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

NO. 03
- 18
- 00571
- CR NO. 03
- 18
- 0057 2
- CR

Justin Allen Lee, Appellant

v. The State of Texas, Appellee

FROM THE 35TH DISTRI CT COURT OF MILLS CO UNTY NO S . 3234 & 3255 , THE HONORABLE STEP HEN ELLIS, JUDG E PRESIDING

M E M O R A N D U M O P I N I O N

Justin Allen Lee was indicted in trial court cause number 3234 for two counts of abandoning or endangering a child , enhanced by a prior final felony conviction, and separately indicted in trial court c a use number 3255 for possession of a controlled substance (methamphetamine)

. See Tex. Penal Code §§ 12.42(d) , 22.041 ; see also Tex. Health & Safety Code §§ 481.102(6), .115(a), (b). The indictments in both causes were joined for trial to the bench . T he d i strict court convicted Lee of all three offense s as charged , sentenc ing him to fifty years’ imprisonment on the child

- abandonment offenses and two years’ imprisonment on the possession offense with the sentences running concurrently

. In two issues on ap peal, Le e c hallenges the sufficiency of the evidence supporting his convictions. We will affirm the district court ’ s judgment s of conviction

.2 BACKGROUND 1
Lee and his wife, Kendra, lived with their daughter L.L., 2 and Kendra’s two sons, M.H. and G.H., in a rural location in Goldthwaite , Mills County , with out immediate neighbors. During the timeframe set forth in the indictment

— between October 2016 and March of 2017

— G .H. w as eleven years old and turning twelve , and M .H. w as twelve years old and turning thi rteen. During that time, Lee had an irregular work schedule “moving rigs” in New Mexico. Shortly before taking that job, sometime during the first eight months of 2016, Lee started using methamphetamine “on occasion.” K endra testified that in the si x m onths before the children were removed from the home , she and Lee were heavily involved in using methamphetamine. She stated that Lee smoked methamphetamine, that she primarily injected it, that they used together in the garage of the house, and that t he garage was where they kept their paraphernalia

. D uring th e time of their heavy usage, Kendra testified that she and Lee ha d to buy meth amphetamine at least once a week , and they made trips to San Angelo to purchase their drugs. Lee testi fied that he a nd Kendra used drugs together “maybe just a few times , ” but that he knew Kendra used methamphetamine even when she was not using it with him . He acknowledged having his “offs and ons” with methamphetamine use when the children were removed. Kendra testi fie d that she and Lee we nt to her cousin’s house in Coleman multiple times to use methamphetamine , leaving the boys at home alone. During these times M.H. would call Kendra and Lee, and sometimes no one would answer the phone

. Sometimes during the

1 The facts are summarized from the testimony and exhibits admitted at trial.
2 Five

- year - old L.L. was not involved in the underlying case ag ainst Lee.3 school ye ar, M.H. wo ke in the morning to find that only he and G.H. were home. On those days, M.H. and G.H. would get ready, care for the pets and animals on the property, and ride the bus to school. M.H. also agreed that it was “pretty common” for Kendra and Lee to come home after the children were asleep.

Children’s awareness of Lee’s drug use M.H. testified about indications of Lee’s drug use. M.H. recalled an incident on the first day of seventh grade when he saw Lee and thought that he was high on metha mph etamine: “[W]e were late and I don’t know, he [Lee] was just acting really weird. And then my mom said

— my mom was like

— they were arguing, I guess, and she said that he was high.” M.H. also told a C hild Protective Services (CPS) investigator 3 that one mor ning when Lee and Kendra did not know he was awake at the stairs in their home , he o verhear d his mother yelling at Lee, “Stop smoking meth in the garage, you idiot.” Additionally, M.H. testi fied that in a closet of the master bedroom he found a marihua na pipe , and he found anoth er in a drawer in the game room. M.H. further testi fied that G.H. showed him a “meth pipe” that G.H. found in a

soc k drawer in their “parents’ room.”
G.H. testified similarly about indications of Lee’s drug use. G.H. stated t hat he found marihuana inside a guitar

- shaped container in the house, a marihuana pipe in a dresser drawer in the master bedroom, and a “crack pipe” in the bathroom. He also testi fied that the garage had “[a] weed smell” that made him believe that Lee was us ing drugs.

