Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 02-25-2021
Case Style:
James Bernard Square v. The State of Texas
Case Number: 10-19-00087-CR
Judge: JOHN E. NEILL
Court: IN THE
TENTH COURT OF APPEALS
Plaintiff's Attorney: M. Ann Montgomery
Andrea L. Westerfeld
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Waco, Texas - Criminal defense attorney represented James Bernard Square with a Possession With Intent to Deliver a Controlled Substance charge.
In his sole issue on appeal, Square argues that the evidence is insufficient to
support his conviction for possession of a controlled substance with intent to deliver. The
Square v. State Page 2
Court of Criminal Appeals has expressed our standard of review of a sufficiency issue 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 proof
or unnecessarily restrict the State’s theories of liability, and adequately
Square v. State Page 3
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).
Officer Abe Partington, with the Waxahachie Police Department, testified that he
was on patrol on July 21, 2017 when he saw a vehicle make a quick turn in what appeared
to be an attempt to avoid him. Officer Partington followed the vehicle and observed that
the front license place was illegible and that the vehicle turned without signaling
properly. Officer Partington stopped the vehicle for the traffic violations, and spoke with
the driver, Delores Washington. Square was a passenger in the vehicle.
Washington gave consent for Officer Partington to search the vehicle. Officer
Justin Koch arrived at the scene to assist Officer Partington. Officer Partington testified
that he asked Square to step out of the vehicle, and he conducted a pat down search for
safety. During the pat down search, Officer Partington asked Square for permission to
search his pockets, and Square gave his consent. Officer Partington found a pop top type
bottle containing thirty-nine rocks of crack cocaine in Square’s pocket. Officer Partington
stated that each rock of crack cocaine would sell for approximately five to ten dollars.
Officer Partington further testified that Square had $420 in cash in small denominations
in his pocket. Square told Officer Partington that the crack cocaine was not his.
Square v. State Page 4
Square testified at trial that Washington was going to take him to the store. She
had a pill bottle in her car, and she told Square it was medicine for her father. According
to Square, Washington told him that she was taking the medicine to her father in the
hospital. Square said that he put the pill bottle in his pocket so he would not sit on it.
Square said the money in his pocket was from working side jobs.
Square testified that Officer Partington did not ask for permission to search his
pockets. Square further testified that two officers approached him with their weapons
drawn. Square stated that the police bodycam video was altered. Officers Partington
and Koch both testified that they did not point their weapons at Square. Officer
Partington testified that the bodycam video was not altered.
The Texas Health and Safety Code provides that a person commits an offense if
“the person knowingly manufactures, delivers, or possesses with intent to deliver a
controlled substance listed in Penalty Group 1.” TEX. HEALTH & SAFETY CODE ANN. §
481.112 (a). The Texas Penal Code defines possession as “actual care, custody, control, or
management.” TEX. PENAL CODE ANN. § 1.07 (39). To prove unlawful possession of a
controlled substance, the State must establish that (1) the accused exercised care, control,
or management over the contraband, and (2) knew the substance was contraband.
Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005).
Square does not challenge that he was in possession of the bottle containing the
controlled substance, but rather he argues that the evidence is insufficient to show that
Square v. State Page 5
he knew that it was a controlled substance. The rocks of crack cocaine were in a black
pop top type of bottle. The bottle did not contain a prescription label to indicate it was
medicine. The bottle was found in Square’s pocket with cash in small denominations.
The jury was allowed to make reasonable inferences supported by the evidence presented
at trial. Cary v. State, 507 S.W.3d at 757. 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 at 899. We find that a rational jury could have found Square knowingly
possessed a controlled substance with the intent to deliver. We overrule the sole issue on
appeal.
Outcome: We affirm the trial court’s judgment.
Plaintiff's Experts:
Defendant's Experts:
Comments: