgment
to correctly reflect what occurred in the trial court. He states the judgment incorrectly
states he pleaded guilty when he pleaded not guilty, the restitution amount states
“N/A” when it should be “$180.00,” and the trial court ordered this cause number to
run consecutively with his sentence in trial court cause number 06733. We agree.
We have the power to modify a judgment to speak the truth when we have the
necessary information to do so. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d
26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex.
App.—Dallas 1991, pet. ref’d) (en banc). When there is a conflict between the oral
pronouncement of a sentence and the written judgment, the oral pronouncement
controls. Shuler v. State, 650 S.W.3d 683, 686 (Tex. App.—Dallas 2022, no pet.)
(citing Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004)). When the oral
pronouncement and the written judgment conflict, the remedy is to reform the
judgment. See Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). In
our review of the record, we grant Engelke’s motion and make the following
changes: under “plea to offense,” change from guilty to not guilty; under restitution,
change from “N/A” to “$180.00;” and under “This Sentence shall run,” add
“consecutive to sentence in trial court cause number 06733.”
–7– CONCLUSION
Under this record, we conclude the evidence was sufficient to support
Engelke’s conviction. We further find the judgment should be modified as requested
by Engelke. Accordingly, we overrule Engelke’s sole issue and affirm the judgment
as modified.
211077f.u05 /Robbie Partida-Kipness/ Do Not Publish ROBBIE PARTIDA-KIPNESS TEX. R. APP. P. 47.2(b). JUSTICE
–8– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DUSTIN MICHAEL ENGELKE, On Appeal from the 15th Judicial Appellant District Court, Grayson County, Texas No. 05-21-01077-CR V. Trial Court Cause No. 072395. Opinion delivered by Justice Partida- THE STATE OF TEXAS, Appellee Kipness. Justices Nowell and Kennedy participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows: under “plea to offense,” change from guilty to not guilty; under restitution, change from “N/A” to “$180.00;” and under “This Sentence shall run,” add “consecutive to the sentence in trial court cause number 06733.” As REFORMED, the judgment is AFFIRMED.
Judgment entered this 24th day of May 2023.
–9–