                                      NO. 07-08-0515-CR

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                            PANEL B

                                      FEBRUARY 3, 2010

                                 ________________________

                             JAMMIE LEE MOORE, APPELLANT

                                                V.

                             THE STATE OF TEXAS, APPELLEE

                                _________________________

               FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                NO. 55,555-E; HONORABLE PATRICK A. PIRTLE, JUDGE

                              ____________________________

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


                                  MEMORANDUM OPINION

      Appellant, Jammie Lee Moore, was convicted of possession of a controlled

substance, methamphetamine, in an amount of more than 4 grams but less than 200

grams. 1 The jury found that the possession occurred within a drug free zone. 2 After

finding the enhancement allegations contained within the indictment true, the jury

assessed appellant’s punishment at confinement in the Institutional Division of the


      1
          See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (Vernon Supp. 2009).
      2
          See TEX. HEALTH & SAFETY CODE ANN. § 481.134(C)(1) (Vernon Supp. 2009).
Texas Department of Criminal Justice (ID-TDCJ) for 30 years.          Appellant appeals

contending that the evidence is legally and factually insufficient to support the

conviction. We affirm.

                                  Factual Background


       On April 6, 2007, appellant and his girlfriend, Maria Antionette Garcia (Garcia),

went to spend the evening and night at a motel in Amarillo. After arriving at the motel,

at the suggestion of appellant, they went to a bar in Amarillo known as “No Dogs

Allowed.” They went to the bar, according to Garcia, so that appellant could meet

someone. Upon arriving at the bar, the person appellant was to meet was not present.

Drinks were ordered and appellant walked away from the bar to talk on his cell phone.

When the drinks were served, Garcia tipped the bartender a dollar from the change.

This made appellant angry and words were exchanged with Garcia. Garcia got up and

went outside the bar.    Upon exiting the bar, appellant pushed Garcia down to the

ground. Appellant then continued to yell at Garcia.


       After leaving the bar, appellant and Garcia went back to the motel, where

appellant continued to yell at her. Appellant was again unable to contact the person he

was to meet and, in a fit of anger, kicked a table that struck Garcia. Following this, the

two packed their belongings and went back to the house at 938 Dahlia Street in

Amarillo. Once they returned to the house, appellant dropped Garcia off and left in his

vehicle.


       When Garcia thought appellant had left, she placed a 911 call and reported

appellant’s assault and told the 911 operator that appellant is in a green vehicle and has

                                            2
a weapon. While Garcia was talking to the 911 operator, she heard appellant come

back to the house and hung up the phone. The 911 operator called back and Garcia

answered and hung the phone up, telling appellant that it was a wrong number. Garcia

testified she did this because appellant was standing right in front of her and she was

afraid of him.


       Within a matter of moments, the Amarillo police arrived at the residence. Officer

Moore testified that, as he approached the door, he heard shouting and a woman’s

scream.      When Moore knocked on the door, Garcia came through it stating “He’s

inside.” Officer Moore could see appellant in the hallway immediately adjacent to the

living room. Moore quickly detained appellant and placed him in the backseat of his

patrol car. Moore testified that he got appellant’s identifying information and, during the

process, appellant stated that the green car was his. Moore further testified that he saw

a methamphetamine pipe sitting on a table in the living room. He also observed a small

black bag sitting on the same table. Because the call was initially regarding a domestic

dispute, Moore interviewed Garcia and took a statement from her. From his interview

with Garcia, Moore learned that there was a gun and narcotics in the house. Garcia told

Moore that the gun and narcotics belonged to appellant. Moore then collected the

evidence. He found the gun in the kitchen in a zipper bag sitting on a counter. When

Moore opened the black case he found on the living room table, it contained what he

thought to be methamphetamine, marijuana, digital scales, plastic baggies, and

batteries.


