Opinion filed September 19, 2013




                                     In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-12-00089-CR
                                  __________

                 CARLTON LORY CARTER, Appellant

                                       V.

                     THE STATE OF TEXAS, Appellee

                    On Appeal from the 385th District Court
                           Midland County, Texas
                       Trial Court Cause No. CR38453


                     MEMORANDUM OPINION
       The jury convicted Carlton Lory Carter of the offense of possession of
methamphetamine with intent to deliver. See TEX. HEALTH & SAFETY CODE ANN.
§ 481.112(a), (d) (West 2010). Appellant entered pleas of true to both enhance-
ment allegations, and the trial court assessed punishment at confinement for
twenty-five years and sentenced him accordingly. We affirm.
                                I. Issues Presented
      Appellant presents three issues on appeal. First, Appellant challenges the
sufficiency of the evidence to support his conviction.          Second, Appellant
complains that the lack of evidence to support his conviction results in a violation
of his due process rights. Third, Appellant complains of improper jury argument in
the State’s closing argument.
                                II. Evidence at Trial
      Travares Webb, a State Trooper with the Texas Department of Public Safety,
testified that he stopped a pickup after he observed the driver of the pickup commit
two traffic infractions. Appellant was the driver of the pickup. When Appellant
stopped the pickup, he immediately got out of the driver’s side and went to
Trooper Webb’s patrol vehicle. Trooper Webb was concerned with the way that
Appellant got out of the vehicle because, based on Trooper Webb’s training and
experience, such behavior typically indicates that the person is trying to divert
attention from something inside the vehicle. Trooper Webb conducted a pat-down
search of Appellant and found no contraband. Appellant told Trooper Webb that
the pickup was Appellant’s current work pickup but that it had been in someone
else’s possession.
      William Shane Forgus was a passenger in Appellant’s pickup. Trooper
Webb conducted a pat-down search of Forgus and found methamphetamine on his
person. Trooper Webb got the two remaining occupants—Leslie Pickens and
Brittney Quinn—out of Appellant’s pickup and searched it. Trooper Webb found a
baggie that contained eleven small baggies of methamphetamine; he found it in the
headliner on the driver’s side of the pickup. Trooper Webb testified that the place
where he found the baggie was readily accessible from the driver’s seat but not
readily accessible from the passenger’s seat. All of the occupants of the vehicle
appeared to be “spaced out” and under the influence of some substance, but
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Trooper Webb performed no intoxication tests. Further, Trooper Webb testified
that the video from the patrol car camera did not reflect any signs that Appellant
was intoxicated.
      Pickens testified that Appellant gave her and Quinn some methamphetamine
earlier in the day and that they all three “ended up getting high.” Later, Appellant,
Pickens, and Quinn “did more [methamphetamine]” at a trailer where they picked
up Forgus. According to Pickens, Appellant provided all of the methamphetamine
that she used that day. Thereafter, all four people left the trailer, and after they
stopped at a store, Trooper Webb pulled them over. Pickens testified that she was
“pretty high” at this point but recalled no one stashing anything in Appellant’s
pickup during the stop.
      Quinn testified that she, Appellant, Pickens, and Forgus had been partying
all day and smoking methamphetamine that Appellant provided. Quinn said that
Appellant was “acting kind of weird” during the time just before Trooper Webb
stopped them; “everybody acts weird when they’re high.” According to Quinn, at
the time of the stop, Appellant had the pickup in his possession for “[m]aybe a
week and a half, two weeks,” and Quinn did not notice or recall anyone in the
pickup stashing or trying to conceal anything.
                          III. Sufficiency of the Evidence
      Appellant contends in his first issue that the evidence was legally and
factually insufficient to support the jury’s finding that he possessed the
methamphetamine that Trooper Webb found in the headliner. Appellant argues
that he was not holding any contraband and that the police discovered the
methamphetamine deep in the headliner of the vehicle, not in open view.
Therefore, Appellant argues that he did not have exclusive possession or control
over the place where the contraband was found and that there was no affirmative
link between him and the methamphetamine.
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      We review the sufficiency of the evidence, whether legal or factual, under
the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979).
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337
S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson
standard, we review all of the evidence in the light most favorable to the verdict
and determine whether any rational trier of fact could have found the elements of
the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State,
330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The jury may make reasonable
inferences from the evidence and can rely on both circumstantial and direct
evidence in its determination. Hooper v. State, 214 S.W.3d 9, 14–16 (Tex. Crim.
App. 2007). We defer to the jury’s role as the sole judge of the witnesses’
credibility and the weight their testimony is afforded. Brooks, 323 S.W.3d at 899.
      In a prosecution for possession of a controlled substance, the State must
prove that the defendant exercised care, custody, control, or management over the
substance and that the accused knew the substance was contraband.              See
HEALTH & SAFETY § 481.002(38); Evans v. State, 202 S.W.3d 158, 161 (Tex.
Crim. App. 2006). Sufficient control need not be exclusive; joint possession
sustains a conviction. Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986).
When a defendant did not have exclusive possession of the place where the
contraband was found, however, we cannot conclude he had knowledge or control
of the contraband unless there are additional facts that “affirmatively link” the
defendant to the contraband. Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim.
App. 2005).
      The “affirmative links rule” protects innocent bystanders from conviction
based solely on their proximity to someone else’s contraband. Id. The number of
links is not as important as the degree to which they affirmatively link the
defendant to the contraband. Williams v. State, 906 S.W.2d 58, 65 (Tex. App.—
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Tyler 1995, pet. ref’d); Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.—
Austin 1991, pet. ref’d). Some of the relevant factors used to “affirmatively link” a
suspect to contraband are:
      (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 owned or had the right to possess the place
          where the drugs were found;
      (6) whether the place where the drugs were found was enclosed; and
      (7) whether the defendant’s conduct indicated a consciousness of
          guilt.

