                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-223-CR


LARRY DALE MCCLENNY                                             APPELLANT

                                       V.

THE STATE OF TEXAS                                                    STATE
                                   ------------

     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

                                I. INTRODUCTION

     A jury found Appellant Larry Dale McClenny guilty of possession of a

controlled substance, methamphetamine (4–200 grams), and assessed his

punishment at eight years’ confinement and a fine of $2,500. The trial court

sentenced him accordingly. In seven points, McClenny complains that the State

failed to provide him timely notice of its intent to introduce evidence of




     1
         … See Tex. R. App. P. 47.4.
extraneous acts, that the State made improper jury arguments at both the guilt-

innocence and punishment stages of trial, that the trial court erroneously

introduced evidence of a plea in bar resolution at the punishment stage of trial,

and that the evidence is legally and factually insufficient. We will affirm.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Around 6:00 one morning, McClenny called Christopher Swink and asked

Swink if he wanted to buy some “dope.” Swink drove to McClenny’s motel

room, where McClenny sold him approximately one gram of methamphetamine,

and the two smoked some “speed.” McClenny then asked Swink to drive him

to a game room located about fifteen minutes away from McClenny’s motel

room. On the way to the game room, the men noticed a police car following

them so Swink parked in the game room parking lot, and they quickly ran into

the building.

      While the men were in the game room, Deputy John Kiefer ran Swink’s

license plate and discovered that Swink had an outstanding warrant for a traffic

ticket. Deputy Kiefer parked his car around the corner from the game room and

waited for Swink to exit.

      Swink and McClenny stayed in the game room for about ten minutes.

Once they thought the police car had left, they left the game room to go to




                                       2
another nearby game room. They drove to the second game room, and as the

men were exiting the truck, Deputy Kiefer pulled in behind Swink’s truck.

      Deputy Kiefer told Swink to walk towards him. The deputy noticed that

McClenny, who was standing on the passenger side of the truck inside the

open door, was leaning into the truck and making furtive movements in the

passenger side of the truck. Deputy Christopher Williamson arrived to assist

Deputy Kiefer, and Deputy Kiefer instructed him to watch McClenny because

he was moving around.      Deputy Williamson also observed McClenny reach

inside the truck through the open passenger door. The deputy “glanced” in the

open passenger door and saw a marijuana roach on the passenger floorboard

and a black wallet stuffed in between the seat cushion and the backrest

cushion of the passenger seat. Deputy Williamson patted down McClenny and

told him to stand at the rear of the truck.

      Deputy Kiefer arrested Swink for the outstanding warrant and conducted

a search of his person incident to arrest. He found a pipe, about one gram of

crystal methamphetamine, and a bag of marijuana on Swink’s person. He then

searched Swink’s truck and found a marijuana roach laying on the passenger

floorboard and a glass pipe under the passenger seat. He also found two small

containers, a yellow and silver container and small black bag, stuffed between

the seat cushion and backrest of the passenger seat. The containers contained

                                       3
over four grams of methamphetamine.        One container also had a Motorola

cellular phone battery inside. The deputies then arrested McClenny.

      After jury selection, the State gave oral and written notice to McClenny

that it intended to call Swink to testify that McClenny had sold him drugs an

hour before the men were arrested. McClenny objected that the State did not

provide him adequate notice of its intent to introduce evidence of this

extraneous offense. The State argued that it did not inform McClenny prior to

trial that Swink would be a witness because it did not talk to Swink until the

day before trial.   The State further argued that Swink’s testimony was

admissible as same transaction evidence and to rebut McClenny’s defensive

theory that the drugs belonged to Swink. The trial court permitted Swink to

testify and granted the defense a running objection to his testimony.

      Swink testified that McClenny called him to ask if he wanted to buy some

drugs, that Swink agreed and purchased some “speed” from McClenny, and

that he then drove McClenny to the two game rooms before they both were

arrested. Swink also testified that after they were arrested and in the squad car

together, he asked McClenny, “[W]hat did you do with your dope[?]” to which

McClenny responded, “Don’t worry about it. I hid it.”

      The State also called Deputies Kiefer and Williamson to testify about the

arrest and search and called a forensic chemist who presented expert testimony

                                       4
that the substances found in the two containers in Swink’s truck contained

methamphetamine.

