Opinion filed February 21, 2019




                                        In The


        Eleventh Court of Appeals
                                     __________

                                  No. 11-17-00037-CR
                                      __________

                    JOHN TYLER RUNNELS, Appellant
                                           V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 32nd District Court
                             Fisher County, Texas
                          Trial Court Cause No. 3508


                      MEMORANDUM OPINION
      The jury convicted John Tyler Runnels of possession of a controlled
substance, to wit: heroin, in a drug-free zone in an amount between one gram and
four grams. The jury assessed punishment at confinement for twenty years in the
Institutional Division of the Texas Department of Criminal Justice. The jury also
imposed a $15,000 fine. Appellant presents two issues on appeal. He contends that
(1) the evidence is insufficient to affirmatively link him to the heroin and (2) the trial
court erred by denying his requested jury instruction on spoliation of evidence. We
affirm.
                                         Background Facts
        On April 8, 2015, Appellant and his roommate, Nicholas Norman, left
Appellant’s house in Norman’s vehicle. Norman drove, and Appellant rode in the
passenger seat. At approximately 11:00 p.m., Fisher County Sheriff J.A. Robinson
observed Norman’s vehicle pull out of an alley behind a residence where the sheriff’s
office had recently made a significant drug seizure.1 Sheriff Robinson attempted to
follow the vehicle, but he lost sight of it. Sheriff Robinson subsequently saw the
same vehicle in an Allsup’s parking lot. After the vehicle pulled out of the parking
lot, Sheriff Robinson witnessed a traffic violation and activated his overhead lights
to stop the vehicle. Norman stopped next to the Rotan Independent School bus barn,
which was within 1,000 feet of the school.
        Sheriff Robinson recognized Appellant from a prior encounter.                            Sheriff
Robinson ran a records check for Norman’s information.                            Sherriff Robinson
discovered that Norman had prior drug arrests. He asked Norman and Appellant to
step out of the vehicle. Norman left the driver’s side door of the vehicle open after
he exited the vehicle. By this time, Fisher County Deputy Sheriff Billy Spears had
arrived to assist Sheriff Robinson. Deputy Spears noticed a hypodermic needle with
narcotic residue in the driver’s-side door.
        Deputy Spears subsequently searched the vehicle while Sheriff Robinson
stood with Norman and Appellant outside the vehicle. Deputy Spears found a
“metallic pill-bottle type carrier” between the passenger seat and the center console.
This container contained a packet of methamphetamine and a packet of heroin.
Deputy Spears also found more hypodermic needles and a backpack that contained

