                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-133-CR


MICHAEL SCOTT NELSON                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE

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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                  Introduction

      Arlington police arrested appellant Michael Scott Nelson after finding

methamphetamine and a semi-automatic pistol in a truck that he was standing

next to, and “fumbling” in, late at night in the parking lot of a closed business.

A jury later convicted appellant of possession of four or more, but less than two

hundred, grams of methamphetamine with the intent to deliver and also found



      1
          … See Tex. R. App. P. 47.4.
that appellant had used a deadly weapon in the commission of the offense. In

accordance with the jury’s assessment, the trial court sentenced appellant to

fifty-five years’ confinement. In a single point, appellant challenges the legal

and factual sufficiency of the evidence to support his conviction and the deadly

weapon finding. We affirm.

                    Standard of Review - Legal Sufficiency

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

we view all 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).

                   Standard of Review - Factual Sufficiency

      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

                                        2
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. 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

                                        3
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.” 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.

      An opinion addressing factual sufficiency must include a discussion of the

most important and relevant evidence that supports the appellant’s complaint

on appeal.   Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Moreover, an opinion reversing and remanding on factual insufficiency grounds

must detail all the evidence and clearly state why the finding in question is

factually insufficient and under which ground. Goodman v. State, 66 S.W.3d

283, 287 (Tex. Crim. App. 2001); Johnson, 23 S.W.3d at 7.

                                Applicable Facts

      Officer Paul Shackelford of the Arlington Police Department testified that

on January 19, 2007 at around 1:53 a.m., he and Officer Jason Rash were

riding on patrol in the North District of Arlington. As Officer Shackelford turned

onto Centennial Road, he noticed a truck in the parking lot of Cavender’s Boots 2



      2
        … Officer Shackelford testified that the particular area of the North
District in which the Cavender’s is located is “a specific area that [the officers]
had been targeting due to a lot of illegal activity with subjects involved in guns
and narcotics.” He also explained on cross-examination that there was an
eight-liner game room next to the Cavender’s and that “the clientele that
frequented [the] game room dealt with narcotics and weapons.”

                                        4
that had both its doors open.       The business was not open at that time,

however. Officer Shackelford noticed a man, whom he identified at trial as

appellant, standing by the wheel well part of the truck on the passenger side;

appellant was “leaning over the bed of the truck moving things around on the

interior of the bed.”    Officer Shackelford testified that based on the “early

morning hours, the secluded parking lot, [and] the business not being open,” he

found appellant’s behavior suspicious. 3

      Officer Shackelford noticed that after appellant saw him and Officer Rash

in the patrol car, he “made several hurried or furtive movements inside the truck

as if he was trying to conceal something inside the bed of the truck.”

According to Officer Shackelford, this increased his suspicion, so the officers

pulled into the parking lot and identified themselves to appellant as police

officers. They performed a Terry frisk on appellant and checked to see if he

had any outstanding warrants.        After discovering that appellant had an

outstanding warrant,4 Officer Shackelford handcuffed him and placed him under

arrest.


      3
        … Officer Shackelford testified on cross-examination that the parking lot
is in a commercial area near the access road (Watson) to Highway 360; thus,
he agreed that the lot is not secluded in the sense that it is located behind
another building. Officer Shackelford also agreed that there is a fair amount of
traffic on 360 and Watson at night.
      4
          … The State entered the warrant into evidence.

                                        5
      Officer Shackelford searched the interior of the truck and found a loaded

magazine for a semi-automatic pistol on the passenger side. He also found a

cell phone. He then searched the truck bed and, under a spare tire in the center

rear part where appellant had been reaching earlier,5 found four plastic baggies

with “a white crystal-like substance in each” and a Crown Royal bag. The

substance in the baggies field tested positive for crystal methamphetamine.

Inside the Crown Royal bag was a nine millimeter pistol of “such a type that it

could hold” the magazine Officer Shackelford had found in the truck’s interior.

Officer Shackelford testified that, based on his training and experience, (1) he

believed the baggies held a “large amount” of crystal methamphetamine and (2)

such an amount showed an intent to deliver.

      While the officers were with appellant in the parking lot, appellant’s cell

phone rang and Officer Shackelford answered it. The caller ID showed the

name “Marcus,” and the caller identified himself as Marcus.              Officer

Shackelford did not identify himself as a police officer; instead, he asked

Marcus where he was and where he would like to meet. Officer Shackelford

suggested a meeting place near the arrest scene and asked Marcus if he was

ready to pick up the “stuff”; he understood from the conversation with Marcus



      5
      … Officer Shackelford testified that this area was within appellant’s
reach when the officers first saw him.

