                                                                                      ACCEPTED
                                                                                 07-14-00230-CR
                                                                     SEVENTH COURT OF APPEALS
                                                                              AMARILLO, TEXAS
                                                                             3/2/2015 2:23:56 PM
                                                                               Vivian Long, Clerk


                        No. 07-14-00230-CR

                                                              FILED IN
                                                       7th COURT OF APPEALS
                           In the                        AMARILLO, TEXAS
                     COURT OF APPEALS                  3/2/2015 2:23:56 PM
                           for the                          VIVIAN LONG
                                                               CLERK
                 SEVENTH DISTRICT OF TEXAS
                      at Amarillo, Texas

                   DANIEL IVAN RODRIGUEZ,
                                                                 Appellant
                                  v.

                     THE STATE OF TEXAS,
                                                                     Appellee

    On Appeal in Cause No. B3515-1312 in the 242nd District Court
    of Castro County, Texas, Hon. Edward Lee Self, Judge Presiding

______________________________________________________________

                    STATE’S REPLY BRIEF
______________________________________________________________

                                            Shalyn L. Hamlin
                                            County/District Attorney
                                            Castro County, Texas
                                            100 E. Bedford
                                            Dimmitt, Texas 79027
                                            Tel: (806) 647-4445
                                            Fax: (806) 647-2089
                                            shamlin@castrocounty.org
                                            State Bar No. 24062762
                                            Attorney for Appellee


             ORAL ARGUMENT NOT REQUESTED




                                  1
                     NAME OF ALL PARTIES TO THE
                    TRIAL COURT’S FINAL JUDGMENT

     A complete list of the names and addresses of all parties to the trial court’s
judgment and their counsel in the trial court are:

1.    Hon. Edward Lee Self
      242nd Judicial District Court
      225 Broadway, Suite 3
      Plainview, Texas 79072

2.    Appellant, Daniel Ivan Rodriguez
      #01935082
      Leblanc Unit
      3695 FM 3514
      Beaumont, Texas 77705

3.    Trial Counsel, Kregg Hukill
      P.O. Box 1929
      Plainview, Texas 79073

4.    Appellate Counsel
      Tina Davis Rincones
      109 E. 6th Street
      Plainview, Texas 79072

5.    Appellee, State of Texas
      Shalyn Hamlin
      Castro County District Attorney
      100 East Bedford, Room 213
      Dimmitt, Texas 79027




                                          2
                   TABLE OF CONTENTS

IDENTITY OF THE PARTIES …………………………………………………...2

TABLE OF CONTENTS ………………………………………………………….3

INDEX OF AUTHORITIES ………………………………………………………4

STATEMENT OF THE CASE…………………………………………………….7

ISSUES PRESENTED………………..……………………………………………7

     THE TRIAL COURT DID NOT COMMIT ERROR BY
     DENYING APPELLANT’S MOTION TO SUPPRESS.

     THE EVIDENCE IS SUFFICIENT TO SUPPORT THE
     JURY’S VERDICT THAT APPELLANT COMMITTED THIS
     OFFENSE.

STATEMENT OF FACTS…………………………………………………………7

SUMMARY OF THE ARGUMENT……………………………………………..11

ARGUMENT…………………………………………………………………...…11

   Standard of Review and Legal Authorities……………………………...…11

   Application…………………………………………………………………13

PRAYER………………………………………………………………………….23

CERTIFICATE OF SERVICE……………………………………………………24

CERTIFICATE OF COMPLIANCE……………………………………………...24




                            3
                        INDEX OF AUTHORITIES

                                   Cases

Evans v. State, 202 S.W.3d 158 (Tex.Crim.Ap. 2001)………………………..20, 21

Gallups v. State, 151 S.W.3d 196 (Tex.Crim.App. 2004)………………...………14

Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997)……………...….11, 12, 18

Hooper v. State, 214 S.W.3d 9 (Tex.Crim.App. 2007)……………………….13, 20

Hudson v. State, 128 S.W.3d 367 (Tex.App. – Texarkana 2004)…………….19, 20

Jackson v. Virginia, 443 U.S. 307 (1979)…………………….…………..12, 13, 22

Johnson v. State, 871 S.W.2d 183 (Tex.Crim.App. 1993)………………………..13

Montanez v. State, 195 S.W.3d 101 (Tex.Crim.App. 2006)…….…………….12, 17

Parker v. State, 206 S.W.3d 593 (Tex.Crim.App. 2006)………………….……...15

Poindexter v. State, 153 S.W.3d 402 (Tex.Crim.App. 2005)……………………..19

Roberson v. State, 80 S.W.3d 730 (Tex.App. – Houston [1st Dist.] 2002)……..…21

Ross v. State, 32 S.W.3d 853 (Tex.Crim.App. 2000)……………………………..12

Stone v. State, 279 S.W.3d 688 (Tex.App. – Amarillo 2006, pet. ref’d)…………14,
…………………………………………………………………………….15, 16, 18

