### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00207
- CR

Alfred Chila, Appellant

v. The State of Texas, Appellee

FROM THE 391ST DISTRICT COURT OF TOM GREEN COUNTY NO. D
- 17
- 0773
- SB, THE HONORABLE CARMEN DUSEK, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
A jury convicted Alfred Chila of po s session of a controlled substance ( methamphetamine ) in the amount of one gram or more but less than four grams , a third

- degree felony offense

. See Tex. Health & Safety Code §§ 481.102( 6 ) , .115(a) , ( c)

. T he district court

assesse d Chila ’ s punishment at five years’ imprisonment and rendered judgment on the jury ’ s verdict

. O n a p p e a l , Chila contends that the Texas Constitution affords him a greater right to privacy than does the Unite d St a tes Constitution a nd that the district court had a “ sua sponte duty ” under the Texas Co nstitution to exclude “ e v i d e n ce illegally seized

. ” Chila also contends that the evidence at trial was insufficient to support his conviction

. We will affirm the d istr i ct

c ourt ’ s judgme nt

.2 BACKGROUND During trial, the jury heard a recording of a 911 call from an employee of Twin Peaks restaurant in San Angelo , who reported that a man

— later identified as Chila

— was asleep in a car in the parking lot with his car “ tu r ned on. ” The employee stated t hat he tried wak ing the

man “ to see if he was okay ” and “ if he needed a cab or some thing, ” but the man opened his eyes only briefly when the e mployee knock ed on the car ’ s window . The employee was unsure whether the man in th e c a r was “ dru n k, ” but the man had been “ there for a pretty good

. . .

amo unt of time, at least a few hours

. ”

San An gelo Police Officer Chase Hill testified that he responded to a call for service at Twin Peaks shortly after midnight . H e approached the onl y car left in the parking lot

. O n e person was inside the running car , asleep in the driver ’ s side seat . Off icer Hill walked to the driver ’ s side, shined his flashli ght inside, and then walked to the pa ssenger side. Finding the door unlocked, he got in t h e passenger side of the car , t urned the car off, and removed the keys from the ignition . He then returned to the driver ’ s side to contact Chila and a sk him to step o ut of the car

. Chila was lean ing with his left arm against the door

. W hen Officer Hi l l op en ed it, Chila woke up. A s Chila w as stepping out of the car , Officer Hill saw next to Chil a ’ s left foot “ a small, jewelry

- sized clear bag with a clear, crystal

- like substance in it

. ” The bag was in plain sight on “ the f

l o o r b o a r d o f t h e d r i v e r ’ s sid e , cl os e to the door. ” When as ked wheth er Chila made
any movem ents to try to conceal what was on the flo orbo ard, Officer Hill testified that Chila was moving “b oth of his feet

. ” Officer Hill noticed the “ bag gy ” when Chila moved his left foot, which was e i t her “ right on top of it or ri ght besid e it.”

Field testing on t he substance wa s pos itive for the presence of methamphetamine

. S ubse quent lab testing confirmed that the substance was methamphet amine. Chila stated that he3

had “ no objection ” w hen the met ha mp hetamine , ch ain

- of

- cust ody repor t, “ C ertificate of A nalysis
A ffidavit , ” and attached lab report were offered into evidence

. 1 See Tex. Code Crim. P roc. art. 38.41 (providing that certificate of analysis is admissible to establish results of laborat o ry anal ysis of phys ical eviden ce conduc ted by or for law enforcement agency without necessity of analyst ’ s personal appear ance in court )

. T he lab report showed that the substance in the bag submitted for testing contained 2.79 grams of methamphetamine.

At the conclusion o f the trial , t he ju r y found Chila guilty of possession of a controlled substance ( methamphetamine ) in the amount of one gram or more b ut less than four
grams . The district court assessed Chila ’ s pu nishment and rendered judgment on the j ury ’ s

v erd ict

. Thi s appeal f

ollowed.

DISCUSSION N o sua sponte duty to exclude evid e nce

Chila stated that he had “ [ n ] o obj ection” to admission of the methamphetamine evidence when it was offered at trial. Thus, a complaint about admission of that evi d ence was not preserv ed for ou r revi ew . See Swain v. State , 181 S.W.3d 359, 368 (Tex. Crim. App. 2005) ( conc l udi ng that defend ant “waived any error ” as to admission of certain e vidence by stating that he had no objections wh en it was offered during trial ) ; Bla ck v . State , 358 S.W.3d 8 23, 829

- 3 0 (Tex. App.

