Jean Kenneth Toney v. State

AFFIRM; and Opinion Filed February 5, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00729-CR
JEAN KENNETH TONEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 15th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 061707
MEMORANDUM OPINION
Before Justices FitzGerald, Lang, and Fillmore
Opinion by Justice Fillmore
A jury convicted Jean Kenneth Toney of possession of one gram or more but less than
four grams of methamphetamine, found the offense was committed in a drug-free zone, and
assessed punishment of twenty years’ imprisonment and a $20,000 fine. In two issues, Toney
argues there is insufficient evidence to establish he intentionally or knowingly possessed the
methamphetamine or that the offense was committed in a drug-free zone. We affirm the trial
court’s judgment. We issue this memorandum opinion because the law to be applied in this case
is well settled. See TEX. R. APP. P. 47.4.
Background
At approximately 4:00 p.m. on January 19, 2012, Adam Bradshaw, a deputy for the
Grayson County Sheriff’s Office, saw Rosabella Byrd leaving Maranda Brown’s house, a known
“drug house.” Byrd looked like she was waiting for somebody. Based on Byrd’s “narcotics
history” and the residence she had been in, Bradshaw decided “to keep an eye on her.”
Bradshaw passed Byrd and had made two turns when he saw Toney getting into his truck.
Bradshaw was aware that Toney had a “history” in the narcotics industry.
Bradshaw passed the truck and watched Toney in the rear view and side mirrors of his
car. Bradshaw saw Toney turn east and shadowed Toney on another street. Bradshaw saw
Toney stop in the middle of the road in front of Byrd. Byrd got into Toney’s truck. Bradshaw
contacted his partner, Kevin Cheairs, about what he had seen and followed Toney’s truck
through the Denison area. Toney stopped briefly at another residence known for the presence of
narcotics. After approximately ten minutes, Toney stopped at a stop sign at the intersection of
Mirick and Texas. Toney then activated his turn signal. Bradshaw stopped Toney based on his
failure to use his turn signal continuously for one hundred feet prior to the intersection. The
traffic stop occurred at the intersection of Mirick and Main, an intersection which, according to
Bradshaw, was within 1,000 feet of Forest Park.
When Bradshaw stopped Toney, he saw Toney moving around “more than usual” in the
truck. He saw Toney swaying back and forth and his arms “going out.” Bradshaw thought
Toney might be hiding or destroying evidence. Bradshaw quickly got out of his car and
approached the driver’s side of Toney’s truck. Bradshaw did not see Byrd make any
movements, but believed he could have missed any movements by Byrd while he was getting out
of his car. Bradshaw requested identification from both Toney and Byrd.
When Byrd handed Bradshaw her identification, Bradshaw noticed scales in the
floorboard on the passenger side of the truck. Bradshaw knew that type of scale is commonly
used to weigh drugs. Bradshaw asked Byrd to get out of the truck and stand by the tailgate.
According to Bradshaw, Byrd was “very, very nervous” and he suspected, based on her and
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Toney’s histories, the residence they stopped at while he was following them, and the scales, that
there were narcotics either in the truck or on Byrd. Bradshaw started questioning Byrd about
what she had been doing that day. Around this time, Cheairs arrived and began talking to Toney.
Byrd eventually pulled a baggie of a crystal-like substance from her pants and a smaller baggie
of the same substance from her bra. Bradshaw believed the substance was methamphetamine.
Based on what Byrd told him, Bradshaw arrested both Toney and Byrd for possession of
methamphetamine.
Bradshaw searched Toney’s truck and found a cellphone and a “dope note,” a piece of
paper with drug information on it such as the quantity and type of drug and the identity of the
person who purchased the drug. In Byrd’s purse were two cellphones, a pair of scales disguised
as a cellphone, and drug paraphernalia, including baggies commonly used to package
methamphetamine and glass pipes commonly used to smoke methamphetamine. Bradshaw
admitted that both the baggies and the scales could be used for purposes not related to drugs. No
latent fingerprints were obtained from the scales taken from the floorboard of the truck. To
Bradshaw’s knowledge, no other items from the truck or Byrd’s purse were tested for
fingerprints.
Byrd testified she pleaded guilty to possession of between one and four grams of
methamphetamine and was sentenced to ten years’ imprisonment. Byrd admitted that, when she
pleaded guilty, the State dropped the allegation the offense occurred in a drug-free zone. She has
previous convictions for theft, possession of a controlled substance, and tampering with
evidence.
According to Byrd, she first met Toney in approximately November 2011. Toney was
her dealer, and she also obtained “dope” for him on more than twenty occasions. When Toney
had narcotics, he would “front” the drugs to Byrd and she would pay him for them later. When
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Toney did not have narcotics, he would ask her to obtain them for him from someone else. She
would normally get an “eight ball” for him. An eight ball weighs between 3.7 and 3.8 grams and
costs $230 or $240. Byrd used digital scales to weigh the drugs she purchased.
