Ian Alan Robertson v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 28, 2021
• Docket: 09-20-00118-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00118-CR __________________

IAN ALAN ROBERTSON, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 366th District Court Collin County, Texas Trial Cause No. 366-84331-2019 __________________________________________________________________

MEMORANDUM OPINION

A jury convicted appellant Ian Alan Robertson of possession of a controlled

substance with the intent to manufacture or deliver, and the trial court assessed

punishment at fifteen years of confinement. On appeal, Robertson challenges the

legal sufficiency of the evidence to support his conviction. We affirm the trial court’s

judgment.

1 THE EVIDENCE

Brent Parker testified that on July 3, 2019, he was stopped at a red light when

the driver of the vehicle in front of him floored the accelerator and ran through the

intersection. According to Parker, the vehicle drifted from lane to lane narrowly

missing the passing cars. Parker explained that when he encountered the vehicle at

the next stop light, he observed the driver turn left, weave through traffic, drive off

the road, and hit a tree. Parker testified that he pulled over, called 9-1-1, and while

waiting for the police to arrive, he observed the driver exit the vehicle and sit by a

tree. According to Parker, he observed the driver “interacting with the ground in

some way[]” and then return to his vehicle. Parker testified that when he showed the

officer where the driver had sat, he could see that the ground had been disturbed.

Parker identified Robertson as the driver.

Sergeant Christopher Kennedy of the McKinney Police Department testified

that on July 3, 2019, he responded to a call involving a vehicle striking a tree, and

Kennedy identified Robertson as the driver of the vehicle. Kennedy explained that

Robertson reported that he was involved in a road rage incident and that the other

driver ran him off the road causing him to strike the tree. Kennedy testified that he

did not observe any scrape marks on Robertson’s vehicle indicating that he had been

pushed. Kennedy explained that Robertson’s demeanor was “[v]ery excitable[,]” and

Kennedy suspected Robertson was on “some kind of intoxicant[.]”

2 Kennedy testified that he spoke to two witnesses, who stated that no other

vehicles were involved in the accident, and both witnesses reported that after the

accident, Robertson removed items from his car and ran to a certain location and hid

the items by burying them. Kennedy explained that one witness led him to a grass

covered median where Robertson had been, and Kennedy moved a few leaves and

found a “half-dollar sized baggie” containing a white powdery substance. Kennedy

testified that based on Robertson’s demeanor, he believed the substance Robertson

buried was cocaine or methamphetamine. Kennedy explained that he called the

narcotics detective to investigate the scene.

Officer William McClusky of the McKinney Police Department testified that

on July 3, 2019, he responded to a call regarding a single-car accident involving a

tree. McClusky testified that Robertson’s speech and body language was “[v]ery

aggressive” and argumentative. McClusky explained that after Kennedy reported

that a controlled substance was involved and that Robertson had tampered with

evidence, McClusky searched the passenger side of Robertson’s vehicle and found

a scale commonly used to weigh narcotics. McClusky testified he arrested Robertson

for tampering with evidence and manufacturing or delivery of a controlled

substance.

An undercover officer, a corporal with the McKinney Police Department,

testified that he works in the narcotics unit and conducts narcotics investigations.

3 The undercover officer testified that on July 30, 2019, he was working as the on-call

narcotics detective when he responded to Kennedy’s request to investigate a

narcotics case. The undercover officer described Robertson as being “hot and cold[]”

and “[r]eally sweaty[,]” and based on Robertson’s demeanor, the undercover officer

believed Robertson was under the influence of a narcotic. The undercover officer

testified that he field tested the narcotics recovered at the scene and determined that

it was methamphetamine. The undercover officer also explained that the other

officers who searched Robertson’s vehicle found drug paraphernalia, including

scales, which are consistent with selling narcotics.

The undercover officer further testified that based on his training and

experience, the methamphetamine found at the scene was not a user amount, and the

undercover officer opined that Robertson possessed methamphetamine with the

intent to deliver. The undercover officer explained that it was not “normal[]” for a

“true methamphetamine user” to have over ten grams of methamphetamine because

a user only buys enough to use. The undercover officer also explained that

Robertson’s demeanor did not affect his opinion that Robertson was a dealer because

dealers commonly sell narcotics to support their own habit.

The undercover officer further testified that Robertson voluntarily admitted

“that it was his stuff and . . . he’s basically the one that purchases it to sell it and he

was offering up [a] bigger dealer than him - - his words.” According to the

4 undercover officer, Robertson was “talking about buying ounces of meth[,]” and was

trying to give a dealer name “[i]n lieu of going to jail.” The undercover officer

testified that he gave Robertson the opportunity to work off his case by giving them

the opportunity to go after the “bigger fish,” but Robertson never contacted him.

Paige McWhorter, a forensic investigator with the McKinney Police

Department testified that on July 3, 2019, she collected the evidence, which included

a baggie with a crystal-like substance, from the location where Robertson had placed

it on the ground. McWhorter testified that a digital scale, a grinder, and a glass pipe

were recovered from Robertson’s vehicle. Renea Eckelkamp, a forensic analyst with

the Texas Department of Public Safety Crime Lab, testified that she tested the

crystalline substance recovered from the scene and determined it contained 10.13

grams of methamphetamine.

A second undercover officer, an investigator with the Allen Police

Department who is assigned to the narcotics unit, testified that a typical user amount

of methamphetamine is “anywhere from half a gram to a gram.” The second

undercover officer testified that drug dealers commonly sell to fund their own habit

and make money. According to the second undercover officer, an individual carrying

10.13 grams of methamphetamine accompanied with a digital scale or drug

paraphernalia has possession with intent to deliver. The second undercover officer

testified that based on his training and experience, the presence of a digital scale

5 leads him to suspect that the individual is breaking methamphetamine down into

smaller amounts to distribute.

