Justin Raveon Tryon v. the State of Texas ( 2024 )

Opinion issued July 18, 2024
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-23-00402-CR
NO. 01-23-00403-CR
———————————
JUSTIN RAVEON TRYON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Case Nos. 1711621 & 1711624
MEMORANDUM OPINION
Justin Raveon Tryon was charged with second degree aggravated assault with
a deadly weapon1 and possession with intent to deliver a controlled substance,
namely cocaine.2 A jury convicted Tyron of both offenses. He was sentenced to
12 years’ confinement for aggravated assault and 10 years’ confinement for
possession with intent to deliver—with the recommendation that he be placed on 8
years community supervision. In three issues on appeal, Tryon challenges the
sufficiency of the evidence to support his convictions.
We affirm.
Background
Shaquinta Meador and Tryon began dating around August 2020. On February
21, 2021, Tryon called Meador and asked if they could talk. Meador met Tryon that
afternoon and they went to Hermann Park in Meador’s Chevy Tahoe. When they
arrived, Tryon asked Meador if they could move in together. Meador told Tryon no,
because they were on two different paths, and Meador did not want her daughter,
who was living with Meador at the time, “to be around the situation where harm
could be brought to her.”
1
See TEX. PENAL CODE §§ 22.01, 22.02(a)(2). Appellate cause number 01-23-
00402-CR is trial court case number 1711624.
2
See TEX. HEALTH & SAFETY CODE § 481.112. Appellate cause number 01-23-
00403-CR is trial court case number 1711621.
2
Meador and Tryon then left the park to eat at Texas Roadhouse. They left the
restaurant without eating, however, because Meador wanted to go home. Meador
could tell Tryon was upset that she wanted to go home, but he still wanted something
to eat. Tryon drove to Chacho’s, a restaurant in Houston and attempted to order food
through the drive-thru. The male employee taking their order started “being smart,”
and Tryon started “going off on him” and “cuss[ing] him out.” As they pulled up to
the drive-thru window, a male employee exited the restaurant “trying to fight”
Tryon.
Meador got out of the vehicle and tried to deescalate the situation. Eventually,
the male employee went back inside the restaurant and a female employee, Maisha
Williams, came out to take their order. Tryon “pulled out a gun,” “cocked it
upwards,” and told Williams to “send him back out.”
Williams testified that on that evening she was working as a cashier at
Chacho’s and became aware of a verbal altercation between an employee and a
customer. She made contact with the customer outside the drive-thru, while the
customer was inside his vehicle, which Williams described as “like a Suburban.”
The customer appeared to be in his 30s, African American, and had a female
passenger.
Williams walked outside, and up to his vehicle, and noticed that the customer
seemed angry, “like he just got into it with someone.” When she tried to resolve the
3
issue, the customer pulled out a gun and cocked it. After he pulled a gun on her as
she was standing at his window, Williams rushed back inside. The following day,
Williams met with a detective and identified Tryon from a photo array.
After Williams went back inside the restaurant, Meador told Tryon that they
needed to leave because the police were going to come. Tryon “spe[d] off real
quick,” and was driving erratically. According to Meador, Tryon was upset that she
had told him he had to go home and could not stay the night with her, and every time
she said something to him, “it seemed like he just got angrier.” Tryon “smashed on
the brake real hard,” causing her to hit the dashboard with her chest. She then
reached over and grabbed the keys and told Tryon he had to get out of the vehicle.
As she reached over him and opened the driver’s door, Meador then “slid[] over
from the passenger’s side so [she] could get into the driver’s seat to try to go.” Tryon
got out of the vehicle and stood “[d]irectly outside the driver’s door.” Meador
testified that the driver’s door was open slightly and that the windows in the vehicle
were up. As Tryon was standing just outside the vehicle, Meador testified that he
said: “So you think I’m playing about you? You think I’m playing about you?”
