                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                             _________________
                              NO. 09-14-00375-CR
                              NO. 09-14-00376-CR
                             _________________

                DARRELL WAYNE SPARKMAN, Appellant

                                       V.

                      THE STATE OF TEXAS, Appellee
________________________________________________________________________

                   On Appeal from the 411th District Court
                            Polk County, Texas
                       Trial Cause No. 23427, 23428
________________________________________________________________________

                         MEMORANDUM OPINION

      Darrell Wayne Sparkman appeals his convictions for the offenses of

endangering a child and for possession of a controlled substance, namely

methamphetamine. After finding two enhancement paragraphs true, the jury

assessed punishment for Sparkman at six years in prison and a $1,000 fine for the

offense of endangering a child and eight years in prison and a $1,000 fine for the

offense of possession of a controlled substance. Sparkman challenges the legal

                                        1
sufficiency of the evidence for both convictions. We conclude the evidence is

legally sufficient to show that Sparkman possessed a controlled substance, and,

therefore, we affirm his conviction in cause number 09-14-00376-CR. Because the

evidence is legally insufficient to show that Sparkman endangered a child, we

reverse the trial court’s judgment and render a judgment of acquittal in cause

number 09-14-00375-CR.

                                  Background

      On April 2, 2014, around 1:30 p.m., Amberlea Duke went to her mailbox.

While outside, she noticed the small child, who lives next to her, running down the

road away from his trailer house, wearing only a diaper. Amberlea believed the

child to be two years old. The child was unsupervised for the length of time

Amberlea was watching him, which was approximately twelve minutes. Although

no vehicles were on the road while Amberlea was watching the child, she believed

the child was in imminent danger of mental impairment, death, or bodily injury.

Consequently, Amberlea called her husband, Billy Duke, a detective with the Polk

County Sheriff’s Department and told him about the unsupervised child.

      When Officer Duke arrived at the scene, he observed the child climbing on

the fence. Officer Duke approached the child and asked the child who was

supposed to be watching him. The child responded by bringing Officer Duke into

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the trailer house on the property. Officer Duke located Sparkman in the living

room of the trailer house. Sparkman was allowed to live in the trailer house by the

child’s father in exchange for watching the child while the father was at work.

During the course of his investigation, Officer Duke discovered drug paraphernalia

and a lightbulb that contained a trace amount of residue—ultimately identified as

methamphetamine.

      Sparkman was charged with endangering a child and possession of a

controlled substance. The jury found Sparkman guilty of the charged offenses and

assessed punishment. Sparkman appeals his convictions. He raises two issues in

which he asserts that the evidence was not sufficient to support the judgments of

conviction.

                           Sufficiency of the Evidence

      In a sufficiency review, we view all the evidence in the light most favorable

to the verdict and determine whether any rational trier of fact 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); see Brooks v. State, 323 S.W.3d 893,

894-95, 899 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979). We give deference to the jury’s responsibility to fairly resolve conflicting

testimony, to weigh the evidence, and to draw reasonable inferences from basic

                                         3
facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)

(quoting Jackson, 443 U.S. at 319). When the record of historical facts supports

conflicting inferences, we must presume the trier of fact resolved any such

conflicts in favor of the prosecution, and we must defer to that resolution. Padilla

v. State, 326 S.W.3d 195, 200 (Tex. Crim. App. 2010). The jury, as the sole judge

of the credibility of the witnesses, is free to believe or disbelieve all or part of a

witness’s testimony. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App.

2008).

      Sufficiency of the evidence is measured by the elements of the offense as

defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997). The hypothetically correct 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.

                               Child Endangerment

      Sparkman attacks the sufficiency of the evidence to prove that he

endangered a child. He specifically contends the evidence is insufficient to show

that he placed the child in “imminent” danger. The record reflects that the charge

                                          4
and the indictment tracked the language of the statute, except that they also

included the manner and means in which the child was allegedly endangered—i.e.,

by “inadequately supervising the below named child, resulting in the child roaming

in or near a roadway[.]” A person commits the offense of endangering a child

when he “intentionally, knowingly, recklessly, or with criminal negligence, by act

or omission, engages in conduct that places a child younger than 15 years in

imminent danger of death, bodily injury, or physical or mental impairment.” Tex.