                       III. E XTRANEOUS B AD A CTS E VIDENCE

      In McClenny’s first point, he contends that the trial court erred by

allowing Swink to testify that McClenny sold Swink drugs shortly before they

were arrested because the State did not provide timely notice of its intent to

introduce this evidence in accordance with Texas Rule of Evidence 404(b). See

Tex. R. Evid. 404(b) (requiring reasonable notice in advance of trial of State’s

intent to introduce extraneous offense evidence). The State does not contend

that the notice was timely but argues that it was not required to give notice

under rule 404(b) because the evidence was admissible as same transaction

contextual evidence and because it was offered to rebut McClenny’s defensive

theory. Alternatively, the State argues that any error was harmless.

      We will assume, without deciding, that the trial court erred by admitting

Swink’s testimony that McClenny sold him drugs the day of McClenny’s arrest

and apply a harm analysis. Error in admitting evidence with insufficient notice

under rule 404(b) is nonconstitutional error.     See Hernandez v. State, 176

S.W.3d 821, 825 (Tex. Crim. App. 2005); Allen v. State, 202 S.W.3d 364,

369 (Tex. App.—Fort Worth 2006, pet. ref’d).           Therefore, we apply rule

44.2(b) and disregard the error if it did not affect McClenny’s substantial rights.

                                        5
Tex. R. App. P. 44.2(b); see Mosley v. State, 983 S.W.2d 249, 259 (Tex.

Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999);

Coggeshall v. State, 961 S.W.2d 639, 642–43 (Tex. App.—Fort Worth 1998,

pet. ref’d).

      A substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury’s verdict. King v. State, 953

S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States,

328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)); Coggeshall, 961 S.W.2d

at 643. Conversely, an error does not affect a substantial right if we have “fair

assurance that the error did not influence the jury, or had but a slight effect.”

Solomon v. State, 49 S.W .3d 356, 365 (Tex. Crim. App. 2001); Johnson v.

State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

      The lack of notice under rule 404(b) is harmful if the complained-of

evidence affected the defendant’s ability to mount an adequate defense. See

Hernandez, 176 S.W.3d at 825–26. A defendant may demonstrate surprise by

showing how his defense strategy might have been different had the State

explicitly notified him that it intended to offer the extraneous offense evidence.

Id. at 826; Allen, 202 S.W.3d at 369. In determining whether evidence had a

substantial influence on the verdict, we review the record as a whole. See

Johnson, 967 S.W.2d at 417.

                                        6
       In this case, McClenny made no argument at trial, and makes no assertion

on appeal, that he was “surprised” by the State’s decision to call Swink to

testify that he purchased drugs from McClenny about an hour before their

arrests. See Hernandez, 176 S.W.3d at 825. Further, McClenny failed to make

any showing of how his defense strategy might have been different had the

State explicitly notified him that it intended to offer the complained-of

testimony at trial or how his defense was “injuriously” affected by the State’s

failure to provide reasonable notice. See id. at 826. After receiving oral notice

on the day of trial, McClenny did not move for a continuance of the trial.

During cross-examination of Swink, McClenny’s defense attorney successfully

established that Swink had hoped he could get his sentence “cut in half” by

testifying against McClenny.    Swink testified on cross-examination that his

attorney had told him the night before McClenny’s trial that McClenny “was

trying to blame all the dope on me” and that he “didn’t feel good [about that]

at all.”

       We conclude that, in the context of the entire case against McClenny, the

trial court’s error, if any, in admitting Swink’s testimony did not have a

substantial or injurious effect on the jury’s verdict and did not affect

McClenny’s substantial rights. See id. at 825–26; King, 953 S.W.2d at 271.




                                       7
Thus, we disregard any error.    See Tex. R. App. P. 44.2(b).    We overrule

McClenny’s first point.

                             IV. J URY A RGUMENT

      McClenny’s second, third, and fourth points complain of alleged improper

arguments made by the State in its closing argument at both the guilt-

innocence and punishment stages of trial.

                          A. Law on Jury Argument

      To be permissible, the State’s jury argument must fall within one of the

following four general areas: (1) summation of the evidence; (2) reasonable

deduction from the evidence; (3) answer to argument of opposing counsel; or

(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex.

