Larry Dale McClenny v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-223-CR
LARRY DALE MCCLENNY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
A jury found Appellant Larry Dale McClenny guilty of possession of a
controlled substance, methamphetamine (4–200 grams), and assessed his
punishment at eight years’ confinement and a fine of $2,500. The trial court
sentenced him accordingly. In seven points, McClenny complains that the State
failed to provide him timely notice of its intent to introduce evidence of
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… See Tex. R. App. P. 47.4.
extraneous acts, that the State made improper jury arguments at both the guilt-
innocence and punishment stages of trial, that the trial court erroneously
introduced evidence of a plea in bar resolution at the punishment stage of trial,
and that the evidence is legally and factually insufficient. We will affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
Around 6:00 one morning, McClenny called Christopher Swink and asked
Swink if he wanted to buy some “dope.” Swink drove to McClenny’s motel
room, where McClenny sold him approximately one gram of methamphetamine,
and the two smoked some “speed.” McClenny then asked Swink to drive him
to a game room located about fifteen minutes away from McClenny’s motel
room. On the way to the game room, the men noticed a police car following
them so Swink parked in the game room parking lot, and they quickly ran into
the building.
While the men were in the game room, Deputy John Kiefer ran Swink’s
license plate and discovered that Swink had an outstanding warrant for a traffic
ticket. Deputy Kiefer parked his car around the corner from the game room and
waited for Swink to exit.
Swink and McClenny stayed in the game room for about ten minutes.
Once they thought the police car had left, they left the game room to go to
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another nearby game room. They drove to the second game room, and as the
men were exiting the truck, Deputy Kiefer pulled in behind Swink’s truck.
Deputy Kiefer told Swink to walk towards him. The deputy noticed that
McClenny, who was standing on the passenger side of the truck inside the
open door, was leaning into the truck and making furtive movements in the
passenger side of the truck. Deputy Christopher Williamson arrived to assist
Deputy Kiefer, and Deputy Kiefer instructed him to watch McClenny because
he was moving around. Deputy Williamson also observed McClenny reach
inside the truck through the open passenger door. The deputy “glanced” in the
open passenger door and saw a marijuana roach on the passenger floorboard
and a black wallet stuffed in between the seat cushion and the backrest
cushion of the passenger seat. Deputy Williamson patted down McClenny and
told him to stand at the rear of the truck.
Deputy Kiefer arrested Swink for the outstanding warrant and conducted
a search of his person incident to arrest. He found a pipe, about one gram of
crystal methamphetamine, and a bag of marijuana on Swink’s person. He then
searched Swink’s truck and found a marijuana roach laying on the passenger
floorboard and a glass pipe under the passenger seat. He also found two small
containers, a yellow and silver container and small black bag, stuffed between
the seat cushion and backrest of the passenger seat. The containers contained
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over four grams of methamphetamine. One container also had a Motorola
cellular phone battery inside. The deputies then arrested McClenny.
After jury selection, the State gave oral and written notice to McClenny
that it intended to call Swink to testify that McClenny had sold him drugs an
hour before the men were arrested. McClenny objected that the State did not
provide him adequate notice of its intent to introduce evidence of this
extraneous offense. The State argued that it did not inform McClenny prior to
trial that Swink would be a witness because it did not talk to Swink until the
day before trial. The State further argued that Swink’s testimony was
admissible as same transaction evidence and to rebut McClenny’s defensive
theory that the drugs belonged to Swink. The trial court permitted Swink to
testify and granted the defense a running objection to his testimony.
Swink testified that McClenny called him to ask if he wanted to buy some
drugs, that Swink agreed and purchased some “speed” from McClenny, and
that he then drove McClenny to the two game rooms before they both were
arrested. Swink also testified that after they were arrested and in the squad car
together, he asked McClenny, “[W]hat did you do with your dope[?]” to which
McClenny responded, “Don’t worry about it. I hid it.”
The State also called Deputies Kiefer and Williamson to testify about the
arrest and search and called a forensic chemist who presented expert testimony
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that the substances found in the two containers in Swink’s truck contained
methamphetamine.