Penal Code Ann. § 22.041(c) (West 2011).

      The word “imminent” is not defined in the Texas Penal Code, but generally

means “ready to take place, near at hand, impending, hanging threateningly over

one’s head, menacingly near.” Millslagle v. State, 81 S.W.3d 895, 898 (Tex.

App.—Austin 2002, pet. ref’d)(citation and punctuation omitted). It is insufficient

that a defendant “placed the child in a situation that is potentially dangerous[;]”

rather, the defendant’s conduct “must threaten the child with immediate,

impending death, bodily injury, or impairment.” Id. “[T]o be ‘imminent’ for [the

purpose] of imposing responsibility pursuant to Penal Code § 22.041(c), the

situation must be immediate and actual, not potential or future, at the moment of

the act or omission by the defendant.” Newsom v. B.B., 306 S.W.3d 910, 918 (Tex.



                                        5
App.—Beaumont 2010, pet. denied). “[T]he danger must be imminent at the

moment the defendant engages in the conduct.” Id.

      Based on the record before us, Amberlea was the only person that observed

the child in the road that day. We can look to Amberlea’s response to the child’s

situation as a measure of the imminence of the danger in which he was placed.

Imminent danger of death or bodily injury to a child demands urgent intervention

to remove the child from the danger. Therefore, once Amberlea perceived that

danger, one might suspect that she would act accordingly.

      However, Amberlea testified that there were no vehicles on the road when

she was watching the child. The record reflects that the situation never became so

serious that Amberlea felt the need to run after the child to prevent the child from

being harmed. Amberlea testified that the child was approximately twenty to thirty

yards from her position. When the child entered the road, she called to him, and he

returned to his yard. According to Amberlea, the child was left unsupervised for

approximately twelve minutes.

      The incident occurred close to the end of a dirt road. Amberlea described the

road as a dead-end, dirt road, which was not positioned directly off a highway.

Amberlea testified that there are approximately ten residences on the road, but that

many people enter the road to turn around. However, there is no evidence in the

                                         6
record that any vehicles entered the road to turn around or otherwise, while the

child was in the road.

      The father of the child testified that at the time of the incident, the child was

three years old. The father explained that the yard was fully fenced-in, and

Sparkman should have closed the gate when he allowed the child to play outdoors.

The father expressed his belief that it was dangerous for his child to be in the road.

The father acknowledged that the road is not highly traveled.

      The State relies on Herbst v. State, 941 S.W.2d 371 (Tex. App.—Beaumont

1997, no pet), to support its position that the child in this case was placed in

imminent danger. Quoting from Herbst, the State argues that “[a]lthough a

speeding car barreling down on the child would have increased the risk of serious

injury or death, the facts presented at trial showed an immediate risk of at least

bodily injury due to his age and . . . ‘the unpredictable and untameable elements of

nature[.]’” See id. at 373-74. In Herbst, the appellant placed a three-week-old baby

on the side of a well-traveled, dark road at approximately 10:00 p.m. and left. Id. at

373. The baby was strapped into an infant car seat and left outdoors without

supervision, food, and shelter. Id. at 373-74. We find the facts in Herbst

distinguishable. The child in this case was three years old. He was not intentionally



                                          7
left on the side of a busy road. He was allowed to play unsupervised in his yard for

less than twenty minutes.

      The State also suggests that the child was placed in imminent danger due to

roaming dogs in the neighborhood. As support for this proposition, the State

indicates that the child had been bitten by a dog when he was near the road in the

past. In its brief, the State does not cite to the record for support of this argument.

However, Sparkman agreed that one of the neighbor’s dogs had bitten the child,

but he explained that the child’s mother had taken the child into the dog’s yard.

There is no evidence in the record to dispute this testimony. The State also notes

that a neighborhood dog attacked a CPS caseworker during the investigation.

