Stapleton v. State

852 S.W.2d 632, 1993 Tex. App. LEXIS 823, 1993 WL 81236
CourtCourt of Appeals of Texas
DecidedMarch 25, 1993
DocketNo. C14-92-00324-CR
StatusPublished
Cited by3 cases

This text of 852 S.W.2d 632 (Stapleton v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stapleton v. State, 852 S.W.2d 632, 1993 Tex. App. LEXIS 823, 1993 WL 81236 (Tex. Ct. App. 1993).

Opinion

OPINION

ROBERTSON, Justice.

In a trial before the court, appellant was found guilty of possession of marihuana in a useable quantity of more than four ounces but less than five pounds. Appellant pled true to two enhancements and punishment was assessed at confinement for thirty years in the Institutional Division of the Texas Department of Criminal Justice. In three points of error, appellant claims the evidence was legally and factually insufficient for conviction, and that the trial court erred in admitting an audio tape recording. We affirm.

In his first point of error, appellant contends the evidence was legally insufficient to establish that he possessed the marihuana. When considering a sufficiency of the evidence point of error, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Jackson v. State, 672 S.W.2d 801, 803 (Tex.Crim.App.1984). An appellate court is not to substitute its judgment for that of the jury or act as a thirteenth juror. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). The trier of fact is the sole judge of the credibility of the witnesses and may believe or disbelieve all or any part of a witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159 (1988).

On September 17, 1991 appellant, accompanied by two other individuals, brought a large bag to the apartment of Sherry Short. Appellant brought the bag to Ms. Short’s bedroom. Shortly thereafter, appellant and the two individuals left the apartment. Later that day, the police received a call from an individual who identified herself as Sherry Short. She asked [634]*634the police to recover a bag of marihuana that her boyfriend left in her apartment. Acting on this tip, the police went to Ms. Short’s apartment and asked her about the bag. Ms. Short allowed the police to enter her apartment, and they recovered the bag containing marihuana from Ms. Short’s bedroom.

The officer testified that Ms. Short provided a picture of the individual to whom the marihuana belonged, and she also gave a description of his car. Ms. Short also informed the officers that the owner of the marihuana carried a .38 pistol. The officers took the marihuana from Ms. Short’s apartment, and set up surveillance outside her apartment.

Later that evening, appellant returned to the apartment complex. Appellant was in a vehicle that matched the description given by Ms. Short and his physical appearance matched that given by her. As the officers approached appellant, he attempted to back away from his parking space. The officers stopped appellant and placed him under arrest. The police informed Ms. Short that appellant had been arrested, and she identified appellant’s vehicle. The police searched the vehicle and recovered a .38 pistol in the trunk. The contents of the bag were tested and it was confirmed that the bag contained marihuana.

Appellant points to the following conflicts in the evidence. Ms. Short’s son testified that he thought appellant had carried a black plastic bag into the apartment. He testified that the brown bag offered by the state did not look like the bag he saw appellant bring into the apartment, although it was similar.

Ms. Short testified that she was not home when appellant came to her apartment on September 17, and she had no knowledge that he had been there. She allowed the police to come in when they came to her apartment because she had nothing to hide. Ms. Short denies giving the police a description of appellant, his car, or his gun. She testified that appellant often brought bags of laundry to her apartment. Ms. Short also denied that she made the call to the police.

Just because the defendant presents a different version of the facts does not render the state’s evidence insufficient. Anderson v. State, 701 S.W.2d 868, 872 (Tex.Crim.App.1985), cert. denied, 479 U.S. 870, 107 S.Ct. 239, 93 L.Ed.2d 163 (1986). Conflicts in evidence are left for the trier of fact to resolve. Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App.1986). The trier of fact is free to accept one version of the facts, reject another, or to reject all or any of a witness’s testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.1986). Looking at the evidence in a light most favorable to the verdict, we find the evidence was sufficient to establish appellant possessed the marihuana in question, and determine a rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. Appellant’s first point of error is overruled.

Appellant, in his second point of error, asks this court to review the evidence on the basis that it was factually insufficient. See Meraz v. State, 785 S.W.2d 146 (Tex.Crim.App.1990). In Meraz, the court was dealing with the review of the defendant’s affirmative defenses. Id. at 155-56. This court has consistently refused to extend this type of review to the evidence upon which the state has the burden of proof beyond a reasonable doubt. See Richard v. State, 830 S.W.2d 208, 213-14 (Tex.App.—Houston [14th Dist.] 1992, pet. ref’d); Mukes v. State, 828 S.W.2d 571, 573-74 (Tex.App.—Houston [14th Dist.] 1992, no pet.); Brown v. State, 804 S.W.2d 566, 571 (Tex.App.—Houston [14th Dist.] 1991, pet. ref’d); Marsh v. State, 800 S.W.2d 607, 610 (Tex.App.—Houston [14th Dist.] 1990, pet. ref’d). We decline appellant’s request to enlarge the scope of a factual insufficiency review in criminal cases, and overrule his second point of error.

Appellant’s final point of error deals with the admittance of a tape recording of the initial tip to the police. Appellant objected to the admission of the tape claiming the proper predicate had not been established by the state. Specifically, appellant [635]*635argued that the voices had not been properly identified, there was no testimony that the recording machine was properly working, there was a lack of authenticity, and that the recording was hearsay.

The recording was of a telephone call from an individual identifying herself as Sherry Short. The caller gave Ms. Short’s address and asked the police to remove from her apartment a bag of marihuana put there by her boyfriend.

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Related

Jenkins v. State
948 S.W.2d 769 (Court of Appeals of Texas, 1997)
Stapleton v. State
868 S.W.2d 781 (Court of Criminal Appeals of Texas, 1993)

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Bluebook (online)
852 S.W.2d 632, 1993 Tex. App. LEXIS 823, 1993 WL 81236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stapleton-v-state-texapp-1993.