Kenneth Wayne Barger v. the State of Texas

IN THE
TENTH COURT OF APPEALS
No. 10-21-00123-CR
KENNETH WAYNE BARGER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court No. 18-03531-CRF-85
MEMORANDUM OPINION
In one issue, Appellant Kenneth Wayne Barger appeals his conviction for the
state jail felony of possession of less than one gram of methamphetamine, a violation of
Section 481.115 of the Health and Safety Code. TEX. HEALTH & SAFETY CODE ANN. §
481.115. The trial court assessed punishment and sentenced Barger to twelve months’
incarceration. Barger asserts there was insufficient evidence to support his conviction.
We will affirm.
AUTHORITY
The Court of Criminal Appeals has expressed our standard of review of
sufficiency issues as follows:
When addressing a challenge to the sufficiency of the evidence, we
consider whether, after viewing all of the evidence in the light most
favorable to the verdict, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Villa v.
State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires
the appellate court to defer “to 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. We may not re-weigh the evidence or substitute our judgment for
that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.
App. 2007). The court conducting a sufficiency review must not engage in
a “divide and conquer” strategy but must consider the cumulative force of
all the evidence. Villa, 514 S.W.3d at 232. Although juries may not
speculate about the meaning of facts or evidence, juries are permitted to
draw any reasonable inferences from the facts so long as each inference is
supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750,
757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v.
State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We presume that the
factfinder resolved any conflicting inferences from the evidence in favor of
the verdict, and we defer to that resolution. Merritt v. State, 368 S.W.3d
516, 525 (Tex. Crim. App. 2012). This is because the jurors are the
exclusive judges of the facts, the credibility of the witnesses, and the
weight to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899
(Tex. Crim. App. 2010). Direct evidence and circumstantial evidence are
equally probative, and circumstantial evidence alone may be sufficient to
uphold a conviction so long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction.
Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214
S.W.3d at 13.
We measure whether the evidence presented at trial was sufficient
to support a conviction by comparing it to “the elements of the offense as
defined by the hypothetically correct jury charge for the case.” Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
correct jury charge is one that “accurately sets out the law, is authorized
by the indictment, does not unnecessarily increase the State's burden of
Barger v. State Page 2
proof or unnecessarily restrict the State's theories of liability, and
adequately describes the particular offense for which the defendant was
tried.” Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App.
2013). The “law as authorized by the indictment” includes the statutory
elements of the offense and those elements as modified by the indictment.
Daugherty, 387 S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732–33 (Tex. Crim. App. 2018).
Subsection 481.115(a) provides that a person commits an offense if “the person
knowingly or intentionally possesses a controlled substance listed in Penalty Group 1.”
TEX. HEALTH & SAFETY CODE ANN. § 481.115(a). Methamphetamine is listed as a Penalty
Group 1 controlled substance. Id. § 481.102(6). To prove unlawful possession of a
controlled substance, the State must establish that: (1) the accused exercised care,
control, or management over the substance, and (2) the accused knew the substance was
contraband, in this case, methamphetamine. Poindexter v. State, 153 S.W.3d 402, 405
(Tex. Crim. App. 2005), overruled on other grounds by Robinson v. State, 466 S.W.3d 166,
173 & n.32 (Tex. Crim. App. 2015); see TEX. PENAL CODE ANN. § 1.07(a)(39).
The evidence must show beyond a reasonable doubt that a defendant’s
connection with the controlled substance was more than just fortuitous, which is known
as the “affirmative links” rule. See Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim.
App. 2011); Poindexter, 153 S.W.3d at 406. Evidence that links the defendant to the
controlled substance suffices for proof that he possessed it knowingly. Brown v. State,
911 S.W.2d 744, 747 (Tex. Crim. App. 1995). “’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
Barger v. State Page 3
independent facts and circumstances which affirmatively link the accused to the
contraband.’” Poindexter, 153 S.W.3d at 406 (quoting Deshong v. State, 625 S.W.2d 327,
329 (Tex. Crim. App. [Panel Op.] 1981)). Although mere presence is insufficient to
establish an affirmative link, a defendant’s proximity to the controlled substance, when
combined with other evidence, either direct or circumstantial, may well be sufficient to
establish actual care, custody, or control over the controlled substance beyond a
reasonable doubt. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006).
Factors that may be helpful to consider when determining whether the accused
was sufficiently linked to the controlled substance include:
(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
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.
Tate v. State, 500 S.W.3d 410, 414 (Tex. Crim. App. 2016) (quoting Evans, 202 S.W.3d at162 n.12). Texas courts have recognized that this is a nonexclusive list of factors that
may be sufficient, either individually or in combination, to establish a defendant's
possession of a controlled substance. Evans, 202 S.W.3d at 162 n.12. “It is . . . not the
number of links that is dispositive, but rather the logical force of all of the evidence,
direct and circumstantial.” Id. at 162. The ultimate inquiry remains that set forth in
Barger v. State Page 4
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.
