## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00001

- CR

BRIAN EVERETT GUMPERT , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 8th District Court Hopkins County, Texas Trial Court No. 2229102

Be fore Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice van Cleef2 

### ME MORANDUM OPINION
Af ter a j ury found Brian Everett Gumpert guilty of possession of a controlled substance 1 in an amount of one gram or more but less than four gr ams, the trial court sentenced him to thirty

- five years’ confinement in prison 2 and assessed $290.00 in court costs and $ 4 6 5 .00 in
reimbursement fees

. 3 Gum p ert appeals, arguing that (1) the t rial court erred when it denied his motion to suppress , (2) the ev idence was insufficient to support the jury’s guilty verdict , (3) the evidence was insufficient to support the trial court’s assessment of attorney fees, and (4) the trial

court prematurely ass essed a time payment fee

. For the reasons belo w, w e modify th e trial court’s judgment and the clerk’s bill of costs by deleting the assessment of (1) $350.00 in attorney fees, and (2) the $15.00 time payment fee. As modified, we affirm the trial court’s judgment.
I. Gumpert ’s Motion to Suppress
In his first poi nt of error, Gumpert contends that the trial court abused its discretion by denying Gumpert’s motion to suppress the fruits of an illegally prolonged roadside detention. According to Gump e rt, “ [t] he arresting officer’s prolonged detention of Gumpert to su m mon a K

- 9 unit and conduct an open

- air sniff of the vehicle, unjusti fied by any reasonable suspicion

1 Gumpert was alleged to have been in possession of methamphet amin e.

2 Gumpert pled tru e to two sentencing enhancements, increasi ng t he a llowable se nt e n cing range. See T EX
. P ENAL C ODE A NN . § 12.4 2 (d)

.
3 The trial court’s December 13, 20 22, ju dgment of conviction originally assessed $475.00 in reimbursement fees. On December 15, 2022, the trial court entered a nun c pr o tu nc order , s t at ing , “On the Cou r t’s own motion it is hereby ordered that the Jud gment entered on 12/13/2022 , be corrected to read the f ollowing: Reimbursement Fees: $465. 00

. ”3

that any additional criminal activity was afoot, exc eeded the scope of the initial stop and violated
the Fourth Amendment. ” The State ar gue s that Gumpert waived this point of error. We agree

. Prior to trial , the State and Gumpert agreed that the trial court sh ould review the responding officers’ body

- camera footage and then rule on Gumpert ’s moti on. The trial court
revie w ed th e footage and , thereafter , denied Gumpert ’ s motion

. As an initial matter, Gumpert states in his appellate brief that “[t] he lower court did not conduct an evidentiary hearing regarding Gumpert’s mot ion to suppress ; rather, the court de n ied
the mo tion bas ed on its review of the off icers’ body

- camera footage

. ” T he parties agreed to that arrangement. The trial court record reflects the following:

THE COURT :
. . . . Now, we did have a development la st week . On the a fternoon of December 8, Mr. Hyd e, on be ha lf of Mr. Gumpert, made t he State aware that he believed he had a suppression issue as to the stop in this case and wished to raise that.

Mr. Hyde and [the State ] communicated and there was an a greemen t among the parties to submit th e issue to the Cou rt , and this was actually e ven b efore the official filing of the motion to suppress, for the Court to review the body cam footage from the initial detaining officer, which was Deputy Foley, and then the re s ponding officer, who came just m oments aft er that, D eputy Steward. And the C our t did that. Neither party made a correction or objection to the court’s recollection of events

. W hen the trial

court denied Gumpert’s su ppres si on motion, Gumpert did not object to t he lack of an evid e ntiary hearing

. Next, even though G umpert secu red a ruling , he waived any complaint about the d enial
of his suppression motion when, du r ing trial , Gumpert affirmat ively s tated that he had “ [ n ] o objection” to the admission of the officers’ body

