                                         NO. 12-17-00065-CR

                               IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                            TYLER, TEXAS

BENJAMIN WAYNE DECKARD,                                    §       APPEAL FROM THE 3RD
APPELLANT

V.                                                         §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                   §       ANDERSON COUNTY, TEXAS

                                         MEMORANDUM OPINION
         Appellant Benjamin Wayne Deckard appeals his three convictions for possession with
the intent to deliver a controlled substance, and a separate conviction for possession of
marijuana. In one issue, Appellant challenges the legal sufficiency of the evidence for each of
his four convictions. We affirm.


                                                  BACKGROUND
         Appellant was charged by indictment with three counts of the offense of possession with
the intent to deliver a controlled substance: methamphetamine in an amount of 200 grams or
more but less than 400 grams;1 cocaine in the amount of four grams or more but less than 200
grams;2 and heroin in an amount of one gram or more but less than four grams.3 Further, in a

         1
           An offense is punishable by imprisonment in the Texas Department of Criminal Justice for life or for a
term of not more than ninety-nine years or less than ten years, and a fine not to exceed $100,000, if the amount of
the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 200
grams or more but less than 400 grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(e) (West 2017).
         2
            An offense is a felony of the first degree if the amount of the controlled substance to which the offense
applies is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 200 grams. See
id. § 481.112(d) (West 2017).
         3
            An offense is a felony of the second degree if the amount of the controlled substance to which the offense
applies is, by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams. See id.
§ 481.112(c) (West 2017)
separate count, he was charged by indictment with the offense of possession of marijuana in an
amount of five pounds or less, but more than four ounces.4 He pleaded “not guilty” to all four
charges.
         At trial, officers with the Palestine Police Department described an investigation begun in
April 2014 of a mobile home owned by Willie Leon Barnes located at 1118 North Forth Street,
lot nine, in Palestine, Anderson County, Texas. One of the officers testified that during a ten day
period in mid-April he observed multiple cars driving up to the mobile home and entering during
mid-morning, midafternoon, and nighttime hours. The officer testified that this was indicative of
a place that sells controlled substances. A search warrant was obtained and the residence entered
at approximately 10:00 p.m. on April 23, 2014.
         At the time officers entered the front door of the mobile home to execute the search
warrant, other officers staked out the back door of the mobile home. Once officers entered the
front door, Appellant, Xavier Wiggins, and Donald Drew Nixon fled together from the mobile
home through the back door. Nixon was found with $1,788.00 in cash on his person, and was
carrying a cellular telephone. According to one of the officers, Appellant had to be physically
tackled by officers because he was running from them. After Appellant was detained, he stated
that Nixon contacted him to drive a blue Jeep Grand Cherokee that was located at the mobile
home at the time of the search warrant’s execution. According to Appellant, he dropped the Jeep
off at the mobile home that day about five o’clock in the morning and was waiting for a ride.
Another officer testified that Appellant was extremely vague in his responses to questioning and
could not give any definitive answers, such as who was coming to pick him up. The officer
testified that Appellant appeared to be trying to dodge the question of why he was present at the
mobile home for five hours.
         Another officer testified concerning the quantity of methamphetamine, cocaine, heroin,
and marijuana found in the mobile home. Virtually all of the controlled substances were found
in the master bedroom of Barnes’s mobile home. However, there were two grams of crack
cocaine found in plain view on the counter in the kitchen. The officer also testified as to drug
paraphernalia found in the mobile home, including digital scales, razor blades, plastic sandwich
baggies, and a pie tin with slice marks which tested positive for cocaine.

         4
          An offense is a state jail felony if the amount of marijuana possessed is five pounds or less, but more than
four ounces. See id. § 481.121(b)(3) (West 2017).




                                                          2
       An officer with the Texas Department of Criminal Justice testified that a narcotics dog,
“Smoke,” was brought to the scene after the search warrant was served. The officer testified that
Smoke alerted to an odor of narcotics in the Jeep. Further, one of the officers testified that the
Jeep’s carpet had been pulled away from the side and the panels were loose. The officer also
stated that the carpet could be easily pulled back to hide contraband. A week after the search
warrant had been served, Corporal Matthew Kerr testified that Barnes made a written statement
to him. In Barnes’s statement, he implicated Appellant in the narcotics operation, stating that he
was brought in to run the “trap,” or “dope house,” that he was at the house the entire time unless
he “ran to the store for something,” and he “would come right back.” He said that it was
Appellant’s job to run the day-to-day operation and make runs to pick up the contraband for
Nixon, the leader of the narcotics operation. Barnes also stated that Appellant transported
methamphetamine to his mobile home in the Jeep that was found in Barnes’s driveway.
       At the conclusion of the trial, the jury found Appellant guilty of three counts of
possession with the intent to deliver a controlled substance, and one count of possession of a
usable quantity of marijuana as charged in the indictment. The jury assessed Appellant’s
punishment at sixty years of imprisonment for count 1, sixty years of imprisonment for count 2,
fifty years of imprisonment for count 3, and two years of state jail for count 4. The sentences
were to run concurrently. This appeal followed.


