                                   NO. 07-08-0357-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                  JANUARY 5, 2010
                          ______________________________

                           NEIL SCOTT MASON, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

                FROM THE 31ST DISTRICT COURT OF GRAY COUNTY;

                  NO. 7933; HONORABLE STEVEN EMMERT, JUDGE
                        _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Appellant, Neil Scott Mason, appeals his conviction for the offense of possession

with intent to deliver a controlled substance, methamphetamine, in an amount of 200

grams or more but less than 400 grams,1 enhanced by two prior felony convictions.

Appellant was sentenced to confinement in the Institutional Division of the Texas

Department of Criminal Justice (ID-TDCJ) for 99 years and fined $50,000.         Appellant

appeals, via four issues, contending that: 1) the evidence was legally insufficient; 2) the



      1
          See TEX . HEALTH & SAFETY CODE ANN . § 481.112(e) (Vernon Supp. 2009).
evidence was factually insufficient; 3) he was denied effective assistance of counsel; and

4) his constitutional right to the presumption of innocence was violated when the jury was

allowed to see him in shackles on two occasions. We affirm.


                                      Factual Background


        On January 25, 2008, Deputy Zach Kidd of the Gray County Sheriff’s Office was

on patrol in rural Gray County when he observed a vehicle on County Road F driving down

a hill. What got the deputy’s attention was that the vehicle did not proceed directly up the

far side of the hill, but rather it stayed out of sight at the bottom of the hill for a short period

of time and then proceeded up the other side. While going up the far side of the hill, the

vehicle turned out its lights and stopped at the top of the hill. Kidd drove to the location of

the vehicle and found it stopped in the middle of the road with appellant, on the driver’s

side, and Kenneth Putman, the co-defendant, on the passenger side, standing outside of

the vehicle. This struck Kidd as odd because it was a cold January evening. Upon walking

up to the vehicle, Kidd noticed a very strong odor of a solvent and observed that all the

windows on the vehicle were down. Appellant and Putman explained that they had run out

of gas. Both appellant and Putman exhibited nervousness which caused Kidd to decide

to pat them down for weapons. During the pat down, Kidd noticed a blue duffle bag in the

ditch approximately 15 feet from the vehicle. Another deputy, Steven White, arrived to

assist Kidd. Kidd then retrieved the duffle bag and inside saw coffee filters, a pill grinder,

plastic baggies, pickling salt, plastic tubing, and other items. This further aroused Kidd’s

suspicions about appellant’s activities and Kidd then obtained permission to search the

vehicle. During the initial search of the vehicle, White found a number of other items that

                                                 2
might be associated with the manufacture of methamphetamine. One of the items was a

glass jar with an unknown brown liquid. As a result of the items found, Kidd requested the

assistance of Deputy Cary Rushing, a certified methamphetamine lab technician.


       While waiting for Rushing, DPS Trooper Rafael Ortiz came to the location of the

stop and Kidd asked him to go back to the bottom of the hill, where Kidd thought the

vehicle stopped, and see if there were any items in that area. Upon going to that location,

Ortiz found a black backpack that contained other items associated with the manufacture

of methamphetamine. A bottle of clear liquid was found in the backpack. On the other

side of the road from the backpack, there was a Sterilite pitcher containing a pinkish liquid

that was bubbling and covered with frost.


       Rushing arrived at the location and supervised the collection of the evidence. In

processing the scene, Rushing treated the site as if it was an active methamphetamine lab

due to the unknown liquids found and the appearance of one container still in the process

of an active unknown chemical reaction. Rushing subsequently turned over all of the

suspected methamphetamine to the DPS lab in Amarillo for testing. Of the four items

turned in for testing, two tested positive for methamphetamine.


       After hearing the State’s evidence, a jury convicted appellant of possession with

intent to distribute methamphetamine of an amount of 200 grams or more but less than

400 grams. During the punishment portion of the trial, the State presented evidence of

three prior felony convictions of appellant. After the State closed presentation of its

evidence on punishment, appellant rested without presenting any evidence. The jury


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returned a verdict of true as to the two alleged felony enhancement paragraphs and

sentenced appellant to confinement in the ID-TDCJ for 99 years with a fine of $50,000.


       Appellant contends that the evidence presented to the jury was legally and factually

insufficient because the State failed to link him to the items that tested positive for

methamphetamine. Further, appellant contends that his counsel was ineffective because

he failed to call the co-defendant as a witness and failed to investigate or call possible

punishment witnesses. Finally, appellant contends that his constitutional right to the

presumption of innocence was violated when the jury was allowed to see appellant in

shackles on two occasions. Disagreeing with appellant’s contentions, we affirm the

judgment of the trial court.


