AFFIRMED; Opinion Filed December 6, 2018.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-18-00545-CR

                          THOMAS DAMIEN MCLEAN, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the 196th Judicial District Court
                                   Hunt County, Texas
                              Trial Court Cause No. 31,671

                             MEMORANDUM OPINION
                            Before Justices Myers, Evans, and Brown
                                    Opinion by Justice Evans

       Thomas Damien McLean was indicted for intentionally and knowingly possessing

methamphetamine in an amount of four grams or more but less than two hundred grams, enhanced

by a prior conviction for burglary of a habitation. Appellant pleaded not guilty to the charge and

pleaded true to the enhancement paragraph. The jury found appellant guilty of the lesser included

offense of possession of methamphetamine in an amount of one gram or more but less than four

grams and found the enhancement paragraph true. The jury assessed punishment at twenty years’

imprisonment and a $10,000 fine. On appeal appellant raises three issues contending that: (1) the

trial court erred in denying his motion to suppress; (2) the evidence is insufficient to support the

conviction; and (3) he received ineffective assistance of counsel. We affirm.
                                                 BACKGROUND

         On May 7, 2015, Deputy Jay Shallow, a peace officer with the Rockwall County Sheriff’s

Office, performed a traffic stop on a vehicle with defective tail lights driven by appellant.

Appellant’s girlfriend, Amber Gunn, was a passenger in the vehicle. During the stop, appellant

gave the deputy consent to search the vehicle. During the search, Deputy Shallow found a

container with methamphetamine underneath the cup holder in the center console between the

driver and passenger seats. Appellant was placed under arrest. Deputy Shallow did not believe

Gunn had any connection to the methamphetamine and no drugs or paraphernalia were found on

Gunn herself or in her personal effects; therefore, she was released. Deputy Shallow weighed the

methamphetamine at the scene at 3.7 grams. The forensic analyst at the lab where the drugs were

sent for testing testified that the methamphetamine weighed 4.06 grams. 1 The jury convicted

appellant of the lesser included offense of possession of methamphetamine in an amount of one

gram or more but less than four grams.

                                                    ANALYSIS

I.       Motion to Suppress

         In his first issue, appellant contends that the trial court erred by denying his motion to

suppress because Deputy Shallow did not have reasonable suspicion to conduct a traffic stop. We

disagree.

         Deputy Shallow testified that as part of his duties as a deputy sheriff, he patrolled the

county. On May 7, 2015, he worked the day shift and his attention was drawn to a GM model

SUV with tail lights that could not be seen properly because they were spray-painted black.

Deputy Shallow testified that this defective equipment constituted a violation of section 547.004


     1
      The discrepancy in weight was explained as being due to the fact that Deputy Shallow testified that he basically
poured out the loose crystals onto the scale without scraping the container clean, whereas the forensic analyst testified
that she removed as much evidence from the container as she reasonably could.
                                                          –2–
of the traffic code which provides that tail lights have to be displayed in a safe manner and

“basically states if it’s not factory then it’s displayed in an unsafe manner.” He testified that he

could only see the tail lights “very dimly” and that it was unsafe. Deputy Shallow also testified

that sections 547.302 and 547.303 of the traffic code required that the rear tail lights be red and

visible from 1,000 feet. He testified that the tail lights on this vehicle were “more black” in color.

         After Deputy Shallow stopped the vehicle and made contact with appellant, the driver,

appellant agreed with the deputy that the tail lights were too dark and told him that he was going

to sand “it” [the paint] off later. During cross-examination, Deputy Shallow acknowledged that

he did see the brake lights come on when appellant stopped at the stop sign. He also testified that

he was sure there was a point when he was 1,000 feet behind the vehicle when he followed it, but

could not state exactly at which point that was. The State argued that Deputy Shallow had

reasonable suspicion and probable cause that a traffic violation had occurred under the various

sections of the traffic code referred to during the deputy’s testimony. Defense counsel argued that

the deputy was able to see the brake lights, there was no testimony that any of the lights did not

work, and there was no testimony that the deputy was either 500 or 1000 feet away. 2 After viewing

the video showing the two vehicles in motion and the stop itself, the trial court denied the motion

to suppress.

