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

                                       No. 07-12-00242-CR
                                  ________________________

                       MARIO SOCCORRO MARTINEZ, APPELLANT

                                                  V.

                              THE STATE OF TEXAS, APPELLEE



                             On Appeal from the 47th District Court
                                      Potter County, Texas
                Trial Court No. 63,883-A; Honorable Richard Dambold, Presiding


                                         August 21, 2013

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

        Appellant, Mario Soccorro Martinez, was convicted by a jury of the offense of

possession of a controlled substance, methamphetamine, in an amount of less than one

gram 1 enhanced 2 and sentenced to confinement for nine years. Appellant asserts (1)


1
 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a) (W EST 2010). An offense under this statute is
punishable as a state jail felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (W EST 2010).
2
 See TEX. PENAL CODE ANN. § 12.42(a)(1) repealed by Act of May 25, 2011, 82nd Leg., R.S., ch. 834, § 2
2011 Tex. Sess. Law Serv. 2104, effective September 1, 2011. A state jail felony offense committed prior
the trial court erred by denying his motion to suppress and (2) there is insufficient

evidence to support his conviction. We modify the trial court’s judgment to delete the

requirement Appellant pay $5,270 in court-appointed attorney’s fees and affirm the

judgment as modified.


                                        MOTION TO SUPPRESS


        Appellant contends the trial court erred by denying his motion to suppress

evidence of a plastic baggie containing methamphetamine found in the coin or fifth

pocket of his jeans because officers did not have a reasonable suspicion or justification

for an investigative detention. While we disagree with Appellant’s contention, we find

the State is correct in the assertion that Appellant has not preserved this issue for

appeal.


        At trial, Appellant did not object to the admission of evidence of the plastic baggie

containing methamphetamine when it was offered and received into evidence. Although

he objected to the evidence in his motion to suppress and during a suppression hearing,

when the evidence was offered into evidence at trial, Appellant’s response was simply,

“No objection.” Appellant’s response of “no objection” waived his claim to inadmissibility

of the challenged evidence. See Swain v. State, 181 S.W.3d 359, 368 (Tex.Crim.App.

2005), cert. denied, 549 U.S. 861, 127 S.Ct. 145, 166 L.Ed.2d 106 (2006); Moody v.

State, 827 S.W.2d 875, 889 (Tex.Crim.App. 1992); Dean v. State, 749 S.W.2d 80, 82-

83 (Tex.Crim.App. 1988). Accordingly, Appellant’s first issue is overruled.


to September 1, 2011, is punishable as a second degree felony if the defendant has been previously
convicted of two felonies, and the second previous felony is for an offense that occurred subsequent to
the first previous conviction having become final. In this case, the charging instrument alleged an offense
committed on July 10, 2011, and two prior felony convictions meeting those criteria.

                                                    2
                             SUFFICIENCY OF THE EVIDENCE


      Appellant next asserts the State’s evidence was insufficient to convict him of

possession of a controlled substance because there is no evidence he was aware that

the substance found in his possession was methamphetamine. Again, we disagree.


      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

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) (plurality op.).              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 that:

(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,


                                            3
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. 3


        Here, the surrounding circumstances leading up to, during, and after 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 evidence at trial

established the following:          (1) contraband was recovered from an enclosed place

(Appellant’s fifth pocket); (2) the accused was the owner of the place where the

contraband was found (his jeans); (3) the contraband was conveniently accessible to

the accused in close proximity (on his person); (4) the accused possessed other

contraband when arrested (a cutting agent 4 was found in a plastic baggie in his sock);

(5) paraphernalia to use the contraband was found on the accused (cutting agent used

to dilute contraband); (6) the accused made furtive gestures (swayed from side-to-side,

paced, put his hands in-and-out of the pocket containing the contraband); and (7) the

accused made incriminating statements connecting himself to the contraband (admitted

he had “stupid stuff” on him). See Evans, 202 S.W.3d at 162 n.12. The record also

reflects the two baggies found on Appellant were submitted to the DPS Crime

3
 This has been termed the “affirmative links” rule. Evans v. State, 202 S.W.3d 158, 162 n.9
(Tex.Crim.App. 2006). 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.
4
 A cutting agent or “cut” dilutes the drug’s quality while making it appear that the quantity of the drug has
increased.

