                                         NO. 07-10-0347-CR

                                   IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                            AT AMARILLO

                                                PANEL A

                                     OCTOBER 25, 2011
                              ______________________________


                          GREGORY WAYNE WILSON, APPELLANT

                                                    V.

                               THE STATE OF TEXAS, APPELLEE

                            _________________________________

               FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

              NO. 57,774-E; HONORABLE DOUGLAS WOODBURN, JUDGE

                              _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                     MEMORANDUM OPINION


        Appellant, Gregory Wayne Wilson, was convicted by a jury for possession of a

controlled substance1 enhanced by two prior state jail felonies2 and assessed

punishment at ten years confinement and a $7,500 fine. In a single point of error,


1
 See Tex. Health & Safety Code Ann. § 481.115(b) (West 2010). An offense under this section is a state
jail felony. Throughout the remainder of this opinion, provisions of the Texas Health and Safety Code will
be cited as “section ___” and/or “§ ___.”
2
 See Tex. Penal Code Ann. § 12.42(a)(1) (West 2011). If it is shown on the trial of a state jail felony that
a defendant has previously been convicted of two state jail felonies, on conviction the defendant shall be
punished for a third-degree felony.
Appellant contends the State’s evidence was legally insufficient to establish that

Appellant intentionally and knowingly possessed a controlled substance. We modify the

trial court’s judgment to clarify that payment of $2,200 in court-appointed attorney’s fees

is not a part of the court costs ordered in the case and affirm the judgment as modified.


                                           Background


       On July 10, 2008, a Potter County Grand Jury returned an indictment alleging

that, on or about April 26, 2008, Appellant intentionally or knowingly possessed a

controlled substance, cocaine, in an amount of less than one gram by aggregate weight

including any adulterants and dilutants.


       On August 2 and 3, 2010, a jury trial was held. Rudolph Moreno testified he went

to Appellant’s house to buy crack cocaine. Appellant told Moreno that he did not have

any cocaine at his residence but he could buy some elsewhere. Moreno gave Appellant

twenty dollars and the keys to his car so that Appellant could go and purchase the

cocaine. Moreno testified there were no drugs, drug paraphernalia or passengers in his

car when he lent it to Appellant.


       Officer Will Dempsey of the Amarillo Police Department ("APD") testified that, on

April 26, 2008, he was answering service calls and attempting to make traffic stops of

vehicles leaving known narcotics houses. Officer Dempsey was in the area of 602

North Washington Street3 when he spotted Moreno’s car parked in the driveway. The

car backed out of the driveway and he followed. When the car exceeded the speed
3
 Officer Dempsey had received information that residents were selling narcotics out of this house. APD
officers had made traffic stops of other vehicles leaving the house and found narcotics on occupants
thereof.


                                                  2
limit, he turned on his overhead lights and stopped the car. As he approached the car,

he observed Appellant and a passenger. Because he had stopped Appellant several

times before and written him tickets, Dempsey’s supervisor had given him permission to

arrest Appellant on sight for driving without a license.                       He arrested Appellant,

handcuffed him and placed him in the back of his patrol car. Before placing him in the

backseat, he patted Appellant down and found nothing. Having determined the car was

owned by Moreno, Officer Dempsey called for a wrecker to impound the car.4


        APD Officer Thomas Newton testified that he arrived after Officer Dempsey had

initiated the traffic stop and witnessed Officer Dempsey escort Appellant to his patrol

car. Officer Newton then approached the passenger and removed her from the car.5

While Officer Dempsey was finishing his paperwork on the arrest and impoundment,

Officer Newton conducted an inventory search incident to impoundment.                             From the

outside of the car, he observed a white rock on the floorboard of the car on the driver’s

side. He believed the white rock was cocaine. Upon closer examination of the area

surrounding the white rock, he discovered small pieces of Brillo6 imbedded in the car’s

carpet. He testified that, based on his experience, the white rock was the size of a




4
 Prior to impounding a car, Officer Dempsey testified police procedure required that a vehicle slip be filled
out with a description of everything found in the vehicle. He testified that the inventory lists everything in
the car so that, if it is broken into at the impound lot, the owner cannot allege that something was missing
when the item was not in the car to begin with.
5
 The passenger was not arrested. She told Officer Newton that she was attempting to persuade
Appellant to take her to the hospital; however, when Officer Newton offered to call an ambulance or take
her to the hospital himself, she refused.
6
 Officer Newton testified that Brillo was often used as a filter when smoking crack cocaine. Upon further
inspection, Officer Newton also found Brillo fragments on the car seats in the front and rear of the car.


                                                      3
twenty dollar rock of cocaine – a typical unit dosage for a user.7 Judging from its

appearance, he testified the rock had recently been placed there.


