### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-04-00101- CR

Ear l D oug las K e nne dy, Jr ., App e lla nt

v. The State of Texas, App ellee

F ROM THE COUNTY COURT AT LAW NO. 2 OF WILLI AMSO N COUNTY NO. 03-1 352- 2, HO NORAB LE TIMO THY L. WRIGHT, JUDGE P RESIDING

M E M O R

A N D U M O P I N I O N Appellant Ea

rl Doug las Kenne dy , J r. was char g ed with posse ssion of two ounces or le ss o f m ari hu ana . Te x. He a lth & Sa fe ty Cod e Ann. § 4 81 .1 21 (We st 2 00 3) . H e ple a de d n ot guil ty
and wa ive d h is r ig ht t o a

jur y tr ia l. T he tr ia l ju dg e c on vic te d h im a nd se nte nc e d h im to 10 0 da

y s in jail probated f

or twelve months, and a $2,000 fine, $1,600 of which wa s probated. On appe al, Kenne dy

asser ts three points of er

ror. F irst, Kennedy

argues that the
se arc h o f t

he ve hic le in wh ic h he wa s a pa sse ng e r wa s ill e g a lly e xpand e d in vio latio n of the F ourt h Amendment of the Constit ution, and the evidenc e g ather ed as a result of the sear ch should have been supp res se d. Se c on d, Ke nn e dy a sse rt s th a t th e e vid e nc e is f a c tua lly and le g a lly ins uf fi c ie nt t o aff irmatively link him to the marihuana found by police. And third, Kenne dy argues that the seized contra band wa s improperly

sto re d and handle d prior to testing , thus depriving the re sults of any2

probative va lue. For the re asons stated be low, we ove rrule e ach of Kenne dy ’s points of err or and aff irm the conviction.
BACK GR OUND

At about 1:40 a.m., Kenne dy was riding in the front passeng er seat of a car drive n by his fr ie nd , Rod e ri c k John so n, wh e n Ro un d Ro c k p oli c e of fi c e r M art in F lor e s ma de a ro uti ne tr a ff

ic stop of the ca

r for a non-func tioning license plate lig ht. See Tex. Transp. Code Ann. § 547.322(f ) (West 20 03 ). Of

fi c e r F lor e s te sti fi e d th a t, u po n a pp ro a c hin g the c ar a

nd makin g c on ta c t w ith J oh n s o n , h e n o ti c e d th a t Jo h n s o n w a s e xtr e me ly n e r v o u s , a s e v id e n c e d b y th e f a c t th a t he wa s “consta ntly looking ba ck and f

orth” whe n Flore s asked him questions. Be cause J ohnson did not have his drive r’s lice nse with him, Flores went back to his patrol c ar a nd contac ted police dispatc h to verify J ohnson’s identity

and to find out whethe r he had a valid driver’s license or any outstanding
war rants. As F lores wa s waiting for dispatc h to reply , he observ ed Ke n n ed y making “fur

tive
movemen ts , ” “ b e n d in g o v e r r e a c h in g f

o r s o me th in g u n d e r

h is s e a t o r

a tt e mp ti n g to c oncea l something.” Flore s testified that, as a r esult of see ing the se movement s, he bec ame more aler t beca use he did not know whe ther Ke nnedy was re aching fo r a weapon or try ing to c oncea l something. H e testified that Kenne dy ’s movements are what police office rs are trained to w atch f or during traff

ic s tops to protec t their own safe ty
. Kenne dy testified that what F lores sawwas Ke nnedy putting on his shoe; he e arlier had re moved his shoe for the comfort of hi s rec ently sprained a

nkle. After additional office rs, i ncluding Offic er J ustin Carmichael, a rrived at the scene , Flore s approa ched the vehicle ag ain and a sked Johns on to exi t the car . Flore s questioned J ohnson and aske d fo r an d received Johnson’s consent to sear ch his vehicle . Flore s testified that J ohnsonJ ohnson told Flore s that he had known Kennedy for approxi mately four months and that 1 he wa s curr ently

employ ed by the s ame company as Ke nnedy , but that he did not know Kenne dy ’s l as tn a m e . Ke n n ed y

t o l d Fl o re s , o nt h e o t h er

h an d , t h at Ke n n ed y

h adk n o wn J o h n s o ns i n ce h i gh school, and that he had wor ked with J ohnson a long time ag o. A c c o r d in g to F lo r e s ’ s te s ti mo n y a “ b lu n t” is th e s tr e e t n a me f

o r a ma r ih u an a c ig ar e tt e . We 2 will refe r to the evide nce a s a cig are tte. Kenne dy

testified that he a dmitted to Flores that it wa s h i s ci gar et te bec ause F lores wa s 3 g etting a ng ry , and he thoug ht that if he admitted it was his, F lores would just “ say okay or whatever ,” beca use the c iga

