Joy Manufacturing Co., Larkin Division v. Ronny G. Hammer, Et Ux

Joy Mfg v. Hammer IN THE TENTH COURT OF APPEALS No. 10-91-143-CV         JOY MANUFACTURING CO.,         LARKIN DIVISION,                                                                                        Appellant         v.         RONNY G. HAMMER, ET UX,                                                                                        Appellees From the 40th District Court Ellis County, Texas Trial Court # 38,558                                                                                                                                                                                      O P I N I O N                                                                                                                Joy Manufacturing Company appealed from an adverse judgment, signed on April 2, 1991. Because a motion to reconsider and reform the judgment was filed, the statement of facts and transcript were due on July 31, 1991. See Tex. R. App. P. 54(a). The transcript was filed on July 25, 1991.           A motion to extend the time for filing the statement of facts was filed on August 14, 1991, which we granted to extend the time for filing until October 29, 1991. No statement of facts was filed within the time prescribed, and no motion to extend the time for filing was filed within fifteen days thereafter. See Tex. R. App. P. 54(c). An untimely motion to extend the time to file the statement of facts was filed on November 25, 1991. See id.           It is the duty of Appellant to cause the statement of facts to be filed with the clerk of this court. See Tex. R. App. P. 53(k). The second motion to extend time to file the statement of facts is denied.           The judgment is affirmed. See Tex. R. App. P.54(a).                                                                                  PER CURIAM Before Chief Justice Thomas,           Justice Cummings and           Justice Vance Affirmed Opinion delivered and filed December 18, 1991 Do not publish oss-examination, Sikes testified that he could not recall how many baggies of methamphetamine were in the canister. He testified that he had the canister in his hand as he was approaching Westbrook’s pickup and dropped it when he saw Willis approaching him.          Sikes also testified on cross-examination that he had the canister in his pocket when he went to a neighbor’s house to get some water for Westbrook—after Westbrook was arrested. He stated that he gave Westbrook the glass of water while he still had the canister in his pocket, then walked to the rear of the pickup and dropped it. Affirmative Links          Westbrook contends in his sole issue that the evidence is factually insufficient to prove that he possessed the canister recovered from the rear of his pickup because the State failed to offer sufficient “affirmative links” to connect him to the canister.          The evidence can be factually insufficient if the evidence supporting the verdict is “too weak to support the finding of guilt” or if the contrary evidence is so strong “that the beyond-a-reasonable-doubt standard could not have been met.” See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004).                   “Affirmative links” is a shorthand expression to identify what must be proven in a prosecution for the possession of illegal drugs. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). An accused must not only have exercised actual care, control, or custody of the substance, but must also have been conscious of [his] connection with it and have known what it was. Evidence which affirmatively links [him] to it suffices for proof that [he] possessed it knowingly. Id.  This evidence may be direct or circumstantial.  Id.  In either case it must establish, to the requisite level of confidence, that the accused’s connection with the drug was more than just fortuitous. Id.  This is the whole of the so-called “affirmative links” rule.  Id.  It is still, just as it always was, only a shorthand expression of what must be proven to establish that a person possessed some kind of drug “knowingly or intentionally.”  Id.  Hunter v. State, 92 S.W.3d 596, 600 (Tex. App.—Waco 2002, pet. ref’d).          Here, the evidence shows that Westbrook paused at the rear of his pickup in the location where Willis found the canister moments later. Westbrook had two marihuana cigarettes in his possession when arrested, and he was uncharacteristically nervous. Westbrook also made a series of furtive gestures,[5] testified to by Willis and corroborated by the video, which Willis interpreted as an indication that Sikes should walk to the back of the pickup because Willis “figured Mr. Westbrook had dropped something” there.  We cannot say that this evidence is “too weak to support the finding of guilt.” See Zuniga, 144 S.W.3d at 484; cf. Denbow v. State, 837 S.W.2d 235, 236-39 (Tex. App.—Dallas 1992, pet. ref’d) (insufficient affirmative links to connect defendant to pill bottle containing methamphetamine found in parking lot near his possessions because defendant did not have exclusive access to lot and evidence did not exclude other reasonable hypotheses).[6]          Sikes provided the lone controverting evidence with his testimony that he placed the methamphetamine at the rear of Westbrook’s pickup.[7] During cross-examination however, the State exposed numerous flaws and inconsistencies in Sikes’s version of the events. Thus, the jury had to choose to believe either Sikes or Deputy Willis.          Thus, the controverting evidence rested on credibility. The jury is the ultimate fact finder on issues of credibility, and by its verdict, the jury chose to believe Willis. See Parker v. State, 119 S.W.3d 350, 355 (Tex. App.—Waco 2003, pet. ref’d). We must defer to the jury in its resolution of such issues. Id. Accordingly, we cannot say that the controverting evidence is so strong “that the beyond-a-reasonable-doubt standard could not have been met.” See Zuniga, 144 S.W.3d at 485. Therefore, we overrule Westbrook’s sole issue and affirm the judgment.  FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed October 26, 2005 Do not publish [CR25] [1]          See Tex. Transp. Code Ann. § 547.613 (Vernon Supp. 2004–2005).  [2]          When Westbrook saw Willis’s marked vehicle approaching from the front, Westbrook stopped and began backing up. Thus, Willis was parked in front of Westbrook’s pickup when he stopped Westbrook.  [3]          Id. § 601.053 (Vernon 1999). [4]          Willis’s frame of reference for Westbrook’s nervousness was Willis’s prior “contacts with him.” [5]          In this context, furtive gestures have been defined as “an affirmative link between the accused and drugs he attempts to hide or dispose of.” Davila v. State, 749 S.W.2d 611, 613 (Tex. App.—Corpus Christi 1988, pet. ref’d) (citing Reyes v. State, 575 S.W.2d 38, 40 (Tex. Crim. App. [Panel Op.] 1979)). [6]          Denbow is distinguishable for several reasons: (1) it employed the former “reasonable hypothesis analytical construct” which the Court of Criminal Appeals has since rejected; (2) the officer had not seen the area before the defendant stopped there and could not say whether the pill bottle was there before they arrived; (3) the defendant did not have any narcotics in his possession; (4) the record did not indicate whether others were present at the time; and (5) there is no mention that the defendant made any furtive gestures in connection with the pill bottle. See Denbow v. State, 837 S.W.2d 235, 238-39 (Tex. App.—Dallas 1992, pet. ref’d).  [7]          Westbrook also makes reference to the fact that Willis did not see him drop the plastic canister and that no fingerprints were looked for on the canister. However, these facts relate only to the strength of the State’s case, and the absence of direct eyewitness testimony from Willis or fingerprint evidence does not equate to the existence of controverting evidence.