Sean Patrick Nelson v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-20-00437-CR
Sean Patrick Nelson, Appellant
v.
The State of Texas, Appellee
FROM THE 27TH DISTRICT COURT OF LAMPASAS COUNTY
NO. 9848, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Sean Patrick Nelson was convicted by a jury of possession of a
controlled substance, in an amount of four grams or more but less than 200 grams, with intent to
deliver and of evading arrest or detention using a vehicle. He was sentenced by the trial court to
ten years’ confinement on each count, with the sentences to run concurrently. See Tex. Penal
Code § 38.04; Tex. Health & Safety Code § 481.112. In four issues, he contends that the
evidence was insufficient to support his conviction for possession of a controlled substance with
intent to deliver, the trial court erred in submitting a jury instruction on the law of parties, and the
jury charge erroneously allowed the jury to apply the law-of-parties instruction to the count
alleging evading arrest or detention with a vehicle. We will affirm the judgments of conviction.
BACKGROUND
In the early morning of January 23, 2017, Lampasas County Sheriff’s Office
(LCSO) Patrol Deputy Justin Wilson attempted a traffic stop of a white S10 pickup truck with a
defective high-mounted brake light. Deputy Wilson testified that as he approached the truck, he
activated his emergency lights; when the truck failed to stop, he turned on his siren. He followed
the truck for several miles, during which it reached a speed of 100 m.p.h. and drove at times on
the wrong side of the road. There were no other vehicles on the road during the pursuit.
Deputy Wilson contacted other officers to assist because he did not know why the
truck was “running.” The chase ended on a private dirt driveway in Bell County. As the truck
slowed, the driver jumped from it and leapt a nearby fence. The truck, still in motion, crashed
through a gate and came to rest against a cedar tree. Deputy Wilson decided not to pursue the
driver because he had “too much of a jump on” him, and Deputy Wilson was concerned that
there might be a passenger in the truck.
The truck contained a single passenger, later identified as Joshua Hill, 1 who
appeared to be “under the influence of something”; his responses to Deputy Wilson’s
questioning “didn’t make any sense.” Hill was transported by EMS to a hospital because
Deputy Wilson was “concerned about hi[s] possibly having taken enough drugs to overdose.”
Deputy Wilson searched the truck and recovered two cell phones from the front
seat. Although he was initially unable to identify the fleeing driver, Deputy Wilson observed
that he had a tattoo on his left calf and was wearing black shorts and a black jacket with an
emblem of a round, white-outlined, black cross on the back. Deputy Wilson testified on
cross-examination that, after reviewing video from his dashboard camera, which was admitted
1 Hill, Nelson’s codefendant, was tried separately and did not testify at Nelson’s trial.
2
into evidence at trial, he was able to identify the driver as Nelson: “When the driver was
jumping over the fence, when he peeked over his shoulder like that (indicating), I could see his
side profile. And I’ve come in contact with Mr. Nelson before, and just through his side profile,
I knew it was him.” 2
Officers ran the truck’s “temporary tags” and learned that it was registered to
Leslie Adam Rollins, who was known to them. Rollins was initially suspected to be the driver,
but Deputy Wilson believed that Rollins—who is “probably 40 something” and weighs over 200
pounds—would have been unable to jump the fence.
Methamphetamine was subsequently discovered “pretty close to . . . where the
truck came to a rest,” “[s]ome 10 feet or so from the truck.” Deputy Wilson testified that he did
not see the driver throw it and would have seen if the driver had thrown anything out of the truck
or “made a throwing motion.” He was “pretty sure” that the driver’s window was either “open”
or had “busted out” when the truck crashed; he could not remember whether the passenger’s
window was up or down. His opinion was that Hill had thrown the drugs out of the truck, based
on where they were found, the angles Deputy Wilson looked at, and the fact that the driver’s
window was open.
LCSO Deputy Sheriff Jerome Ervin arrived on scene following the chase and
helped to search for the driver after officers received a call of a suspicious person hiding in a
nearby backyard. Sheriff Ervin testified that while searching, he located a black jacket with what
2 Deputy Wilson acknowledged that he had not previously claimed to have recognized
Nelson as the driver after reviewing the video.
3
appeared to be fresh blood on it. He was also notified that a Bell County 3 deputy had found two
baggies containing methamphetamine, and Sheriff Ervin picked up, bagged, and labeled the
drugs. He did not participate in the search of the truck’s interior.
LCSO Investigator Matt Barnes testified that he met with Rollins, whom he had
encountered “on many other occasions” while on patrol, as part of the investigation and
described him as “about six-five, six-six, about 270 pounds, red hair with about a four-inch-long
beard.” Investigator Barnes had reviewed Deputy Wilson’s dash-cam video and did not believe
Rollins was the truck’s driver.