Crim. App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493

S.W.2d 230, 231 (Tex. Crim. App. 1973). To determine whether a party’s

argument properly falls within one of these categories, we must consider the

argument in light of the record as a whole. Wilson v. State, 938 S.W.2d 57,

61 (Tex. Crim. App. 1996), abrogated on other grounds by Motilla v. State, 78

S.W.3d 352, 357 (Tex. Crim App. 2002).

             B. Jury Argument at Guilt-Innocence Stage not Improper

      McClenny complains in his second and third points that the trial court

erred by denying his requests for mistrials when the prosecutor asserted her

                                      8
personal opinion during closing argument at the guilt-innocence stage of trial.

During closing argument, the prosecutor stated,

      So we have brought you everything, even officers who couldn’t
      remember anything and even a codefendant who our case doesn’t
      depend on. But we wanted to give you the big picture, everything
      we have. And that’s what you have. We don’t have anything to
      hide because we know and the evidence shows that – [Emphasis
      added.]

The trial court sustained McClenny’s objection “to what the prosecutor knows,”

instructed the jury to disregard the comment, but denied McClenny’s motion for

mistrial. The prosecutor continued, “We believe and it’s –,” to which McClenny

again objected that the comment was improper. The trial court instructed the

prosecutor to base her comments on the testimony rather than personal belief

and denied McClenny’s second motion for mistrial.

      It is well settled that the prosecutor may argue her opinions concerning

issues in the case so long as the opinions are based on the evidence in the

record and do not constitute unsworn testimony. McKay v. State, 707 S.W.2d

23, 37 (Tex. Crim. App. 1985), cert. denied, 479 U.S. 871 (1986); Sikes v.

State, 500 S.W.2d 650, 652 (Tex. Crim. App. 1973); Penrice v. State, 716

S.W.2d 107, 109 (Tex. App.—Houston [14th Dist.] 1986, no pet.).

      Here, although the prosecutor did not complete either of the complained-

of arguments before McClenny objected, the context of her argument



                                      9
demonstrates that she was attempting to state her opinion, based upon the

evidence in the record, that the drugs found in the passenger side of Swink’s

truck belonged to McClenny. She made these statements at the end of her

closing statement, after summarizing the evidence, and in the context of an

analysis of the evidence. See Sikes, 500 S.W.2d at 652; see also Thiboult v.

State, No. 02-06-00449-CR, 2008 WL 45757, at *4–5 (Tex. App.—Fort Worth

Jan. 3, 2008, pet. ref’d) (mem. op., not designated for publication) (holding

that prosecutor’s opinion that defendant was guilty was proper when given in

context of analysis of the evidence). Moreover, the complained-of statements

did not inject new facts into evidence that were harmful to McClenny, nor were

they manifestly unjust, nor did they indicate that the prosecutor possessed

independent facts of McClenny’s guilt that were not introduced into evidence.

See Jones v. State, 843 S.W.2d 92, 100 (Tex. App.—Dallas 1992, pet. ref’d);

Penrice, 716 S.W.2d at 109.      Consequently, the prosecutor’s incomplete

arguments were not improper or harmful even though the trial court sustained

McClenny’s objections to them. Accord McKay, 707 S.W.2d at 37.

      Finally, even if the arguments were improper, we hold that the trial

court’s instructions to disregard them were sufficient to cure any harm inuring

to McClenny. See id. Only in extreme circumstances, when the prejudice

caused by the improper argument is incurable, i.e., “so prejudicial that

                                      10
expenditure of further time and expense would be wasteful and futile,” will a

mistrial be required. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App.

2004); see Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003),

cert. denied, 542 U.S. 905 (2004). The arguments in the instant case, in any

event, were not so incurable as to require a mistrial. We overrule McClenny’s

second and third points.

            C. Jury Argument at Punishment Stage not Improper

      In McClenny’s fourth point, he argues that the trial court erred by

overruling his objection to the prosecutor’s closing argument at the punishment

stage of trial. The State contends that the prosecutor’s argument was invited

by defense counsel’s closing argument and, consequently, that the prosecutor’s

argument was justified and permissible as an answer to the argument of

opposing counsel.

