                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-372-CR


JEFFERY P. JOAS                                               APPELLANT

                                       V.

THE STATE OF TEXAS                                                 STATE

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          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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

                        MEMORANDUM OPINION 1

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                               I. INTRODUCTION

     In two points, Appellant Jeffery P. Joas appeals his conviction for

possession of methamphetamine in the amount of four grams or more but less

than two hundred grams. We affirm.




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         … See Tex. R. App. P. 47.4.
                      II. Factual and Procedural History

      On March 14, 2005, Todd Muthert and his wife Cherry were traveling

down Rufe Snow Drive in Fort Worth when they witnessed a two-car accident.

Immediately following the accident, Todd saw one of the drivers involved in the

accident, later identified as Joas, get out of his vehicle, run through a parking

lot, and head behind some businesses. Todd and Cherry followed and Todd

saw Joas throw a silver object into a dumpster.2 Todd yelled at a group of

people who had gathered nearby to “call the cops.” Joas, who heard Todd’s

statement, responded, “No.” Todd then stated that he would call the cops and

Joas responded, “No, you’re not.”      Joas then returned to the scene of the

accident. Todd, using a borrowed cell phone, called 911. While waiting for the

police, Todd looked inside the dumpster and saw what appeared to be a silver

Altoid can sitting on top of a cardboard box.3 At some point, Todd returned to




      2
       … During trial, Todd testified that the object was white. However, in
Todd’s written statement to the police, he stated that the object was silver.
When asked which statement would be the most accurate, Todd testified that
his written statement, given the day of the incident, was more accurate then
his testimony given three years after the incident had occurred.
      3
       … During trial, Todd testified that the silver can was in plain sight;
however, in Todd’s written statement given on the day of the incident, he had
stated, “After talking to the police on the phone, I continued to look for the
canister.”

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the scene of the accident; Cherry remained beside the dumpster until the police

arrived.

      When Sergeant Jeff Garner from the North Richland Hills Police

Department arrived at the scene of the accident, Todd told him what he had

witnessed and filled out a police report stating the same. Sergeant Garner then

went to the dumpster, looked inside, and saw a small, silver, rectangular tin box

sitting on top of a piece of cardboard that was covering a large area of the

dumpster. After recovering the silver tin box, Sergeant Garner opened it and

saw    two     small   sealable   bags   containing   what   appeared    to   be

methamphetamine. Sergeant Garner then placed Joas under arrest. Forensic

tests confirmed that both packets contained methamphetamine, one in the

amount of 27.47 grams and the other in the amount of 0.38 grams.

      The State charged Joas with possession of a controlled substance,

namely methamphetamine, of four grams or more but less than two hundred

grams.      The charge included a habitual offender notice, listing two prior

convictions for possession of methamphetamine, both in the amount of four

grams or more but less than two hundred grams. A jury found Joas guilty, and

the trial court sentenced him to thirty-five years’ confinement. This appeal

followed.




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                       III. Legal and Factual Sufficiency

      In his first and second points, Joas asserts that the evidence was both

legally and factually insufficient to support his conviction for possession of a

controlled substance. We disagree.

A. Standards 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).

      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

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

under the second ground, we must determine, with some objective basis in the

record, that the great weight and preponderance of all the evidence, though

legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.

      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 the record

clearly reveals that a different result is appropriate, we must defer to the jury’s

determination of the weight to be given contradictory testimonial evidence

because resolution of the conflict “often turns on an evaluation of credibility

and demeanor, and those jurors were in attendance when the testimony was

delivered.” Johnson, 23 S.W.3d at 8. Thus, 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

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weight and credibility of the evidence.” Id. 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. Applicable Law

      A person commits the felony offense of possession of a controlled

substance if he intentionally or knowingly possesses methamphetamine in the

amount of four grams or more but less than two hundred grams. Tex. Health

& Safety Code Ann. § 481.115(a), (d) (Vernon Supp. 2009). Possession is

defined as having “actual care, custody, control, or management” of the

controlled substance. Tex. Penal Code Ann. § 1.07(39) (Vernon Supp. 2009).

      To support a conviction for possession of a controlled substance, the

State must prove: (1) the accused exercised control, management, or care over

the substance; and (2) the accused knew the matter possessed was

contraband. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006);

Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). If the

accused is not in exclusive possession of the contraband, the State must show

additional independent facts and circumstances that affirmatively link the

accused and the contraband. Brown v. State, 911 S.W.2d 744, 748 (Tex.

Crim. App. 1995); Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App.

1981). Mere presence where the drugs are found is insufficient, but when

combined with other evidence, either direct or circumstantial (“links”), may well

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be sufficient to establish knowing possession, control, management, or care of

the contraband beyond a reasonable doubt. Evans, 202 S.W.3d at 162.

      Possible links include: (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 162 n.12.

