Armstrong v. State

Do Not Publish

FROM THE 264TH DISTRICT COURT OF BELL COUNTY NO. 80557, THE HONORABLE PAUL L. LEPAK, JUDGE PRESIDING

Before Justices Goodwin, Triana, and Smith

MEMORANDUM OPINION

Edward Smith, Justice

A jury convicted appellant Stephen Armstrong, Jr., of possession of a controlled substance, less than one gram, and assessed his sentence at eighteenth months in state jail and a fine of $750. Tex. Health & Safety Code §§ 481.115(a), (b); Tex. Penal Code § 12.35. In three issues, Armstrong challenges the legal and factual sufficiency of the evidence supporting his conviction and complains about error in the jury charge. We will affirm the judgment of conviction.

BACKGROUND

Officers with the Belton Police Department were called out to the Hilltop Mobile Home Park on the morning of May 13, 2019, in response to a stabbing incident. The

complainant, Andrea Andersen, ^[1] reported that her ex-boyfriend Armstrong, against whom she had a protective order, had climbed in through a window of her trailer home, and she had stabbed him. Officer Richard Spurgeon testified at trial that he searched and photographed the trailer. During his search, Spurgeon saw a broken phone on the floor of the trailer and found a knife one to two feet inside the door area; there did not appear to be blood on the knife.

While searching the outside of the trailer, officers noticed a path of footprints on the grass. Following the footprints, they discovered a black "wind breaker type [sic]" jacket next to an air conditioning unit underneath a window of the trailer. All of the trailer's windows were "off the ground." It had rained the night before, but although the grass, A/C unit, and side of the trailer were still wet, the jacket was dry, from which Spurgeon concluded it had not lain there long. Inside a pocket were a cell phone; lighter; stocking cap; baggie containing a white crystalline substance that appeared to be methamphetamine; and mail addressed to Armstrong, including a medical bill. Some of the mail was dated January 2019. A field test of the crystalline substance subsequently yielded a positive result for methamphetamine.

Spurgeon also testified that another officer, Sergeant William Hamilton, could be seen on a body-camera recording of the search wearing a short-sleeved shirt and that it was "fairly warm" during the daytime but "comfortable" the morning of the search. Spurgeon added that officers wear body armor underneath the shirt, which "keep[s] heat well."

Hamilton testified that he had been made aware that the "suspect," who had "fled the scene" prior to his arrival, was Armstrong. An individual saw Armstrong walking near a

highway, and Hamilton located Armstrong at a gas station near the sighting. Armstrong did not try to flee at Hamilton's approach. Although a police report described Armstrong as wearing dark pants and a white shirt, Hamilton agreed that he was wearing a black shirt when Hamilton located him. However, Hamilton clarified that he was "looking for Stephen Armstrong and [knew] him very well from many previous experiences." Armstrong insisted that he had not violated the protective order, been stabbed, or done anything wrong, but Hamilton could "see evidence on [Armstrong's] person that he'd been stabbed." Hamilton arrested Armstrong for violation of a protective order and photographed him at the jail. While there, Armstrong asked Hamilton to return his phone, which he indicated he had left at the trailer home. Hamilton returned to the trailer to search "[a]round the house." Although he acknowledged that a phone was found in the jacket, Hamilton testified that he did nothing further with the phone.

Andersen testified that Armstrong had been living with her in the three-bedroom trailer since February 2019, despite the existence of the protective order. On May 12, 2019, Armstrong, Andersen, and a friend smoked methamphetamine at the trailer. The friend left around 1 p.m., and Armstrong and Andersen spent the rest of the day smoking and arguing. The argument became physical when Andersen attempted to leave the trailer, and Armstrong tried to stop her. Andersen managed to leave, but Armstrong followed her to a friend's house. Andersen then returned to the trailer, while Armstrong stayed to speak with the friend. Andersen locked the door to the trailer because she "knew [Armstrong] was going to be insane at that point" and "feared for [her] life." Armstrong climbed through a window of the trailer and ran toward Andersen. For about an hour, he kept her from leaving, and, when she attempted to call 911, he stepped on her phone, breaking it. Andersen grabbed a knife and testified that she stabbed

Armstrong multiple times; Armstrong, bleeding, ran from the trailer. Andersen charged her phone and called 911 to "turn[ her]self in." She testified that the jacket found by officers belonged to Armstrong and that she had seen him wear it before.

Lindsay Hatfield, an analyst with the Texas Department of Public Safety, testified that she tested the crystals seized from the jacket and determined that they contained methamphetamine in a weight of approximately .60 grams.

The jury found Armstrong guilty of possession of less than a gram of methamphetamine. Following a hearing on punishment, it assessed his sentence at eighteen months in state jail and a fine of $750. This appeal followed.

DISCUSSION

In three issues, Armstrong challenges the legal and factual sufficiency of the evidence proving possession and complains about an error in the jury charge.

Legal Sufficiency

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 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 assume 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))).

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 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." ...