NO. 07-10-0095-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
FEBRUARY 23, 2011
WILLIAM CHARLES PHILLIPS, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 106TH DISTRICT COURT OF LYNN COUNTY;
NO. 04-2700; HONORABLE CARTER T. SCHILDKNECHT, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, William Charles Phillips, was convicted by a jury of the offense of
possession of a controlled substance (methamphetamine) in an amount of four grams
or more but less than 200 grams with intent to deliver 1 and sentenced to thirty-five years
1 See Tex. Health & Safety Code Ann. §§ 481.112(a) & (d) (West 2010). This offense is a first degree felony punishable by confinement in the Institutional Division of the Texas Department of Criminal Justice confinement. In three issues, he asserts the trial court erred by admitting evidence of
two extraneous offenses: (1) possession of drug paraphernalia (a syringe containing a
clear liquid discovered in his sock prior to incarceration) and (2) the subsequent
possession of a controlled substance. By his third issue, Appellant asserts the evidence
is legally and factually insufficient to sustain his conviction. We affirm.
Background
On January 23, 2004, DPS Trooper Jeff Ashburn stopped a vehicle being driven
by Jimmy Thomas. Appellant was a passenger at the time. While the stop occurred in
Lubbock County, the vehicle had just come from Lynn County. After making contact
with Thomas, Ashburn detected an odor of marijuana. Thomas was then detained and
a small amount of methamphetamine was found in his jeans. Thomas eventually
admitted that he was smoking marijuana and that there would be evidence of that fact in
the vehicle's ashtray. When he searched the vehicle, Ashburn found a marijuana
cigarette in the car's ashtray, a syringe in the center console, and, by the right front
passenger seat, a black leather pouch containing numerous small bags of
methamphetamine and a set of digital scales. Underneath the passenger seat, he also
found a large plastic bag containing methamphetamine. Thomas and Appellant were
arrested and transported to the Lubbock County Jail. At the jail, Ashburn was given a
for life or for any term of not more than 99 years or less than 5 years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.32 (West 2003).
2 syringe found in Appellant's sock 2 which he identified as the same type of syringe found
in the console of Thomas's vehicle.
Following their arrest, Thomas gave Sergeant Mike Ybarra, a DPS Narcotics
Officer, a key to a van parked at the residence of Appellant's father in Wilson, Lynn
County, Texas. Ybarra subsequently went to the residence where he met Vicki Graves,
Appellant's girlfriend. Appellant's father arrived shortly thereafter and consented to a
search of his residence and the van. During the search, Ybarra found
methamphetamine in a small, clear plastic bag in a desk drawer in the living room of the
residence and two glass containers containing a clear liquid in a small refrigerator in the
van. He identified the clear liquid as containing methamphetamine. 3
On May 17, 2004, a Lynn County Grand Jury returned an indictment against
Appellant alleging that he intentionally and knowingly possessed, with intent to deliver, a
controlled substance (methamphetamine) having an aggregate weight of four grams or
more but less than 200 grams. The indictment also alleged the lesser included offense
of possession of a controlled substance. 4
2 Deputy Cory Lucas of the Lubbock County Sheriff's Office testified that, when Appellant was searched before entering the jail, he found a syringe filled with a clear liquid located in Appellant's sock. 3 Scott Williams, DPS forensic chemist, testified at trial that, of the substances found on Thomas and in his vehicle, .26 grams of methamphetamine were taken from Thomas and 21.87 grams of methamphetamine were found on the passenger side of the vehicle. Of the substances found at the residence of Appellant's father and in the van, Williams identified 4.12 grams of liquid methamphetamine from the van and a little over three grams of powdered methamphetamine from the residence. 4 See Tex. Health & Safety Code Ann. § 481.115(d) (West 2010). This offense is a second degree felony punishable by confinement in the Institutional Division of the Texas Department of Criminal Justice for
3 At trial, Thomas testified pursuant to an immunity agreement. 5 He testified that,
on January 22, 2004, he received a call from Appellant asking him to work on a vehicle
at his father's residence in Wilson. Thomas picked up Appellant and they drove to the
residence, where Appellant gave him a key to the van to check the ignition switch. In
the van, Thomas observed materials used in the manufacture of methamphetamine. He
also observed Appellant in the van preparing to make methamphetamine. The next
day, on January 23, 2004, Thomas returned to the residence and parked near the van.