- camera footage that contained the evidence4

Gumpert sought to suppre ss pretrial

. Noting that there were no objections, the trial court
admitted both of them. In ge neral, “ [a]s a prerequisite to presenting a complaint for appell ate review, the record
must show th at

. . . the comp l aint was made to the trial cour t by a timely request, objection, or
motion that . . . stated the grounds for the ru ling . . . with sufficie nt spe cificity to make the trial

co urt aware of the complaint, unless the specific grounds were a pp aren t from the co n text ” and
that either the trial court “ruled on the request, objection, or motion, either expressly or implicitly, ” or “ refused to rule on the re quest, objection, or motion, and the complaining party
ob jected to the refusal.” T EX
. R. A PP
. P. 33.1(a ). Ho w ever , “ [a] n adverse ruling on a pretrial motion to suppress evidence will ordinarily suffice to preserve error on appeal , and a defendant

n eed no t specifically object to the evidence when it is lat er o ffered at trial.” Thomas v. State , 4 08
S .W.3d 877, 88 1 (Tex. Crim. App. 2013). In Th omas , t he Texas Court of Criminal Appeals explained , We see no principled reason why appellate courts shou ld not apply the “no objection” waiver rule with comparable fle xibility. Particularly when a defe nd ant has taken pai n s to file a pretrial motion to suppress, develop testimony at a hearing, and secure an appealable adverse ruling, it is unrealistic to pre sume t hat he would li ghtly forego the opportunity to vindicate his interest on appe al.
Id. at 88 5

. The c ourt con t inued, “No purpose is served by insisting that earlier

- preserved error is abandoned by a late r statement of ‘ no objection ’ whe n the record othe r wise establishes that no
waiver was either intended or un derstood.” Id

. That said , the c ou rt als o clarified , [ A ] s with error preservation in gen eral, the rule that a later statement of “ no objection ” w ill forfeit earlier

- preserved error is context

- depend ent . By that we mean that an appellate court should not focus exclusively on the statement it self , in isolatio n , but should consider it in the co ntext of the entirety of the record. If5

the record as a whole plainly demonstrates that the defendant d id not intend, nor did the trial court construe, his “ no object ion ” statement to constitute an aba nd onme nt of a claim of error that he had earlier pr ese rved for appeal, then the appellate court should not reg ard the claim as “ waived, ” but should resolve it on th e merits. On the other hand, if from the record as a who le the appellate court s i mply canno t tell whether an a b andonment was intended or under sto od, then, consistent with prior case law, it should r egard the “ no objection ” statement to be a waive r of t he earlier

- preserved error. Under the latter circumstanc e, the affirmative “ no objection ” stat em ent will, by itse l f, serve as an unequivocal indi cation that a waiver was both intended and understood

. Id

. at 885

– 86

. We believe th is case falls in to the la tter category. First, the parties agreed days before the
trial began that the trial court shou ld re v iew the body

- c amera footage and then make its decision
as to the merits of Gumpert’s motion to suppre ss. In doing so , b oth parties sacrifice d the opportunity to question the responding officers and any other poten tially relevant witnesses.
Likewise , they gave up the c hance to present their argument s to the trial court in support of their position s
. Fur thermore, Gumpert had more than one opp ortuni ty to object to the trial court’s reasoning and it s denial of the mot ion

. Lastly, during trial , when th e Stat e offered the two exhibits into evidence at s eparate times, Gumpert said nothing to indicate that he was preserving his right to appeal the trial court’s earlier decision

. Reviewing the record as a whole , we beli eve that Gumpert waived this issue on app eal.
A t the v ery least, we “ cannot tell whet her an abandonment was intended or understood .” I d

. In
either circumstance , we conclude that Gumper t’s “ [ n ] o objection ” re s ponses amounted to a waiver of his appellate claim that the trial court erred wh en it denied his mo t ion to suppress.
W e overrule Gumpert’s first point of error.6

II . The Evidenc e Was Sufficient to Support the Jury’s Verdict
In his second point of error, Gumpert maintains that there was legally i nsufficient evidence to support his c onvi ction “given t he State’s failure to prove beyo nd a reasonable doubt
the existence of affirmati v e links connecting Gumpert with the methamphe tam ine .” We disagree.
A