                                Sufficiency of the Evidence


       Appellant challenges both legal and factual sufficiency. Therefore, we are required

to conduct an analysis of the legal sufficiency of the evidence first and then, only if we find

the evidence to be legally sufficient, do we analyze the factual sufficiency of the evidence.

See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996).


Standard of Review


       In assessing the legal sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to 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, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133


                                              4
S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency review, an

appellate court may not sit as a thirteenth juror, but rather must uphold the jury’s verdict

unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno

v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). We measure the legal sufficiency

of the evidence against a hypothetically correct jury charge. See Malik v. State, 953

S.W.2d 234, 240 (Tex.Crim.App. 1997).


       When an appellant challenges the factual sufficiency of the evidence supporting his

conviction, the reviewing court must determine whether, considering all the evidence in a

neutral light, the jury was rationally justified in finding the appellant guilty beyond a

reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In

performing a factual sufficiency review, we must give deference to the fact finder’s

determinations if supported by evidence and may not order a new trial simply because we

may disagree with the verdict. See id. at 417. As an appellate court, we are not justified

in ordering a new trial unless there is some objective basis in the record demonstrating that

the great weight and preponderance of the evidence contradicts the jury’s verdict. See id.

Additionally, an appellate opinion addressing factual sufficiency must include a discussion

of the most important evidence that appellant claims undermines the jury’s verdict. Sims

v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). The Court of Criminal Appeals has

recently declared that, when reviewing the evidence for factual sufficiency, the reviewing

court should measure the evidence in a neutral manner against a “hypothetically correct

jury charge.” Vega v. State, 267 S.W.3d 912, 915 (Tex.Crim.App. 2008) (citing Wooley v.

State, 273 S.W.3d 260, 268 (Tex.Crim.App. 2008)).


                                             5
Legal Sufficiency


       Appellant contends that the State failed to present legally sufficient evidence linking

him to the items that tested positive for methamphetamine. To prove appellant guilty of the

indicted offense, the State had to prove: 1) appellant; 2) intentionally or knowingly; 3)

possessed; 4) a controlled substance, methamphetamine; 5) in an amount of 200 grams

or more but less than 400 grams. See TEX . HEALTH & SAFETY CODE ANN . § 481.112(e).

Possession means the actual care, custody, control, or management of the

methamphetamine in question. See id. § 481.002(38). To prove that appellant possessed

the methamphetamine in question, the State must prove that: (1) the accused exercised

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

circumstantial, however, it must establish that appellant’s connection to the

methamphetamine was more than just fortuitous. Id. at 405-06. Further, appellant’s

possession does not have to be exclusive. See Cude v. State, 716 S.W.2d 46, 47

(Tex.Crim.App. 1986). Joint possession is sufficient. Id. Whether the possession is

exclusive or joint with another actor, there must be evidence, other than presence alone,

that would lead the fact finder to rationally conclude beyond a reasonable doubt that

appellant exercised care, custody, control, or management of the methamphetamine. See

Evans v. State, 202 S.W.3d 158, 162 (Tex.Crim.App. 2006).




                                              6
       In Evans, the Texas Court of Criminal Appeals set forth a list of links that had been

recognized by Texas courts. Id. at 162 n.12. The list is non-exclusive and includes the

following:


       1) the defendant’s presence when a search is conducted; 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 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 defendant
       was found with a large amount of cash; and 14) whether the conduct of the
       defendant indicated a consciousness of guilt.


Id. It is not the number of links found to be present that is ultimately important, rather it is

the logical force of all of the evidence, both direct and circumstantial. Id. at 162.


       In assessing the record for links to the appellant, we begin with the fact that

appellant was driving the vehicle, as he admitted to Kidd. Another link the jury could have

considered was the fact that the vehicle turned off all of its lights before coming to a stop

at the top of the hill. This could indicate an attempt to hide from detection. Appellant was

acting nervous when Kidd arrived on the scene. There was a strong smell of a solvent

emitting from the vehicle. The State’s witnesses testified that the smell was like what you

might smell around the manufacturing of methamphetamine. When Trooper Ortiz arrived

on the scene, he was sent to the bottom of the hill, where Kidd testified that the vehicle

stopped for a minute or two. Ortiz testified that he smelled a strong smell of a solvent or


                                               7
chemical reaction in the area immediately around the black backpack. A blue duffle bag,

found in the ditch adjacent to the vehicle, contained ingredients and equipment necessary

to manufacture methamphetamine. Additional ingredients and equipment used in the

manufacturing of methamphetamine were found in a safe in the back seat of the vehicle

appellant had been driving. The duffle bag is linked to the vehicle appellant was driving

by a plastic lid found in the vehicle that was identical to one found in the blue duffle bag.