III. E XTRANEOUS B AD A CTS E VIDENCE
In McClenny’s first point, he contends that the trial court erred by
allowing Swink to testify that McClenny sold Swink drugs shortly before they
were arrested because the State did not provide timely notice of its intent to
introduce this evidence in accordance with Texas Rule of Evidence 404(b). See
Tex. R. Evid. 404(b) (requiring reasonable notice in advance of trial of State’s
intent to introduce extraneous offense evidence). The State does not contend
that the notice was timely but argues that it was not required to give notice
under rule 404(b) because the evidence was admissible as same transaction
contextual evidence and because it was offered to rebut McClenny’s defensive
theory. Alternatively, the State argues that any error was harmless.
We will assume, without deciding, that the trial court erred by admitting
Swink’s testimony that McClenny sold him drugs the day of McClenny’s arrest
and apply a harm analysis. Error in admitting evidence with insufficient notice
under rule 404(b) is nonconstitutional error. See Hernandez v. State, 176
S.W.3d 821, 825 (Tex. Crim. App. 2005); Allen v. State, 202 S.W.3d 364,
369 (Tex. App.—Fort Worth 2006, pet. ref’d). Therefore, we apply rule
44.2(b) and disregard the error if it did not affect McClenny’s substantial rights.
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Tex. R. App. P. 44.2(b); see Mosley v. State, 983 S.W.2d 249, 259 (Tex.
Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999);
Coggeshall v. State, 961 S.W.2d 639, 642–43 (Tex. App.—Fort Worth 1998,
pet. ref’d).
A substantial right is affected when the error had a substantial and
injurious effect or influence in determining the jury’s verdict. King v. State, 953
S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States,
328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)); Coggeshall, 961 S.W.2d
at 643. Conversely, an error does not affect a substantial right if we have “fair
assurance that the error did not influence the jury, or had but a slight effect.”
Solomon v. State, 49 S.W .3d 356, 365 (Tex. Crim. App. 2001); Johnson v.
State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
The lack of notice under rule 404(b) is harmful if the complained-of
evidence affected the defendant’s ability to mount an adequate defense. See
Hernandez, 176 S.W.3d at 825–26. A defendant may demonstrate surprise by
showing how his defense strategy might have been different had the State
explicitly notified him that it intended to offer the extraneous offense evidence.
Id. at 826; Allen, 202 S.W.3d at 369. In determining whether evidence had a
substantial influence on the verdict, we review the record as a whole. See
Johnson, 967 S.W.2d at 417.
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In this case, McClenny made no argument at trial, and makes no assertion
on appeal, that he was “surprised” by the State’s decision to call Swink to
testify that he purchased drugs from McClenny about an hour before their
arrests. See Hernandez, 176 S.W.3d at 825. Further, McClenny failed to make
any showing of how his defense strategy might have been different had the
State explicitly notified him that it intended to offer the complained-of
testimony at trial or how his defense was “injuriously” affected by the State’s
failure to provide reasonable notice. See id. at 826. After receiving oral notice
on the day of trial, McClenny did not move for a continuance of the trial.
During cross-examination of Swink, McClenny’s defense attorney successfully
established that Swink had hoped he could get his sentence “cut in half” by
testifying against McClenny. Swink testified on cross-examination that his
attorney had told him the night before McClenny’s trial that McClenny “was
trying to blame all the dope on me” and that he “didn’t feel good [about that]
at all.”
We conclude that, in the context of the entire case against McClenny, the
trial court’s error, if any, in admitting Swink’s testimony did not have a
substantial or injurious effect on the jury’s verdict and did not affect
McClenny’s substantial rights. See id. at 825–26; King, 953 S.W.2d at 271.
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Thus, we disregard any error. See Tex. R. App. P. 44.2(b). We overrule
McClenny’s first point.
IV. J URY A RGUMENT
McClenny’s second, third, and fourth points complain of alleged improper
arguments made by the State in its closing argument at both the guilt-
innocence and punishment stages of trial.
A. Law on Jury Argument
To be permissible, the State’s jury argument must fall within one of the
following four general areas: (1) summation of the evidence; (2) reasonable
deduction from the evidence; (3) answer to argument of opposing counsel; or
(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex.
