                                        NO. 07-09-0171-CR

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                           AT AMARILLO

                                              PANEL C

                                       DECEMBER 10, 2010




                              KEVIN CECIL MAEDA, APPELLANT

                                                  v.

                              THE STATE OF TEXAS, APPELLEE



               FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

                     NO. 19,955-A; HONORABLE HAL MINER, JUDGE



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


                                   MEMORANDUM OPINION

       Appellant, Kevin Cecil Maeda, was convicted by a jury of possession of a

controlled substance (methamphetamine) in an amount of less than one gram1 and

sentenced to two years confinement in a state jail facility. On appeal, he asserts the

evidence was legally and factually insufficient. We affirm.


1
 See Tex. Health & Safety Code Ann. § 481.115(a), (b) (West 2010). Throughout the remainder of this
opinion, provisions of the Texas Health and Safety Code will be cited as "section ____" and/or "§ ____."
                                          Background


       On August 20, 2008, a Randall County Grand Jury indicted Appellant for

intentionally and knowingly possessing a controlled substance, methamphetamine, in

an amount by aggregate weight, including any adulterants and dilutants, of less than

one gram.


       At trial, Deputy Marcus Woods of the Randall County Sheriff's Office testified

that, in the early morning hours of May 12, 2008, he spotted Appellant and Jimmy

Flores sitting in Appellant's pickup parked at an Amarillo chipping site. When Deputy

Woods approached Appellant, he was overwhelmed by the odor of marijuana coming

from inside the pickup's cab. He observed Appellant's eyes were very red and his

speech was slurred. Deputy Woods asked Appellant if there was anything illegal in the

pickup. Appellant pulled the ashtray from the dashboard, handed it to Deputy Woods

through the driver's side window, and told the Deputy he had marijuana.


       Deputy Woods asked Appellant to exit the pickup and, as he came out, a glass

pipe fell out of his lap onto the ground. Deputy Woods identified the pipe as the type of

pipe used to smoke methamphetamine.2 He handcuffed Appellant and searched his

pockets where he found a cigarette box containing regular cigarettes and a rolled

marijuana cigarette. He then placed Appellant in the backseat of his patrol car. Deputy

Levi Randall, a deputy-in-training who accompanied Deputy Woods, searched Flores




2
 Bruce Evans, a crime scene technician and lab analyst for the Randall County Sheriff's Office, also
testified that, based on his experience, the pipe was of the type used to smoke methamphetamine.

                                                 2
and found nothing illegal on his person.              Deputy Randall escorted Flores to the

backseat of the patrol car where the two men were advised of their Miranda rights.3


           During questioning, Appellant indicated there was more marijuana in the pickup.

After Deputy Woods removed Appellant from the patrol car to assist him in locating the

marijuana, Deputy Randall discovered a crushed blue pill where Appellant had been

sitting.     When Deputy Randall found the pill, Flores told him that they should be

concerned for Appellant's welfare.         Appellant was subsequently taken to a hospital

where he was examined in the emergency room.


           When Deputy Woods searched Appellant's pickup, he found some blue pills, later

identified as Xanax, in an empty cigarette box on the passenger's side of the pickup and

marijuana in the glove compartment.            In the console, accessible to Appellant and

Flores, he discovered a plastic baggie containing what was later identified as .04 gram

of methamphetamine.4 At the scene, neither Appellant nor Flores would identify who

owned the methamphetamine. Both men were placed under arrest.


           Jimmy Flores, Appellant's best friend for fifteen years, testified for the defense.

He testified that Appellant operated a landscaping business that specialized in tree

trimming. He also testified that Appellant owned the pickup they were sitting in at the

chipping site and normally drove the truck in connection with his work. The day before

the two men were arrested at the chipping site, Flores testified they had driven from


3
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
4
 Roy Murphy, manager of the Texas Department of Safety Regional Crime Laboratory, identified the
various substances found in Appellant's pickup and their respective weight.

                                                  3
Amarillo to Pampa, Texas, with four climbers and three grounds men where they

completed three to four jobs. Flores testified that Appellant drove his truck and his

employees shared two other trucks. He testified that he and Appellant had smoked

three or four marijuana cigarettes that day and Appellant told him he had taken a Xanax

pill. He did not see Appellant use any methamphetamine.