On January 19, 2012, Byrd was at Brown’s house. Toney had either called her or sent
her a text message saying that he wanted her to get him “something.” Toney came to the house,
and she got into his truck. He gave her the money and “dropped her off” around the block. After
she purchased an “eight ball” of methamphetamine, Toney picked her up and they “dropped off”
someone who was with them. As they were driving down the road, a police officer pulled them
over. As they were pulling over, Toney threw two sets of scales on the floorboard. He also took
the “dope” out of his pocket, threw it at her, and told her to hide it. Byrd put the
methamphetamine in her pants. Byrd testified that Toney moved around while he was trying to
get the drugs out of his pocket and, as soon as he threw the drugs at her, she moved around trying
to hide them.
Bradshaw asked her to get out of the truck. She initially did not answer when Bradshaw
asked her if she had any drugs. After he said that he could get the dogs, she admitted that she did
have drugs. She had two baggies containing methamphetamine, one in her bra and one in her
pants. She told Bradshaw the little baggie in her bra belonged to her and the larger baggie in her
pants belonged to Toney. Her scales were in her purse, and the scales in the floorboard belonged
to Toney. According to Byrd, the “dope notes” also belonged to Toney.
Byrd testified she and Toney stood together by the truck after they were arrested and
were transported to jail in the same car. According to Byrd, Toney repeatedly asked her to tell
the police officers that the drugs were hers. He promised he would “be there for her,” would get
her an attorney, and would write to her. Byrd did not believe Toney’s promises,
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Jennifer Rumppe, a forensic scientist employed by the Texas Department of Public
Safety Crime Laboratory, testified she analyzed the substance in both baggies obtained from
Byrd. The larger baggie contained 3.26 grams of methamphetamine and the smaller baggie
contained 0.20 grams of methamphetamine.
Byrd testified there were two cellphones in her purse. One of the phones belonged to her
and she stole the other phone from Toney while she was in his truck. In her phone, Toney’s
phone number, (903) 327-2777, was listed under the contact “Boss Man.” She labeled Toney
“Boss Man” because he fronted drugs to her for which she paid him later.
Javier Soto, a deputy with the Grayson County Sheriff’s department, testified that he
obtained a search warrant that allowed him to investigate the information in the cellphones found
in Byrd’s purse and in Toney’s truck. Soto was able to turn on only two of the phones. From
those phones, Soto took pictures of a number of text messages between “Boss Man” and “Rosa”
beginning at 1:26 p.m. on January 19, 2012. 1 In Soto’s opinion, these messages confirmed
Byrd’s statements that one of the baggies of methamphetamine belonged to Byrd and one
belonged to Toney, Byrd was purchasing narcotics for Toney, she often purchased narcotics for
Toney, and on January 19, 2012, Toney wanted an “eight.” Soto also confirmed from a prior
investigation that, in 2010, Toney was using the same phone number as that assigned to “Boss
Man” in Byrd’s cellphone. William Heath, a sergeant with the Denison Police Department,
testified that, on April 16, 2012, he called (903) 327-2777 on two occasions while conducting a
follow-up investigation and spoke with Toney both times. 2
Dennis Michael, an investigator for the district attorney’s office, testified that he
compared Toney’s fingerprints to fingerprints in a federal penitentiary packet and confirmed they
1
Several of these pictures were admitted into evidence.
2
Heath did not testify about any details of this investigation.
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were from the same person. The penitentiary packet showed that, on January 19, 2012, Toney
was on supervised release on a federal conviction. The State then played a recording of a
telephone call Toney made from jail in which Toney expressed concern that somebody needed to
contact his “probation officer” and requested that property, including two cellphones, be
recovered from his impounded truck.
During the guilt phase of the trial, the trial court admitted State’s exhibit 2, a copy of a
drug-free zone map that includes Forest Park that had been filed with the Grayson County clerk.
Toney does not dispute that, based on boundaries shown on the map, the offense occurred within
a drug-free zone. Bradshaw testified he knows, based on his work in the area, that Forest Park is
within a drug-free zone. Bradshaw used Google Earth to measure the distance from the
intersection of Mirick and Main, where the traffic stop occurred, to Forest Park and determined it
was approximately 964 feet. Bradshaw also testified that, while he was following Toney, Toney
was closer to Forest Park than he was at the time of the stop.
During the punishment phase of the trial, the trial court admitted State’s exhibits thirty-
nine through forty-three, the remaining drug-free zone maps for Denison. Jeffery Jones, a
private investigator employed by Toney, testified he was asked to measure the distance from the
point of the traffic stop to the Forest Park area. Using a rolling measuring tape, he measured
from the center of the intersection of Mirick and Main to a slide at Forest Park, the piece of
playground equipment closest to the location of the stop. The most direct route he could use
measured 1,362 feet. Jones admitted the playground equipment was located within Forest Park,
but testified the rest of the area was grass. Jones also admitted he was “not exactly sure if the
law specifies that [the measurement] has to be [from] a piece of playground equipment or any
other piece of equipment.”