      At the punishment stage of trial, the State introduced evidence that

McClenny previously had pleaded guilty to three felony offenses.         During

defense counsel’s closing argument, he argued that the three prior guilty pleas

were all pursuant to plea bargains and that the State had agreed to minimal jail

time as part of the plea bargains. Consequently, he argued that because the

State had agreed to lenient sentences in McClenny’s past cases, McClenny

should receive a low sentence in this case.        During the State’s closing

                                      11
argument, the prosecutor explained that if the State makes a plea bargain offer,

the offer is “usually lower than we think a jury is going to give a person.”

Defense counsel objected that “the prosecutor is interjecting her personal

feelings in the case,” and the trial court overruled his objection.

      Answering opposing counsel’s argument is not improper jury argument.

Felder, 848 S.W.2d at 94–95; Alejandro, 493 S.W.2d at 231. If defense

counsel invites the argument, then the State is allowed to respond to the

defense counsel’s argument. Albiar v. State, 739 S.W.2d 360, 362 (Tex. Crim.

App. 1987); Lasher v. State, 202 S.W.3d 292, 298 (Tex. App.—Waco 2006,

pet. ref’d).

      Here, after defense counsel informed the jury that the State had agreed

to lower sentences in McClenny’s past cases, the prosecutor offered an

explanation as to why the State would agree to a lenient sentence in a plea-

bargained case. By explaining that the State’s plea bargain offer is “usually

lower than we think a jury is going to give a person,” the prosecutor was

responding to defense counsel’s argument. Thus, we hold that the prosecutor’s

argument was permissible because defense counsel opened the door by his

argument and that the trial court did not err by overruling McClenny’s objection.

See Albiar, 739 S.W.2d at 362; Lasher, 202 S.W.3d at 298. We overrule

McClenny’s fourth point.

                                       12
                   V. A DMISSION OF P LEA IN B AR R ESOLUTION

      In McClenny’s fifth point, he contends the trial court erred by admitting

State’s Exhibits 8 and 10 into evidence during the punishment stage of the trial.

State’s Exhibit 8 was a plea in bar resolution of the offense of driving with a

suspended license, and State’s Exhibit 10 was a plea in bar resolution of the

offense of forgery by possession of a check with intent to pass. McClenny

objected to these exhibits because they were not final convictions but were

pleaded and barred pursuant to section 12.45 of the Texas Penal Code. See

Tex. Penal Code Ann. § 12.45 (Vernon 2003).

                               A. Standard of Review

      This court reviews the trial court’s decision to admit evidence under an

abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101–02 (Tex.

Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997); Montgomery v. State,

810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). As long as the

trial court’s ruling falls within the zone of reasonable disagreement, we will

affirm its decision. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App.

2003). The trial court’s decision must be reasonable in view of all relevant

facts. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). The

mere fact that a trial court may decide a matter within its discretionary

authority in a different manner than an appellate court would in a similar

                                       13
circumstance does not demonstrate that an abuse of discretion has occurred.

Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).

           B. Admissibility of Plea in Bar Evidence at Punishment Stage

      Section 12.45 permits a trial court to take into account an unadjudicated

offense when assessing punishment if the State consents and the defendant

admits the offense. Tex. Penal Code Ann. § 12.45(a)–(b). When the court

does so, the State is barred from prosecuting the accused for the offense taken

into account under this provision. Id. § 12.45(c).

      Section 12.45 does not require that a defendant plead guilty to an

unadjudicated offense; rather, the statute requires that the defendant, during

the punishment hearing, admit guilt to the unadjudicated offense. Zapata v.

State, 905 S.W.2d 15, 16 (Tex. App.—Corpus Christi 1995, no pet.).

Following Texas Court of Criminal Appeals precedent in Lopez v. State, 253

S.W.3d 680 (Tex. Crim. App. 2008), this court has held that offenses barred

under section 12.45 are neither convictions nor part of a defendant’s prior

criminal record.   Ex parte Karlson, 282 S.W.3d 118, 127 (Tex. App.—Fort

Worth 2009, pet. ref’d); see Lopez, 253 S.W.3d at 686 (holding that

extraneous offenses to which defendant had admitted guilt in prior prosecution

were not prior convictions for purpose of impeachment in subsequent

prosecution).

