AFFIRMED; Opinion Filed June 4, 2014.




                                               S
                                   Court of Appeals
                                                    In The


                            Fifth District of Texas at Dallas
                                            No. 05-12-01620-CR

                                   JORGE ALVARADO, Appellant
                                              V.
                                  THE STATE OF TEXAS, Appellee

                         On Appeal from the Criminal District Court No. 7
                                      Dallas County, Texas
                              Trial Court Cause No. F11-25903-Y

                                 MEMORANDUM OPINION
                            Before Justices FitzGerald, Fillmore, and Evans
                                       Opinion by Justice Evans
        A jury convicted Jorge Alvarado of possession with intent to deliver methamphetamine in

an amount of four grams or more but less than 200 grams. The trial court sentenced him to eight

years’ imprisonment. In three issues, appellant argues the evidence was legally insufficient to

support the verdict and the trial court erred by admitting an improperly authenticated videotape

and evidence of his unrecorded custodial statement. We affirm the trial court’s judgment.

                                              BACKGROUND

        Pursuant to our duty to view the evidence in the light most favorable to the verdict, the

following evidence was presented to the jury. On January 30, 2011, Garland Police Officer J.

Kirby testified that he was checking license plates for stolen cars and warrants while on patrol. 1

    1
      Officers enter the license plate number into a database from their patrol car computer to gather information
about the vehicle, including whether it has been reported stolen.
At the intersection of Jupiter and Miller, he checked the license plate of a black Toyota and

received a return that the vehicle was reported stolen on January 25, 2011. Officer Kirby

notified dispatch he was behind a stolen vehicle and requested backup units. After the Toyota

turned into a gas station, Kirby turned on his lights and stopped the vehicle with the assistance of

Officer Chad Stallings who had responded to Kirby’s backup request. Officer Jeffrey Hammett

also responded to Kirby’s request for backup. Hammett arrived at the scene after Kirby and

Stallings were out of their patrol cars and had their guns pointed at the stolen vehicle. All three

officers testified that the driver and passenger in the vehicle did not immediately exit as directed

and were moving around inside the passenger compartment. The evidence suggested that the

occupants took somewhere between fifteen to thirty seconds to get out of the car. Kirby and

Stallings both stated the occupants’ actions inside the vehicle suggested they were either hiding

something or retrieving something. The driver and passenger were arrested after exiting the

vehicle. Appellant was later identified as the driver.

        A search of the stolen vehicle revealed a gun under the driver’s seat and a cardboard

Sprint cell phone box containing scales, ten bags of methamphetamine and one bag of heroin,

and baggies used to package narcotics for distribution. The box was in an “open tray area”

between the two front seats. 2 Kirby testified the box was within appellant’s immediate reach as

the driver of the vehicle. There was also expert testimony that the amount of methamphetamine

found, 7.66 grams, had a wholesale value of between $400 to $800 and was                            an amount

possessed by someone who is selling drugs rather than a user. Appellant testified in his own

defense and denied knowledge of the drugs and the gun found in the vehicle.




    2
      Kirby testified the interior of the vehicle was stripped out. The floorboard was missing, door paneling was
gone and there was no lift-up console in the console area but rather an “open tray area.”


                                                      –2–
                                           ANALYSIS

I.     Sufficiency of the Evidence

       In his first issue, appellant challenges the legal sufficiency of the evidence to support his

conviction. Specifically, he argues that there were no legally sufficient links demonstrating that

he knowingly possessed the drugs found in the car. We disagree.

       In reviewing the sufficiency of the evidence, we view 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 v. Virginia, 443 U.S. 307,

313 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). We assume the fact

finder resolved conflicts in testimony, weighed the evidence, and drew reasonable inferences in a

manner that supports the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

We also defer to the trier of fact’s determination of witness credibility and the weight to be given

their testimony. Brooks, 3232 S.W.3d at 899.

       To establish unlawful possession of a controlled substance, the State must prove that

appellant exercised control, management, or care of the substance, and that appellant knew the

matter possessed was contraband. See Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim.

App. 2005). The evidence may be either direct or circumstantial, but must show the appellant’s

connection to the drugs was more than just fortuitous. See Evans v. State, 202 S.W.3d 158, 161–

62 (Tex. Crim. App. 2006). Although appellant’s mere presence where drugs are found, without

more, is insufficient to establish possession, appellant’s proximity to the drugs combined with

other evidence can prove possession beyond a reasonable doubt. See id. at 162.

       A nonexclusive list of factors that can be sufficient either singly or in combination, to

establish possession of contraband include: (1) presence when search is conducted; (2) whether

the contraband is in plain view; (3) proximity to and the accessibility of the contraband, (4) the


                                                –3–
accused being under the influence of narcotics when arrested; (5) possession of other contraband

or narcotics when arrested; (6) incriminating statements made by the accused when arrested; (7)

an attempt to flee; (8) furtive gestures; (9) an odor of contraband; (10) the presence of other

contraband or drug paraphernalia; (11) whether the accused 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) possession of a large amount of cash; (14) conduct indicating a consciousness of

guilt; (15) the quantity of the contraband; and (16) whether the accused was the driver of the

automobile in which the contraband was found.                    See Evans, 202 S.W.3d at 162 n.12;

McQuarters v. State, 58 S.W.3d 250, 259 (Tex. App.—Fort Worth 2001, pet. ref’d). The

number of linking factors is not as important as the logical force they create to support an

inference of knowing possession of contraband. Taylor v. State, 106 S.W.3d 827, 831 (Tex.

