Michael Shane Sanders v. State

Opinion issued July 22, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00981-CR
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MICHAEL SHANE SANDERS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Case No. 68776
MEMORANDUM OPINION
Appellant, Michael Shane Sanders, was charged by indictment with
possession of methamphetamine, enhanced by a prior felony conviction.1
Appellant pleaded no contest to the drug possession charge and true to the
1
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), .115(a), (d) (Vernon
2010).
enhancement. The jury found true that appellant used or exhibited a deadly
weapon during the commission of the offense of drug possession. In one issue on
appeal, Appellant argues that the evidence was insufficient to support this finding.
We affirm.
Background
On June 16, 2012, Appellant was driving ten miles over the speed limit on
State Highway 35 in Brazoria County. Trooper M. Cantu saw Appellant speeding
and pulled Appellant over. Trooper Cantu smelled marijuana smoke as the
windows in Appellant’s truck were rolled down. He instructed Appellant to get
out of the truck, and Appellant complied. Appellant admitted to having smoked
marijuana. Appellant consented to a pat down. During the search, Trooper Cantu
found a glass pipe in Appellant’s pocket. The glass pipe had a white residue in it.
Appellant told him that the residue was methamphetamine.
Trooper Cantu placed Appellant under arrest and instructed Appellant’s
girlfriend—Katie Weldon—and their children to get out of the truck. After
everyone was secured, Trooper Cantu searched Appellant s’ truck. He found a
blue case under the driver’s seat. The case contained, among other things, 37.7
grams of methamphetamine. Appellant admitted that the methamphetamine was
his. Trooper Cantu also found a .45 handgun inside the center console of the truck.
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Appellant recognized the handgun as one belonging to a friend of his, but denied
knowing the handgun was in the truck.
Appellant’s defensive theory at trial was that the handgun belonged to a
friend of his, that he had lent his friend the truck on occasion, and that Appellant
did not know that the handgun had been placed in the truck. Weldon testified,
however, that she had observed Appellant give his friend a generator or air
compressor in exchange for the gun and that, after the exchange, the gun was
Appellant’s.
Additionally, the State presented testimony from Officer J. Lobo with the
Friendswood Police Department. Officer Lobo testified that he pulled Appellant
over almost four months later. Appellant admitted that he was driving without a
license because his license had been previously revoked. In a search of the car,
Officer Lobo found a handgun in a bag on the floor of the driver’s side of the car.
Appellant admitted that the handgun was his.
Sufficiency of the Evidence
In his sole issue on appeal, Appellant argues that the evidence was
insufficient to support the jury’s finding that he used or exhibited a deadly weapon
during the commission of the offense of drug possession.
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A. Standard of Review
We review the sufficiency of the evidence establishing the elements of a
criminal offense for which the State has the burden of proof under a single
standard of review. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013)
(citing Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). This
standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979). Winfrey v. State, 393 S.W.3d 763, 768 (Tex.
Crim. App. 2013). Pursuant to this standard, evidence is insufficient to support a
conviction if, considering all the record evidence in the light most favorable to the
verdict, no rational fact finder could have found that each essential element of the
charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071
(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be
insufficient under the Jackson standard in two circumstances: (1) the record
contains no evidence, or merely a “modicum” of evidence, probative of an element
of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See
Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see
also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.
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The sufficiency-of-the-evidence standard gives full play to the responsibility
of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443
U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007). An appellate court presumes that the fact finder resolved any conflicts
in the evidence in favor of the verdict and defers to that resolution, provided that
the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. In
viewing the record, direct and circumstantial evidence are treated equally;
circumstantial evidence is as probative as direct evidence in establishing the guilt
of an actor, and circumstantial evidence alone can be sufficient to establish guilt.
Clayton, 235 S.W.3d at 778. Finally, the “cumulative force” of all the
circumstantial evidence can be sufficient for a jury to find the accused guilty
beyond a reasonable doubt. See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim.
App. 2006).
B. Analysis
Section 508.145 of the Texas Government Code governs a prison inmate’s
eligibility for release on parole. TEX. GOV’T CODE ANN. § 508.145 (Vernon Supp.