Thomas v. State, 753 S.W.2d 688 (Tex.Crim.App. 1988)………………………...13

Valtierra v. State, 310 S.W.3d 442 (Tex.Crim.App. 2010)……………………….14

Wingfield v. State, 197 S.W.3d 922 (Tex.App. – Dallas 2006)…………………...21




                                      4
                       Statutes

TEX. HEALTH & SAFETY CODE ANN. §481.115…………………………….19




                          5
                               No. 07-14-00230-CR


                                  In the
                            COURT OF APPEALS
                                  for the
                        SEVENTH DISTRICT OF TEXAS
                             at Amarillo, Texas

                         DANIEL IVAN RODRIGUEZ,
                                                                           Appellant
                                          v.

                            THE STATE OF TEXAS,
                                                                            Appellee

         On Appeal in Cause No. B3515-1312 in the 242nd District Court
         of Castro County, Texas, Hon. Edward Lee Self, Judge Presiding

   ______________________________________________________________

                       STATE’S REPLY BRIEF
   ______________________________________________________________

TO THE HONORABLE COURT OF APPEALS:

      COMES NOW, the State of Texas, Appellee herein, acting by and through

the County/District Attorney of Castro County, Texas, and files this its brief in

response to the brief submitted by Appellant, Daniel Ivan Rodriguez. This cause

comes before this Court from the 242nd Judicial District Court of Castro County,

Texas, the Honorable Edward Lee Self, Judge Presiding, wherein Appellant was

found guilty of the offense of possession of a controlled substance, penalty group 1

(R.R. Vol. 3, p. 193) and punishment was assessed by the jury at five (5) years

                                          6
confinement in the Texas Department of Criminal Justice, Institutional Division

and a $5000.00 fine (R.R. Vol. 4, p. 38).

      For the purpose of brevity and understanding, the following designations

will apply in the record. “C.R.” will refer to the Clerk’s Record and “R.R.” will

refer to the Reporter’s Record. Appellant will be referred to as such and the

Appellee will be referred to as “the State.”

                          STATEMENT OF THE CASE

      The Statement of the case as described by Appellant is correct.

                              ISSUES PRESENTED

         THE TRIAL COURT DID NOT COMMIT ERROR BY
         DENYING APPELLANT’S MOTION TO SUPPRESS.

         THE EVIDENCE IS SUFFICIENT TO SUPPORT THE
         JURY’S VERDICT THAT APPELLANT COMMITTED THIS
         OFFENSE.

                            STATEMENT OF FACTS

      On December 24, 2012, Officer Ramey Rice of the Dimmitt Police

Department responded to a call regarding a fight in progress at the Dimmitt Motel

in Dimmitt, Castro County, Texas. (R.R. Vol. 2 pp. 5-6; R.R. Vol. 3 pp. 106-107,

118, 120). When Officer Rice arrived at the Dimmitt Motel, he spoke with the

victim of the assault, Johnathan Jimenez (“Johnathan”), in room 106. (R.R. Vol. 2

p. 6; R.R. Vol. 3 pp. 107-108, 118, 156). When speaking to Johnathan, Officer

Rice observed a wound on his side. (R.R. Vol. 3 p. 107). In the room with
                                            7
Johnathan was a person by the name of Stacey Buskirk (“Stacey”). (R.R. Vol. 2 p.

6; R.R. Vol. 3 p. 108). After observing the wound and finding out from Johnathan

that the person who assaulted him was the Appellant, Officer Rice, proceeded to

the room he believed Appellant was in. (R.R. Vol. 1 p. 7; R.R. Vol. 3 pp. 108, 118,

155).

