Opinion
No. 05-02-01184-CR.
Opinion Filed March 3, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause No. 366-80311-01. AFFIRMED.
Before Justices JAMES, BRIDGES, and RICHTER.
OPINION
The trial court convicted Jeffrey Bernard Bethel of possession of methamphetamine in an amount of one gram or more but less than four grams and assessed punishment, enhanced by two prior felony convictions, at ten years confinement. In his sole point of error, appellant contends the evidence was legally and factually insufficient to support the conviction. We affirm. At trial, the State's evidence showed Plano police officers David Waddell and John Britton stopped Kyle McMahan after seeing him commit a traffic violation. The officers discovered that McMahan's registration had expired. Two occupants were in the car — McMahan was driving and appellant was in the front passenger seat. Observing that McMahan was nervous, Waddell requested and received McMahan's consent to search the car. McMahan told Waddell that "there might be something in there that somebody else left in there." Appellant was smoking a Marlboro Ultra Light 100 cigarette when he exited the car. McMahan was not smoking, denied being a smoker, and did not possess any cigarettes or lighters. Waddell observed that appellant's eyes were glazed over or glassy. Britton saw that appellant's pupils were dilated. Both officers observed appellant's behavior was abnormal, andthey concluded he and McMahan appeared to be under the influence of narcotics. When the officers began searching McMahan's car, Waddell smelled an odor of marijuana. The officers found two glass pipes, used for smoking methamphetamine, inside a Marlboro Ultra Light 100 cigarette package that was stuffed between the center console and the passenger seat. The glass pipes were large enough to fill the cigarette package, leaving no room for any cigarettes. The pipes contained a residue and appeared to have been recently used. In the center console, the officers found a prescription bottle with pills; a bottle of "Superior N," an agent commonly used for cutting methamphetamine; an envelope containing marijuana; and a paycheck stub bearing McMahan's name. The officers discovered methamphetamine in the ashtray and a rock of methamphetamine behind the ashtray. Both McMahan and appellant were arrested on outstanding warrants and transported to the Plano jail. At the jail, Britton, an experienced narcotics officer, observed appellant's pupils were dilated and his hands were shaking. Britton testified these symptoms were signs of methamphetamine use. Britton discovered additional methamphetamine in McMahan's wallet. Britton testified the methamphetamine in the wallet was different and much darker in color than the white methamphetamine found in the car. After Britton found the methamphetamine in McMahan's wallet, McMahan told Britton that not all of the drugs belonged to McMahan-some belonged to appellant. Waddell also testified that McMahan had denied he owned all of the drugs found in the car. At one point, Waddell testified he could not remember if McMahan implicated appellant while at another point, Waddell agreed with the prosecutor's assertion that McMahan had said some of the drugs in the car belonged to appellant A total of 1.65 grams of methamphetamine and 6.57 grams of marijuana were recovered from McMahan's car. The defense called McMahan to testify as its sole witness. McMahan testified he had pleaded guilty to possessing all of the drugs found in his car on the night of the offense. McMahan also testified that if appellant knew of or possessed any drugs that night, McMahan was unaware of it. McMahan denied he and appellant had used drugs that evening. McMahan testified that although he did not smoke Marlboro Ultra Light 100s, his wife and some friends did. However, McMahan denied his wife used drugs. McMahan did not recall where he had acquired the methamphetamine, when he had placed it in his car, or how the marijuana got into the car. McMahan's account of his arrest differed markedly from the officers' account. Rather than a routine traffic stop, McMahan claimed he was surrounded and stopped by seven police vehicles, including canine units, and was handcuffed before any drugs were discovered. In reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). The trial judge, as fact finder, is the sole judge of the witnesses' credibility and the weight to be given their testimony. Joseph v. State, 897 S.W.2d 374, 376 (Tex.Crim.App. 1995). The trial judge may draw reasonable inferences and make reasonable deductions from the evidence. Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). In evaluating the factual sufficiency of the evidence, we determine whether a neutral review of all of the evidence, both for and against the finding, demonstrates the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or the proof of guilt although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). While we are authorized to disagree with the fact finder's determination, our review must be conducted with appropriate deference so as to avoid substituting our judgment for that of the fact finder, and any evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Id. at 7. To support appellant's conviction, the State must prove he exercised actual care, custody, control, or management over the methamphetamine and knew it was contraband. See Tex. Health Safety Code Ann. §§ 481.002(38), 481.115(a) (Vernon Supp. 2003); Guiton v. State, 742 S.W.2d 5, 8 (Tex.Crim.App. 1987). Because appellant was not in exclusive possession of McMahan's car, the State must present evidence affirmatively linking him to the methamphetamine. Brown v. State, 911 S.W.2d 744, 748 (Tex.Crim.App. 1995). No set formula of facts exists that would dictate a finding of affirmative links sufficient to support an inference of knowing possession of contraband. Porter v. State, 873 S.W.2d 729, 732 (Tex.App.-Dallas 1994, pet. ref'd). The number of links is less important than the degree to which the links, alone or in combination, tend to affirmatively link the accused to the contraband. Wallace v. State, 932 S.W.2d 519, 524 (Tex.App.-Tyler 1995, pet. ref'd). Possible affirmative links include: (1) whether the defendant was present when the drugs were found; (2) whether the drugs were in plain view; (3) whether the drugs were found in proximity to and accessible to the defendant; (4) whether the defendant was under the influence of drugs when arrested; (5) whether the defendant possessed other contraband or drug paraphernalia; (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 drugs; (10) whether the defendant owned or had the right to possess the place where the drugs were found; (11) whether the place the drugs were found was enclosed; (12) the amount of drugs found; (13) whether the defendant possessed weapons; and (14) whether the defendant possessed a large amount of cash. See Pettigrew v. State, 908 S.W.2d 563, 571 (Tex.App.-Fort Worth 1995, pet. ref'd); Washington v. State, 902 S.W.2d 649, 652 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd); Green v. State, 892 S.W.2d 220, 222 (Tex.App.-Texarkana 1995, pet. ref'd); Frierson v. State, 839 S.W.2d 841, 849 (Tex.App.-Dallas 1992, pet. ref'd); Chavez v. State, 769 S.W.2d 284, 288-89 (Tex.App.-Houston [1st Dist.] 1989, pet. ref'd). Appellant contends the evidence is legally and factually insufficient because the evidence does not affirmatively link him to the methamphetamine. Appellant contends the only proven affirmative link is his presence in the car. Appellant admits the fact finder could also find proximity and accessibility of the methamphetamine, that he was under the influence of narcotics, and that the methamphetamine was found in an enclosed place. Appellant contends, however, that the evidence of an enclosed space and proximity to the drugs does not affirmatively link him to the drugs because McMahan had equal access. Appellant contends the evidence he was under the influence of narcotics is insufficient, especially because the officers failed to inquire whether there were other reasons appellant might exhibit "glassy" eyes. Appellant contends the other commonly used linking factors are absent in this case. Appellant contends the cigarette package does not affirmatively link him to the methamphetamine because there was no room for any cigarettes in the package, McMahan had easy access to the passenger seat, and others with access to the car smoke Marlboro Ultra Light 100s. Appellant suggests the evidence points more to McMahan, the driver, as the person who possessed the methamphetamine. The evidence shows appellant was found in an enclosed automobile that exuded an odor of marijuana. A trained narcotics officer observed appellant exhibiting signs of intoxication by methamphetamine use. Methamphetamine was found within easy reach of appellant's seat, and glass pipes used to smoke methamphetamine, containing a residue, were found next to appellant's seat in a package for the brand of cigarettes appellant was smoking at the time of the traffic stop. The trial court evaluated the credibility of the witnesses. It was the trial court's prerogative to accept the officers' accounts as true and disbelieve McMahan. Having applied the appropriate standards, we conclude the evidence is both legally and factually sufficient to support the conviction. See Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 11. Accordingly, we overrule appellant's point of error. We affirm the trial court's judgment.