         A trial court's ruling on a motion to suppress is reviewed for an abuse of discretion. Lujan

v. State, 331 S.W.3d 768, 771 (Tex. Crim. App. 2011) (per curiam). In conducting this review,

appellate courts employ a bifurcated standard. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim.

App. 2007). We give almost total deference to a trial court’s rulings on questions of historical fact




    2
      During its argument on the motion to suppress, the prosecutor referenced the fact that different sections of the
provisions of the traffic code pertaining to lighting requirements set forth a visibility distance requirement of either
500 feet or 1000 feet. However, the prosecutor did not reference a particular section number, nor was there any
indication that such provision pertained specifically to visibility distance requirements for tail lights.
                                                         –3–
and mixed questions of law and fact that turn on an evaluation of credibility and demeanor, but we

review de novo mixed questions of law and fact that do not turn on credibility and demeanor. Id.

       We view the evidence in the light most favorable to the trial court's ruling, regardless of

whether the trial court granted or denied the motion to suppress. State v. Woodard, 341 S.W.3d

404, 410 (Tex. Crim. App. 2011). Therefore, we afford the prevailing party the strongest

legitimate view of the evidence and all reasonable inferences that may be drawn from the evidence.

Id. In this case, the trial court did not make explicit findings of historical fact. We therefore review

the evidence in the light most favorable to the court’s ruling. Carmouche v. State, 10 S.W.3d 323,

327–28 (Tex. Crim. App. 2000).

       A police officer has reasonable suspicion to detain if he has specific, articulable facts that,

combined with rational inferences from those facts, would lead him reasonably to conclude that

the person detained is, has been, or soon will be engaged in criminal activity. Derichsweiler v.

State, 348 S.W.3d 906, 914–15 (Tex. Crim. App. 2011). In making a reasonable suspicion

determination, we are to use an objective standard that disregards any subjective intent of the

officer making the stop and look solely to whether an objective basis for the stop exists. See Ford

v. State, 158 S.W.3d 488, 492–93 (Tex. Crim. App. 2005). A reasonable-suspicion determination

is made by considering the totality of the circumstances. Id.

       An officer may lawfully stop and reasonably detain a person for a traffic violation. Garcia

v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). Section 547.322(d) of the transportation

code provides that “A taillamp shall emit a red light plainly visible at a distance of 1,000 feet from

the rear of the vehicle.” TEX. TRANSP. CODE ANN. § 547.322(d) (West 2011). Deputy Shallow’s

testimony indicated that the tail lights on appellant’s vehicle were “more black,” than red in color

and that they were not visible 1,000 feet away. The video of Deputy Shallow’s vehicle following

appellant’s vehicle supports the deputy’s testimony. The video shows that the tail lights are not

                                                  –4–
visible at all while the deputy is following the vehicle and that the only time any semblance of a

red light is visible is when the deputy’s vehicle is within a couple of feet of appellant’s vehicle at

the stop sign. Further, appellant admitted to the deputy when he was stopped that he knew the tail

lights were too dark. We conclude that circumstances existed upon which an officer, could

reasonably suspect that appellant had violated a traffic law. Accordingly, the trial court did not

err in holding that the stop of appellant’s vehicle was lawful. We overrule appellant’s first issue.

II.    Sufficiency of Evidence

       In appellant’s second issue, he contends the evidence is legally insufficient to link him to

the methamphetamine. He argues that no controlled substance or contraband was found on his

person and there was no evidence that appellant was the sole owner of the vehicle or the only

person with rightful possession of the vehicle when searched. He also argues that the passenger

had equal access to the console area where the methamphetamine was discovered.

       In reviewing the sufficiency of the evidence, we view all the evidence in the light most

favorable to the verdict, and determine whether any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

313 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). We assume the fact-

finder resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences

in a manner that supports the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007). We defer to the trier of fact’s determinations of witness credibility and the weight to be

given their testimony. Brooks, 323 S.W.3d at 899.

       To establish that appellant was guilty of unlawful possession of methamphetamine, the

State must prove that appellant exercised control, management, or care of the substance, and that

he knew the matter possessed was contraband. See Poindexter v. State, 153 S.W.3d 402, 405 (Tex.

Crim. App. 2005). The evidence establishing possession may be either direct or circumstantial,

                                                 –5–
but must show that appellant’s connection to the methamphetamine was more than just fortuitous.