        Officer Rice knocked on the door of room 101 and Appellant answered the

door. (R.R. Vol. 2 p. 7; R.R. Vol. 3 pp. 108-109). When Appellant answered the

door, he was breathing hard and was the only person inside the room. (R.R. Vol. 2

pp. 7; R.R. Vol. 3 pp. 109, 127-128). Officer Rice entered the room and detained

Appellant by handcuffing him because a weapon was used during the fight. (R.R.

Vol. 2 pp. 7, 12; R.R. Vol. 3 pp. 110, 118). Officer Rice advised Appellant that he

was detaining him because of the nature of the offense. (R.R. Vol. 2 p. 12).

Appellant provided Officer Rice with consent to the search of the room. (R.R. Vol.

2 pp. 8, 12-13; R.R. Vol. 3 pp. 110, 125). Officer Rice did not ask Appellant for

consent to search, rather Appellant told Officer Rice that he could go ahead and

search the room. (R.R. Vol. 2 pp. 8,12-13; R.R. Vol. 3 pp. 110, 125). Deputy

Daniel Jackson of the Castro County Sheriff’s Office was also present, and stood

by with Appellant while Officer Rice searched the room. (R.R. Vol. 2 p. 8; R.R.

Vol. 3 pp. 123-125). Deputy Jackson heard Appellant give Officer Rice consent to

search the room, and also stated that Officer Rice did not ask for consent to search.

                                          8
(R.R. Vol. 3 p. 125). Officer Rice searched the room for something that could have

been used to cause the wound he observed on Johnathan. (R.R. Vol. 2 p. 10; R.R.

Vol. 3 pp. 110-112).

      During the hearing on the motion to suppress, Appellant testified. (R.R. Vol.

2 p. 15). Appellant confirmed that he was staying in room 101 of the Dimmitt

Motel, and that he and Johnathan were in a fight. (R.R. Vol. 2 pp. 15-16).

Appellant further confirmed that Officer Rice did come to his room, that he

answered the door, and that he was the only one in the room. (R.R. Vol. 2 pp. 16-

18). Appellant however testified that he did not give Officer Rice consent to search

the room, but gave him permission to search outside the premises. (R.R. Vol. 2 p.

17, 18).

      During the search of the room, Officer Rice observed several items

including clothes and a comforter. (R.R. Vol. 3 pp. 111, 119). When Officer Rice

searched the bathroom, he observed something red in the toilet. (R.R. Vol. 3 p. 10;

R.R. Vol. 3 pp. 112, 120). He believed it could have been the handle to a knife or

something sharp, and after putting gloves on, removed the item from the toilet.

(R.R. Vol. 2 p. 10; R.R. Vol. 3 p. 120). When Officer Rice removed the red item,

he found that it was a Marlboro Reds Cigarette box. (R.R. Vol. 2 p. 11; R.R. Vol. 3

p. 112). Officer Rice opened the box and found a baggie containing 5.09 grams of

methamphetamine. (R.R. Vol. 2 p. 11; R.R. Vol. 3 pp. 112, 143). After

                                         9
photographing the cigarette box and the methamphetamine, Officer Rice placed

Appellant under arrest and eventually transported him and the contraband to the

Castro County Jail. (R.R. Vol. 3 pp. 112-113).

      Several people testified at the trial, including Appellant’s ex-girlfriend,

Raquel Barrios (“Raquel”), an acquaintance named Stacey Buskirk (“Stacey”),

Johnathan, and Appellant’s uncle, Rogelio Tijerina (“Roy”). (R.R. Vol. 3 pp. 145,

153, 157, 164). Raquel testified that she arrived at the Dimmitt Motel that day with

Johnathan, Appellant had been staying in room 101 of the Dimmitt Motel, that she

did not enter Appellant’s room that day, but she believed that Roy and Stacey had

entered his room. (R.R. Vol. 3, pp. 147-149). Johnathan testified that he and

Appellant got into a fight that evening, and that he never entered Appellant’s room.

(R.R. Vol. 3, pp. 155-156). Stacey testified that she was staying in a room at the

Dimmitt Motel and that she did not enter Appellant’s room that day (R.R. Vol. 3,

p. 158). Roy testified that earlier in the evening he saw Appellant at a gas station

buying Marlboro Red cigarettes. (R.R. Vol. 3, p. 166). Roy later went to the

Dimmitt Motel to the room where Appellant was staying, a girl whose name Roy

could not recall, but could have been Stacey, came over to Appellant’s room for

about five minutes and never entered the restroom. (R.R. Vol. 3, pp. 166-168, 170).