App.—Dallas 2003, no pet.).

        Here, the evidence established that the box containing the drugs and drug paraphernalia

were in plain view and within appellant’s reach while he was in the driver’s seat of a stripped-

down, stolen vehicle. Appellant and his passenger did not immediately exit the vehicle after the

stop but moved around in the passenger area, suggesting they were attempting to hide or retrieve

something. A gun was also found under appellant’s seat. Appellant also admitted that he had

stolen the vehicle he was driving from its registered owner five days before his arrest. 3 An

expert testified that the amount of drugs found in the vehicle had a wholesale value of $400 to

$800 and that amount would be possessed by someone who is selling drugs.

        We conclude the direct and circumstantial evidence sufficiently links appellant to the

methamphetamine found in the vehicle he was driving. Viewing the evidence in the light most


    3
       Appellant indicated after stealing the vehicle, he parked at the home of his passenger’s friend. He did not
drive it again until about thirty minutes before he was stopped by the police.


                                                      –4–
favorable to the verdict, a rational jury could have found beyond a reasonable doubt that

appellant exercised care, control, custody and management over the seized drugs and knew they

were contraband. See Jackson, 443 U.S. at 319. We resolve appellant’s first issue against him.

II.    Admission of the Videotape

       In his second issue, appellant complains about the admission of a videotape of a police

search relating to appellant’s prior arrest during the punishment phase of trial.        Appellant

contends the State failed to establish the proper predicate for the videotape. We review such

evidentiary rulings for an abuse of discretion. See Page v. State, 213 S.W.3d 332, 337 (Tex.

Crim. App. 2006). The requirement of authentication is satisfied by evidence sufficient to

support a finding that the matter in question is what the proponent claims. TEX. R. EVID. 901(a).

Thus, before the videotape could be admitted, it must have been shown that it accurately

portrayed the scene at issue. See Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim. App.

1988). Officer Michael Csaszar testified that he was present at the search that was the subject of

the videotape but was not the video recorder. After reviewing the videotape, he testified as

follows:

       Q. Is [the videotape] a fair, accurate representation of the apartment on that day?

       A. Yes, Sir.

       In light of the testimony of Officer Csaszar, we cannot conclude the trial court abused its

discretion in determining the videotape was properly authenticated and admitting it into

evidence. We resolve appellant’s second issue against him.

III.   Unrecorded Custodial Statement

       In his third issue, appellant contends the trial court erred when it allowed evidence of his

unrecorded custodial statement. During the punishment hearing, Officer Kirby testified that after

appellant was arrested, he was taken to the Garland police station where he was given his


                                               –5–
Miranda 4 rights. According to Kirby, after appellant verbally waived his Miranda rights, he

questioned appellant about the vehicle, the drugs, and the gun. At this point in the officer’s

testimony, the following exchange occurred:

          [DEFENSE COUNSEL]: Judge, I guess just to maybe speed it up, if it wasn’t
          recorded, it presumably wasn’t offered at the last jury trial because it’s not
          admissible. I don’t know how it would be admissible now. Renew the same
          objection. I don’t think it’s admissible in front of the Court or in front of a jury.

          [PROSECUTOR]: If I may, I believe there’s – the nature of one of his statements
          I think may be able to –

          THE COURT: Let me hear it, . . . . I have – I don’t know that I disagree with
          what you just said, but let me hear what it is. There are some exceptions to non-
          recorded statement[sic] go ahead, . . . .

          Kirby then testified that appellant offered to “have someone bring an ounce if it would

help with the case that I arrested him on.”

          In order to preserve a complaint for appellate review, the record must show (1) appellant

timely objected and (2) the trial court either ruled on the objection or refused to make a ruling

and the complaining party objected to the trial court’s refusal.           TEX. R. APP. P. 33.1(a).

Assuming that appellant timely objected to Kirby’s testimony regarding his unrecorded custodial

statement, he never obtained a ruling on his objection.           In fact, after appellant made his

objection, the trial judge indicated that although he did not necessarily disagree with appellant’s

objection, he wanted to hear the testimony because “there are some exceptions to non-recorded

statement[s].”      As appellant acknowledges in his brief, the trial court never addressed his

objection or the admissibility of the statement again. Because appellant failed to obtain a ruling

on his objection, he has not preserved this issue for review. See TEX. R. APP. P. 33.1(a);

Kennedy v. State, 264 S.W.3d 372, 380 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). We

resolve appellant’s third issue against him.

   4
       Miranda v. Arizona, 384 U.S. 436 (1966).


                                                  –6–
       We affirm the trial court’s judgment.




                                                     /David Evans/
                                                     DAVID EVANS
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47
121620F.U05




                                               –7–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

JORGE ALVARADO, Appellant                            On Appeal from the Criminal District Court
                                                     No. 7, Dallas County, Texas
No. 05-12-01620-CR         V.                        Trial Court Cause No. F11-25903-Y.
                                                     Opinion delivered by Justice Evans,
THE STATE OF TEXAS, Appellee                         Justices FitzGerald and Fillmore
                                                     participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 4th day of June, 2014.




                                                     /David Evans/
                                                     DAVID EVANS
                                                     JUSTICE




                                               –8–
