Allen Rene Moore v. the State of Texas

NO. 12-24-00061-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ALLEN RENE MOORE, § APPEAL FROM THE 7TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Allen Rene Moore appeals his conviction for possession of a controlled substance. In three
issues, Appellant challenges the sufficiency of the evidence, contends the trial court improperly
assessed attorney’s fees against him, and argues that his punishment is grossly disproportionate to
his crime and is therefore cruel and unusual. We modify and affirm as modified.

BACKGROUND

Appellant was charged by indictment with possession of a controlled substance, namely
methamphetamine. 1 Appellant pleaded “not guilty,” and the matter proceeded to a jury trial.
Deputy John McLean of the Smith County Sheriff’s Office testified that he was patrolling when

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See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a) (West Supp. 2023).
he saw a vehicle driven by Appellant change lanes without a signal, and he noticed that the
vehicle’s tail lamps were not illuminated. While McLean drove behind Appellant, he learned that
the vehicle’s registration was expired. McLean initiated a traffic stop, and upon reaching the
vehicle, he observed that the vehicle did not have an ignition, and Appellant “was having to use a
screwdriver to crank the vehicle.” A female passenger was also in the vehicle.
Although McLean initially believed the vehicle might have been stolen, he learned that it
was not. McLean eventually asked Appellant to exit the vehicle, and Appellant consented to a
search of both the vehicle and his person. Upon searching Appellant, McLean found a small clear
baggie, which contained a crystal substance he believed to be methamphetamine, in the right
pocket of Appellant’s pants. According to McLean, Appellant did not seem shocked. Appellant
told McLean that someone else did his laundry. Footage from McLean’s body camera, dash
camera, and in-car camera was admitted into evidence and published to the jury. James Marzelli,
a drug analyst with the Texas Department of Public Safety crime lab in Tyler, Texas, testified that
the substance found in Appellant’s pants was 1.3 grams of methamphetamine.
Appellant testified that he has previous convictions for “a number of theft charges[]” as
well an “amphetamine charge[.]” He explained that on the date in question, he was helping his
passenger move away from an abusive relationship. Appellant stated that he was cooperative when
McLean stopped him because he “had no reason to be concerned other than traffic violations[,]”
and he consented to a search of his car and his person. When asked why he did not say anything
when McLean found methamphetamine in his pocket, Appellant testified, “I was shocked for one
thing. . . . I did not know it was there[.]” Appellant testified that if he knew the pocket of the pants
contained drugs, he “would have done something with them[]” because he “had ample time.”
According to Appellant, he was filthy because he and the passenger spent the day in
question loading the truck. Appellant explained that when his passenger asked him if he wanted
to shower, he told her he did not have any clothes to change into, so she offered him some clothing
that belonged to the man with whom she was in a relationship. According to Appellant, he took a
shower and changed into the clothes she provided. When asked why he told McLean that someone
else did his laundry, Appellant stated that he meant “that the clothes came from someone else.”
Appellant denied knowing that methamphetamine was in the pants and testified that he did not
knowingly possess it. During cross-examination, Appellant acknowledged that when his wife died
in 2018, he resumed using methamphetamine. Appellant testified that in 2022, he was arrested for

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manufacture or delivery of methamphetamine in Upshur County, but he has not been indicted on
that charge. Appellant testified that in 2023, he intentionally violated the terms of his bond by
taking drugs so the State would pay for him to attend drug rehabilitation.
The jury found Appellant “guilty” of possession of a controlled substance and assessed
punishment at life in prison. This appeal followed.

SUFFICIENCY OF THE EVIDENCE

In issue one, Appellant challenges the sufficiency of the evidence supporting his
conviction. According to Appellant, the State’s evidence did not demonstrate that he possessed
the contraband; rather, the State merely showed that he was in the presence of the contraband.
Standard of Review

The Jackson v. Virginia legal sufficiency standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the State is required to prove beyond a reasonable doubt. Brooks v. State,
323 S.W.3d 893, 895 (Tex. Crim. App. 2010); see Jackson v. Virginia, 443 U.S. 307, 315-16, 99
S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979). The standard for reviewing a legal sufficiency
challenge is whether any rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson v. State, 871
S.W.2d 183, 186 (Tex. Crim. App. 1993). We examine the evidence in the light most favorable
to the verdict. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186.
The jury is the sole judge of the witnesses’ credibility and the weight to be given to their
testimony. Brooks, 323 S.W.3d at 899; see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981). The factfinder
may accept one version of the facts and reject another or reject any of a witness’s testimony.
Penagraph, 623 S.W.2d at 343. We give full deference to the factfinder’s responsibility to fairly
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). If the
record contains conflicting inferences, we must presume that the factfinder resolved such facts in
favor of the verdict and defer to that resolution. Brooks, 323 S.W.3d at 899 n.13; Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We also “‘determine whether the necessary

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inferences are reasonable based upon the combined and cumulative force of all the evidence when
viewed in the light most favorable to the verdict.’” Clayton, 235 S.W.3d at 778 (quoting Hooper,
214 S.W.3d at 16-17).
Analysis

Appellant argues that the evidence was insufficient to prove that he knowingly possessed
methamphetamine. According to Appellant, the State’s evidence merely established that he was
in the presence of contraband.
The Texas Penal Code defines “possession” as “actual care, custody, control, or
management.” TEX. PENAL CODE ANN. § 1.07(a)(39) (West Supp. 2023). To prove unlawful
possession of a controlled substance, the State must prove that (1) the accused exercised actual
care, control, or management over the contraband and (2) the accused knew the substance was
contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). Because
contraband may be possessed by more than one person, the State need not prove exclusive
possession of the contraband. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985);
State v. Derrow, 981 S.W.2d 776, 799 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d). An
accused’s mere presence is insufficient to establish possession of contraband. Oaks v. State, 642
S.W.2d 174, 177 (Tex. Crim. App. 1982).
When the contraband is not in the defendant’s exclusive possession, additional independent
facts and circumstances may affirmatively link the defendant to the contraband. Nixon v. State,
928 S.W.2d 212, 215 (Tex. App.—Beaumont 1996, no pet.). A nonexclusive list of factors
relevant to knowing possession—or “affirmative links”—includes (1) the defendant’s presence
during the search, (2) whether the contraband was in plain view, (3) the contraband’s proximity
and accessibility to the defendant, (4) whether the defendant was under the influence of narcotics,
(5) whether the defendant possessed other contraband, (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 was present, (11) whether the defendant owned or had a
right to possess the place where contraband was 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 defendant’s conduct indicated consciousness of guilt. Tate v. State, 500 S.W.3d
410, 414 (Tex. Crim. App. 2016) (quoting Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim.

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App. 2006)). An “affirmative link” is “a shorthand expression of what must be proven to establish
that a person possessed a drug ‘knowingly or intentionally.’” Brown v. State, 911 S.W.2d 744,
747 (Tex. Crim. App. 1995). In other words, “the concept of an affirmative link is simply one way
to describe the sufficiency of circumstantial evidence to prove intent to possess drugs.” Brochu
v. State, 927 S.W.2d 745, 751 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d) (citing Brown,
911 S.W.2d at 747). “Although these factors can help guide a court’s analysis, ultimately the
inquiry remains that set forth in Jackson: [whether,] [b]ased on the combined and cumulative force
of the evidence and any reasonable inferences therefrom, . . . a jury [was] rationally justified in
finding guilt beyond a reasonable doubt[.]” Tate, 500 S.W.3d at 414 (citing Jackson, 443 U.S. at
318-19, 99 S. Ct. at 2789). “It is . . . not the number of links that is dispositive, but rather the
logical force of all the evidence, direct and circumstantial.” Evans, 202 S.W.3d at 162.
The jury heard evidence that McLean found methamphetamine in the pocket of the pants
Appellant was wearing. In addition, the jury heard evidence that although Appellant initially told
McLean someone else did his laundry, Appellant testified at trial that the pants he was wearing did
not belong to him. The jury was entitled to accept McLean’s testimony and to reject Appellant’s
testimony. See Penagraph, 623 S.W.2d at 343. Based on the combined and cumulative force of
the evidence and the reasonable inferences therefrom, we conclude that the jury was rationally
justified in finding beyond a reasonable doubt that Appellant knowingly possessed
methamphetamine. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Tate, 500 S.W.3d at 414;
Brooks, 323 S.W.3d at 895; Evans, 202 S.W.3d at 162; Poindexter, 153 S.W.3d at 405; Brown,
911 S.W.2d at 747; McGoldrick, 682 S.W.2d at 578; Brochu, 927 S.W.2d at 751; see also TEX.
HEALTH & SAFETY CODE ANN. § 481.115(c). (West Supp. 2023). Accordingly, we overrule issue
one.

COURT COSTS

In issue two, Appellant contends the trial court erroneously assessed attorney’s fees against
him. Specifically, Appellant argues that the trial court found him indigent and appointed counsel
to represent him at trial, and he maintains that the record does not demonstrate that his indigent
status changed. The State concedes error.

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Standard of Review and Applicable Law

The Texas Code of Criminal Procedure authorizes the appointment of counsel to represent
indigent defendants. TEX. CODE CRIM. PROC. ANN. art. 26.04(a) (West Supp. 2023). “A defendant
who is determined by the court to be indigent is presumed to remain indigent for the remainder of
the proceedings in the case unless a material change in the defendant’s financial circumstances
occurs.” Id. art. 26.04(p) (West Supp. 2023); see Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim.
App. 2010). If, after a defendant is convicted, the trial court determines that the defendant has
financial resources that enable him to offset, in whole or in part, the costs of legal services provided
by a court-appointed attorney, the court must order the defendant to reimburse the amount it finds
he can pay. TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2023). But before a trial
court may order reimbursement of attorney’s fees by such a defendant, the court must determine,
based on facts in the record, that the defendant has the financial resources to enable him to offset,
in whole or in part, the costs of the legal services provided. Johnson v. State, 405 S.W.3d 350,
354 (Tex. App.—Tyler 2013, no pet.). If the record does not demonstrate that the defendant’s
financial circumstances materially changed, there is no basis for ordering reimbursement of
attorney’s fees. TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Mayer, 309 S.W.3d at 557; Johnson,
405 S.W.3d at 354. No objection is necessary to preserve a claim that there is no evidence of a
defendant’s ability to pay attorney’s fees. Mayer, 309 S.W.3d at 556.
Analysis

In the instant case, the judgment obligates Appellant to pay attorney’s fees in the amount
of $300. The record demonstrates that the trial court determined that Appellant is indigent and
appointed both trial and appellate counsel for Appellant. The bill of costs indicates that the court
costs assessed against Appellant totaled $554, which included attorney’s fees in the amount of
$300. Because the record does not show that the trial court ever concluded that Appellant’s
financial circumstances materially changed after the trial court found him indigent, no basis
supports the trial court’s order requiring Appellant to reimburse the attorney’s fees. See TEX.
CODE CRIM. PROC. ANN. arts. 26.04(p), 26.05(g); Mayer, 309 S.W.3d at 556-57; Johnson, 405
S.W.3d at 354. Accordingly, we sustain issue two and modify the trial court’s judgment, Order to
Withdraw Funds, and bill of costs by deleting the attorney’s fees in the amount of $300.

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CRUEL AND UNUSUAL PUNISHMENT

In issue three, Appellant argues that the life sentence imposed by the jury amounts to cruel
and unusual punishment because it is disproportionate to other sentences for the same offense and
the facts and circumstances of the crime committed. However, Appellant did not raise a timely
objection in the trial court asserting that his punishment was cruel and unusual, and he therefore
failed to preserve any such error. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App.
1996) (waiver of rights under Texas Constitution); Curry v. State, 910 S.W.2d 490, 497 (Tex.
Crim. App. 1995) (waiver of rights under United States Constitution); see also TEX. R. APP. P.
33.1(a); Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009) (“Preservation of error is a
systemic requirement that a first-level appellate court should ordinarily review on its own
motion[;] [and] . . . it [is] incumbent upon the Court itself to take up error preservation as a
threshold issue.”). Despite Appellant’s failure to preserve error, for the reasons explained herein,
we conclude that his sentence does not constitute cruel and unusual punishment.
“The legislature is vested with the power to define crimes and prescribe penalties.” Davis v.
State, 905 S.W.2d 655, 664 (Tex. App.—Texarkana 1995, pet. ref’d); see also Simmons v. State, 944
S.W.2d 11, 15 (Tex. App.—Tyler 1996, pet. ref’d). Courts have repeatedly held that punishment which
falls within the limits prescribed by a valid statute is not excessive, cruel, or unusual. See Harris v.
State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim.
App. 1973); Davis, 905 S.W.2d at 664. In this case, the jury convicted Appellant of possession of a
controlled substance and found that Appellant was previously convicted of two felony offenses. See
TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West Supp. 2023) (providing that offense of
possession of a controlled substance in an amount of one gram or more but less than four grams is a
third-degree felony); TEX. PENAL CODE ANN. § 12.34(a) (West 2019) (setting range of punishment for
third-degree felony at confinement for not more than ten years or less than two years); TEX. PENAL
CODE ANN. § 12.42(d) (West 2019) (providing that if it is shown on trial of a felony offense other than
state jail felony that defendant has previously been finally convicted of two felony offenses, defendant
shall be punished by imprisonment for life or for a term of not more than 99 years or less than 25
years). The life sentence imposed by the jury falls within the range of punishment set by the legislature.
Therefore, Appellant’s punishment is not prohibited as cruel, unusual, or excessive per se. See Harris,
656 S.W.2d at 486; Jordan, 495 S.W.2d at 952; Davis, 905 S.W2d at 664.
Nonetheless, Appellant urges this Court to perform the three-part test originally set forth in
Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). Under this test, the