. Standard of Review Legal “ sufficiency of the evi dence should be measured by the ele me nts of the offens e as defined by a hypothetically correct jury charge. ” Malik v. State , 9 53 S.W.2d 234, 240 (Tex. Crim. App. 1997)

. The hypoth etical ly correct jury charge is “ one that accurately sets out the law, is au thorized by the indictment, does n ot un n ecessarily in c rease the State’s burden of proo f or unnecessarily restrict the State ’s theories of liability, and adequately describes the pa rticular
offense for which the defenda nt was tried. ” Id. “In our review, we consider ‘events occurring befor e, dur ing and after the commission of
the of fense an d may rely on actions of the defendant which show an understanding and common design to do th e prohibi ted act.’” Willi amson v. State , 589 S.W.3d 292, 297 (Tex. App.

— Texark ana 2019, pet. ref’d) (quoting H oo per , 214 S.W.3d a t 13 ). “It is not requir ed that e ach fact ‘point directly and independently to the guilt of the appellant, as long as the cu mu lative
f orce of all the incriminating circumstances is sufficient to support t he conviction.’” Id

. (quoting
H oo per , 214 S.W.3d a t 13). “Circumstantial e vidence a nd direct evidence are equally probative in establishing the guilt of a defendant, and guilt can be e stablished by circumstantial evidence alone.” Id

. (citing Ramsey v. S tate , 473 S. W .3d 805, 809 (Tex. Cr im. App. 2015 ) ). “Further,7

‘we must consi der all o f the evidence admitted at trial, even if that evidence was improperly admitted.’” Id

. (quot i ng Fowl er v. State , 517 S. W .3d 167, 176 (Tex. App.

— Texarkana 2017), rev’d in part by 544 S.W.3d 844 ( Tex. Cri m. App . 2018) )

. Th e jury, as “the sole judge of the c redibility of the witnesses and the weight to be given their testimony[, could] ‘believe all o f [the ] witnesses’ testimony, portions of it, or none of it.”
Id. (second a lteration in original) (quoting Th omas v. State , 44 4 S.W.3d 4, 10 (Tex. Crim. App

. 2 014) ) . “We give ‘almost complete deference to a jury’s decision when that decision is based

u pon an e valuation of credibility.’” Id

. (quoting Lancon v. State , 253 S. W .3d 699, 705 (Tex. Crim. App. 2008) )

. B . Evidence
O n February 14, 2022, Hopkins Cou nty Deputy Sheriff Issac Foley made a tr affic stop of

a truck in which Gumpert was a passen ger. Fo ley stated that he made the s top because the truck
had a defective brake “ light that was out

. . . . ” Ac co rdin g to Foley, D a na Brant ley was the
driver of th e v ehicle , and Gumpert , who owned the veh icle, was the passenger. Foley said that , as he approach ed , he saw “a lot of movement inside the vehicle” on both sides. 4 When h e began speaking with Gumpert, Gu mp ert failed to mak e eye contact with h im , and h e “c losed his eyes
and looked down as if he were hiding something or there wa s something illega l in the vehicle.” Foley said that , based on his training and experience , a pers on who refuse s to make eye conta ct wit h him is “[e] i ther . . . lying or t hey have so mething to hide.” When Foley asked Gumpert for

4 Shortly afte r the stop, Sergeant Tanner Stewa rd, Foley’s supervising o fficer, ar rived at th e sc ene. Steward’ s testimony was substantially similar to Foley’s testimony. Both of the officers’ body

- camera footage w as offered into evidence by the State, over no objection by F oley , and admitted by the t rial court.8

consent to searc h his truck , Gumpert refused to allow the search. On the basis of his refusal to
consent, Foley contacted Dr ew Fisher, who was a K