       Flores testified that early the next morning he and Appellant were at the Amarillo

chipping site to drop off some limbs. They had been smoking marijuana for about five

minutes when the deputies arrived. He testified the pickup they were sitting in had been

driven by four or five others the day before while they were working. He also testified

that the Xanax pills and methamphetamine were not his drugs.           He further denied

ownership of the pipe which he testified was used to smoke methamphetamine or crack

cocaine. He opined that the pipe was not suitable for smoking marijuana.


       At the conclusion of the testimony, Appellant was found guilty by the jury of

possessing less than one gram of methamphetamine and sentenced to two years

confinement. This appeal followed.


                                       Discussion


       As an initial consideration, we note that Appellant contends the evidence is both

legally and factually insufficient to establish that he exercised care, custody and control

of the methamphetamine in question. After briefs were filed by both parties, the Court

of Criminal Appeals held that the only standard a reviewing court should apply in

determining whether the evidence in a criminal proceeding is sufficient to support each

element of the offense beyond a reasonable doubt is the legal sufficiency standard set
                                            4
forth in Jackson v. Virginia.5 Brooks v. State, No. PD-0210-09, 2010 Tex. Crim. App.

LEXIS 1240, at *2 (Tex.Crim.App. Oct. 6, 2010).6 Accordingly, we need not address

Appellant's challenge to the factual sufficiency of the evidence.


       I.      Standard of Review


        In assessing the sufficiency of the evidence to support a criminal conviction

under the standard enunciated in Jackson, this Court considers all the evidence in a

light most favorable to the verdict and determines whether, based on that evidence and

reasonable inferences to be drawn therefrom, a 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, 33 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Brooks, 2010 Tex.

Crim. App. LEXIS 1240, at *14. When conducting such a review, this Court is required

to defer to the jury's role as the sole judge of credibility of the witness and the weight to

be given their testimony.        Id. at *15.     See Dewberry v. State, 4 S.W.3d 735, 740

(Tex.Crim.App. 1999).


       Furthermore, to establish legal sufficiency, "[e]ach fact need not point directly and

independently to the guilt of the defendant, as long as the cumulative force of the

incriminating circumstances is sufficient to support the conviction." Hooper v. State, 214


5
Jackson v. Virginia, 443 U.S. 307, 335 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
6
 Judge Hervey delivered the Brooks opinion, joined by Judges Keller, Keasler, and Cochran, and Judge
Cochran delivered a concurring opinion, joined by Judge Womack. Brooks, 2010 Tex. Crim. App. LEXIS
1240, at *1, *59. Although we are not bound by a decision of four justices, Pearson v. State, 994 S.W.2d
176, 177 n.3 (Tex.Crim.App. 1999), we read the combined opinions of Judges Hervey and Cochran as
abandoning factual sufficiency as an evidentiary sufficiency standard of review distinct from legal
sufficiency.

                                                   5
S.W.3d 9, 13 (Tex.Crim.App. 2007).             If, however, a rational jury would necessarily

entertain a reasonable doubt as to the defendant's guilt after considering all the

evidence, due process requires that we reverse and render a judgment of acquittal.

Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003) (citing Narvaiz v. State,

840 S.W.2d 415, 423 (Tex.Crim.App. 1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422,

122 L.Ed.2d 791 (1993)).


       II.     Applicable Law


       To support the verdict rendered in this case, the State was required to prove that

Appellant knowingly possessed a controlled substance, to-wit: methamphetamine, in an

amount of less than one gram. To prove possession, the State was required to show

that Appellant (1) exercised "actual care, custody, control, or management" of the

substance and (2) knew the matter possessed was contraband. See § 481.115(b). See

also Tex. Penal Code § 1.07(39) (West Supp. 2010); Poindexter v. State, 153 S.W.3d

402, 405-06 (Tex.Crim.App. 2005).


       Where, as here, the accused does not have actual possession of the controlled

substance or exclusive possession of the locale where the controlled substance was

found, it cannot be concluded or presumed that the accused had possession over the

contraband unless there are independent facts or circumstances that tend to connect or

link7 the accused to the knowing possession of the contraband.                     Poindexter, 153

S.W.3d at 406; Evans v. State, 202 S.W.3d 158, 161-62 (Tex.Crim.App. 2006).