Meador turned her head around as she tried to start the vehicle, and although
she did not see Tryon shoot her, she “hear[d] the gun go off.” At first, Meador did
not realize that she was shot. She thought Tryon had “shot in the air or something
just to shoot to scare [her].” However, once her arm started tingling, Meador realized
4
the “bone busted” in her arm. She later realized she had also been shot in the neck.
Meador turned to Tryon, saw him holding a gun, and said to him: “You shot me.”
Meador testified that Tryon appeared to be “shocked,” denied shooting her,
and told her, “let me take you home and take care of you.” Meador, who could not
find her phone, asked Tryon if she could call the police. Tryon said no, but
eventually, after Meador told him he could make up a story to tell the police, he
agreed to call 9-1-1. While they were waiting for police to arrive, Meador testified
that she saw Tryon “putting his bag and stuff in the woods.” She further described
Tryon’s bag as a backpack.
Once Houston Fire Department (HFD) and Houston Police Department
(HPD) arrived on scene, Meador stated that she initially told an officer that they were
shot at by someone in a silver Malibu, but that she said this because Tryon could
hear her. However, Meador testified that as soon as she left the scene in the
ambulance, she told the paramedics that Tryon was the one who shot her.
HFD Paramedic D. Lopez confirmed that, as soon as the ambulance began
transporting her to the hospital, Meador told Lopez: “It was him; he shot me.” She
explained that she was referring to the male suspect who was still on scene, i.e.,
Tryon, as the person who shot her. Lopez further testified that when he arrived on
scene, no one else was present except Meador and Tryon. Lopez told his partner to
5
radio HPD, who was still on scene with Tryon, to tell them that Meador had
identified Tryon as the shooter.
HPD Sergeant M. Mendez and Officer E. Camacho also responded to the
scene. Officer Camacho testified that when she arrived, she saw paramedics treating
Meador in the ambulance and a male standing very near the open ambulance doors.
Officer Camacho attempted to get a statement from Meador, but she was in pain and
“had an urgency to leave.” Officer Camacho identified Tryon in the courtroom as
the male standing near the ambulance doors.
Sergeant Mendez testified that after the ambulance left to transport Meador to
Ben Taub Hospital, he received information about the identity of the possible
shooter, i.e., Tryon. Sergeant Mendez instructed Officer Camacho to handcuff
Tryon and search him. In conducting the pat down search, Officer Camacho located
a handgun. Officer Camacho then asked Sergeant Mendez to complete a full
systematic search, which consisted of searching his clothing for any weapons or
narcotics before he was placed in the patrol car. In doing so, Sergeant Mendez
discovered a small clear bag of narcotics, a white powdery substance, in Tryon’s
jacket, which Tryon identified as cocaine.
C. Guidry, a senior forensic analyst at the Houston Forensic Science Center,
testified that she tested the white powder found on Tryon’s person and confirmed
that the substance was cocaine. Guidry explained that cocaine is a controlled
6
substance, and the amount recovered from Tryon’s possession had a total net weight
of 9.45 grams.
Sergeant Mendez further testified that after Meador was transported to the
hospital, he received information concerning a possible backpack related to Tryon.
He directed another officer, Officer Kichamu, to search for the backpack in the tree
line next to the street where Meador’s vehicle was parked. Officer Kichamu located
a backpack in the tree line and delivered it to Sergeant Mendez, who secured the
backpack for Officer Camacho.
Officer Camacho searched the backpack and discovered 148.5 grams of
marijuana, digital scales, clear plastic baggies, two glass jars, a brown journal, and
6.88 grams of Xanax. The journal contained notes, names, and the sketch of an
apartment complex. Officer Camacho testified that, based on her training and
experience, the contents of the backpack indicated an intent to deliver narcotics—
i.e., “not for personal recreational use.”
