
                           NO. 07-09-0171-CR

                        IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                              AT AMARILLO

                                PANEL C

                            DECEMBER 10, 2010








                      KEVIN CECIL MAEDA, APPELLANT


                                   v.


                      THE STATE OF TEXAS, APPELLEE





             FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

                NO. 19,955-A; HONORABLE HAL MINER, JUDGE





Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                           MEMORANDUM OPINION

      Appellant,  Kevin  Cecil  Maeda,  was  convicted  by  a  jury  of
possession of a controlled substance (methamphetamine) in an amount  of
less than one gram[1] and sentenced  to  two  years  confinement  in  a
state jail facility.  On appeal, he asserts the  evidence  was  legally
and factually insufficient.  We affirm.

                               Background

      On  August  20,  2008,  a  Randall  County  Grand  Jury  indicted
Appellant for  intentionally  and  knowingly  possessing  a  controlled
substance,  methamphetamine,  in  an  amount   by   aggregate   weight,
including any adulterants and dilutants, of less than one gram.

      At trial, Deputy Marcus Woods of  the  Randall  County  Sheriff's
Office testified that, in the early morning hours of May 12,  2008,  he
spotted Appellant  and  Jimmy  Flores  sitting  in  Appellant's  pickup
parked at an Amarillo chipping  site.   When  Deputy  Woods  approached
Appellant, he was overwhelmed by the  odor  of  marijuana  coming  from
inside the pickup's cab.  He observed Appellant's eyes  were  very  red
and his speech was slurred.  Deputy Woods asked Appellant if there  was
anything illegal in the pickup.  Appellant pulled the ashtray from  the
dashboard, handed it to Deputy Woods through the driver's side  window,
and told the Deputy he had marijuana.

      Deputy Woods asked Appellant to exit the pickup and, as  he  came
out, a glass pipe fell out of his lap onto the  ground.   Deputy  Woods
identified  the  pipe   as   the   type   of   pipe   used   to   smoke
methamphetamine.[2]  He handcuffed Appellant and searched  his  pockets
where he found a cigarette box  containing  regular  cigarettes  and  a
rolled marijuana cigarette.  He then placed Appellant in  the  backseat
of his patrol car.   Deputy  Levi  Randall,  a  deputy-in-training  who
accompanied Deputy Woods, searched Flores and found nothing illegal  on
his person.  Deputy Randall escorted Flores  to  the  backseat  of  the
patrol car where the two men were advised of their Miranda rights.[3]

      During questioning, Appellant indicated there was more  marijuana
in the pickup.  After Deputy Woods removed Appellant  from  the  patrol
car to assist him in locating the marijuana, Deputy Randall  discovered
a crushed blue pill where Appellant  had  been  sitting.   When  Deputy
Randall found the pill, Flores told him that they should  be  concerned
for  Appellant's  welfare.   Appellant  was  subsequently  taken  to  a
hospital where he was examined in the emergency room.

      When Deputy Woods searched  Appellant's  pickup,  he  found  some
blue pills, later identified as Xanax, in an  empty  cigarette  box  on
the  passenger's  side  of  the  pickup  and  marijuana  in  the  glove
compartment.  In the console, accessible to Appellant  and  Flores,  he
discovered a plastic baggie containing what  was  later  identified  as
.04 gram of methamphetamine.[4]  At the scene,  neither  Appellant  nor
Flores would identify who owned the  methamphetamine.   Both  men  were
placed under arrest.

       Jimmy  Flores,  Appellant's  best  friend  for  fifteen   years,
testified for the defense.  He  testified  that  Appellant  operated  a
landscaping business  that  specialized  in  tree  trimming.   He  also
testified that Appellant owned the pickup they were sitting in  at  the
chipping site and normally drove  the  truck  in  connection  with  his
work.  The day before the two men were arrested at the  chipping  site,
Flores testified they had driven from Amarillo to  Pampa,  Texas,  with
four climbers and three grounds men where they completed three to  four
jobs.   Flores  testified  that  Appellant  drove  his  truck  and  his
employees shared two other trucks.  He testified that he and  Appellant
had smoked three or four marijuana cigarettes that  day  and  Appellant
told him he had taken a Xanax pill.  He did not see Appellant  use  any
methamphetamine.

      Flores testified that early the next  morning  he  and  Appellant
were at the Amarillo chipping site to drop off some  limbs.   They  had
been smoking  marijuana  for  about  five  minutes  when  the  deputies
arrived.  He testified the pickup they were sitting in had been  driven
by four or five others the day before  while  they  were  working.   He
also testified that the Xanax pills and methamphetamine  were  not  his
drugs.  He further denied ownership of the pipe which he testified  was
used to smoke methamphetamine or crack cocaine.   He  opined  that  the
pipe was not suitable for smoking marijuana.

      At the conclusion of the testimony, Appellant  was  found  guilty
by the jury of possessing less than one  gram  of  methamphetamine  and
sentenced to two years confinement.  This appeal followed.

