                            NUMBER 13-13-00188-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

SHANE CHRISTOPHER ALLEN,                                                  Appellant,

                                          v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 424th District Court
                         of Burnet County, Texas.


                       MEMORANDUM OPINION
 Before Chief Justice Valdez and Justices Rodriguez and Benavides
            Memorandum Opinion by Justice Benavides

      Appellant Shane Christopher Allen appeals his conviction for possession of a

controlled substance in penalty group one, weighing an amount of four grams or more

but less than two hundred grams, with an intent to deliver, a first-degree felony.   See

TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d) (West, Westlaw through 2013 3d
C.S.). By three issues, which we re-organize as two, Allen asserts that:                      (1) the trial

court erred by denying his motion to suppress, and (2) the evidence is insufficient to

sustain his conviction. We affirm.

                                         I.      BACKGROUND1

        A Burnet County grand jury indicted Allen for possession of methamphetamine,

with intent to deliver, in an amount of four grams or more but less than two hundred

grams.      See id. Allen pleaded not guilty, and his case was tried to a jury.               The record

reveals the following:

        As he left work for the day on September 29, 2011, Burnet Police Department

Chief Paul Nelson responded to a call of a “disturbance in progress” at 300 Leffingwell

Lane in Burnet, Texas. Chief Nelson testified that the home belonged to Maureen Boyd

and that Boyd was having problems with her adult son, John Douglass, who lived on her

property.     According to Chief Nelson, Boyd and Douglass “had a history of . . .

problems” and Douglass had “drug problems in the past.” Upon arriving at the Boyd

residence, Chief Nelson met with Boyd, who was concerned about a “white car” driven

by a “white male” that had been on her property prior to the police arriving.                       Other

officers responded later to the Boyd residence, so Chief Nelson decided to leave.

        As Chief Nelson drove off the Boyd property down Leffingwell Lane, he observed

a white vehicle driving toward the Boyd residence.2 The vehicle did not have a front

license plate.     Chief Nelson decided to turn his vehicle around and pull up behind the


        1 This case is before this Court on transfer from the Third Court of Appeals in Austin pursuant to a

docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001
(West, Westlaw through 2013 3d C.S.).
        2 According to Chief Nelson, Leffingwell Lane is a dirt road that is considered a “public roadway”
leading from Highway 29 to the Boyd residence, which is the sole destination on Leffingwell Lane.

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white car. At that point, the driver of the white car—later identified as Allen—stopped

his vehicle and put the car in reverse.    Chief Nelson then turned his “red and blue lights

on” and conducted a traffic stop of Allen’s vehicle.       On cross-examination, Chief Nelson

admitted that he discovered a “temporary [license plate] tag” displayed in Allen’s rear

window, as he approached Allen’s car, which would excuse Allen’s violation of not

displaying his front license plate.      However, Chief Nelson reaffirmed that Boyd had

described the “white car” for Chief Nelson and told him that if the same person in the

white car “showed back up on her property . . . [the police] could come and give him a

criminal trespass warning” because she did not want this individual on her property.

During the stop, Chief Nelson approached Allen’s vehicle, observed an open beer can in

the center console, and asked Allen to step out.        Chief Nelson asked Allen to identify

himself, and a short time later, Captain Jason Davis arrived to assist and relieve Chief

Nelson, who had to leave the scene.

       Captain Davis testified that he looked into Allen’s vehicle and observed an open

beer can in the center console.          Captain Davis asked Allen whether he had any

marijuana in the vehicle, and Allen replied that he did.        Captain Davis testified that he

felt he had enough probable cause to search Allen’s vehicle.         In conducting his search,

Captain Davis found a black “zippered pouch” bag on the driver’s side floorboard which

contained “pills[,] . . . several small baggies that contained different amount[s] of [a] white

crystal substance[,] . . . . needles, pipes, [and] a digital scale. . . .” Based on his training

and experience in policing narcotics, Captain Davis testified that digital scales are used

to “weigh out” drugs. Captain Davis also performed a field test of the white crystal

substance    found    in   the   black    bag.       The    substance    tested   positive   for


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methamphetamine. Captain Davis collected the evidence and placed it police custody

for further testing by the Texas Department of Public Safety Laboratory.

       Jeffery Keverline, a forensic scientist with the Texas Department of Public Safety,

testified that he tested several pieces of evidence submitted by the State, including

State’s Exhibits 6A through 6J.     According to Keverline, the aggregate weight of the

substance seized by the Burnet police from Allen was 12.95 grams and testing revealed

that the exhibits contained methamphetamine, including “adulterants and dil[u]tants.”