- 9 deputy

. Gum pert asked Fo l ey whether the
d og would alert o n the scent of another dog. F oley said the fact that Gumpert was nervous about
wh at the dog might find was an indication to him that “there could possibly be some thing illegal
in the vehicle. ” After Fis he r an d his dog, Ax e , arrived, Axe “aler ted positive to the odor of
narcotics inside the vehicle.” Foley said that , based on Axe’s alert , he conducted a search of Gumpert’s truck. Foley found , under the passenger seat , a clear baggie that co ntained a cry st al

l ike substance that Foley believed to be metham phetami ne
. 5 At that time, F oley arrested b oth Gumpert and Brantley because “[n]either [ one of them] claim[ ed] ownership of the methamphetamine

. ” When Foley placed Gumpert in the back of the patrol v eh icle, Gumpert ask e d him “ if

. . . Brantley ha[d] to go to jail, even if he sa id the methamphet amine was his.” Gumpert then asked Foley, “What if I say it’s mine ?” According to Foley, other than asking him those questions, he
had no t admitted that the m et hamphe tamine belo n ged to him. Yet, whe n Gumpert was being transported to th e Hopkins County Jail , Gumpert told Steward , “It’s mine . It isn’t her dope.”
C . Discussi on Looking at the elements of the offense with which G umpert was charged, the State w as requi red to prov e beyond a re asonable doubt that (1 ) Gumpert (2) i nt entiona lly or knowingly (3) possessed methamphetamine (4) in an amount of one gram or more but less th an four grams. “To prove unlawful possession of a controlled substance, the State mu st pro ve that: ( 1 ) th e

5 Fo ley p erf

ormed a field tes t o n t he substance to d etermine if it was, in fact, methamphetamine. T he test results confirmed that the sub stance was metham phetamine.9

accused exercised control, m anagement, or ca re over the substance and (2) the accused knew the matter possessed was contraband.” Poindexte r v . State , 153 S.W.3d 402, 405 (Tex. Crim. App. 2005) , ove rruled on other grounds b y Robin so n v. S tate , 466 S

. W.3d 166, 173 (Tex. Crim. App.
201 5)

. Here, Gum pe rt claims only that the State failed to prove that the methamphetamine belonged to him. We disagree.
Possession may be establish ed by proving either ac tual or constructive possession

. S tubble field v. St a te , 79 S.W.3d 171 , 177 (Tex. A pp

— T exarkana 2002 , p et s . ref ’ d ) (Grant, J., concurring in part, dissenting in part) (citing McGoldrick v. State , 682 S .W.2d 573, 57 8 (Tex. Crim. App. 1986) )

. While mere presence at the location where drugs a r e fou nd is insuf f icient, by itself, to establish ac tual car e, custo d y, or control of those drug , presence or proximity to drugs
when combined with other direct or circumstantial evidence may be sufficient if the proof

amounts to more than a strong suspi ci o n. E vans v. Sta t e , 202 S.W.3d 158, 161

– 62 (Tex. Cr im. App

. 2006).
Unless the accused had exclusive posse ssion of the place where the controlled substance was found, the State must pre sent “additional independent facts and ci rcumstances which
affirmati ve l y lin k the accus e d to the contraband” in order to p rove pos session b eyond a
reasonable doubt. Deshong v. State , 625 S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981) ;

see Jones v. Sta te , 963 S.W.2d 826, 830 (Tex. App.

— Texark ana 1998, pet. ref ’ d)

. “Th e ‘affir mative link s rule’ is designed to protect the innocent bystand e r from conviction based solely upon hi s fortuitous proximity to someone else ’ s drugs