rette was s o small. He also testified t hat he wa s afr aid that if the onboa rd ca mera showed that the cig are tte had fallen out of the jacke t he was wea ring , he might have been “ convicted of lying to a

police off

icer .” 3 re ma ine d n e rv ou s thr ou g ho ut the c on ve rs a tio n. F lor e s the n a pp ro a c he d Ke nn e dy

fo r t he fi rs t ti me and re quested that Ke nnedy exit t h e v eh i cle. After Ke nnedy g ot out of the ca

r, F lores questioned him about his relationship with J ohn s o n . Flore s testified that his suspicion was furthe r ra ised by discrepa ncies in the a

nswers g iven by

J ohnson and Ke nnedy

to Flore s’s questions. Flore s testified 1 that neither K ennedy

nor Johns on wer e fr ee to g o at that time. As Flore s beg an to s ear ch the vehicle, Office r C armicha el alerted Flores t hat he ha d found a c iga

rette on the g round nea

r Ke nnedy , which F lores identified a s a mar i huana “ blunt.” 2 Flore s questioned J ohnson and Ke nnedy as t o who the cig are tte belong ed to, and both denie d possessing it. However , afte r Flores t old them that he would g o back to his police c ar a nd revie w the on bo ard c a me ra to s e e wh o ha d dr op pe d it, Ke nn e dy a dmi tte d that the c ig are tte wa s his . A t tr ia l, howeve r, Ke nnedy

testified that the cig are tte did not belong to him, but that it may have f allen out of a ja cket he was we aringat the time that did not belong to him, which he had taken fr om the trunk of John so n’ s c ar. Flo res th en p la c e d K e nn e dy un de r a rr e st. F lor e s te sti fi e d th a t a pp ro xima te ly 3 fiftee n minutes elapsed be tween the time he stopped the c ar a nd Kenne dy ’s ar

rest.4 Shortly afte r Kenne dy was arr ested, a canine unit arrived, a nd the nar cotics dogmade
a po sit ive a le rt in at le a st two dif fe re nt p la c e s in sid e the ve hic le . O ne of the se pla c e s w a s und e rn e a th the passeng er se at where Ke nnedy had bee n sitti ng . Offic er Car michael then f

ound a plastic ba g wedg ed under

the passeng er se at and ha nded it to Flore s, who took custody of the ba g and identified the c on te nts to be mari hu ana . T he ba g of mari hu ana

and the mari hu ana

c ig are tte we re pla c e d in to a singl e evidenc e bag . Following the sea rch, Johnson was issued a tra ffic c itation and rele ased. Kenne dy was c harg ed with possession of two ounce s or less of mar ihuana. Kenne dy filed a motion to suppress all of the tang ible evidenc e g ather ed at the sc ene of t he traffic stop, and a

hear ing w as conduc ted pursuant to the motion. The judg e denie d the motion to suppress, and f

ollowing a

trial, found Ke nnedy

g uilty of possession of mar ihuana.
DI SCU SSIO N The M ot ion to Suppr e ss

I n his first point of error, Ke nnedy argues that his motion to s uppress the e vidence should have be en g rante d beca use F lores illeg ally

expanded the search of the vehic le in violation of his Fourth Amendme nt rig ht against unreasonable sear ches a nd seizures. Kenne dy

does not challeng e the initial stop of the vehicle but, r ather , argues that the purpose of the stop (war ning a bout the def ective lice nse plate lig ht) had be en ef fec tuated prior to F lores’s obtainingany specific or articula ble fa cts on which to base the continued de tention of the vehic le and its occ upants, and that in fac t Flore s never

had any thing that amounted to mor e than J ohnson’s nervousne ss and a “ hunch.” He als o argues that F lores improper ly used the initial stop as a tool to eng ag e in a “ fishing expedition” which led to the discover y of the mar ihuana.5 Whe n r e vie wi nga

tr ia l co ur

t’ s d e c isi on

on a mot ion to s up pr e ss, we g ive a lmo st complete de fer en ce t o the trial cour t’s deter mination of historical fac ts. Car mo uc hev . S

tate , 10 S.W. 3d 32 3, 32 7 ( Te x. Cr im. Ap p. 20 00 ); Sim ps on v . S

tate , 2 9 S. W. 3 d

3 2 4 , 3 2 7 ( T e x. Ap p. —H ou sto n [14 th D ist .] 20 00 , p e t. re f’ d)
. Whe re , as h e re , th e tr ia l c ourt did no t make e xplic it finding s of historical fac t, w e re view the e vidence in the light most favor able to the c ourt’s ruling
and a ss um e th at th e c ourt

ma de imp lic it f

ind ing s o f f

a c t su pp or te d in the re c or d th a t su

pp or t it s conclusion. We revie w de novo the court’s application of the l aw on the releva nt Fourth Ame ndment standards. Carmouche , 10 S.W .3d at 327–28.

