Affirmed as modified; Opinion Filed October 4, 2018.




                                               In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-17-00676-CR

                              SANJAY SINGH KARKI, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                       On Appeal from the 204th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F-15-55513-Q

                              MEMORANDUM OPINION
                        Before Justices Stoddart, Whitehill, and Boatright
                                   Opinion by Justice Stoddart
       A jury found Sanjay Singh Karki guilty of possession of a controlled substance, and the

trial court assessed punishment at two years’ incarceration, probated for five years, and a fine. In

two issues, appellant argues the evidence is insufficient to prove he knew the contraband was

present and the trial court erred by failing to hold a punishment phase before pronouncing sentence.

In a single cross-issue, the State requests we reform the judgment to reflect the trial court, not the

jury, assessed punishment. We modify the trial court’s judgment and affirm as modified.

       On June 21, 2015, Nelson Basco and Stephen Ulas of the Dallas Police Department

watched cars driving in and out of the Boulevard, a gambling establishment known for selling

methamphetamine. Basco and Ulas followed a 2009 Volkswagen sedan as it drove away from the

Boulevard. When the driver, later identified as appellant, did not signal a lane change, Basco and
Ulas initiated a traffic stop. Appellant was the only person in the car and the car was registered to

him. Basco identified appellant in court as the person driving the Volkswagen.

       Basco noticed a red capsule container attached to appellant’s key chain. The capsule

appeared to be a flashlight, but did not include space for a battery. Basco recognized the capsule

as a device used to hide drugs and pills. Appellant consented to a search of his vehicle, during

which Basco found a plastic bag containing crystal methamphetamine inside of the red capsule.

Appellant denied the methamphetamine belonged to him. Basco testified it is common for people

in drug cases to claim they lacked knowledge of the drugs. The drug chemist who analyzed the

seized substance testified it was approximately 0.3039 grams of methamphetamine including

adulterants or dilutants.

       In his first issue, appellant argues the evidence is insufficient to show he knew the

methamphetamine was present. We review a challenge to the sufficiency of the evidence in a

criminal offense for which the State has the burden of proof under the single sufficiency standard

set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Acosta v. State, 429 S.W.3d 621, 624–25

(Tex. Crim. App. 2014). Under this standard, the relevant question is whether, after viewing the

evidence in the light most favorable to the verdict, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2011). This standard accounts for the factfinder’s duty to resolve conflicts in

the testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate

facts. Id. Therefore, in analyzing legal sufficiency, 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. Id. When the record supports conflicting inferences, we

presume the factfinder resolved the conflicts in favor of the verdict and therefore defer to that

determination. Id. Direct and circumstantial evidence are treated equally: circumstantial evidence

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is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence

alone can be sufficient to establish guilt. Id.

       To prove unlawful possession of a controlled substance, the State must prove beyond a

reasonable doubt that the defendant exercised dominion over the substance and that he knew it to

be contraband. Ford v. State, No. 05-15-00446-CR, 2016 WL 1616612, at *4 (Tex. App.—Dallas

Apr. 20, 2016, no pet.) (mem. op., not designated for publication) (citing Poindexter v. State, 153

S.W.3d 402, 405 (Tex. Crim. App. 2005)). Regardless of whether this evidence is direct or

circumstantial, it must establish that a defendant’s connection to the contraband was more than

fortuitous. Id. (citing Blackman v. State, 350 S.W.3d 588, 594–95 (Tex. Crim. App. 2011)). Thus,

mere presence at the location where drugs are found is insufficient, by itself, to establish the

requisite degree of control to support a conviction. Id. (citing Evans v. State, 202 S.W.3d 158, 162

(Tex. Crim. App. 2006)).

       As applicable here, a person commits an offense if he knowingly or intentionally possesses

a controlled substance listed in Penalty Group 1. See TEX. HEALTH & SAFETY CODE ANN.

§ 481.115(a). Methamphetamine is a controlled substance listed in Penalty Group 1. See id.

§ 481.102(6).

       The evidence shows Basco and Ulas saw appellant’s car leaving an establishment known

for selling methamphetamine. Appellant was the only person in the car, which was registered to

him. A red capsule containing the drugs was attached to appellant’s key ring along with his car

key. Basco testified appellant “was the only one in care, custody, and control of the vehicle. The

capsule that we found was on his key ring, his keys to his car, so that’s how we linked the drugs

to him.” Under these circumstances, we conclude appellant’s connection to the drugs was more

than just fortuitous and the evidence is sufficient to show appellant knew the red capsule contained

methamphetamine. Further, after viewing the evidence in the light most favorable to the verdict,

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any rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt. We overrule appellant’s first issue.

       In his second issue, appellant argues the trial court erred by failing to hold a punishment

hearing before pronouncing sentence. Following an adjudication of guilt, a defendant is entitled

to a punishment hearing and the trial judge must allow the defendant an opportunity to present

evidence. Brumsey v. State, No. 05-17-00097-CR, 2018 WL 459779, at *2 (Tex. App.—Dallas

Jan. 18, 2018, no pet.) (mem. op., not designated for publication) (citing Issa v. State, 826 S.W.2d

159, 161 (Tex. Crim. App. 1992); Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001)).

This right, however, is a statutory right that can be waived if not properly requested. Id. (citing

Vidaurri, 49 S.W.3d at 885–86). Appellant did not complain about the lack of a separate

punishment hearing in the trial court. See id.; TEX. R. APP. P. 33.1(a)(1) (preservation of error).

We conclude this issue is not preserved for review. We overrule appellant’s second issue.

       In a single cross-issue, the State requests we reform the judgment to reflect the trial court

assessed punishment. The judgment erroneously shows punishment was assessed by the jury.

Accordingly, we modify the judgment to show the trial court assessed punishment. See TEX. R.

APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Estrada v. State,

334 S.W.3d 57, 63–64 (Tex. App.—Dallas 2009, no pet.).

       We modify the judgment and affirm as modified.




                                                   /Craig Stoddart/
                                                   CRAIG STODDART
                                                   JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)
170676F.U05

                                                –4–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 SANJAY SINGH KARKI, Appellant                      On Appeal from the 204th Judicial District
                                                    Court, Dallas County, Texas
 No. 05-17-00676-CR         V.                      Trial Court Cause No. F-15-55513-Q.
                                                    Opinion delivered by Justice Stoddart.
 THE STATE OF TEXAS, Appellee                       Justices Whitehill and Boatright
                                                    participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
        We DELETE the word “Jury” under the heading “Punishment Assessed by” and
        REPLACE it with the word “Court.”

As REFORMED, the judgment is AFFIRMED.


Judgment entered this 4th day of October, 2018.




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