                                          10
                       SUMMARY OF THE ARGUMENT

      Appellant’s issues before the Court entitle him to no relief on appeal. The

trial court did not err in denying Appellant’s motion to suppress. The record

contains legally sufficient evidence to establish that Appellant was guilty beyond a

reasonable doubt of possession of a controlled substance.

                                    ARGUMENT

      Appellant asserts two separate issues. In the first issue, Appellant claims that

the trial court erred by denying Appellant’s motion to suppress, and as such his

conviction should be reversed. Officer Rice’s entry into Appellant’s motel room

without a warrant was lawful under the exigent circumstances exception to the

warrant requirement. If however, the Court finds that the entry was unlawful,

Appellant’s voluntary consent was sufficiently attenuated from the illegal entry.

Therefore, there was no error in the court rejecting the motion. The second issue

the Appellant raises is that the evidence was insufficient to sustain the verdict of

the jury. Nevertheless, the evidence in the record is legally sufficient to sustain

Appellant’s conviction.

                    Standard of Review and Legal Authorities

Denial of Motion to Suppress

      To review the trial court’s denial of a motion to suppress, the appellate court

should follow the abuse of discretion standard set out in Guzman v. State. 955

                                          11
S.W.2d 85, 89 (Tex.Crim.App. 1997); Montanez v. State, 195 S.W.3d 101, 108

(Tex.Crim.App. 2006). The standard provides that the Court “should afford almost

total deference” to the trial court’s determination of historical facts and to the trial

court’s rulings on “application of law to facts questions” or “mixed questions of

law and fact” when “the resolution of those ultimate questions turns on an

evaluation of credibility and demeanor” Montanez, 195 S.W. 3d at 106 (quoting

Guzman, 955 S.W. 2d at 89). If the resolution of mixed questions of law and fact

does not turn on the evaluation of credibility and demeanor, the proper standard is

to review the issue de novo. Id. When the trial court denies a motion to suppress

and does not enter any findings of fact, the Court “must view the evidence ‘in the

light most favorable to the trial court’s ruling’ and ‘assume that the trial court

made implicit findings of fact that support its rulings as long as those findings are

supported by the record’” Id. (quoting Ross v. State, 32 S.W.3d 853, 855

(Tex.Crim.App.2000)).

Sufficiency of the Evidence

      In an appeal challenging the sufficiency of the evidence to support a

conviction, the appellate court is to review 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 crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979). This standard applies to

                                           12
both direct and circumstantial evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).

      The appellate court is not to take the place of the jury, but rather view all of

the evidence from the record to determine whether that evidence supported the

verdict. Hooper, 214 S.W.3d at 13. Even if any evidence was wrongly considered,

the court must consider that evidence as well because “jurors do not act irrationally

[in] taking such evidence into account.” Johnson, 871 S.W.2d at 186 (quoting

Thomas v. State, 753 S.W.2d 688, 695 (Tex.Crim. App. 1988)). When there are

two logical inferences that stem from the evidence, the appellate court is to

presume the fact finder resolved the conflict in favor of the verdict and defer to the

resolution after the court has determined that the fact finder’s choice is not “clearly

erroneous.” Jackson, 443 U.S. at 326; Hooper, 214 S.W.3d at 16-17 (the reviewing

court is merely to “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”).

                                     Application

I.    The trial court did not commit error by denying Appellant’s motion to
suppress.

      As noted in this Court’s opinion in this case, this issue was not waived

merely by the fact that trial counsel did not object at trial to the admission of the

evidence that Appellant previously sought to suppress.
                                             13
      Appellant notes that the only issue with regard to the denial of the motion to

suppress is consent. (Appellant’s Brief, p. 12). However, an appellate court may

affirm the ruling of the trial court “if it is correct on any theory of the law

applicable to the case.” Gallups v. State, 151 S.W.3d 196, 199 (Tex.Crim.App.

2004). There are two questions that must be addressed here. The first question is

whether there is an exception to the warrant requirement that applies to Officer

Rice’s entry of Appellant’s motel room without a warrant. If the answer to the first

question is no, the second question is whether the consent given by Appellant to

search the room was sufficiently attenuated from the illegal entry.