        1
        We will identify the law enforcement officers by the positions that they held at the time of their
encounter with Appellant.
                                                    2
drug paraphernalia. The backpack also contained an envelope with Appellant’s
name as the return sender.
      After finding the drugs, the officers heard Appellant repeatedly telling
Norman that Norman needed to claim the drugs. Appellant also offered to bail
Norman out of jail the next morning if Norman claimed the drugs. Norman then told
the officers that the drugs and the backpack belonged to him. The officers arrested
Norman at the scene and released Appellant. However, Sheriff Robinson suspected
that Appellant had some connection to the drugs, and Deputy Spears believed that
the drugs and backpack belonged to Appellant.
      Deputy Spears interviewed Norman the next day. Norman told Deputy Spears
that the contraband was partly owned by Appellant and that Appellant “had been the
one that was dealing the narcotics in town.” The Texas Department of Public Safety
Crime Laboratory tested the substances in the packets and determined that the
substances were 2.37 grams of heroin and 0.84 grams of methamphetamine.
      The State called Norman as a witness at trial. He testified that Appellant had
heroin earlier that day and that Appellant used methamphetamine and heroin with
Norman. Norman saw Appellant use heroin more than five times. Norman knew
that Appellant sold methamphetamine, but he did not know that Appellant had those
drugs in the vehicle with him. Norman testified that he did not have any heroin on
him at the time they were stopped. While Norman looked for a spot to pull over,
Norman saw and heard Appellant shoving something between the seat and the center
console. Norman also testified that the backpack belonged to Appellant.
                                      Analysis
      In his first issue, Appellant contends that the evidence is insufficient to
affirmatively link him to the heroin. Appellant only contests the sufficiency of the
evidence with respect to the issue of possession. Appellant asserts that the evidence
that connected him to the heroin is insufficient because Norman’s testimony was not
                                          3
credible. Specifically, he asserts that the jury should not have relied on the testimony
of a witness who struggled with heroin addiction, who did not like Appellant, and
who received community supervision for possessing the same controlled substances
as Appellant. We disagree.
      We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
of the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). When conducting a sufficiency review, we consider all the
evidence admitted at trial, including pieces of evidence that may have been
improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.
2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to
the factfinder’s role as the sole judge of the witnesses’ credibility and the weight
their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts
for the factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443
U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
verdict and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235
S.W.3d at 778.
      Norman testified that he had battled with drug addiction off and on for six or
seven years and that this time period was hazy because he had been under the
influence almost the entire time. He testified that he originally claimed the drugs as
his because he was homeless before he moved in with Appellant and did not want to
                                           4
become homeless again. Also, Norman thought that he would just get out of jail the
next day and go home. He eventually told Deputy Spears that the drugs belonged to
Appellant because Deputy Spears kept asking Norman why he did what he did.
Norman also testified that he does not really like Appellant because of what
happened that night.
      Norman pleaded guilty and was placed on deferred adjudication for the
possession of heroin involved in this case. Norman’s agreement with the State was
that anything he said in his interview would not be used against him in a criminal
case—not that the case would be dismissed or that the State would offer him a deal.
Later, Norman was arrested and placed on deferred adjudication probation for
possession of methamphetamine. When he testified, both probations were active,
but Norman testified that he moved out of Texas at least six months prior, stopped
using drugs, got a job, had a pregnant girlfriend, and had no arrests or violations.
      As noted previously, Appellant asserts that the evidence was insufficient to
link him to the heroin because Norman’s testimony was not credible. However, we
defer to the jury’s role as the sole judge of the witnesses’ credibility and the weight
their testimony is to be afforded. Brooks, 323 S.W.3d at 899. To the extent that
there are inconsistencies in Norman’s testimony, we presume that the factfinder
resolved the conflicts in favor of the verdict and defer to that determination.
Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778. Accordingly, we presume
that the jury determined that Norman’s testimony linking Appellant to the heroin
was credible in assessing the sufficiency of the evidence.
      A person commits the offense of possession of a controlled substance if he
knowingly or intentionally possesses a controlled substance. See TEX. HEALTH &
SAFETY CODE ANN. § 481.115(a) (West 2017). Possession is defined as “actual care,
custody, control, or management.” TEX. PENAL CODE ANN. § 1.07(a)(39) (West
Supp. 2018). To prove unlawful possession of a controlled substance, the State must
                                          5
show (1) that the accused exercised control, management, or care over the substance
and (2) that the accused knew the matter possessed was contraband. Poindexter v.
State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005), overruled in part on other
grounds by Robinson v. State, 466 S.W.3d 166, 173 n.32 (Tex. Crim. App. 2015).
      Texas courts have used an “affirmative links” analysis for instances when the
accused was not in exclusive possession of the place where the substance was found.
Poindexter, 153 S.W.3d at 406. In this circumstance, it cannot be concluded that the
accused had knowledge of and control over the contraband unless there are
additional independent facts and circumstances that affirmatively link the accused
to the contraband. Id. (citing Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim.
App. 1981)); see Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006)
(listing affirmative links recognized by courts); see also Tate v. State, 500 S.W.3d
410, 413–14 (Tex. Crim. App. 2016) (citing Evans, 202 S.W.3d at 162 n.12). The
following links have been applied to infer knowledge relating to the contraband:
(1) the defendant’s presence when a search was 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 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 was 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. Tate, 500 S.W.3d at 414 (citing Evans, 202 S.W.3d at 162