HPD Major V. Garcia was also assigned to investigate the incident for the
Major Crimes Division. He responded to the scene and was tasked with taking
pictures of the vehicle on the street. Major Garcia testified that during the time he
was present at the location, he did not see any cars pass by—“there was no traffic.
It was kind of isolated.” He examined the vehicle and did not see any “bullet holes
in the outside suggesting that the vehicle had been shot.” He also looked for any
7
shell casings, but the only ones he found “were at a distance and old and weathered
and had been run over.”
Tryon testified at trial and admitted to going to Chacho’s with Meador but
denied pulling a gun while at the restaurant. Tryon testified that they left Chacho’s
to go to Meador’s apartment to “smoke and drink,” and he was driving erratically—
“driving at a high rate of speed, swerving from lane to lane, stuff like that.” Tryon
stated that he was driving erratically because, as they were leaving Chacho’s, he
noticed a silver Malibu following them. According to Tryon, the Malibu continued
following them, speeding up when they sped up, slowing down when they slowed
down, and changing lanes when they changed lanes. Tryon exited the freeway and
attempted to lose the Malibu in the neighborhoods, a few minutes away from
Meador’s apartment. But the Malibu caught up to them, and Tryon slammed on the
brakes after he noticed “little flashes” in the side mirror, which he knew to be flashes
“from the barrel of a gun.”
Tryon stated that he knew what the flashes were because he hunts, “and when
you hunt, you don’t close your eyes when you shoot so [he] know[s] what the flash
from a barrel looks like.” As soon as Tryon slammed on the brakes, he got out of
the vehicle, Meador threw it into park, and Tryon drew his gun and shot once at the
Malibu. The Malibu sped around Tryon and drove off, after which Tryon realized
8
Meador was shot. Tryon testified that the windows of Meador’s vehicle were down
when he saw the flashes, but he rolled them up prior to slamming on his brakes.
Tryon additionally testified that he did not shoot Meador. Although he was
initially confused about how Meador was shot, as soon as he saw the blood, he called
9-1-1. Once paramedics and police arrived, Tryon stated that he was cooperative
and told the officers where they could find the gun and the cocaine. Tryon also
stated that he had bought the cocaine earlier in the day for his personal use and had
been using it throughout the day. Tryon asserted that he had not bought the cocaine
to sell to anyone, and he denied any knowledge of, connection to, or ownership of
the backpack or its contents.
Sufficiency of the Evidence
In his first and second issues on appeal, Tryon challenges the legal and factual
sufficiency of the evidence supporting his conviction for aggravated assault.
According to Tryon, the State failed to establish his identity as the shooter and failed
to establish the requisite mental state. In his third issue, Tryon challenges the legal
sufficiency of the evidence supporting his conviction for possession of cocaine with
intent to deliver. Tryon maintains the State failed to establish that the backpack
found with the drug paraphernalia was his and, therefore, failed to establish that
Tryon possessed the cocaine with intent to deliver.
9
A. Standard of Review
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). In assessing the legal sufficiency of the
evidence under the Jackson standard, “we consider all of the evidence in the light
most favorable to the verdict and determine whether, based on that evidence and
reasonable inferences therefrom, a rational juror could have found the essential
elements of the crime beyond a reasonable doubt.” Isassi v. State, 330 S.W.3d 633,
638 (Tex. Crim. App. 2010) (citing Jackson, 443 U.S. at 318–19).
In conducting our review, we defer to the responsibility of the factfinder to
“fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Id. (quoting Jackson, 443 U.S. at 318–
19). The jury, as the sole judge of the facts and credibility of the witnesses, may
choose to believe or disbelieve any witness or any portion of their testimony. Sharp
v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). “When the record supports
conflicting inferences, we presume that the jury resolved the conflicts in favor of the
verdict and defer to that determination.” Merritt v. State, 368 S.W.3d 516, 525–26
(Tex. Crim. App. 2012).
