NUMBER 13-10-472-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

DONNIE SHIDAKER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 148th District Court 

of Nueces County, Texas.

 

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Vela 

Memorandum Opinion by Justice Vela

Appellant was indicted for the offense of possession of methamphetamine, a state 

jail felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2010). On June 21, 

2010, he was found guilty by a jury and was sentenced to two years in a state jail. The 

sentence was suspended, and appellant was placed on community supervision for a 

period of two years. On appeal, appellant challenges the sufficiency of the evidence. 
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We affirm.

I. BACKGROUND

On the evening of July 2, 2009, appellant was the front-seat passenger in a pick-up 

truck driven by Michelle Walters. Corpus Christi police officer, Joshua Swain, testified 

that he was patrolling the Flour Bluff area that evening with his partner, Officer Ross 

Murray. Officer Swain testified that he stopped the vehicle driven by Walters because it 

stopped beyond the stop sign at Lyre Bird and Quetzal Streets. According to Swain, 

appellant was a passenger in the vehicle. Swain stated that both he and his partner 

exited the patrol vehicle. Swain approached the driver’s side of the vehicle, and Murray 

approached the passenger side. Swain noticed that as they were pulling over the driver 

―kind of leaned down a bit,‖ and as they got closer to the vehicle both occupants were 

leaning down toward the center of the vehicle. Walters was unlicensed and had no 

insurance. Swain stated that appellant identified himself as Donny Shidaker. Appellant 

was also unlicensed. Swain asked them to step out of the car and secured them in the 

police car. The officers returned to the stopped vehicle that appellant had been riding in, 

looked into the car, and saw a clear plastic baggy on the ―transmission hump.‖ The 

baggy was in plain view. According to Swain, the drugs were within ―arm’s reach‖ of 

where appellant was seated. Swain said that both occupants had ―their hands down 

there in that general little area right there.‖ Both appellant and Walters were arrested for 

possession of methamphetamine. Swain said no fingerprints were taken from the 

baggie because of the difficulty in recovering them from a wrinkled plastic bag. Appellant 

and Walters were arrested, taken to jail, and the vehicle was impounded because there 
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was not a licensed driver to operate it. 

On cross-examination, Swain agreed that the drugs were accessible to both 

occupants and that he did not see either of them with the drugs in their hands. A 

pat-down search did not reveal the existence of additional drugs. There was no video of 

the traffic stop. Swain agreed that it is less probable that a passenger would know 

everything that is in a vehicle. 

Ross Murray, Swain’s partner, testified that as he approached the vehicle, both 

occupants ―were digging down on the floorboard. For us, that’s a furtive movement. It 

can be an issue of danger for us, so I stepped up the pace to get to the vehicle to see what 

was going on.‖ Murray stated that the drugs were found within arm’s distance of 

appellant. On cross-examination, Murray stated that he did not see exactly where 

appellant’s hands were when he approached the vehicle. 

Walters testified that on the day of the arrest both she and her boyfriend, Robert 

Chapman, had driven the vehicle. Walters denied that she had drugs in the vehicle, but 

testified that she pleaded guilty to the offense because she had three children and did not 

want to remain in jail pending a trial. She did not see any drugs in the vehicle earlier in 

the day when she was driving the vehicle. 

Chapman, who was the registered owner of the vehicle, testified that he had driven 

the vehicle to work that morning and that there were no drugs in the truck. He and 

Walters were the only ones who drove the truck.

II. STANDARD OF REVIEW AND APPLICABLE LAW

When reviewing the legal sufficiency of the evidence, we examine the evidence in 
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the light most favorable to the verdict to determine whether any rational trier of fact could 

have found the essential elements of the offense beyond a reasonable doubt. See 

Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Brooks v. State, 323 S.W.3d 893, 894 

(Tex. Crim. App. 2010). We therefore determine whether any rational trier of fact could 

have found the essential elements of possession of methamphetamine beyond a 

reasonable doubt. See Jacobs v. State, 230 S.W.3d 225, 229 (Tex. App.—Houston 

[14th Dist.] 2006, pet. ref'd).

We measure the sufficiency of the evidence by the elements of the offense as 

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 

(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 

1997)). Such a 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 describes the particular offense for 

which the defendant was tried. Id. 

The indictment alleged that appellant, ―on or about July 2, 2009, in Nueces County, 

Texas, did then and there intentionally and knowingly possess, by aggregate weight, 

including any adulterants or dilutants, less than one gram of METHAMPHETAMINE, a 

controlled substance in Penalty Group 1 of the Texas Controlled Substances Act.‖ See 

TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2010). To prove possession, the 

State was required to show that appellant (1) exercised actual care, custody, control or 

management of the substance; and (2) knew the matter possessed was contraband. 

Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); Triplett v. State, 292 
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S.W.3d 205, 208 (Tex. App.—Amarillo 2009, pet. ref’d); see also TEX. PENAL CODE ANN. 

1.07(a)(39) (West Supp. 2010) (defining ―possession‖). Regardless of whether the 

evidence is direct or circumstantial, it must establish that the defendant’s connection with 

the drug is more than fortuitous. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 

2006). The fact that a person, other than the accused, might have joint possession of the 

contraband does not require the State to prove that the defendant had sole possession of 

the contraband. Pointdexter, 153 S.W.3d at 412. There must be an affirmative link 

between the defendant and the drugs to the extent that the defendant knew of the drugs 

and constructively possessed them. Id. 

There is no set formula that an appellate court can use to determine if there are 

sufficient links to support an inference of knowing possession of drugs. Taylor v. State,

106 S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.). Each case must be examined 

according to its own facts on a case-by-case basis. Roberson v. State, 80 S.W.3d 730, 

736 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd). A factor that contributes to 

sufficiency in one situation may be of little or no value under a different set of facts. Id. 

Moreover, the number of links is not as important as the combined logical force of all the 

evidence tending to link the accused to the contraband. Evans v. State, 202 S.W.3d 

158, 162 (Tex. Crim. App. 2006).

III. ANALYSIS

By appellant’s sole issue, he argues that the evidence is insufficient to support the 

conviction. We will review the evidence under the standard set forth in Brooks. See

323 S.W.3d at 894. Our review is limited to a rigorous and proper application of the 
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Jackson v. Virginia legal sufficiency standard. Id. at 906–07, 912.

It is well settled that mere presence at a location where drugs are found is 

insufficient, by itself, to establish actual care, custody, or control of those drugs. Evans,

202 S.W.3d at 162. But, presence or proximity, when combined with other evidence, 

regardless of whether it is direct or circumstantial, may well be sufficient to establish that 

element beyond a reasonable doubt. Id. 

The testimony favorable to the prosecution in this case was that appellant made 

furtive gestures when stopped, the drugs found were within appellant’s arm’s reach, and 

two witnesses testified that the drugs were not theirs, and the two of them had been the 

only persons to occupy the vehicle that day other than appellant. Viewed in the light 

most favorable to the prosecution, the evidence was legally sufficient to support the 

conclusion that appellant knowingly and intentionally possessed the methamphetamine. 

We overrule appellant’s issue.

IV. CONCLUSION

The judgment of the trial court is affirmed.

ROSE VELA

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the 

17th day of November, 2011.