                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-09-273-CR


DANIEL EUGENE EDW ARDS, JR.                                             APPELLANT

                                            V.

THE STATE OF TEXAS                                                            STATE

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            FROM THE 30TH DISTRICT COURT OF W ICHITA COUNTY

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                          MEMORANDUM OPINION 1

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                                  I. INTRODUCTION

      A jury found Appellant Daniel Eugene Edwards, Jr. guilty of possessing or

transporting anhydrous ammonia with the intent to manufacture a controlled

substance. The trial court assessed Edwards’s punishment and sentenced him to

fifteen years’ confinement. In two issues, Edwards claims that the evidence is legally




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           See Tex. R. App. P. 47.4.
and factually insufficient to establish that he possessed or transported anhydrous

ammonia.

                      II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      W ichita Falls police officer Sergeant James Jackson and his canine partner,

W ard, were dispatched to respond to a theft or a burglary that had occurred at a

known “narcotics house.” Dispatch referenced a suspect wearing black clothing and

carrying a duffel bag and indicated that a red pickup truck with a damaged front end

had just departed the location.

      W hile en route to the location, less than ten minutes after receiving the

dispatch, Sergeant Jackson spotted a red pickup matching the description provided

by dispatch. Sergeant Jackson stopped the pickup. Three individuals were in the

pickup. Edwards was driving, Russell Beggs occupied the passenger seat, and

Rhonda Thelen sat in the middle. Sergeant Jackson asked the pickup’s occupants

to exit the pickup.

      W ard alerted near the open driver’s side window, and Sergeant Jackson

searched the pickup. 2 He found a coffee grinder and a can of rust remover under

the driver’s seat. The coffee grinder contained a white powdery residue with small

red flakes in it. Inside a duffel bag on the front passenger side floorboard, Sergeant

Jackson found a metal tank wrapped in plastic. The tank’s valve was corroded and

blueish-green. The tank was designed to hold compressed air, not anhydrous

      2
           W ard alerts only to narcotics, not to anhydrous ammonia.

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ammonia. In the center console, inside a lidded drink cup, Sergeant Jackson found

a plastic baggie containing powder. In the bed of the pickup, Sergeant Jackson

found a can of Coleman camp fuel, a plastic water jug, and a small gas can.

      Sergeant Jackson testified that he did not smell ammonia when he

approached the pickup and that Beggs—not Edwards—matched the description of

the suspect seen departing the burglary location with a duffel bag.         Sergeant

Jackson agreed that manufacturing methamphetamine could be carried out by one

person. Officer Karl King, who assisted Sergeant Jackson at the scene, testified that

he took a sample of the liquid in the tank. He said that he had never encountered

a “meth lab” run by a single person. Officer Gerald Schulte, who was also at the

scene of Edwards’s arrest, testified that the tank’s corroded, blueish-green valve

indicated that it contained anhydrous ammonia. Officer Schulte said that the tank

was not designed to hold ammonia and that the manufacture of methamphetamine

was commonly performed by multiple individuals. Officer Joseph Anderson, who

was certified as a methamphetamine lab investigator, testified that the blue color of

the tank’s valve indicated that it contained anhydrous ammonia and that the tank

was not designed to hold anhydrous ammonia. Officer Anderson testified that the

coffee grinder, the can of rust remover, the plastic bucket, the Coleman fuel, the gas

can, and the plastic bottle were all items commonly used in the manufacture of

methamphetamine.




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      Testing revealed no fingerprints on the coffee grinder or can of rust remover.

The tank was not tested for fingerprints because police policy forbids the fingerprint

examination of items suspected of containing anhydrous ammonia due to the danger

involved.   The sample from the tank taken by Officer King tested positive for

ammonia.

      A jury heard the above evidence. The trial court charged the jury on the law

of parties, and the jury returned a verdict of guilty. Edwards perfected this appeal.



                            III. S TANDARDS OF R EVIEW

                                A. Legal Sufficiency

      In reviewing the legal sufficiency of the evidence to support a conviction, we

view all of the evidence in the light most favorable to the prosecution in order to

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); Clayton v. State, 235 S.W .3d 772, 778 (Tex. Crim. App.

2007).

      This standard gives full play to the responsibility of the trier of fact to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Clayton, 235 S.W .3d at 778. The trier of fact is the sole judge of the weight and

credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon


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1979); Brown v. State, 270 S.W .3d 564, 568 (Tex. Crim. App. 2008), cert. denied,

129 S. Ct. 2075 (2009). Thus, when performing a legal sufficiency review, we may

not re-evaluate the weight and credibility of the evidence and substitute our judgment

for that of the factfinder. Dewberry v. State, 4 S.W .3d 735, 740 (Tex. Crim. App.