Officer Duke testified that while officers were processing the scene, two dogs from

inside an adjacent trailer house forced their way outside. One of the dogs attacked

the CPS caseworker as well as another officer, and, as a result, was shot. Officer

Duke testified that there are several larger dogs in the neighborhood. He testified

that he does not allow his nine-year-old daughter to walk down the road because of

the loose animals. Even if the State was not limited by the manner and means

alleged in the indictment, which focused on Sparkman’s allowing the child to roam

in or near a roadway, there is no evidence that danger from a roaming dog was



                                          8
imminent. There is no testimony that there were loose dogs anywhere in the

proximity of the child during the relevant time period.

      Here, the evidence supports that Sparkman placed the child in a potentially

dangerous situation by allowing him to play outdoors without adequate

supervision. We conclude that a rational factfinder could not determine beyond a

reasonable doubt, based on the evidence in the record, that Sparkman placed the

child in imminent danger. No evidence shows that physical pain or impairment was

ready to take place. See Millslagle, 81 S.W.3d at 898. The evidence suggests that

the situation could have turned for the worse, that the child could have been

seriously injured, but that does not satisfy a showing of imminent danger. We

conclude that no rational factfinder could have determined that Sparkman placed

the child in imminent danger of death, bodily injury, or physical and mental

impairment. Because we have found the evidence insufficient to sustain the

conviction for the offense of endangering a child, we sustain Sparkman’s issue. We

reverse the judgment of the trial court and render a judgment of acquittal in Cause

No. 23427 of the 411th District Court of Polk County, Texas.

                      Possession of a Controlled Substance

      Sparkman also challenges the sufficiency of the evidence to support his

conviction for the offense of possession of a controlled substance—

                                         9
methamphetamine. Specifically, Sparkman contends the evidence is insufficient to

prove that he intentionally or knowingly possessed the methamphetamine, which

was located inside a lightbulb that was found inside the drawer of a dresser, located

outside on the porch.

      The record reflects that the actual charge was consistent with the

hypothetically correct jury charge for this offense, which required the State to

prove that Sparkman intentionally or knowingly possessed a controlled substance,

namely methamphetamine, in an amount of less than one gram. See Tex. Health &

Safety Code Ann. § 481.115(a), (b) (West 2010). To prove unlawful possession of

a controlled substance, the State must prove: (1) that the defendant exercised care,

custody, control, or management over the substance; and (2) that he knew the

matter possessed was contraband. Id. § 481.115(a); Evans v. State, 202 S.W.3d

158, 161 (Tex. Crim. App. 2006); Poindexter v. State, 153 S.W.3d 402, 405 (Tex.

Crim. App. 2005).

      There must be direct or circumstantial evidence that establishes “‘that the

accused’s connection with the drug was more than just fortuitous.’” Poindexter,

153 S.W.3d at 406 (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App.

1995)). A defendant’s mere presence in the same place as the controlled substance

alone is not sufficient to justify a finding of possession. Evans, 202 S.W.3d at 162.

                                         10
The “affirmative links” rule protects innocent bystanders from conviction merely

because of his or her fortuitous proximity to someone else’s drugs. Evans, 202

S.W.3d at 161-62. Presence or proximity to the controlled substance, combined

with evidence of affirmative links may be sufficient to establish that element

beyond a reasonable doubt. Id. at 162. In the context of a charge of possession of a

controlled substance, the following list of nonexclusive factors, either alone or in

combination, have been found to be sufficient to prove knowing possession: (1) the

defendant’s presence when the search was conducted; (2) the contraband was in

plain view; (3) the defendant’s proximity to and the accessibility to the contraband;

(4) the defendant was under the influence of the contraband when arrested; (5) the

defendant possessed other contraband when arrested; (6) the defendant made

incriminating statements when arrested; (7) the defendant attempted to flee; (8) the

defendant made furtive gestures; (9) the presence of a residual odor of the

contraband; (10) the presence of other contraband or drug paraphernalia; (11) the

defendant owned or had the right to possess the place where the drugs were found;

(12) the contraband was recovered from an enclosed place; (13) the defendant was

found with a large amount of cash; and (14) the defendant’s conduct indicated a

consciousness of guilt. Evans, 202 S.W.3d at 162 n.12. These factors may

circumstantially justify the conclusion that the defendant knowingly possessed the

                                         11
contraband. Id. The number of factors found is not as important as the logical force

those factors create to prove the crime was committed. Id. at 162.