Crim. App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493
S.W.2d 230, 231 (Tex. Crim. App. 1973). To determine whether a party’s
argument properly falls within one of these categories, we must consider the
argument in light of the record as a whole. Wilson v. State, 938 S.W.2d 57,
61 (Tex. Crim. App. 1996), abrogated on other grounds by Motilla v. State, 78
S.W.3d 352, 357 (Tex. Crim App. 2002).
B. Jury Argument at Guilt-Innocence Stage not Improper
McClenny complains in his second and third points that the trial court
erred by denying his requests for mistrials when the prosecutor asserted her
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personal opinion during closing argument at the guilt-innocence stage of trial.
During closing argument, the prosecutor stated,
So we have brought you everything, even officers who couldn’t
remember anything and even a codefendant who our case doesn’t
depend on. But we wanted to give you the big picture, everything
we have. And that’s what you have. We don’t have anything to
hide because we know and the evidence shows that – [Emphasis
added.]
The trial court sustained McClenny’s objection “to what the prosecutor knows,”
instructed the jury to disregard the comment, but denied McClenny’s motion for
mistrial. The prosecutor continued, “We believe and it’s –,” to which McClenny
again objected that the comment was improper. The trial court instructed the
prosecutor to base her comments on the testimony rather than personal belief
and denied McClenny’s second motion for mistrial.
It is well settled that the prosecutor may argue her opinions concerning
issues in the case so long as the opinions are based on the evidence in the
record and do not constitute unsworn testimony. McKay v. State, 707 S.W.2d
23, 37 (Tex. Crim. App. 1985), cert. denied, 479 U.S. 871 (1986); Sikes v.
State, 500 S.W.2d 650, 652 (Tex. Crim. App. 1973); Penrice v. State, 716
S.W.2d 107, 109 (Tex. App.—Houston [14th Dist.] 1986, no pet.).
Here, although the prosecutor did not complete either of the complained-
of arguments before McClenny objected, the context of her argument
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demonstrates that she was attempting to state her opinion, based upon the
evidence in the record, that the drugs found in the passenger side of Swink’s
truck belonged to McClenny. She made these statements at the end of her
closing statement, after summarizing the evidence, and in the context of an
analysis of the evidence. See Sikes, 500 S.W.2d at 652; see also Thiboult v.
State, No. 02-06-00449-CR, 2008 WL 45757, at *4–5 (Tex. App.—Fort Worth
Jan. 3, 2008, pet. ref’d) (mem. op., not designated for publication) (holding
that prosecutor’s opinion that defendant was guilty was proper when given in
context of analysis of the evidence). Moreover, the complained-of statements
did not inject new facts into evidence that were harmful to McClenny, nor were
they manifestly unjust, nor did they indicate that the prosecutor possessed
independent facts of McClenny’s guilt that were not introduced into evidence.
See Jones v. State, 843 S.W.2d 92, 100 (Tex. App.—Dallas 1992, pet. ref’d);
Penrice, 716 S.W.2d at 109. Consequently, the prosecutor’s incomplete
arguments were not improper or harmful even though the trial court sustained
McClenny’s objections to them. Accord McKay, 707 S.W.2d at 37.
Finally, even if the arguments were improper, we hold that the trial
court’s instructions to disregard them were sufficient to cure any harm inuring
to McClenny. See id. Only in extreme circumstances, when the prejudice
caused by the improper argument is incurable, i.e., “so prejudicial that
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expenditure of further time and expense would be wasteful and futile,” will a
mistrial be required. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App.
2004); see Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003),
cert. denied, 542 U.S. 905 (2004). The arguments in the instant case, in any
event, were not so incurable as to require a mistrial. We overrule McClenny’s
second and third points.
C. Jury Argument at Punishment Stage not Improper
In McClenny’s fourth point, he argues that the trial court erred by
overruling his objection to the prosecutor’s closing argument at the punishment
stage of trial. The State contends that the prosecutor’s argument was invited
by defense counsel’s closing argument and, consequently, that the prosecutor’s
argument was justified and permissible as an answer to the argument of
opposing counsel.
