                                       NO. 07-02-0308-CR

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL E

                                     AUGUST 12, 2003
                             ______________________________

                                   GERALD LOYD WRIGHT,

                                                              Appellant

                                                  v.

                                    THE STATE OF TEXAS,

                                                  Appellee
                          _________________________________

               FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

                    NO. 44521-C; HON. JOHN T. FORBIS, PRESIDING
                          _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1

       In one issue, appellant Gerald Loyd Wright contends that the evidence is factually

insufficient to support his conviction for possessing, with intent to deliver, a controlled

substance in the amount of four grams or more but less than 200 grams within a drug free

zone. We affirm the judgment.

                                        Background




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       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t
Code Ann. §75.002(a)(1) (Vernon 1998).
       On June 21, 2001, a search warrant was executed upon a one-bedroom residence

located at 700 S. Forest, Apartment C, in Amarillo by the Panhandle Regional Narcotics

Task Force. Appellant was the lessee of the apartment. At the time of entry, appellant

was observed in the kitchen where he threw a plastic bag into the sink. The plastic bag

was later determined to contain 2.15 grams of methamphetamine. Two other individuals,

Jonathan Ballou Ogden and Dawn Rae LaRowe (who also resided at the apartment with

appellant) were found lying on a makeshift bed in the living room. Ogden had a small

amount of methamphetamine in his pocket and a small amount of cocaine was found in

LaRowe’s purse.

       The odor of ether was found emanating from the bedroom. Within a closet of that

only   bedroom     the   officers   discovered    paraphernalia    used    to   manufacture

methamphetamine as well as a letter addressed to appellant. Methamphetamine was also

found elsewhere in the apartment, including the freezer compartment of the refrigerator.

                            Factual Sufficiency of the Evidence

       In his sole issue, appellant argues that the evidence is factually insufficient to show

he possessed a controlled substance in the amount of four grams because he was not the

only person with access to the apartment, and the only controlled substance that can be

attributed to him was the 2.15 grams of methamphetamine found in the plastic bag which

he threw into the sink. We overrule the issue.

       Standard of Review

       The standard by which we review a factual sufficiency challenge is well established,

and we need not reiterate it. Instead, we cite the parties to Sims v. State, 99 S.W.3d 600,


                                              2
601 (Tex. Crim. App. 2003), Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex. Crim. App.

2003), and King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000) for its explanation.

       Next, the State indicted appellant for “intentionally and knowingly possess[ing], with

intent to deliver, a controlled substance, namely, METHAMPHETAMINE, in an amount of

4 grams or more but less than 200 grams . . . .“ To secure a conviction for this offense,

and even though evidence which shows joint possession may be sufficient to gain such

a conviction, Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988), the State must

prove that the defendant exercised care, custody, or control over the drugs, was conscious

of his connection with the drugs, and knew the substance to be drugs. Brown v. State, 911

S. W.2d 744, 747 (Tex. Crim. App. 1995); Park v. State, 8 S.W.3d 351, 352 (Tex. App.--

Amarillo 1999, no pet.).     Furthermore, the evidence proving guilt may be direct or

circumstantial; yet, irrespective of its nature, it must nevertheless be adequate to illustrate,

“to the requisite level of confidence, that the . . . connection with the drug was more than

just fortuitous.” Brown v. State, 911 S.W.2d at 747. The courts also have developed

various indicia deemed helpful in assessing the accused’s links to the drug. Though not

exclusive, they include such things as whether 1) the accused was present when the

search was conducted, 2) the contraband was plainly visible by those present, 3) the drugs

were near the defendant, 4) the defendant was found under the influence of the substance

found, 5) the defendant possessed other contraband or drug paraphernalia when arrested,

6) the defendant made incriminating statements, 7) the defendant attempted to flee, 8) the

defendant made furtive gestures, 9) the contraband emitted a recognizable odor at the

time, 10) other contraband or drug paraphernalia was present, 11) the defendant had the


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exclusive or joint possession of the locale at which the drugs were found, 12) the place

where the drugs were found was enclosed, 13) the accused attempted to conceal the

contraband, and 14) the accused was familiar with the type of contraband. Kyte v. State,

944 S.W.2d 29, 31 (Tex. App.--Texarkana 1997, no pet.); Hurtado v. State, 881 S.W.2d

738, 743 n.1 (Tex. App.--Houston [1st Dist.] 1994, pet. ref’d). Lastly, the number of factors

established is not as important as the degree to which they tend to affirmatively link the

defendant to the contraband. Wallace v. State, 932 S.W.2d 519, 524 (Tex. App.--Tyler

1995, pet. ref’d).