2013). Unless another provision or statute prevents its application, an inmate is
generally “eligible for release on parole when the inmate’s actual calendar time
served plus good conduct time equals one-fourth of the sentence imposed or 15
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years, whichever is less.” Id. § 508.145(f). For Appellant’s conviction in this
matter, his eligibility for parole under this subsection would be 3.5 years, less any
good-conduct time attained.
The finding that Appellant used or exhibited a deadly weapon during the
commission of the offense of drug possession, however, effects his eligibility for
parole.
An inmate serving a sentence for . . . an offense for which the
judgment contains an affirmative finding under Section 3g(a)(2) of
[Article 42.12 of the Texas Code of Criminal Procedure] . . . is not
eligible for release on parole until the inmate’s actual calendar time
served, without consideration of good conduct time, equals one-half
of the sentence or 30 calendar years, whichever is less . . . .”
Id. § 508.145(d)(1). Section 3g(a)(2) of article 42.12 of the Texas Code of
Criminal Procedure excludes the option of judge-ordered community supervision
“when it is shown that a deadly weapon as defined in Section 1.07, Penal Code,
was used or exhibited during the commission of a felony offense, and that the
defendant used or exhibited the deadly weapon . . . .” TEX. CODE CRIM. PROC.
ANN. art. 42.12, § 3g(a)(2) (Vernon 2006). For his conviction in this matter,
Appellant’s eligibility for parole with the deadly weapon finding is seven years
regardless of good-conduct time attained.
It is undisputed that the .45 handgun found inside the truck is a deadly
weapon. It is further undisputed that Appellant did not exhibit the handgun at any
point. The critical issue for this appeal, then, is whether there is sufficient
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evidence to establish that Appellant used the deadly weapon in the commission of
the offense. Appellant argues the evidence is insufficient because he did not know
that the weapon was in the truck.
There is certainly some evidence in the record to support Appellant’s claim
that he did not know the gun was in the truck. There is also evidence, however,
indicating that Appellant did know the gun was in the truck. Contrary to his
assertion that the gun belonged to a friend that had recently borrowed the truck,
Appellant’s girlfriend testified that Appellant had purchased the gun from the
friend in exchange for a generator or air compressor. From this evidence, the jury
could have reasonably determined that the gun was Appellant’s and that he knew
that his gun was in the truck. See Gear v. State, 340 S.W.3d 743, 747 (Tex. Crim.
App. 2011) (holding fact finder may consider defendant’s untruthful statements as
affirmative evidence of guilt).
Appellant argues that his subsequent stop by Officer Lobo bolsters his
argument that he did not know about the gun the first time. When Officer Lobo
found the gun in his car, Appellant admitted that the gun was his. Appellant
asserts that his admission that the gun was his the second time he was pulled over
reinforces his claim that he did not know there was a gun in the truck the first time
he was pulled over. Appellant also asserts that, because he did not have any drugs
in the car the second time he was pulled over, this establishes that his possession of
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the gun the first time was merely simultaneous possession of a weapon and drugs
and not using the gun to facilitate the possession.
“[W]hen a defendant possesses both guns and drugs, a jury may make a
deadly-weapon finding even though he did not overtly use or brandish a gun
because the weapon reasonably could have ‘protected and facilitated [the
defendant’s] care, custody, and management of the contraband.’” Plummer v.
State, 410 S.W.3d 855, 859 (Tex. Crim. App. 2013) (quoting Patterson v. State,
769 S.W.2d 938, 941–42 (Tex. Crim. App. 1989)); accord Henton v. State, 893
S.W.2d 165, 168 (Tex. App.—Houston [1st Dist.] 1995, no pet.). It is the province
of the jury to weigh the evidence and draw the reasonable inferences. Jackson,
443 U.S. at 319, 99 S. Ct. 2781. If the jury’s inferences are reasonable, we may
not overturn them. See id. at 326, 99 S. Ct. at 2793. Appellant’s arguments
amount to pointing out certain inferences the jury could have drawn from the
evidence. Pointing out one inference does not establish, however, that all other
inferences are unreasonable. We find no flaw in the inferences the jury drew from
the evidence. Accordingly, we hold there is sufficient evidence to support the
jury’s determination that Appellant used a gun in the commission of his drug
possession offense.
We overrule Appellant’s sole issue.
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Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
Justice Sharp, dissenting from the judgment with opinion to follow.
Do not publish. TEX. R. APP. P. 47.2(b).
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