— Fort Worth 2012 , pet . ref ’ d ) ( concluding that defendant faile d to preserve his complaint about admission of methamphetamine evidence b y stating that he had no objection wh en State offered evidence of it d u ring tri al ) ; see als o Tex. R. App. P. 33.1 (a)(1) (requiring timely request, objection, or motion to tria l court to preserve co mplaint for appellate review )

.

1 Chila filed no pretrial motion to supp re ss evid ence of the methamp hetamine

.4 Attempting to avoid p rocedural default, Chila contends that the district court had

a “ sua spont e dut y ” u nder the Tex as Con stitution to exclude “ evidence i llegally seized ” (presumabl y the methamphetamine )

. See Tex. Cons t. art

. I, § 9 ( providing protection “ from all unreasonable seizures or searches ” )

. Specifically, h e claims that he was sei zed when Offi cer Hill order ed him o ut of his car b efore “ ev idence of any sort ha [d] been d iscover ed

. ” Chila also claims that t he district court , acting su a sponte , shoul d have excluded “ evidence illegally seized ”

— i.e., the methamphetamine

— because members of the “ j udic iary are bound t o prot ect

a nd d efend the princi ples of the Texas Constitution. ” Se e id. art. XVI, § 1 ( setting forth o ath of

o ffice for elected and appointed officers ).

C h ila relies heavily on Richardson v. State , 865 S.W.2d 944 (Tex. Crim. App.
1 993) , and Autran v. S tate , 887 S.W. 2d 31 (Tex. Crim. App. 1994) (plurality op.) , for hi s
conten tion that Articl e I, S ection 9 of the Texas Constitution affords greater protection of his right to privacy tha n does the Fourth Amendment to the United States C ons ti tuti on . S ee U.S

. Const. a mend. IV (provi ding protection “against unreasonable searches and seizures”); Tex. Const. art. I, § 9

. However , the C ourt of Cri minal Appeals has expressly “ declined to follow Richardson and Autran ” and noted that while it h as “ o ccas ionally held that Texa ns have g reater privacy rights under the Texas Constitution t han the United States Constitution, ” it has “ since largely brought that caselaw back into line with the Supreme Court ’ s interpretations of the Fourth Am endment. ” H

older v. State , 595 S .W.3d 691, 698 n.15 (Tex. Crim. App. 2020)

. Texas courts have rejected the notion that trial courts have a ny duty to exclude evidence on thei r own motion. See Lane v. State , 198 S.W.2d 1019, 1019 (Tex. Crim. App. 1947) ( rejecting de f e ndan t ’ s contention t hat trial court , on it s o wn motion, should have refu sed to allow defens e counsel to introduce certain evidence con taining he arsay that was harmful to defendant); see also5

Proenza v. State , 541 S.W.3d 786, 797 (Tex . Crim. App. 2017) (n o t ing that “ the respon sibility o f asserti ng for feitable rights belongs to the litigants, and not the trial judge ” ; that “ such rights will be unavailable on appeal if not urged at trial ” ; and that reviewing courts “ should not find error in a trial judge ’ s i n actio n wh en contempor aneous act ion is ne ither requested nor independently required of her ” ); R oberts v. State , No. 03

- 08

- 00345

- CR, 2010 Tex. App. LEXIS 2374, at * 7

- 9 (Tex. App.

— Austin Apr. 1, 2010 , no pet. ) (mem. op., not designated for publication) ( reje c ting defe n dant ’ s cont ention tha t trial c ourt “ committed ‘ fundamental error ’ by not sua spont e excluding certain evidence ” and concluding that there was no preserved error to review )

.