Id. at 405–06. Although appellant’s mere presence where the drugs are found is insufficient to

establish possession, appellant’s proximity to the drugs combined with other evidence can prove

possession beyond a reasonable doubt. See Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App.

2006).

         Factors that can be sufficient, either singly or in combination, to establish possession of

contraband include: (1) presence when the search is conducted; (2) whether the contraband is in

plain view; (3) proximity to and the accessibility of the contraband; (4) the accused being under

the influence of narcotics when arrested; (5) possession of other contraband or narcotics when

arrested; (6) incriminating statements made by the accused when arrested; (7) an attempt to flee;

(8) furtive gestures; (9) an odor of contraband; (10) the presence of other contraband or drug

paraphernalia; (11) whether the accused 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) possession of a large amount of cash; (14) conduct indicating a consciousness of guilt;

(15) the quantity of the contraband; and (16) whether the accused was the driver of the automobile

in which the contraband was found. See Evans, 202 S.W.3d at 162 n.12; McQuarters v. State, 58

S.W.3d 250, 259 (Tex. App.–Fort Worth 2001, pet. ref'd). It is not the number of links that is

dispositive, but rather the logical force of all the evidence, direct and circumstantial. Evans, 202

S.W.3d at 162.

         The record reflects the following evidence that affirmatively links appellant to the

methamphetamine: The methamphetamine was found in an enclosed area—underneath the cup

holder in the center console—of the vehicle appellant was driving. Deputy Shallow testified that

the cup holder appeared loose, indicating to him that it had been removed a few times. The console

and cup holder was located between the driver and passenger’s seat, and thus, was readily

                                                –6–
accessible to appellant. Although the vehicle was registered to appellant’s father, the passenger,

appellant’s live-in girlfriend, testified that appellant was the main operator of the vehicle and that

she considered the vehicle appellant’s car for all intents and purposes. Further, appellant’s

demeanor indicated to the deputy that appellant was possibly under the influence of narcotics.

Deputy Shallow testified that appellant seemed to be nervous and was breathing pretty heavy;

appellant could not stand still and he was somewhat jittery. In addition, appellant asked the deputy

on numerous occasions if he could become a confidential informant to work off his case indicating

appellant had consciousness of guilt.

       Appellant argues that there are several factors that negate any finding of an affirmative link

between appellant and the methamphetamine noting the fact that appellant consented to the search,

and voiced his surprise and anger that contraband was in the vehicle he was driving. However,

Deputy Shallow testified that appellant’s surprise and shock did not seem genuine. Deputy

Shallow also testified that appellant’s offer to move some speakers in the rear of the vehicle before

he searched the vehicle raised his suspicion because in his experience, a suspects’ offer to help in

a certain location of the place to be searched is an attempt to misdirect the search to a place farthest

away from the drugs. Appellant also argues that Gunn’s testimony indicated that appellant was

not the sole operator of the vehicle. While Gunn did testify that other people such as appellant’s

father, mother, and the mother of his children occasionally drove the vehicle, Gunn also testified

she could not remember if anyone else had driven the vehicle within the week or month that the

arrest occurred. Appellant further argues Gunn, as the passenger, shared proximity to the drugs

with appellant. Although appellant acknowledges Gunn testified the methamphetamine was not

hers and she was not found to be in possession of any other contraband or paraphernalia connecting

her to the drugs, appellant argues, there were at least three minutes while the deputy was

questioning appellant outside of the vehicle before either Gunn or the vehicle was searched during

                                                  –7–
which Gunn had ample opportunity to place the methamphetamine in the console without

appellant’s knowledge.     The jury was not required to believe the statements appellant made to

the deputy denying knowledge of the methamphetamine in the vehicle, or the alternate explanation

of how the drugs could have been placed in the console by his passenger or some other driver

weeks before the arrest occurred. See Evans, 202 S.W.3d at 166. Further, the prosecution has no

affirmative duty to rule out every hypothesis except that of guilt. See Blackman v. State, 350

S.W.3d 588, 595 (Tex. Crim. App. 2011).

       Viewing the evidence in the light most favorable to the verdict, we conclude the evidence

is sufficient to link appellant to the methamphetamine. We overrule appellant’s second issue.