       After Moore had collected the evidence, he went to his patrol car to put the

evidence in the trunk of his patrol car. During this time, appellant was yelling at Moore

                                            3
and, after he deposited the evidence in the trunk, Moore sat in the driver’s seat and

opened the sliding window to the back seat. At this time, appellant stated that the gun

and methamphetamine found in the house did not belong to him. Appellant further

stated that the drugs and gun belonged to Garcia and he was just “peddling” the dope

for her. Appellant was subsequently arrested for possession of a controlled substance.


       During the trial, the State produced the testimony of the Amarillo Police

Department employee that took the evidence into custody and subsequently delivered it

to the Department of Public Safety lab. The director of the lab testified that testing

showed that the contents of the three baggies, suspected to be methamphetamine, did

test positive as methamphetamine with a total weight of 63.31 grams.           The larger

sample was found to contain a high level of a cutting agent, whereas the two smaller

samples contained substantially more pure methamphetamine. Also testifying for the

State was Deputy Christy Phillips of the Potter County Sheriff’s Office.       As part of

Phillips’s duties, she supervises inmate telephone calls. Phillips testified that all calls

from the Potter County Detention Center are recorded.         She then identified State’s

exhibit 20 as a CD of telephone calls made by appellant. The exhibit was partially

played for the jury. Among the subjects discussed by appellant in the telephone calls

was that he had kicked a table that hurt Garcia’s leg. Further, appellant acknowledged

that one of the bags of contraband weighed 47 to 48 grams and that half of it was fake.

Appellant also acknowledged using the scales to weigh the larger bag.


       After the State presented its evidence, appellant presented the testimony of the

manager of the motel where Garcia claimed that she and appellant checked in. The

witness testified that the records of the motel did not reveal anyone checking in on the

                                            4
day in question under appellant’s or Garcia’s name. Further, Garcia had testified that

the table appellant kicked, which struck her leg, was a glass topped table.           The

manager stated that the motel had no glass top tables in any of the rooms of the motel.


      After receiving the court’s charge, the jury found appellant guilty of the offense of

possession of methamphetamine of at least four grams but less than 200 grams and

found that the possession occurred in a drug free zone. Subsequently, having found

that both enhancement paragraphs of the indictment were true, the jury assessed

appellant’s punishment at confinement in ID-TDCJ for 30 years. Appellant appeals the

judgment contending that the evidence is legally and factually insufficient to connect him

to the methamphetamine in question. We will affirm.

                               Sufficiency of the Evidence


      Appellant challenges both the legal and factual sufficiency of the evidence.

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 S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency
                                            5
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)).




                                              6
Legal Sufficiency


       Appellant contends that the State failed to present legally sufficient evidence

linking him to the 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 four grams or more but

less than 200 grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d). 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.          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).


       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

                                           7
       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 reviewing the evidence before the jury, the first matter to consider is that

appellant was present where the contraband was found.                He was in the house

approximately 10 to 15 feet from the table where the black bag containing the

contraband was found.        The methamphetamine was, however, not in plain view.

Rather, it was located inside the closed black bag. The testimony of Garcia was that

the bag belonged to appellant. Appellant’s brief seems to posit that the bag could have

belonged to Garcia, yet the only testimony before the jury was that it belonged to

appellant.    Appellant contends that he denied any possession of the bag or

methamphetamine to the police officers and that they reported this in their reports.

While this statement is true, it must be considered in light of the later admission that

appellant made to Officer Moore. After Moore had placed the evidence in the trunk of

his patrol car, he went to the front seat and opened the sliding window into the back

seat, where appellant was seated, and appellant stated that the gun and the

methamphetamine found in the house did not belong to him and that he was just

“peddling” the dope for his girlfriend.     The jury could well have viewed this as an

                                              8
admission to possession of the methamphetamine. Also, nothing in the record reveals

how appellant had knowledge of what items were found in the house other than having

prior knowledge of their existence. Thus, this statement was a conscious

acknowledgment of guilt and that he was aware that the matter possessed was

contraband. Additionally, there are the recorded jail house telephone calls. One of the

calls talks about the gun in question and another mentions that appellant knew that the

larger bag of methamphetamine was half fake. The lab supervisor for the DPS testified

that the larger bag was approximately one-half cutting agent. The recorded phone calls

also contain an admission by appellant that he had kicked a table that struck Garcia on

the leg. This was consistent with Garcia’s testimony about what occurred at the motel.

