       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                           NO. 03-02-00532-CR



                                       Paul Frank Weir, Appellant

                                                       v.

                                      The State of Texas, Appellee




           FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
               NO. 53,126, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING




                                MEMORANDUM OPINION


                 A jury found Paul Frank Weir guilty of possession of more than one gram but less than four

grams of methamphetamine. See Tex. Health & Safety Code Ann. '' 481.102(6), 481.115(c) (West

Supp. 2003). The court assessed sentence at ten years in prison. He contends that the evidence is factually

insufficient to support the verdict. We affirm the judgment.

                 It is undisputed that Weir possessed a cigarette box that contained one to four grams of

methamphetamine. The only disputed issue is whether he knew what the box contained. Four witnesses

testified regarding this issue; other witnesses at trial testified regarding issues not disputed on appeal. Three

witnesses testified from their personal knowledge of the events surrounding Weir=s arrest: Milton Shelton, a

Wal-Mart loss prevention officer; Manfred Stinehour, an off-duty Killeen police officer who worked at
Wal-Mart; and Weir. The fourth witness, Temple police officer Dan Kallus, testified generally about the

manufacture of methamphetamine and behaviors of individuals associated with its production and

distribution.

                When conducting a factual sufficiency review, we do not view the evidence in the light most

favorable to the verdict. Johnson v. State, 23 S.W.3d 1, 6-7 (Tex. Crim. App. 2000). Instead, we

consider all evidence in a neutral light while deferring to the jury as the sole judge of the weight and

credibility given to witness testimony. Id. at 7. We will set aside a verdict only if the proof of guilt is so

obviously weak or so contrary to the overwhelming weight of the evidence as to be clearly wrong and

unjust. Id. at 7; Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Shelton v. State, 41

S.W.3d 208, 211 (Tex. App.CAustin 2001, pet. ref=d). A court of appeals should reverse on factual

insufficiency grounds only when the jury verdict is manifestly unjust, shocks the conscience, or clearly

demonstrates bias. Clewis, 922 S.W.2d at 135.




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                 Shelton testified that Weir was one of the first persons he apprehended while working for

Wal-Mart. Shelton testified that on April 23, 2001 he saw Weir put the contents of three boxes of

Suphedrine1 tablets in his shirt sleeve. Suphedrine is designed to be used as an antihistamine, but can be

used to manufacture methamphetamine. Wal-Mart limits customers to three boxes per purchase in order to

deter manufacture of methamphetamine; people wanting to make methamphetamine therefore often steal

drugs such as Suphedrine. Shelton testified that Weir caught his attention because he had Suphedrine and

because he was looking around and leaning over on his shopping cart. Shelton said that Weir walked

around the store and pulled the sheets of tablets out of the boxes, put the sheets into his shirt, and put the

empty boxes into a freezer case behind other products. Weir paid for other products but left without paying

for the Suphedrine. Shelton apprehended him outside the store; Weir resisted returning to the store.

Shelton removed sheets of Suphedrine tablets from Weir=s shirt. Pursuant to company policy, Shelton then

explained to Weir that he was banned from entering any Wal-Mart; if he entered the store again he would

be cited for criminal trespass. The State introduced a statement to that effect signed by Weir. In rebuttal,

Shelton testified that Weir had more than $800 in his possession at the time of the shoplifting arrest.

                 On November 10, 2001, Shelton was working in the same Wal-Mart with fellow officer

Stinehour. Shelton recognized Weir and told him he would be arrested for trespass. He took Weir to the

office at the front of the store. Weir was upset at being detained because the shoplifting charges were

dropped. Shelton testified that Weir was wearing a button-down shirt with a pocket on the left chest;

Shelton could not remember if the shirt had a pocket on the right side. Shelton testified that Stinehour found


        1
            Suphedrine is the generic equivalent of Sudafed; both products contain pseudoephedrine.

                                                      3
a cigarette box in Weir=s shirt pocket; the box contained a white powdery substance in a plastic bag.

Shelton indicated that Weir said that a friend gave him the cigarette box, but Shelton testified that Weir did

not give the name or any information about that person. Shelton testified that he did not see anyone

accompanying Weir in the store. Shelton also testified that he found a metal spoon in Weir=s boot.

