                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo
                            ________________________

                                 No. 07-17-00365-CR
                            ________________________

                       STEVIE PRESTON DEAN, APPELLANT

                                          V.

                           STATE OF TEXAS, APPELLEE



                         On Appeal from the 320thDistrict Court
                                  Potter County, Texas
              Trial Court No. 73,519-D; Honorable Don Emerson, Presiding


                                  September 13, 2018

                          MEMORANDUM OPINION
                    Before CAMPBELL, PIRTLE, and PARKER, JJ.


      In a bench trial, Appellant, Stevie Preston Dean, was convicted of the offense of

possession of a controlled substance, namely methamphetamine, in an amount of less
than one gram,1 enhanced by two prior felony convictions,2 and sentenced to six years in

prison. By a single issue, he contends the evidence was insufficient to support the trial

court’s finding that he had the requisite mental state for possession of the controlled

substance. We affirm.


        BACKGROUND

        On January 31, 2017, Appellant was stopped by Amarillo Police Officer Logan

McFarland for a traffic violation. During that stop, Appellant advised the officer that he

was in possession of drug paraphernalia. He was placed under arrest and during a

search incident to arrest, the officer found a small clear baggie of what he suspected to

be methamphetamine in the left breast pocket of the jacket being worn by Appellant. A

forensic analyst for the Texas Department of Public Safety determined that the baggie

contained 0.35 grams of a substance that tested positive for methamphetamine. The

analyst’s lab report was admitted into evidence.


        At trial, Appellant testified that he suffered from a bipolar disorder and paranoid

schizophrenia, for which he was on the medication Xanax.                    He denied having any

knowledge of the methamphetamine being in the jacket he was wearing, and he insisted

that he had never used methamphetamine because his “drug of choice” was crack. He

explained his lack of knowledge of the presence of the methamphetamine in the jacket

and the fact that he had just picked the jacket up off a couch at a party on the night of his



          1 TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2017). An offense under this section is a

state jail felony.
        2As enhanced, the offense was punishable as a second degree felony. TEX. PENAL CODE ANN. §
12.425(b) (West Supp. 2017)


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arrest. He denied owning the jacket and he testified that he did not check the jacket

pockets before he left the party. At counsel’s direction, Appellant put on the jacket in

open court to demonstrate that it did not fit. He further insisted that the drug paraphernalia

in his possession was a device used to smoke crack, not methamphetamine. Officer

McFarland confirmed that the pipe was a crack pipe.


       STANDARD OF REVIEW

       The only standard that a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense the State is required

to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Brooks v. State, 323 S.W.3d 893,

912 (Tex. Crim. App. 2010). In determining whether the evidence is legally sufficient to

support a conviction, a reviewing court considers all the evidence in the light most

favorable to the verdict and determines whether, based on that evidence and reasonable

inferences to be drawn therefrom, a rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Queeman v. State, 520 S.W.3d 616,

622 (Tex. Crim. App. 2017).


       Here, the trial judge was the sole judge of the credibility of the witnesses and the

weight to be given to their testimonies, and as a reviewing court we must defer to those

determinations and not usurp his role by substituting our judgment for that of the trial

judge. Id. (citing Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012)).

The duty of a reviewing court is simply to ensure that the evidence presented supports

the fact finder’s verdict and that the State has presented a legally sufficient case of the

offense charged.     Id.   When a reviewing court is faced with a record supporting

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contradicting conclusions, the court must presume the fact finder resolved any such

conflicts in favor of the verdict, even when not explicitly stated in the record. Id. “Under

this standard, evidence may be legally insufficient when the record contains no evidence

of an essential element, merely a modicum of evidence of one element, or if it conclusively

establishes a reasonable doubt.” Id. (quoting Britain v. State, 412 S.W.3d 518, 520 (Tex.

Crim. App. 2013)).


       POSSESSION

       To support the verdict rendered in this case, the State was required to prove that

Appellant knowingly or intentionally possessed a controlled substance, to-wit:

methamphetamine, in an amount of less than one gram. See TEX. HEALTH & SAFETY CODE

ANN. § 481.115(a) (West 2017). To prove possession, the State was required to show

that Appellant (1) exercised “actual care, custody, control, or management” of the

substance and (2) knew the substance possessed was contraband. See TEX. PENAL

CODE ANN. § 1.07(39) (West Supp. 2017); Evans v. State, 202 S.W.3d 158, 162-63 (Tex.

Crim. App. 2006).


       Mere presence is insufficient to establish possession and the State must establish

that a defendant’s connection with the substance was more than fortuitous. Evans, 202

S.W.3d at 161. This linking of the substance to the defendant protects the innocent

bystander, relative, friend, or even stranger from conviction merely because of his

serendipitous proximity to someone else’s drugs. Id. at 161-62. “However, presence or

proximity, when combined with other evidence, either direct or circumstantial (e.g., ‘links’),

may well be sufficient to establish that element beyond a reasonable doubt.” Id. at 162.

In circumstances where possession cannot be directly established, it is the logical force

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of all the evidence, direct and circumstantial, not the number of the incidental links, that

is determinative. Id.


       ANALYSIS

       Where, as here, Appellant has proposed a scenario purporting to establish that the

controlled substance was unknowingly possessed, he has effectively admitted that he

exercised actual care, custody, control, or management of the substance since he does

not dispute that he was in control of the jacket where it was found—he merely claims that

he was unaware of its presence on his person due to the circumstance of his having

acquired (accidentally or otherwise) someone else’s jacket. Effectively, he is claiming

that he had no knowledge that there was methamphetamine in his possession.

Therefore, the question comes down to whether the trial judge, as the sole trier of fact,

believed his testimony on that issue.


       As to Appellant’s testimony, the trial judge might have given him credit for his

candor in admitting to Officer McFarland that he was in possession of drug paraphernalia,

while at the same time, having questioned his moral character for taking someone’s

jacket. At trial, Appellant also testified that, at the time of his arrest, he was in the process

of trying to coax a young woman into having sex with him by taking her to buy some K2.

He also testified he was in possession of drug paraphernalia. Accordingly, we view these

credibility factors as not being absolutely determinative, one way or the other.


       Where, as here, Appellant was in actual possession of the controlled substance,

had a long history of drug abuse, and was in possession of drug paraphernalia at the time

of his arrest, we cannot say the record contains “no evidence of an essential element,


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merely a modicum of evidence of one element, or if it conclusively establishes a

reasonable doubt.” Although circumstantial, based on the evidence and reasonable

inferences to be drawn therefrom, we find the trial judge could have found the essential

elements of the crime beyond a reasonable doubt. As such, issue one is overruled.


      CONCLUSION

      The trial court’s judgment is affirmed.




                                                Patrick A. Pirtle
                                                     Justice


Do not publish.




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