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Standard of Review
We review the sufficiency of the evidence under the standard set out in Jackson v.
Virginia, 443 U.S. 307 (1979). Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013).
We examine all the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson, 443 U.S. at 319; Matlock, 392 S.W.3d at 667. This standard recognizes “the
responsibility of the trier of fact fairly 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; see also Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011), cert.
denied, 132 S. Ct. 1763 (2012). The jury, as the fact finder, is entitled to judge the credibility of
the witnesses, and can choose to believe all, some, or none of the testimony presented by the
parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We defer to the jury’s
determinations of credibility, and may not substitute our judgment for that of the fact finder.
Jackson, 443 U.S. at 319; Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010)
(plurality op.); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting legal
sufficiency analysis, appellate court “may not re-weigh the evidence and substitute our judgment
for that of the jury”).
Possession of Methamphetamine
In his first issue, Toney contends the evidence is insufficient to establish he was
intentionally or knowingly in possession of the methamphetamine. Toney specifically argues
there was no evidence to link him to the methamphetamine in Byrd’s possession.
A person commits the offense of possession of a controlled substance if he knowingly or
intentionally possesses the substance. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6),
481.115(a),(c) (West 2010); see also TEX. HEALTH & SAFETY CODE ANN. § 481.002(38) (West
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Supp. 2013) (“‘Possession’ means actual care, custody, control, or management.”). To prove the
offense, the State is required to establish that the accused 1) exercised control, management, or
care over the substance, and 2) knew the matter possessed was contraband. Blackman v. State,
350 S.W.3d 588, 594 (Tex. Crim. App. 2011) (citing Poindexter v. State, 153 S.W.3d 402, 405
(Tex. Crim. App. 2005)). Whether direct or circumstantial, the evidence must establish that the
accused’s connection with the controlled substance was more than just fortuitous. Blackman,
350 S.W.3d at 594; Poindexter, 153 S.W.3d at 405–06. Mere presence at a location where drugs
are found is insufficient, by itself, to establish possession. Evans, 202 S.W.3d 158, 162 (Tex.
Crim. App. 2006). Further, when the accused is not in exclusive possession of the place where
the substance is found, it cannot be concluded that the accused had knowledge of and control
over the contraband unless there are additional independent facts and circumstances which
affirmatively link the accused to the contraband. Poindexter, 153 S.W.3d at 406; see also
Blackman, 350 S.W.3d at 594–95.
A nonexclusive list of factors that can be sufficient, either singly or in combination, to
establish possession of contraband include: (1) presence when a search is conducted, (2) whether
the contraband was in plain view, (3) proximity to and the accessibility of the contraband, (4) the
accused being under the influence of narcotics when arrested, (5) possession of other contraband
or narcotics when arrested, (6) incriminating statements made by the accused when arrested, (7)
an attempt to flee, (8) furtive gestures, (9) an odor of contraband, (10) the presence of other
contraband or drug paraphernalia, (11) whether the accused 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) possession of a large amount of cash, (14) conduct indicating a consciousness of
guilt, (15) the accused’s incriminating statements connecting himself to the contraband, (16) the
quantity of the contraband, and (17) the accused’s presence in a suspicious area under suspicious
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circumstances. Evans, 202 S.W.3d at 162 n.12; McQuarters v. State, 58 S.W.3d 250, 259 (Tex.
App.—Fort Worth 2001, pet. ref’d); Lassaint v. State, 79 S.W.3d 736, 740–41 (Tex. App.—
Corpus Christi 2002, no pet.). These are simply some factors which may circumstantially
establish the sufficiency of the evidence to prove knowing possession. Evans, 202 S.W.3d at
162 n.12. However, no set formula of facts exists to dictate a finding of links sufficient to
support an inference of knowing possession. Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.—
Dallas 2003, no pet.). The number of linking factors present is not as important as the logical
force they create to prove the crime was committed. Evans, 202 S.W.3d at 162; Taylor, 106
S.W.3d at 831.
Here, Byrd testified she entered Toney’s telephone number into her phone under the
contact name “Boss Man” because he often fronted her drugs. She also testified that she
purchased narcotics for Toney on a number of occasions and, at Toney’s request, purchased an
“eight ball” of methamphetamine for him on January 19, 2012. Soto testified about a number of
text messages from January 19, 2012 found on the cellphones in Byrd’s purse between “Boss
Man” and “Rosa” about the purchase of methamphetamine. He further confirmed the phone
number entered into Byrd’s phone under the contact name “Boss Man” belonged to Toney. In
the telephone call he made while he was in jail, Toney said that he had two cellphones in the
truck.