3 The CPS investigator was an outcry witness. See Tex. Code Crim. Proc. art. 38.072.4 Children left alone for extended periods of time G.H. testified that when he was ten or eleven and M.H. was twelve or thirteen, they were left at home unsupervised multiple times for more than one day and night. Specifically, G.H. testi fie d t hat when he was ten or eleven he was left alone for two days . This was similar to Kendra’s testimony that in 2017, before being removed by CPS, G.H. was left alone from Friday night to Sunday morning. G.H. also recalled t hat when M.H. was twelve or t hir teen, M.H. was left alone while the rest of the family went to Dallas for four or five days. G.H. testified that from third grade on, he and M.H. were left alone overnight four or five times a year. G.H. stated t hat being left alone at night was “a li ttl e creepy” and tha t he would hear creaking sounds.
M.H. testi fied that he and G.H. were left alone for a weekend and that this occurred sometime during the six

- month period before they were removed. M.H. stated that “if they [Kendra and Lee] were go ne f or more than a day or two, they’d sometimes have our neighbor come check on us.” M.H. said that because Kendra and Lee were gone so regularly, he felt that the y did not really care about him. M.H. and G.H.’s paternal grandmother testi fied that appro xim a tely eight or nine months before they were removed by CPS (in March 2017), she was aware that M.H. and G.H. were left alone at their house and she made frequent phone calls from her home in San Angelo during the night and the next day to check on them.

Ef f

ects on children Multiple witnesses discussed the adverse effects they saw on the children. A CPS investigator testified that M.H. and G.H. each reported feeling scared when left home alone and5 that G.H. said he would carry a pocketknife or bat arou nd t he house because he was scared. The childrens’ grandmother testi fied that initially after M.H. and G.H. were removed and came to live with her that G.H. had a “little tremor” in his face whenever Lee came up in conversation and that M.H. suffered freq uen t headaches

. The childrens’ school principal testified that G.H. was withdrawn, would stutter and shake, and had low self

- esteem. The childrens’ school counselor testi fied that children who

are in unsupervised or neglectful situations at home can suf fer stress that affects their classroom performance and places them at risk for anxiety and depression.
A li censed professional counselor testi fied t hat children around the ages of twelve and thirteen who have been left home alone for significant periods of time may experience symptoms such as a tremor, headaches, stomachaches, and low self

- esteem, and that neglect can cause physiological changes and developmental problems in the brain

. A CPS supervisor testi fied that M.H. was diagnosed with adjustment dis o rder and child neglect and “was testing at a year behind his grade level , ” and that G.H. was diagnosed with adjustment disorder, child neglect, child physical abuse, and “was actually testing two levels behind his grade.”
Report to CPS and law
- enforce ment investigation A CPS report was filed on March 24, 2017 , alleging the abus e and neglect of the children. W arrants were also issued for the arrest of Kendra and Lee

. When deputies with the Mills County Sheriff’s Office arrived to serve the arrest w arran t s, Kendra was the only one home and met the deputies outside the front d oor of the house as she was stepping outside to smoke

. Kendra was asked to submit to a drug test and for permission to “do a walkthrough of the home6 to secure the safety of the childr e n that reside in the home

. ” Kendra was uncooperative , but s he admit ted to “binge

- using methamphetamine and controlled prescription drugs that were in the home that she was not able to provide a prescription for, as well as excessive drinking.” While s h eriff’s deputies were still outside the house, G.H. and L.L. arrived home and went inside where they remained without supervision

. At some point, a sheriff’s deputy accompanied Kendra inside while she retrieved a lighter, and later, CPS staff and another deputy followed her inside when she attempted to contact Lee. However, Kendra told the officers that “no way in hell” would she allow any body in the garage area of the home

. A sheriff’s deputy testified that there were specific concerns about the garage as an area where drugs might be located “based on reports and investigations that had already gone on.” After Kendra was a rrested, deputies accompanied her inside the residence to gather clothes for the children . A sheriff’s deputy saw two Xana x (Alpra z olam) pills on a short dresser in her bedroom. The deputy testified that the pills were unsecured and “very easily” accessible to a child reaching up and grabbing something off the top of the dresser. Kendra initially lied to the deputy about wha t type o f pills they were, and she was unable to provide a prescription for them. Sheriff’s deputies executed a search warrant for Lee’s residence after the children left with CPS and officers transported Kendra to jail

