Opinion filed February 21 , 201 9



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 17

- 00053

- CR

__________ DAVID WESLEY KELSEY , Appellant
V.
THE STATE OF TEXAS , Appellee

On Appeal from the 32nd District Court Mitchell County , Texas Trial Court Cause No. 7627

M E M O R A N D U M O P I N I O N The jury convicted David Wesley Kelsey of possession of a controlled substance, namely methamphetamine, in an amount less than one gram

. Appellant
elected for the tri al court to assess punishment

. The trial court assessed Appellant’s punishment at confinement for two years and a $4,000 fine
, but it suspended the imposition of the sentence and placed Appellant on community supervision for four

years

. I n a single issue on appeal, Appellant argues that the evi dence was2 insufficient to show that he intentionally or knowingly possessed a controlled
substance

. Specifically, Appellant contends that the evidence is insufficient to affirmatively link him to the methamphetamine that was found in the vehicle that Appellant had borrowed. We affirm

. We review a challenge to the sufficiency of the evidence under the st andard
of review set forth in Jackson v. Virginia , 443 U.S. 307 (1979)

. Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State , 337 S.W.3d 286, 288

– 89 (Tex. App.

— Eastland 2010, pet. ref ’ d). Under the Jackson standard, we review all the 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 offense beyond a
reasonable doubt. Jackson , 443 U.S. at 319; Isassi v. State , 33 0 S.W.3d 633, 638 (Tex. Crim. App. 2010). When we conduct a sufficiency review, we consider all the evidence admitted at trial, including pieces of evidence that may have been improperly admitted. Winfrey v. State , 393 S.W.3d 763, 767 (Tex. Crim. App.
20 13); Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s role as the sole judge of the witnesses ’ credibility and the weight their testimony is to be afforded. Brooks , 323 S.W.3d at 899. This
standard accounts for the factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts. Jackson , 443 U.S. at 319; Clayton , 235 S.W.3d at 778. When the record supports conflicting inferenc es, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that determination. Jackson , 443 U.S. at 326; Clayton , 235 S.W.3d at 778. Intent may also be inferred from circumstantial evidence such as acts, words, and the conduct of an appellant. Guevara v. State , 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).3 On the day of the alleged offense, Texas Department of Public Safety Trooper
Ricardo Molina was on patrol on Interstate 20 when he noticed a vehicle parked on

a road off Interstate 20; there were no other vehicles that were parked there

. Trooper Molina decided to check to see whether anyone in the vehicle needed help

. As Trooper Molina drove toward the vehicle, he noticed that the windows of
the vehicle were covered with newspapers and paper towels. As Trooper Molina
turned onto the road where the vehicle was located
, Appellant immediately exit ed
the driver’s side door
, open ed the hood , and began to look at the engine

. Trooper Molina parked directly in front of the vehicle so that he could observ e the occupants

. Although Trooper Molina was about ten to fifteen yards behind Appellant , Appellant did not acknowledge Trooper Molina’s presence, but, rather,
he continued to look at the engine

. Meanwhile, Trooper Molina could see that there was a passenger in the vehicle and could see the passenger “mov e stuff around her feet.” Although the hood was up, Trooper Molina could see th r ough a gap between the hood and the body of the vehicle. Trooper Molina later determined that t he passenger was Amanda Millsap , Appellant’s girlfriend

. Trooper Molina got out of his vehicle and walked up to Appellant

. Trooper Molina first asked Appellant how he was doing and what the passenger in the vehicle was doing ; then Trooper Molina drew his weapon and repeatedly
instructed Millsap to place her hands in the air, since he observed her continu ing to reach underneath her seat. Mil lsap complied
, and Trooper Molina holstered his weapon; Millsap remained seated in the vehicle

. Trooper Molina asked Appellant if “everything [ was ] okay,” to which Appellant explained
, as he continued to look at the vehicle’s engine
, that he smelled “something

. . . burning” in his vehicle

. Appellant later told Trooper Molina that it “smelled like plastic or something.”4 When Trooper Molina went to the passenger side door to speak with Millsap
, she rolled down the window

. As Millsap rolled down the windo w , Trooper Molina immediately smelled a chemical smell like that of burned methamphetamine. According to Trooper Molina, Millsap ’ s facial expression and her rapidly beating jugular vein suggested that “something was ongoing

. ”
While Trooper Molina was talking to Millsap, Appellant appeared to continue
to examine the engine. At one point, Trooper Molina asked Appellant where they
had come from, and Appellant told him that they had just left Abilene and were headed to Odessa for Appellant’s appointment w ith his doctor

. As the reason for the presence of the papers on the windows of the vehicle, Appellant told Trooper Molina
that he had put the papers on the window s because of “the sun

. ” Trooper Molina asked Appellant multiple times for consent to search his
vehicle

. Appellant eventually consent ed but only after he insisted multiple times
that the vehicle was not his

. Trooper Molina instructed Millsap to get out of the vehicle. As Millsap complied, a sex toy f e ll on to the floorboard of the passenger seat where Millsap had been sitting . Trooper Molina asked Millsap and Appellant
, “ I s that what ’s going on right here ?” Millsap repeatedly stated
, “ [T] hat’s what’s going on” ; Appellant s aid
that they were “playing. ”
B efore Trooper Molina search ed the vehicle, he patted Appellant down

. Trooper Molina found multiple lighters
, a sex toy ( in Appellant’s pocket ) , and
various other items

. Trooper Molina asked Appellant and Millsap whether there was anything in
the vehicle he should know about