                               Discussion

      As an initial consideration, we note that Appellant contends  the
evidence is both legally and factually insufficient to  establish  that
he exercised care,  custody  and  control  of  the  methamphetamine  in
question.  After briefs were  filed  by  both  parties,  the  Court  of
Criminal Appeals held that the only standard a reviewing  court  should
apply in determining whether the evidence in a criminal  proceeding  is
sufficient to support each element of the offense beyond  a  reasonable
doubt is the  legal  sufficiency  standard  set  forth  in  Jackson  v.
Virginia.[5]  Brooks v. State, No. PD-0210-09,  2010  Tex.  Crim.  App.
LEXIS 1240, at *2 (Tex.Crim.App. Oct.  6,  2010).[6]   Accordingly,  we
need not address Appellant's challenge to the  factual  sufficiency  of
the evidence.

      I.    Standard of Review

       In assessing the  sufficiency  of  the  evidence  to  support  a
criminal conviction under the  standard  enunciated  in  Jackson,  this
Court considers all the evidence in  a  light  most  favorable  to  the
verdict and determines whether, based on that evidence  and  reasonable
inferences to be drawn therefrom, a 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, 33 S.Ct. 2781, 61  L.Ed.2d  560
(1979).  See also Brooks, 2010 Tex. Crim.  App.  LEXIS  1240,  at  *14.
When conducting such a review, this Court is required to defer  to  the
jury's role as the sole judge of credibility of  the  witness  and  the
weight to be given their testimony.   Id.  at  *15.   See  Dewberry  v.
State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999).

      Furthermore, to establish legal sufficiency,  "[e]ach  fact  need
not point directly and independently to the guilt of the defendant,  as
long as the cumulative force  of  the  incriminating  circumstances  is
sufficient to support the conviction."  Hooper v. State, 214 S.W.3d  9,
13  (Tex.Crim.App.  2007).   If,  however,  a   rational   jury   would
necessarily entertain a reasonable doubt as to  the  defendant's  guilt
after considering all  the  evidence,  due  process  requires  that  we
reverse and render a judgment of acquittal.  Swearingen v.  State,  101
S.W.3d 89, 95  (Tex.Crim.App.  2003)  (citing  Narvaiz  v.  State,  840
S.W.2d 415, 423 (Tex.Crim.App. 1992), cert. denied, 507 U.S.  975,  113
S.Ct. 1422, 122 L.Ed.2d 791 (1993)).

      II.   Applicable Law

      To support the verdict rendered  in  this  case,  the  State  was
required to prove  that  Appellant  knowingly  possessed  a  controlled
substance, to-wit:  methamphetamine, in an  amount  of  less  than  one
gram.  To prove  possession,  the  State  was  required  to  show  that
Appellant (1) exercised "actual care, custody, control, or  management"
of the substance and (2) knew  the  matter  possessed  was  contraband.
See § 481.115(b).  See also Tex. Penal  Code  §  1.07(39)  (West  Supp.
2010); Poindexter v.  State,  153  S.W.3d  402,  405-06  (Tex.Crim.App.
2005).

      Where, as here, the accused does not have  actual  possession  of
the controlled substance or exclusive possession of  the  locale  where
the controlled substance was found, it cannot be concluded or  presumed
that the accused had possession over the contraband  unless  there  are
independent facts or circumstances that tend to connect or link[7]  the
accused to the knowing possession of the contraband.   Poindexter,  153
S.W.3d at 406; Evans v. State, 202 S.W.3d  158,  161-62  (Tex.Crim.App.
2006).

      Numerous   nonexclusive   factors   have   been   recognized   as
contributing to an evaluation of whether an accused is  linked  to  the
contraband.  See Triplett v. State, 292  S.W.3d  205,  208  (Tex.App.--
Amarillo 2009, pet. ref'd).  Those links include, but are  not  limited
to: (1) whether the contraband was in plain view or recovered  from  an
enclosed place;  (2)  whether  the  defendant  was  the  owner  of  the
premises or had the right to possess or control  the  place  where  the
contraband  was  found;  (3)  whether  the  defendant  was   found   in
possession of a large amount of cash; (4) whether  the  contraband  was
conveniently accessible to the defendant; (5)  whether  the  contraband
was found in close proximity to the defendant; (6) whether an  odor  of
contraband was present;  (7)  whether  the  defendant  possessed  other
contraband  when  arrested;  (8)  whether   the   defendant   possessed
paraphernalia to use the contraband; (9) whether paraphernalia  to  use
the contraband was available to or in  plain  view  of  the  defendant;
(10) whether the physical condition of the defendant  indicated  recent
consumption of the contraband in question; (11) whether conduct by  the
defendant  indicated  a  consciousness  of  guilt;  (12)  whether   the
defendant  made  any  incriminating  statements  when  arrested;   (13)
whether the defendant attempted to flee;  (14)  whether  the  defendant
made furtive  gestures;  (15)  whether  the  defendant  had  a  special
connection to the contraband; (16) whether  the  persons  present  gave
conflicting statements about relevant matters;  (17)  the  quantity  of
the contraband discovered; (18) whether the defendant was  armed;  (19)
whether  the  defendant  was  observed  in  a  suspicious  place  under
suspicious circumstances; (20) whether the accused was familiar or  had
previous  experience  with  drugs;  and,  (21)  whether  any   forensic
evidence (e.g., fingerprints, DNA, etc.) connects the defendant to  the
contraband or its container.  See Evans, 202 S.W.3d at 162  n.12.   See
also Triplett, 292 S.W.3d at 209; Figueroa v. State,  250  S.W.3d  490,
500 (Tex.App.--Austin 2008, pet. ref’d),  cert.  denied,  No.  08-7719,
2009 LEXIS 1276 (U.S. Tex. Feb. 23, 2009).