. The door from the house to the g arage w a s unlocked , and no key was ne cessary for the deputies to access it. The garage contained multiple children’s items including a little girl’s backpack, children’s clothing, books, children’s books, paints, a youth four

- wheeler, and a pair of child’ s safet y scissors. A baggi e containing 3.31 grams of marih uana was found next to some of the children’s books.7 Deputies also found and photographed d rug paraphernalia that was scattered throughout the garage, including numerous used and unused hypoderm i c needl e s, rubber tubing, marih uana pipes, a grinder, baggies, cotton swabs, torch lighters, rolling papers, tweezers, and
cut straws. The pipes had heavy marih uana residue and what appeared to be methamphetamine residue in the baggies and a container. M ore Xa n a x pills were found in the garage. Further, there were items i n the garage connected specifically to Lee, including a magazine with his name and address on it (found inside a container holding numerous items of drug paraphernalia) and a le tter bear ing his name. Subsequently, w hen a C PS investigator explained the nature of the allegations to
Lee , he stated that he was not M.H. and G.H.’s biological parent, and the allegations about them being left alone did not pertain to him because he had no lega l respo n sibility for them. At the conclusion of the bench trial , the district court convicted Lee of two counts of endangering a child and one count of possession of a controlled substance and imposed
sentences for all three offense s
. This appeal follow ed

.
DIS C USSION Standard of review Both of Lee’s appel late issues c hallenge the sufficiency of the evidence supporting his convictions. When reviewing such legal

- sufficiency complaint s , we consider the evidence in the light most favorable to the verdict and det e rmine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979); Nisbett v. State , 552 S.W.3d 244, 262 (Tex. Crim. App. 2018). The factfinder is the sole judge of the weight and credibility of the evidence. See Zuniga8 v. State , 551 S.W.3d 729, 733 (Tex. Crim. App. 2018). A factfinder may accept one version of the facts and reject another, and the factfinder may reject any part of a witness ’ s testimo n y. Febus v. State , 542 S.W.3d 568, 572 (Tex. Crim. App. 2018). We defer to the factfinder ’s resolution of conflicts in the evidence, weighing of the testimony, and drawing of reasonable inferences from basic facts to ultimate facts. Isassi v. St ate , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We apply the same standard to direct and circumstantial evidence. Id

. Circumstantial evidence is as probative as direct evidence in establishing a defendant’s guilt, and circumstantial evidence can alo ne be suf f icient to establish guilt. Nisbett , 552 S.W.3d at 262. Each fact need not point directly and independently to the defendant’s guilt if the cumulative force of all incriminating circumstances is sufficient to support the conviction. Id .; see Ma yberry

v. S tate , 351 S.W.3d 507, 511 (Tex. App.

— San Antonio 2011 , pet. ref’d ) ( considering direct and circumstantial evidence in affirming conviction s for child endangerment ); Gomez v. State , Nos. 01

- 18

- 00694

- CR, 01

- 18

- 00695

- CR, 2019 Tex. App. LEXIS 5705, at *19 (Te x . App.

— Houston [1st Dist.] July 9, 2019, no pet.) (mem. op., not designated for publication) ( concluding that circumstantial and direct evidence and reasonable inferences there from supported conviction for possession of methamphetamine).

Suff icient evid en ce supports Lee’s convictions for child endangerment Lee challenges the sufficiency of the evidence support ing his two conviction s for endangering a child . He complains specifically that: (1) the district court heard evidence about abandonm ent that oc cu rred outside the timeframe alleged in his indictment and (2) there is no evidence that when he abandoned his stepsons, he placed them in imminent danger.9 a. Timeframe for offense against M.H. Within his first issue, Lee points out that his in dictment all eg ed the timeframe for th e child

- endangerment offense s as “on or between the 1st day of October, 2016 and March 24,
2017.” Lee contends that M.H. ’s t esti mony about being abandoned at age eleven

— along with M.H.’s testimony about his birthdate

— i nvolves a ti me frame that would have preceded the dates alleged in Lee’s indictment and constitutes a variance between the charged offense and the proof at trial