EXIGENT CIRCUMSTANCES

      A warrantless entry into a person’s home, or in this case motel room, is

considered a “search” under the Fourth Amendment, and is presumed to be

unreasonable unless there exists an exception to the warrant requirement. Valtierra

v. State, 310 S.W.3d 442, 448 (Tex.Crim.App. 2010). One such exception is

whether exigent circumstances exist which would make the procurement of a

search warrant impractical. Stone v. State, 279 S.W.3d 688, 692 (Tex.App. –

Amarillo 2006, pet. ref’d.). To determine whether exigent circumstances exist,

first, the State must show that there was probable cause “to believe that the

instrumentality of a crime or evidence of a crime will be found.” Stone, 279

S.W.3d at 691-92. If probable cause exists, the State must then show that exigent

                                           14
circumstances existed. Id. There are three situations in which exigent

circumstances exist, “(1) rendering aid or assistance to persons whom officers

reasonably believe are in need of assistance; (2) preventing the destruction of

evidence or contraband; and (3) protecting officers from persons whom they

reasonably believe to be present, armed and dangerous.” Id.

      “Probable cause to search exists when reasonably trustworthy facts and

circumstances within the knowledge of the officer on the scene would lead a man

of reasonable prudence to believe that the instrumentality of a crime or evidence of

a crime will be found.” Parker v. State, 206 S.W.3d 593, 597 (Tex.Crim.App.

2006); Stone, 279 S.W.3d at 691. In this case, Officer Rice was called to the

Dimmitt Motel to investigate a “fight in progress.” (R.R. Vol. 2, p. 5). When he

arrived, he met with Johnathan and observed a bleeding wound on him. (R.R. Vol.

2, pp. 5-6). He received information from Johnathan that the person that did this

was Appellant, and information as to where Appellant’s room was which is

evidenced by the fact that he went directly from room 106 to Appellant’s room

101. (R.R. Vol. 2, 6-7). Officer Rice’s observation of the wound on Johnathan and

the information he received that Appellant was the one fighting with Johnathan

“would lead a man of reasonable prudence to believe that the instrumentality of a

crime or evidence of a crime” would be found in Appellant’s room. (R.R. Vol. 2 p.

6 -7). Parker, 206 S.W.3d at 597; Stone, 279 S.W.3d at 691.

                                         15
      When Officer Rice knocked on Appellant’s door, Appellant answered the

door and was breathing hard. (R.R. Vol. 2, p. 7). Officer Rice had information that

Appellant had only moments before been in a fight with Johnathan and he had just

observed a bleeding wound, thought to be a stab wound on Johnathan. (R.R. Vol.

2, pp. 6-7, 12, 14). Officer Rice detained Appellant due to the nature of the

investigation, an assault with a weapon. (R.R. Vol. 2, p. 7, 12, 14). It is reasonable

that Officer Rice entered the apartment to both prevent the destruction of evidence,

the weapon, and to protect himself and others at the motel from Appellant whom

he thought was armed and dangerous. (R.R. Vol. 2, pp. 7-9, 12, 14). These facts

lead to the conclusion that Officer Rice reasonably believed that he would find the

instrumentality of a crime or evidence of a crime in Appellant’s motel room and

that his immediate entry without a warrant was necessary to prevent the destruction

of evidence and to keep himself and others safe.

CONSENT

      If the Court finds that Officer Rice’s entry into Appellant’s motel room was

not lawful under the exigent circumstances exception to the warrant requirement,

the question then becomes whether “Appellant’s consent is sufficiently attenuated

from the unlawful entry to be considered voluntary.” Stone, 279 S.W.3d at 692.

Voluntary consent is a well-established exception to the warrant and probable

cause requirements of the Fourth Amendment, and the State must prove by clear

                                          16
and convincing evidence that the consent was voluntarily given. Montanez, 195

S.W.3d at106. In order to prove that consent was voluntary after an illegal search,

“the State must prove by clear and convincing evidence that the taint inherent in

the illegality had dissipated by the time consent is given.” Id. at 693. There are

several factors that should be considered to determine whether or not the taint had

dissipated. Those factors include:

             (1) the temporal proximity between the unlawful entry
             and the given consent; (2) whether the warrantless entry
             brought about police observation of the particular object
             for which consent was sought; (3) whether the entry
             resulted from flagrant police misconduct; (4) whether the
             consent was volunteered or requested; (5) whether
             appellant was made fully aware of the right to refuse
             consent, and (6) whether the police purpose underlying
             the illegality was to obtain the consent.

Id.

