                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-07-00401-CR
                                 No. 10-07-00402-CR

MICHAEL LOUIS ANDERSON,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee


                      From the County Court at Law No. 1
                            Johnson County, Texas
                 Trial Court Nos. M200604025 and M200604026


                           MEMORANDUM OPINION


       Michael Louis Anderson was convicted of possession of marijuana under two

ounces and unlawfully carrying a weapon, a club. TEX. HEALTH & SAFETY CODE ANN. §

481.121(a), (b)(1) (Vernon 2003); TEX. PEN. CODE ANN. § 46.02 (Vernon Supp. 2008). He

was sentenced to 180 days in jail for each offense. The trial court ordered the sentences

to run concurrently. Anderson appealed. Because the evidence is both legally and

factually sufficient to support both convictions, the trial court’s judgment is affirmed.
                                       BACKGROUND

       Anderson was driving a single-cab pickup when he was pulled over by an officer

from the Venus Police Department for not having a license plate light. The officer

discovered that Anderson had an outstanding warrant and arrested Anderson. During

a search of the pickup, the officer discovered a marijuana “roach” in the center console

next to the driver’s seat. Another officer discovered another marijuana “roach” behind

the driver’s seat. A club was also discovered behind the driver’s seat.

                              SUFFICIENCY OF THE EVIDENCE

       In reviewing the legal sufficiency of the evidence, this Court looks at all of the

evidence in the light most favorable to the verdict to determine whether any rational

trier of fact could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); Bigon

v. State, 252 S.W.3d 360, 366 (Tex. Crim. App. 2008).

       The factual sufficiency of the evidence standard of review was recently restated

by the Court of Criminal Appeals:

       In a factual-sufficiency review, the evidence is reviewed in a neutral light.
       Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); accord Johnson
       v. State, 23 S.W.3d at 7. Only one question is to be answered in a factual-
       sufficiency review: Considering all of the evidence in a neutral light, was
       a jury rationally justified in finding guilt beyond a reasonable doubt?
       Watson, 204 S.W. 3d at 415. Evidence can be factually insufficient in one of
       two ways: (1) when the evidence supporting the verdict is so weak that
       the verdict seems clearly wrong and manifestly unjust; and (2) when the
       supporting evidence is outweighed by the great weight and
       preponderance of the contrary evidence so as to render the verdict clearly
       wrong and manifestly unjust. Roberts, 220 S.W.3d at 524 (citing Watson,
       204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 11); see also Castillo v. State, 221
       S.W.3d 689, 693 (Tex. Crim. App. 2007). "[A]n appellate court must first be

Anderson v. State                                                                         Page 2
       able to say, with some objective basis in the record, that the great weight
       and preponderance of the . . . evidence contradicts the jury's verdict before
       it is justified in exercising its appellate fact jurisdiction to order a new
       trial." Watson, 204 S.W.3d at 417. A reversal for factual insufficiency
       cannot occur when "the greater weight and preponderance of the evidence
       actually favors conviction." Roberts, 220 S.W.3d at 524. Although an
       appellate court has the ability to second-guess the jury to a limited degree,
       the factual-sufficiency review should still be deferential, with a high level
       of skepticism about the jury's verdict required before a reversal can occur.
       Watson, 204 S.W.3d at 417; Cain, 958 S.W.2d at 410.

Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008).       Further, a jury is not

required to credit appellant's explanations, regardless of how reasonable they may be.

Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001).

Marijuana

       In his first two issues, Anderson contends the evidence is legally and factually

insufficient to support his conviction for possession of marijuana.        He argues the

evidence was legally insufficient because there was no evidence that Anderson had

possession of the marijuana because the testimony was not specific or conclusive as to

who owned the vehicle, who had been driving the vehicle, or any other indication of

actual possession of the marijuana. He argues the evidence is factually insufficient

because he offered contrary evidence as to when the marijuana was left in the vehicle.

