James Hamey Bordages v. State of Texas--Appeal from 351st District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-00-222-CR

JAMES HAMEY BORDAGES,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 351st District Court

Harris County, Texas

Trial Court No. 817208

O P I N I O N

Appellant James Hamey Bordages was convicted by a jury of the offense of possession of cocaine in an amount less than one gram and was sentenced to seventeen years confinement after pleading true to the indictment s two enhancement paragraphs. He appeals, alleging in two points that the evidence was legally and factually insufficient to support his conviction. We will affirm.

Cocaine was found in a pocket of appellant s shorts. His specific complaint on appeal is that there was insufficient evidence proving that he knew what was in his shorts. According to appellant, because his own pants were soiled, he borrowed the shorts from a co-worker and changed his clothes only a moment before the arrest. Appellant s theory was contradicted by the testimony of a police officer, who testified appellant had been under surveillance and that he was not seen changing his clothes. During the arrest, appellant made false statements, including false identification, but never indicated the shorts he was wearing were not his.

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict. Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex. Crim. App. 2000); Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 975 (1993). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App.), cert. denied, 522 U.S. 844 (1997). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).

In determining the legal sufficiency of the evidence to show appellant's intent, and faced with a record that supports conflicting inferences, we "must presume even if it does not affirmatively appear in the record that the trier of fact resolved any such conflict in favor of the prosecution, and must defer to that resolution." Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).

The jury in appellant s case heard contrasting versions of the events leading to the arrest and heard counsel for both sides advance their respective positions during jury argument. Viewing the evidence in the light most favorable to the verdict, we rule the evidence was legally sufficient to prove the shorts appellant wore at the time of his arrest were his. Appellant was wearing the shorts, the shorts contained cocaine, and the jury was free to disbelieve appellant s claim that he had just put the shorts on in the street and had no connection to the cocaine found in the shorts pocket.

In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Evidence is factually insufficient if it is so weak as to be clearly wrong and manifestly unjust or the adverse finding is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, we must determine whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the verdict, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Id. In performing this review, we are to give due deference to the fact finder s determinations. Id. at 8-9; Clewis, 922 S.W.2d at 136. Consequently, we may find the evidence factually insufficient only where necessary to prevent manifest injustice. Johnson, 23 S.W.3d at 9, 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). As noted above, the jury heard two versions of the events leading to appellant s arrest. The jury s implicit determination that the shorts appellant wore were his is not greatly outweighed by contrary proof. In other words, the jury was free to disbelieve appellant s testimony that his shorts belonged to someone else. Giving due deference to the jury s determination, we are constrained to overrule appellant s factual sufficiency challenge.

Points one and two are overruled, and the trial court s judgment is affirmed.

DAVID L. RICHARDS

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Richards (Sitting by Assignment)

Affirmed

Opinion delivered and filed June 19, 2002

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