Toney, in a truck he owned, picked up Byrd outside a known drug house under
suspicious circumstances. After Bradshaw initiated a traffic stop, he saw Toney make furtive
gestures, and Bradshaw was concerned that Toney was trying to hide or destroy evidence. Byrd
testified that, when Toney was stopped, he threw two scales on the floorboard of the truck. He
also threw the larger baggie of methamphetamine at her and told her to hide it. A pair of digital
scales was found on the floorboard of the truck. Additional drug paraphernalia was found in
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Byrd’s purse. According to Byrd, Toney asked her to take responsibility for the drugs in
exchange for him “being there” for her.
A number of links and other circumstances with logical force are present to sufficiently
prove Toney possessed the methamphetamine. Reviewing all the evidence in the light most
favorable to the jury’s verdict, we conclude a rational jury could have found Toney knowingly
possessed the methamphetamine. See Jackson, 443 U.S. at 319; Matlock, 392 S.W.3d at 667.
We resolve Toney’s first issue against him.
Drug-Free Zone
In his second issue, Toney argues the evidence is insufficient to establish the offense was
committed in a drug-free zone. The punishment for possession of a controlled substance is
enhanced if the offense is committed in a drug-free zone. TEX. HEALTH & SAFETY CODE ANN.
§ 481.134(c) (West Supp. 2013). As relevant to this appeal, a drug-free zone includes area
within 1,000 feet of a playground. There is no dispute there is a playground in Forest Park.
Toney contends the statutory definition for playground does not include the premises
surrounding the playground equipment and, therefore, the proper measurement must be from the
playground equipment itself. 3 Toney argues that, based on Jones’s testimony that his
measurement showed the distance between the intersection of Mirick and Main and the closest
piece of playground equipment in Forest Park was 1,362 feet, the evidence was insufficient to
establish the offense was committed in a drug-free zone.
3
The health and safety code defines a “playground” for purposes of a drug-free zone as:
[A]ny outdoor facility that is not on the premises of a school and that:
(A) is intended for recreation;
(B) is open to the public; and
(C) contains three or more play stations intended for the recreation of children, such as slides, swing sets, and
teeterboards.
TEX. HEALTH & SAFETY CODE ANN. § 481.134(a)(3) (West Supp. 2013).
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However, the evidence also included the drug-free zone maps for Denison that had been
filed with the county clerk. A map produced or reproduced by a municipal or county engineer
for the purpose of showing the location and boundaries of drug-free zones is admissible as prima
facie evidence of the location or boundaries of those areas if the governing body of the
municipality or county adopts a resolution or ordinance approving the map as an official finding
and record of the boundaries and location of the drug-free zones. TEX. HEALTH & SAFETY CODE
ANN. § 481.135 (West 2010). 4 There is no dispute the maps show the offense occurred within a
drug-free zone. Further, Bradshaw testified that, based on his work for the Grayson County
Sheriff’s office, he knows Forest Park is in a drug-free zone. Using Google Earth, he measured
the distance from the intersection of Mirick and Main to Forest Park and determined it was
approximately 964 feet. Further, according to Bradshaw, while he was following Toney, there
were times Toney was closer to Forest Park than he was at the time of the stop.
It was the role of the jury to resolve the conflicting evidence, and we may not substitute
our judgment for that of the jury. Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899; King, 29
S.W.3d at 562. We conclude a rational juror could have found the offense occurred in a drug-
free zone. See Jackson, 443 U.S. at 319; Matlock, 392 S.W.3d at 667. We resolve Toney’s
second issue against him.
4
Toney notes in his brief that he objected to these maps in the trial court. However, he has not brought an issue on appeal complaining
about the trial court’s evidentiary rulings and has failed to make any argument or cite any authority to support the proposition the trial court erred
by overruling his objections. He has, therefore, waived any complaint about the admission of these maps. See TEX. R. APP. P. 38.1(f), (i); Lucio
v. State, 351 S.W.3d 878, 896–97 (Tex. Crim. App. 2011), cert. denied, 132 S. Ct. 2712 (2012) (issue inadequately briefed because appellant
failed to provide any argument or authority in support of contention); Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003) (issue
inadequately briefed because appellant failed to apply law to facts as required under appellate rules). He also offered no evidence in the trial
court that the locations and boundaries of the drug-free zones depicted on the maps were not drawn in accordance with the statutory definitions.
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We affirm the trial court’s judgment.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
130729F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JEAN KENNETH TONEY, Appellant On Appeal from the 15th Judicial District
Court, Grayson County, Texas,
No. 05-13-00729-CR V. Trial Court Cause No. 061707.
Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee Justices FitzGerald and Lang participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 5th day of February, 2014.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
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