We conclude that Chila failed to preserve his complaint about the admi s sion of

“ evidence ill egally sei zed” and further, that th e district court had no “ sua sponte duty ” to exclude such evidence

. A ccordingly, we overrule Chila’s first issue. Sufficient evidence supported Chila ’ s conviction

Chila ’ s second issue challeng e s the suf fici ency of the eviden ce suppor ting h is conviction for possession of a controlled substance, methamphetamine , in an amount of one gram or more but less than four grams. See Tex. Health & Safety Code §§ 481.102(6) , .115(a), (c). 2 W hen conducting a legal s uffi ciency revie w, we consider all the evidence , whether
proper ly or improper ly admitted. Winfrey v. State , 393 S.W.3d 763, 767 (Tex. Crim. App. 2013) ( citing Con ner v. State , 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) ). Proof of the of fense of
p ossession of a control led subst ance r equire s a showing that the d efendant : (1) exercised control,

2 Chi l a’s sec ond issue b uilds on his first by a ddressing the inadmissibility o f evidence obtained from a n unreaso nable seizure prohibited by the Texas Constitution and stat ing that

“ [w ] ithout evidence of a crime, no r ea sonable jury could find [h im] guilt y beyond a r easonable do ubt

. ” However, a s we have d is cussed, Chila failed to preserve his com plaint about the admission of “evidence illegally seized

. ” We proceed to con sider whether the evidence admitt ed during t rial w as suff

icient to support C hila ’ s co nviction

.6

management, or care over the substance in question ; and (2) that he knew that the subst ance wa s contraband. I

d. § 481.115(a) ; Po indexter v. State , 153 S.W.3 d 402, 405 (Te x. Crim. App . 2005 ) , abrogated on other grounds by Robinson v. State , 466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015)

. “ P ossession ” requires “ actual car e, custody, control, or management

. ” Tex. Health & Safety Code § 481.002(38)

. The Pen a l Code pr ovid es that p oss ession “ i s a voluntary act if the possessor knowingly obtains or receives the thing po ssessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control. ” Tex. Penal Code § 6.01( b)

. Furt h er, “ [i] nt ent can be i nfer red f rom the acts, w ords, and conduct of the accused. ” Patrick v.
State , 906 S.W.2d 481, 487 (Tex. Crim. App. 1995) ; Meals v. State , 601 S.W.3d 390, 399 (Tex. App.

— Amarillo 2020 , pet. ref ’ d ) (noting that jury could have inferred that defen dant a ttempt ed
t o con ceal narcotics found on floorboard be neath defendant ’ s seat based on h is con duct of removing his right shoe and sock ).

W e determine whether there is sufficient evidence t o support a conviction by considering the c ombined a n d cumulati ve f orce of all admit ted evidence in the light most favorable to the verdict and de cid ing whether, based on that evidence and the reasonable inferences from it, a jury was rationally ju stified in finding guilt beyond a reasonable doubt. Jackson v . Virginia , 44 3 U.S. 3 07, 318

- 1 9 (1979) ; Tate v. State , 500 S.W.3d 410, 413 (Tex. Crim. App. 2016)

. Proving a defendant ’ s guilt beyond a reasonable doubt does not require disprov ing every conceivable alternative to his guilt. Tate , 500 S.W.3d a t 413

. R a ther, dire ct

e v i d e n c e and circu mstantial evidence are equally probative in a sufficiency review

. Id. As the

so le judge of credibility and weight to be attached to the testimony of witnesses, the jury may draw mul tipl e reasonable inferences from the fact s so long a s ea ch is su ppor ted b y the evidence presented at trial. Jackson , 443 U.S. at 326 ; Tate , 500 S.W.3d at 413

. If the record supports7

conflicting inferences, we presume that the jury re solved th ose conflicts in favor of the verdict. Jack son , 443 U .S. at 326 ; Tat e , 500 S.W.3 d at 413

.

“ A defendant ’ s mere presence is insufficient to establish possession. ” Tate , 500 S.W.3d at 413

. However, the jury may infer that a defendant intentionally or knowingly
p osses sed contraband , such as illegal narcotic s , when ther e ar e suff i cient ind epend ent fact s and

c ir cumst ances justif

y ing that inference

. Id. The Court of Cr imina l Appeals has cited a nonexclusive list of fourteen factors that may indicate a link between a d e fe ndant and t he knowing possessi on of con t raband :
(1) th e de fendant ’ s pr esen ce when a search is co nducted; (2) whether the contraband was in plain view; (3) t he defendant ’ s proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arre sted; (5) w hethe r the defen dant po ssessed o ther contraban d or narcotics when arrested; (6) whether the defendant made incr iminating statements when arrested; (7) whether the defendant at tempted to flee; (8) whether the defendant mad e furtive gestures; (9) whether the re was an odor of contraband; (10) wh ether o th er contraband or drug paraphernalia were present; (11) whether the defendant o wned or had the right to possess the place where th e drugs were found; (12) whether the place where the drugs were found was enclosed;8

(13) wheth er the de fendant was f ound with a lar ge a mount of cash; and (14) whether the conduct of the defendant indicated a conscio usness of guilt.

