                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                  ________________________

                                       No. 07-13-00113-CR
                                  ________________________

                              LARRY RAY PHILLIPS, APPELLANT

                                                  V.

                              THE STATE OF TEXAS, APPELLEE



                              On Appeal from the 181st District Court
                                      Randall County, Texas
                  Trial Court No. 23,181-B; Honorable John B. Board, Presiding


                                             July 15, 2014

                                MEMORANDUM OPINION
                     Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

        Appellant, Larry Ray Phillips, was convicted by a jury of the offense of

possession of a controlled substance, methamphetamine, in an amount of one gram or

more but less than four grams enhanced by a prior felony conviction for assault family

violence.1 He was sentenced to sixteen years confinement and assessed a $2,000 fine.




        1
          TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2010). An offense under this section is a
third degree felony. As enhanced by the prior felony conviction, the offense was punishable as a second
degree felony. TEX. PENAL CODE ANN. § 12.42(a) (West Supp. 2013).
In two issues, Appellant asserts (1) the evidence at trial was insufficient to establish

possession and (2) his counsel was ineffective. We affirm.


      ISSUE ONE


      Appellant asserts the State’s evidence was insufficient to support his conviction.

Specifically, he contends the evidence is insufficient because two items of evidence

arguably linking Appellant to the controlled substance (a text message and discarded

food found at the place of arrest) were not preserved and the State “instead relied solely

on [the testimony of Officer Shelby Davis] to establish a link between the Appellant [and]

the controlled substance.” To support this argument Appellant contends Davis failed to

take pictures of, or otherwise preserve (1) a text message on Appellant’s cell phone that

indicated methamphetamine was available and ready for Appellant to pick up and (2)

allegedly similar food items found (a) outside Appellant’s vehicle and (b) concealing the

controlled substance when found. Appellant argues the officer’s testimony alone is

insufficient without corroborating physical evidence.


      Appellant fails to cite any legal authority for his proposition that uncorroborated

oral testimony is insufficient to establish a given fact. Without the same, that aspect of

his sufficiency argument is inadequately briefed and, therefore, waived. See TEX. R.

APP. P. 38.1(h); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000).

Appellant’s general insufficiency arguments, however, still remain.


      STANDARD OF REVIEW


      In determining whether the evidence is legally sufficient to support a conviction, a

reviewing court must consider all the evidence in a light most favorable to the verdict
                                            2
and determine, based on that evidence and the reasonable inferences drawn therefrom,

whether a fact finder could have found the essential elements of the crime beyond a

reasonable doubt. Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011) (citing

Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 5560 (1979));

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).                        In conducting our

review, we do not sit as a thirteenth juror and may not substitute our judgment for that of

the fact finder by re-evaluating the weight and credibility of the evidence. Isassi v.

State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather, we defer to the fact finder

to fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable

inferences from basic to ultimate facts. Id.


        POSSESSION OF A CONTROLLED SUBSTANCE


        In a possession of a controlled substance prosecution, the State must prove (1)

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

accused knew the matter possessed was contraband. Evans v. State, 202 S.W.3d 158,

161 (Tex. Crim. App. 2006).                 Regardless whether the evidence is direct or

circumstantial, it must establish that the defendant’s connection with the drug was more

than fortuitous.      Id.   Moreover, presence or proximity, when combined with other

evidence, either direct or circumstantial, may well be sufficient to satisfy both elements.

Id. at 162.2




        2
           This has been termed the “affirmative links” rule. Evans v. State, 202 S.W.3d at 162 n.9. This
rule “is not an independent test of legal sufficiency.” Id. Rather, the term is used “merely as a shorthand
catch-phrase for a large variety of circumstantial evidence that may establish knowing ‘possession’ or
‘control, management, or care’ of some item such as contraband.” Id.

                                                    3
       Here, the circumstances leading up to Appellant’s arrest, when viewed in a light

most favorable to the verdict, show that a fact finder could have reasonably found that

Appellant’s possession of the methamphetamine was intentional or knowing beyond a

reasonable doubt. See Brooks, 323 S.W.3d at 902; Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007). The record contains testimony that Appellant was the sole

occupant of a car he purchased several days prior to his arrest; methamphetamine was

located in the back seat of that car, in a plastic baggie, in a velvet bag, surrounded by

lettuce and vegetables, wrapped in tin foil; the drugs were located directly behind

Appellant and within his reach; his cell phone contained a text message from a person

named Brian indicating he had received methamphetamines and the drugs were ready

for Appellant to pick up; and the partially chewed food outside Appellant’s car door was

similar to the food concealing the drugs. The record also reflects the substance found

in Appellant’s car was submitted to the DPS Crime Laboratory and the plastic baggie

contained 1.79 grams of methamphetamine.              Accordingly, we find the foregoing

evidence is sufficient to prove Appellant’s knowing possession of 1.79 grams of

methamphetamine. See Evans, 202 S.W.3d at 162 n.12.


       Here, the verdict indicates the jury found Officer Davis’s testimony credible and

entitled to sufficient weight to convict. Accordingly, Appellant’s first issue is overruled.


       ISSUE TWO


       Appellant asserts his counsel was ineffective because he did not object to the

admission of Officer Davis’s testimony regarding the text message or the food outside

Appellant’s car door. Again, Appellant cites to no legal authority establishing either that

Officer Davis’s testimony was inadmissible or his counsel was required to perform a
                                              4
useless act to be effective. Accordingly, because Appellant presents no evidence that

his counsel’s performance was deficient or fell below the prevailing professional norm,

we overrule Appellant’s second issue. See Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57

(Tex. Crim. App. 1986). See also Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim.

App. 1999).


                                      CONCLUSION


      The trial court’s judgment is affirmed.




                                                Patrick A. Pirtle
                                                    Justice




Do not publish.




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