                                      14
         The admissibility of evidence at punishment is guided largely by article

37.07, section 3 of the Texas Code of Criminal Procedure. Haley v. State, 173

S.W.3d 510, 513 (Tex. Crim. App. 2005); see Tex. Code Crim. Proc. Ann. art.

37.07 § 3(a)(1) (Vernon Supp. 2008). Under this section, the prosecution may

offer evidence of an extraneous crime or bad act that is shown beyond a

reasonable doubt to have been committed by the defendant or for which he

could be held criminally responsible. Tex. Code Crim. Proc. Ann. art. 37.07,

§ 3(a)(1); Haley, 173 S.W.3d at 515. “Before the jury can consider this

evidence in assessing punishment, it must be satisfied beyond a reasonable

doubt that the acts are attributable to the defendant.” Haley, 173 S.W.3d at

515.

         McClenny’s only objection at trial was that State’s Exhibits 8 and 10

were inadmissible because they were not prior convictions.           He did not

complain at trial, and does not argue on appeal, that the State failed to prove

beyond a reasonable doubt that the acts were attributable to him or that

evidence of these acts was irrelevant. The fact that McClenny had not been

finally convicted of the two pleaded and barred offenses does not matter. See

Haley, 173 S.W.3d at 514–15. Accordingly, we overrule McClenny’s fifth

point.

                             VI. S UFFICIENCY OF THE E VIDENCE

                                        15
      In his sixth and seventh points, McClenny argues that the evidence is

legally and factually insufficient to convict him of possession of a controlled

substance.

                            A. Standards of Review

                   1. Legal Sufficiency Standard of Review

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all of the evidence in the light most favorable to the prosecution in

order to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.            Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

      This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the

sole judge of the weight and credibility of the evidence. See Tex. Code Crim.

Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568

(Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). Thus, when

performing a legal sufficiency review, we may not re-evaluate the weight and

credibility of the evidence and substitute our judgment for that of the factfinder.

                                        16
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied,

529 U.S. 1131 (2000).        Instead, we “determine whether the necessary

inferences are reasonable based upon the combined and cumulative force of all

the evidence when viewed in the light most favorable to the verdict.” Hooper

v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume

that the factfinder resolved any conflicting inferences in favor of the

prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.

at 2793; Clayton, 235 S.W.3d at 778.

                  2. Factual Sufficiency Standard of Review

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129

S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.

2006). We then ask whether the evidence supporting the conviction, although

legally sufficient, is nevertheless so weak that the factfinder’s determination is

clearly wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704

(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417.




                                       17
      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence.    Id.   We may not simply substitute our judgment for the

factfinder’s. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain

v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless we conclude

that it is necessary to correct manifest injustice, we must give due deference

to the factfinder’s determinations, “particularly those determinations concerning

the weight and credibility of the evidence.” Johnson, 23 S.W.3d at 9. Our

deference in this regard safeguards the defendant’s right to a trial by jury.

Lancon, 253 S.W.3d at 704.

                   B. Possession of a Controlled Substance

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

the accused exercised control, management, or care over the substance and

that he knew the matter possessed was contraband. See Tex. Health & Safety

Code Ann. § 481.002(38) (Vernon Supp. 2008); Evans v. State, 202 S.W.3d

158, 161 (Tex. Crim. App. 2006); Poindexter v. State, 153 S.W.3d 402, 405

                                        18
(Tex. Crim. App. 2005).       The accused’s presence at the location were

contraband is found is insufficient, by itself, to establish actual care, custody,

or control over the contraband. Evans, 202 S.W.3d at 162. But the accused’s

presence or proximity to the contraband, when combined with other evidence,

either direct or circumstantial, may establish that element beyond a reasonable

doubt. Id. The evidence “must establish, to the requisite level of confidence,

that the accused’s connection with the drug was more than just fortuitous.”

Poindexter, 153 S.W.3d at 405–406 (citing Brown v. State, 911 S.W.2d 744,

747 (Tex. Crim. App. 1995)).