Id. (citing Evans v. State , 202 S.W .3d 158, 162 n.12 (Tex. Crim. App. 2006) ; Olivarez v . State , 171 S.W.3d 283, 291 (Tex. App.

— Ho uston [14th Dis t.] 2005, n o pe t. ) )

. The C ourt noted that while these factors may assist a court ’ s analysis , the ultimate inquiry is still whether a jury was rationally justified in finding a defendant ’ s guilt beyond a reasonable doubt b ase d on the combine d and cumulativ e force o f the evi dence and any reasonable infe rences therefrom

. Id. (citing Jackson , 443 U.S. at 318

- 19 ) ; see Evans , 202 S.W.3d at 162 ( “ I t is . . . not the number of links that is dispositive, but rather the logical force of all o f the ev idence, direct and circu ms tant ial

. ” ).

He re, several fact ors link C hila to the m ethamphetamine

. C hila was present when Officer Hill found “ a clear bag with a clear, crystal

- like substance ” that was later determin ed to be 2.79 grams of methampheta mine

. T he methamphetam ine was i n p l a i n v i e w , next to Chil a ’ s left foot o n the floorboard in front o f the drive r ’ s seat and close to the door

. See Lewis v. State , 664 S.W.2 d 345, 349 (Tex. Crim. App. 1984) (concluding that sufficient evidence support ed de fendant ’ s conviction, i n cluding th at “ a p artially full baggy of marihuana was found in the right rear fl oorboard ” nea r right rear side of car where defendant was seated )

. Chila was in close proxi mity to the methamphetamine , and it was accessible to him

. See R obi nson , 174 S.W.3 d at
326

- 27 , 33 0 ( concludin g that truck was “ enclosed space , ” that d efendant “ had control over the truck and its contents , ” and that contraband found in truck ’ s rear - wall compartment “ wa s within the vicinity of and easily accessi ble to ” defe ndant )

. Chila attempt ed t o co nce al what w as on the floorboard by moving “ both of his feet , ” and Officer H i ll noticed the baggy w hen Chila moved9

his left foot, which was either “ right on top of it or right beside it. ” Moreover, Chila was the only person i n side the car w here the me tham ph e t a m ine wa s found , and the car was an enclosed
space. See Deshong v. State , 625 S.W.2d 327, 328, 329 (Tex. Crim. App. 1981) ( concluding that sufficient evidence supported defendant’s conviction , including that contr aband wa s found inside vehicle , wh ich was “ an encl osed area ” ; that contraband was loca ted on “ floorboard directly in front of ” defendant ’ s seat ; and that “ the contraband was found on the same side of the car se at as that in which [defendant] was sitting ” ) ; Cisnero s v. State , 290 S.W.3d 4 57 , 46 7 ( Tex. App

. — Houston [14th Dist.] 2009 , pet. dism ’ d ) ( concluding that sufficient evidence supported defendant’s conviction, including that defendant “ was the only person in possession of the vehicle at the time the con traband was found ” )

.

We conclu de th a t t he cumula tive force of the evidence admitted during trial

— considered under the applic able standard of review for legal

- sufficiency challenges and with proper deference to the jury ’ s assessments of w itness credibilit y and re solution of any conflict s in t he evidence

— c ould have allowed the jury to reasonably infer that Chila e xercised actual care, custody, control, or management of one gram or more but less than four grams o f methamphetamine and that he kn ew that it was contrab and. See Tex. Health & Sa fety Co de § § 481 .002(38) , .102(6), .115(a) , (c) ; Tate , 500 S.W.3d at 413

- 14 ; see als o Jackson , 443 U.S. at 307, 318

- 19 , 326

. T hus, the evidence admitted at trial was sufficient to support Chila ’ s conviction

. We overrul e Chila ’ s second and final issue

.10 C ONCL USION We a ffirm the di strict court ’ s judgment of conviction.

__________________________________________ Je ff Rose, Chief Justice Bef ore Chief Justic e Rose, Justices Baker an d Triana Affirmed Filed: December 23, 2020 Do Not Publ ish