At the outset, we must consider an issue not ra ised by either pa rty during the trial or
on a pp e a l: w he the r K e nn e dy ’s c la im i s b a se d o n a vio latio n o f h is ow n Fo ur th A me ndme nt r ig hts , or instead, whe ther Ke nnedy “see ks to vicariously

asser t the rig hts of” Johnson, t h e d ri v er of the vehicle. Le wis v . S

tate , 6 64 S.W. 2d

34 5, 34 7 (Tex . Cr im. Ap p. 19 84 ); se e Kot hev . S tate , 152 S.W .3d 54, 60 (Tex. Crim. App. 2004) (cour t may raise sta nding on own). An e sse nti a l e le me nt o f F ourt h A me ndme nt c la ims is pro of of a re a so na ble expect ation of privac y . Kothe , 1 52 S.W. 3d a t 59 . T hu s, “ [a]ny

de fe nd ant s e e kin g to s up pr e ss evidenc e obtained in violation of the F ourth Amendment must first show that he pe rsonally had a
rea sonable e x pectation of privacy that the g overnme nt invaded.” Id
. Significa nt to the prese nt case , “a passeng er in a vehicle does not have a l eg itimate expectation of privac y ” in the vehic le “whe re the passeng er f

ails to assert a posses s o ry i n t er est in the vehicle or the prope rty seized.” Mee ks v. Sta te , 692 S.W .2d 504, 510 (Tex. Crim. App. 1985).6 Th is d oe s n ot m e an, ho we ve r, that su c h a pa sse ng e r a uto matic a lly

la c ks sta nd ingto challeng e a ve hicle’s searc h under a ny circ umstances; a pa sseng er c an cha lleng e a ve hicle’s se arc h “if the se arc h resulted f

rom an infr inge ment (such as an il leg al detention) of the pa sse nge r’ s F ourt h Amendment rig h t s.” Le wis , 664 S.W .2d at 347–48. In Le wis , the police of fice r conduc ting the
sear ch re quested that the a ppellant, a passeng er of

the vehicle , leave the vehicle and the of fice r detained he r while the searc h was c onducted. Id . at 34 7. At tr ia l, t he a pp e lla nt a sse rt e d a

F ourt h Amendment claim, challeng ing both he r remova l f rom the vehicle and her

continued dete ntion after
a ce rtain point in tim e. Id. at 348. The Court of C riminal Appea ls stated t hat t he “releva nt question” as to whethe r the appellant had standingto assert a Four th Amendment claim is whethe r the sea rch of the ve hicle “w as come at by exploi tation of ap

pe lla nt’ s continued detention and removal from the
v e h ic le.” Id. T h e court found that the detention of the a ppellant was “ irrele vant to the offic er’ s decision to sear ch. Put another way , [t he off

icer ] could have let appe llant leave w ithout hampering his a bil ity to s e arch t he car . T hu s, in n o w ay wa s her detention nec essar

y to perfor m the sear ch.” Id. at 349. The court conclude d that the alleg edly illega l searc h was not direc tly cause d by exploi ting appella n t’ s c o n ti nu e d d e te n ti o n , an d th u s h e ld th a t th e a

p p e ll an t d id n o t h a v e s ta

n d in g to ma ke a Four th Amendment claim of a n unrea sonable sea

rch of the vehicle
. Id
. I n the pre sent case, bec ause he did not have any possessory

interest in the vehic le, Ke nn e dy ’s sta

nd ingto a sse rt a Fou rt

h A me ndme nt c la im i s d e pe nd e nt u po n th e po lic e ill e g a lly detaining him; the detention of J ohnson and the ve hicle is not releva nt. Id. at 348. Simil ar to the Le wis court, we find that the sea rch of J o h n s on’s vehicle was not direc tly cause d by

exploi ting Kenne dy ’s continued de tention. Kennedy was merely a passeng er of the vehicle, and had he bee n7

allowed to lea

ve, F lores’s a

bility to searc h J ohnson’s vehicle would not have be en af fec ted. We thus conclude that Kenne dy did not have standing to make a F ourth Amendment c laim as to the sear ch of the ve hic le , an d th a t he the re fo re do e s n ot h a ve sta nd ingto c on te st t

he a dmi ssi on

of the pla sti c bagof marihua

na. Howeve r, Ke nnedy

does have standing to challeng e the a dmission of the marihuana cig are tte. Although the marihuana cig are tte was discove red in plain view on the ground outsi de of the car , the cig are tte was not found in the se arc h of the c ar. The only evidenc e is that it fell out of Ke nn e dy ’s ja c ke t w he n h e e xi ted th e c ar whil e he wa s d e ta ine d. Ke nn e dy do e s h a ve sta

nd ingto challeng e the a dmission of any evidenc e discove red pur suant to his own detention. Se e id
. Even a ssuming that Ke nnedy had standing to a ssert a Four th A mendment claim for
a ll a sp e c ts o f h is m oti on