DISCUSSION
The evidence introduced at trial, viewed in the light most favorable to the
verdict, reflects that Barger was hired to paint the inside of a rental home. When the
out-of-town homeowner came to do a final inspection, he discovered the painting had
not been completed and found Barger asleep on the floor in a back bedroom. The
homeowner awakened Barger to try to get him back to work as potential tenants were
scheduled to view the house that afternoon. The homeowner then left to run some
errands. When the homeowner returned, he viewed Barger standing in the bathroom
apparently asleep on his feet. The homeowner took a video of Barger, which was
introduced into evidence. The homeowner then confronted Barger, waking him from
his stupor and asking him to leave. Barger insisted he could finish the job. The
homeowner stepped outside of the house to consider what course of action to take, and
flagged down a passing police officer. The homeowner explained the situation to the
officer and asked the officer to assist in removing Barger from the house.
The homeowner testified that no one else had access to the house during the time
of Barger’s employment, and there was no indication that anyone else had been in the
house. The homeowner also testified that he carefully inspected the house after the last
tenants left to make sure they had left nothing behind and that nothing remained except
possibly some food in the refrigerator.
Barger v. State Page 5
The officer who first encountered the homeowner viewed the homeowner’s
video of Barger. The first officer, and a second officer who arrived as back-up, spoke
with Barger. In their training and experience, Barger appeared to be “coming down”
after a methamphetamine high. The officers did a walk-through of the rental property
and discovered a glass pipe that’s commonly used to smoke narcotics, including
methamphetamine, on a countertop in the kitchen area. The pipe was no longer
transparent, but discolored as if it had been used to smoke narcotics. Although broken
on the end, the first officer testified that the pipe was still in a usable state. The officers
also found a butane lighter, commonly used to smoke narcotics, and glass fragments
from what appeared to be a broken narcotics pipe in separate closets.
Barger consented to a search of his person. Recovered from Barger’s pockets
were another butane lighter, a pill bottle containing a Hydrocodone pill and a Xanax
pill, and a cigarette box containing four small, empty baggies covered with what
appeared to be methamphetamine residue. Barger disavowed knowledge of the items
in his pockets, which the officers testified was behavior common among drug users in
an attempt to distance themselves from contraband. Barger was placed into custody
due to his possession of the Hydrocodone and Xanax and transported to the jail.
The transporting officer requested a strip search of Barger. While the strip search
occurred, Barger’s shoes remained in the pre-booking area. The officer conducting the
strip search then recovered a small baggie of methamphetamine from one of Barger’s
shoes. The baggie was consistent with the empty bags found in the cigarette package
Barger v. State Page 6
taken from Barger’s pocket. As one officer testified, it is common for drug users to hide
their drugs in a shoe as it is a place that is often overlooked during a pat-down search.
The transporting officer recalled no other inmates being present in the pre-
booking area. The officer further testified that if a civilian is in the pre-booking area, he
is accompanied by an arresting officer. The exception would be in the case of a jail
trustee performing a task such as sweeping or mopping the floor.
Questioning by Barger’s attorney focused on the possibility that the glass pipe
found in the kitchen area had been discovered by Barger after moving the refrigerator
to paint. The officer who first discovered the glass pipe testified that such a
circumstance was possible but not probable.
Further questioning by defense counsel focused on the possibility that someone
had placed the methamphetamine baggie in Barger’s shoe while he was being strip
searched. A video was shown to the jury, although it is not part of the record, that
indicated the presence of another individual in the pre-booking area. Nothing in the
record indicates this individual’s identity or proximity to Barger’s shoes. Barger again
disavowed knowledge of the meth in his shoe but told officers that a woman he had
been staying with was “out to get him.” Barger also admitted to the officers that he had
“smoked dope” within the last two or three days. “Dope” is a slang phrase for a variety
of illegal narcotics, including methamphetamine. See Hernandez v. State, 161 S.W.3d 491,
494-95 (Tex. Crim. App. 2005); see also Jones v. State, No. 12-16-00304-CR, 2017 WL
6884419, at *3 n.1 (Tex. App.—Tyler Aug. 23, 2017, no pet.) (mem. op., not designated
Barger v. State Page 7
for publication); Goswick v. State, No. 11-16-00164-CR, 2017 WL 2986841, at *6 (Tex.
App.—Eastland July 13, 2017, no pet.) (mem. op., not designated for publication).
Based upon the combined and cumulative force of the evidence and any
reasonable inferences therefrom, the jury was rationally justified in finding Barger
guilty beyond a reasonable doubt of possession of methamphetamine. See Tate, 500
S.W.3d at 414.
CONCLUSION
We overrule Barger’s sole issue and affirm the judgment of the trial court.
MATT JOHNSON
Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Wright 1
Affirmed
Opinion delivered and filed August 10, 2022
Do not publish
[CR25]
1
The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, sitting by
assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002,
75.003.
Barger v. State Page 8