. However, only a “material” variance that prejudices a defendant’s substantial rights will render the e vid ence insufficient. Ramjattansingh v. State , 548 S.W.3d 540, 547 (Tex. Crim. App. 2018). A material variance occurs when the indictment fails to adequately inform a defendant of the charge against him or subjects a defendant to the risk of being prosec ute d later for the same crime. Id . “ The bottom line is that, in a sufficiency review, we tolerate variances as long as they are not so great that the proof at trial ‘ shows an entirely different offense ’ than what was alleged in the charging i nstrument. ” Id . (quoting discussion of nonstatutory variances in Johnson v. State , 364 S.W.3d 292, 295 (Tex. Crim. App. 2012)). M.H.’s testimony does not reference an entirely different offense than the one that Lee was charged with committing against M .H. and does no t reflect a material variance. Rather, the trial record s hows that M.H.’s response about his age was an approximation and that he was recalling the first time, but not the only time , he was left home alone:
[Prosecutor:] Did they ever leav e you home a lon e overnight? [M.H.:] Yes, ma’am. [Prosecutor:] Let’s start with the first time you remember being home alone. How old were you? Do you remember?10 [M.H.:] Um, probably about eleven.

. . . . [Prosecutor:] When you and I were talking before, did you tel l me it was kind of difficult to remember the details of when you had been left? [M.H.:] Yes, ma’am. [Prosecutor:] Why is that? [M.H.:] It happened pretty often.
Further, M.H.’s brother G.H. testif ied that when he was ten or e leven 4 he was left

a lon e for two days , and that when M.H. was twelve or thirteen, M.H. was left alone while the rest of the family went to Dallas for four or five days. M.H. and G.H.’s paternal grandmother testified that M.H. and G.H. were left alone at t heir house approxima tel y eight or nine months before they were removed from the home by CPS (in March 2017). Kendra similarly testified that in 2017, before being removed by CPS, her eleven

- year - old son G.H. was left alone from Friday night to Sunday morn ing. Given th at M.H

. e stimated the age when he was first left alone as “probably about eleven,” that he had difficulty remembering the details of being left alone because of how frequently it happened , that other witnesses testi fied about the children bei ng left alone within th e timeframe set forth in the indict ment, and that we must consider the evidence in the light most favorable to the court’s verdict, we conclude that M.H.’s testimony does not show

a material variance as to Lee’s indictment or that th e evidence is insuff ici ent to support Lee’s child

- endangerment conviction as to M.H.

4 G.H. also provided his date of birth in his testimony.11 b. Imminent danger Also within his first issue, Lee contend s that there is no evidence that he placed his stepsons in imminent danger. A person commits the offense of e ndangering a child if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than fifteen years of age in imminent danger of death, bodily injury, or physical or mental impai rment. Tex. Penal Cod e § 22.041(c). The Penal Code does not define “imminent,” but the Texas Court of Criminal Appeals has defined it as “ ready to take place, near at hand, impending, hanging threateningly over one’ s head, menacingly near. ” Garcia v. St ate , 367 S.W.3d 683 , 6 89 (Tex. Crim. App. 2012) (quoting Devine v. State , 786 S.W.2d 268, 270 (Tex. Crim. App. 1989))

. “ A measure of the imminence of a danger is the nature of the response the danger should provoke. ” Hernandez v. State , 531 S.W.3d 359, 3 64

- 65 (Tex. App.

— Ea stl and 2017, no pet.)

. H ere, Lee contends that none of the dangers alleged at trial were “near at hand” for any period during which he abandoned the boys and “at best,” the State’s evidence showed only “a potential or future threat. ” In support of his co ntention, Lee points to two cases reversing child

- endangerment convictions because the danger to the children was not considered imminent

. See Millslagle v. State , 81 S.W.3d 895 , 898 (Tex. App.

— Austin 2002, pet. ref’d) ; Elder v. Stat e , 993 S.W.2d 229, 2 30 (Tex. App.