. ” Poindexter , 15310

S.W. 3d at 406

. Th e follo wing, no nexc lusive list ha s been used to establish a person ’ s possession
of con tr aband , R ecognized factors inc lude whether: (1) the contraband was in plain view or recovered from an enclosed place; (2) the accused was the owner of the premises or the place where the contraband was found; (3) the accused was found with a large amount of cash; ( 4) the contraband wa s conveniently accessible to the accused; (5) the contraband was found in close proximity to the accused; (6) a strong residual odor of the contraband was present; (7) the accused possessed other contraband when arrested; (8) parapherna lia to use the contr aband was in view, or found on the accused; (9) the physical condition of the accused indicated recent consumption of the contraband in question; (10) conduct by the accused indic ated a consciousness of guilt; (11) the accused attempted to flee; (12) the a ccused made furtive gestures; (13) the accused had a special connection to the contraband; (14) the occupants of the premises gave conflicting statements about relevant matters; ( 15) the accused made incriminating statements connecting himself or herself t o the contraband; (16) the quantity of the contraband; and (17) the accused was observed in a suspicious area under suspicious circumstance s
. M u ckleroy v. State , 206 S.W.3d 746, 74 8 n.4 (T ex. App.

— Texarkana 2006, pet. ref ’ d) ( quo t ing
Las saint v. State , 79 S.W.3d 736, 740

– 41 (Tex. A pp.

— Corpus Ch risti 2002, no pet.) )

. The number of links is not di spositiv e ; rather, we look to the “logical force of all of the
evi dence, direc t and circumstantial.” Evans , 202 S.W.3d at 162 ; see Taylor v. State , 106 S.W.3d
827 , 83 1 (Tex. App.

— D allas 2003, n o pet.) (holdi ng “ t hat number of links is less importan t ”
than degree t o which link s tend to connect defendant t o controlled sub stance).
H ere, Gumpert was the sole passenger in the vehicle, and the methamphetamine was
found und erneath the pa ssenger seat. Although he was t he passenger at the time of the stop , the

e vidence s howed that h e also owned the v ehicle. In addition, Foley testified t hat , durin g the stop, Gumpert refused to make eye contact, refused to exit the vehicl e, and refused to answer his
qu es t ions , all of wh i ch could have amounted to c onscious ness o f guilt. Furthermore, Gumpert11

asked Fole y about Brantley ’s status, seemingly in dicating that the narcotics did not belong to her. But, most importantly, on the way to the jail, Gumpert admitted to Stew a rd that th e methamphetamine belonged t o him.
As al ways , the jury, as “ the sole judge of the credibility of the witness es and the w eight to be given their testimony[, could] ‘ believe all of [the] witnesses ’ te stimony , porti ons of it, or
none of it

. ’ ” Williamson , 5 8 9 S.W.3d at 297 (second a lt eration in ori ginal) (quoting Thomas , 444 S.W.3d at 10 )

. “ We give ‘ almost complet e def erence to a jury ’ s decision when that decision
is based up on an evaluation of credibi lity. ’” Id

. ( quoting Lancon v. State , 2 53 S.W.3d 699, 7 0 5 (Tex. Crim. App. 2008))

. In thi s case , it appears that the ju ry believed the State’s witnesses.
When we look at al l the evidence , both direct and circumstantial, we find that there was ample evidence t o s upport the jur y’s finding t ha t Gumpert knowin g ly possessed methamphe ta mine in the am ount alleged in the State’s indictment. Accordingly, we find that the

e vidence w a s legally sufficient to support Gumpert ’ s conviction

. We overrule Gumpert’s seco nd poi nt of er ror. III. The Trial Co ur t Erred When it A ssessed Attorn ey Fees
Unde r Article 26.05( g) of the Texas Code o f Criminal Procedure, a trial court has the

a uthority t o order the reimbursement of a court

- appointed attorney ’s fees only if “the judge
deter mines th at a defen dant has fin an cial resources t h at enable the defendan t to offset in part or
in whole the costs o f the legal services provided

. . . including any expen ses and costs.” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 26.05(g) (Supp.) . “[T]he defend ant’s financia l resources an d abilit y to pay are expli c it critical el ements i n the trial court’s determination of the pr opriety of ordering12

reimbursement of costs an d fees” of le gal services provided. Armstrong v. State , 340 S.W.3d 759, 765

– 66 (Tex. Crim. App. 2011) (q uoting Mayer v . State , 3 09 S.W.3d 552, 5 5 6 (Tex. Crim. App. 201 0)). Since there is no finding of Gumpert’ s ability to pay them, the assessment of th e attorney f ees was erroneous. See Cates v. State , 402 S.W.3d 250, 252 (Tex. Crim. App. 201 3);

see also M

ayer v. State , 309 S.W. 3d 552 (Tex. Crim. App. 20 10); Martin v. State , 405 S.W.3d 944, 946

– 47 (Tex. App.