                                       6
that it was methamphetamine. After he ended the conversation, the phone

rang a second time. Officer Shackelford answered it, spoke to Marcus again,

and changed the meeting place to a different location. He then contacted some

other officers to meet Marcus. There is no evidence regarding what happened

with the other officers and Marcus.

      Officer Rash testified that when he and Officer Shackelford pulled into the

parking lot, appellant “backed up [from the truck] and then started moving

towards the front right passenger area of the door that was open.” He said he

checked appellant’s driver’s license for warrants, notified Officer Shackelford

of the outstanding warrant, and helped Officer Shackelford place appellant in

the police car after he was placed under arrest. He then started working on

booking paperwork while Officer Shackelford searched the truck.          Officer

Shackelford called Officer Rash to the truck to look at the various items he

found as he found them.         According to Officer Rash, the amount of

methamphetamine in the truck, in his training and experience, “was much

greater than personal use” and was consistent with the intent to deliver.

      Michelle O’Neal, a senior forensic chemist with the Tarrant County

Medical Examiner’s office, testified that the substance in the baggies tested to

be methamphetamine weighing a total of 111.87 grams, including adulterants

and dilutants.

                                       7
      Appellant testified that the truck in which the drugs were found was his

wife’s truck and that he had loaned it to a friend earlier that day. That night

and the next morning, he was at a twenty-four hour game room that is close

to the Cavender’s; because the parking lot of the game room was full, his friend

parked the truck in the Cavender’s parking lot. When the police arrived, he was

“standing out there talking to about five people . . . sitting in the grass between

the two parking lots and the truck.” Appellant said he walked over to the truck

when the police arrived because

      there was a police car coming up. And I wasn’t going to turn and
      run the other way. So I just felt--I had no reason to not feel
      comfortable to walk up to that truck. It’s my wife’s truck. So I
      could have turned and went the other way, yeah. But I had no
      reason to.

Appellant testified that he opened the doors because he was going to send his

friend back to his house with the truck. According to appellant, he was not

leaning into the truck; he was just standing there. He did not see the loaded

magazine, nor did he touch anything in the truck bed.

      Appellant testified that the officers grabbed him and made him stand in

front of the police car, telling him that the video was running.6 He said one of

the officers was holding him and the other kept running around the truck with




      6
          … Officer Rash testified that there was no video equipment in the car.

                                         8
a flashlight, leaning in, and looking in the tool box and the truck bed.

According to appellant, the officer was getting mad and finally asked for

consent to search the truck, which appellant refused. He testified that the

police officers then locked him in the police car and searched the truck for

twenty minutes, after which they arrested him.

         Appellant denied possessing the gun and drugs; he also testified that he

never intended to sell any drugs that night.

         On cross-examination, appellant testified that he did have a friend named

Marcus; however, he denied that he was going to sell drugs to Marcus that

night.     He also denied owning the cell phone.       He admitted that he had

previously written in a letter that he was trying to help Marcus obtain a 16th

of an ounce of ice, but he explained at trial that

               [h]e [Marcus] was trying to get a 16th of Ice and he was
         asking me if I knew anyone to get it from or whatnot. So I was
         actually sitting there waiting for a ride from him. So that’s what
         we were waiting for. If I had all this we wouldn’t have been
         waiting. So why would we be waiting - - something that I had a
         large amount of, why are we waiting for something? I mean I was
         there with roughly ten people and that’s what he was waiting for.
         But I wasn’t going to sell him anything, no.

According to appellant, he was waiting outside with Marcus because Marcus

wanted to buy some ice, and appellant did not have any, nor did he have any




                                         9
money to buy some with; thus, he and Marcus were “sitting there waiting” to

get some before they went to go shoot pool.7

      The State recalled Officer Shackelford, who testified that no one was

with appellant when the officers saw him and the truck, that appellant was

fumbling around in the bed of the pickup truck when the officers saw him, that

they never asked for permission to search the truck, that Marcus was not at the

scene, and that the police report had not been changed.

                                 Applicable Law

      To prove unlawful 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.               Tex.

Health & Safety Code Ann. § 481.002(38) (Vernon Supp. 2008); Joseph v.

State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995); Tucker v. State, 183

S.W.3d 501, 510 (Tex. App.—Fort Worth 2005, no pet.). The evidence “must

establish, to the requisite level of confidence, that the accused’s connection

with the drug was more than just fortuitous. This is the whole of the so-called




      7
        … Appellant claimed that Marcus’s name was originally listed in the
police report as being at the scene but that by the time of trial, it was no longer
shown in the report.

                                        10
‘affirmative links’ rule.” Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim.

App. 1995); Tucker, 183 S.W.3d at 510.