ANALYSIS

In issue one, Robertson contends that the evidence showing he possessed ten

grams of methamphetamine and a digital scale is insufficient to establish he had an

intent to deliver. Robertson does not contest the sufficiency of the evidence showing

that he possessed the methamphetamine, but that the State failed to prove the

additional element of intent to deliver. The State contends that the evidence is

sufficient to support the jury’s finding because in addition to possessing a digital

scale, Robertson admitted that he was going to sell the methamphetamine, and he

possessed an amount of methamphetamine that was more than for personal use.

In evaluating the legal sufficiency of the evidence, we review all the evidence

in the light most favorable to the verdict to determine whether any rational factfinder

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

Brooks v. State, 323 S.W.3d 893, 902 n.19 (Tex. Crim. App. 2010) (citing Jackson

v. Virginia, 443 U.S. 307, 319 (1979)); Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007). The jury is the ultimate authority on the credibility of the

witnesses and the weight to be given their testimony. Penagraph v. State, 623

S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981). An appellate court may not

sit as a thirteenth juror and substitute its judgment for that of the factfinder by

6 reevaluating the weight and the credibility of the evidence. See Dewberry v. State, 4

S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Brooks, 323 S.W.3d at 899. A

reviewing court must give full deference to the jury’s responsibility to fairly resolve

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

from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13. If the record contains

conflicting inferences, we must presume the jury resolved such facts in favor of the

verdict and defer to that resolution. See Brooks, 323 S.W.3d at 899 n.13; Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In addition, we determine

whether the necessary inferences are reasonable based upon the combined and

cumulative force of all evidence when viewed in the light most favorable to the

verdict. Clayton, 235 S.W.3d at 778. We treat direct and circumstantial evidence

equally. Id. While the State has the burden of proof, it need not introduce direct

evidence to establish the defendant is guilty of a crime. See Hooper, 214 S.W.3d at

14. Instead, the evidence need only “point directly and independently to the

defendant’s guilt[.]” Id. at 13. On appeal, we will affirm the conviction when the

“cumulative force of all the incriminating circumstances is sufficient to support the

conviction.” Id.

A person commits possession of a controlled substance with intent to deliver

if he knowingly possesses methamphetamines that is “by aggregate weight,

including adulterants or dilutants, four grams or more but less than 200 grams.” Tex.

7 Health & Safety Code Ann. §§ 481.102(6), 1 481.112(a), (d). “‘Possession’ means

actual care, custody, control, or management.” Id. § 481.002(38).2 “To prove

unlawful possession of a controlled substance, the State must prove that: (1) the

accused exercised control, management, or care over the substance; and (2) the

accused knew the matter possessed was contraband.” Poindexter v. State, 153

S.W.3d 402, 405 (Tex. Crim. App. 2005), abrogated on other grounds by Robinson

v. State, 466 S.W.3d 166, 173 n.32 (Tex. Crim. App. 2015). Intent to deliver may be

proved by circumstantial evidence, such as the quantity of drug possessed, the

manner of packaging, and the presence of large amounts of money, including

evidence regarding a defendant’s possession of the drugs. Smith v. State, 737 S.W.2d

933, 941 (Tex. App.—Dallas 1987, pet. ref’d); Mack v. State, 859 S.W.2d 526, 528-

29 (Tex. App.—Houston [1st Dist.] 1993, no pet.). Additional factors include

whether the defendant is a drug user, the nature of the location where the defendant

was arrested, the presence of or absence of drug paraphernalia, and whether there is

evidence of other drug transactions. Kibble v. State, 340 S.W.3d 14, 18-19 (Tex.

App.—Houston [1st Dist.] 2010, pet. ref’d); Smith, 737 S.W.2d at 941.

1 We cite to the current version of section 481.102 of the Texas Health and Safety Code because the 2021 amendment does not affect the outcome of this appeal. 2 We cite to the current version of section 481.002 of the Texas Health and Safety Code because the 2021 amendment does not affect the outcome of this appeal.

8 The evidence most favorable to the verdict shows that Robertson possessed

10.13 grams of methamphetamine, and that based on the training and experience of

the undercover officers, that amount of methamphetamine is not a typical user

amount. The evidence also showed that drug paraphernalia was found in Robertson’s

vehicle, including a digital scale which is consistent with selling narcotics.

According to both undercover officers, Robertson possessed methamphetamine with

intent to deliver. Additionally, the first undercover officer explained that Robertson

voluntarily admitted the methamphetamine was his and that he purchases and sells

methamphetamine. The evidence also showed that Robertson’s demeanor did not

affect the first undercover officer’s opinion that Robertson was a dealer, and that

both undercover officers agreed that it is common for dealers to sell narcotics to

support their own habit.

Viewing the evidence in the light most favorable to the jury’s verdict, we

conclude that a rational jury could find, beyond a reasonable doubt, that Robertson

committed the offense of possession of a controlled substance with intent to deliver.

See Tex. Health & Safety Code Ann. § 481.112(a), (d); see also Jackson, 443 U.S.

at 318-19; Hooper, 214 S.W.3d at 13; Smith, 737 S.W.2d at 941. We overrule

Robertson’s sole issue and affirm the trial court’s judgment.

9 AFFIRMED.

_________________________ W. SCOTT GOLEMON Chief Justice

Submitted on June 4, 2021 Opinion Delivered July 28, 2021 Do Not Publish

Before Golemon, C.J., Kreger and Johnson, JJ.