       Investigator Nolan Hicks of the Burnet County Special Operations Unit testified

that he has handled hundreds of narcotics investigations and cases.          According to

Investigator Hicks, drugs are typically for personal use when they are found without

scales.   Investigator Hicks testified that scales are used by drug dealers to “make [the]

most profit” from the narcotics.   Investigator Hicks also stated that generally possession

of “a gram or two,” of drugs indicates personal use, but possession of “12 to 13 grams of

methamphetamine” is not an amount that he would consider for personal use.         Finally,

Investigator Hicks testified that the State’s evidence collected from Allen’s black bag

suggests an intent to deliver based upon his possession of plastic bags in varying sizes,

the digital scale, and some of the drugs found in Allen’s bag appeared to have been

“preweighed out and prepackaged for sale.”

       The jury found Allen guilty as charged in the indictment.   During the punishment

phase of trial, the State alleged a 2007 prior felony conviction for possession of a

controlled substance with intent to deliver to enhance Allen’s penalty as a repeat felony

offender. See TEX. PENAL CODE ANN. § 12.42(c)(1) (West, Westlaw through 2013 3d

C.S.). Allen pleaded “not true” to the enhancement allegation, but the jury found the


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allegation true and sentenced Allen to twenty-five years’ imprisonment in the Texas

Department of Criminal Justice—Institutional Division.      This appeal followed.

                                II.     MOTION TO SUPPRESS

       By two issues, which we address as one, Allen asserts that the trial court erred by

denying his motion to suppress the evidence seized from his vehicle.

       A. Standard of Review

       We review a motion to suppress evidence under a bifurcated standard of review.

State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013); Guzman v. State, 955

S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc). Regardless of whether the trial court

granted or denied the motion, appellate courts view the evidence in the light most

favorable to the ruling. Wade v. State, 422 S.W.3d 661, 666 (Tex. Crim. App. 2013).

The trial court’s determinations of historical facts and mixed questions of law and fact

that rely on credibility are granted almost total deference when supported by the record.

Kerwick, 393 S.W.3d at 273. We review de novo a trial court’s application of the law of

search and seizure to the facts.      Wade, 422 S.W.3d at 666. When mixed questions of

law and fact do not depend on the evaluation of credibility and demeanor, we review

those questions de novo.      Kerwick, 393 S.W.3d at 273. Whether the facts known to

the officer at the time of the detention amount to reasonable suspicion is a mixed

question of law that is reviewed de novo.     Id.

       B. Discussion

       Allen first argues that the evidence shows that Chief Nelson did not have the

reasonable suspicion necessary to justify his detention of Allen. We disagree. There

are three distinct types of police-citizen interactions:   (1) consensual encounters that do


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not implicate the Fourth Amendment; (2) investigative detentions that are Fourth

Amendment seizures of limited scope and duration that must be support by a reasonable

suspicion of criminal activity; and (3) arrests, the most intrusive of Fourth Amendment

seizures, that are reasonable only if supported by probable cause.     Wade, 422 S.W.3d

at 667.   “Reasonable suspicion of criminal activity permits a temporary seizure for

questioning that is limited to the reason for the seizure.”    Id. (citing United States v.

Brignoni-Ponce, 422 U.S. 873, 881–82 (1975)).          “A police officer has reasonable

suspicion for a detention if he has specific, articulable facts that, when combined with

rational inferences from those facts, would lead [the officer] to reasonably conclude that

the person detained is, has been, or soon will be engaged in criminal activity.”

Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). This standard is

an objective one that disregards the subjective intent of the arresting officer and looks,

instead, to whether there was an objectively justifiable basis for the detention.   Id.   An

investigative detention is justified if the totality of the circumstances combine to

reasonably suggest the imminence of criminal conduct.      Id. Thus, the relevant inquiry

is not whether particular conduct is innocent or criminal, but the degree of suspicion that

attaches to particular non-criminal acts.   Id. “Moreover, the detaining officer need not

be personally aware of every fact that objectively supports a reasonable suspicion to

detain; rather, the cumulative information known to the cooperating officers at the time of

the stop is to be considered in determining whether reasonable suspicion exists.”         Id.

(internal citations omitted).   While an “anonymous tip alone is seldom sufficient to

establish reasonable suspicion,” see Matthews v. State, 431 S.W.3d 596, 603 (Tex.

Crim. App. 2014), information provided to police from a “citizen-informant who identifies


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[herself] and may be held to account for the accuracy and veracity of her report may be

regarded as reliable.”    Derichsweiler, 348 S.W.3d at 914–15. When a citizen informant

provides information to police, “the only question is whether the information that the

known citizen-informant provides, viewed through the prism of the detaining officer’s

particular level of knowledge and experience, objectively supports a reasonable

suspicion to believe that criminal activity is afoot.”   Id. at 915.