      The factors that clearly weigh against the dissipation of the taint include,

first, the proximity between the entry and the consent appears to be a very short

period of time. Next, there is nothing to indicate that Appellant was made aware of

his right to refuse consent.

      The factors that weigh in favor of the dissipation of the taint include the fact

that Officer Rice entered the motel room to search for a weapon. (R.R. Vol. 2, pp.

7-9, 12). He testified that after he was given consent, his focus was on finding

something that could have caused the wound he observed on Johnathan, not on

                                          17
finding controlled substances. (R.R. Vol. 2, pp. 8, 10, 13). In addition, Officer Rice

did not request consent to search the room from Appellant, rather Appellant

volunteered the consent without having first been prompted. (R.R. Vol. 2, pp. 8,

13). Furthermore, there is nothing in the record to indicate that Officer Rice’s entry

was a result of flagrant misconduct or that the purpose of the entry was to obtain

consent. As discussed above, Officer Rice believed that an assault with a weapon

had just occurred, and his purpose in detaining Appellant had nothing to do with

searching for or obtaining consent to search for a controlled substance. (R.R. Vol.

2, p. 10, 12-13, 14).

      The review of these factors by the appellate court is not to determine

whether the State did or did not prove by a clear and convincing standard the

consent was sufficiently attenuated from the entry, but rather whether “the trial

court abused its discretion by finding that the State had proven by clear and

convincing evidence that appellant had voluntarily given consent.” Stone, 279

S.W.3d at 694. Because this is an application of law to fact question that was based

on the trial court’s evaluation of credibility and demeanor at the suppression

hearing, the evidence should be viewed “in the light most favorable to the trial

court’s ruling.” Guzman, 955 S.W.2d at 89. The factors in favor of the dissipation

of the taint from the entry outweigh those against. The trial court did not abuse its

discretion in overruling Appellant’s motion to suppress the search.

                                          18
II. The evidence is sufficient to support the jury’s verdict that Appellant
committed this offense.

      Appellant lists as an issue that “the evidence adduced by the State at trial is

insufficient to sustain the verdict of the jury.” (Appellant’s Brief, p. 3). Appellant

does not further address the issue in the brief. However, in the interest of

completeness, this issue will be addressed by the State.

      Under Texas Health and Safety Code § 481.115(a), “a person commits an

offense if the person knowingly or intentionally possesses a controlled substance.”

Tex. Health & Safety Code Ann. §481.115. In order to prove possession of a

controlled substance, the State must establish that “(1) the accused exercised

control, management, or care over the substance; and (2) the accused knew the

matter possessed was contraband.” Poindexter v. State, 153 S.W.3d 402, 405-06

(Tex.Crim.App. 2005). When the accused did not have exclusive possession of the

contraband, the State must show that the accused’s connection with the controlled

substance “was more than just fortuitous.” Id.; Hudson v. State, 128 S.W.3d 367,

374 (Tex.App. – Texarkana 2004, no pet.). However, “evidence showing joint

possession with another is sufficient.” Id.

      Several factors, termed “affirmative links,” have been named that are

relevant when determining whether the accused’s link to the controlled substance

was more than incidental. Id. While these factors are indicative of possession, there

is no set number of factors that must be shown in order for the State to meet their
                                           19
burden of proof. In fact it is well established that it is “not the number of links that

is dispositive, but rather the logical force of all of the evidence, direct and

circumstantial.” Evans v. State, 202 S.W.3d 158, 162 (Tex.Crim.App. 2001); see

also Hooper, 214 S.W.3d at 13 (“Each fact need not point directly and

independently to the guilt of the appellant, as long as the cumulative force of all

the incriminating circumstances is sufficient to support the conviction”), see also

Hudson, 128 S.W.3d at 374 (“The link, however, need not be so strong that it

excludes every other reasonable hypothesis except the defendant’s guilty.”).

      There are numerous factors that courts have considered in determining

whether the accused has been adequately linked to the contraband. One list of

those affirmative links is as follows:

             (1)Whether the defendant was present when the drugs
             were found; (2) whether the drugs were in plain view; (3)
             whether the drugs were found in proximity to and
             accessible to the defendant; (4) whether the defendant
             was under the influence of drugs when arrested; (5)
             whether the defendant possessed other contraband or
             drug paraphernalia; (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
             drugs; (10) whether the defendant owned or had the right
             to possess the place where the drugs were found; (11)
             whether the place the drugs were found was enclosed;
             (12) the amount of drugs found; (13) whether the
             defendant possessed weapons; and (14) whether the
             defendant possessed a large amount of cash.



