
NO. 07-04-0538-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

AUGUST 23, 2005

______________________________


JIMMY C. THOMAS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE


_________________________________

FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2004-4-5141; HONORABLE BRADLEY S. UNDERWOOD, JUDGE

_______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
	Following a plea of not guilty, appellant Jimmy C. Thomas was convicted by a jury
of possession with intent to deliver methamphetamine in the amount of four grams or more
but less than 200.  The trial court assessed punishment at 25 years confinement. 
Presenting a sole issue, appellant maintains the evidence is legally insufficient to establish
his conviction.  We affirm.
	One January mid-morning in 2004, Trooper Jeff Ashburn stopped appellant for traffic
violations.  Appellant turned into a liquor store parking lot and immediately exited his
vehicle and headed toward Ashburn, who had parked behind him.  Appellant's passenger
attempted to exit the vehicle and enter the liquor store, but was directed by Ashburn to
return to the vehicle.  Ashburn detected the odor of marihuana on appellant and observed
the passenger acting restlessly in the vehicle.  For officer safety, both appellant and the
passenger were handcuffed and, suspecting illegal activity, Ashburn initiated a search.
	Appellant admitted to smoking marihuana and having some in the ashtray of his
vehicle.  Ashburn's search led to the discovery of a black leather pouch containing
numerous small plastic bags of methamphetamine under the passenger's seat.  A small
scale was also in the pouch, a syringe was located on the center console, and two bottles
of formaldehyde were discovered.  
	After both suspects were warned that transporting any contraband to jail was illegal,
appellant admitted he had methamphetamine on his person; the passenger, however, did
not disclose he had a loaded syringe on him.  It was discovered after he was transported
to the county jail.  Appellant was charged in a two-count indictment of possession of one
or more but less than four grams of methamphetamine and possession with intent to deliver
four or more but less than 200 grams of methamphetamine.  He was convicted of the
greater offense.
	By a single issue, appellant contends the evidence is legally insufficient to prove he
intentionally and knowingly possessed, with intent to deliver, methamphetamine in an
amount of four grams or more but less than 200.  We disagree.  In conducting a legal
sufficiency review, we must determine whether, after viewing the evidence in the light most
favorable to the prosecution, 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, 318,
99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 157
(Tex.Cr.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570, 573
(Tex.Cr.App. 2000).  The legal sufficiency of the evidence is measured by the elements of
the offense as defined by the hypothetically correct jury charge that is authorized by the
indictment.  Malik v. State, 953 S.W.2d 234, 239 (Tex.Cr.App. 1997).  This is done by
considering all the evidence that was before the jury--whether proper or improper--so that
we can make an assessment from the jury's perspective.  Miles v. State, 918 S.W.2d 511,
512 (Tex.Cr.App. 1996).  As an appellate court, we may not sit as a thirteenth juror, but
must uphold the jury's verdict unless it is irrational or unsupported by more than a mere
modicum of evidence.  Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988).
 Before determining whether the evidence is sufficient to support appellant's
conviction, we must review the essential elements the State was required to prove. 
Appellant was convicted of possession with intent to deliver methamphetamine of four
grams or more but less than 200 grams.  See Tex. Health & Safety Code Ann. § 481.112(a)
& (d) (Vernon 2003).  To prove unlawful possession of a controlled substance with intent
to deliver, the State was required to prove by direct or circumstantial evidence that the
accused (1) exercised actual care, custody, control, or management over the substance
and (2) knew the matter he possessed was contraband.  See Tex. Pen. Code Ann. §
1.07(a)(39) (Vernon 2003).  See also Poindexter v. State, 153 S.W.3d 402, 405
(Tex.Cr.App. 2005), citing Joseph v. State, 897 S.W.2d 374, 376 (Tex.Cr.App. 1995).  The
evidence must establish the accused's connection with the controlled substance was more
than just fortuitous.  Brown v. State, 911 S.W.2d 744, 747 (Tex.Cr.App. 1995). 
	Intent to deliver may be proven by circumstantial evidence and is a question of fact
to be determined by the trier of fact.  Avila v. State, 15 S.W.3d 568, 573 (Tex.App.-Houston
[14th Dist.] 2000, no pet.)  It may be inferred from the acts, words, or conduct of the
accused.  Puente v. State, 888 S.W.2d 521, 527 (Tex.App.-San Antonio 1994, no pet.). 
Factors considered in establishing intent to deliver include (1) the nature of the place the
defendant was arrested; (2) the quantity of narcotics possessed by the defendant; (3) the
manner of packaging; (4) the presence of drug paraphernalia; (5) a large amount of cash;
and (6) the defendant's status as a drug user.  Williams v. State, 902 S.W.2d 505, 506
(Tex.App.-Houston [1st Dist.] 1994, pet. ref'd).
	When the accused is not in exclusive possession of the place where contraband is
found or the contraband is not on the accused's person, additional independent facts and
circumstances must affirmatively link him to the contraband.  Deshong v. State, 625 S.W.2d
327, 329 (Tex.Cr.App. 1981).  Affirmative links is a shorthand expression of what must be
proven to establish that the accused possessed some kind of contraband knowingly or
intentionally and is used to evaluate the sufficiency of the evidence.   Brown, 911 S.W.2d
at 747.  The affirmative links rule is a common sense notion designed to protect innocent
bystanders-a parent, child, spouse, roommate, or friend--from conviction based solely
upon his fortuitous proximity to someone else's contraband.  Poindexter, 153 S.W.3d at
406. 
 Affirmative links may include, but are not limited to: (1) appellant's presence when