He heard someone moving around in the van. When Appellant emerged from the van,
Thomas saw smoke coming out of the van and concluded Appellant was "gassing" the
methamphetamine. 6 Thomas then agreed to take Appellant to Lubbock. While on the
way to Lubbock, Thomas and Appellant smoked marijuana. Shortly after crossing into
Lubbock County from Lynn County, they were stopped by Trooper Ashburn. Thomas
admitted to Ashburn that they had been smoking marijuana and told the trooper that,
with the exception of a burnt marijuana cigarette in the car's ashtray, there was no other
contraband in the vehicle. He then gave Ashburn permission to search his vehicle.
While Ashburn was conducting the search, Appellant told Thomas: "Look, if you'll just
take the rap for this, I'll bail you out." Thomas testified that none of the
any term of not more than 20 years or less than 2 years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.34 (West 2003). 5 The immunity agreement granted Thomas immunity regarding anything he testified to at trial. Prior to testifying, Thomas was convicted in Lubbock County of possession of a controlled substance with intent to deliver based upon the events of January 23, 2004. 6 "Gassing" is a process whereby a gas, typically anhydrous ammonia, is introduced into a liquid containing methamphetamine in order to cause the methamphetamine to separate from the liquid itself.
4 methamphetamine found in his vehicle, the van, or the residence owned by Appellant's
father belonged to him.
Deputy Danny Randall of the Lynn County Sheriff's Office testified that he went to
Appellant's father's residence on July 12, 2004, to serve a felony warrant on Appellant.
When he entered the residence, Appellant was sitting on a bed in the living room beside
a coffee table. Deputy Pete Vallejo testified that there was a white powdery substance
on the coffee table that later tested positive for methamphetamine. Vallejo also testified
that, inside the house, he found two plastic bags containing a leafy substance, a glass
pipe, six syringes, and two propane torches typically used by drug users to light
methamphetamine and smoke it from a glass pipe.
After the prosecution rested, the trial judge instructed the jury that there had been
some testimony regarding the offense of possession of a controlled substance in a
correctional facility. The trial judge instructed the jury that they were to disregard that
evidence. There were no objections.
For the defense, Appellant's father testified he owned the van parked in his yard.
He testified that Thomas had been staying in the van. He also testified that Appellant
and his girlfriend had stayed in the van and had also stayed in his living room.
Appellant testified on direct examination that, on January 22, 2004, he went to
his father's house to help him install a fuel pump on an Oldsmobile. He also testified
5 that Thomas had been staying at his father's house in the van. 7 Appellant stayed
overnight in the living room and the next morning Thomas offered him a ride to
Lubbock. He testified that he knew nothing about the methamphetamine under the
passenger seat or the black leather pouch discovered by Ashburn. He also denied
telling Thomas he would make his bail if he would take the rap and he denied knowing
anything about the methamphetamine in the van or in the desk drawer in the living room
of his father's house.
With regard to the incident on July 12, 2004, Appellant testified that when officers
showed up at his father's house with a warrant for his arrest he knew there were drugs
on the table and he was using them, but he denied that they were his drugs. Rather,
the drugs belonged to a friend who was also at the house when the warrant was served.
On cross-examination, Appellant agreed with the State that he used methamphetamine
and had possessed the drug in the past at his father's house.
Prior to closing arguments, the trial judge read the jury charge which included a
limiting instruction on extraneous offenses. 8 During closing arguments, Appellant's
counsel drew the jury's attention to the limiting instruction and argued that the 7 Thomas testified that he was staying with his girlfriend and had never stayed in the van. 8 The trial court's charge stated, in pertinent part, as follows:
(E) The State has introduced evidence of extraneous crimes or bad acts other than the one charged in the indictment in this case. This evidence was admitted for the purpose of aiding you, if it does, in passing upon the question of the defendant's motive, intent, knowledge, possession, opportunity, absence of mistake or accident, and for the purpose of rebutting a defensive theory. You cannot consider this evidence of extraneous crimes or bad acts for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such extraneous crimes or bad acts.
6 methamphetamine found in the house and van belonged to his client's father, and the
methamphetamine found in Thomas's vehicle belonged to other persons who had
access to the vehicle. Further, he argued that, regarding the incident which had
occurred on July 12, 2004, Appellant had admitted he knew the drugs were there and
he was using them, but the drugs did not belong to him.
Thereafter, the jury found Appellant guilty of the offense of possession with intent
to deliver a controlled substance (methamphetamine) having a weight of four grams or
more but less than 200 grams and sentenced him to thirty-five years confinement. No
direct appeal was timely filed; however, the Court of Criminal Appeals granted Appellant
an out-of-time appeal on February 24, 2010. 9 This appeal followed.