At the punishment stage of trial, the State introduced evidence that
McClenny previously had pleaded guilty to three felony offenses. During
defense counsel’s closing argument, he argued that the three prior guilty pleas
were all pursuant to plea bargains and that the State had agreed to minimal jail
time as part of the plea bargains. Consequently, he argued that because the
State had agreed to lenient sentences in McClenny’s past cases, McClenny
should receive a low sentence in this case. During the State’s closing
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argument, the prosecutor explained that if the State makes a plea bargain offer,
the offer is “usually lower than we think a jury is going to give a person.”
Defense counsel objected that “the prosecutor is interjecting her personal
feelings in the case,” and the trial court overruled his objection.
Answering opposing counsel’s argument is not improper jury argument.
Felder, 848 S.W.2d at 94–95; Alejandro, 493 S.W.2d at 231. If defense
counsel invites the argument, then the State is allowed to respond to the
defense counsel’s argument. Albiar v. State, 739 S.W.2d 360, 362 (Tex. Crim.
App. 1987); Lasher v. State, 202 S.W.3d 292, 298 (Tex. App.—Waco 2006,
pet. ref’d).
Here, after defense counsel informed the jury that the State had agreed
to lower sentences in McClenny’s past cases, the prosecutor offered an
explanation as to why the State would agree to a lenient sentence in a plea-
bargained case. By explaining that the State’s plea bargain offer is “usually
lower than we think a jury is going to give a person,” the prosecutor was
responding to defense counsel’s argument. Thus, we hold that the prosecutor’s
argument was permissible because defense counsel opened the door by his
argument and that the trial court did not err by overruling McClenny’s objection.
See Albiar, 739 S.W.2d at 362; Lasher, 202 S.W.3d at 298. We overrule
McClenny’s fourth point.
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V. A DMISSION OF P LEA IN B AR R ESOLUTION
In McClenny’s fifth point, he contends the trial court erred by admitting
State’s Exhibits 8 and 10 into evidence during the punishment stage of the trial.
State’s Exhibit 8 was a plea in bar resolution of the offense of driving with a
suspended license, and State’s Exhibit 10 was a plea in bar resolution of the
offense of forgery by possession of a check with intent to pass. McClenny
objected to these exhibits because they were not final convictions but were
pleaded and barred pursuant to section 12.45 of the Texas Penal Code. See
Tex. Penal Code Ann. § 12.45 (Vernon 2003).
A. Standard of Review
This court reviews the trial court’s decision to admit evidence under an
abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101–02 (Tex.
Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997); Montgomery v. State,
810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). As long as the
trial court’s ruling falls within the zone of reasonable disagreement, we will
affirm its decision. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App.
2003). The trial court’s decision must be reasonable in view of all relevant
facts. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). The
mere fact that a trial court may decide a matter within its discretionary
authority in a different manner than an appellate court would in a similar
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circumstance does not demonstrate that an abuse of discretion has occurred.
Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).
B. Admissibility of Plea in Bar Evidence at Punishment Stage
Section 12.45 permits a trial court to take into account an unadjudicated
offense when assessing punishment if the State consents and the defendant
admits the offense. Tex. Penal Code Ann. § 12.45(a)–(b). When the court
does so, the State is barred from prosecuting the accused for the offense taken
into account under this provision. Id. § 12.45(c).
Section 12.45 does not require that a defendant plead guilty to an
unadjudicated offense; rather, the statute requires that the defendant, during
the punishment hearing, admit guilt to the unadjudicated offense. Zapata v.
State, 905 S.W.2d 15, 16 (Tex. App.—Corpus Christi 1995, no pet.).
Following Texas Court of Criminal Appeals precedent in Lopez v. State, 253
S.W.3d 680 (Tex. Crim. App. 2008), this court has held that offenses barred
under section 12.45 are neither convictions nor part of a defendant’s prior
criminal record. Ex parte Karlson, 282 S.W.3d 118, 127 (Tex. App.—Fort
Worth 2009, pet. ref’d); see Lopez, 253 S.W.3d at 686 (holding that
extraneous offenses to which defendant had admitted guilt in prior prosecution
were not prior convictions for purpose of impeachment in subsequent
prosecution).