Investigator Barnes testified that on the morning of January 24, 2017,
Rollins’ employee, Dennis Waldrop, called him and asked where the truck was. When
Investigator Barnes replied that the truck was not Waldrop’s, Waldrop explained that Rollins had
registered and insured the truck for him because Waldrop did not have a valid driver’s license.
Waldrop gave Rollins’ phone number to Investigator Barnes, and Rollins corroborated
Waldrop’s account, explaining that he had provided the truck to Waldrop to drive back and forth
from job sites. Waldrop told Investigator Barnes that he had loaned the truck to Nelson around
7 p.m. on January 22, 2017, to install a radio. Waldrop, whom Investigator Barnes had not been
able to contact or serve with a subpoena, was “in the winds” 4 at the time of the trial.
Investigator Barnes testified that he obtained a search warrant for the contents of
the two phones found on the truck’s front seat. He ran the number of one of the phones through
several databases, and it “c[a]me back” to a woman who said that it belonged to her son,
3 Deputy Wilson’s pursuit of Nelson began in Lampasas County and ended in
Bell County.
4 “If someone is in the wind, they are missing, especially after escaping.” In the wind,
Cambridge Dictionary, available at https://dictionary.cambridge.org/dictionary/english/in-the-
wind (last visited June 2, 2022).
4
Joshua Hill. Hill had also listed the number when he checked into the hospital. Investigator
Barnes discovered several calls and messages between Hill’s phone and the other, which he
believed to be Nelson’s. The phone number for the second phone was listed in Hill’s phone
under the contact “NS.” Investigator Barnes testified that Nelson was known by the “street
name . . . Nazi Sean.” The last call between the two phones was placed at 10:12 p.m. on
January 22, 2017, the night before the chase. A technician recovered several photos and files
from the second phone, including selfies of Nelson and his girlfriend, as well as photos of
Nelson’s known associates. Investigator Barnes testified that “based on that, this would be
Mr. Nelson’s phone.”
Investigator Barnes also testified that he obtained a search warrant for
Nelson’s DNA, which was matched to the blood found on the jacket. After Nelson’s arrest,
Investigator Barnes examined him for tattoos and observed a “large tattoo on the back of his left
calf,” which “could be seen on [Deputy Wilson’s] dash[-]cam video.” Investigator Barnes
testified that he believed the individual fleeing the truck was Nelson because:
the tattoo that was shown on the video, the tattoo that’s on the back of his leg, his
DNA was found on the jacket within three blocks, two blocks of the place where
it crashed. The person who owned the truck said, [“]I loaned it to him.[”] The
person who the truck was registered to I played the video for, and he identified
Mr. Sean Nelson as the one that jumped from that vehicle.
Investigator Barnes testified that a gram of methamphetamine sells for
approximately $20, with larger quantities selling at a discounted rate. He added that, assuming
this premium, an ounce of methamphetamine would sell for approximately $1,000. He also
testified that texts found on Nelson’s phone, both sent and received, were consistent with the
buying and selling of narcotics. The most recent, received on January 11, 2017, read, “What
5
could get me a 20, brother?” Investigator Barnes explained that in his experience, this was a
“reference to narcotics”; the sender was “asking for $20 worth of dope.”
Brian Kivlighn, a forensic scientist with the DPS crime laboratory in Waco,
testified that both baggies collected by Sheriff Ervin contained methamphetamine. The first
contained 33.33 grams, or more than an ounce, and the second 27.69 grams, or less than
one ounce. 5
Serena Zboril, also a forensic scientist at the Waco laboratory, testified about the
DNA testing of the blood stain found on the jacket recovered by Sheriff Ervin. She developed a
DNA profile from the stain and entered it into a database, which returned Nelson as “a potential
suspect as far as a contributor of the DNA stain.” She compared the buccal swab collected from
Nelson to the DNA profile obtained from the stain and determined that Nelson’s profile was
consistent with the sample collected from the jacket. The likelihood ratio, “which would tell you
how much more likely that DNA profile is that . . . it came from Sean Patrick Nelson than if it
came from another unrelated unknown individual,” was 3.06 quintillion, meaning “getting that
DNA profile is 3.06 quintillion times more likely if the DNA came from Sean Patrick Nelson
than if it came from another unknown, unrelated individual.”
During the charge conference, defense counsel objected to the inclusion of an
instruction on the law of parties in the abstract portion of the jury charge, as well as a paragraph
allowing the jury to convict Nelson, either directly or as a party, of the lesser-included offense of
possession of a controlled substance. The trial court overruled both objections.
The jury found Nelson guilty of possession of a controlled substance with intent
to deliver and of evading arrest or detention using a vehicle. Following a hearing on punishment,
5 Kivlighn testified that there are 28.4 grams in an ounce.
6
the trial court sentenced him to 10 years’ confinement for each count, with the sentences to run
concurrently. 6 The court declined to find that the vehicle driven by Nelson was a deadly weapon
with respect to the second count.