      Among the factors to be considered in evaluating the existence of

affirmative links between the accused and the contraband are: (1) whether the

defendant was present when the search was executed; (2) whether the

contraband was in plain view; (3) whether the defendant was in close proximity

to and had access to the contraband; (4) whether the defendant was under the

influence of a controlled substance when arrested; (5) whether the defendant

possessed other contraband or controlled substances 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 the contraband; (10)

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

                                       19
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 the driver of the automobile in which the

contraband was found; (14) whether the defendant was found with a large

amount of cash; and (15) whether the conduct of the accused indicated a

consciousness of guilt.   McQuarters v. State, 58 S.W.3d 250, 259 (Tex.

App.—Fort Worth 2001, pet. ref’d). It is the logical force of the evidence, not

the number of links, that supports the factfinder’s verdict. Evans, 202 S.W.3d

at 162, 166.

                        C. Legally Sufficient Evidence

      Applying the McQuarters factors to the present case, the record

demonstrates that McClenny was present when the deputies searched Swink’s

truck, that a marijuana roach and the black wallet containing drugs were visible

by glancing in the passenger side of the truck, that McClenny was riding in the

passenger side of the truck in close proximity to the drugs found stuffed

between the passenger seat and backrest cushions, that Swink and McClenny

had smoked “dope” about an hour before their arrest, that Deputies Kiefer and

Williamson observed McClenny making furtive movements in the passenger seat

where the drugs were found, and that McClenny indicated a consciousness of




                                      20
guilt when he told Swink that he had hidden his drugs in Swink’s car and had

hoped they would not be found. See McQuarters, 58 S.W.3d at 259.

      Viewing the evidence in the light most favorable to the jury’s verdict, we

hold that a rational trier of fact could have found beyond a reasonable doubt

that McClenny was guilty of possession of a controlled substance. See Tex.

Health & Safety Code Ann. § 481.002(38); Jackson, 443 U.S. at 326, 99 S.

Ct. at 2793; Clayton, 235 S.W.3d at 778.        Accordingly, we hold that the

evidence is legally sufficient to support McClenny’s conviction.

                       D. Factually Sufficient Evidence

      Having found the evidence legally sufficient, we now address whether the

evidence is factually sufficient to support McClenny’s conviction. The record

demonstrates that Swink owned the truck where the drugs were found and that

McClenny did not have any drugs on his person. However, the deputies found

the containers of drugs on the passenger side of the vehicle, where McClenny

was sitting and where the deputies had seen him making furtive movements.

Swink testified that the drugs founds in the passenger side of his truck

belonged to McClenny.

      On appeal, McClenny attacks Swink’s credibility as a witness, arguing

that he was under the influence of drugs when he was arrested and that he did

not tell anyone that he and McClenny had used drugs the morning that they

                                      21
were arrested until the day of McClenny’s trial. But the jury is the sole trier of

fact and judge of the credibility of the witnesses, and we must give due

deference to the jury’s determinations of the weight and credibility of the

evidence. See Johnson, 23 S.W.3d at 9; Cain, 958 S.W.2d at 407.

      McClenny also argues that factually insufficient evidence exists to

support his conviction because Swink testified that he had just purchased drugs

from McClenny for $20 or $30 but the deputies found only sixty-nine cents on

McClenny. But Swink’s testimony offered a plausible explanation for this: he

testified that he and McClenny had been playing slot machines at the game

room before they were arrested.

      We have thoroughly reviewed the evidence in a neutral light, and we find

no objective basis for holding that the jury’s verdict was clearly wrong or

manifestly unjust or that it is contradicted by the great weight and

preponderance of the evidence. See Lancon, 253 S.W.3d at 704; Watson, 204

S.W.3d at 414–15, 417. Rather, the evidence presented at trial was sufficient

to support the jury’s verdict, and no contrary evidence exists that would render

the evidence factually insufficient under the applicable standard of review. See

Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414–15, 417.

Accordingly, having held that the evidence is factually sufficient to support

McClenny’s conviction, we overrule his seventh point.

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                             VII. C ONCLUSION

     Having overruled all of McClenny’s points, we affirm the trial court’s

judgment.




                                                SUE WALKER
                                                JUSTICE

PANEL: DAUPHINOT, GARDNER and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 8, 2009




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