       Anderson was the sole occupant of a single cab pickup. Anderson is seen on the

video shown to the jury getting out of the driver’s side of the pickup. Further, on the

video, one of the officers stated that the pickup “came back” to Anderson. At trial,

Anderson referred to the pickup as “my truck.” One marijuana roach was found in the

center console which would have been within the immediate access of the driver. The


Anderson v. State                                                                      Page 3
other marijuana roach was found on the floorboard behind the driver’s seat.

Anderson’s explanation was that the marijuana was left over from his arrest nine

months earlier. He thought he had everything cleaned out of his pickup. The officer

who arrested Anderson for this offense also arrested Anderson for the previous offense.

Anderson was in the same pickup for the previous offense. The officer testified that the

marijuana in the pickup from the previous offense was removed and was not returned

to Anderson. He also testified that he believed the entire pickup had been searched.

       Based on a review of the evidence in the light most favorable to the verdict, any

rational trier of fact could have found that Anderson was in possession of the marijuana

beyond a reasonable doubt. Accordingly, the evidence is legally sufficient. Further, the

jury was not required to credit Anderson’s explanation of why the marijuana was in his

pickup. Considering all of the evidence in a neutral light, the jury was rationally

justified in finding guilt beyond a reasonable doubt.      Accordingly, the evidence is

factually sufficient. Anderson’s first and second issues are overruled.

Club

       In his third and fourth issues, Anderson asserts that the evidence is legally and

factually insufficient to support the conviction of unlawful carrying a weapon.

Specifically, Anderson contends that there is no evidence that the instrument found met

the definition of a club because he stated he used it as a walking stick and to ward off

dogs. Anderson contends the evidence is factually insufficient because his explanation

of the use of the instrument outweighs all evidence of guilt.




Anderson v. State                                                                 Page 4
       A club is defined as an instrument that is specially designed, made, or adapted

for the purpose of inflicting serious bodily injury or death by striking the person with

the instrument. TEX. PENAL CODE ANN. § 46.01(1) (Vernon Supp. 2008). The arresting

officer described the instrument as a wooden club approximately three feet long with

black electrical tape wrapped around it as if it was a handle. It was located behind the

seat in Anderson’s pickup. The officer believed it to be an illegal weapon because of the

way it had been altered. It looked to the officer like it was a broom stick and had

electrical tape around it as a handle to use when swinging it.

       The instrument was admitted into evidence. It is a heavy wood piece, an inch in

diameter and three feet long. It is rounded at one end and has been sawed off at the

other end. The sawed end is wrapped in what appears to be a red shop towel and black

electrical tape. The towel appears to extend about seven inches from the end of the

sawed end of the instrument and the tape is wrapped completely around the towel and

extends another inch down the instrument. The sawed end is not taped or covered but

is exposed. There are no scuff marks on the rounded end of the instrument.

       Anderson did not tell the officer that he used the instrument as a walking stick.

He said he used it to ward off dogs. At trial, Anderson explained that he had a medical

condition and that, in addition to warding off dogs, he used the instrument as a

walking stick in the woods when he takes his children camping. The instrument did

not look like a walking stick to the officer because it did not have a rubber piece on the

bottom as a walking cane would normally have. And because there was no rubber




Anderson v. State                                                                   Page 5
piece, the instrument did not have any scuff marks on the bottom of it as it would if it

had been used as a walking stick.

       Viewing the evidence in the light most favorable to the verdict, any rational trier

of fact could have found the wooden instrument met the definition of a club beyond a

reasonable doubt.       Accordingly, the evidence is legally sufficient to support the

conviction. Further, the jury was not required to credit Anderson’s explanation of what

was the instrument’s use. Considering all of the evidence in a neutral light, the jury

was rationally justified in finding guilt beyond a reasonable doubt. Accordingly, the

evidence is factually sufficient to support the conviction. Anderson’s third and fourth

issues are overruled.

                                      CONCLUSION

       Having overruled each of Anderson’s issues on appeal, the trial court’s judgment

is affirmed.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed May 6, 2009
Do not publish
[CR25]




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