DISCUSSION
In four issues, Nelson contends that: (1) the evidence presented at trial is
insufficient to link him to the methamphetamine recovered near the truck; (2) the evidence is
insufficient to show “an intent to deliver or sell any controlled substance under a direct
culpability theory or under the law of parties”; (3) the trial court erred by submitting a jury
instruction on the law of parties “which permitted Nelson’s conviction as a party to possession
with intent to deliver”; and (4) “[t]he trial court’s jury instruction[] on the law of parties
erroneously allowed the jury to consider that instruction and apply it to Nelson’s felony
evasion-by-vehicle charge (Count Two) when the instruction was meant to apply only to the
possession-with-intent-to-deliver charge.”
Sufficiency of the Evidence
In his first two issues, Nelson contends that the evidence was insufficient to prove
that he possessed or intended to deliver methamphetamine, whether directly or as a party.
Due process requires that the State prove, beyond a reasonable doubt, every
element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Lang v. State,
561 S.W.3d 174, 179 (Tex. Crim. App. 2018). When reviewing the sufficiency of the evidence
to support a conviction, we consider all the evidence in the light most favorable to the verdict to
6 At the sentencing hearing, Nelson also entered an open guilty plea to a charge of failure
to appear and was sentenced by the trial court. Nelson’s conviction and sentence in that case are
not relevant to our analysis here.
7
determine whether, based on that evidence and reasonable inferences therefrom, any rational trier
of fact could have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); see
Musacchio v. United States, 577 U.S. 237, 243 (2016); Johnson v. State, 560 S.W.3d 224, 226
(Tex. Crim. App. 2018). In our sufficiency review, we consider all the evidence in the record,
whether direct or circumstantial, properly or improperly admitted, or submitted by the
prosecution or the defense. Thompson v. State, 408 S.W.3d 614, 627 (Tex. App.—Austin 2013,
no pet.); see Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We presume that the trier of fact resolved
conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner
that supports the verdict. Jackson, 443 U.S. at 318; Laster v. State, 275 S.W.3d 512, 517 (Tex.
Crim. App. 2009). We consider only whether the factfinder reached a rational decision. Arroyo
v. State, 559 S.W.3d 484, 487 (Tex. Crim. App. 2018); see Morgan v. State, 501 S.W.3d 84, 89
(Tex. Crim. App. 2016) (observing that reviewing court’s role on appeal “is restricted to
guarding against the rare occurrence when a fact finder does not act rationally” (quoting Isassi
v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010))). When, as in this case, the charge
authorizes the jury to convict the defendant on more than one theory, the verdict of guilt will be
upheld if the evidence is sufficient on any theory authorized by the jury charge. See Anderson
v. State, 416 S.W.3d 884, 889 (Tex. Crim. App. 2013); Guevara v. State, 152 S.W.3d 45, 49
(Tex. Crim. App. 2004).
The trier of fact is the sole judge of the weight and credibility of the evidence.
See Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018); Blea v. State, 483 S.W.3d 29,
33 (Tex. Crim. App. 2016); see also Tex. Code Crim. Proc. art 36.13 (explaining that “the jury is
8
the exclusive judge of the facts”). Thus, when performing an evidentiary-sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute our judgment for
that of the factfinder. Arroyo, 559 S.W.3d at 487; see Montgomery v. State, 369 S.W.3d 188,
192 (Tex. Crim. App. 2012). Instead, we must defer to the credibility and weight determinations
of the factfinder. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016); Nowlin v. State,
473 S.W.3d 312, 317 (Tex. Crim. App. 2015). When the record supports conflicting reasonable
inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we
defer to that resolution. Zuniga, 551 S.W.3d at 733; Cary, 507 S.W.3d at 757; see Musacchio,
577 U.S. at 243 (reaffirming that appellate sufficiency review “does not intrude on the jury’s role
‘to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts’” (quoting Jackson, 443 U.S. at 319)). We must “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.” Murray v. State,
457 S.W.3d 446, 448 (Tex. Crim. App. 2015) (quoting Clayton, 235 S.W.3d at 778); accord
Arroyo, 559 S.W.3d at 487. The jury is not allowed, however, to make conclusions based on
speculation, which, unlike reasonable inferences, are “insufficiently based on the evidence to
support a finding beyond a reasonable doubt.” Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim.
App. 2016); see Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (“Speculation is
mere theorizing or guessing about the possible meaning of facts and evidence presented.”).
Because factfinders are permitted to make reasonable inferences, “[i]t is not
necessary that the evidence directly proves the defendant’s guilt; circumstantial evidence is as
probative as direct evidence in establishing the guilt of the actor, and circumstantial evidence
alone can be sufficient to establish guilt.” Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim.
9
App. 2013) (citing Hooper, 214 S.W.3d at 13); see Johnson, 560 S.W.3d at 226. The standard of
review is the same for direct and circumstantial evidence cases. Jenkins, 493 S.W.3d at 599;
Nowlin, 473 S.W.3d at 317.