                                      LEGAL SUFFICIENCY
       In his sole issue on appeal, Appellant contends that the evidence is legally insufficient to
support his conviction on all four counts. More specifically, he argues that there was no
accomplice witness testimony, and that there was no evidence that he was present in the same
location where the controlled substances were found.
Standard of Review
       In Texas, the Jackson v. Virginia 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. Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Under the Jackson standard, the relevant question
is whether, after reviewing the evidence in the light most favorable to the prosecution, any
rational trier of fact would have found the essential elements of the crime beyond a reasonable



                                                3
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).
The responsibility of the trier of fact is to fairly resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. The jury is
the exclusive judge of the credibility of witnesses and the weight to be given their testimony.
Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). Likewise, reconciliation of conflicts
in the evidence is within the exclusive province of the jury. Id. Because the jury is the sole
judge of a witness’s credibility, and the weight to be given the testimony, it may choose to
believe some testimony and disbelieve other testimony. Lancon v. State, 253 S.W.3d 699, 707
(Tex. Crim. App. 2008).
Applicable Law
       A person commits an offense if that person knowingly possesses with intent to deliver a
controlled substance listed in penalty group 1. See TEX. HEALTH & SAFETY CODE ANN. §
481.112(a) (West 2017). Methamphetamine, cocaine, and heroin are controlled substances listed
in penalty group 1. Id. § 481.102(2), (3)(D), (6) (West Supp. 2017). A person commits an
offense if that person knowingly or intentionally possesses a usable quantity of marijuana. See id.
§ 481.121(a) (West 2017).
       Article 38.14 of the Texas Code of Criminal Procedure provides that a conviction cannot
be had upon the testimony of an accomplice unless it is corroborated with other evidence tending
to connect the defendant with the offense. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005).
When evaluating the sufficiency of corroborative evidence, we “‘eliminate the accomplice
testimony from consideration and then examine the remaining portions of the record to see if
there is any evidence that tends to connect the accused with the commission of the crime.’”
Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) (quoting Solomon v. State, 49
S.W.3d. 356, 361 (Tex. Crim. App. 2001)). The testimony that is eliminated from consideration
is that testimony given by live witnesses speaking under oath in court. Torres v. State, 137
S.W.3d 191, 196 (Tex. App.—Houston [1st Dist.] 2004, no pet.). In other words, only an
accomplice’s in-court testimony need be corroborated. Bingham v. State, 913 S.W.2d 208, 211-
13 (Tex. Crim. App. 1995). Moreover, an accomplice’s testimony cannot be corroborated by
prior statements made by the accomplice witness to a third person. Smith v. State, 332 S.W.3d
425, 439 (Tex. Crim. App. 2011).




                                                 4
        “Possession” is defined as “actual care, custody, control or management.” TEX. HEALTH
& SAFETY CODE ANN. § 481.002(38) (West 2017). To prove unlawful 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. Poindexter
v. State, 153 S.W.3d 402, 405 (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. at 405-06. When the accused is not
in exclusive possession of the place where the substance is found, it cannot be concluded that the
accused had knowledge of and control over the contraband unless there are additional
independent facts and circumstances which affirmatively link the accused to the contraband. Id.
       The courts have identified the following factors that may link an accused to a controlled
substance:


                the accused’s presence when a search is conducted;

                whether the contraband was in plain view;

                the accused’s proximity to and the accessibility of the narcotic;

                whether the accused was under the influence of narcotics when arrested;

                whether the accused possessed other contraband or narcotics when arrested;

                whether the accused made incriminating statements when arrested;

                whether the accused attempted to flee;

                whether the accused made furtive gestures;

                whether there was an odor of contraband;

                whether other contraband or drug paraphernalia were present;

                whether the accused owned or had the right to possess the place where the narcotics were
                 found;

                whether the place where the narcotics were found was enclosed;

                whether the accused was found with a large amount of cash; and

                whether the conduct of the accused indicated a consciousness of guilt.




                                                          5
Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006). A number of factors present
is not as important as the logical force the factors create to prove the accused knowingly
possessed the controlled substance. Hebert v. State, 489 S.W.3d 15, 19 (Tex. App.—Houston
[14th Dist.] 2016, no pet.).
Analysis
       In his brief, Appellant first contends that the accomplice witness’s testimony was not
corroborated. More specifically, he argues, the accomplice witness, Barnes, stated that he lied in
his previous statement to law enforcement that Appellant was involved in the narcotics operation
at his residence. Therefore, he contends, there is no accomplice witness. In support of his
argument, he cites Loa v. State, 545 S.W.2d 837 (Tex. Crim. App. 1977). In Loa, there were
two accomplice witnesses as a matter of law. See Loa, 545 S.W.2d at 839. In the undisputed
record, however, the court found that appellant was only a visitor to the house occupied by the
two accomplice witnesses, stating that no contraband was discovered in the bedroom where
appellant and one accomplice witness were arrested. Id. Thus, the court found that the mere
presence of the appellant in the accomplice witnesses’s house, under the circumstances shown,
without more, was insufficient to tend to connect appellant with the commission of the offense
charged. Id. However, Loa is not applicable to Appellant’s issue regarding the accomplice
witness. Appellant argues there is no accomplice witness because Barnes lied, not whether he
was merely present with the accomplice witness at the scene of the offense.
       We find Bingham more illustrative. See Bingham, 913 S.W.2d at 211-13. In Bingham,
the Court of Criminal Appeals determined that an out-of-court statement made by an accomplice
need not be corroborated and that only the in-court testimony of an accomplice must be
corroborated. See id. The court in Bingham noted the inherent reliability of an accomplice’s out-
of-court statement when it falls within an exception to the hearsay rule, stated the court’s belief
that the legislature “did not regard such statements with the same degree of suspicion as it did an
accomplice witness who testifies in court,” and effectuated legislative intent by “read[ing]
Article 38.14 to embrace only the in-court ‘testimony’ of an accomplice.” Id. at 211; see Archie
v. State, 340 S.W.3d 734, 737 n.3 (Tex. Crim. App. 2011) (citing Bingham and stating that the
testifying accomplice’s “out-of-court statement did not itself have to be corroborated under
Article 38.14”).




