                                  NO. 12-13-00166-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

PAUL PATE,                                       §      APPEAL FROM THE 114TH
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Paul Pate appeals his conviction for possession of methamphetamine, for which he was
sentenced to imprisonment for seven years. Appellant contends on appeal that the evidence is
legally insufficient to establish that he possessed methamphetamine. We affirm.


                                          BACKGROUND
       Appellant was arrested and indicted for possession of a controlled substance, namely,
methamphetamine. Appellant pleaded “not guilty,” and the matter proceeded to a bench trial. At
the trial, Shawn Murry, a patrol sergeant for the Troup Police Department, testified that he was
patrolling the city streets in Troup on September 22, 2012. At approximately 2:30 a.m., Sergeant
Murry spotted Appellant a block and a half away riding a bicycle in the middle of a city street. It
is a violation of a city ordinance for a minor to be out on the city streets after midnight. Because
it was after midnight, and the individual was riding a bicycle, Sergeant Murry attempted to stop
Appellant to determine if he was a minor in violation of the ordinance.
       As Sergeant Murry approached him, Appellant turned down an alleyway in an apparent
attempt to evade the officer. Sergeant Murry was able to eventually spot Appellant and then
make contact with him. Appellant was in the process of parking his bicycle and attempting to
enter his mother’s residence when Sergeant Murry stopped him. Sergeant Murry testified that
upon making contact with Appellant, he recognized Appellant and recalled that he arrested him
on one or two prior occasions for possession of a controlled substance.
        Sergeant Murry testified that, while being questioned, Appellant appeared very nervous,
continually checked his pockets, and avoided eye contact. After Sergeant Murry determined that
Appellant was not in violation of the city ordinance, he left him but decided to follow the trail
through the dew-covered grass where Appellant had ridden his bicycle. Approximately twenty
to thirty feet from where he had stopped Appellant, next to some trees, Sergeant Murry spotted a
clear plastic baggie that he believed, based on his experience, contained crystal
methamphetamine. The baggie was only two to three feet away from the fresh tracks made by
the bicycle in the grass. Sergeant Murry immediately returned to stop Appellant before he could
enter his mother’s residence and placed him under arrest by handcuffing him.
        When Appellant questioned Sergeant Murry about why he was being arrested, Sergeant
Murry replied that he discovered a baggie with crystal methamphetamine in close proximity to
the path he took when riding his bicycle. Appellant accused Sergeant Murry of lying and asked
to see the baggie for himself. When Sergeant Murry showed him where the baggie was laying
on the ground, Appellant wiggled his way out of Sergeant Murry’s control and leaped, landing
flat on his back on top of the baggie. Sergeant Murry testified that Appellant, although he was
still handcuffed, appeared to be attempting to gain possession of the baggie. Sergeant Murry
stated that he was able to pull Appellant off the baggie and regain control of him. Appellant was
then taken to jail where he was booked for possession of methamphetamine.
        Eloisa Esparaza, a forensic scientist for the Department of Public Safety, testified without
objection that the baggie contained 0.09 grams of methamphetamine. The trial court found
Appellant guilty of possession of methamphetamine. After a punishment hearing, the court
sentenced Appellant to imprisonment for seven years.1 Appellant timely filed this appeal.


                                     SUFFICIENCY OF THE EVIDENCE
        In his sole issue, Appellant contends that the evidence is legally insufficient to support
his conviction for possession of methamphetamine.



        1
         Appellant had two prior state jail felony convictions for debit card or credit card abuse, enhancing the
punishment range for this offense to that of a third degree felony. See TEX. PENAL CODE ANN. § 12.425 (West
Supp. 2013). Appellant entered a plea of “true” to the enhancements.