It is not necessary that the evidence directly prove the defendant’s guilt;
circumstantial evidence is as probative as direct evidence in establishing a
10
defendant’s guilt, and circumstantial evidence can alone be sufficient to establish
guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013). If the
cumulative force of all the incriminating circumstances is sufficient to support the
conviction, each fact need not point directly and independently to guilt. Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
“The key question is whether the evidence presented actually supports a
conclusion that the defendant committed the crime that was charged.” Morgan v.
State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016) (internal quotations omitted). And
our role on appeal is “restricted to guarding against the rare occurrence when a fact
finder does not act rationally.” Id. (internal quotations omitted).
B. Aggravated Assault
With respect to Tryon’s sufficiency of the evidence challenges to his
conviction for aggravated assault, the Court of Criminal Appeals has held that the
legal-sufficiency standard from Jackson “is the only standard that a reviewing court
should apply in determining whether the evidence is sufficient to support each
element of a criminal offense that the State is required to prove beyond a reasonable
doubt.” Brooks, 323 S.W.3d at 895. We therefore disregard Tryon’s assertion that
the evidence is factually insufficient to support his conviction and focus solely on
whether the evidence is legally sufficient to support his conviction. See Malbrough
v. State, 612 S.W.3d 537, 559 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d).
11
Here, the record reflects that Tryon was charged with aggravated assault by
intentionally and knowingly causing bodily injury to Meador, a person with whom
Tryon had a dating relationship, by shooting Meador with a firearm, and that Tryon
used and exhibited a deadly weapon, i.e., firearm, during the commission of the
offense. Tryon contends there is insufficient evidence to prove that he was the
person who shot Meador. Tryon further argues that even if he did shoot Meador,
there is insufficient evidence to prove that he shot her intentionally or knowingly.3
A person commits ordinary assault if he “intentionally, knowingly, or
recklessly causes bodily injury to another.” TEX. PENAL CODE § 22.01(a)(1). The
offense becomes aggravated assault if that person commits the offense of assault and
causes serious bodily injury or uses or exhibits a deadly weapon during the
commission of the assault. See id. § 22.02(a).
A person acts intentionally with respect to a result of his conduct when it is
his conscious objective or desire to engage in the conduct or cause the result. Id.
3
Because Tryon challenges the sufficiency of the evidence to support only these two
elements—identity and the culpable mental state—we do not address the sufficiency
of the evidence to support any other element. See, e.g., Murray v. State, 457 S.W.3d
446, 448 n.1 (Tex. Crim. App. 2015) (“We solely address the sufficiency of the
evidence as it pertains to the element of ‘operating’ in the DWI statute because
Appellant challenged only that element of the statute.”).
12
§ 6.03(a). A person acts knowingly with respect to a result of his conduct when he
is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b).4
Direct evidence of the requisite culpable mental state—the mens rea of the
offense—is not required. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002).
Mens rea is almost always proven through circumstantial evidence. Herrera v. State,
526 S.W.3d 800, 809 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d); see also
Tottenham v. State, 285 S.W.3d 19, 28 (Tex. App.—Houston [1st Dist.] 2009, pet.
ref’d) (“[B]oth intent and knowledge may be inferred from circumstantial evidence
and proof of a culpable mental state almost invariably depends on circumstantial
evidence.”). “A jury may infer intent from the acts, words, and conduct of the
accused, as well as from the extent of the injuries and the relative size and strength
of the parties.” Herrera, 526 S.W.3d at 809–10. Additionally, a jury may infer that
a criminal defendant intended the natural consequences of his acts. See Ruffin v.
State, 270 S.W.3d 586, 591–92 (Tex. Crim. App. 2008).
“Identity may be established by the testimony of a single eyewitness.” Gibbs
v. State, 555 S.W.3d 718, 728 (Tex. App.—Houston [1st Dist.] 2018, no pet.); see
also Shah v. State, 414 S.W.3d 808, 812 (Tex. App.—Houston [1st Dist.] 2013, pet.
