Jeffery Glendon Martin v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-011-CR
JEFFERY GLENDON MARTIN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 97TH DISTRICT COURT OF ARCHER COUNTY
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MEMORANDUM OPINION 1
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Appellant Jeffery Glendon Martin was placed on deferred adjudication
community supervision after pleading guilty to a charge of possession of a
controlled substance. He now appeals from the trial court’s revocation of
community supervision based on its finding that he had possessed a controlled
substance in violation of the terms of his community supervision.
1
… See Tex. R. App. P. 47.4.
At the hearing on the State’s motion to proceed to adjudication, the State
called Jimmy Hickey, a narcotics investigator for the North Texas Regional Drug
Enforcement Task Force. Hickey testified that on May 23, 2005, members of
the Task Force responded to a mobile home fire at 1099 Miller Shores Road in
a rural area of Clay County. When Hickey arrived at the scene, Appellant was
in the custody of a Clay County deputy. Hickey was shown an open storage
shed approximately fifty feet from the fire. He testified that from his vantage
point outside the shed, he could see propane tanks that appeared to have
valves with a blue-greenish tint, an indication that the tanks had held or had
been exposed to anhydrous ammonia, a component used in the manufacture of
methamphetamine. He also saw punched and empty starter fluid cans; he
testified that starter fluid was a “precursor to the manufacture of
methamphetamine.”
Based on these observations, Hickey prepared an affidavit in support of
a search warrant. After a magistrate arrived on the scene to sign the search
warrant, Hickey led a search of the storage shed. Officers found a white
bucket inside the shed and an orange cooler under a canopy attached to the
shed. Both contained an off-white powder that was later determined by the
Texas Department of Public Safety laboratory to be methamphetamine.
2
The State also called Jane Ham, Archer County District Clerk, who
testified that she was present on January 3, 2005, when Appellant entered a
plea of guilty to the offense of possession of a controlled substance. By
pointing to Appellant, she identified him as the same person who entered the
plea of guilty and who was placed on deferred adjudication community
supervision.
The State also called Ralph Adams, who testified that he was Appellant’s
neighbor and that his mobile home was about 150–200 feet from Appellant’s
mobile home. Adams said that Appellant had occupied the residence for “a
year or better” and that during that time Appellant had full access to the home
and surrounding buildings. Adams further testified that he had been standing
in his yard when he saw the fire start, and he saw Appellant come out of the
mobile home after the fire had started. Adams watched Appellant leave in his
car and return after a short while.
Appellant’s father, Jim Martin, testified that his grandson, Jason Martin,
was sometimes on the property where the fire occurred and that he believed
Jason to be a person who would steal anhydrous ammonia. Appellant’s father
stated that he believed his grandson was in custody in Florida and had been for
about a year before Appellant’s adjudication hearing but also stated that he
believed that Jason was in Texas when the fire occurred.
3
In his sole point, Appellant contends that the trial court abused its
discretion by revoking his community supervision because the evidence of the
methamphetamine possession is legally insufficient to support the trial court’s
finding that Appellant violated the conditions of his community supervision.
Specifically, Appellant argues that the evidence is legally insufficient to show
that he actually exercised care, custody, and control over the contraband.2
We review an order revoking community supervision under an abuse of
discretion standard.3 In a revocation proceeding, the State must prove by a
preponderance of the evidence that the defendant violated the terms and
conditions of community supervision.4 The trial court is the sole judge of the
credibility of the witnesses and the weight to be given their testimony, and we
review the evidence in the light most favorable to the trial court’s ruling.5 If the
2
… See Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App.
2005).
3
… Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984);
Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983).
4
… Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993).
5
… Cardona, 665 S.W.2d at 493; Garrett v. State, 619 S.W.2d 172, 174
(Tex. Crim. App. [Panel Op.] 1981); Allbright v. State, 13 S.W.3d 817, 819
(Tex. App.—Fort Worth 2000, pet. ref’d).
4
State fails to meet its burden of proof, the trial court abuses its discretion in
revoking the community supervision.6
As the Texas Court of Criminal Appeals has held,
[I]n a possession of a controlled substance prosecution, 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. Regardless of whether the evidence
is direct or circumstantial, [the State] must establish that the
defendant’s connection with the drug was more than fortuitous.
This is the so-called “affirmative links” rule that protects the
innocent bystander—a relative, friend, or even stranger to the
actual possessor—from conviction merely because of his fortuitous
proximity to someone else’s drugs. Mere presence at the location
where drugs are found is thus insufficient, by itself, to establish
actual care, custody, or control of those drugs. However, presence
or proximity, when combined with other evidence, either direct or
circumstantial (e.g., “links”), may well be sufficient to establish
that element beyond a reasonable doubt. It is . . . not the number
of links that is dispositive, but rather the logical force of all of the
evidence, direct and circumstantial. 7
The trial court heard evidence that Appellant lived on the premises in
question when the methamphetamine was discovered and that no one else lived
on the property at that time, although Appellant’s son may have had access
during that time. There was no evidence that anyone else lived on the
property. The contraband was in open view in a shed or under the canopy
6
… Cardona, 665 S.W.2d at 493–94.
7
… Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim. App. 2006)
(citations and internal quotations omitted).
5
attached to the shed, and there was no apparent effort to hide it. In addition
to the contraband, the shed also contained evidence of the manufacture of
methamphetamine, including anhydrous ammonia storage tanks, lithium strips,
punctured ether cans, filters, salt, camp fuel, and starting fluid.
Based on the evidence, we hold that the State sufficiently linked
Appellant to the contraband, that the State met its burden of proving by a
preponderance of the evidence that he had violated a condition of his
community supervision, and that the trial court therefore did not abuse its
discretion by revoking his community supervision.8 We overrule Appellant’s
sole point and affirm the trial court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 11, 2008
8
… See Evans, 202 S.W.3d at 161–62; Cobb, 851 S.W.2d at 873.
6