n.12). It is not the number of links that is dispositive; rather, it is the logical force
                                           6
of all of the evidence, both direct and circumstantial, that is the determining factor.
Evans, 202 S.W.3d at 162.
      Although Appellant was not in exclusive possession of the place where the
drugs were found, the independent facts and circumstances justify the jury’s
conclusion that Appellant had possession of the heroin and that he knew the
substance was heroin. We start our analysis with Norman’s testimony that Appellant
had knowledge of and control over the heroin. Additionally, Appellant was present
when Deputy Spears searched the vehicle. The heroin was found in close proximity
to the passenger seat where Appellant was sitting. Deputy Spears found drug
paraphernalia in what appeared to be Appellant’s backpack as well as in other places
in the vehicle. Based on the evidence affirmatively linking Appellant to the heroin,
a rational jury could have found beyond a reasonable doubt that Appellant
intentionally or knowingly possessed the heroin. We overrule Appellant’s first issue
on appeal.
      In his second issue, Appellant contends that the trial court erred by denying
his requested jury instruction on spoliation of evidence. Appellant asserts that he
was entitled to this instruction because the State was unable to provide the video
recording of his encounter with Sheriff Robinson and Deputy Spears. Appellant
contends that the trial court erred by refusing to give the instruction because video
evidence is “very good evidence,” the absence of this video evidence leaves a void
in the case, there was no written policy regarding the handling of video evidence,
and the policy that was in place was not followed. We disagree.
      Sheriff Robinson testified that his in-car video recorded the stop of Norman’s
vehicle and that the video would probably show Appellant’s statements to Norman.
However, the State could not produce the video at trial. The sheriff’s unwritten
policy for preserving in-car video evidence was for the chief deputy to download the
video and make two copies, placing one in the original file folder and sending the
                                           7
other copy to the district attorney’s office. Sheriff Robinson informed the deputies
of this policy when they were hired and throughout their tenure as deputies. Sheriff
Robinson testified that he turned the in-car video over to the chief deputy and that
he does not know what happened to the video afterwards. Sheriff Robinson was not
aware of another case where the video was lost by his department.
      Deputy Spears and Sheriff Robinson could only remember the general nature
of the communication regarding Norman claiming the drugs. Deputy Spears agreed
that the video would have helped the jury determine Appellant’s demeanor when
talking with Norman. Sheriff Robinson also agreed that there was a void of
information without the video.
      At the charge conference, Appellant requested a spoliation instruction, and he
provided the trial court with the specific language to be included in the charge.
Appellant initially asserted that “the standard, bad faith, is too high and
unconstitutional” and “that the civil standard should apply in this case” for a
spoliation instruction. Appellant also asserted that there was bad faith because
(1) the video was recorded, (2) it would be useful in this case, (3) regular testimony
is not as concrete and may be misleading, (4) there was a void in the evidence
without the video, (5) there was no written policy or regular training concerning the
care of in-car videos once they had been created, and (6) the State did not follow the
unwritten policy. The trial court denied Appellant’s request.
      A review of alleged jury-charge error involves a two-step analysis. Ngo v.
State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Abdnor v. State, 871 S.W.2d
726, 731–32 (Tex. Crim. App. 1994). First, we must determine whether error
actually exists in the charge and, second, if error does exist, whether sufficient harm
resulted from the error to require reversal. Ngo, 175 S.W.3d at 743–44; Abdnor, 871
S.W.2d at 731–32. If the defendant preserved error by timely objecting to the
charge, an appellate court will reverse if the defendant demonstrates that he suffered
                                           8
some harm as a result of the error. Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim.
App. 2009). We review a trial court’s decision not to submit an instruction in the
jury charge for an abuse of discretion. See Wesbrook v. State, 29 S.W.3d 103, 121–
22 (Tex. Crim. App. 2000).
         Spoliation of evidence concerns the loss or destruction of evidence. Torres v.
State, 371 S.W.3d 317, 319 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). The
duty to preserve evidence is limited to evidence with an apparent exculpatory value
before the evidence was destroyed. White v. State, 125 S.W.3d 41, 43 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d). A defendant must affirmatively show that the
lost evidence was favorable and material to his defense. Id. at 44. When the
spoliation concerns potentially useful evidence, the defendant bears the burden of
establishing that the State lost or destroyed the evidence in bad faith. Ex parte
Napper, 322 S.W.3d 202, 229 (Tex. Crim. App. 2010). The United States Supreme
Court has held that, “unless a criminal defendant can show bad faith on the part of
the police, failure to preserve potentially useful evidence does not constitute a denial
of due process of law.” Arizona v. Youngblood, 488 U.S. 51, 58 (1988).
         Bad faith is more than simply being aware that one’s action or inaction could
result in the loss of evidence; bad faith entails improper motive, such as personal
animus against the defendant or a desire to prevent the defendant from obtaining
potentially useful evidence. Ex parte Napper, 322 S.W.3d at 238. To find bad faith,
there must be some evidence from which an inference of bad faith can be drawn. Id.
When conduct can, at worst, be described as negligent, the failure to preserve
evidence does not rise to the level of a due process violation. Youngblood, 488 U.S.
at 58.
         There is no evidence in this case that the State lost or destroyed the in-car
video in bad faith because there is no evidence of an improper motive in the form of
a personal animus against Appellant or a desire to suppress exculpatory evidence.
                                            9
Appellant’s assertion that the State failed to follow its unwritten policy regarding the
preservation of an in-car video does not rise to the level of bad faith. Therefore, the
trial court did not err by refusing to submit Appellant’s requested spoliation
instruction to the jury. We overrule Appellant’s second issue on appeal.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                                   JOHN M. BAILEY
                                                                   CHIEF JUSTICE


February 21, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

                                                     10