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The admissibility of evidence at punishment is guided largely by article
37.07, section 3 of the Texas Code of Criminal Procedure. Haley v. State, 173
S.W.3d 510, 513 (Tex. Crim. App. 2005); see Tex. Code Crim. Proc. Ann. art.
37.07 § 3(a)(1) (Vernon Supp. 2008). Under this section, the prosecution may
offer evidence of an extraneous crime or bad act that is shown beyond a
reasonable doubt to have been committed by the defendant or for which he
could be held criminally responsible. Tex. Code Crim. Proc. Ann. art. 37.07,
§ 3(a)(1); Haley, 173 S.W.3d at 515. “Before the jury can consider this
evidence in assessing punishment, it must be satisfied beyond a reasonable
doubt that the acts are attributable to the defendant.” Haley, 173 S.W.3d at
515.
McClenny’s only objection at trial was that State’s Exhibits 8 and 10
were inadmissible because they were not prior convictions. He did not
complain at trial, and does not argue on appeal, that the State failed to prove
beyond a reasonable doubt that the acts were attributable to him or that
evidence of these acts was irrelevant. The fact that McClenny had not been
finally convicted of the two pleaded and barred offenses does not matter. See
Haley, 173 S.W.3d at 514–15. Accordingly, we overrule McClenny’s fifth
point.
VI. S UFFICIENCY OF THE E VIDENCE
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In his sixth and seventh points, McClenny argues that the evidence is
legally and factually insufficient to convict him of possession of a controlled
substance.
A. Standards of Review
1. Legal Sufficiency Standard of Review
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all of the evidence in the light most favorable to the prosecution in
order to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
This standard gives full play to the responsibility of the trier of fact 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, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the
sole judge of the weight and credibility of the evidence. See Tex. Code Crim.
Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568
(Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). Thus, when
performing a legal sufficiency review, we may not re-evaluate the weight and
credibility of the evidence and substitute our judgment for that of the factfinder.
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Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied,
529 U.S. 1131 (2000). Instead, we “determine whether the necessary
inferences are reasonable based upon the combined and cumulative force of all
the evidence when viewed in the light most favorable to the verdict.” Hooper
v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume
that the factfinder resolved any conflicting inferences in favor of the
prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.
at 2793; Clayton, 235 S.W.3d at 778.
2. Factual Sufficiency Standard of Review
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129
S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.
2006). We then ask whether the evidence supporting the conviction, although
legally sufficient, is nevertheless so weak that the factfinder’s determination is
clearly wrong and manifestly unjust or whether conflicting evidence so greatly
outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704
(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417.
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In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to
overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly
wrong or manifestly unjust simply because we would have decided differently
than the jury or because we disagree with the jury’s resolution of a conflict in
the evidence. Id. We may not simply substitute our judgment for the
factfinder’s. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain
v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless we conclude
that it is necessary to correct manifest injustice, we must give due deference
to the factfinder’s determinations, “particularly those determinations concerning
the weight and credibility of the evidence.” Johnson, 23 S.W.3d at 9. Our
deference in this regard safeguards the defendant’s right to a trial by jury.
Lancon, 253 S.W.3d at 704.
B. Possession of a Controlled Substance
To prove possession of a controlled substance, the State must prove that
the accused exercised control, management, or care over the substance and
that he knew the matter possessed was contraband. See Tex. Health & Safety
Code Ann. § 481.002(38) (Vernon Supp. 2008); Evans v. State, 202 S.W.3d
158, 161 (Tex. Crim. App. 2006); Poindexter v. State, 153 S.W.3d 402, 405
18
(Tex. Crim. App. 2005). The accused’s presence at the location were
contraband is found is insufficient, by itself, to establish actual care, custody,
or control over the contraband. Evans, 202 S.W.3d at 162. But the accused’s
presence or proximity to the contraband, when combined with other evidence,
either direct or circumstantial, may establish that element beyond a reasonable
doubt. Id. The evidence “must establish, to the requisite level of confidence,
that the accused’s connection with the drug was more than just fortuitous.”
Poindexter, 153 S.W.3d at 405–406 (citing Brown v. State, 911 S.W.2d 744,
747 (Tex. Crim. App. 1995)).