Under the Texas Health and Safety Code, an individual commits an offense if he
or she “knowingly manufactures, delivers, or possesses with intent to deliver a controlled
substance listed in Penalty Group 1,” including methamphetamine, in an amount of 4 grams or
more but less than 200 grams. Tex. Health & Safety Code §§ 481.102(6), .112(a), (d).
“Possession” means “actual care, custody, control, or management.” Id. § 481.002(38). “The
elements for possession of a controlled substance with intent to deliver are that the defendant:
(1) possessed a controlled substance in the amount alleged; (2) intended to deliver the controlled
substance to another; and (3) knew that the substance in his possession was a controlled
substance.” Figueroa v. State, 250 S.W.3d 490, 500 (Tex. App.—Austin 2008, pet. ref’d).
To prove possession of a controlled substance as a party, “the State must show
(1) that another person possessed the contraband and (2) that the defendant, with the intent that
the offense be committed, solicited, encouraged, directed, aided, or attempted to aid the other’s
possession.” Robinson v. State, 174 S.W.3d 320, 324–25 (Tex. App.—Houston [1st Dist.] 2005,
pet. ref’d); see Woods v. State, 998 S.W.2d 633, 636 (Tex. App.—Houston [1st Dist.] 1999, pet.
ref’d). Participation in a criminal offense may be inferred from the circumstances. See
Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). “While an agreement of the
parties to act together in common design can seldom be proven by direct evidence, the State can
rely on the actions and words of the parties showing, by either direct or circumstantial evidence,
an understanding and common design to do a certain act.” Gant v. State, 116 S.W.3d 124, 133
(Tex. App.—Tyler 2003, pet. ref’d).
10
Moreover, “[i]t is well settled . . . that an accused may with another or others
jointly possess dangerous drugs or narcotics and that such possession need not be exclusive.”
McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985). We have explained the
requirements for proving possession of contraband when the accused is not in exclusive
possession or control of the place where the contraband is found:
When an accused is not in exclusive possession and control of the place where the
contraband is found, it cannot be concluded or presumed that the accused had
knowledge of or control over the contraband unless there are additional
independent facts and circumstances connecting or linking the accused to the
knowing possession of contraband . . . . Similarly, when the contraband is not
found on the accused’s person or it is not in the exclusive possession of the
accused, additional independent facts and circumstances must link the accused to
the knowing possession of the contraband.
Allen v. State, 249 S.W.3d 680, 690–91 (Tex. App.—Austin 2008, no pet.); see McGoldrick,
682 S.W.2d at 578 (concluding “facts and circumstances may be sufficient to show an accused
and others acted together in possessing a narcotic drug, but there must be some affirmative link
existing between the person accused and the narcotic drug”). “Mere presence at the location
where drugs are found is thus insufficient, by itself, to establish actual care, custody, or control
of those drugs.” Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). “However,
presence or proximity, when combined with other evidence, either direct or circumstantial
(e.g., ‘links’), may well be sufficient to establish that element beyond a reasonable doubt.” Id.The Texas Court of Criminal Appeals (CCA) has recognized that the following
non-exhaustive list of “links” may circumstantially establish the legal sufficiency of the evidence
to prove knowing possession:
(1) the defendant’s presence when a search is conducted; (2) whether the
contraband was in plain view; (3) the defendant’s proximity to and the
11
accessibility of the narcotic; (4) whether the defendant was under the influence of
narcotics when arrested; (5) whether the defendant possessed other contraband or
narcotics 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 contraband;
(10) whether other contraband or drug paraphernalia were present; (11) whether
the 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 found with a large amount of cash; and
(14) whether the conduct of the defendant indicated a consciousness of guilt.
Id. at 162 n.12 (quoting Evans v. State, 185 S.W.3d 30, 35 (Tex. App.—San Antonio 2005),
rev’d on other grounds by Evans, 202 S.W.3d at 158). Our sister court has also identified the
proximity of the contraband to the defendant’s personal belongings as an additional link to be
considered. Villegas v. State, 871 S.W.2d 894, 896 (Tex. App.—Houston [1st Dist.] 1994, pet.
ref’d). The absence of links does not constitute evidence of innocence to be weighed against the
links present. James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet.
ref’d).
In performing this review, “[i]t is . . . not the number of links that is dispositive,
but rather the logical force of all of the evidence, direct and circumstantial.” Evans, 202 S.W.3d
at 162. The force of the links need not be such as to exclude every other alternative hypothesis
except the defendant’s guilt. Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995).
“Whether the evidence be direct or circumstantial, ‘it must establish, to the requisite level of
confidence, that the accused’s connection with the [contraband] was more than just fortuitous.’”
Allen, 249 S.W.3d at 691 (quoting Brown, 911 S.W.2d at 747); see Poindexter v. State,
153 S.W.3d 402, 406 (Tex. Crim. App. 2005) (“The ‘affirmative links rule’ is designed to protect
the innocent bystander from conviction based solely upon his fortuitous proximity to someone
else’s drugs.”), abrogated on other grounds by Robinson v. State, 466 S.W.3d 166 (Tex. Crim.