to s up pr e ss, the tr ia l c ourt did no t e rr wh e n it de nie d th e mot ion , b e c a

us e the sea rch c onducted by Flore s was re asonable under the Four th Amendment. A routine tra ffic stop is a detention, and thus must be rea sonable under the Four th A mendment of the Constitution. See Simpson , 29 S.W .3d at 327. To be reasonable , the t raf fic stop must be temporar

y and last no long er than i s nece ssary

to effe ctuate the purpose of the stop. Da v is v . S

tate , 9 4 7 S. W. 2 d

2 4 0 , 2 4 5 ( T e x. Cr im. Ap p. 19 97 ). Duri nga ro uti ne tr a ff

ic st op , an off

icer may de mand ide nti fi c a tio n, a

va lid dr ive r’ s lic e ns e , and pr oo f of ins ur anc e fr om the dr ive r, and a lso may c he c k f or ou tst and ingwa

rr ants
. Id. at 245 n.6. Once the purpose of the stop ha s been satisfied, the stop must not be used as a f ishing expedition for unr elated c riminal activity
. Simpson , 2 9 S
. W
. 3 d at 3 2 7 (c i t i n g Oh io v . R ob ine tte , 519 U.S. 33, 40–41 (1996) (Ginsburg , J ., concur ring )). Rather, any further detention must be based on articula ble fa cts. Id. “I n o t her w ords, once the purpose of the orig inal detention has be enSe e Sim ps on v . S tate , 2 9 S. W.3 d 3 24 , 3 29 (Tex
. Ap p. —H ou sto n [14 th D ist .] 20 00 , p e t. 4 re f’ d) (i mme diate e xit of c ar upo n be ing sto pp e d, a br up t and un sure ans we rs to o ff ic e r’ s q ue sti on s, nervousne ss, and misstatement of criminal history sufficie nt to give r ise to rea sonable suspicion); Ma rti ne z v . S tate , 29 S.W .3d 609, 612 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (offic er ha d rea sonable suspicion to detain ve hicle whe re dr iver did not know name of his passeng er a nd answe rs g ive n b y dr ive r and pa sse ng e r to of fi c e r a bo ut purp os e fo r t

ra ve l, f ina l de sti natio n, and

le ng th o f t

ri p c on fl ic te d) ; Ze rv os v . S

tate , 15 S.W .3d 146, 152–53 (Tex. App.—Texarkana 2000, pet. re f’d) (n e rv ou s b e havio r, re fu sa l to lo ok at off ice r whe n s pe akin g to h im, and c on tr a dic tor

y state me nts we re su ff ic ie nt ar tic ula ble fa c ts to ju sti fy

de te nti on of the ve hic le ); Or tiz v . S

tate , 930 S.W .2d 849, 856 (Tex. App.—Tyler 1996, no pet.) (rea sonable suspi cion s atisfied when defe ndant di d not make ey e conta ct with office rs, took a long time to answer que stions, was g ener ally nervous, a

nd g ave vag ue answ ers a

bout ty pe of w ork he did). 8 eff ectuated, any

continued dete ntion must be s u p p o r te d b y s o me a d d it io n a l rea sonable suspicion, that is, something out of the ordinary that is oc curr ing a nd some indication that the unusual cir cumstance is related to c rime.” Id
.

To establish rea sonable suspicion, an of fice r must be able to a

rticulate “ some thing more than an ‘inchoate and unpa rticularized suspicion or “ hunch.”’ ” U.S. v. Sok olow , 490 U.S. 1, 7 (1 9 8 9 ) ( qu o t i n g Te rry

v . O hio , 392 U.S. 1, 27 ( 1 9 6 8 ))
. T h e d etermination must be base d on
common-sense judgme nts and rational inferenc es about human be havior. Illinois v. W ardlow , 528 U. S. 1 19 , 1 25 (2 00 0) ; Y

ou ng v . S tate , 133 S.W .3d 839, 841 (Tex
. Ap p . — El Paso 2004, no pet.). Police office rs may rely on their own experience and training when making this deter mination. Y oung , 133 S.W .3d at 841. Texas courts have found that nervousne ss, abrupt and unsure a nswers to office r’s questions, and conflicting and contra dictory statements m ade by the driver and passe ng er
can c reate a r easona

ble suspicion sufficie nt to just ify further d etention. I n addition, “[f] urtive 4 movement during a police stop has been f ound to be a f

actor g iving r ise to rea sonable suspicion.”The rec ord sug g ests that, afte r Kenne dy was arr ested and the se arc h had conc luded, Flor es 5 cited Johnson for “fa ilure to ma intain f inancial responsibility ” and failure to car ry a valid drive r’s license. 9 Le Blan c v . S

tate , 1 38 S.W. 3d 60 3, 60 8 n. 5 (T e x. Ap p. —H ou sto n [1st Di st. ] 2 00 4, no pe t.) ; Zone v. Sta te , 84 S.W .3d 733, 738–39 (Tex. App.—Houston [1s t Dist.] 2002), aff’d , 1 1 8 S. W. 3 d 7 7 6 ( T e x. Crim. App. 2003) (def

endant being handed something and quickly walking awa

y afte r police a

rrived constituted furtive moveme nt givingrise to re asonable suspicion).