     The “affirmative links rule” is designed to protect the innocent
     bystander from conviction based solely upon his fortuitous
     proximity to someone else’s drugs. This rule simply restates the
     common-sense notion that a person--such as a father, son, spouse,
     roommate, or friend--may jointly possess property like a house but
     not necessarily jointly possess the contraband found in that house.
     Thus, we have formulated the rule that “[w]hen the accused is not
     in exclusive possession of the place where the substance is found,
     it cannot be concluded that the accused had knowledge of and
     control over the contraband unless there are additional independent
     facts and circumstances which affirmatively link the accused to the
     contraband.”

Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) (footnotes

omitted); Tucker, 183 S.W.3d at 510; McQuarters v. State, 58 S.W.3d 250,

259 (Tex. App.—Fort Worth 2001, pet. ref’d).

     Nonexclusive factors we may consider include (1) the defendant’s

presence when a search warrant is executed, (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 the



                                     11
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 accused 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. Tucker, 183 S.W.3d at 510; McQuarters, 58 S.W.3d

at 259.

      “‘[U]sed . . . a deadly weapon’ during the commission of the offense

means that the deadly weapon was employed or utilized in order to achieve its

purpose.” Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989);

Sanchez v. State, 243 S.W.3d 57, 72 (Tex. App.—Houston [1st Dist.] 2007,

pet. ref’d). A deadly weapon may be “used” even if it is merely possessed, if

that possession facilitates the associated felony offense. Davis v. State, Nos.

05-06-01613–20-CR, 2008 WL 542460, at *5 (Tex. App.—Dallas Feb. 29,

2008, pets. ref’d); Smith v. State, 176 S.W.3d 907, 919 (Tex. App.—Dallas

2005, pets. ref’d). Thus, in determining the sufficiency of the evidence to

support a finding that the defendant used a deadly weapon 8 during the



      8
      … A firearm is a deadly weapon per se. Tex. Penal Code Ann. §
1.07(a)(17)(A) (Vernon Supp. 2008); Ex parte Huskins, 176 S.W.3d 818, 820

                                      12
commission of a felony offense, we must determine “whether a rational trier of

fact could find beyond a reasonable doubt that the mere possession of firearms

facilitated the associated felony.” Gale v. State, 998 S.W.2d 221, 224 (Tex.

Crim. App. 1999); Smith, 176 S.W.3d at 918.

                                      Analysis

      According to appellant, there is not a sufficient nexus linking him to either

the drugs or the gun to show that he intentionally and knowingly possessed

either, nor is there any evidence that he used or exhibited the gun in any way.9

Appellant thus challenges the legal and factual sufficiency of the evidence to

show “(1) that he intentionally or knowingly possessed a controlled substance,

(2) that he intentionally or knowingly used or exhibited a deadly weapon in

connection with that offense, and (3) that he possessed any controlled

substance with the intent to deliver the same.” 10 Specifically, appellant points

to the following as showing the legal and factual insufficiency of the evidence:




(Tex. Crim. App. 2005).
      9
       … In his argument, appellant also challenges the reasonableness of the
officers’ initial detention but does not raise it as a separate issue in his brief, nor
did he raise the issue at trial.
      10
        … Appellant does not challenge the intent to deliver evidence other than
in connection with his contention that there is insufficient evidence to show he
intentionally and knowingly possessed the methamphetamine. Thus, we
confine our review to that evidence.

                                          13
             No attempt was made to determine the ownership of the
      truck herein, beyond the Appellant’s admission that it belonged to
      his wife. No keys were found on the Appellant’s person and with
      both its doors and truck bed open to the public anyone could have
      put something into the truck at any time without Appellant
      knowing it. No ownership of the firearm or finger prints were
      offered to connect any of the contraband (drugs, gun or
      ammunition) to the Appellant. The Appellant made no incriminatory
      statements to the police and did not attempt to flee or elude them.
      No money, drugs, weapons, ammunition, or ‘dope notes’ were
      found on the Appellant’s person. There is no evidence that the
      officers even saw the Appellant touch the spare tire in this case
      and thus no evidence of knowledge, intent or possession. There is
      no evidence to show that the Appellant owned, touched or had any
      connection with the cell phone found in the truck’s cab. There is
      no showing that the ‘Marcus’ who called on the phone was indeed
      calling in fact to speak to this Appellant. There is no evidence to
      show that the Appellant was intoxicated or high on dope at the
      time of this incident. In fact the evidence shows a cooperative
      Appellant who produced ID upon request. Being in the vicinity
      does not establish possession.

      Appellant’s brief at 9–10.