4
Assault and aggravated assault causing bodily injury are result of conduct offenses.
Price v. State, 457 S.W.3d 437, 442 (Tex. Crim. App. 2015) (“The gravamen of
assault with bodily injury is injury, a result of conduct.”); Landrian v. State, 268
S.W.3d 532, 540 (Tex. Crim. App. 2008) (“[A]ggravated assault with the underlying
crime of assault by causing bodily injury . . . . is a result-oriented offense.”).
13
ref’d) (“It is well-established that the testimony of a sole witness to an offense may
constitute legally sufficient evidence to support a conviction.”). Further, identity
may be proven by direct evidence, circumstantial evidence, or by reasonable
inferences from the evidence. Ingerson v. State, 559 S.W.3d 501, 509 (Tex. Crim.
App. 2018); see also Greene v. State, 124 S.W.3d 789, 792 (Tex. App.—Houston
[1st Dist.] 2003, pet. ref’d) (“[E]yewitness identification is not necessary.”).
In this case, the evidence supports the jury’s determination that Tryon was the
person who shot Meador and that he did so intentionally or knowingly. Meador
testified that, after the confrontation at Chacho’s, Tryon “spe[d] off real quick,” and
was driving erratically. She stated that he was upset that she had told him he had to
go home, and every time she said something to him, “it seemed like he just got
angrier.”
Meador further testified that Tryon “smashed on the brake real hard,” causing
her to hit the dashboard with her chest. She then reached over and grabbed the keys
and told Tryon he had to get out of the vehicle. Meador “slid[] over from the
passenger’s side so [she] could get into the driver’s seat to try to go.” After Tryon
got out, Meador testified that he stood “[d]irectly outside the driver’s door” and
yelled “So you think I’m playing about you? You think I’m playing about you?”
The evidence further shows that Meador “hear[d] the gun go off” and then her
arm started tingling. Meador realized the “bone busted” in her arm. She later
14
realized she had also been shot in the neck. Meador turned to Tryon, saw that he
had a gun in his hand, and she said to him: “You shot me.”
Meador testified that Tryon appeared to be “shocked,” denied shooting her,
and told her “let me take you home and take care of you.” Meador, who could not
find her phone, asked Tryon if she could call the police. Tryon said no, but
eventually, after Meador told him he could make up a story to tell the police, he
agreed to call 9-1-1. Once HFP and HPD arrived on scene, Meador stated that she
initially told an officer that they were shot at by someone in a silver Malibu, but that
she said this because Tryon could hear her. However, Meador testified that as soon
as she left in the ambulance, she told the paramedics that Tryon is the one who shot
her.
HFD Paramedic D. Lopez confirmed that, as soon as the ambulance began
transporting her to the hospital, Meador told Lopez: “It was him; he shot me.” And
she explained that she was referring to the male suspect who was still on scene, i.e.,
Tryon, as the person who shot her. Lopez testified that when he arrived on scene,
no one else was present except Meador and Tryon. Lopez told his partner to radio
HPD, who was still on scene with Tryon, to tell them that Meador had identified
Tryon as the shooter.
Although Tryon testified that he did not shoot Meador and that Meador must
have been shot by an unidentified person in the Malibu that was following them, the
15
jury could have reasonably chosen to disbelieve Tryon’s version of events—and we
must defer to the jury’s resolution. See Merritt, 368 S.W.3d at 525–26 (appellate
court presumes jury resolved conflicting evidence in favor of verdict and defers to
that determination).5 Accordingly, from all this evidence, the jury could have
reasonably inferred that Tryon was the person who shot Meador. See Ingerson, 559
S.W.3d at 509 (identity may be proven by circumstantial evidence or by reasonable
inferences from the evidence); Isassi, 330 S.W.3d at 638 (we defer to factfinder to
weigh evidence and to draw reasonable inferences from basic facts to ultimate
facts).6
Likewise, the record contains ample circumstantial evidence from which a
reasonable jury could have concluded that Tryon had the requisite mens rea to find
him guilty of aggravated assault, meaning that he was at least aware that his conduct
was reasonably certain to cause bodily injury to Meador. See TEX. PENAL CODE §
6.03(a), (b). In that regard, Meador testified that:
5
See also Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (jury, as sole
judge of facts and credibility, may choose to believe or disbelieve any witness or
any portion of their testimony).