       Here, Chief Nelson responded to a disturbance call at the Boyd residence on

Leffingwell Lane.     According to Chief Nelson, the Boyd residence is the only destination

from Highway 29 down Leffingwell Lane.             He recalled that Boyd complained to him

about her son’s associate, who had been on her property earlier. Boyd described the

associate as a “white male” in a “white car” and told Chief Nelson that if he were to come

onto her property again, the police had her permission to issue him a criminal trespass

warning.      Chief Nelson testified that he knew Boyd prior to this call from her work with

the City of Burnet.       As Chief Nelson drove away from the Boyd property toward

Highway 29, he observed a white male driving a white car toward the Boyd residence.

Chief Nelson also noted that the vehicle did not display a front license plate as required

by statute.     See TEX. TRANSP. CODE ANN. § 504.943 (West, Westlaw through 2013 3d

C.S.) (penalizing the operation of a motor vehicle on a public highway that does not

display two license plates).

       After viewing this evidence in a light most favorable to the trial court’s denial of

Allen’s motion to suppress, see Wade, 422 S.W.3d at 666, we conclude that based on

the totality of the circumstances, Chief Nelson held reasonable suspicion to detain Allen

because he had specific, articulable facts from Boyd, as a reliable citizen-informant, that


                                               7
a white male in a white car was a trespasser on her property, which was the only

destination on Leffingwell Lane, after the disturbance call, as well as Chief Nelson’s

initial observation that Allen did not display a front license plate on his vehicle as required

by law, despite later discovering his temporary license plate tag.      When we take these

two facts, combined with rational inferences from those facts, Chief Nelson could have

reasonably concluded that Allen is, has been, or soon will be engaged in the criminal

activity of trespassing. See Derichsweiler, 348 S.W.3d at 914. Thus, we conclude

that Chief Nelson’s initial stop and investigatory detention were lawful and supported by

the requisite reasonable suspicion.     See Wade, 422 S.W.3d at 667.

       Allen next argues that even if Chief Nelson’s initial investigatory detention was

reasonable on the basis that Allen did not display his front license plate, any further

detention after Chief Nelson saw the clearly displayed buyer’s tag on Allen’s rear

windshield was “beyond the original purpose and scope of the investigative detention.”

Again, we disagree.

       In deciding whether an investigative stop is “reasonable,” the general rule is that

the stop can last no longer than necessary to effect the purpose of the stop.”        Kothe v.

State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004).          Even if Allen is correct that Chief

Nelson could not have continued his detention based upon the license plate violation, we

have concluded that Chief Nelson’s investigative stop had a two-fold purpose:          (1) the

lack of a front license plate on Allen’s vehicle; and (2) the fact that his vehicle matched

the description of Boyd’s trespasser complaint and was in close proximity to the Boyd

residence. Thus, even if the first purpose of the investigatory detention was fulfilled

after Chief Nelson saw Allen’s temporary license plate tag, the second purpose of Chief


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Nelson’s stop had not been effected without Chief Nelson first making contact with Allen.

See id.

       Accordingly, after viewing the evidence in the light most favorable to the ruling, we

conclude that Chief Nelson’s further investigatory detention was reasonable, even after

he saw the temporary license plate tag on Allen’s rear windshield, because his

investigation of Allen’s destination continued. We overrule Allen’s first issue.

                              III.   SUFFICIENCY CHALLENGE

       By his second issue, Allen asserts that the evidence is insufficient to sustain his

conviction.

       A. Standard of Review and Applicable Law

       In reviewing the sufficiency of the evidence to support a conviction, we 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.          Winfrey v.

State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013); Gear v. State, 340 S.W.3d 743, 746

(Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)); see

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). In viewing

the evidence in the light most favorable to the verdict, we defer to the jury’s credibility

and weight determinations because the jury is the sole judge of the witnesses’ credibility

and the weight to be given to their testimony.         Brooks, 323 S.W.3d at 899.        It is

unnecessary for every fact to point directly and independently to the guilt of the accused;

it is enough if the finding of guilt is warranted by the cumulative force of all incriminating

evidence. Winfrey, 393 S.W.3d at 768 (citations omitted).


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         The elements of the offense are measured as defined by a hypothetically correct

jury charge.     Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).       Such a charge is one that

accurately sets out the law, is authorized by the indictment, does not unnecessarily

increase the State's burden of proof or unnecessarily restrict the State's theories of

liability, and adequately describes the particular offense for which the defendant was

tried.   Id.   Under a hypothetically correct jury charge, Allen was guilty of possession of

a controlled substance with intent to deliver if he (1) knowingly (2) possesses (3) with

intent to deliver (4) methamphetamines (5) in an amount by aggregate weight, including

adulterants or dilutants, four grams or more but less than 200 grams.        See TEX. HEALTH

& SAFETY CODE ANN. § 481.112(a), (d).