the contraband was found; (2) whether the contraband was in plain view; (3) appellant's
proximity to and the accessibility of the contraband; (4) whether appellant was under the
influence of narcotics when arrested; (5) whether appellant possessed other contraband
when arrested; (6) whether appellant made incriminating statements when arrested; (7)
whether appellant attempted to flee; (8) whether appellant made furtive gestures; (9)
whether there was an odor of the contraband; (10) whether other contraband or drug
paraphernalia was present; (11) whether appellant owned or had the right to possess the
place where the drugs were found; (12) whether the place the drugs were found was
enclosed; (13) the amount of contraband found; (14) whether appellant was the driver of the
automobile in which the contraband was found; and (15) whether appellant possessed a
large amount of cash.  See Taylor v. State. 106 S.W.3d 827, 832 (Tex.App.-Dallas 2003,
no pet.).  See also Trejo v. State, 766 S.W.2d 381, 384 (Tex.App.--Austin 1989, no pet.). 
Affirmative links are established by the totality of the circumstances.  Wootton v. State, 132
S.W.3d 80, 87 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd).  The logical force of the
factors, not the number present, determines whether the evidence links appellant to the
contraband.  Trejo, 766 S.W.2d at 385.   
	By his argument, appellant contends the evidence does not link him to the
methamphetamine contained in the black pouch found under the passenger's seat.  He
suggests, instead, that his passenger, who law enforcement officers were searching for that
day, was more closely linked to the larger quantity of methamphetamine. 
	Appellant was the owner and driver of the vehicle.  Trooper Ashburn testified he
detected an odor of marihuana on appellant, and appellant admitted he had marihuana in
his ashtray and methamphetamine on his person.  An undercover narcotics officer testified
that usually marihuana use is associated with methamphetamine and it is common for a
user to be a dealer.  The officer also testified that given the manner of packaging, there
was no doubt the methamphetamine in the pouch was for sale.  According to Trooper
Ashburn, the quantity of methamphetamine found in the pouch was more than for personal
use, and the scales found in the pouch were an indicator of selling for profit.
	Testimony from a drug analyst confirmed that the amount of methamphetamine
found on appellant was 1.02 grams, and the black pouch contained small plastic bags
weighing  21.87 grams.  He also testified that samples from both were consistent with one
another.  Trooper Ashburn testified that the syringe taken from the passenger contained
a brown substance, whereas the methamphetamine found on appellant was similar in color
and packaging to the contents of the plastic bags found in the leather pouch. 
	The undercover narcotics officer testified that some of the ingredients used in
cooking methamphetamine include lithium batteries and starter fluid.  Following his
testimony, the State requested an opportunity to present testimony from three witnesses
outside the jury's presence that appellant was obtaining precursors for cooking
methamphetamine to support its delivery allegation.  Two loss prevention security officers
from Wal-Mart testified they are trained to watch high theft areas and that one such area
is the lithium batteries display.  They testified that on two separate occasions appellant was
caught shoplifting lithium batteries.  Shortly before the first offense, appellant aroused the
suspicion of one of the officers because his shopping basket contained 12 cans of starter
fluid, plastic tubing, and a package of 50 plastic baggies.  The third witness, a police officer,
testified he was called to the scene of the first offense to issue a criminal trespass warning
to appellant.
	Following their testimony, defense counsel objected on the ground that appellant
had not been charged with manufacturing methamphetamine and the testimony might
cause the jury to convict for the wrong reason.  He further objected that no testimony was
presented on the size of the plastic baggies contained in appellant's shopping cart.  
	The court ruled the witnesses would be allowed to testify to show knowledge and
intent to deliver and offered to give the jury a limiting instruction.  Thereafter, the witnesses
testified before the jury regarding the shoplifting offenses.  During cross-examination, the
police officer who issued the criminal trespass warning could not recall what size plastic
baggies appellant purchased.
	The narcotics undercover officer was recalled and testified without objection that
methamphetamine is packaged in small plastic sandwich bags and that most people who
cook methamphetamine are users who sell to support their habit.  In his words, cooks,
dealers, and users are "all wrapped up in one."
	Evidence was also presented that appellant was cooperative, did not attempt to flee
or make furtive gestures, did not have large amounts of cash, and the black pouch was in
closer proximity to the passenger.  However, the logical force of the evidence presented
by the State, i.e., appellant was the owner and driver of the vehicle, the odor of marihuana
and its connection to methamphetamine, the similarity in color and packaging to the
methamphetamine on appellant's person and in the pouch, the presence of a syringe and
scales, the quantity of the methamphetamine in the pouch, and the shoplifting incidents,
affirmatively linked appellant to possession of methamphetamine contained in the black
pouch and established intent to deliver.  Appellant's version of the events without evidence
supporting his hypothesis of innocence does not render the evidence insufficient to support
his conviction.  See Sosa v. State, 845 S.W.2d 479, 483 (Tex.App.-Houston [1st Dist.]
1993, pet. ref'd) citing Little v. State, 758 S.W.2d 551, 563 (Tex.Cr.App.  1988), cert.
denied, 488 U.S. 934, 109 S.Ct. 328, 102 L.Ed.2d 346 (1988).  We conclude a rational trier
of fact could have found the elements of the crime beyond a reasonable doubt.  Appellant's
sole issue is overruled.		
	Accordingly, the judgment of the trial court is affirmed.
						Don H. Reavis
						     Justice


Do not publish.