12
App. 2015). Ultimately, however, the links merely help to guide a reviewing court’s analysis;
the fundamental sufficiency inquiry is still the standard set forth in Jackson: “Based on the
combined and cumulative force of the evidence and any reasonable inferences therefrom, was a
jury rationally justified in finding guilt beyond a reasonable doubt?” Tate, 500 S.W.3d at 414.
The evidence in the record is sufficient to establish that either Nelson possessed
the methamphetamine with Hill or as a party. The jury could have reasonably inferred that
Nelson, as the truck’s driver, was in close proximity and had access to the narcotics before they
were thrown from the vehicle. See Williams v. State, 309 S.W.3d 124, 128 (Tex. App.—
Texarkana 2010, pet. ref’d) (observing that “the location of the cocaine, inside the car before it
was thrown out of the window, would suggest that Williams as the driver of the car was in close
proximity to the cocaine”). He made a furtive gesture and exhibited consciousness of guilt by
failing to stop the truck after Deputy Wilson activated his emergency lights, instead leading
Deputy Wilson on an approximately nine-minute chase, in which Nelson swerved into the wrong
lane and reached a speed of 100 m.p.h. 7 See Davila v. State, 749 S.W.2d 611, 613 (Tex. App.—
Corpus Christi–Edinburg 1988, pet. ref’d) (where arresting officer observed passenger dispose of
white powder and baggie out of passenger-side window, court concluded “furtive gesture of
failing timely to stop the car on the shoulder of the road” was link tying defendant to heroin).
The pursuit ended only when Nelson jumped from the truck and fled into the night. His phone,
found in the truck’s front seat, contained evidence indicating narcotics transactions. We
7 Nelson posits that if he were the fleeing driver, his flight would suggest only a
“consciousness of guilt from fleeing to elude a sheriff’s deputy,” not possession of a controlled
substance with intent to deliver. Such an argument, however, not only begs the question as to
why he would flee for several miles from an attempted traffic stop but runs counter to our
obligation on review to consider the evidence in the light most favorable to the verdict. See
Jackson v. Virginia, 443 U.S. 307, 313 (1979).
13
conclude that the logical force of these factors is sufficient to link Nelson to the
methamphetamine, and the jury could therefore have reasonably concluded that he possessed the
drugs with Hill. See id. (concluding “[defendant]’s hesitation in stopping the car clearly
facilitated [passenger]’s disposal of the heroin,” and that “[b]y helping to dispose of the heroin in
this manner, appellant demonstrated that she both knew what the substance was and exercised
care, control and management over it jointly with [passenger]”). Alternatively, the jury could
have reasonably concluded that Hill possessed the methamphetamine and that Nelson, with the
intent that the offense be committed, encouraged, directed, aided, or attempted to aid Hill’s
possession by fleeing from Deputy Wilson.
Similar to the links for establishing possession, the list of factors that our sister
courts consider in determining whether a defendant had the intent to deliver includes “the nature
of the location where the defendant was arrested, the quantity of drugs the defendant possessed,
the manner of packaging the drugs, the presence or absence of drug paraphernalia, whether the
defendant possessed a large amount of cash, and the defendant’s status as a drug user.” Hughitt
v. State, 539 S.W.3d 531, 542 (Tex. App.—Eastland 2018), aff’d, 583 S.W.3d 623 (Tex. Crim.
App. 2019); see Moreno v. State, 195 S.W.3d 321, 325–26 (Tex. App.—Houston [14th Dist.]
2006, pet. ref’d). These factors are not exhaustive, nor must all be present to establish an intent
to deliver. Hughitt, 539 S.W.3d at 542. As with possession, “[t]he number of factors present is
not as important as the logical force the factors have in establishing the elements of the offense.”
Moreno, 195 S.W.3d at 326. Expert testimony from experienced law enforcement officers may
be used to establish the intent to deliver. Id. (citing Mack v. State, 859 S.W.2d 526, 529 (Tex.
App.—Houston [1st Dist.] 1993, no pet.)).
14
There is sufficient evidence from which the jury could have reasonably concluded
that Nelson intended to deliver the methamphetamine, either as the primary actor or as a party.
We find his contention on appeal that “only a little over 2 ounces of methamphetamine,” or
approximately 61 grams, is “not indicative of a dealer’s cache” unpersuasive. Indeed, cases from
our sister courts support the conclusion that far smaller amounts are both sellable and suggestive
of dealing. See Gullatt v. State, 368 S.W.3d 559, 563 (Tex. App.—Waco 2011, pet. ref’d)
(finding that quantity of methamphetamine, 3.5 grams, supported conclusion that possession was
with intent to deliver); Biggers v. State, 634 S.W.3d 244, 254 (Tex. App.—Texarkana 2021, pet.
ref’d) (finding that evidence was sufficient to support jury’s determination that defendant
possessed methamphetamine with intent to deliver where two officers testified that 11.68 grams
“was not a user amount, but a dealer amount”).