Discussion
Appellant's issues one and two assert the trial court erred by admitting evidence,
at the guilt-innocence stage, concerning the syringe found in his sock and the
circumstances surrounding his arrest pursuant to a warrant on July 12, 2004, because
that evidence was irrelevant, showed character conformity, and was more prejudicial
than probative. See Tex. R. Evid. 401, 404(b), 403. 10 By his third issue, Appellant
asserts the evidence that he was in possession of the methamphetamine was legally
and factually insufficient to support his conviction.
9 Ex parte Phillips, No. AP-76,209, 2010 Tex. Crim. App. Unpub. LEXIS 131 (Tex.Crim.App. Feb. 24, 2010) (original proceeding). 10 Provisions of the Texas Rules of Evidence will be cited simply as "Rule ____" throughout the remainder of this opinion.
7 I. Issues One and Two -- Extraneous Offenses
Although the general rule is that the defendant is to be tried only for the offense
charged and not for any crimes or for being a criminal generally; Segundo v. State, 270
S.W.3d 79, 87 (Tex.Crim.App. 2008) (citing Crank v. State, 761 S.W.2d 328, 341
(Tex.Crim.App. 1988)), evidence of extraneous acts of misconduct are admissible if (1)
the uncharged act is relevant 11 to a material issue in the case, and (2) the probative
value of that evidence is not significantly outweighed by its prejudicial effect. Id. So
long as the controverted evidence tends to establish some evidentiary fact related to
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident, or rebut some defensive theory, the extraneous offense evidence is
admissible. See Tex. R. Evid. 404(b). See also Moses v. State, 105 S.W.3d 622, 626
(Tex.Crim.App. 2003); Williams v. State, 290 S.W.3d 407, 410 (Tex.App.--Amarillo
2009, no pet.) (citing Santellan v. State, 939 S.W.2d 155, 168-69 (Tex.Crim.App.
1997)).
In determining whether the probative value of evidence was substantially
outweighed by the danger of unfair prejudice, we consider (1) how well the evidence
makes a "seriously contested" issue more or less probable; (2) the potential of the
evidence to confuse or prejudice the jury; (3) the time needed to present the evidence;
11 Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401.
8 and (4) the opponent's need for the evidence. See Wyatt v. State, 23 S.W.3d 18, 26
(Tex.Crim.App. 2000).
A. Standard of Review
While acknowledging that the trial court is given wide latitude to admit or exclude
evidence of extraneous offenses; Sanders v. State, 255 S.W.3d 754, 760 (Tex.App.--
Fort Worth 2008, pet. ref'd) (citing Montgomery v. State, 810 S.W.2d 372, 390
(Tex.Crim.App. 1991) (op. on reh’g)), we review a trial court's ruling on the admissibility
of extraneous offense evidence under an abuse of discretion standard. Prible v. State,
175 S.W.3d 724, 731 (Tex.Crim.App. 2005). We will uphold the trial court's ruling if it is
within the "zone of reasonable disagreement;" id. (quoting Santellan, 939 S.W.2d at
169), i.e., "if the evidence shows that (1) an extraneous transaction is relevant to a
material, non-propensity issue, and (2) the probative value of that evidence is not
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury." De La Paz v. State, 279 S.W.3d 336, 344 (Tex.Crim.App. 2009)
(citing Santellan, 939 S.W.2d at 169). "If the ruling [is] correct on any theory of law
applicable to the case, in light of what was before the trial court at the time the ruling
was made, then we must uphold the judgment." Martin v. State, 173 S.W.3d 463, 467
(Tex.Crim.App. 2005) (quoting Sauceda v. State, 129 S.W.3d 116, 120 (Tex.Crim.App.
2004)).
9 B. Issue One
From the record, it is apparent that the trial court deliberated on Appellant's
evidentiary objections during a pretrial hearing. From its actions, it appears the trial
court accepted the State's explanation that connecting the syringe found on Appellant in
jail to the syringe in the console of Thomas's vehicle and the clear liquid in the syringe
with the clear liquid found in the van parked outside his father's residence was probative
evidence because it linked Appellant to the methamphetamine found in Thomas's
vehicle on the passenger side where Appellant was sitting and the liquid
methamphetamine located in the van at his father's residence. Therefore, the State
satisfied the trial court that the extraneous evidence had relevance apart from its
character conformity value. See Santellan, 939 S.W.2d at 169 (citing Montgomery, 810
S.W.2d at 387). This evidence was relevant to establish knowledge of the
methamphetamine in both instances and rebut the defensive theory that Appellant had
no knowledge of the methamphetamine in either the van or Thomas's vehicle.