III.   Ineffective Assistance of Counsel

       In appellant’s third issue, he contends that he was denied the effective assistance of counsel

due to trial counsel’s failure to request a jury instruction pursuant to article 38.23 of the code of

criminal procedure.

       To prove a claim of ineffective assistance of counsel, appellant must show that (1) his trial

counsel’s performance fell below an objective standard of reasonableness and (2) there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668, 687–88 (1984); Lopez v. State,

343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Appellant has the burden to establish both prongs

by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App.

1998). “An appellant’s failure to satisfy one prong of the Strickland test negates a court’s need to

consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); see

also Strickland, 466 U.S. at 697.

       On this record, appellant cannot show that counsel’s failure to request an article 38.23 jury

instruction constituted deficient performance. Article 38.23 provides that evidence obtained in

                                                –8–
violation of Texas or federal laws or constitutions is inadmissible in a criminal prosecution. If

there is a fact issue regarding whether the police acquired the evidence in violation of the laws or

constitutions, the jury must be instructed to resolve the factual dispute and then disregard any

evidence it decides was improperly obtained. TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West

2018); Morehead v. State, 746 S.W.2d 830, 839 (Tex. Crim. App. 1988). To be entitled to

an article 38.23 instruction, appellant must show that (1) an issue of historical fact was raised in

front of the jury; (2) the fact was contested by affirmative evidence at trial; and (3) the fact is

material to the constitutional or statutory violation that the defendant has identified as rendering

the particular evidence inadmissible. Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App.

2012) (citing Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007)).

       In support of his claim, appellant makes the conclusory statement, “The jury heard

contested and conflicting evidence regarding the alleged traffic violation given as a reason for the

traffic stop including a video recording (State’s Exhibit 1) and the testimony of Deputy Shallow.”

Appellant does not direct us to any testimony or evidence in the record which conflicts with Deputy

Shallow’s testimony regarding the reason for the traffic stop, nor does he direct us to anything in

the record showing that the reason for the stop was contested. Deputy Shallow testified that he

stopped appellant’s vehicle because the tail lights could not be seen properly because they were

spray-painted black. The deputy’s testimony referred to different sections of the transportation

code which required that lights had to be displayed in a safe manner, that rear tail lights had to be

red, and that they had to be visible from a distance of a 1,000 feet. He testified that he could only

see the tail lights “very dimly” and that it was unsafe. Deputy Shallow’s testimony indicated that

the tail lights on appellant’s vehicle were “more black,” than red in color and that they were not

visible 1,000 feet away. The video of Deputy Shallow’s vehicle following appellant’s vehicle

supports the deputy’s testimony. Further, appellant admitted to the deputy when he was stopped

                                                –9–
that he knew the tail lights were too dark. On cross-examination, Deputy Shallow acknowledged

that he did see the brake lights come on when appellant stopped at the stop sign. However, nothing

about this testimony conflicts with his testimony regarding the reason for stop as it pertained to

the visibility and color of the tail lights. In any event, questions on cross-examination cannot, by

themselves, raise a disputed fact issue. Madden, 242 S.W.3d at 515.

       Based on the evidence presented, we find nothing in the record which raises a fact issue

regarding the reason for the stop. Counsel could not have performed deficiently by failing to

request an article 38.23 jury instruction because appellant was not entitled to such an instruction.

See Hardin v. State, 951 S.W.2d 208, 211 (Tex. App.—Houston [14th Dist.] 1997, no pet.).

       Because appellant has failed to satisfy the first prong of the Strickland test, we need not

consider the requirements of the second prong. We overrule appellant’s third issue.

                                         CONCLUSION

       We affirm the trial court’s judgment.



                                                      /David Evans/
                                                      DAVID EVANS
                                                      JUSTICE



Do Not Publish
TEX. R. APP. P. 47
180545F.U05




                                               –10–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 THOMAS DAMIEN MCLEAN, Appellant                   On Appeal from the 196th Judicial District
                                                   Court, Hunt County, Texas
 No. 05-18-00545-CR        V.                      Trial Court Cause No. 31,671.
                                                   Opinion delivered by Justice Evans,
 THE STATE OF TEXAS, Appellee                      Justices Myers and Brown participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 6th day of December, 2018.




                                            –11–