Here, Investigator Barnes testified that an eighth of an ounce, or one-sixteenth of
the amount possessed by Nelson, was “a large quantity.” In addition, during the chase Nelson
was driving a vehicle with temporary tags that was not registered to him, which the jury could
have reasonably concluded was to aid in the delivery of the methamphetamine. Finally,
Investigator Barnes testified that the second phone—which stored selfies of Nelson and his
girlfriend as well as photos of Nelson’s known acquaintances and the number for which was
listed in Hill’s phone under the initials of Nelson’s alias—contained “several messages”
“consistent with,” or “that [Investigator Barnes] associate[d] with[,] . . . seeking to buy or sell
narcotics.” The most recent, received approximately 12 days before the methamphetamine was
recovered in the present case, read, “What could get me a 20, brother?,” which Investigator
Barnes testified was in his experience a reference to narcotics because the sender was requesting
a gram, or $20, “worth of dope.” See Tarpley v. State, 565 S.W.2d 525, 529 (Tex. Crim. App.
15
1978) (“In determining whether one has participated as a party, the trial court may look to events
occurring before . . . the commission of the offense and reliance may be placed on actions of the
parties which show an understanding and common design to do a certain act.”).
For these reasons, we conclude that the evidence was sufficient to allow a
reasonable jury to find beyond a reasonable doubt that Nelson possessed the methamphetamine
with an intent to deliver. We overrule his first two issues.
Law-of-Parties Instruction
In his third and fourth issues, Nelson contends that the trial court erred by
submitting a law-of-parties instruction to the jury with respect to the count alleging possession of
a controlled substance with intent to deliver and that the jury charge’s language erroneously
allowed the jury to apply the instruction to the count alleging evading arrest or detention. The
relevant portion of the charge provides:
III.
A person is responsible as a party to the offense if the offense is
committed by his own conduct, by the conduct of another for which he is
responsible, or by both. A person is responsible for an offense committed by the
conduct of another if, acting with the intent to promote or assist the commission
of the offense; he solicits, encourages, directs, aids or attempts to aid the other
person to commit the offense. Mere presence alone will not constitute one a party
to the offense.
IV.
You are instructed that each charge alleges a separate offense and
during your deliberations you are not to consider the verdict in one charge as
evidence in the other charge.
V.
Now, bearing in mind the foregoing instructions, if you find from
the evidence beyond a reasonable doubt that on or about January 23, 2017, in
16
Lampasas County, Texas, the defendant SEAN PATRICK NELSON did then and
there knowingly possess, with intent to deliver, a controlled substance, namely,
Methamphetamine, in an amount of four (4) grams or more but less than 200
grams; OR, if you find from the evidence beyond a reasonable doubt that Joshua
Hill did then and there knowingly possess, with intent to deliver, a controlled
substance, namely, Methamphetamine, in an amount of four (4) grams or more
but less than 200 grams, and that the defendant, SEAN PATRICK NELSON, did
then and there, with intent to promote or assist the commission of said offense,
solicit[], encourage[], aid[], or attempt[] to aid Joshua Hill to commit the offense,
then you will find the defendant GUILTY of POSSESSION OF A
CONTROLLED SUBSTANCE WITH INTENT TO DELIVER, as charged in
Count 1 of the indictment and say so by your verdict.
If you do not so find or if you have a reasonable doubt thereof, you
will find the defendant NOT GUILTY of POSSESSION OF CONTROLLED
SUBSTANCE WITH INTENT TO DELIVER as to Count 1 of the indictment,
say so by your verdict, and consider the lesser included offense of POSSESSION
OF CONTROLLED SUBSTANCE.
....
VI.
Further and bearing in mind the forgoing instruction, if you find
from the evidence beyond a reasonable doubt that on or about January 23, 2017 in
Lampasas County, Texas, the defendant SEAN PATRICK NELSON, did then
and there while using a vehicle, intentionally flee from Justin Wilson, a person the
defendant knew was a peace officer who was attempting lawfully to arrest or
detain the defendant, then you will find the defendant GUILTY of EVADING
ARREST - VEHICLE, as charged in Count 2 of the indictment and say so by
your verdict.
If you do not so find or if you have a reasonable doubt thereof, you
will find the defendant NOT GUILTY as to Count 2 of the indictment and say so
by your verdict.