I n th e pre se nt c a se , O ff

ic e r F lor e s te sti fi e d th a t he ba se d h is s us pic ion of po ssi ble criminal ac tivity

on (1) Johnson’s nervousness, (2 ) Kennedy ’s furtive move ments, and (3) the conflicting statements made by J ohnson and Ke nnedy . Although e ach of these obser

vations alone might not have g iven Flore s rea sonable suspicion that Ke nnedy was e ng ag ed in cr iminal activity , we hold that, taken togethe r, t hey provided Flores with rea sonable suspi cion to continue to detain the vehicle a nd its occupants. We disag ree with Kennedy that t h e p u rp o s e of the stop had be en eff ectuated prior to F lores’s obse rvations g i v i n g ri s e to his rea sonable suspicion. Johns on’s
nervousne ss w as appar ent upon Flore s’s first contac t w ith Johnson, and Kenne dy ’s furtive movements wer e see n as F lores wa ited for the dis p at ch operator to ver ify J ohnson’s identity , a routine proc edure . Whil e Ke nnedy argues on appe al that the off icer had g iven a ve rbal wa

rning for the def ective ta illight, the re cord doe s not r efle ct that a ve rbal wa rning was g iven, at lea st not prior to t he c ir c ums tanc e s th a t g a ve ri se to F lor e s’ s r e a so na ble su sp ic ion
. F or

the se reas on s, we a lso 5 disag ree with K ennedy ’s contention that Flore s was using the stop as a tool to eng ag e in an imprope r “fishing expedition” for unre lated cr iminal activity
.Kenne dy ’s consent to searc h the vehicle was not re quired be cause the “pe rmission to search 6 wa s o bta ine d f

ro m a thi rd pa

rt y wh o po sse sse d a

uth or ity ov e r . . . the pr e mis e s o r e ff e c ts s ou g ht t o be inspec ted.” Se e W

ill iam s v . S

tate , 621 S.W .2d 609, 613 (Tex. Crim. App. 1981).

10 Signif i cantly , even if

Flore s did not have proba ble ca use to sear ch the ve hicle, J ohn s o n , th e o w n e r o f th e v e h ic le , f r e e ly an d v o lu

n ta r il y g a v e h is c o n s e n t to th e sear ch. See Simpson , 29 S.W .3d at 328. In Oh io v. Ro bin e tte , 519 U.S. 33 (1996), the Supre me Court held that a continued de tention and re quest to s ea rc h the vehicle following a routine tra ffic stop wa s
rea sonable whe re c onsent was g iven by t h e d ri v er, even thoug h no circ umstances we re note d that
w o u ld h a v e e s ta

b li s h e d r e a s o n a

b le s u s p ic io n o f c r im in a l a c tivity
. Id. at 39. Kenne dy does not
c ha lle ng e the vo lun tari ne ss o f Joh ns on ’s c on se nt, and the re is n o e vid e nc e in the re c or d to s ug g e st that the consent was other tha n voluntary
. Se e W

ill iam s v . S

tate , 62 1 S.W. 2d 60 9, 61 3 ( Te x. Cr im. Ap p. 19 81 ). We thu s c on c lud e that e ve n if the de te nti on of the ve hic le wa s n ot b a se d o n a rt ic ula ble 6 fac ts givingrise to a r easona ble suspicion of cr imina l activity , J ohnson’s consent c onstitut ed sufficie nt justi fication to continue the detention and pe rfor m the sear ch. Th e re fu sa l to su

pp re ss t he mari hu ana

c ig are tte is s imi larl y jus tif ie d. Th e c ig are tte was discove red in pla in vie w on the g round afte r it f ell out of the jacke t K ennedy was wea ring . The
on ly ba sis fo r t

he su pp re ssi on of the c ig are tte wo uld

be if it c a me to re st on the g ro un d p ur su ant t o an illeg al detention of K ennedy . As we ha ve d i s cu s sed, the de tention of J ohnson and the c ar w as
rea sonable, a

nd J ohnson consented to the sea rch of the ca r. More over, F lores ac ted prope rly when he orde red Kenne dy to e x it the car . Se e J os e yv . S tate , 981 S.W .2d 831, 840 (Tex. App.—Houston11