                                           20
Wingfield v. State, 197 S.W.3d 922, 927 (Tex.App. – Dallas 2006, no pet.). The

Court of Criminal Appeals noted that these factors are “recognized as sufficient,

either singly or in combination, to establish a person’s possession of contraband.”

Evans, 202 S.W.3d at 162 n.12. Furthermore, “each case must be examined on its

own facts. A factor that contributes to sufficiency in one situation may be of little

value under a different set of facts.” Roberson v. State, 80 S.W.3d 730, 735

(Tex.App. – Houston [1st Dist.] 2002, pet. ref’d). As noted before this list is not

exhaustive, and simply provides some direction for the court when evaluating

whether “the logical force of all of the evidence, direct and circumstantial” is

sufficient for a fact finder to find guilty beyond a reasonable doubt. Evans, 202

S.W.3d at 162.

      There are several of the affirmative links listed above that link appellant to

the contraband here. First, appellant was present when the search was conducted

and he was the only person present immediately prior to and during the search.

Officer Rice and Deputy Jackson both testified that only Appellant was in the room

when Officer Rice entered and searched. (R.R. Vol. 3, pp. 108-109). Second, the

drugs were found in an area accessible to Appellant. Officer Rice testified that he

found the drugs in the toilet of the motel room, an area which Appellant had access

to prior to being detained. (R.R. Vol. 3, p. 112). Third, Appellant had the right to

possess the place where the drugs were found. Several testified that Appellant was

                                          21
staying in room 101 of the Dimmitt Motel that evening. (R.R. Vol. 3, pp. 147-148,

166-167, 172). Fourth, the place the drugs were found was enclosed; they were

found in the bathroom of Appellant’s motel room. (R.R. Vol. 3, p. 112). The

affirmative links list stated above is not exhaustive. Another fact that links

Appellant to the drugs is the packaging. Officer Rice found the methamphetamine

in the toilet in a Marlboro Reds cigarette box. (R.R. Vol. 3, pp. 112). Roy testified

that earlier in the evening he observed Appellant buying a package of Marlboro

Reds cigarettes. (R.R. Vol. 3, pp. 166). Furthermore, when Appellant answered

Officer Rice’s knock at the door, he was out of breath. (R.R. Vol. 3, pp. 109, 127-

128). This fact could lead one to believe that he had been doing something in a

hurry prior to answering the door, such as trying to flush the drugs down the toilet.

      Based on all of the foregoing evidence, it is reasonable to conclude that a

fact finder could have reached the conclusion that Appellant was guilty of

possession of methamphetamine. While two different logical inferences could stem

from some of the evidence in the record, it is clear that the jury’s choice between

those inferences was not erroneous, and therefore the Court must defer to their

choice. see Jackson, 443 U.S. at 326. It is clear from the record that the evidence

supports Appellant’s conviction, and therefore, the trial court’s judgment should be

affirmed.




                                          22
                                      PRAYER

      The State prays that this Court find that the trial court did not commit error

by denying Appellant’s motion to suppress the evidence. The State further prays

that this Court find that the evidence was legally sufficient to support the jury’s

verdict that Appellant committed this offense, and the jury’s verdict be affirmed.


                                               Respectfully submitted,

                                               _/s/ Shalyn L. Hamlin_____________
                                               SHALYN L. HAMLIN
                                               COUNTY/DISTRICT ATTORNEY
                                               CASTRO COUNTY, TEXAS
                                               100 E. BEDFORD
                                               DIMMITT, TEXAS 79027
                                               TEL: (806) 647-4445
                                               FAX: (806) 647-2089
                                               shamlin@castrocounty.org
                                               STATE BAR NO. 24062762
                                               ATTORNEY FOR APPELLEE




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                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the State’s Reply Brief has
been served on Tina Davis Rincones, Attorney for Appellant at 109 E. 6th Street,
Plainview, Texas 79072.


                                              _/s/ Shalyn L. Hamlin_____________
                                              SHALYN L. HAMLIN


                      CERTIFICATE OF COMPLIANCE

      This is to certify that the number of words in this document according to the
word count of the program used to prepare the document is 4723.

                                              _/s/ Shalyn L. Hamlin_____________
                                              SHALYN L. HAMLIN




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