— Te xarkana 2013, no pet.).
Due to Gumpert ’s i nd igency, he received a court

- appointed attorney at trial , as well as on
appe al. The recor d lacks any in dication that Gumpert’ s fi nancial status o r abili ty to pay ch anged at any point in the case. See Mayer , 309 S.W.3d at 556. Even so, the judgment , vi a t he trial

c ourt’s nunc pro tunc order , reflects that Gumpert was assessed $4 6 5.00 in reimb ursement fees

. The clerk’s bill of co st s indicates tha t only $ 350.0 0 of th e $465.00 reimbursement fee was assessed for at torney fees

. 6 Notwithstanding t hat we denie d Gumpert ’ s challenge to the sufficiency of the evidence, appell at e courts “have the authority to reform judgments and affirm a s modifi ed in ca se s w here
th ere is nonreversible error.” Sharpe v. State , 607 S.W.3 d 446, 448 (Tex. App.

— Texarkana
2 020, no pet. ) (quoting Ferguson v. State , 435 S.W.3d 291, 293 (Tex. App.

— Wac o 2014, pet.

str uck ), overruled o n other grounds by Cummins v. St ate , 6 46 S.W.3 d 6 05 (Tex. App.

— Waco 2022, pet. ref ’ d ).

6 In addition to the $350.00 in assessed a ttorney fees, the clerk’s bi l l of costs showed t he following additional reimbursement costs: subpoena/witness fee

– $5.00; s heriff co mmi t or relea se f ee

– $20.00; notice to appear

– $5.00; ti me payment fee

– $15.00; sheriff take & approve bond

– $ 20 .00; and sher iff execute warran t f e e

– $ 50. 00. All o f these fees amount ed to $465.00.13

Accordingly, we sustain G umpert’s third point of error an d modify the trial cour t’s judgment and the clerk’s bill of costs by delet in g th e assessment of attorney fees in the amount of $ 350.00

. IV. Th e T ria l Cou rt Er r ed Whe n Accessed a Time Payment Fee We agree with Gumpert that th e time payment fee must be del eted. The Texa s Court of Criminal Appeals has concluded that a time payment f ee l ike the one imposed here “must indeed be struck for being pr em atu rel y ass essed becaus e a defendant ’ s appeal suspends the duty to pay

court costs and therefore suspends the ru nning of the cl ock for th e purposes of the time payment fee.” Dulin v. State , 620 S.W.3d 129, 129 (Tex. Crim. A pp. 2021). “As a consequence, e ven

no w, as sessm e nt of the time payment fee in this case would be premature becaus e appellate proceedings are st ill pending.” Id

. Pursu ant to Dulin , we strike the time payment fee “in [its ]

en tirety, without prejudice to [ it] being assessed later if, m or e t han 30 d ays a f ter th e issuance of the appellate mandate, the defendant has fail ed to completely pay any fine, court costs, o r restitut ion” owed. Id

. at 133. Accordingly, we sust ain Gumpe rt’s fourth point of error and mod ify the judgment and the bill of costs by delet in g t he prema turel y impos ed time payment fee.14

V. Conclusio n W e mod ify the trial court’s judgment and the clerk’ s b ill of costs by deleting the
assessment of $350.00 in attorney fees and t he $15.00 time payment fee. As modified, we affirm
the trial co urt’ s ju dgment.

C h a rles van Cleef Justice
Date Sub mitted: August 31, 2023 Date Decided: August 31, 2023
Do N ot Publish