We review alleged jury-charge error in two steps: first, we determine whether
error exists; if so, we then evaluate whether sufficient harm resulted from the error to require
reversal. Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017); Ngo v. State,
175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005). The degree of harm required for reversal
depends on whether the jury-charge error was preserved in the trial court. Mendez v. State,
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545 S.W.3d 548, 552 (Tex. Crim. App. 2018); see Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985) (op. on reh’g) (setting forth procedure for appellate review of claim of jury-
charge error). If the jury-charge error has been properly preserved by an objection or request for
instruction, see Tex. Code Crim. Proc. arts. 36.14, .15, reversal is required if the appellant has
suffered “some harm” from the error, which means the error “was calculated to injure the rights
of the defendant.” Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020); see Almanza,
686 S.W.2d at 171. If the charge error was not properly preserved, the error requires reversal
only if the appellant suffered “egregious harm,” which occurs when the error “created such harm
that the appellant was deprived of a fair and impartial trial.” Chambers v. State, 580 S.W.3d 149,
154 (Tex. Crim. App. 2019); see Almanza, 686 S.W.2d at 171.
A trial court is statutorily obligated to instruct the jury on the “law applicable to
the case.” See Tex. Code Crim. Proc. art. 36.14; Mendez, 545 S.W.3d at 552; see also
Oursbourn v. State, 259 S.W.3d 159, 175–81 (Tex. Crim. App. 2008) (explaining circumstances
under which various voluntariness issues become “the law applicable to the case”). The trial
court’s duty to instruct the jury on the “law applicable to the case” exists even when defense
counsel fails to object to inclusions or exclusions from the charge. Mendez, 545 S.W.3d at 552;
Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013). The trial court is “ultimately
responsible for the accuracy of the jury charge and accompanying instructions.” Mendez,
545 S.W.3d at 552 (quoting Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)).
Inclusion of instruction
In his third issue, Nelson contends that it was error for the trial court to include an
instruction on the law of parties in the abstract portion of the jury charge because there was “no
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evidence [he] harbored a specific intent to promote or assist the commission of the offense of
possession or of intent to deliver or that he and Josh Hill were executing any common design or
scheme regarding either.”
The test for whether to submit a law-of-parties instruction to the jury was set forth
in McCuin v. State, 505 S.W.2d 827 (Tex. Crim. App. 1974). See Goff v. State, 931 S.W.2d 537,
544 (Tex. Crim. App. 1996); see also Brown v. State, 716 S.W.2d 939, 944 (Tex. Crim. App.
1986) (“The McCuin test is still a viable means for determining when a cause should be
submitted to the jury on the law of parties.”); Nunez v. State, 215 S.W.3d 537, 543 (Tex. App.—
Waco 2007, pet. ref’d) (applying McCuin test). The CCA in McCuin explained:
Where the evidence introduced upon the trial of the cause shows the active
participation in the offense by two or more persons, the trial court should first
remove from consideration the acts and conduct of the non-defendant actor.
Then, if the evidence of the conduct of the defendant then on trial would be
sufficient in and of itself, to sustain the conviction, no submission of the law of
[parties] is required.
On the other hand, if the evidence introduced upon the trial of the cause shows, or
raises an issue, that the conduct of the defendant then upon trial is not sufficient,
in and of itself, to sustain a conviction, the State’s case rests upon the law of
principals and is dependent, at least in part, upon the conduct of another. In such
a case, the law of principals must be submitted and made applicable to the facts of
the case.
505 S.W.2d at 830.
Alternatively, the CCA has concluded that a law-of-parties instruction should be
submitted “whenever there is sufficient evidence to support a jury verdict that the defendant is
criminally responsible under the law of parties,” Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim.
App. 1999), or if the instruction has been requested by the State, and there is ”some evidence in
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the record” for that theory of liability, In re State ex rel. Weeks, 391 S.W.3d 117, 125 (Tex.
Crim. App. 2013).
No matter which standard is used, a law-of-parties instruction was warranted with
respect to the charge alleging that Nelson possessed a controlled substance with intent to deliver.
Although he argues that there was no evidence that he acted as a party with Hill and that this
conclusion “is derived, in no small part, because . . . the methamphetamine found by sheriff’s
deputies near the truck could not be linked to Nelson,” we concluded above that a reasonable
jury could find both that Nelson possessed the methamphetamine, jointly or as a party, and
intended to deliver it. In light of our conclusion, an instruction on the law of parties was
appropriate in this case. Because inclusion of the instruction was not error, we need not conduct
a harm analysis. Arteaga, 521 S.W.3d at 333. We overrule Nelson’s third issue.
Jury Confusion
In his fourth issue, Nelson contends that the trial court erred by using the phrase
“bearing in mind the forgoing instruction” at the beginning of section VI, the application
paragraph for the charge of evading arrest or detention, because it “invited the jury to apply the
law-of-parties instruction to the felony evasion charge when it was not authorized[,] resulting
in . . . harm to Nelson.” 8 He argues that making the law-of-parties instruction applicable to the
8 In his brief, Nelson asserts that he suffered “some” harm from the alleged jury charge
error, suggesting that he objected to the allegedly misleading phrase at trial. Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). However, during the charge
conference, he requested only that the law-of-parties instruction in section III “be deleted in its
entirety” and that the third paragraph of section V, alleging the lesser-included offense of
possession of a controlled substance, and “also contain[ing] the law of party language[, . . .] be
deleted” as well. The trial court overruled both objections. Because Nelson did not object to
the alleged jury charge error that he asserts on appeal, the appropriate harm standard is
egregious harm.