                                                       2
Standard of Review

        The only standard the Texas Court of Criminal Appeals applies in determining whether
the evidence is sufficient to support a criminal conviction beyond a reasonable doubt is the legal
sufficiency standard of review. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
When reviewing the sufficiency of the evidence, we consider all of the evidence in the light most
favorable to the verdict to determine whether, based on that evidence and the reasonable
inferences therefrom, a fact finder was rationally justified in finding guilt beyond a reasonable
doubt. Id. This standard gives full play to the responsibility of the trier of fact to fairly resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed.
560 (1979). When we are faced with a record of historical facts that support the conflicting
inferences, we must presume that the fact finder resolved any such conflicts in favor of the
conviction and must defer to that resolution. Id. at 326.
Applicable Law
        A person commits the offense of possession of methamphetamine if the person
knowingly or intentionally possesses methamphetamine. See TEX. HEALTH & SAFETY CODE
ANN. §§ 481.102(6), 481.115(a) (West 2010). The Texas Health and Safety Code defines
“possession” as actual care, custody, control or management.        Id. § 481.002(38) (West Supp.
2013). To prove unlawful possession of a controlled substance, the state must show that the
defendant (1) exercised care, control, and management over the controlled substance and (2)
knew it was a controlled substance. Gant v. State, 116 S.W.3d 124, 131 (Tex. App.–Tyler 2003,
pet. ref’d).
        Regardless of whether the evidence is direct or circumstantial, it must be established that
the defendant’s connection with the drug was more than fortuitous. Evans v. State, 202 S.W.3d
158, 161 (Tex. Crim. App. 2006). However, presence or proximity, when combined with other
evidence, either direct or circumstantial (e.g., “links”), may well be sufficient to establish that
element beyond a reasonable doubt. Id. at 162. Texas courts have identified a number of links
which may, alone or in combination with others, establish a person’s possession of contraband,
including the following:




                                                 3
         (1) the defendant’s presence when a search is conducted; (2) whether the contraband was in plain
         view; (3) the defendant’s proximity to and the accessibility of the narcotic; (4) whether the
         defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed
         other contraband or narcotics when arrested; (6) whether the defendant made incriminating
         statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant
         made 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; and (14) whether the
         conduct of the defendant indicated a consciousness of guilt.


Id. at n.12.
         Links are established by the totality of the circumstances, and no set formula necessitates
a finding of a link sufficient to support an inference of knowing possession. Wright v. State, 401
S.W.3d 813, 819 (Tex. App.–Houston [14th Dist.] 2013, pet. ref’d). The number of linking
factors present is not as important as the logical force they create to prove the crime was
committed. Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.–Houston [14th Dist.] 2005, no
pet.).
Discussion
         Appellant contends that the evidence is insufficient to show that he possessed the
methamphetamine. However, a number of links and other circumstances with logical force are
present here to sufficiently prove that Appellant intentionally or knowingly possessed
methamphetamine.
         Sergeant Murry testified that Appellant appeared to be attempting to evade him when he
was first sighted. Further, before Sergeant Murry found the methamphetamine, Appellant was
nervous and continually checking his pockets. Appellant was within twenty to thirty feet of
where the methamphetamine was found at approximately 2:30 a.m. No other individuals were
around at the time. The methamphetamine was only a few feet from Appellant’s bicycle path
through the morning dew. Additionally, the methamphetamine was found at a location where
Appellant could be sure the officer was unable to observe him disposing of it. Once Sergeant
Murry told Appellant he discovered a baggie of methamphetamine, Appellant accused Sergeant
Murry of lying and wanted to see the baggie for himself. When confronted with the baggie
laying on the ground, Appellant attempted to regain possession of it.




                                                        4
         This evidence, viewed in the light most favorable to the verdict, is sufficient to prove
Appellant had intentionally or knowingly possessed methamphetamine. See Jackson, 443 U.S.
at 314, 319, 326.
         Appellant’s sole issue is overruled.


                                                    DISPOSITION

         Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.


                                                                  JAMES T. WORTHEN
                                                                     Chief Justice


Opinion delivered January 8, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




                                                           5
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                           JANUARY 8, 2013


                                          NO. 12-13-00166-CR


                                          PAUL PATE,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                 Appeal from the 114th District Court
                         of Smith County, Texas (Tr.Ct.No. 114-1496-12)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.

                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