— San Antonio 1999 , no pet. )

. One case is distinguishable and the other is not precedential for this Court.
In Millslagle , a defendant left a three

- year - old child alone and unrestrained in a parked truck with open windows while the defendant us ed methamphetamine in the restroom of a sandwich shop

. See Millslagle, 81 S.W.3d at 898

. U n like the location of the defendant’s drug12 use in Millslagle , the evidence here showed that Lee used methamphetamine in the garage of the hom e where he and the c hil dren resided

. Cf. id . (noting that defendant’s drug use did not expose child to imminent danger as long as defendant stayed in sandwich shop’s restroom and away from child in truck). The garage of Lee’s home was an area that the ch ildren could access whi le left alone , law

- enforcement officers found the garage unlocked, and they found several children’s items in the garage.
In Elder , the defendant ’s daughter was assaulted by a man that the defendant had allowed to move in to her h ome , knowing that he was on probation for indecency with a child. Elder , 993 S.W.2d at 230 (characterizing evidence at trial as “scant”)

. However, Elder is not binding precedent for this C ourt and does not align with subsequent decisions from the San
Anto nio Court of Appeals. S ee Sapp v. State , No. 02

- 17

- 00161

- CR, 2018 Tex. App. LEXIS 2801, at *9 n.6 (Tex. App.

— Fort Worth Apr. 19, 2018 , no pet. ) (mem. op., not designated for publication) (similarly distinguishing Elder ) ; Meza v. State , 549 S.W.3d 672, 687

- 88 (Tex. App.

— San An ton io 2017 , no pet. ) (concluding that child was in imminent danger of bodily injury based on defendant’s consumption of central

- nervous - system

- depressing drug or alcohol and leaving child unsupervised in parking lot ) ; Mayberry , 351 S.W .3d at 510 (concludin g t hat when defendant allowed her underage son , who was not licensed driver , to operate vehicle at night with more passengers than there were available seats, danger to children was imminent )

. Here, when announcing its ruling to Lee at the close of the g uil t

- innocence phase,
t he district court noted that the “garage was a house of horrors” and that “the drug paraphernalia is stuff that you and your wife had both been utilizing.” The district court found that “the to tality of the cred ible evidence shows t hat the State has met its burden. ” Specifically, the court found that the State “prove[d] beyond a reasonable doubt physical or mental impairment,” and that13 “ placing of the children there alone on repeated occasions with the drug para phernalia and the oth er things in the environment did place them in imminent danger

. ” Evidence supporting th e court’s determination that the children were placed in imminent danger of physical or mental impairment included:

• Kendra’s testimony that Lee smo ked methamphetamine, tha t she primarily injected it, that they used together in the garage of the house, and that the garage was where they kept paraphernalia;

• Kendra’s testimony that in the six months before the children were removed, both she and Lee we re heavily involved i n u sing methamphetamine;

• Lee’s testimony that he and Kendra used drugs together “maybe just a few times” and that he knew Kendra used methamphetamine even whe n she was not using it with him;

• Lee’s testimony that he had his “offs and ons” with methampheta min e use when the children were removed;

• G.H.’ s testimony that he found marihuana in side a guitar

- shaped container in the house , a marihuana pipe in a dresser drawer in the master bedroom, and a “crack pipe” in the bathroom;

• M.H.’s t estimony that he foun d a marihuana pipe in the master bedroom closet and another in a drawer in the game room;

• M.H.’s testimony that G.H. showed him a “meth pipe” that G.H. found in a sock drawer in their parents’ room;

• G.H.’s testimony that the garage h ad “[a] weed smell”;

• G .H.’s testimony that when M.H. was twelve or thirteen and G.H. was ten or eleven, they were left at home unsupervised multiple times fo r more than one day and night;

• G.H. ’s testimony that when he was ten or eleven he was left alone for two days ;

• G.H. ’ s t estimony t hat when M.H. was twelve or thirteen, M.H. was left alone while the rest of the family went to Dallas for four or five days ;

• G.H.’s testimony that from third grade on, he and M.H. were left alone overnight four or five ti mes a year ;14 • M.H. ’s t est i mony that he and G.H. were left alone for a weekend and that this occurred sometime during the six

- month period before they were removed ;

• Kendra’s testimony that in 2017, before being removed by CPS, her eleven

- year - old son G.H. w as left alone from Fr ida y night to Sunday morning;

• M.H. and G.H.’s grandmother’s testimony that M.H. and G.H. were left alone at their house approximately eight or nine months before CPS removed them from the home (in March 2017);

• M.H.’s testimony that b ecause his mother and Le e were gone so regularly, he felt that they did not really care about him ;

