                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-14-00226-CR

STEPHEN KENNETH LANE SELLERS,
                                                        Appellant
v.

THE STATE OF TEXAS,
                                                        Appellee


                         From the 19th District Court
                          McLennan County, Texas
                         Trial Court No. 2013-2242-C1


                         MEMORANDUM OPINION


      Stephen Kenneth Lane Sellers was convicted of possession with the intent to

deliver a controlled substance, that being methamphetamine, and sentenced to 40 years

in prison. See TEX. HEALTH & SAFETY CODE ANN. § 481.112 (a), (c) (West 2010). Because

the evidence was sufficient to support the conviction, the trial court’s judgment is

affirmed.

BACKGROUND

      Waco Police Department Officer Cassie Price was patrolling a specific area of
town in the early morning hours looking for a suspect in a recent burglary. When she

arrived at the area of the burglary, she turned off her headlights and noticed a man

walking down the middle of the street. She turned on her headlights and the man

ducked behind a parked car. She activated her overhead lights and the man emerged

from behind the car, holding a knife and cell phone in one hand and a cigarette in the

other.     The man, who was identified as Sellers, was eventually arrested on an

outstanding warrant. When the location where he had been hiding was searched after

his arrest, a pouch containing a sellable amount of methamphetamine and delivery

paraphernalia was found. Sellers was later charged with possession with the intent to

deliver methamphetamine.

SUFFICIENCY OF THE EVIDENCE

         In two issues on appeal, Sellers asserts that the evidence was insufficient to show

that he possessed or intended to deliver a controlled substance or that he used or

exhibited a deadly weapon.

         The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

                In determining whether the evidence is legally sufficient to support
         a conviction, a reviewing court must consider all of the evidence in the
         light most favorable to the verdict and determine whether, based on that
         evidence and reasonable inferences therefrom, a rational fact finder could
         have found the essential elements of the crime beyond a reasonable doubt.
         Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
         13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
         responsibility of the trier of fact fairly to resolve conflicts in the testimony,
Sellers v. State                                                                             Page 2
         to weigh the evidence, and to draw reasonable inferences from basic facts
         to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
         directly and independently to the guilt of the appellant, as long as the
         cumulative force of all the incriminating circumstances is sufficient to
         support the conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

         The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,

326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence

are treated equally: "Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is

well established that the factfinder is entitled to judge the credibility of witnesses and

can choose to believe all, some, or none of the testimony presented by the parties.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

Possession

         Sellers first argues that the evidence was insufficient to support the possession

element of the offense.

         To prove unlawful possession of a controlled substance, the State must prove


Sellers v. State                                                                     Page 3
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); see also TEX. HEALTH & SAFETY CODE ANN. § 481.002(38)

(West 2010) ("'Possession' means actual care, custody, control, or management.").

Possession is not required to be exclusive. Roberts v. State, No. 10-14-00048-CR, 2015

Tex. App. LEXIS 78, *3-4 (Tex. App.—Waco Jan. 8, 2015, no pet. h.) (not designated for

publication).

         When the defendant is not in exclusive possession of the place where the

controlled substance is found, then additional, independent facts and circumstances

must link the defendant to the substance in such a way that it can reasonably be

concluded that the defendant possessed the substance and had knowledge of it. See

Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). Whether this evidence is

direct or circumstantial, "it must establish, to the requisite level of confidence, that the

accused's connection with the drug was more than just fortuitous." Id. 405-406 (quoting

Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)). Evidence which links the

defendant to the controlled substance suffices for proof that he possessed it knowingly.

Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). It is not the number of links

that is dispositive, but rather the logical force of all of the evidence, direct and

circumstantial. Evans, 202 S.W.3d at 162; Santiesteban-Pileta v. State, 421 S.W.3d 9, 12

(Tex. App.—Waco 2013, pet. ref’d).


Sellers v. State                                                                      Page 4
Facts

         The evidence showed that Sellers was walking down a residential street at four

in the morning. As a police car without its lights on approached, he concealed himself

behind a parked vehicle. Once the officer, Cassie Price, activated her overhead lights,

Sellers emerged from behind the vehicle holding a multi-tool utensil with the knife

blade out. Price asked Sellers to drop the knife and step away from it. He complied.

While speaking with Price during the encounter, Sellers used his cell phone and made

at least one call, informing Price that he was talking to a girl.

         After backup arrived, Sellers was arrested on an outstanding warrant. Price then

decided to search the area behind the vehicle where Sellers had been hiding. There, she

found a black pouch containing 2.46 grams of methamphetamine, a shattered glass

pipe, a straw, a set of scales, a small tray, several baggies, and an amount of cash. A

short time later, a woman, Sherri Vannatta, arrived on the scene. Vannatta advised

Price that she had come at Sellers’s request to get Sellers’s belongings. She told Price

that the black pouch was Sellers’s, and identified the pouch and confirmed at trial that it

was Sellers’s. Further, Sellers’s cell phone, which was searched later pursuant to a

warrant, showed an unsent text message to Vannatta which referenced the black pouch.

Application

         Although Sellers was not         at   the specific   location at   the   time   the

methamphetamine was located, we find that the evidence sufficiently linked Sellers to


Sellers v. State                                                                     Page 5
the drugs to support the possession element of the offense. Sellers would like us to

review and give great scrutiny to links not present in this case. However, the absence of

any of the various factors discussed in other cases does not constitute evidence of

innocence to be weighed against the factors present in this case.        Santiesteban-Pileta v.

State, 421 S.W.3d 9, 15 (Tex. App.—Waco 2013, pet. ref’d).