[14t h D ist .] 19 98 , p e t. r e f’ d) (“ B e c a us e an o ff ic e r’ s sa fe ty

may be thr e a te ne d b y

a pa sse ng e r’ s a c c e ss to w e a po ns in a n a uto mob ile , a

n o ff ic e r may , a s a matte r of c ours e , or de r a pa sse ng e r i n a

lawf ull y stopped vehicle to exit the vehicle pending completion of t he st op.”). Be cause the cig are tte was not discovere d pursuant to an illeg al detention or sear ch, the trial cour t did not abuse its discretion by ref using to suppre ss the cig are tte. We overrule Kenne dy ’s first point of er ror.
Suf fi ciency of the Evidence

I n Kenne dy ’s sec ond point of err or, he a rg ues that the ev i d ence was le g ally and fac tually insufficient to aff

irmatively link him to the m arihua na cig are tte and the ba g of marihua na found under

the seat. When a def

endant make s a challeng e to the sufficie ncy of the e vidence to sustain a criminal convic tion, the question presente d is whether a rational trier of fa ct could have found the essential ele ments of the off ense be y ond a re asonable doubt. J ac k so n v . V irg ini a , 443 U.S. 307, 324 (1 97 9) (l e g a l su ff

ic ie nc y ); Zun iga v . S

tate , 144 S.W .3d 477, 484 (Tex. Crim
. Ap p . 2 0 04) (f actua l sufficie ncy

). In revie wing the l egal sufficienc y of the e vidence , we r eview a ll the evidence in the light most favor able to t h e verdic t; we assume that the tr ier of f act r esolved c onflicts in the testimony , weig hed the e vidence , and dre w re asonable infere nces in a manner that s u p p o rts the verdic t. Gr iff

in v . S tate , 6 1 4 S
. W
. 2 d

1 5 5 , 1 5 9 (T ex . C ri m . Ap p . 1 9 8 1 ) ( ci t i n g Jack son , 443 U.S. at 318–19). In revie wing fac tual sufficie ncy , we perf orm a neutra l r eview of the evidenc e and set aside the ve rd ic t “on ly if the e vid e nc e su pp or tin g the ve rd ic t is so we a k a s to re nd e r t he ve rd ic t c le arl y
wr o ng and manife stly

unjust.” Zuniga , 1 4 4 S. W. 3 d a t 4 8 1
. A v e r d ic t is c le ar ly w r o ng and manifestly

unjust when it “shocks the c onscienc e” or “cle arly demonstrates bia s.” Se e id
.12 To prove unla

wful possession of a c ontrolled substance , the State mu s t prove that Kenne dy exercised car e, custody , control, or mana g ement over the substance , and that he kne w the substance w as contra

band. Br own v . S

tate , 9 11 S.W. 2d

74 4, 74 7 ( Te x. Cr im. Ap p. 19 95 ). B e c a us e Kenne dy was not in exclusive c ontrol or possession of the place wher e the marihuana wa s fo und,

“ the State mus t pr e se nt f

a c ts a nd c ir c ums tanc e s th a t affirmati vely link the acc used to the contra band in such a manner that it c an be conclude d that he had knowledg e of the contra band, as w ell as control over it.” Ha ll v . S

tate , 86 S.W .3d 235, 240 (Tex. App.—Austin 2002, pet. re f’d) (empha sis added). The e vidence may

be either direc t or circ umstantial. Id. at 240. I n Ha ll v . S

tate , we listed several fa ctors that tend to esta blish an aff

irmative link, including: (1) whether the contra band was in pla in vie w; (2) whether the acc used was the ow ner or dr ive r o f t he c ar i n w hic h th e c on tr a ba nd wa s fou

nd ; ( 3) wh e the r t

he c on tr a ba nd wa s c on ve nie ntl y
acc essible to the acc used; (4) whether the strong odor of marihuana was prese nt; ( 5) wh ether para pherna lia for usingthe contra band wa s found o n o r i n v i ew of the ac cused; (6) whether the phy sical condition of the a ccuse d indicated r ece n t co n s u m p tion of the contra band found in the vehicle; ( 7) whe ther tra ces of the contra

band we re f

ound on the ac cused; (8) whether conduct by

the
acc used indicate d consciousness of g ui l t ; (9) whe ther the a ccuse d had a spe cial conne ction to the contra band; (10) w hether

aff irmative statements c onnect the a ccuse d to the c o ntr a band; (11) whether the ac cused’ s fing erpr ints were on the contra band’s c ontainer; a

nd (12) whe ther the a ccused attempted to flee
. Id. a t 24 0–41 . Ra re ly do e s a ny sin g le fa c tor

c on ta in l og ic a l fo rc e “ su ff ic ie nt t o
su sta in a c on vic tio n b a se d o n c on str uc tiv e po sse ssi on ” ; ho we ve r, “ ‘t he numbe r o f f

a c tor s p re se nt i s less important than the log ical for ce of those fac tors, alone or i n combination, in establishing the13

elements of the offe nse.’” Id. (q u o t i n g Ma rti ne ts v . S tate , 88 4 S.W. 2d 18 5, 18 8 ( Te x. Ap p. —A us tin 1994, no pet.)).