1999), cert. denied, 529 U.S. 1131 (2000). Instead, we “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.”

Hooper v. State, 214 S.W .3d 9, 16–17 (Tex. Crim. App. 2007). W e must presume

that the factfinder resolved any conflicting inferences in favor of the prosecution and

defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235

S.W .3d at 778.

                              B. Factual Sufficiency

      W hen reviewing the factual sufficiency of the evidence to support a conviction,

we view all the evidence in a neutral light, favoring neither party. Steadman v. State,

280 S.W .3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W .3d 404, 414

(Tex. Crim. App. 2006).      W e then ask whether the evidence supporting the

conviction, although legally sufficient, is nevertheless so weak that the factfinder’s

determination is clearly wrong and manifestly unjust or whether conflicting evidence

so greatly outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. Steadman, 280 S.W .3d at 246; Watson, 204

S.W .3d at 414–15, 417. To reverse under the second ground, we must determine,


                                          5
with some objective basis in the record, that the great weight and preponderance of

all the evidence, although legally sufficient, contradicts the verdict. Watson, 204

S.W .3d at 417.

      Unless we conclude that it is necessary to correct manifest injustice, we must

give due deference to the factfinder’s determinations, “particularly those

determinations concerning the weight and credibility of the evidence.” Johnson v.

State, 23 S.W .3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W .3d at 246.

Evidence is always factually sufficient when it preponderates in favor of the

conviction. Steadman, 280 S.W .3d at 247; see Watson, 204 S.W .3d at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to overturn [the]

conviction.” Watson, 204 S.W .3d at 417. We cannot conclude that a conviction is

clearly wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in the

evidence. Id. W e may not simply substitute our judgment for the factfinder’s.

Johnson, 23 S.W .3d at 12; Cain v. State, 958 S.W .2d 404, 407 (Tex. Crim. App.

1997). Unless the record clearly reveals that a different result is appropriate, we

must defer to the jury’s determination of the weight to be given contradictory

testimonial evidence because resolution of the conflict “often turns on an evaluation

of credibility and demeanor, and those jurors were in attendance when the testimony


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was delivered.” Johnson, 23 S.W .3d at 8. Our deference in this regard safeguards

the defendant’s right to a trial by jury. Lancon v. State, 253 S.W .3d 699, 704 (Tex.

Crim. App. 2008).     An opinion addressing factual sufficiency must include a

discussion of the most important and relevant evidence that supports the appellant’s

complaint on appeal. Sims v. State, 99 S.W .3d 600, 603 (Tex. Crim. App. 2003).

                          IV. T HE E VIDENCE IS S UFFICIENT

           A. The Elements of the Offense; The Law of Possession

      The elements of the offense of possessing or transporting anhydrous

ammonia with the intent to manufacture a controlled substance are that (1) the

defendant (2) with the intent to unlawfully manufacture a controlled substance

(methamphetamine) (3) intentionally or knowingly possessed or transported (4)

anhydrous ammonia. See Tex. Health & Safety Code § 481.124(a)(1) (Vernon

Supp. 2009). “Possession” means actual care, custody, control, or management.

Id. § 481.002(38). Circumstantial evidence may be used to prove the elements of

the offense, including the culpable mental state. McGoldrick v. State, 682 S.W .2d

573, 578 (Tex. Crim. App. 1985). Edwards specifically challenges the sufficiency of

the evidence to show that he intentionally or knowingly possessed or transported the

anhydrous ammonia.        W hen the accused is not in exclusive possession of the

place where the substance is found, it cannot be concluded that he had knowledge

of and control over the contraband unless there are additional independent facts and

circumstances that link him to the contraband. Poindexter v. State, 153 S.W .3d 402,


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405–06 (Tex. Crim. App. 2005). Evidence that links an accused to the substance

suffices for proof that he possessed it knowingly. Brown v. State, 911 S.W .2d 744,

747 (Tex. Crim. App. 1995). An accused’s links to contraband may be shown by

direct or circumstantial evidence, but in either event the evidence must establish, to

the requisite level of confidence, that the accused’s connection with the drug was

more than just fortuitous. Poindexter, 153 S.W .3d at 405–06.

        Mere presence at the location where the contraband is found is thus

insufficient, by itself, to establish actual care, custody, or control of the contraband.

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

or proximity, when combined with other links, may well be sufficient to establish that

element beyond a reasonable doubt. Id.           It is not the number of links that is

dispositive but, rather, the logical force of all of the evidence. Id. Factors that may

circumstantially establish legally sufficient evidence of “knowing” possession include:

      (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.