6
See also Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007) (discussing
hypothetical of woman seen standing in office holding smoking gun who is next to
body with gunshot wound on floor and concluding that “it is reasonable to infer that
the woman shot the gun (she is holding the gun, and it is still smoking),” but also
that, “[i]f she is the only person in the room with a smoking gun, then it is reasonable
to infer that she shot the person on the floor”).
16
• Tryon had pulled a gun on the employee at Chacho’s that same evening;
• Following that interaction, he sped off and was driving erratically;
• Tryon was upset with Meador because she had told him he needed to go home
and could not spend the night with her;
• He slammed on his brakes causing Meador to hit her chest on the dashboard;
• After Meador kicked Tryon out of her vehicle, he said to her: “So you think
I’m playing about you? You think I’m playing about you?”; and
• Tryon only agreed to call the police once Meador suggested that he make up
a story about how she got shot.
Additionally, Tryon testified that he was a hunter, that he knows “you don’t
close your eyes when you shoot,” and that he was familiar with bullets and guns.
Based on this evidence, the jury could have reasonably inferred that Tryon,
who was a knowledgeable “hunter” who knew how to handle a gun, who was upset
with Meador after she made him leave her vehicle, and who shot the gun at her
vehicle, had the “conscious desire to engage in the conduct or cause the result” or
was “aware that his conduct [was] reasonably certain to cause the result” of injuring
Meador. See TEX. PENAL CODE § 6.03(a), (b); Forest v. State, 989 S.W.2d 365, 368
(Tex. Crim. App. 1999) (holding that “firing a gun in the direction of an individual
is an act clearly dangerous to human life” and thus evidence of intent to cause serious
bodily injury).7
7
See also Darkins v. State, 430 S.W.3d 559, 565 (Tex. App.—Houston [14th Dist.]
2014, pet. ref’d) (“Intent may also be inferred from the use of a deadly weapon,
unless it would not be reasonable to infer that death or serious bodily injury could
17
We overrule Tryon’s first and second issues.
C. Possession with Intent to Deliver a Controlled Substance
Lastly, in his third issue, Tryon challenges the legal sufficiency of the
evidence to support his conviction for possession with intent to deliver the controlled
substance of cocaine. Specifically, Tryon contends the evidence linking him to the
backpack was insufficient to prove that he had the intent to deliver.8
In a possession with intent to deliver case, the State must prove that the
defendant: (1) exercised care, custody, control, or management over the controlled
substance; (2) intended to deliver the controlled substance to another; and (3) knew
that the substance in his possession was a controlled substance. TEX. HEALTH &
SAFETY CODE § 481.002(38), 481.112(a); Nhem v. State, 129 S.W.3d 696, 699 (Tex.
App.—Houston [1st Dist.] 2004, no pet.).
Intent to deliver a controlled substance may be proved by circumstantial
evidence. Mack v. State, 859 S.W.2d 526, 528 (Tex. App.—Houston [1st Dist.]
result from use of the weapon.”); Reyes v. State, No. 02-09-00097-CR, 2010 WL
1633424, at *3 (Tex. App.—Fort Worth Apr. 22, 2010, no pet.) (mem. op., not
designated for publication) (holding evidence was sufficient to support mens rea for
aggravated assault because jury was entitled to infer from evidence that, by shooting
gun into vehicle, defendant had the “conscious objective or desire to engage in the
conduct or cause the result” or was “aware that his conduct [was] reasonably certain
to cause the result” of injuring complainant, even though no one saw defendant fire
gun).