       At the trial’s conclusion, the jury found Appellant "guilty" and also found the two

enhancement paragraphs in the indictment “true.” The trial court subsequently issued

its judgment wherein Appellant was sentenced to ten years confinement and fined

$7,500.     In its judgment, the trial court also ordered payment of court costs.               The

attached Bill of Costs included court-appointed attorney’s fees of $2,200 as a part of

those costs.


                                           Discussion


       Even though Appellant was driving and exercising care, custody, control and

management over the car where the cocaine was found, Appellant asserts the State’s

evidence was insufficient to establish he knew the white rock laying on the car’s

floorboard was there, much less that he knew it was a controlled substance. Appellant

also asserts the State's evidence is insufficient because (1) there was a third-party

present who could have possessed the cocaine, and (2) there was some evidence that

Appellant did not have any cocaine on his person when he left his residence and he

never made a stop prior to being pulled over by Officer Dempsey.


       I.      Legal Sufficiency


        The only standard that a reviewing court should apply in determining whether

the evidence is sufficient to support each element of a criminal offense the State is
7
 Brandon Conrad, manager of the Texas Department of Public Safety Crime Laboratory, testified that he
tested the rock and determined it to be crack cocaine.


                                                 4
required to prove beyond a reasonable doubt is the standard set forth in Jackson v.

Virginia, 443 U.S. 307, 33 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Brooks v. State, 323

S.W.3d 893, 912 (Tex.Crim.App. 2010).           Under that standard, in assessing the

sufficiency of the evidence to support a criminal conviction, this Court considers all the

evidence in the 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. See

Jackson, 443 U.S. at 319; Brooks, 323 S.W.2d at 912. This standard gives full play to

the responsibility of the trier of fact to resolve conflicts in testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson, 443 U.S. at 319. See Hooper v. State, 214 S.W.3d 9, 15 (Tex.Crim.App.

2007).


         Further, the trier of fact is the sole judge of the weight of the evidence and

credibility of the witnesses; Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979);

Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000), and we may not re-

evaluate the weight and credibility determinations made by the factfinder. Dewberry v.

State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999).         Reconciliation of conflicts in the

testimony is within the exclusive province of the jury, Losada v. State, 721 S.W.2d 305,

309 (Tex.Crim.App. 1986), and a jury may choose to believe some, all, or none of the

testimony presented. Id. Thus, we resolve any inconsistencies in the evidence in favor

of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000).




                                            5
       A. Possession of a Controlled Substance


       To support the verdict rendered in this case, the State was required to prove that

Appellant knowingly possessed a controlled substance, cocaine, in an amount of less

than one gram. 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 § 481.115(b). See also Poindexter v.

State, 153 S.W.3d 402, 405-06 (Tex.Crim.App. 2005).


       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

link8 the accused to the knowing possession of the contraband.                     Poindexter, 153

S.W.3d at 406; Evans v. State, 202 S.W.3d 158, 161-62 (Tex.Crim.App. 2006).


       Numerous nonexclusive factors 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) whether the contraband was in plain view or recovered from an enclosed

place or container; (2) whether the defendant was the owner of the premises or had the

right to possess or control the place where the contraband was found; (3) whether the

contraband was conveniently accessible to the defendant; (4) whether the defendant

8
 A link is a fact or circumstance which generates a reasonable inference that the defendant knew of the
contraband’s existence and exercised control over it. Lair v. State, 265 S.W.3d 580, 600 (Tex.App.—
Houston [1st Dist.] 2008, pet. ref’d). The evidence demonstrating such links may be direct or
circumstantial. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995).

                                                  6
had a special connection with the contraband; and (5) whether any forensic evidence

(e.g., fingerprints, DNA, etc.) connects the defendant to the contraband and its

container; see id.; Evans, 202 S.W.3d at 162 n.12; (6) whether the defendant was

present when the search was conducted; (7) whether the defendant possessed other

contraband or narcotics when arrested; (8) whether the defendant made incriminating

statements when arrested; (9) whether the defendant attempted to flee; (10) whether

other contraband or drug paraphernalia were present; (11) whether the defendant was

found with a large amount of cash; and (12) whether the conduct of the defendant

indicated a consciousness of guilt. Figueroa v. State, 250 S.W.3d 490, 500 (Tex.App.--

Austin 2008, pet. ref’d), cert. denied, ___ U.S. ___, 129 S.Ct. 1340, 173 L.Ed.2d 609

(2009) (citing Brown v. State, 911 S.W.2d 744, 745 (Tex.Crim.App. 1995)).


      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 reviewed

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.