Therefore, we conclude the trial court's decision was within the zone of reasonable
disagreement.
In balancing probative value and unfair prejudice under Rule 403, an appellate
court presumes that the probative value will outweigh any prejudicial effect. See
Sanders v. State, 255 S.W.3d 754, 760 (Tex.App.--Fort Worth 2008, pet. ref'd) (citing
Montgomery, 810 S.W.2d at 389). The "balance is always tilted toward admission, not
exclusion, of otherwise relevant evidence." De La Paz, 279 S.W.3d at 343. It is
10 therefore the objecting party's burden to demonstrate that the probative value is
substantially outweighed by the danger of unfair prejudice. Id. (citing Hinojosa v. State,
995 S.W.2d 955, 958 (Tex.App.--Houston [14th Dist.] 1999, no pet.)).
Much of Appellant's argument regarding unfair prejudice simply asserts that the
evidence regarding the syringe is inherently prejudicial. Thus, Appellant has failed to
establish that the probative value of the evidence was significantly or substantially
outweighed by its prejudicial effect. See Segundo, 270 S.W.3d at 87-88; Sanders, 255
S.W.3d at 760. See also Wyatt, 23 S.W.3d at 26 ("[a]ny evidence presented by the
State is generally prejudicial to the defendant"). Appellant's knowledge of the
methamphetamine in the van and residence were seriously contested. Although
Thomas's testimony linked Appellant to the methamphetamine in the van and his
vehicle, Appellant denied knowledge of either. A small amount of powdered
methamphetamine was found on Thomas's person at the time of arrest, but, at the jail,
Appellant was in possession of a syringe containing a clear liquid similar in appearance
to that in the van where Thomas testified Appellant was cooking methamphetamine.
One theory advanced by Appellant through cross-examining witnesses and his direct
testimony was that Thomas was not credible. Therefore, as between testimony offered
by Thomas and the testimony offered by Appellant, evidence pertaining to the syringe
was relevant to the issue of credibility.
Moreover, the time necessary to present this extraneous offense evidence
represented a negligible portion of the State's case at trial. Limiting instructions were
11 given by the trial court and subsequently emphasized by defense counsel during closing
arguments. Further, there is no evidence of record that the jury disregarded the trial
court's limiting instructions. See Vega v. State, 255 S.W.3d 87, 105 (Tex.App.--Corpus
Christi 2007, pet. ref'd) ("any error was harmless because the [limiting] instruction,
which we presume the jury followed, identified material issues for which the evidence
could be considered under Rule 404(b)" and appellant offered no evidence rebutting the
presumption that the jury followed the trial court's instructions). Accordingly, issue one
is overruled.
C. Issue Two
At the pretrial hearing, the trial court indicated that evidence of the circumstances
surrounding Appellant's arrest in July of 2004 was relevant to show intent, knowledge,
absence of mistake or accident. We agree.
Evidence that Appellant possessed methamphetamine at his father's residence
on a later occasion is circumstantial evidence that Appellant intentionally or knowingly
possessed methamphetamine on an earlier occasion. See Wingfield v. State, 197
S.W.3d 922, 925 (Tex.App.--Dallas 2006, no pet.) (evidence that appellant had used
marijuana on other occasions "was circumstantial evidence that appellant intentionally
or knowingly possessed marijuana on [date alleged]"); Mason v. State, 99 S.W.3d 652,
656 (Tex.App.--Eastland 2003, pet. ref'd) (evidence appellant possessed cocaine two
years after charged offense "admissible as circumstantial evidence of appellant's
knowing possession of cocaine in this case"). See Rogers v. State, 853 S.W.2d 29, 32
12 (Tex.Crim.App. 1993) (evidence that appellant possessed marijuana "could arguably
make it more probable that the appellant would also be inclined to be in possession of
another type of illegal substance (methamphetamine)").
Again, much of what Appellant asserts is that the evidence of the July 2004
incident is inherently prejudicial while failing to establish that the probative value of the
evidence was significantly or substantially outweighed by its prejudicial effect. See
Segundo, 270 S.W.3d at 87-88; Sanders, 255 S.W.3d at 760. Again, Appellant's
knowledge of the methamphetamine in the van and residence were seriously contested
and although Thomas's testimony linked Appellant to the methamphetamine in the van
and the vehicle, Appellant denied knowledge of either.