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charge of evading arrest or detention “result[ed] in confusion to the jury when it came to
deciding the second count of [his] indictment.”
A jury charge must not simply “avoid misleading or confusing the jury”; rather, it
must “lead and prevent confusion.” Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App.
1996) (quoting Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977)). “On appeal, we
generally presume the jury follows the trial court’s instructions in the manner presented.” Thrift
v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005); see Casanova v. State, 383 S.W.3d 530,
543 (Tex. Crim. App. 2012) (stating “the usual presumption” is that “jurors follow the trial
court’s explicit instructions to the letter”). The presumption is rebuttable, but the appellant bears
the burden and must “point[] to evidence that the jury failed to follow the trial court’s
instructions.” Thrift, 176 S.W.3d at 224.
There is no evidence in the record that the jury was confused by the inclusion of
the phrase “bearing in mind the for[e]going instruction.” Rather, the structure of the charge
tended to mitigate any potential confusion. Immediately following the law-of-parties instruction
in the abstract portion of the charge, the jury was expressly instructed that “each charge alleges a
separate offense” and that it was not to “consider the verdict in one charge as evidence in the
other charge.” Moreover, the application paragraphs for count 1, alleging possession of a
controlled substance with intent to deliver and the lesser-included offense of possession of a
controlled substance, contained expansive language on the law of parties, authorizing the jury to
convict if it found that Hill committed an offense and Nelson “with intent to promote or assist
the commission of said offense, solicited, encouraged, aided, or attempted to aid Joshua Hill to
commit the offense.” The application paragraphs for count 2 contained no such language.
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Even if we were to conclude that the charge erroneously instructed the jury to
apply the law-of-parties instruction to count 2, we would also conclude that Nelson was not
egregiously harmed by the error because there was ample evidence that Nelson was the principal
actor in committing the offense of evading arrest or detention using a vehicle. See Ladd,
3 S.W.3d at 565 (“[B]ecause there was no evidence tending to show appellant’s guilt as a party,
the jury almost certainly did not rely upon the parties instruction in arriving at its verdict, but
rather based the verdict on the evidence tending to show appellant’s guilt as a principal actor.”);
Cathey v. State, 992 S.W.2d 460, 466 (Tex. Crim. App. 1999) (where “the evidence clearly
supports a defendant’s guilt as the primary actor, error in charging on the law of parties was
harmless” and appellant’s failure to show harm necessitates conclusion that he also failed to
show egregious harm)).
That the truck’s driver fled from Deputy Wilson’s attempted traffic stop is
uncontroverted. The evidence that Nelson was the fleeing driver included the following:
(1) Investigator Barnes testified that the truck’s “true owner,” Waldrop, told him that he had
loaned the truck to Nelson the night before the chase; (2) Investigator Barnes testified that from
his review of the dash-cam video, Rollins, the individual to whom the truck was registered, did
not appear to be the driver; (3) Investigator Barnes testified that Rollins had identified Nelson as
the driver; (4) Deputy Wilson testified that after reviewing his dash-cam video, he was able to
identify Nelson as the driver from Nelson’s side profile; (5) Deputy Wilson testified that he did
not believe Rollins would have been able to jump the fence; (6) DNA from a fresh bloodstain on
a jacket matching the driver’s, found in a nearby backyard, was consistent with Nelson’s DNA
profile; (7) a phone found in the truck’s front seat contained selfies of Nelson and his girlfriend
as well as photos of Nelson’s known associates; (8) the cell phone’s number was listed in Hill’s
22
phone under “NS,” the initials of Nelson’s street name; (9) texts on the phone believed to be
Nelson’s were consistent with the buying and selling of drugs, and methamphetamine was
recovered near the truck; (10) both Nelson and the driver had tattoos on their left calves; and
(11) Investigator Barnes testified that Nelson’s tattoo was “something that could be seen on the
officer’s dash[-]cam video.” Considering all of the evidence of appellant’s guilt as the principal
actor, any error in the submission of the law-of-parties instruction was harmless. See Ladd,
3 S.W.3d at 564–65; Cathey, 992 S.W.2d at 466.
Because we conclude that the charge did not erroneously instruct the jury to apply
the law-of-parties instruction to count 2 and, if it did, the error was harmless, we overrule
Nelson’s fourth issue.
CONCLUSION
Having overruled all of Nelson’s issues, we affirm the trial court’s judgments
of conviction.
__________________________________________
Edward Smith, Justice
Before Chief Justice Byrne, Justices Baker and Smith
Affirmed
Filed: June 3, 2022
Do Not Publish
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