      Sparkman contends that a number of other people could have hidden the

drugs on the porch. Other than Sparkman, the child and the child’s father, the

child’s mother and a girlfriend of Sparkman also lived in the trailer house at

different times. At the time the drugs were found by the police, Sparkman and the

father of the child were the only adults living in the trailer house. However, the

relevant question on appeal is whether there are sufficient affirmative links to

connect Sparkman to the methamphetamine found hidden on the front porch, not

whether the drugs could have belonged to someone else.

      At trial, Officer Duke testified that while he was inside the trailer house

questioning Sparkman about the child, he noticed a marijuana pipe sitting on the

coffee table. Sparkman told Officer Duke that the pipe was for smoking cigarette

tobacco, but denied that he personally used it for anything. Officer Duke believed

the pipe had a burnt marijuana or synthetic marijuana odor. Because the pipe was

in plain view, Officer Duke seized the pipe.

      Sparkman denied having anything illegal on his person or in the trailer house

and consented to Officer Duke searching his person. Officer Duke found a

flashlight with no batteries in Sparkman’s pocket, which Sparkman claimed he

                                        12
found in the yard. Officer Duke testified that based on his experience, an empty

flashlight is common and consistent with drug activity. Officer Duke found a

residue inside the flashlight, which he thought was either marijuana or synthetic

marijuana.

      Sparkman denied using drugs and testified that he told Officer Duke that he

would submit to a drug test and believed he would test negative. After finding the

hollowed-out flashlight, Officer Duke asked to search the common areas of the

trailer house as well as Sparkman’s room, and Sparkman consented. During the

search, Officer Duke found an empty bag of synthetic marijuana in Sparkman’s

bedroom and a lightbulb that had been modified for methamphetamine

consumption in a dresser on the porch of the trailer house. Officer Duke testified

that while living next door, he had seen Sparkman several times on the porch by

the dresser.

      Sparkman eventually admitted to Officer Duke that he had used the synthetic

marijuana and that the empty bag was his. Sparkman continued to deny any

knowledge about the lightbulb. Sparkman also denied using methamphetamine.

Officer Duke again asked Sparkman to consent to a drug test. This time, Sparkman

refused the drug test and told Officer Duke to just take him to jail.



                                          13
      While in transport to the jail, Officer Duke continued his conversation with

Sparkman. Officer Duke’s dashboard camera recorded the conversation, and the

recording was admitted into evidence. Officer Duke testified that while loading

Sparkman into the car to take him to jail, he asked Sparkman when Sparkman had

last used methamphetamine. The dashboard camera captured Sparkman’s response

as follows:

      I did it a few years back for about a year. And, that last girlfriend I
      just had that just left out of here, did it a couple of times with her.
      That’s where that probably came from, whenever she was here. So,
      yeah.

Officer Duke asked when the girlfriend had left, and Sparkman responded that she

had left two to three weeks ago. Officer Duke testified that Sparkman told him that

he had forgotten about the “meth pipe” and then admitted to having “‘a little

paraphernalia[.]’”

      Sparkman told Officer Duke that the child’s father did not use

methamphetamine. Jeremy Stutts, with Child Protective Services (CPS), also spoke

to Sparkman about the child’s father. Sparkman told Stutts that the father was not

aware of the drug paraphernalia or the drug use occurring in the trailer house.

      The child’s father testified that the child’s mother was addicted to opiates at

the time of the child’s birth. The mother had supervised visitation with the child,

and had lived at the trailer house for a short time in the past.
                                           14
      The father testified that he was contacted about what had happened with the

child and told that the child had been removed and was in the care of his

grandparents. The next day, CPS administered a drug test to the father; he tested

negative. The father denied possessing methamphetamine at his trailer house. He

admitted that he had used methamphetamine in the past, but testified he has not

used it in a couple of years. The father admitted to possessing marijuana at the

trailer house, but testified he had not “smoked a joint” in several months. He

testified that he was not aware that there were methamphetamine pipes in the

trailer house. While the father was aware that Sparkman used drugs, the father

testified that Sparkman “wasn’t supposed to be strung out” while he was watching

the child.

