Opinion
No. 07-20-00118-CR
11-10-2020
JAMES ALDUS TONEY, JR., APPELLANT v. STATE OF TEXAS, APPELLEE
On Appeal from the 54th District Court of McLennan County, Texas
Trial Court No. 2019-1474-C2 , Honorable Matt Johnson, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.
Appellant James Aldus Toney, Jr. appeals the trial court's judgment by which he was convicted of possessing one to four grams of methamphetamine and sentenced to twenty years' imprisonment. By one issue, he challenges the sufficiency of the evidence to establish that he knowingly possessed the controlled substance at issue. We affirm.
Because this appeal was transferred from the Tenth Court of Appeals, we are obligated to apply its precedent when available in the event of a conflict between the precedents of that court and this Court. See TEX. R. APP. P. 41.3.
Background
McLennan County Deputy Sheriff Kevin Reyna initiated a traffic stop of appellant during the early morning hours of May 31, 2019. Reyna suggested appellant may have been attempting to avoid detention but noted that he eventually pulled into a driveway and exited the vehicle. As he did, he dropped something on the ground, looked at Reyna, retrieved the item, and took off running between houses and through a backyard. When appellant fell after scaling a fence, Reyna apprehended appellant, handcuffed him, and performed a pat down. During the pat down, Reyna discovered a small bag containing what appeared to Reyna as marijuana. After scanning the immediate area of the physical contact, Reyna also found a bag containing multiple pills, which Reyna suspected to be ecstasy.
In light of Reyna's discovery of contraband, he initiated a search of the vehicle appellant was driving. That search yielded a pipe commonly used to smoke methamphetamine, which was wrapped in a napkin in the driver's side door compartment. Reyna also found what he suspected was methamphetamine in the console of the vehicle. That substance was ultimately confirmed to be 1.55 grams of methamphetamine.
It was for possession of this substance, rather than the marijuana or pills, that appellant was charged and convicted by a jury. The jury assessed punishment at twenty years' imprisonment. On appeal, appellant maintains that, because the evidence is clear that he was not the registered owner of the car and because the State otherwise failed to prove that appellant exercised care, custody, control, or management of the controlled substance, the evidence was insufficient to prove the essential element of possession.
Analysis: Sufficiency of the Evidence
When called on to evaluate the sufficiency of the evidence, we apply the standard of review outlined in Braughton v. State, 569 S.W.3d 592, 607-08 (Tex. Crim. App. 2018). To prove the offense of 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." Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006) (quoting Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005)); see TEX. HEALTH & SAFETY CODE ANN. § 481.002(38) (West Supp. 2020) (defining "possession" as "actual care, custody, control or management"). Regardless of whether the evidence is direct or circumstantial, it must establish that the defendant's connection with the drug was more than fortuitous. Evans v. State, 202 S.W.3d at 161.
A defendant's mere presence is insufficient to establish possession. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016) (citing Oaks v. State, 642 S.W.2d 174, 177 (Tex. Crim. App. 1982) (en banc)). When the contraband is not in the exclusive possession of the defendant, a factfinder may nonetheless infer that the defendant intentionally or knowingly possessed the contraband if there are sufficient independent facts and circumstances justifying such an inference. Id. at 413-14 (citing Poindexter, 153 S.W.3d at 406).
Courts have identified several factors that may be considered in determining whether a defendant is sufficiently linked to contraband, namely (1) the defendant's presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant's proximity to and the accessibility of the contraband; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the substance was found; (12) whether the place where the substance was found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt. See Evans, 202 S.W.3d at 162 n.12; see also Valadez v. State, No. 10-17-00161-CR, 2019 Tex. App. LEXIS 3934, at *4-5 (Tex. App.—Waco May 15, 2019, no pet.) (mem. op., not designated for publication). It is the "logical force" of the factors, not the number of factors present, that determines whether the element of knowing possession has been established. Evans, 202 S.W.3d at 162.
Here, we first note that the record establishes that the vehicle that appellant was driving was registered to one Patricia Owens, about which we know little else save that Reyna testified that she has never come forward to claim the methamphetamine as hers. We do not know how long appellant had been in possession of the car or how he came into such possession or on what terms he came into possession of it. We do know, however, that, at nearly 4:00 a.m. on that morning, appellant was in exclusive possession of the car, its sole occupant. See Hyett v. State, 58 S.W.3d 826, 830-31 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd) (considering appellant's sole occupancy of vehicle in which residual cocaine was found in pipe as linking appellant to cocaine). The record also reveals that appellant was in possession of various other contraband: the drugs discovered on and near his person when he was apprehended and, perhaps even more notably, the meth pipe in the driver's side door compartment. The methamphetamine itself was in close proximity and, by design, easily accessible to the driver in the center console. See Martinez v. State, No. 01-11-00904-CR, 2012 Tex. App. LEXIS 10518, at *11 (Tex. App.—Houston [1st Dist.] Dec. 20, 2012, pet. ref'd) (mem. op., not designated for publication) (noting that appellant, sole occupant of the vehicle, had convenient access to the center console where the drugs were discovered).
Appellant's actions immediately following the stop also lend themselves to the finding that appellant knowingly possessed the methamphetamine. The record indicates that appellant may have initially sought to rid himself of the contraband, reconsidered that approach, and then opted instead to flee from Reyna in defiance of Reyna's verbal commands to stop and get on the ground. See Figueroa v. State, 250 S.W.3d 490, 503 (Tex. App.—Austin 2008, pet. ref'd) (citing appellant's attempt to flee from the police prior to his arrest as evidence from which the jury could have inferred a consciousness of guilt); see also Sanderson v. State, No. 07-18-00210-CR, 2019 Tex. App. LEXIS 6518, at *7 (Tex. App.—Amarillo July 30, 2019, pet. ref'd) (mem. op., not designated for publication) (in possession-of-firearm case, concluding that "Appellant's attempt to flee from officers on foot indicated consciousness of guilt"). This indicates a consciousness of guilt.
Appellant tries to minimize the indicia's probative weight by effectively saying, "So what?"; "[r]unning from the police with drugs on your person certainly explains the running, but it would be speculative to assume that he was running because of drugs in the car." Yet, is it? We say not and come to that conclusion after considering other argument within his brief. For instance, he thought to pick up something he dropped after beginning his flight, and the police ultimately found him with marijuana and pills. To that we add his observation about "the powder methamphetamine in the console is not the same, or even in the same category, as pills and marijuana." Pondering these things led us to recall the scene in which Clemenza says, "Leave the gun. Take the cannoli." If the consequences of possessing methamphetamine are more dire than holding a small quantity of pot and pills, as appellant tells us, then he had greater motive to sever the tie between him and it. One must remember that the car was not his; given that, escaping afoot would hamper the State's ability to find and charge him with possessing the more heinous drug. So, he dropped the methamphetamine (by leaving it in a car) and took the pot and pills. No, we do not believe it speculative to infer that running from the car evinces his awareness of the methamphetamine in it. And, the jury was free to make that inference. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (observing that, "[w]hen the record supports conflicting inferences, an appellate court presumes that the factfinder resolved the conflicts in favor of the verdict and defers to that resolution").
THE GODFATHER (Paramount Pictures 1972).
The circumstantial evidence and logical force one gathers from it is some evidence upon which a reasonable jury could conclude, beyond reasonable doubt, that appellant knowingly possessed the methamphetamine at issue. We overrule appellant's sole issue on appeal and affirm the trial court's judgment of conviction.
Brian Quinn
Chief Justice Do not publish.