Wit h respe ct to the marihua na cig are tte found o n the g round, we note Kenne dy ’s close proximit y t o t he cig are tte—he wa s standing two or three fee t away . Moreove r, Ke nnedy ’s extrajudicial confe ssion that the mari h u an a ci g are tte was his constituted an a ffirmative statement
connec ting him to the contra band. Se e Ro c ha v . S

tate , 16 S.W .3d 1, 4 (Tex. Crim. App. 2000). Of
course , an extrajudicial conf essi o n , s t an ding a lone, is not sufficient to support a c onviction; there
mus t b e i n d ep en dent evidenc e that the c rime ac tually occur red. Id . Once the cor

roboration
re qu ir e me nt i s sa

tis fi e d, ho we ve r, “ a

c on fe ssi on

to t he c ri me is, by it sel f, su ff ic ie nt e vid e nc e to support a convic tion.” Lan e v . S tate , 933 S.W .2d 504, 507 (Tex. Crim. App. 1 9 9 6 ). I n this case, Kenne dy ’s conf

ession that the marihua

na cig are tte belong ed to him w as co rr o b o rate d by the ind e pe nd e nt e vid e nc e of

the c ig are tte ’s pr oximi ty to h im. As to t he pla sti c ba g of

mari hu ana , w e a lso c on c lud e that the e vid e nc e a ff ir mativ e ly linked Kenne d y t o the bag . Flore s testified that he saw Kenne dy

making “fur

tive g estures” ; specific ally , rea ching down under his seat. We further note t hat t he bag w as found within Kenne dy ’s
rea ch in an enc losed space , acc essible to him. Although Ke nnedy g ave a n alternative explanation for his “f urtive movement” (that he was putting on his shoe ) and attempted to justi fy his confession that th e c ig are tte wa s h is (t hat he was tr yingto c a lm the po lic e of fi c e r) , h is t e sti mony

a t mo st prese nted a c hoice f

or the fa ct-finde r. We hold that, based upon the combined forc e of this e vidence , a rational trier of f act could find all t he essential elements of the charg ed offense bey ond a reasonable doubt. Considering14

all the evidenc e in t he li g ht most favor able to the verdict, the evidence is leg ally sufficie nt to support the j udg ment. We further hold that when a ll the evidence is considere d in a neutra l light, the finding of g uil t be y on d a

re a so na ble do ub t wa s not cl e arl y wr on g or manif e stl y un jus t, a nd thu s is fa c tua lly sufficie nt. Despit e Ke n n ed y ’s testimony at trial, we cannot c onclude that the ve rdict shocks the conscie nce or

clea rly demonstrates bia s. We overrule Kenne dy ’s sec ond point of err or.
Im pr ope r St or ag e of C ont r aba nd

Finally , Kenne dy

asser ts in his t hird point of err or th at t h e ci g are tte and the ba g of marihuana

wer e improper ly

stored and ha

ndled pri or to testing, thus de priving the re sults of any pr ob a tiv e va lue . K e nn e dy argue s tha t bec a

us e the re su lts we re “ va lue le ss a nd the pr e jud ic e a g a ins t the def endant” was of “ such g reat weight , ” t h e cigar ette and pla stic bagshould have be en inadmissible. I n making his a rg ument, Kenne dy points to t he testimony offe red at trial by

the expert who tested the marihuana , who s tated that the cigar ette and the plastic bagof marihua na we re store d in the same e vidence container for ne arly

ten months and wer e we ighe d an d tested tog ether . The expert also testified that if two items are separ ate piec es of e vid en ce, the y should normally

be pa c ka g e d in

se pa rate c on ta ine rs . Ke nn e dy ob je c te d to the a dmi ssi on

of the c ig are tte and

the pla sti c ba g , b a se d o n th e imp ro pe r s tor a g e and te sti ngof the e vid e nc e , in

the fo llo wi ngmann e r:
Your Honor , at this tim e we would object to the admission of this e vidence , the
. . . small cig ar pa

rt and the a ctual lea fy

substance w ere put in the bag togethe r. I believe it is possible that it c rossed c ontamination [ sic] of these things, the y ’ve be en stored in that . . . bag for a

long time, they ’re toge ther, they wer en’t a naly zed separately
.15

The c ourt overr

uled the motion and the evide nce w as admitted. The S tate responds that Kenne dy ’s obj ection at trial did not state a leg al basis, and thus was not proper ly

prese rved f

or our r eview. T he Stat e also arg ues that, althoug h Kenne dy objected to the a dmission of the cig are tte and plasti c bag, he fa iled to object to the admission of the la b r e po rt of fe re d b y the State thr ou g h it s e xpe rt wi tne ss, and

thu s d id not pr e se rv e any e rr or a s to the admission of the expert witness’s finding s.