      There is no set formula  that  an  appellate  court  can  use  to
determine if there are sufficient links  to  support  an  inference  of
knowing possession of drugs.  Taylor v.  State,  106  S.W.3d  827,  831
(Tex.App.--Dallas  2003,  no  pet.).   Each  case  must   be   examined
according to its own facts on a case-by-case basis; Roberson v.  State,
80 S.W.3d 730, 736 (Tex.App.--Houston [1st Dist.]  2002,  pet.  ref'd),
and the number of links is not as important  as  the  combined  logical
force  of  all  the  evidence  tending  to  link  the  accused  to  the
contraband.  Evans, 202 S.W.3d at 162, 166.

      III.  Analysis

      Viewing the evidence in a light most favorable  to  the  verdict,
the evidence at trial showed that at least  seven  links  listed  above
were present.  Appellant owned the  pickup  where  the  contraband  was
found and had the right to possess or control  its  contents.   He  was
also  present  when  the  search  was  conducted,  made   incriminating
statements when arrested,  had  other  contraband  in  his  possession,
possessed drug paraphernalia, and had been  using  drugs  when  he  was
approached by Deputy Woods.  Further,  the  methamphetamine  was  found
inside the pickup's interior console which was conveniently  accessible
to Appellant, and a pipe, identified by three witnesses as  a  type  of
pipe used to smoke methamphetamine, fell from his lap as he exited  the
pickup.  Furthermore, Flores testified the pipe was  not  suitable  for
smoking marijuana and denied ownership of the marijuana,  Xanax  pills,
methamphetamine, and pipe.

        This   evidence   sufficiently   links   Appellant    to    the
methamphetamine and establishes, to the requisite level of  confidence,
that a rational trier of fact could have found the  essential  elements
of  the  crime  beyond  a  reasonable  doubt.   Appellant's  issue   is
overruled.

                               Conclusion

      The trial court’s judgment is affirmed.



                                        Patrick A. Pirtle
                                              Justice

Do not publish.
-----------------------
[1]See Tex. Health & Safety Code Ann. § 481.115(a),  (b)  (West  2010).
Throughout the remainder of  this  opinion,  provisions  of  the  Texas
Health and Safety Code will  be  cited  as  "section  ____"  and/or  "§
____."

[2]Bruce Evans, a crime  scene  technician  and  lab  analyst  for  the
Randall County Sheriff's Office, also  testified  that,  based  on  his
experience, the pipe was of the type used to smoke methamphetamine.

[3]Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966).

[4]Roy Murphy, manager of  the  Texas  Department  of  Safety  Regional
Crime  Laboratory,  identified  the   various   substances   found   in
Appellant's pickup and their respective weight.

[5]Jackson v. Virginia, 443 U.S. 307, 335 S.Ct. 2781, 61 L.Ed.2d 560
(1979).

[6]Judge Hervey delivered the Brooks opinion, joined by Judges  Keller,
Keasler,  and  Cochran,  and  Judge  Cochran  delivered  a   concurring
opinion, joined by Judge Womack.  Brooks, 2010 Tex.  Crim.  App.  LEXIS
1240, at *1, *59.  Although we are not bound  by  a  decision  of  four
justices, Pearson v. State, 994  S.W.2d  176,  177  n.3  (Tex.Crim.App.
1999), we read the combined opinions of Judges Hervey  and  Cochran  as
abandoning factual sufficiency as an evidentiary  sufficiency  standard
of review distinct from legal sufficiency.

[7]The  Court  of  Criminal  Appeals  has  recognized  that  the   term
"affirmative" adds nothing to the plain meaning of "link" and now  uses
only the word "link" to evaluate  evidence  of  possession.   Evans  v.
State, 202 S.W.3d 158, 161 n.9 (Tex.Crim.App. 2006).  A link is a  fact
or  circumstance  which  generates  a  reasonable  inference  that  the
defendant knew of the  contraband's  existence  and  exercised  control
over it.  Lair v. State, 265 S.W.3d 580,  600  (Tex.App.--Houston  [1st
Dist.] 2008, pet. ref'd).  The evidence demonstrating  such  links  may
be direct or circumstantial.  Brown  v.  State,  911  S.W.2d  744,  747
(Tex.Crim.App. 1995).