7
The Court of Criminal Appeals has recognized that the term "affirmative" adds nothing to the plain
meaning of "link" and now uses only the word "link" to evaluate evidence of possession. Evans v. State,
                                                  6
        Numerous nonexclusive factors have been recognized as contributing to an

evaluation of whether an accused is linked to the contraband. See Triplett v. State, 292

S.W.3d 205, 208 (Tex.App.--Amarillo 2009, pet. ref'd). Those links include, but are not

limited to: (1) whether the contraband was in plain view or recovered from an enclosed

place; (2) whether the defendant was the owner of the premises or had the right to

possess or control the place where the contraband was found; (3) whether the

defendant was found in possession of a large amount of cash; (4) whether the

contraband was conveniently accessible to the defendant; (5) whether the contraband

was found in close proximity to the defendant; (6) whether an odor of contraband was

present; (7) whether the defendant possessed other contraband when arrested; (8)

whether the defendant possessed paraphernalia to use the contraband; (9) whether

paraphernalia to use the contraband was available to or in plain view of the defendant;

(10) whether the physical condition of the defendant indicated recent consumption of

the contraband in question; (11) whether conduct by the defendant indicated a

consciousness of guilt; (12) whether the defendant made any incriminating statements

when arrested; (13) whether the defendant attempted to flee; (14) whether the

defendant made furtive gestures; (15) whether the defendant had a special connection

to the contraband; (16) whether the persons present gave conflicting statements about

relevant matters; (17) the quantity of the contraband discovered; (18) whether the

defendant was armed; (19) whether the defendant was observed in a suspicious place

202 S.W.3d 158, 161 n.9 (Tex.Crim.App. 2006). A link is a fact or circumstance which generates a
reasonable inference that the defendant knew of the contraband's existence and exercised control over it.
Lair v. State, 265 S.W.3d 580, 600 (Tex.App.--Houston [1st Dist.] 2008, pet. ref'd). The evidence
demonstrating such links may be direct or circumstantial. Brown v. State, 911 S.W.2d 744, 747
(Tex.Crim.App. 1995).

                                                   7
under suspicious circumstances; (20) whether the accused was familiar or had previous

experience with drugs; and, (21) whether any forensic evidence (e.g., fingerprints, DNA,

etc.) connects the defendant to the contraband or its container. See Evans, 202 S.W.3d

at 162 n.12. See also Triplett, 292 S.W.3d at 209; Figueroa v. State, 250 S.W.3d 490,

500 (Tex.App.--Austin 2008, pet. ref’d), cert. denied, No. 08-7719, 2009 LEXIS 1276

(U.S. Tex. Feb. 23, 2009).


      There is no set formula that an appellate court can use to determine if there are

sufficient links to support an inference of knowing possession of drugs. Taylor v. State,

106 S.W.3d 827, 831 (Tex.App.--Dallas 2003, no pet.). Each case must be examined

according to its own facts on a case-by-case basis; Roberson v. State, 80 S.W.3d 730,

736 (Tex.App.--Houston [1st Dist.] 2002, pet. ref'd), and the number of links is not as

important as the combined logical force of all the evidence tending to link the accused to

the contraband. Evans, 202 S.W.3d at 162, 166.


      III.   Analysis


      Viewing the evidence in a light most favorable to the verdict, the evidence at trial

showed that at least seven links listed above were present. Appellant owned the pickup

where the contraband was found and had the right to possess or control its contents.

He was also present when the search was conducted, made incriminating statements

when arrested, had other contraband in his possession, possessed drug paraphernalia,

and had been using drugs when he was approached by Deputy Woods. Further, the

methamphetamine was found inside the pickup's interior console which was

conveniently accessible to Appellant, and a pipe, identified by three witnesses as a type
                                            8
of pipe used to smoke methamphetamine, fell from his lap as he exited the pickup.

Furthermore, Flores testified the pipe was not suitable for smoking marijuana and

denied ownership of the marijuana, Xanax pills, methamphetamine, and pipe.


       This evidence sufficiently links Appellant to the methamphetamine and

establishes, to the requisite level of confidence, that a rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Appellant's issue

is overruled.


                                       Conclusion


       The trial court’s judgment is affirmed.




                                                 Patrick A. Pirtle
                                                     Justice



Do not publish.




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