NO. 07-10-00049-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B JANUARY 31, 2012

BERNICE HUERTA, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2009-422,415; HONORABLE JI M BOB DARNELL, JUDGE

Before QUINN, C.J., a nd CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION Appellant, Bernice Huerta, appeals from her jury conviction of possession of cocaine and the resulting sent ence of ten years of impr isonment. Through three issues, appellant contends her conviction should be reversed. Disagreeing, we will affirm. Background Appellant was charged by a Februar y 2009 indictment with possession of cocaine in an amount of less than one gram. 1 She plead not guilty.

1 See Tex. Health & Safety Code Ann. § 481.115(b) (West 2011).2 Before trial, the court conducted a hearing on appellant’s motion to suppress evidence. The evidence pr esented at the hearing showed a police officer was tipped about drug activity at Room 17 of a Lubbock motel known as a frequent location for such activity. The officer watched the room and saw a car drive up, stop at the room for a minute and a half, and drive off. He conti nued to watch the car and observed a traffic violation. The officer stopped the car, a sked the driver to step out, and patted him down. The driver consented to a search of the car. A ppellant was in the passenger
seat. After he placed the driver in a police car, the officer asked appellant to get out of the car. Continuing his sear ch of the car’s interior, t he officer found a blue bandana between the front passenger seat and the door. Inside t he bandana he found a crack pipe with part of a burned Brillo pad in one end. Appellant’s purse was sitting on the passenger seat. Without seeking consent to search the purse, the officer opened it and found an Altoid’s tin containing items includ ing a razor blade and par t of a Brillo pad. On top of the car’s center console, the officer found a white rock substance. The officer’s field test showed the substance was co caine. At trial, a chemist confirmed this finding. The officer arrested both the driver and appellant. Motion to Suppress We begin with appellant’s thir d issue, by which she complains of the search of her purse. In a suppression hearing, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross , 32 S.W.3d 853, 855-56 (Tex.Crim.App. 2000). Under the applicab le standard, we will review the record3 evidence and all reasonable infer ences therefrom in the light most favorable to the trial court's ruling. Villarreal v. State , 935 S.W.2d 134, 139 (Tex.Crim.App.1996); Taylor v. State , 20 S.W.3d 51, 54-55 (Tex.App.--Texarkana 2000, pet. ref'd). In reviewing trial court rulings on matters such as motions to suppress , appellate courts afford almost total deference to trial court dete rminations of historical facts. Guzman v. State , 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). All other law-to-fact decisions are normally reviewed de novo , which includes a trial court's det ermination of reasonable suspicion and probable cause. Id.; see also Ross, 32 S.W.3d at 855-56. We will affirm the trial court’s ruling on any theor y applicable to the case. Amador v. State, 275 S.W.3d 872, 878-79 (Tex.Crim.App. 2009).

Probable cause to search exists when reasonably trustworthy facts and circumstances within the kno wledge of the officer on the scene would lead persons of reasonable prudence to believe that an instrum entality of a crime or evidence pertaining to a crime will be found. Dahlem II v. State, 322 S.W.3d 685, 689 (Tex.App.—Fort Worth 2010, pet. ref’d), citing Gutierrez v. State, 221 S.W.3d 680, 685 (Tex.Crim.App. 2007). An officer’s observation of contraband or evidence of a crime in plain view inside an automobile can be used to establish pr obable cause to seize the contraband or evidence. Dahlem II, 322 S.W.3d at 698, citing Colorado v. Bannister, 449 U.S. 1, 4, 101 S.Ct. 42, 44, 66 L.Ed.2d 1 (1980). If probable cause ju stifies the search of a lawfully stopped vehicle, it justifies the s earch of every part of the vehicle and its contents that may conceal t he object of the search. Dahlem II, 322 S.W.3d at 698, citing United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). See also Arizona v. Gant, 556 U.S. 332, 343 129 S.Ct. 1710, 1721, 173 L.Ed.2d 4854 (2009); Wyoming v. Houghton , 526 U.S. 295, 302, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999) (explaining that when "there is probable cause to search for contraband in a car, it is reasonable for police officers . . . to examine packages and containers without a showing of individualized probable cause for each one"). Appellant does not challenge th e stop of the vehicle or the search of the car’s interior which, as noted, was consensual. S he argues the driver’s consent to search of the car could not properly extend to the sear ch of her purse. Although the cocaine for which she was prosecuted was not found in her purse, appellant argues she was harmed by the introduction of the items f ound there because they served to provide additional links between her and the cocaine, bolstering the State’s case she possessed the drug. The State argues the officer had probable cause to believe evidence of illegal drug activity would be found in the purse, authoriz ing him to search it. We agree. The officer watched the car in which appellant wa s a passenger stop for a short time at a motel known for drug sales, in front of the room the officer had been told was the site of activity that evening. Although he could not see from his vant age point whether anyone left the car to enter the motel room, the in ference an occupant of the car had done so was reasonable. Those facts, coupled with location of the crack pipe wrapped in the bandana lying near the passenger door, gave the officer probable cause to believe additional evidence of drug activity would be found in the car’s interior. Appellant’s purse was a container one would reasonabl y believe to contain such evidence, authorizing the officer’s search of it as well. Dahlem II, 322 S.W.3d at 698-90. The trial5 court did not err in denying appellant’s motion to suppress. Accordingly, we overrule appellant’s third issue. Sufficiency of the Evidence In appellant’s second issue, she assert s the evidence was insufficient to prove she possessed cocaine because the State fa iled to prove joint possession. We evaluate the sufficiency of evidence suppor ting criminal convictions under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 894-95 (Tex.C rim.App. 2010) (plurality opinion). That standard requires that we view al l evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Salinas v. State , 163 S.W.3d 734, 737 (Tex.Crim.App. 2005). The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbe lieve all or part of a witness's testimony. Jones v. State , 984 S.W.2d 254, 257 (Tex .Crim.App. 1998). A person commits an offense if she intentionally or knowingly possesses a controlled substance in an amount less than a gram. Tex. Heal th & Safety Code Ann. § 481.115(a), (b) (West 2011). Possession means "actual ca re, custody, control, or management." Tex. Health & Safety Code A nn. § 481.002(38) (West 2010); Tex. Penal Code Ann. § 1.07(39) (West 2011) . A person commits a possession offense only if she voluntarily possesses the prohi bited item. Tex. Penal Code Ann. § 6.01(a) (West 2003). Possession is a voluntary act if the possessor k nowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to6 terminate his control. Tex. Pe nal Code Ann. § 6.01(b). Cont rol may be exercised jointly by more than one person. Cude v. State , 716 S.W.2d 46, 47 (Tex.Crim.App. 1986); Taylor v. State , 106 S.W.3d 827, 831 (Tex. App. --Dallas 2003, no pet.).