• G.H.’s testimony that being left alone at night was “ a little creepy” ;

• The school principal’s testimony that G.H. was withdrawn, would stutter and shake, a nd had low self

- estee m;

• The grandmother’s testimony that initially after M.H. and G.H. were removed and came to live with her that G.H. had a “little tremor” in his face whenever Lee came up in conversation and that M.H. suffered frequent headaches;

• The CPS investigator’s te sti mony that M.H. and G.H. each reported feeling scared when left home alone and that G.H. s aid he would carry a pocketknife or bat around the house because he was scared;

• The school counselor’s testimony that children in unsupervised or neglectful situat ion s at home can suffer stress that affects their classroom performance and places them at risk for anxiety and depression;

• The licensed professional counselor’s testimony that children around the ages of twelve and thirteen who have been left ho me alone for significant periods of time may experience symptoms such as a tremor, headaches, stomachaches, and low self

- esteem, and that neglect can cause physiological changes and developmental problems in the brain;

• The CPS supervisor’s tes timony that M.H. was dia gnosed with adjustment disorder and child neglect and “was testing at a year behind his grade level”; and

• The CPS supervisor’s testimony that G.H. was diagnosed with adjustment disorder, child neglect, child physical abuse, and “w as actually testing t wo levels behind his grade

. ”15 We conclude that the evidence presented at the bench trial and reas onable inferences drawn from such evidence , viewed in the light most favorable to the verdict , we re sufficient for a rational trier of fact to have found be yon d a reasonable doubt that Lee , by act or omission, engage d in conduct that placed M.H. and G.H. , children under age fifteen, in imminent danger of physical or mental impairment. See Tex. Penal Code § 22.041(c); Jackson , 443 U.S. at
319 ; Nisbett , 552 S. W.3 d at 262. Contrary to Lee’s assertion, the i mminent

- harm element of a child

- endangerment offense can be based on a defendant’s pattern of conduct over time ; and further , the district court could have disbelieved testimony suggestin g that a locked door 5
pr evented the children from accessing the methamphetamine, syringes, and other drug paraphernalia in the garage of their home

. See Febus , 542 S.W.3d at 572 ; Hernandez , 531 S.W.3d at 364

- 6 6 (concluding that there was sufficient eviden ce of imminent danger to children based on conduct that “was not a momentary lack of judgment but, rather, a continuing course of conduct of prolonged duration”); see also State v. Clampitt , No. 05

- 15

- 00901

- CR, 2016 Tex. App. LEXIS 7599, at *20 (Tex. App.

— Dallas July 15, 2016 , pe t. ref’d ) (mem. op., not designated for publication) (noting that Texas courts have concluded that “ leaving dangerous items such as weapons or drugs within access of an unsupervised child plac es the child in imminent danger”); Manni ng v. State , No. 05

- 1 1

- 0 0867

- CR, 2013 Tex. App. LEXIS 5364, at *4 (Tex. App.

— Dallas Apr. 30, 2013, no pet.) (mem. op., not designated for publication) (rejecting defendant’s contentions that danger to child was “only potential,” not imminent, and that ther e was no evidence of chi ld being left alone in proximity to drugs). Accordingly, w e overrule Lee’s first issue.

5 Kendra’s testimony was that the door from the house to the garage was kept unlocked during the d ay and lock ed when the children came home.16 Sufficient evidence supports Lee’s conviction for possession of a controlled substance In his second issue, Lee challenges the sufficiency o f the evidence to sup por t his conviction for possession of a controlled substance

. A p erson commits an offense if he “ knowingly or intentionally possesses ” methamphetamine in an amount of less than one gram. Tex. Health & Safety Code §§ 481.102(6), .1 15(a), (b). Proving unla wful possession of a controlled substance requires showing that the defendant exercised control, management, or care over the substance and that the defendant knew the matter possessed was contraband. Poindexter v. State , 153 S.W. 3d 402, 405 (Tex. Cri m. A pp. 2005), abrogated on other grounds by Robinson v. State , 466 S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015) ; see Tex. Health & Safety Code § 481.002(38) (defining “possession” under Texas Controlled Substances Act as “actual care , custody, control, o r

ma nagement” ). When , as here, a defendant does not have exclusive possession of contraband , a fact finder may nonetheless infer that the defendant intentionally or knowingly possessed the contraband if there are sufficient independent facts and circumstan ces justifying such an inference. Tate v. State , 500 S.W.3d 410, 413