Also found in the duffle bag and in the vehicle were plastic baggies of the same size and

type and coffee filters of the same size and type. Kidd further testified that there was a box

of pickling salt found in the duffle bag and there appeared to be pickling salt spilled inside

the vehicle. Also found in and near the duffle bag were containers containing Coleman

camping fuel, which was characterized as a type of solvent used in the manufacture of

methamphetamine. Several of the officers testified that the passenger side door of the

vehicle had a red powdery substance on it. Later, a similar red powdery substance was

found in a Sterilite pitcher found on the other side of the road from the black backpack.

When Ortiz found the pitcher, he described it as having an ongoing chemical reaction of

some sort and was frosted over on the outside of the pitcher. Additionally, located inside

the backpack was a “Coke like bottle” that contained a clear liquid and had a hose sticking

out of the top of the bottle. Deputy Rushing, the certified methamphetamine lab technician,

also observed the Sterilite pitcher and similarly testified that it was in an ongoing state of

chemical reaction. He later testified that such a reaction could be expected to last for

between 45 minutes and two hours. After taking custody of the pitcher, Rushing allowed

the chemical reaction to complete and then placed the contents in a container that was

sent for analysis to the DPS lab. This item tested positive for methamphetamine and

                                              8
weighed 210.61 grams. Another Sterilite pitcher with a residue in it was located in the

area immediately adjacent to the blue duffle bag. The contents of this pitcher was also

submitted to the DPS lab and tested positive for methamphetamine and weighed 89.26

grams.


       In the final analysis, what the evidence revealed is that appellant was driving a

vehicle from which eminated a strong smell of a chemical solvent. Chemical solvents were

then discovered near the vehicle. A pink powder was discovered on the outside and

bottom of the passenger door of the vehicle and the same sort of pink powder residue was

discovered in the Sterilite pitchers found near the backpack. Another Sterilite pitcher was

found next to the duffle bag and this contained some of the methamphetamine. Inside the

vehicle driven by appellant, a safe containing items necessary to manufacture

methamphetamine was found. This safe was in open view, and according to the officers,

was not locked. Finally, Kidd, the officer who initially observed the vehicle, stated the

vehicle was out of his sight at the bottom of the hill for about a minute or two. This is the

exact location where the larger amount of contraband was found.


       The jury heard all of this evidence and we may presume that, in its deliberative

process, weighed the evidence, made credibility determinations, considered alternative

explanations submitted by appellant, and came to their conclusion that appellant was guilty

of possession with intent to deliver methamphetamine. Evans, 202 S.W.3d at 164. When

we apply this determination to the standard of review for legal sufficiency, we cannot say

that the jury acted irrationally in finding appellant guilty of possessing the



                                             9
methamphetamine. Jackson, 443 U.S. at 319; Ross, 133 S.W.3d at 620. Accordingly,

appellant’s contention that the evidence was legally insufficient is overruled.


Factual Sufficiency


       We next review the evidence in a neutral manner to determine whether the jury was

rationally justified in finding the appellant guilty beyond a reasonable doubt. Watson, 204

S.W.3d at 415. Giving deference to the jury’s findings that are supported by the record,

we are still faced with the fact that the evidence, although circumstantial in nature, still links

appellant to the vehicle, through the vehicle to all of the necessary tools to manufacture

and distribute methamphetamine, and ultimately to the methamphetamine found at the site

on the night of January 25, 2008. Appellant’s primary contention is that none of the

methamphetamine was found in the vehicle and that the State did not produce any

fingerprints or other type of evidence that would directly link the methamphetamine in

question to appellant. Therefore, appellant posits there is factually insufficient evidence

to prove he possessed the methamphetamine in question. While the contention regarding

lack of direct evidence is correct, it is also not the relevant inquiry. Links to contraband can

be proven by circumstantial evidence. Poindexter, 153 S.W.3d at 405-06. We find that

the jury was rationally justified in finding the appellant guilty beyond a reasonable doubt.

Watson, 204 S.W.3d at 415. Accordingly, appellant’s contention that the evidence was

factually insufficient is overruled.


                              Ineffective Assistance of Counsel




                                               10
       In appellant’s next issue, he contends that he was denied effective assistance of

counsel on two specific occasions. First, appellant contends that trial counsel failed to call

his co-defendant who, according to appellant, had previously admitted the

methamphetamine in question belonged to the co-defendant. Second, appellant contends

that trial counsel failed to properly investigate or call possible witnesses at the punishment

hearing to help mitigate appellant’s sentence.