Moreover, again, the time necessary to present this extraneous offense evidence
represented a negligible portion of the State's case at trial and the limiting instruction
given by the trial court was subsequently emphasized by defense counsel in his closing
argument. Further, there is no evidence in the record that the jury disregarded the trial
court's limiting instructions and it is difficult to find either prejudice or jury confusion
when Appellant testified on direct examination regarding the July 2004 incident and
Appellant's counsel argued the incident in his closing argument. See Vega, 255 S.W.3d
at 105. Accordingly, issue two is overruled.
II. Issue Three -- Sufficiency of the Evidence
Appellant asserts the State's evidence in support of its contention that he had
exercised actual care, custody, control, or management over the methamphetamine
13 discovered in Thomas's vehicle, the van, and his father's residence was legally and
factually insufficient.
While this appeal was pending, the Court of Criminal Appeals held that appellate
courts were to review the sufficiency of evidence in a criminal case using only the legal
sufficiency standard. See Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.
2010) 12 In Brooks, the Court held that the only standard that a reviewing court should
apply in determining whether the evidence in a criminal proceeding is sufficient to
support each element of the criminal offense beyond a reasonable doubt is the standard
set forth in Jackson v. Virginia. 13 Thus, since the Court has abolished factual
sufficiency review, we need not address Appellant's challenge to the factual sufficiency
of the evidence.
In assessing the sufficiency of the evidence to support a criminal conviction
under the standard enunciated in Jackson v. Virginia, this Court considers all the
evidence in a light most favorable to the verdict and determines whether, based on that
evidence and reasonable inferences to be drawn therefrom, a rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Jackson,
12 Judge Hervey delivered the opinion in Brooks, joined by Judges Keller, Keasler, and Cochran; and, Judge Cochran delivered a concurring opinion, joined by Judge Womack. Although we are not bound by a decision of four judges, Pearson v. State, 994 S.W.2d 176, 177 n.3 (Tex.Crim.App. 1999), we read the combined opinions of Judges Hervey and Cochran in Brooks as abandoning factual sufficiency as an evidentiary sufficiency standard of review distinct from legal sufficiency. 13 Jackson v. Virginia, 443 U.S. 307, 335 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
14 443 U.S. at 319; Brooks, 323 S.W.3d at 912. When conducting such a review, this
Court is required to defer to the jury's role as the sole judge of witness credibility, and
the weight their testimony is to be afforded. Id. at 899. See Dewberry v. State, 4
S.W.3d 735, 740 (Tex.Crim.App. 1999).
To find legal sufficiency, "[e]ach fact need not point directly and independently to
the guilt of the defendant, as long as the cumulative force of the incriminating
circumstances is sufficient to support the conviction." Hooper v. State, 214 S.W.3d 9,
13 (Tex.Crim.App. 2007). However, if, given all the evidence, a rational jury would
necessarily entertain a reasonable doubt of the defendant's guilt, due process requires
that we reverse and order a judgment of acquittal. Swearingen v. State, 101 S.W.3d 89,
95 (Tex.Crim.App. 2003) (citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App.
1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993)).
B. Applicable Law
To support the verdict rendered in this case, the State was required to prove that
Appellant knowingly possessed a controlled substance, to-wit: methamphetamine, in an
amount of four grams or more but less than 200 grams with intent to deliver. To prove
possession, the State was required to show that Appellant (1) exercised "actual care,
custody, control, or management" of the substance and (2) knew the matter possessed
was contraband. See §§ 481.002(38) & 481.112(d). (West 2010); Poindexter v. State,
153 S.W.3d 402, 405-06 (Tex.Crim.App. 2005).
15 Where, as here, the accused does not have actual possession of the controlled
substance or exclusive possession of the locale where the controlled substance was
found, it cannot be concluded or presumed that the accused had possession over the
contraband unless there are independent facts or circumstances that tend to connect or
link the accused to the knowing possession of the contraband. Evans v. State, 202
S.W.3d 158, 161-62 (Tex.Crim.App. 2006).