      During Sparkman’s testimony, he admitted that he has been arrested ten to

fifteen times. Sparkman testified at length regarding his extensive criminal history.

Sparkman also testified, very clearly, that it was his belief that the first thing a

drug-user is going to do is lie about using drugs. Sparkman then admitted to lying

to officers not only about the father’s treatment of the child, but also about the

father’s drug use and his own drug use.

      Sparkman denied that the lightbulb was his, and then tried to show that the

lightbulb could have belonged to multiple people. According to Sparkman,

                                          15
everyone had access to the front porch. Sparkman testified that he told Officer

Duke that he had a woman stay with them for approximately three weeks, that they

had to kick her out, and that the lightbulb could possibly have been hers. Sparkman

admitted that he smoked methamphetamine with the woman, but explained that he

used his own pipe to smoke it and not the lightbulb.

      Sparkman also expressed his belief that the lightbulb could have belonged to

the child’s father, who also, according to Sparkman, actively used drugs, including

methamphetamine and synthetic marijuana.

      Sparkman testified that he agreed to submit to a drug test the first time

Officer Duke asked him if he would be willing to take a test. He explained that the

only reason he refused to take the test the second time was because he knew he

was going to jail regardless of what the test revealed. However, Sparkman

admitted that the empty synthetic marijuana bag was his and that the marijuana

pipe was his as well. He testified that he smoked synthetic marijuana and cigarette

tobacco out of the pipe.

      Stutts, with CPS, corroborated the father’s testimony that he had been tested

for drug use, including marijuana and methamphetamines, and had passed all tests

administered to him, including one test that can reflect drug use for the past

seventy-five to ninety days.

                                        16
      Considering the factors identified above, we conclude the record reveals

ample evidence tending to connect Sparkman to the methamphetamine. Sparkman

was present in the trailer house during the search. The dresser in which the

lightbulb containing the methamphetamine was found was positioned directly

outside Sparkman’s bedroom on the porch, in an area that he was known to

frequent. The trailer house was surrounded by fence and not generally accessible to

the public. Sparkman admitted to recently smoking methamphetamine. Sparkman

admitted to possessing other drug paraphernalia. The officer discovered an empty

synthetic marijuana bag in Sparkman’s bedroom, and Sparkman admitted the bag

was his. The officer also discovered a flashlight without batteries on Sparkman’s

person that had residue inside of it. Based on all of the above evidence, which

demonstrates Sparkman’s involvement with drugs, we cannot say that Sparkman’s

connection to the methamphetamine was merely fortuitous. See Poindexter, 153

S.W.3d at 405.

      Viewing the evidence in the light most favorable to the verdict, we hold

there is sufficient evidence from which a rational trier of fact could find beyond a

reasonable doubt that Sparkman was sufficiently linked to the contraband, and that

Sparkman was guilty of the offense of possession of methamphetamine. See id. at

405-06; Evans, 202 S.W.3d at 162. Because we have found the evidence sufficient

                                        17
to sustain the conviction for possession of a controlled substance, we overrule

Sparkman’s issue on this point. We therefore affirm the judgment of the trial court

in Cause No. 23428 of the 411th District Court of Polk County, Texas.

      The judgment of the trial court in Cause No. 23427 of the 411th District

Court of Polk County, Texas, is reversed and judgment of acquittal is rendered in

such cause. The judgment of the trial court in Cause No. 23428 of the 411th

District Court of Polk County, Texas, is affirmed.

      REVERSED AND ACQUITTAL RENDERED IN CAUSE NO. 23427.

      AFFIRMED IN CAUSE NO. 23428.




                                               ______________________________
                                                      CHARLES KREGER
                                                           Justice
Submitted on April 17, 2015
Opinion Delivered August 12, 2015
Do not publish

Before Kreger, Horton, and Johnson, JJ.




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