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proportionality of a sentence is evaluated by considering (1) the gravity of the offense and the harshness
of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the
sentences imposed for commission of the same crime in other jurisdictions. Solem, 463 U.S. at 292,
103 S. Ct. at 3011. After the United States Supreme Court’s decision in Harmelin v. Michigan, 501
U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991), Texas courts and the Fifth Circuit Court of
Appeals modified the application of the Solem test to require a threshold determination that the
sentence is grossly disproportionate to the crime before addressing the remaining elements. See, e.g.,
McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992), cert. denied, 506 U.S. 849, 113 S. Ct. 146,
121 L. Ed. 2d 98 (1992); see also Jackson v. State, 989 S.W.2d 842, 845-46 (Tex. App.—Texarkana
1999, no pet.).
We are guided by the holding in Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed.
2d 382 (1980), in making a threshold determination of whether Appellant’s sentence is grossly
disproportionate to his crime. In Rummel, the United States Supreme Court addressed the
proportionality claim of an appellant who received a mandatory life sentence under a prior version of
the Texas habitual offender statute for a conviction of obtaining $120.75 by false pretenses. See id.,
445 U.S. at 266, 100 S. Ct. at 1135. The appellant in Rummel received a life sentence because he had
two prior felony convictions – one for fraudulent use of a credit card to obtain goods worth $80.00 and
the other for passing a forged check in the amount of $28.36. Id., 445 U.S. at 266, 100 S. Ct. at 1134-
35. After recognizing the legislative prerogative to classify offenses as felonies and considering the
purpose of the habitual offender statute, the Court determined that the appellant’s mandatory life
sentence did not constitute cruel and unusual punishment. Id., 445 U.S. at 284-85, 100 S. Ct. at 1145.
In the instant case, Appellant’s offense – possession of a controlled substance – is no less
serious than the combination of offenses committed by the appellant in Rummel, and Appellant’s
life sentence is no more severe than the life sentence upheld in Rummel. Thus, it is reasonable to
conclude that if the sentence in Rummel is not constitutionally disproportionate, neither is the
sentence imposed upon Appellant. Because we do not conclude that Appellant’s sentence is
disproportionate to his crime, we need not apply the remaining elements of the Solem test. See
McGruder, 954 F.2d at 316; Jackson, 989 S.W.2d at 845-46. Accordingly, we overrule issue
three.

DISPOSITION

Having overruled issues one and three and having sustained issue two, we modify the trial

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court’s judgment, Order to Withdraw Funds, and bill of costs to reflect that the amount of court
costs and fees is $254.00. In all other respects, we affirm the trial court’s judgment.

JAMES T. WORTHEN
Chief Justice

Opinion delivered September 30, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

SEPTEMBER 30, 2024

NO. 12-24-00061-CR

ALLEN RENE MOORE,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-1360-23)

THIS CAUSE came to be heard on the appellate record and briefs filed herein,
and the same being considered, it is the opinion that the judgment of the court below should be
modified, and as modified, affirmed.
It is therefore ORDERED, ADJUDGED, and DECREED that the judgment,
order to withdraw funds, and bill of costs of the court below are modified to reflect that the amount
of court costs and fees is $254.00. In all other respects, we affirm the trial court’s judgment; and
order that the decision be certified to the court below for observance.

James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals,
sitting by assignment.