. Appellant and Millsap denied that there was anything illegal in the vehicle.5 Trooper Molina searched the vehicle and found a camera bag on the floorboard to the left side of the passenger seat

. The camera bag was “kind of stuffed

un derneath the left passenger seat. ” Inside the camera bag, Trooper Molina found
0 .2 8 grams of methamphetamine in a “blue baggy” and 0 .33 grams of methamphetamine in a “white container.”
The camera bag also contained two pipes and a straw. At trial, Trooper Molina testified that the pipes were “methamphetamine pipes” and that they were still warm to the touch when he found them. Trooper Molina also testified that straws are sometimes used to snort methamphetamine. During the search
, Trooper Molina a sked Appellant and Millsap whether they
had smoked meth amphetamine in the vehicle. Appellant and Millsap both denied

any use of methamphetamine in the vehicle
, but Appellant admitted that he had “smoked some” methamphetamine about an hour prior to the traffic stop

. As
Tr ooper Molina continued to search the vehicle, he began to choke because of the
smell. Trooper Molina called Trooper Jeremy Usener to the scene to conduct a DWI investigation

. When Trooper Usener arrived, he conducted several f ield sobriety

tests on Appellant

. Appellant passed all the tests that he performed for Trooper Usener

. Appellant , however, refused to give a sample of his blood to Trooper Usener for lab testing. Appellant told Trooper Usener that he was no t aware of any drugs in the
vehicle. As for the smell in the vehicle , Appellant explained that the smell came from gasoline that had leaked in the backseat. He told Trooper Usener that the person he borrowed the vehicle from had spilled gasoline in the vehicle the night
before

. He also repeated that , earlier that day, he had smoked a pipe, but he said that
he did not know for sure whether the substance was methamphetamine
, although he6 “guess[ed] it was meth.” Texas Department of Public Safety lab personnel later
confirmed that the substances found in the vehicle were methamphetamine. A person commits the offense of possession of a controlled substance if he knowingly or intentionally possesses a controlled substance. See T EX

. H EALTH &
S AFETY C ODE A NN

. § 481.115(a) (West 2017). Possession is defined as “actual care, custody, control, or management.” T EX

. P ENAL C ODE A NN

. § 1.07(a)(39) (West Supp. 201 8 ). To prove unlawful possession of a controlled substance, the State must show (1) that the accused exe rcised control, management, or care over the substance and (2) that the accused knew the matter possessed was contraband. Poindexter v.
State , 153 S.W.3d 402, 405 (Tex. Crim. App. 2005), overruled in part on other grounds by Robinson v. State , 466 S.W.3d 166, 173 n.32 (Tex. Crim. App. 2015). Texas courts have used an “affirmative links” analysis for instances when the accused was not in exclusive possession of the place where the substance was found.
Poindexter , 153 S.W.3d at 406. In such circumstance s , it cannot be concluded that
the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances that affirmatively link the accused
to the contraband. Id. (citing Deshong v. State , 625 S.W.2d 327, 3 29 (Tex. Crim. App. 1981) ); see Evans v. State , 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006) (listing affirmative links recognized by courts); see also Tate v. State , 500 S.W.3d 410, 413

– 14 (Tex. Crim. App. 2016) (citing Evans , 202 S.W.3d at 162 n.12). The following links have been applied to infer knowledge relating to th e contraband: (1) the defendant’ s presence when a search was conducted; (2) whether the
contraband was i n plain view; (3) the defendant’ s proximity to and the accessibility
of the narc otic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested;7 (7) whether the defe ndant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia was present; (11) whether the defendant owned or had the right to possess the place w here the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt. Tate , 500 S.W.3d at 414 (citing Evans , 202 S.W.3d at 162 n.12). It is not the number of links that is dispositive ; rather, it is the logical force of all the evidence, both direct and circumstantial, that is the determining factor.
Evans , 202 S.W.3d at 162. Although Ap pellant was not in exclusive possession of the methamphetamine
, the independent facts and circumstances justify the jury’ s conclusion that Appellant had possession of the methamphetamine and that he knew that the substance was methamphetamine. Appellant ’s own admission t hat he had smoked methamphetamine an hour prior to Trooper Molina’s arrival is probative evidence from which a jury could have concluded that he knowingly possessed the same drug. Moreover, there was a strong odor of burned methamphetami ne , as well as two warm methamphetamine pipes , in the vehicle that Appellant possessed

. Appellant essentially argues that, because he passed the field sobriety tests
and showed no signs of methamphetamine intoxication , the evidence was
insufficient to li nk him to the methamphetamine

. We disagree. Although Appellant passed the field sobriety tests and although that would suggest that Appellant was

not u nder the influence of methamphetamine at the time of Trooper Molina’s arrival
, t he independent facts and circumstances are sufficient to support the jury’s verdict

. Appellant admitted that he had smoked methamphetamine one hour earlier. Although only two persons were in the vehicle, there were two warm pipes in the8 same bag in which Tr ooper Molina found the meth amphetamine. The inside of the vehicle smelled like burning methamphetamine. The view into the vehicle was obscured by papers that had been placed on the windows. We hold that any rational trier of fact could have found beyond a reasonable doubt that Appellant possessed methamphetamine

. W e overrule Appellant’s sole issue on appeal

. We affirm the judgment of the trial court.

J IM R. WRIGHT
SENIOR CHIEF JUSTICE February 21 , 2019 Do not publish

. See T EX

. R. A PP

. P. 47.2 (b).
Panel consists o f : Bailey, C. J., Stretcher, J., and Wright, S.C.J. 1
Willson, J., not participating.

1 Jim R. Wright, Senior Chief Justice (retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.