There are numerous nonexclusive factors that, under the unique circumstances
of each case, have been recognized as contributing to an evaluation of whether an
accused is linked to the contraband. See Triplett v. State, 292 S.W.3d 205, 208
(Tex.App.--Amarillo 2009, pet. ref'd). Those links include, but are not limited to: (1) the
defendant's presence when a search is conducted; (2) whether the contraband is in
plain view; (3) the defendant's proximity to and accessibility of the contraband; (4)
whether the defendant was under the influence of contraband when arrested; (5)
whether the defendant possessed other contraband or narcotics when arrested; (6)
whether the defendant made any incriminating statements when arrested; (7) whether
the defendant attempted to flee; (8) whether the defendant made any 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 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; (14) whether the conduct of the defendant indicated a consciousness of guilt.
Evans, 202 S.W.2d at 162 n.12. See Triplett, 292 S.W.3d at 208; Figueroa v. State,
16 250 S.W.3d 490, 500 (Tex.App.--Austin 2008, pet. ref'd) (citing Brown v. State, 911
S.W.2d 744, 745 (Tex.Crim.App. 1995), cert. denied, No. 08-7719, 2009 U.S. LEXIS
1276 (U.S. Tex. Feb. 23, 2009)).
These factors, however, are simply that--factors which may circumstantially
establish the sufficiency of evidence offered to prove a knowing "possession." Evans,
202 S.W.3d at 162 n.12 ("They are not a litmus test.") Furthermore, there is no set
formula that an appellate court can use to determine if there are sufficient links to
support an inference of knowing possession of drugs. Taylor v. State, 106 S.W.3d 827,
831 (Tex.App.--Dallas 2003, no pet.). Each case must be examined according to its
own facts on a case-by-case basis; Roberson v. State, 80 S.W.3d 730, 736 (Tex.App.--
Houston [1st Dist.] 2002, pet. ref'd), and the number of links is not as important as the
combined logical force of all the evidence tending to link the accused to the contraband.
Evans, 202 S.W.3d at 162, 166.
C. Analysis
Viewing the evidence in a light most favorable to the verdict, the evidence at trial
indicated that, on January 22, 2004, Appellant was seen at his father's residence with
methamphetamine. Materials used to make methamphetamine were seen inside the
van and Appellant was observed preparing to make methamphetamine with those
materials. On January 23, 2004, Appellant was observed coming out of the van after
"gassing" methamphetamine. Sergeant Ybarra discovered a small amount of
methamphetamine in Appellant’s father's residence in a desk drawer and two glass
17 containers of clear, liquid methamphetamine in a small refrigerator in the van parked in
Appellant’s father's yard.
When Appellant was searched at the Lubbock County Jail shortly after his arrest,
he had a syringe in his sock filled with a clear liquid. The syringe discovered on
Appellant at the jail matched a syringe found in the console of the vehicle he had been
riding in as a passenger. Beside the passenger seat, a black leather pouch containing
small plastic bags filled with methamphetamine and a set of digital scales was found.
Underneath the passenger seat, a bag containing a substantial amount of
methamphetamine was found. In the vehicle's ashtray, was a burnt marijuana cigarette
which Appellant admitted smoking. In addition, Appellant was observed making furtive
movements inside Thomas's vehicle. Thomas denied knowing about any
methamphetamine in his vehicle and testified the methamphetamine in his vehicle, the
van, and Appellant's father's residence did not belong to him. Further, while sitting in
the DPS cruiser, Appellant told Thomas that, if he would take the rap, he would bail him
out of jail.
When an arrest warrant was later served on Appellant, he was found in
possession of methamphetamine and multiple items of drug paraphernalia, i.e.,
syringes, a glass pipe, propane torches, and two plastic bags of a leafy substance.
Appellant admitted that when he was at his father's house he was using and had
possessed methamphetamine that belonged to a friend.
18 In support of this appeal, Appellant primarily argues conflicts in the testimony of
Thomas, Appellant, and Appellant's father while drawing all inferences from the
evidence in favor of Appellant and against the verdict. As an appellate court, we do not
resolve any conflicts of fact, weigh any evidence, or evaluate the credibility of any
witnesses. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999) ("When
reviewing the evidence, our role is not to become a thirteenth juror.") Rather, we give
deference to the fact finder to fairly resolve conflicts in testimony, to weigh evidence,
and to draw reasonable inferences from basic facts to ultimate facts; Hooper v. State,
214 S.W.3d 9, 13 (Tex.Crim.App. 2007), while resolving any inconsistencies in favor of
the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991).
Given the combined logical force of the evidence most favorable to the verdict,
we find the evidence sufficiently links Appellant to the methamphetamine to the requisite
level of confidence that a rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. Appellant's third issue is overruled.
Conclusion
The trial court’s judgment is affirmed.
Patrick A. Pirtle Justice
Do not publish.