- 14 (Tex. Crim. App. 20 16 ). The Court of Criminal Appeals has s ummarized a non

- exclusive list of factors that “ may indicate a link connecting the defendant to the kn owing possession of c ontr aband ” :
(1) the defendant ’ s presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant ’ s proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influen ce of narcotics when arre sted; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant ma de furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were17 found; (12) whether the place wh ere the drugs were fo und was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indi cated a consciousness of guilt.

Id . at 414

. Here, Lee contends that the evidence is insufficien t because he was not in
pr oximity to the contraband when it was found and because the paraphernalia with the residue was found in the garage that both he and Kendra used and controlled. Lee states that “the contraband is equally likely to be Kendra’s and [his].” This argumen t is not persuasive because joint possession is sufficient to support a conviction. It is well settled that “an accused may with another or others jointly possess dangerous drugs or narcotics and that such possession need not be exclu sive.” McGoldrick v. Stat e , 682 S.W.2d 573, 578 (Tex. Crim. App. 1985); see D e La
Torre v. State , 583 S.W.3d 613, 619 (Tex. Crim. App. 2019) (recognizing that statutory definition of possession does not preclude theory of joint possession

— “the possibility of si multaneous possessio n of t he same narcotics by multiple people”); Poindexter , 153 S.W.3d at
4 12 (observing that “[t]he mere fact that a person other than the accused might have joint possession of the premises does not require the State to prove that the d efendant had sole
po s sessi on of the contraband, only that there are affirmative links between the defendant and the drugs such that he, too, knew of the drugs and constructively possessed them ”), abrogated on other grounds by Robi nson v. State , 466 S.W.3d 166 (Tex. Crim. App. 2015 ).
Here , w hile some of the l inking factors identified by the Court of Criminal Appeals do not apply, other linking factors are present and connect Lee to the methamphetamine : Lee owned or had the right to possess the garage wher e the methamphetamine was found ; the methamphetamine was found in side the enclosed garage of his house ; t he methamphetamine in18 the garage was in plain view; other drug paraphernalia w as present in the garage ; and Lee would have had full access to the metha mphetamine in the gar age o f his house

. See Tate , 500 S.W.3d
at 414 ; see also Gomez , 2019 Tex. App. LEXIS 5705, at *11

- 12, *19 (affirming conviction for methamphetamine possession for defendant who did not have exclusive possession of apartment where metha mphetamine was found and n oting that “t he absence of some links is not evidence of innocence that weighs again st those links that are present”)

. Further, Kendra testified that Lee smoked methamphetamine, that she primarily injected it, and that they us ed together in the ga rage
. Lee testi fied that he had his “offs and ons” with methamphetamine use when the children were removed

. A n outcry witness testified that M.H. overheard his mother yelling at Lee , “Stop smoking meth in the garage, you idiot.” I te ms in the g arage were spec ifically connected to Lee, including a magazine with his name and address on it ( found inside a container holding numerous drug paraphernalia items ) and a letter bearing his name

. Finally, M.H. testified about an incident on the first day of seventh grade when he saw Lee and thought that Lee was high on methamphetamine: “ [Lee] was just acting really weird. And then my mom said

— my mom was like

— they were arguing, I guess, and she said that he was high.” On this record, we conclud e that the district c ourt could have reasonably inferred that Lee exercised actual care, custody, control, or management of less t han one gram of methamphetamine found in the garage of his ho use and that Lee knew that it was contraband.
See Tate , 500 S.W. 3d at 413

- 14; Poindext er , 1 53 S.W.3d at 405 ; see also Tex. Health & Safety Code § § 481.002(38) , .102(6), .115(a), (b). T hus, we conclude that the evidence is legally sufficient to support Lee’s conviction for possession of a controlled substance . We over rule
Lee’s second issu e.19 CO NCLUSION W e affirm the district court’s judgments of conviction

.

__________________________________________ Jeff Rose, Chief Just ice
B efore Chief J ustice Rose, Justices Kelly and Smith Affirmed Filed: December 1 3 , 2019 Do Not Publish