      It is not the number of links between the defendant and the contraband

that is dispositive, but rather the logical force of all the evidence. Id. at 162.

Incriminating connections may be shown by direct or circumstantial evidence.

Brown, 911 S.W.2d at 747. The evidence need not exclude every reasonable

hypothesis other than the defendant’s guilt, but it must show facts and

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circumstances that, viewed in the totality of the circumstances, indicate the

defendant’s knowledge and control over the drugs. See id. at 748; State v.

Derrow, 981 S.W.2d 776, 778 (Tex. App.—Houston [1st Dist.] 1998, pet.

ref’d).

C. Legal Sufficiency

       Here, the following evidence linked Joas to the methamphetamine found

in the dumpster:      (1) Joas ran from the scene of an accident that he was

involved in to throw something into a dumpster; (2) a witness saw Joas throw

a silver object into the dumpster; (3) Joas did not want the police called when

the witness suggested on more than one occasion that the police should be

called; (4) the police recovered a silver object from the dumpster that was in

plain view on top of a cardboard box; and (5) the silver object contained

methamphetamine.        We conclude that the logical force from these links is

sufficient for a rational jury to have concluded beyond a reasonable doubt that

Joas      exercised   care,   custody,   control,   or   management   over   the

methamphetamine. Accordingly, we overrule Joas’s first point.

D. Factual Sufficiency

       In his second point, which attacks the factual sufficiency of the evidence

linking him to the methamphetamine, Joas emphasizes the following facts: (1)

there were inconsistencies as to whether the object was white or silver, (2)

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there were inconsistencies as to whether the sliver tin box was in plain sight,

and (3) no fingerprint tests were ever performed.          We have given due

consideration to these facts but, after reviewing the evidence in a neutral light,

we hold the proof of guilt is not so weak as to undermine confidence in the

jury’s verdict. See Vodochodsky v. State, 158 S.W.3d 502, 510 (Tex. Crim.

App. 2005).

      The record evidence supporting the trial court’s judgment—though

contradicted somewhat by minor inconsistencies in the testimony— is not

greatly outweighed by any contrary evidence.        See Bowden v. State, 628

S.W.2d 782, 784 (Tex. Crim. App. 1982) (holding that the jury is to resolve

conflicts in evidence and such conflicts will not call for reversal if there is

enough credible testimony to support the conviction). We do not believe these

inconsistencies render the jury’s verdict “shocking” or “manifestly unjust,”

especially when considering that three years had passed since the time of the

incident and the time the witness testified at trial.

      The     record   reveals   multiple   links   between     Joas   and    the

methamphetamine: (1) a witness observed Joas running from the scene of a

car accident that he was a party to; (2) a witness saw Joas throw a silver

object into a dumpster; (3) a witness asked bystanders to call the police, and

Joas responded, “No”; (4) a witness said that he was going to call the police,

                                        9
and Joas responded, “No, you’re not”; (5) a witness stayed with the dumpster

until the police arrived; (6) the police recovered a silver tin box that contained

what appeared to be methamphetamine; (7) a witness testified that the silver

tin box was in plain sight; (8) another witness testified that the silver tin box

was the only object sitting on top of a cardboard box that covered most of the

area in the dumpster; and (9) forensic tests confirmed that the silver tin box

contained methamphetamine.

      Considering all of the evidence in a neutral light, we conclude that the

evidence was factually sufficient to sustain the jury’s verdict. See, e.g., Ortiz

v. State, No. 06-08-00090-CR, 2008            WL 5396546, at *2–3           (Tex.

App.—Texarkana Dec. 30, 2008, pet. ref’d) (concluding that security guard

witnessing appellant throw a plastic bag with a white substance on it into a

trash can was sufficient to uphold conviction for possession of a controlled

substance); Haynes v. State, No. 13-04-00492-CR, 2005 WL 2470529, at

*2–3 (Tex. App.—Corpus Christi Oct. 6, 2005, no pet.) (holding that officer’s

testimony that appellant approaching a trash can, reaching down towards his

waist, and then extending his hands toward the trash can was sufficient to

uphold conviction for possession of a controlled substance); see also Dempsey

v. State, 667 S.W.2d 801, 803–04 (Tex. App.—Beaumont 1983, pet. ref’d)

(stating that eyewitness testimony that tied appellant to the dumpster arm slot

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at a time when the contraband was present was sufficient, when combined

with fact that, during the time of the surveillance, no other person approached

the dumpster and no other person except the appellant reached toward the arm

slot, to sustain conviction of possession of a controlled substance).

Accordingly, we overrule Joas’s second point.

IV. Conclusion

      Having overruled both of Joas’s points, we affirm the trial court’s

judgment.




                                           BOB MCCOY
                                           JUSTICE

PANEL: LIVINGSTON, MCCOY, and MEIER, JJ.

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

DELIVERED: October 29, 2009




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