8
As intent to deliver is the only element challenged by Tryon, we address only the
sufficiency of the evidence to support that element. See Murray, 457 S.W.3d at 448
n.1.
18
1993, no pet.). An oral expression of intent is not required; intent can be inferred
from the acts, words, and conduct of the accused. Patrick v. State, 906 S.W.2d 481,
487 (Tex. Crim. App. 1995). Factors that courts have considered to establish the
intent to deliver include, but are not limited to: (1) the nature of the location where
the defendant was arrested; (2) the quantity of the controlled substances in the
defendant’s possession; (3) the manner of packaging of the controlled substances;
(4) the presence of narcotics paraphernalia (for either use or sale); (5) the defendant’s
possession of a large amount of cash; (6) the defendant’s status as a narcotics user;
and (7) an officer’s testimony stating that the amount of the controlled substances
recovered is consistent with the intent to deliver. See Williams v. State, 902 S.W.2d
505, 507 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (considering factors one
through six); Reece v. State, 878 S.W.2d 320, 325 (Tex. App.—Houston [1st Dist.]
1994, no pet.) (considering factor seven).
These are evaluative factors for the court to consider when reviewing the
sufficiency of the evidence. Kibble v. State, 340 S.W.3d 14, 19 (Tex. App.—Houston
[1st Dist.] 2010, pet. ref’d). And all of them are not required to be present. Id.Moreover, expert testimony by experienced law enforcement officers may be used
to establish an accused’s intent to deliver. See Mack, 859 S.W.2d at 529.
Here, Tryon argues there is no evidence that the amount of cocaine he
possessed “was so great only a dealer of drugs would have such an amount.” Thus,
19
according to Tryon, the only evidence from which the jury could infer an intent to
deliver came from the contents of the backpack that police officers found in the tree
line near Meador’s vehicle. Tryon also argues that although Meador testified that
she saw him go into the woods near the vehicle with a backpack—she did not
identify the backpack that was recovered as being the same as the one she saw Tryon
with, nor did she testify as to the contents of the backpack. And there was nothing
in the backpack affirmatively linking it or its contents to Tryon—no fingerprinting
or DNA analysis was done on the contents of the backpack. Tryon asserts there is
no more than a modicum of evidence linking him to the backpack, and thus, the
requisite intent to deliver. We disagree.
Although not every “intent to deliver” factor is present here, there is evidence
of the presence of narcotics paraphernalia for sale, the lack of the presence of
paraphernalia for use, and officer testimony indicating that the items recovered are
consistent with the intent to deliver. There is also a lack of evidence about Tryon’s
status as a narcotics user.
Specifically, Meador testified that while they were waiting for police to arrive,
she saw Tryon “putting his bag and stuff in the woods.” She explained that by “his
bag” she meant a backpack, and that she could “see him putting stuff in the woods.”
Additionally, Sergeant Mendez testified that he received information
concerning a possible backpack related to Tryon, and he directed Officer Kichamu
20
to search for the backpack in the tree line next to the street where Meador’s vehicle
was parked. Officer Kichamu located the backpack in the tree line and delivered it
to Sergeant Mendez, who secured it for Officer Camacho.
The State also introduced Exhibit 15, a photograph of the front of Meador’s
parked vehicle “with a flashlight pointing into the tree line.” Sergeant Mendez
testified that, based on the information he received related to the backpack, he
directed Officer Kichamu to search for the backpack along this tree line and that this
is where Officer Kichamu retrieved the backpack. Sergeant Mendez further testified
that, prior to receiving the information related to the backpack, he would not have
had any other reason to search this particular area for a backpack.