Standard of Review


       In determining whether counsel’s representation was so inadequate as to violate a

defendant’s Sixth Amendment right to counsel, Texas courts adhere to the two-pronged

test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). See Hernandez v. State, 726 S.W.2d 53, 55-56 (Tex.Crim.App. 1986).2 Judicial

review of an ineffective assistance of counsel claim must be highly deferential to trial

counsel and avoid using hindsight to evaluate counsel’s actions. Ingham v. State, 679

S.W.2d 503, 509 (Tex.Crim.App. 1984). There is a strong presumption that counsel’s

conduct fell within the wide range of reasonable professional assistance. Strickland, 466

U.S. at 690. The burden is on appellant to prove by a preponderance of the evidence that

counsel was ineffective. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.

1996) (en banc). The defendant must first prove that counsel’s performance was deficient,

i.e., that counsel’s assistance fell below an objective standard of reasonableness. Id. If

appellant has demonstrated deficient assistance of counsel, it is then necessary that


       2
         The same standard of review applies to contentions arising under Article 1, Section
10, of the Texas Constitution.

                                             11
appellant affirmatively prove prejudice as a result of the deficient assistance. Id. In proving

prejudice, appellant must prove a reasonable probability that, but for counsel’s errors, the

result of the proceeding would have been different.          A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Hernandez, 726 S.W.2d at

55.


       Any allegation of ineffective assistance of counsel must be firmly founded in the

record and the record must affirmatively demonstrate the alleged ineffectiveness.

McFarland, 928 S.W.2d at 500. Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the ineffectiveness claim. Id. Absent both

showings, an appellate court cannot conclude the conviction resulted from a breakdown

in the adversarial process that renders the result unreliable. Ex parte Menchaca, 854

S.W.2d 128, 131 (Tex.Crim.App. 1993). Appellate courts look to the totality of the

representation and the particular circumstances of each case in evaluating the

effectiveness of counsel. Ex parte Felton, 815 S.W.2d 733, 735 (Tex.Crim.App. 1991).

It is possible that a single egregious error of omission or commission by appellant’s

counsel constitutes ineffective assistance. Id.; Jackson v. State, 766 S.W.2d 504, 508

(Tex.Crim.App. 1985) (modified on other grounds on remand from the United States

Supreme Court in 766 S.W.2d 518 (Tex.Crim.App. 1988)).


Analysis


       A review of the record reveals that no motion for new trial was filed and, thus, only

the trial record is before us to support the contentions of appellant. As to the first


                                              12
contention regarding the failure to call the co-defendant to testify, the record is totally silent

about a number of important inquiries. First, was the co-defendant even available.

Second, had the co-defendant already been convicted or was he awaiting trial. Third, was

the co-defendant even willing to so testify. The record is devoid of any information

regarding these issues. These are matters that impact the decision about whether to call

a co-defendant. Understanding that the burden is upon the appellant to prove ineffective

assistance of counsel, we cannot say that the failure to call the co-defendant was

ineffective. McFarland, 928 S.W.2d at 500.


       The record reveals that, during the punishment hearing, the State proved up three

prior felony offenses committed by appellant. The State then rested its case. Appellant

rested without calling any witnesses. It is true that the failure to investigate all aspects of

a case, including punishment, can be grounds to find that counsel rendered ineffective

assistance to an appellant. See McFarland, 928 S.W.2d at 501. However, we cannot

equate not calling any witnesses to testify to a failure to investigate, absent something

more in the record than what has been present to us. The record must support the

assertions of appellant, for we are limited to the record before us. Id. at 500. The record

in this case is devoid of any evidence about why, be it for strategic reasons or otherwise,

trial counsel elected to rest the punishment hearing without putting on any evidence.

Because there is a strong presumption that trial counsel’s actions fell within the wide range

of reasonable professional assistance, we cannot say appellant was rendered ineffective

assistance of counsel. Strickland, 466 U.S. at 690.




                                               13
       Therefore, appellant’s contention regarding the two alleged incidents of ineffective

assistance of counsel is overruled.




                                Presumption of Innocence


       By his final issue, appellant contends that he was denied his constitutionally

guaranteed presumption of innocence because the jury was allowed to see him in shackles

on two occasions. In his brief, appellant fails to cite this court to any reference about

where, when, or the circumstances of how this occurred. In fact, all that is said is that

appellant claims that this occurred on two occasions. However, a search of the record fails

to document this claim. The record contains no objection by counsel nor does it contain

any reference to such incidents. As an appellate court, we are limited to the record before

us and we cannot indulge in speculation or guess work. See Amador v. State, 221 S.W.3d

666, 675 (Tex.Crim.App. 2007). Because we find no support in the record for the alleged

incidents of appellant being seen wearing shackles, we overrule appellant’s issue.


                                        Conclusion


       Having overruled appellant’s contentions, the judgment of the trial court is affirmed.




                                                         Mackey K. Hancock
                                                              Justice

Do not publish.

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