Among the factors to be considered in evaluating the existence of
affirmative links between the accused and the contraband are: (1) whether the
defendant was present when the search was executed; (2) whether the
contraband was in plain view; (3) whether the defendant was in close proximity
to and had access to the contraband; (4) whether the defendant was under the
influence of a controlled substance when arrested; (5) whether the defendant
possessed other contraband or controlled substances 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 the contraband; (10)
whether other contraband or drug paraphernalia was present; (11) whether the
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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 the driver of the automobile in which the
contraband was found; (14) whether the defendant was found with a large
amount of cash; and (15) whether the conduct of the accused indicated a
consciousness of guilt. McQuarters v. State, 58 S.W.3d 250, 259 (Tex.
App.—Fort Worth 2001, pet. ref’d). It is the logical force of the evidence, not
the number of links, that supports the factfinder’s verdict. Evans, 202 S.W.3d
at 162, 166.
C. Legally Sufficient Evidence
Applying the McQuarters factors to the present case, the record
demonstrates that McClenny was present when the deputies searched Swink’s
truck, that a marijuana roach and the black wallet containing drugs were visible
by glancing in the passenger side of the truck, that McClenny was riding in the
passenger side of the truck in close proximity to the drugs found stuffed
between the passenger seat and backrest cushions, that Swink and McClenny
had smoked “dope” about an hour before their arrest, that Deputies Kiefer and
Williamson observed McClenny making furtive movements in the passenger seat
where the drugs were found, and that McClenny indicated a consciousness of
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guilt when he told Swink that he had hidden his drugs in Swink’s car and had
hoped they would not be found. See McQuarters, 58 S.W.3d at 259.
Viewing the evidence in the light most favorable to the jury’s verdict, we
hold that a rational trier of fact could have found beyond a reasonable doubt
that McClenny was guilty of possession of a controlled substance. See Tex.
Health & Safety Code Ann. § 481.002(38); Jackson, 443 U.S. at 326, 99 S.
Ct. at 2793; Clayton, 235 S.W.3d at 778. Accordingly, we hold that the
evidence is legally sufficient to support McClenny’s conviction.
D. Factually Sufficient Evidence
Having found the evidence legally sufficient, we now address whether the
evidence is factually sufficient to support McClenny’s conviction. The record
demonstrates that Swink owned the truck where the drugs were found and that
McClenny did not have any drugs on his person. However, the deputies found
the containers of drugs on the passenger side of the vehicle, where McClenny
was sitting and where the deputies had seen him making furtive movements.
Swink testified that the drugs founds in the passenger side of his truck
belonged to McClenny.
On appeal, McClenny attacks Swink’s credibility as a witness, arguing
that he was under the influence of drugs when he was arrested and that he did
not tell anyone that he and McClenny had used drugs the morning that they
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were arrested until the day of McClenny’s trial. But the jury is the sole trier of
fact and judge of the credibility of the witnesses, and we must give due
deference to the jury’s determinations of the weight and credibility of the
evidence. See Johnson, 23 S.W.3d at 9; Cain, 958 S.W.2d at 407.
McClenny also argues that factually insufficient evidence exists to
support his conviction because Swink testified that he had just purchased drugs
from McClenny for $20 or $30 but the deputies found only sixty-nine cents on
McClenny. But Swink’s testimony offered a plausible explanation for this: he
testified that he and McClenny had been playing slot machines at the game
room before they were arrested.
We have thoroughly reviewed the evidence in a neutral light, and we find
no objective basis for holding that the jury’s verdict was clearly wrong or
manifestly unjust or that it is contradicted by the great weight and
preponderance of the evidence. See Lancon, 253 S.W.3d at 704; Watson, 204
S.W.3d at 414–15, 417. Rather, the evidence presented at trial was sufficient
to support the jury’s verdict, and no contrary evidence exists that would render
the evidence factually insufficient under the applicable standard of review. See
Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414–15, 417.
Accordingly, having held that the evidence is factually sufficient to support
McClenny’s conviction, we overrule his seventh point.
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VII. C ONCLUSION
Having overruled all of McClenny’s points, we affirm the trial court’s
judgment.
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, GARDNER and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 8, 2009
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