Intent to Deliver

         Sellers also contends the evidence is insufficient to prove that he had the intent to

deliver methamphetamine.

         Intent to deliver may be established by expert testimony, such as testimony from

experienced law enforcement, and by circumstantial evidence. Moreno v. State, 195

S.W.3d 321, 325 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd); Terrell v. State, 2011

Tex. App. LEXIS 5605 (Tex. App.—Waco July 20, 2011, pet. ref’d) (not designated for

publication).

Additional Facts

         Some of the facts that support the element of possession also support the element

of intent to deliver. Those facts do not bear repeating here. Additional facts supporting

the intent to deliver element are as follows.

         Sgt. John Allovio testified at trial that based on his experience as a drug

enforcement officer, the amount of methamphetamine recovered from the black pouch

could be sold in 25 units with a total cash value of $250. Reviewing the contents of


Sellers v. State                                                                        Page 6
Sellers’s cell phone, Allovio identified messages, such as “r u still holding anything or r

u out,” and “I still got some,” that were consistent with drug-dealing and were

conveyed in common drug culture language.              Based on the amount of meth-

amphetamine recovered, the scales, the individual dosage baggies, and the text

messages, Allovio formed an opinion that the evidence was indicative of someone who

would be selling narcotics. Further, Allovio testified that based on the totality of the

circumstances, he had no doubt that the black pouch and its contents belonged to

Sellers.

Application

         Although the black pouch was not recovered from Sellers, it was identified as

being his pouch. Further, what was in the pouch, along with text messages retrieved

from Sellers’s cell phone sufficiently indicated that Sellers intended to deliver the

methamphetamine.

Conclusion

         Accordingly, after considering all of the evidence in the light most favorable to

the verdict, we determine that, based on that evidence and reasonable inferences

therefrom, a rational jury could have found beyond a reasonable doubt that Sellers

knowingly possessed the methamphetamine with the intent to deliver it.

         Sellers’s first issue is overruled.




Sellers v. State                                                                     Page 7
Deadly Weapon

         Sellers further contends the evidence was insufficient to support the deadly

weapon finding made by the jury. Specifically, Sellers contends that the evidence was

insufficient to show that the knife was, in fact, a deadly weapon.

         What constitutes a "deadly weapon" is determined by Section 1.07 of the Texas

Penal Code. TEX. PENAL CODE ANN. § 1.07 (West 2011); Robertson v. State, 163 S.W.3d

730, 732 (Tex. Crim. App. 2005).      A deadly weapon includes anything manifestly

designed, made, or adapted for the purpose of inflicting death or serious bodily injury,

or anything that in the manner of its use or intended use is capable of causing death or

serious bodily injury. Id. § 1.07(a)(17)(A), (B) (emphasis added). "Serious bodily injury"

means bodily injury that creates a substantial risk of death or that causes death, serious

permanent disfigurement, or protracted loss or impairment of the function of any

bodily member or organ. Id. § 1.07(a)(46).

         Whether any particular knife is a deadly weapon by design or usage or not a

deadly weapon at all depends on the evidence. Thomas v. State, 821 S.W.2d 616, 620

(Tex. Crim. App. 1991). The plain language of the statute does not require the actor to

actually intend death or serious bodily injury; an object is a deadly weapon if the actor

intends a use of the object in which it would be capable of causing death or serious

bodily injury.     McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). The

placement of the word "capable" in the provision enables the statute to cover conduct


Sellers v. State                                                                    Page 8
that threatens deadly force, even if the actor has no intention of actually using deadly

force. Id.

         Expert or lay testimony may be sufficient to support a deadly-weapon finding,

and police officers can be expert witnesses with respect to whether a deadly weapon

was used. Tucker v. State, 274 S.W.3d 688, 692 (Tex. Crim. App. 2008). Furthermore, the

blade need not actually have caused any injuries for it to be considered a deadly

weapon. Id. at 691.

         The knife at issue was not introduced into evidence. It was, however, described

as part of a multi-tool instrument that contained other utensils, such as a screwdriver

and pliers, as well as the knife. Further, when the knife blade was out, it was locked in

place. To put the knife blade away would require the blade to be unlocked.

         Officer Price first saw the knife when Sellers emerged from behind the car where

he had been hiding. When she saw what it was, she asked Sellers to put it down and

step away from it. Price was concerned about the knife because she did not want to be

stabbed. Price was by herself and was concerned that Sellers, seeing a uniformed

officer, would still emerge from his hiding place carrying a blade. Price agreed that, in

the manner of its intended use, the knife could have caused serious bodily injury.

         On the video of the encounter between Sellers and Price, Sellers could be seen

coming out from behind a vehicle with something in his right hand as soon as Price

stopped her patrol unit. He continued to approach her until they were about 5 feet


Sellers v. State                                                                     Page 9
apart. When Price asked to see what was in Seller’s hand, he showed her the blade

which appeared to be about 4 inches long. After Seller’s put the knife down, he backed

away a few more feet from Price.

         After considering all of the evidence in the light most favorable to the verdict, we

determine that, based on that evidence and reasonable inferences therefrom, a rational

jury could have found beyond a reasonable doubt that the knife, at the very least, was a

deadly weapon by the manner of its use or intended use.

         Sellers’s second issue is overruled.

CONCLUSION

         Having overruled each of Sellers’s issues presented on appeal, we affirm the trial

court’s judgment.




                                            TOM GRAY
                                            Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 7, 2015
Do not publish
[CRPM]




Sellers v. State                                                                      Page 10