                                                6
       In this case, Barnes made a written statement to Kerr, implicating Appellant in the
narcotics operation. He said that it was Appellant’s job to run the day-to-day operation, that he
rarely left the mobile home during the time that the operation was in business, and that he made
runs to pick up contraband for Nixon. Barnes also stated that Appellant transported
methamphetamine to his mobile home in the Jeep that was found in Barnes’s driveway.
However, at trial, Barnes retracted his statement, saying that “they basically told [him] what to
say” and that Kerr failed to read him his Miranda rights. He stated that he lied in his statement to
Kerr because he was told that his charges would be reduced or dropped if he made a statement.
He also testified that Appellant had nothing to do with the narcotics operation, and was only at
his house for about thirty minutes before the search warrant was executed. Barnes also testified
that he told the district attorney a few minutes before testifying at trial that his prior witness
statement was based on what he told Kerr, i.e., that his previous statement was the truth. As
noted above, only an accomplice’s in-court testimony need be corroborated. See Bingham, 913
S.W.2d at 211-13. Thus, Barnes’s out-of-court statement was not testimony within the meaning
of Article 38.14. Accordingly, we need not address the sufficiency of the corroborating evidence.
       Secondly, Appellant argues that there is no evidence connecting him to the contraband
found in the house or that he was in a room where the contraband or drug paraphernalia was
discovered, citing Alvarado v. State, 632 S.W.2d 608 (Tex. Crim. App. 1982). In Alvarado,
which involved burglary of a building, the court found that probative evidence established only
that appellant was present at the scene of the crime, not a participant. Alvarado, 632 S.W.2d at
610. In this case, however, the evidence establishes that Appellant was actively involved in the
narcotics operation in the mobile home.
       The evidence shows that Appellant was present when the search warrant was served, and
he attempted to flee through the back door of the mobile home. He had to be physically tackled
by officers because he was running from them. After Appellant was detained, he was unable to
explain why he had been in the mobile home for five hours after driving and dropping off the
Jeep. The officers found him to be extremely vague and noticed that he could not give them any
definitive answers, such as who was going to pick him up. Further, the narcotics dog alerted to
an odor of contraband in the Jeep, and the carpeting had been pulled away as if to hide
contraband. The evidence also showed that the controlled substances were within the mobile
home, an enclosed structure. Some of the contraband was in plain view on the kitchen counter of



                                                 7
the mobile home, giving Appellant access to the narcotics. Moreover, drug paraphernalia was
present in the mobile home including digital scales, razor blades, plastic sandwich bags, and a
pie tin with slice marks. Further, Barnes implicated Appellant in the narcotics operation, stating
that he was brought in to run the “trap,” or “dope house,” that he was at the house the entire time
unless he “ran to the store for something,” and he “would come right back.” He said that it was
Appellant’s job to run the day-to-day operation and make runs to pick up contraband for Nixon.
Barnes also stated that Appellant transported methamphetamine to his mobile home in the Jeep
that was found in Barnes’s driveway.
         This evidence supported a reasonable inference that Appellant was involved in, and an
active participant in, the narcotics operation in the mobile home. See Evans, 202 S.W.3d at 162
n.12. Appellant did not find himself in the midst of this ongoing drug operation by mere
happenstance. Our role is not to view each factor in isolation; instead, we must view all these
factors in their totality, and consider all of the State’s evidence in determining whether the State
met its burden of proof. See id. at 164-66. Viewing the evidence in the light most favorable to
the prosecution, we conclude that a rational jury could have found each element of possession
with intent to deliver a controlled substance, three counts, and possession of a usable amount of
marijuana beyond a reasonable doubt. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(a),
481.121(a). We overrule Appellant’s sole issue.


                                                   DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.


                                                                 JAMES T. WORTHEN
                                                                    Chief Justice


Opinion delivered November 30, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



                                                          8
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        NOVEMBER 30, 2017


                                         NO. 12-17-00065-CR


                                BENJAMIN WAYNE DECKARD,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                                  Appeal from the 3rd District Court
                           of Anderson County, Texas (Tr.Ct.No. 31819)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
