Opinion filed February 21, 2019

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 trial 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. In a single issue on appeal, Appellant argues that the evidence was 
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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 standard 

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, 330 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. 

2013); 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 inferences, 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). 
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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 exited

the driver’s side door, opened the hood, and began to look at the engine.

Trooper Molina parked directly in front of the vehicle so that he could observe

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 “move stuff around her feet.” Although the 

hood was up, Trooper Molina could see through a gap between the hood and the 

body of the vehicle. Trooper Molina later determined that the 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 continuing to 

reach underneath her seat. Millsap 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.”
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When Trooper Molina went to the passenger side door to speak with Millsap, 

she rolled down the window. As Millsap rolled down the window, 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 with 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 windows because of “the sun.”

Trooper Molina asked Appellant multiple times for consent to search his 

vehicle. Appellant eventually consented 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 fell onto the floorboard of the passenger seat where Millsap had 

been sitting. Trooper Molina asked Millsap and Appellant, “Is that what’s going on 

right here?” Millsap repeatedly stated, “[T]hat’s what’s going on”; Appellant said

that they were “playing.”

Before Trooper Molina searched 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.
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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 

underneath the left passenger seat.” Inside the camera bag, Trooper Molina found 

0.28 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 asked Appellant and Millsap whether they 

had smoked methamphetamine 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 

Trooper 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 field 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 not 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 he 
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“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 TEX. HEALTH &

SAFETY CODE ANN. § 481.115(a) (West 2017). Possession is defined as “actual care, 

custody, control, or management.” TEX. PENAL CODE ANN. § 1.07(a)(39) (West 

Supp. 2018). To prove unlawful possession of a controlled substance, the State must 

show (1) that the accused exercised 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 circumstances, 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, 329 (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 the contraband: 

(1) the defendant’s presence when a search was 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 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; 
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(7) whether the defendant 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 where 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 Appellant 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 that 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 methamphetamine, 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 link him to the methamphetamine. We disagree. Although Appellant

passed the field sobriety tests and although that would suggest that Appellant was 

not under the influence of methamphetamine at the time of Trooper Molina’s arrival,

the 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 the 
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same bag in which Trooper Molina found the methamphetamine. 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. We overrule Appellant’s sole issue on appeal. 

We affirm the judgment of the trial court. 

JIM R. WRIGHT

SENIOR CHIEF JUSTICE

February 21, 2019

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: 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.