         B. Discussion

         Allen first argues that the evidence is insufficient to show that he knowingly

possessed methamphetamines. We disagree.

         “Possession” means “actual care, custody, control, or management.”                Id. §

481.002(38) (West, Westlaw through 2013 3d C.S.). The court of criminal appeals has

identified     several   non-exhaustive   factors,   or   “affirmative   links,”   which   may

circumstantially establish sufficiency of the evidence to prove knowing possession,

including:     (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

narcotic; (4) whether the defendant was under the influence of narcotics when arrested;

(5) whether the defendant possessed other contraband or narcotics when arrested; (6)

whether the defendant made incriminating statements when arrested; (7) whether the


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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 drugs were found; (12) whether the place where the drugs

were 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 v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006).

       In this case, Captain Davis testified that he seized “several small baggies that

contained different amount[s] of [a] white crystal substance” from a black bag located on

the driver’s-side floorboard of Allen’s vehicle.   Keverline, of the Texas Department of

Public Safety, confirmed that the substance tested positive for methamphetamines with

an aggregate weight of 12.95 grams.     Additionally, Allen admitted to Captain Davis that

he possessed marijuana.      It is also undisputed that Allen was the sole occupant of the

vehicle.    Finally, in addition to the drugs, Allen possessed “needles, pipes, [and] a

digital scale.”   After considering these affirmative links, see id., and examining the

evidence in the light most favorable to the verdict, we conclude that a rational fact finder

could have found beyond a reasonable doubt that Allen knowingly possessed

methamphetamines with an aggregate weight of 12.95 grams.               See Winfrey, 393

S.W.3d at 768.

       Alternatively, Allen argues that even if the evidence was legally sufficient to

support his conviction for possession, the evidence was insufficient to establish an

“intent to deliver.” See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d).       Again, we

disagree.


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        “Deliver” means to “transfer, actually or constructively, to another a controlled

substance.” TEX. HEALTH & SAFETY CODE ANN. § 481.002(8). “Intent can be inferred

from the acts, words, and conduct of the accused.”     Patrick v. State, 906 S.W.2d 481,

487 (Tex. Crim. App. 1995). Intent to deliver a controlled substance can be proved by

circumstantial evidence, including evidence that an accused possessed the contraband.

Moreno v. State, 195 S.W.3d 321, 325 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).

Some factors we may consider in weighing the sufficiency of the evidence of this

element include:    (1) the nature of the location at which the accused was arrested; (2)

the quantity of contraband in the accused's possession; (3) the manner of packaging; (4)

the presence or lack thereof of drug paraphernalia (for either use or sale); (5) the

accused's possession of large amounts of cash; and (6) the accused's status as a drug

user.   Id. The number of factors present is not as important as the logical force the

factors have in establishing the elements of the offense.    Id. at 326.   Finally, expert

testimony from experienced law enforcement officers may be used to establish an

accused’s intent to deliver.      See Mack v. State, 859 S.W.2d 526, 529 (Tex.

App.—Houston [1st Dist.] 1993, no pet.).

        As noted previously, in addition to the methamphetamines, other items were

seized from Allen’s possession including baggies, a digital scale, and other drugs.

Captain Davis and Investigator Hicks both testified that digital scales are commonly

found in drug dealing and are used to weigh the drugs for distribution.      Investigator

Hicks, who has handled “hundreds” of narcotics investigations and cases, stated that

drugs typically found in weights of one or two grams evidence a personal use, where

amounts at “12 to 13 grams” typically indicate an intent to deliver.                 The


                                           12
methamphetamines found in Allen’s possession weighed 12.95 grams.                    Finally,

according to Investigator Hicks, the evidence seized from Allen’s black bag suggested

that it was meant for the delivery based upon the small plastic baggies, larger plastic

bags, digital scale, and the drugs found in Allen’s bag that appeared to have been

“preweighed out and prepackaged for sale.” Therefore, after viewing the evidence in

the light most favorable to the verdict, we conclude that the evidence was sufficient to

establish that Allen had an intent to deliver.      See Moreno, 195 S.W.3d at 325.

       Allen’s final issue is overruled.

                                     IV.    CONCLUSION

       We affirm the trial court’s judgment.



                                                            _________________________
                                                            GINA M. BENAVIDES,
                                                            Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
4th day of September, 2014.




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