Finally, Officer Moore testified that appellant admitted that the green car parked at the

house was his and the only set of keys found at the location were lying on the table next

to the black bag where the methamphetamine was found.


       As part of our analysis of the evidence, we first must remember that it is not the

number of links found that is important, rather it is the logical force of the links

established by the evidence that controls the ultimate issue. Id. The links to appellant

may be demonstrated by direct or circumstantial evidence. Poindexter, 153 S.W.3d at

405-06. Further, when we review this evidence in the light most favorable to the verdict,

as we must in a legal sufficiency review, we cannot say that the jury acted irrationally in

finding appellant guilty beyond a reasonable doubt of possession of methamphetamine

as charged in the indictment. See Jackson, 443 U.S. at 319; Ross, 133 S.W.3d at 620.

Appellant’s issue regarding the legal sufficiency of the evidence is overruled.




                                            9
Factual Sufficiency

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

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

204 S.W.3d at 415. When making a factual sufficiency review, we are mindful that the

jury has already passed on the evidence and their conclusions are entitled to deference

when supported by the evidence. Id. at 417. Further, we cannot simply supplant the

jury’s verdict because we might disagree with it, rather we must be able to state with

particularity where the deficiency in the evidence to support the jury’s determination

exists. Id.


       Appellant contends that the evidence is factually insufficient for the same

reasons he claimed that the evidence was legally insufficient, a failure of the evidence

to link him to the methamphetamine in question. However, the evidence is factually

sufficient, even when viewed in a neutral light, for the same reasons that the evidence

was legally sufficient. Id. at 415.


       Appellant asserts two primary reasons that the evidence is factually insufficient

and we will address those concerns. Sims, 99 S.W.3d at 603. First, appellant spends a

significant portion of his brief outlining all of the various Evans factors that do not link

him to the methamphetamine. Such an analysis, while correct, misses the mark. As

stated in Evans, it is not the number of links that is important, rather it is the logical force

of the links that are found that control the issue. Evans, 202 S.W.3d at 162. Here,

there are a number of links that the evidence did not support, however, nowhere in

appellant’s brief is there a mention of the fact that appellant made a directly

incriminating statement to Officer Moore. Likewise, there is no mention of the recorded

                                              10
telephone conversations from jail that a jury could rationally believe indicate that

appellant knowingly possessed the drugs on the night in question.


       Second, appellant posits that the police chose to believe Garcia’s statement that

the drugs were not hers, even though she was seated directly in front of the drugs.

However, there are two problems with appellant’s contention. The evidence was that

Garcia had come out the front door and did not return to the house until appellant was in

custody.    Therefore, this situation is not similar to the facts of Evans, where the

defendant was seated in front of drugs that were in plain view when the police arrived.

Further, Garcia’s testimony reflected that, prior to the police’s arrival, she was not

seated directly in front of the black bag, rather she was on another sofa located in the

living room of the house.


       Finally, appellant points out a number of inconsistencies in Garcia’s testimony

and opines that these show the evidence to be factually insufficient. However, the

position taken by appellant invites the court to ignore that the jury heard this testimony

and resolved any conflicts and discrepancies against appellant.         This is the jury’s

province and we cannot say that there is no support for their conclusion in the record.

Id.

       Accordingly, we find that the evidence is factually sufficient to support the jury’s

verdict and that the verdict is not against the great weight and preponderance of the

evidence.    Watson, 204 S.W.3d at 417.          Appellant’s issue regarding the factual

sufficiency of the evidence is overruled.




                                            11
                                       Conclusion


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




                                                Mackey K. Hancock
                                                     Justice


Do not publish.




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