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Id. at 162 n.12.    The absence of various of these listed links does not constitute

evidence of innocence to be weighed against the links that do exist. Hernandez v.

State, 538 S.W .2d 127, 131 (Tex. Crim. App. 1976). Moreover, it is not the number

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

circumstantial. Evans, 202 S.W .3d at 162.

                        B. Legal Sufficiency of the Evidence

       Here, Edwards was driving the car in which the ammonia and related items

were found. At least some of the items were in plain view in the bed of the pickup.

The coffee grinder was under Edwards’s seat and contained a powder residue with

red flakes in it, which Officer Anderson testified was ground-up pseudoephedrine,

a key component in the manufacture of methamphetamine. More of what appeared

to be the same substance was found in a baggie inside a lidded cup in a cupholder

in the center console, which was within Edwards’s reach. Additionally, the rust

remover was under the driver’s side seat in which Edwards was sitting. The rust

remover can stated that it contained hydrochloric acid, which Officer Anderson

testified is used in manufacturing methamphetamine.

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

that these facts, in combination, provide sufficient logical force to establish that

Edwards exercised control over the tank of anhydrous ammonia found in the

passenger-side floorboard of the pickup and that his relationship to it was more than

fortuitous. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W .3d


                                             9
at 778; Robinson v. State, 174 S.W .3d 320, 326 (Tex. App.—Houston [1st Dist.]

2005, pet. ref’d) (affirming possession conviction of front-seat passenger in truck

where cocaine was located in factory compartment in back wall of truck, and noting

that cocaine was within vicinity and easily accessible to passenger). W e overrule

Edwards’s first issue.

                     C. Factual Sufficiency of the Evidence

      Edwards claims that the evidence is factually insufficient to show that he

possessed the tank of anhydrous ammonia because Beggs was observed leaving

the burglary scene with the duffle bag containing the tank of anhydrous ammonia

and the duffle bag was found at Beggs’s feet on the floorboard in front of the

passenger seat. But the jury was charged on the law of parties and the fact that

Beggs was in the pickup and that the tank of anhydrous ammonia was located at

Beggs’s feet does not render the links discussed above factually insufficient to prove

that Edwards (1) exercised control over the substance by transporting it in his pickup

and (2) knew, based on the other items and substances in the pickup, that the tank

contained anhydrous ammonia. See Evans, 202 S.W .3d at 166 (concluding that “the

circumstantial evidence, when viewed in combination and its sum total, constituted

amply sufficient evidence connecting appellant to the actual care, custody, control,

or management of the cocaine in front of him”); Poindexter, 153 S.W .3d at 412

(explaining that “[t]he mere fact that a person other than the accused might have

joint possession of the premises does not require the State to prove that the


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defendant had sole possession of the contraband, only that there are affirmative

links between the defendant and the drugs such that he, too, knew of the drugs and

constructively possessed them”).

      Viewing the evidence neutrally, we recognize that Edwards was not under the

influence of the narcotics, did not possess other contraband on his person, did not

make any incriminating statements, and did not attempt to flee. Sergeant Jackson

testified that he did not notice the smell of anhydrous ammonia when he approached

the pickup but that the tank was wrapped in plastic and placed inside a duffle bag.

Edwards also was not in possession of a large amount of cash. Possible links that

do not exist, however, do not negate the links that are present. Evans, 202 S.W .3d

at 164 (rejecting court of appeals’ determination of legal insufficiency that was based

in part on recitation of links that “did not exist in this case”). Edwards was driving the

pickup and had allowed Beggs to enter the pickup with the duffle bag, and the pickup

contained many other items used in the manufacture of methamphetamine, as set

forth in detail above.     See Wootton v. State, 132 S.W .3d 80, 89–90 (Tex.

App.—Houston [14th Dist.] 2004, pet. ref’d) (holding factually sufficient evidence

existed that appellant knew tanks contained anhydrous ammonia when appellant’s

truck, where the tanks were found, also contained many other ingredients used to

manufacture methamphetamine).

      In light of the evidence supporting the jury’s verdict, we conclude that the

evidence is not so obviously weak that the verdict is clearly wrong and manifestly


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unjust or that the proof of guilt is against the great weight and preponderance of the

evidence. See Steadman, 280 S.W .3d at 246; Watson, 204 S.W .3d at 414–15, 417.

Accordingly, we hold that the evidence is factually sufficient to support Edwards’s

conviction. W e overrule Edwards’s second issue.

                                  V. C ONCLUSION

         Having overruled both of Edwards’s issues, we affirm the trial court’s

judgment.



                                                     SUE W ALKER
                                                     JUSTICE

PANEL: DAUPHINOT, GARDNER, and W ALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 20, 2010




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