See Evans, 202 S.W.3d at 162 n.12.           The “affirmative links rule” is not an
independent test for assessing sufficiency but is merely a shorthand catchphrase for
the myriad variety of circumstantial evidence that may establish knowing
“possession” or “control, management, or care” of contraband. Havelka v. State,
224 S.W.3d 787, 789 (Tex. App.—Eastland 2007, no pet.) (quoting Evans, 202
S.W.3d at 161–62 n.9).
      Our review of the record reveals several facts that “affirmatively link”
Appellant to the methamphetamine found in the headliner of his pickup. Appellant
was present when police found the methamphetamine; he was in possession of and
driving the pickup in which the methamphetamine was found; and police found the
methamphetamine in a readily accessible place on the driver’s side of Appellant’s
pickup. Two other occupants of Appellant’s pickup testified that Appellant had
provided them with methamphetamine earlier in the day and that no one stashed
anything in the headliner while Appellant was out of his pickup.             Finally,
Appellant’s conduct indicated a consciousness of guilt when he immediately got
out of his pickup after Trooper Webb stopped him, and there is some evidence that


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Appellant was under the influence of methamphetamine at the time of the stop.
After reviewing the evidence in the light most favorable to the verdict, we
conclude that a rational trier of fact could have found beyond a reasonable doubt
that Appellant exercised control over the methamphetamine and had knowledge of
its presence. Appellant’s first issue is overruled.
                                   IV. Due Process
      Appellant contends in his second issue that, because there was insufficient
evidence to support his conviction, he was denied due process. We have held that
there was sufficient evidence to support Appellant’s conviction; therefore,
Appellant was not denied due process. We overrule Appellant’s second issue.
                             V. Improper Jury Argument
      Appellant contends in his third issue that, during closing argument, the State
improperly told the jury that the “drugs were there because they were
[Appellant’s].” Appellant also contends that the State improperly argued outside
the evidence when it stated that there were no fingerprints because fingerprints do
not always transfer and that the defense was attempting to distract the jury with the
lack of fingerprint evidence. Appellant did not object to these arguments. The
State argues that Appellant has waived any such complaint on appeal because he
failed to object to the jury argument.
      A prosecutor may draw reasonable, fair, and legitimate inferences from the
evidentiary facts but may not use closing arguments to present evidence outside the
record. Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App. 2011). To
preserve an issue for appellate review, however, the complaining party must have
made a timely and specific objection and received an adverse ruling. See TEX. R.
APP. P. 33.1. Here, there was no objection; Appellant has waived the complaint.
See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Appellant’s
third issue is overruled.
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                              VI. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                   MIKE WILLSON
                                                   JUSTICE


September 19, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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