                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-09-00313-CR

THOMAS RICHARDSON,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 40th District Court
                               Ellis County, Texas
                            Trial Court No. 33,583-CR


                          MEMORANDUM OPINION


      A jury found Thomas Richardson guilty of possession of a controlled substance

and assessed his punishment at 180 days’ confinement in a state jail facility. In two

issues, Richardson contends that the evidence is legally and factually insufficient to

support his conviction. We will affirm.

      The court of criminal appeals recently held that there is “no meaningful

distinction between the Jackson v. Virginia legal-sufficiency standard and the Clewis

factual-sufficiency standard” and that “the Jackson v. Virginia legal-sufficiency standard
is the only standard that a reviewing court should apply in determining whether the

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

required to prove beyond a reasonable doubt. All other cases to the contrary, including

Clewis, are overruled.” Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App. 2010).

Accordingly, we will apply the same standard of review to both of Richardson’s

sufficiency complaints.

        When reviewing a challenge to the sufficiency of the evidence to establish the

elements of a penal offense, we must determine whether, after viewing all the evidence

in the light most favorable to the verdict, any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443

U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Our duty is to determine if

the finding of the trier of fact is rational by viewing all of the evidence admitted at trial

in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex.

Crim. App. 1992). In doing so, any inconsistencies in the evidence are resolved in favor

of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

        The following evidence was presented at trial: Officer Justyn Wilder of the Ennis

Police Department testified that, shortly after midnight on August 1, 2008, he

responded to a domestic disturbance call.                 When he arrived at the home, he saw

Richardson standing outside.              Wilder asked Richardson what was going on, and

Richardson replied that he and his wife had had a verbal argument.1 Wilder then asked

Richardson to stay where he could see him while he went to speak with her. Wilder

        1   Lola Richardson later testified that she and Richardson had actually divorced in May 2008.

Richardson v. State                                                                                  Page 2
knocked on the door of the home, and Lola answered. She told Wilder that Richardson

had come home and that she believed he “was high on crack and drunk”; a verbal

altercation followed, and she wanted him to leave the residence. While talking to Lola,

Wilder kept his eye on Richardson the best that he could, and after talking to Lola for

about a couple of minutes, he went back over to Richardson, who was by his truck.

        Wilder ran Richardson’s information through dispatch and learned that he was

wanted. Wilder asked dispatch to confirm the warrants. Because domestic disturbance

calls are dangerous, Wilder was watching Richardson closely. Richardson turned away

from Wilder like he was looking at the bed of the truck and dropped what appeared to

be a crack pipe. As Wilder continued waiting on the confirmation of the warrants,

Richardson turned back toward Wilder and spoke to him.            Wilder noticed that

Richardson had something in his mouth. Richardson then turned away from Wilder

again, and Wilder heard what sounded like Richardson spitting. Wilder saw something

fall to the ground between Richardson’s legs, and Richardson attempted to use his feet

to cover it up with dirt.

        Wilder pulled Richardson away so that he could observe what was on the

ground. At that time, dispatch confirmed the warrants, so Wilder arrested Richardson.

Wilder then picked up the crack pipe and a small baggy containing what he believed to

be cocaine. The baggy was still wet with saliva and had mud on it. Richardson said

that the baggy was not his, but Richardson was arrested on the prior warrants and

possession of cocaine. A chemist for the Department of Public Safety Crime Laboratory




Richardson v. State                                                              Page 3
in Garland testified that the substance in the baggy contained cocaine, and the contents

weighed 0.02 grams.

        Lola Richardson testified that there had been a family get-together at her home

earlier in the evening, but later that night, she and Richardson had a heated argument.

Richardson wanted to come inside the house, but she did not want him to come in, and

he began banging on the window. She called 9-1-1 and told the dispatcher that she and

Richardson were having an argument and that she needed someone to come get him.

        When the police arrived, they talked to Richardson and then came to her front

door. Two police officers came into her living room to talk to her while Richardson was

outside. She told the officers that she and Richardson were having an argument, that he

had been drinking, and that she wanted him to leave. She did not tell them that

Richardson was high on cocaine. When the officers went back outside, she went to the

window and saw Richardson handcuffed and leaning over the truck. She watched until

they put Richardson in the car and drove off. She never saw Richardson drop or spit

anything.

        Richardson testified that he and Lola had gotten into an argument and that she

went inside and locked the door. When the police arrived, he was sitting in his truck.

He told the officer that he and Lola were having an argument and that he was going to

stay out in the truck. The officer then went to talk to Lola. He did not tell Richardson to

do anything. While the officer talked to Lola, Richardson got back into his truck where

he was drinking a beer.




Richardson v. State                                                                  Page 4
        Richardson further testified that after talking to Lola, the officer called in to see if

Richardson was wanted. Richardson was wanted for a hot check and a ticket. The

officer handcuffed Richardson before the warrants were confirmed. While handcuffed,

Richardson noticed that the officer had a flashlight pointed on the ground on a crack

pipe. Richardson stated that the officer claimed that it was Richardson’s, but it was not.

The officer who was standing four or five feet away from Richardson then looked next

to his own foot and picked up a little baggy and said “we got him now.” Richardson

stated that the only way the baggy could have gotten there is by the officer putting it

there; he never spit anything out. Richardson claimed that the officer set him up

because they were tired of him.

        A person commits an offense if he knowingly or intentionally possesses less than

one gram of cocaine. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), 481.115(a),

(b) (Vernon 2010). Richardson argues that the evidence is insufficient to support his

conviction because “Wilder’s version of events is not logical or reasonable.” Richardson

points to Lola’s testimony that Wilder went inside the house to speak with her. He

argues that if he had had cocaine and a crack pipe, he would have disposed of them

during this time when he was left unsupervised. Richardson also relies on his own

testimony that Wilder planted the drugs so that he could arrest Richardson and remove

him from the premises. However, by finding Richardson guilty, the jury obviously

believed Wilder’s version of events and disbelieved Richardson’s.

        The jury is the exclusive judge of the facts, the credibility of the witnesses, and

the weight to be given to the witnesses’ testimony. Jaggers v. State, 125 S.W.3d 661, 672

Richardson v. State                                                                       Page 5
(Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (citing Penagraph v. State, 623 S.W.2d

341, 343 (Tex. Crim. App. 1981)). A jury may believe all, some, or none of any witness’s

testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). As the reviewing

court, we “should not substantially intrude upon the jury’s role as the sole judge of the

weight and credibility of witness testimony.” Vasquez v. State, 67 S.W.3d 229, 236 (Tex.

Crim. App. 2002); see also Sharp, 707 S.W.2d at 614.         We must defer to the jury’s

determination concerning what weight to give any contradictory testimonial evidence.

See, e.g., In re A.B., 133 S.W.3d 869, 873-74 (Tex. App.—Dallas 2004, no pet.); Scugoza v.

State, 949 S.W.2d 360, 362-63 (Tex. App.—San Antonio 1997, no pet.); Fetterolf v. State,

782 S.W.2d 927, 933 (Tex. App.—Houston [14th Dist.] 1989, pet. ref’d).

        Viewing all the evidence in the light most favorable to the verdict, we thus

conclude that a rational trier of fact could have found Richardson guilty of the offense

of possession of a controlled substance beyond a reasonable doubt.          We overrule

Richardson’s issues and affirm the trial court’s judgment.



                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed June 29, 2011
Do not publish
[CR25]




Richardson v. State                                                                 Page 6