Officer Camacho further testified that she searched the backpack and
discovered 148.5 grams of marijuana, digital scales, clear plastic baggies, two glass
jars, a brown journal, and 6.88 grams of Xanax. The journal contained notes, names,
and the sketch of an apartment complex. Officer Camacho testified that, based on
her training and experience, the contents of the backpack indicated an intent to
deliver narcotics—i.e., “[i]t’s not for personal recreational use.”
Sergeant Mendez testified that he personally searched Tryon and found
cocaine. He further testified that the scales discovered in the backpack were small
and of the type used to weigh narcotics. Finally, Sergeant Mendez testified that the
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cocaine he found in Tryon’s jacket was in a clear plastic bag, which was similar to
the baggies found in the backpack.
Moreover, the record contains no evidence that the officers discovered any
drug paraphernalia for personal use—only paraphernalia associated with sale or
delivery. See Mack, 859 S.W.2d at 529 (finding that absence of paraphernalia for
smoking or using cocaine supports inference that accused intended to deliver, rather
than consume, contraband). Nor was there any evidence indicating that Tryon
appeared to be under the influence of narcotics when he was arrested. To the
contrary, Sergeant Mendez and Officer Camacho testified that Tryon was compliant,
and Tryon himself testified that he was calm and cooperative. Although Tryon
testified that he had been using cocaine throughout the day, Meador testified to the
contrary—that she let him drive her vehicle from the park because she had two
drinks, and she did not see him consume any alcohol or drugs throughout the night.
Based on this record, the jury could have reasonably inferred that the
backpack discovered in the tree line next to Meador’s vehicle was Tryon’s. 9 And
viewing the evidence in the light most favorable to the verdict and the reasonable
9
Cf. Bush v. State, No. 01-10-00681-CR, 2011 WL 5429013, at *4–5 (Tex. App.—
Houston [1st Dist.] Nov. 10, 2011, no pet.) (mem. op., not designated for
publication) (holding evidence legally sufficient to link defendant to narcotics found
in patrol car where officer searched car before his shift and narcotics were found
close to where appellant was sitting); Goracki v. State, No. 01-01-00101-CR, 2002
WL 537972, at *2–3 (Tex. App.—Houston [1st Dist.] Apr. 11, 2002, no pet.) (not
designated for publication) (same).
22
inferences from the evidence, we likewise conclude that the jury could have
reasonably found beyond a reasonable doubt that Tryon possessed the cocaine with
the intent to deliver. See id. at 528 (intent to deliver may be proved by circumstantial
evidence).10 Thus, we hold that the evidence is legally sufficient to support Tryon’s
conviction for possession with intent to deliver a controlled substance, namely,
cocaine.
We overrule Tryon’s third issue.
10
See also Boykin v. State, No. 01-12-00291-CR, 2013 WL 4508366, at *3 (Tex.
App.—Houston [1st Dist.] Aug. 22, 2013, no pet.) (mem. op., not designated for
publication) (holding jury could have reasonably inferred that defendant possessed
crack cocaine with intent to deliver because defendant was seen throwing pill bottle
over fence, which contained 30-65 single servings of crack cocaine, no drug
paraphernalia for narcotics use was found, and defendant did not appear to be under
influence of drugs at time of arrest); Brooks v. State, No. 10-07-00309-CR, 2011
WL 540527, at *3–4 (Tex. App.—Waco Feb. 16, 2011, pet. ref’d) (mem. op., not
designated for publication) (holding legally sufficient evidence to support
defendant’s conviction of possession with intent to deliver controlled substance
where evidence showed that defendant was seen tossing two plastic baggies, which
contained marijuana, cocaine, and ecstasy, he had no narcotics paraphernalia, and
he did not appear to be under the influence of narcotics when he was arrested).
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Conclusion
For all the reasons above, we affirm the trial court’s judgment in all things in
each cause number.
Terry Adams
Chief Justice
Panel consists of Chief Justice Adams and Justices Kelly and Goodman.
Do not publish. TEX. R. APP. P. 47.2(b).
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