      B. Analysis


      Viewing the evidence in a light most favorable to the verdict, the evidence at trial

established at least five of the thirteen links listed above. Moreno went to Appellant’s

house looking to purchase cocaine. Appellant informed Moreno that he did not have the


                                            7
cocaine on hand and needed to purchase the cocaine elsewhere.                Appellant then

borrowed Moreno’s car and was given twenty dollars to purchase cocaine. Moreno

testified that, when Appellant left, the car contained no drugs and there was no

passenger. Later, Officer Dempsey spotted Appellant leaving another residence that

was a known narcotics house. After Appellant was stopped, Officer Dempsey searched

Appellant but did not find the twenty dollars intended for the cocaine purchase. When

Officer Newton conducted his inventory search of the car, however, he discovered

cocaine, in plain view, in an area of the car that was conveniently accessible to

Appellant who was present and the cocaine appeared to have been recently placed on

the floorboard. Further, the cocaine and the floorboard were located on the driver’s side

of the car. Officer Newton also testified that the cocaine was a twenty dollar rock – an

amount typically sufficient for a single dose. These circumstances tend to connect

Appellant to the knowing possession of the cocaine.


       Accordingly, we cannot say that the evidence is so weak that it insufficiently links

Appellant to the cocaine, or that it fails to establish, to the requisite level of confidence,

that a rational trier of fact could have found Appellant knowingly possessed a controlled

substance, to-wit: cocaine, beyond a reasonable doubt. Appellant’s issue is overruled.




                                              8
        II.      Court-appointed Attorney’s Fees


        We also note an issue not raised by Appellant regarding the assessment of

attorney’s fees.9 The written judgment in this case reflects an assessment of court-

appointed attorney’s fees totaling $2,200, as court costs. In order to assess attorney’s

fees as court costs, a trial court must determine that the defendant has financial

resources that enable him to offset in part, or in whole, the costs of the legal services

provided. Tex. Code Crim. Proc. Ann. art. 26.05(g) (West 2009). Here, the clerk’s

record reflects the trial court found Appellant indigent and unable to afford the cost of

legal representation before trial in April 2008, and after trial in August 2010. Unless a

material change in his financial resources occurs, once a criminal defendant has been

found to be indigent, he or she is presumed to remain indigent for the remainder of the

proceedings. Tex. Code Crim. Proc. Ann. art. 26.04(p) (West Supp. 2010). Therefore,

because there is evidence of record demonstrating that immediately following rendition

of judgment Appellant was indigent and qualified for court-appointed counsel, we

presume his financial status had not changed, i.e., that he was indigent at the time the

trial court entered judgment.


        Furthermore, the record must reflect some factual basis to support the

determination that the defendant is capable of paying attorney’s fees. Perez v. State,

323 S.W.3d 298, 307 (Tex.App.—Amarillo 2010, pet. ref’d). See Barrera v. State, 291

S.W.3d 515, 518 Amarillo 2009, no pet.); Perez v. State, 280 S.W.3d 886, 887
9
 Courts of appeals may review unassigned error in criminal cases, particularly where the record discloses
error that should be addressed in the interest of justice. Hammock v. State, 211 S.W.3d 874, 878
(Tex.App.—Texarkana 2006, no pet.). Where, as here, the error appears on the face of the judgment and
does not involve the merits of the criminal trial, but instead solely addresses the clerical correctness of the
judgment, we find that the interest of justice allows us to address the issue. Perez v. State, 323 S.W.3d
298, 307 (Tex.App.—Amarillo 2010, pet. ref’d).

                                                      9
(Tex.App.—Amarillo 2009, no pet.). We note that the record in this case does not

contain a pronouncement, determination, or finding that Appellant had financial

resources that enable him to pay all, or any part of, the fees paid his court-appointed

counsel, and we are unable to find any evidence to support such a determination.

Therefore, we conclude that the order to pay attorney’s fees was improper. See Mayer

v. State, 309 S.W.3d 552, 555-56 (Tex.Crim.App. 2010). No trial objection is required to

challenge the sufficiency of the evidence regarding the defendant’s ability to pay. Id.

When the evidence does not support an order to pay attorney’s fees, the proper remedy

is to delete the order from the judgment. Id. at 557. See also Anderson v. State, No.

03-09-00630-CR, 2010 Tex. App. LEXIS 5033, at *9 (Tex.App.—Austin, July 1, 2010,

no pet.) (not designated for publication) (modifying judgment to delete court-appointed

attorney’s fees).   Accordingly, we modify the judgment to delete the order to pay

attorney’s fees.


                                      Conclusion


       Having modified the trial court’s judgment to delete the order obligating Appellant

to pay $2,200 in court-appointed attorney’s fees, the judgment, as modified, is affirmed.




                                                Patrick A. Pirtle
                                                    Justice



Do not publish.




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