      Legal Sufficiency - Intentional and Knowing Possession of Controlled
      Substance and Deadly Weapon

      Appellant’s argument focuses solely on what was not in evidence rather

than the evidence that was admitted at trial, which is what we must rely upon

in performing both a legal and factual sufficiency review. Here, the jury was

entitled to disbelieve all of appellant’s testimony and believe all of the officers’

testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Schmidt

v. State, 232 S.W.3d 66, 68 (Tex. Crim. App. 2007).



                                        14
      The officers’ testimony shows that appellant was standing alone next to

the truck, which he apparently had been allowed to drive and possess even

though it belonged to his wife. It was 1:53 a.m., and the business was closed.

Appellant was “fumbling” in the truck bed; when he saw the officers, he “made

several hurried or furtive movements inside the truck as if he was trying to

conceal something inside the bed of the truck.” When the officers pulled up to

the truck, appellant moved toward the open passenger side door. Appellant’s

actions, combined with his circumstances, are evidence of a consciousness of

guilt; a reasonable inference is that he knew—and was trying to conceal—not

only what was in the truck bed (the gun and drugs), but also what was on the

passenger side seat (the loaded magazine). See Simmons v. State, 100 S.W.3d

484, 491–92 (Tex. App.—Texarkana 2003, pet. ref’d) (holding that appellant’s

going to great lengths to conceal bag with drugs inside indicated consciousness

of guilt), cert. denied, 541 U.S. 996 (2004); see also Hooper v. State, 214

S.W.3d 9, 16–17 (Tex. Crim. App. 2007) (holding that in performing a legal

sufficiency review, appellate courts must “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”).

Moreover, Officer Shackelford testified that the drugs and gun were within

appellant’s reach. See Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim.

                                      15
App.   1981);    Robinson    v.   State,    174   S.W.3d   320,    326–27     (Tex.

App.—Houston [1st Dist.] 2005, pet. ref’d).

       In addition, the jury was entitled to attach significance to the phone call

from Marcus, particularly in light of the other circumstances under which the

officers found appellant. A reasonable inference from the entire record, viewed

in the light most favorable to the verdict, is that the police interrupted appellant

on his way to a drug deal at which he intended to protect either himself or the

drugs, or to facilitate their sale, by possessing a firearm. Accordingly, we hold

that, based on the appropriate standard of review, the evidence is legally

sufficient to support both appellant’s conviction and the deadly weapon finding.

       Factual Sufficiency - Intentional and Knowing Possession of Controlled
       Substance and Deadly Weapon

       We hold that the evidence is likewise sufficient when viewed according

to the standard of review for factual sufficiency. As with legal sufficiency, we

must review all the evidence actually in the record, without focusing solely on

what is missing, to determine if the evidence is too weak to support the

conviction or whether the contrary evidence is so overwhelming that the

conviction cannot stand. Watson, 204 S.W.3d at 414–15, 417.

       Regardless of the actual ownership of the truck, appellant’s right to use

it was not disputed; the jury could have disbelieved his testimony that he



                                           16
allowed a friend to use the truck.     Even if the jury did believe that part of

appellant’s testimony, it did not have to believe appellant’s claim that he did not

know the drugs were there and that he did not intend to sell them, in light of

the other evidence, particularly the evidence of his guilty knowledge when the

officers arrived at the scene. There was no evidence regarding whether keys

were found or not. There is not affirmative testimony that no keys were found;

we simply do not know whether any were found or not.              In addition, the

officers testified that appellant was in the parking lot alone and appeared to be

in control of the truck.

      As to the rest of the evidence appellant claims is lacking, the “affirmative

links” factors are nonexclusive, meaning that there need not be evidence of

every one of them to link a defendant to contraband.         Isbell v. State, 246

S.W.3d 235, 238 (Tex. App.—Eastland 2007, no pet.) (“No set formula exists

to dictate a finding of affirmative links sufficient to support an inference of

knowing possession of contraband. The number of factors present is not as

important as the logical force or the degree to which the factors, alone or in

combination, tend to affirmatively link the defendant to the contraband.”

(citations omitted)).   We are satisfied that, here, based on the appropriate

standard of review, the presence of competent evidence as to but a few of

those factors is sufficiently strong, and the evidence to the contrary not so

                                        17
overwhelming, that the evidence is also factually sufficient to support

appellant’s conviction and the deadly weapon finding.

     We overrule appellant’s sole point.

                                Conclusion

     Having overruled appellant’s sole point, we affirm the trial court’s

judgment.


                                              PER CURIAM


PANEL: LIVINGSTON, J.; CAYCE, C.J.; and DAUPHINOT, J.

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

DELIVERED: March 26, 2009




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