       Application of the Standard

       Evidence of record shows that 1) appellant was the lessee of the apartment and

was present when it was searched; 2) a letter addressed to appellant at the address of the

apartment was found in the living room and an envelope in his name was found in the

bedroom; 3) appellant was in possession of an amount of methamphetamine which he

threw into the sink at the time police entered the apartment; 4) paraphernalia used in

making methamphetamine (such as ether, drain cleaner, muriatic acid, a funnel, plastic

lids, a hose, a fire retardant vessel, plastic baggies, wire cutters, pliers, a paint scraper,

a cooking spatula, a three liter Coke lid with a hole in the top, used coffee filters, electrical

tape, 11 to 20 boxes of pseudoephedrine, two boxes of Benadryl, and propane cylinders

that apparently once contained anhydrous ammonia), were found either in the apartment

or bedroom of the apartment; 5) the bedroom smelled strongly of ether; 6)

methamphetamine was found in plastic bags in the freezer in the kitchen one of which

contained 7.97 grams of methamphetamine; 7) a syringe containing methamphetamine


                                               4
was found in a Chex mix box in the kitchen; 8) a notebook (“drug ledger”) containing

names and dollar amounts was found in the kitchen; 9) a white plate, single edged razor

blade such as used to cut methamphetamine along with methamphetamine residue in a

plastic bag was found in the kitchen; 10) a set of scales was found in the apartment; and

11) a police scanner was found in the apartment. Furthermore, at least one of appellant’s

fingerprints were discovered on the “drug ledger.”

         That two other persons were present on a mattress in the living room when the

police arrived does not negate the evidence that appellant was in possession of an amount

of a controlled substance at the time of the search.2 Nor does it rebut the reasonable

inference arising from the presence of methamphetamine in locations easily accessible to

appellant and of drug manufacturing paraphernalia found in the closet of the sole bedroom

of the apartment (a bedroom wherein mail addressed to appellant was discovered). The

reasonable inference alluded to is the one establishing that appellant either owned or

controlled the methamphetamine and drug paraphernalia. See Stroman v. State, 69

S.W.3d 325, 330-31 (Tex. App.--Texarkana 2002, pet. ref’d) (holding the evidence

factually sufficient even though the defendant shared the residence with his wife where the

defendant was present when drug transactions were conducted; he was present when the

search was made; some of the contraband was in plain view; he was close to the

contraband and it was easily accessible to him; there was an odor of contraband; drug

paraphernalia was present; he was the legal and actual possessor of the place where the



         2
             Appellant had requested permission from the landlord for those persons to live or temporarily stay
there.

                                                        5
contraband was found; and the place where the contraband was found was enclosed).

Levario v. State, 964 S.W.2d 290, 294 (Tex. App.--El Paso, 1997, no pet.) (holding the

evidence was factually sufficient where the defendant was standing next to the bed when

the officers entered; on the bed was a spoon for ingesting cocaine; next to the bed was a

straw with white residue on it; all contraband was visible and accessible to the defendant;

and additional contraband was accessible in the closet containing men’s clothes even

though the defendant shared the bedroom with someone else).

       Given the foregoing evidence, and the truism that the jury can choose what

evidence to believe or disbelieve, we cannot say that the evidence of guilt was so weak

as to render the verdict clearly wrong or manifestly unjust nor that the finding of guilt is so

contrary to the great weight and preponderance of the evidence as to be clearly wrong.

See Zuliani v. State, 97 S.W.2d at 593. Therefore, the jury’s verdict is supported by

factually sufficient evidence.

       Accordingly, the judgment of the trial court is affirmed.



                                                   Per Curiam



Do not publish.




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