Un de r T e xas l aw, e vid e nc e may be ex c lud e d if its pr ob a tiv e va lue is s ub sta nti a lly outweig hed by

the dang er of

unfair pr ejudice. T ex. R . Evid. 403. A trial judg e has br oad discre tion in ru lin g on

an o bje c tio n to the a dmi ssi on of e vid e nc e ba se d o n p re

jud ic e , a nd a re vie wi ngc ourt

wi ll
reve rse the trial court’s judgment “rar ely and only afte r a c lear

abuse of discretion.” Mo ntg

om e ry
v . S tat e , 810 S.W .2d 372, 389 (Tex. Crim. App. 1990).

To prese rve e rror

reg ardingthe admission of evidenc e, a de fendant must make a timely and specific objection that states the spec ific leg al g rounds for the ruling desired, unle ss the g ro un ds are a

pp are nt fr om the c on te xt of the ob je c tio n. Te x. R. A

pp . P. 33 .1 (a ); Ma rti ne

z v . S tate , 22 S.W. 3d 50 4, 50 7 (T e x. Cr im. Ap p. 20 00 ); Tur ne r v . S tate , 719 S.W .2d 190, 194 (Tex. Crim. App. 1986). “The purpose of

requiringthe objection is to g ive to the trial court or the opposing party the opportunity

to c orre ct the err or or remove the basis for the obje ction.” Martinez , 22 S.W .3d at 507. After revie wing the re cord, w e ag ree with the S tate that Kennedy ’s complaint was not prese rved f

or our r eview. K ennedy ’s objection wa s vag ue and indefinite and does not state any leg al g rounds on wh i ch t h e objection is based. I ndeed, a s the State argues, the objec tion does nothing more than c omment on the weig ht of the evidenc e prese nted. I n addition, be cause it appear s clea r16

fr om t he re c or d th a t the ob

je c tio n wa s in re fe re nc e to the a dmi ssi on of the c ig are tte and the pla sti c bag , and not the druglab’s test results, to the extent that Kenne dy arg ues the objection was a

bout the test results, we ove rrule this objec tion as it was not properly prese rved. Bo

y d v . S tate , 811 S.W .2d 105, 113 (Tex. Crim. App. 1991) (fa ilure to object wa ives revie w of issues on appe al).

We further note that, eve n if the cig are tte and plastic ba g wer e improper ly stored toge ther in the same evidenc e bag for near ly ten months, be cause we have found aff irmative links betwee n Kenne dy

and both the cig are tte and the plastic ba g , it is not critical to Ke nnedy ’s conviction
o r p u n i s h m en twh et h er

t h e t es tre s u l t s we re b as edo nm ar i hu an a f o u n d i nt h e c i gar et t e o r t h e b ag. B e c a us e th e c ig are tte and

the c on te nts of

the ba g we ig he d o nly

.1 6 o un c e s c omb ine d, the of fe ns e char g ed was possession of two ounces or less of marihua na; that offe nse is a Class B misdeme anor, the lowest cla ss for possession of mar ihuana. See Tex. He alth & Safety Code Ann. § 481.121(b)
. The test showing the pre sence of marihua na in the evidenc e bag proves that at least one of the two items—the cig are tte or the orig inal plastic b ag— co ntained mar ihuana. B eca use their c ombined weig ht is two ounces or less, the agg reg ation of t he two items did not increa se the off ense le vel or the punis hme nt r ang e . Suf fi c ie nt e vid e nc e a ff

ir mativ e ly lin ks Ke nn e dy to po sse ssi on of bo th i te ms, and thus the evide nce is suf ficient to c onvict him of possession of two ounces or

less of marihua

na reg ardle ss of wh et h er o n e of the items did not originally contain mar ihuana. Eve n if Kenne dy pr e se rv e d th is e rr or , a

nd e ve n if the c ourt e rr e d by fa ili ng to e xclu de on e of the ite ms, the e rr or

did not contribute to Kenne dy ’s conviction or punishment or aff ect his substantial rig hts. I t is therefor e harmless. Te x . R. App. P. 44.2. W e over rule Ke nnedy ’s third issue on appe al.17 CO NC LU SION We c on c lud e that th e tr ia l ju dg e did no t e rr in d e nyingKe nn e dy ’s mot ion to s up pr e ss the e vid e nc e . We fu

rt he r c on c lud e that th e e vid e nc e wa s b oth le g a lly and fact ually

su ff ic ie nt t o justify the conviction. Finally , we hold that Kenne dy ’s objection to the evide nce ba sed on pre judice was not pre serve d for our

revie w, and in any event, the a lleg ed improper storag e of the evidenc e wa s harmless. B eca

use we have overrule d Kenne dy ’s t hree issues on appea l, we affirm the trial court’ s judgme nt.

__________________________________________ David Pury ear , J ustice Be fore Chief J ustice L aw, Justi ces B . A. Smith and Pury ear Affir med Filed: May

5, 2005 Do No t Pu

bli sh