When the accused is not in exclusive c ontrol of the place where the contraband is found, the State must establish care, cu stody, control, or management by linking the accused to the substance through additional facts and circumstances. See Evans v. State , 202 S.W.3d 158, 161-62 (Tex.Crim.App. 2006); Poindexter v. State , 153 S.W.3d 402, 406 (Tex.Crim.App. 2005). Whet her the State's evidence is direct or circumstantial, its evidence of links must establish, to t he requisite level of confidence, that the accused's connection with the drug was more than just fortuitous. Poindexter , 153 S.W.3d at 405-06, citing Brown v. State , 911 S.W.2d 744, 747 (Tex.Crim.App. 1995); Park v. State , 8 S.W.3d 351, 353 (Tex.App.--Amarillo 1999, no pet.). The many factors by which an accused may, under the unique circumstances of each case, be sufficiently "linked" to th e contraband, include: (1) the defendant's presence when a search is con ducted; (2) whether the cont raband is in plain view; (3) the defendant’s proximity to and the accessibility of the contraband; (4) whether the defendant was under the influence of cont raband when arrested; (5) whether the defendant possessed other cont raband or narcotics when arre sted; (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 contraband; (10) whether ot her contraband or drug paraphernalia were present; (11) whether the def endant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was7 enclosed; (13) whether the defendant was found with a lar ge amount of cash; and (14) whether the conduct of the defendant in dicated a consciousness of guilt. Evans , 202 S.W.3d at 162 n.12; See Triplett v. State , 292 S.W.3d 205, 208 (Tex.App.--Amarillo 2009, pet. ref'd.) (listing numerous factors). These factors, however, are simply that: factors which may circumstantially establish the sufficiency of evidence offered to prove a knowing "possession." See Evans , 202 S.W.3d at 162 n.12 (exp laining that factors "are not a litmus test"). It is not the number of links that is dispositive, but rather the logical force of all the evidence. See id . at 162. The cocaine in this case was found lyin g on the car’s center console and was within appellant’s easy reach. The drug paraphernalia, the crack pipe, was found on the passenger side of the car where appellant was sitting. Additional items the jury could have considered related to drug use, the razo r blade and the Brillo pad contained in the Altoid’s tin, were in appell ant’s possession. Shortly before the items were found, the car had made a brief stop at a particular room of a motel known for dr ug activity. Viewing all of the evidence under the required standard, we conclude the jury was free to make rational in ferences from the evidence and to conclude appellant was in knowing possession of the cocaine. We overrule her second point of error. Failure of Court Reporter to Record Jury’s Verdict Appellant’s first issue concerns the absenc e from the reporter’s record of that portion of the trial during which the jury’s ve rdict of her guilt was read. Appellant does not contend the verdict was not read in open c ourt, nor does she contend there is any8 question concerning the jury’s verdict, 2 but contends the court reporter’s failure to include the reading of the verd ict after the guilt-innocence stage of trial in the record violates her right to due process because the failure was unexpl ained and no attempt was made to remedy the omission. The r eporter’s record contains the following: “Reporter’s Note: Verdict was received by t he Court out of the pr esence of the court reporter.” Nothing in the appellate record shows a ppellant objected to the court reporter’s absence when the jury verdict was read. Nor does the record show appellant took any other action to bring this omission to the a ttention of the trial court. Appellant’s issue thus has not been preserved for our review. See State v. Herndon, 215 S.W.3d 901, 906 (Tex.Crim.App. 2007); Valle v. State, 109 S.W.3d 508, 508-09 (Tex.Crim.App. 2003); Ham v. State, No. 07-09-00331-CR, 2011 Tex.Ap p. LEXIS 8572, at *7-10 (Tex.App.—Amarillo October 27, 2011, no pet.) (not yet released for publication) (all holding reporter’s failure to re cord proceedings is subject to error-preservation rules). Having resolved each of appellant’s issues against her, we affirm the judgment of the trial court.

James T. Campbell Justice

Do not publish.

2 The clerk’s record contains the jury ’s verdict form signed by its foreman.