                 Stinehour testified that Weir=s shirt had pockets on both sides of the chest, but did not recall

whether the one on the right contained cigarettes. He said that Weir=s demeanor did not change noticeably

when Stinehour found the plastic bags containing a yellowish crumbly substance in the cigarette box in

appellant=s left shirt pocket. Stinehour testified that he routinely pursued evidence of others involved in

crimes when given that evidence by an arrestee, but that Weir gave him no specific information to pursue

such as names, addresses, or descriptions of anyone else involved in the incident. Stinehour testified that the

only specific information Weir gave him is that the cigarette box and its contents had been given to him in the

parking lot and were not his.

                 Kallus testified generally about the manufacture and trafficking of methamphetamine.

Methamphetamine is derived from pseudoephedrine and other substances. About 70-75 tablets of

pseudoephedrine will yield a gram of methamphetamine, which will sell for about $100; 1800

pseudoephedrine tablets will yield about an ounce of methamphetamine. Because stores limit customers to

buying three to six boxes of pseudoephedrine at once, people assisting the manufacture of

methamphetamine will often steal the tablets in order to gather the necessary amounts quickly. He testified

that suppliers and methamphetamine cooks often have long-term relationships, and that methamphetamine

addicts almost never quit on their own. He admitted that pseudoephedrine has a legitimate purposeCas an


                                                       4
antihistamineCfor which it is commonly used, and that purchasing it in small amounts, or even stealing a

single package would not necessarily mean involvement in the methamphetamine trade. Kallus admitted that

he had no personal knowledge of Weir or the facts of this case.

                 Weir testified that his April 2001 arrest was based on misunderstandings and a bad

sequence of events. He said he was having some personal problems, was tired from working, and had bad

allergies. He picked up one box of antihistamines, opened the package, took two pills, and began

shopping. Sensing that he was being followed, he put the box into the freezer case; on cross-examination,

he conceded that he put the partially used sheet of pills into his clothing. He denied hiding other pills in his

shirt. He also did not recall being banned from the store. He testified that his shoplifting charge was

dismissed.

                 Weir testified that he stopped by the Wal-Mart in November 2001 while returning to his

home in Copperas Cove from Belton where he was doing some welding work on a tractor used by workers

who were reconstructing his driveway. Weir said he was wearing a shirt with snaps rather than buttons so

that, if the shirt caught on fire while he was welding, he could quickly shed it. Several young men gave Weir

a ride home from the Belton worksite. They stopped to buy some items at the Wal-Mart. Weir said he

was arguing with Johnny, one of the passengers who had sold him a truck that turned out not to belong to

Johnny; Weir said he did not know Johnny=s last name and had no idea that Johnny was one of the biggest

methamphetamine dealers in Bell County. Another boy, possibly called Eddie, asked Weir to carry a box

of cigarettes into the store because Eddie=s shirt did not have pockets. Weir never looked inside the box.




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Weir said he was in line at the register to pay for a purchase when Milton interceded to arrest him for

trespassing.

                 Weir offered explanations for indicia of guilt. Weir explained that he had $438 in cash on

him in November because he had just been paid for welding, not because of drug sales. He explained that

he had a plastic2 spoon because he had been eating take-out food when he got a ride home. He testified

that he did not give the officers the names of his companions because he did not know their names; he

testified that he did describe them and their vehicle. He testified that the officers disregarded his story. He

admitted that he might not have believed his version of events if he had not lived it.

                 Although Weir presented a version of events consistent with his innocence, the other

witnesses presented a version of events consistent with his guilt. Resolving this conflict in evidence required

the jury to make credibility choices, and they chose to believe the State=s witnesses. We cannot substitute

our judgment for the jury=s choices. See Johnson, 23 S.W.3d at 7. Nor can we reverse the judgment

unless it is so contrary to the overwhelming weight of the evidence as to be clearly wrong, manifestly unjust,

shocking to the conscience, or clearly the result of bias. See Clewis, 922 S.W.2d at 129, 135. Weir

undisputedly possessed the box of methamphetamine and had engaged in behavior consistent with

involvement in the methamphetamine trade. Viewing the evidence neutrally, we find that the jury could




        2
         The inventory of his belongings completed upon his arrest does not specify the material of the
spoon. Shelton testified that the spoon was metal.




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make credibility choices and determine beyond a reasonable doubt that Weir knowingly possessed the

methamphetamine.

                 We overrule his sole point of error and affirm the judgment.




                                                 Jan P. Patterson, Justice

Before Justices Kidd, Yeakel and Patterson

Affirmed

Filed: April 24, 2003

Do Not Publish




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