                                                     4
Laboratory and the baggie found in Appellant’s fifth pocket contained 0.64 grams of

methamphetamine. Accordingly, we find that the foregoing evidence is sufficient to

prove Appellant’s knowing possession of less than a gram of methamphetamine. See

Palmer v. State, No. 2-07-160-CR, 2008 Tex. App. LEXIS 462, at *10-14 (Tex.App.—

Fort Worth 2008, pet. ref’d) (mem. op., not designated for publication). See also Akins

v.   State,   202   S.W.3d    879,   892   (Tex.App.—Fort   Worth    2006,   pet.   ref’d)

(methamphetamine found in accused’s pocket is abundant evidence of his possession

of a controlled substance).


       Furthermore, the jury was entitled to disbelieve or discount Appellant’s equivocal

testimony, i.e., officers planted methamphetamine in his pocket, both baggies contained

Appellant’s “cut” and were inadvertently confused by officers with his friend’s drugs, or

officers contaminated both baggies of “cut” with his friend’s drugs. See Davis v. State,

313 S.W.3d 317, 348 (Tex.Crim.App. 2010) (“[a]bsent evidence of tampering, issues

regarding the chain of custody bear on the weight, rather than the admissibility, of

evidence.”)   The jury as the trier of fact is the exclusive judge of the credibility of

witnesses and of the weight to be given each witness and each piece of evidence. See

Brown v. State, 270 S.W.3d 564, 568 (Tex.Crim.App. 2008), cert. denied, 556 U.S.

1211, 129 S.Ct. 2075, 173 L.Ed.2d 1139 (2009). Here, the jury’s verdict indicates the

State’s evidence was found more credible and entitled to greater weight than

Appellant’s testimony. Accordingly, Appellant’s second issue is overruled.




                                            5
                               COURT-APPOINTED ATTORNEY’S FEES


             We also note an issue not raised by Appellant regarding the assessment of

    $5,270 in court-appointed attorney’s fees in the “Bill of Costs” incorporated in the trial

    court’s Judgment in Cause No. 63,883-A. 5 In order to assess attorney’s fees, the trial

    court must first determine that the defendant has financial resources that enable him to

     offset in part or in whole the cost of legal services provided; TEX. CODE CRIM. PROC.

ANN. art. 26.05(g) (W EST SUPP. 2012), and the record must reflect some factual basis to

      support the determination that the defendant is capable of paying attorney’s fees.

Barrera v. State, 291 S.W.3d 515, 518 (Tex.App.—Amarillo 2009, no pet.) (per curiam);

           Perez v. State, 280 S.W.3d 886, 887 (Tex.App.—Amarillo 2009, no pet.).


          Here, the Judgment requires Appellant pay $5,270 in court-appointed attorney’s

fees as “Court Costs: $ as per attached bill of costs.”                The clerk’s record reflects,

however, that the trial court found Appellant indigent and unable to afford the cost of

legal representation in the trial court’s proceedings and on appeal. It does not appear

the trial court made a determination Appellant had financial resources enabling him to

pay all or any part of the fees paid his court-appointed counsel, and we are unable to

see any evidence to support such a determination. Accordingly, we conclude the order

to pay attorney’s fees was improper because the evidence was legally insufficient to

support a finding Appellant had the financial resources to pay attorney’s fees. See

Mayer v. State, 309 S.W.3d 552, 556-57 (Tex.Crim.App. 2010).



5
 Courts of appeals may review unassigned error in criminal cases, particularly when the appellate court’s
review discloses error that should be addressed in the interest of justice. Hammock v. State, 211 S.W.3d
874, 878 (Tex.App.—Texarkana 2006, no pet.).

                                                   6
                                      CONCLUSION


      Accordingly, we modify the trial court's judgment by adding the following

provision at page 2 beneath the heading "Furthermore, the following special findings or

orders apply": "As used herein the term 'court costs' does not include court appointed

attorney's fees." As modified, the judgment is affirmed.



                                                Patrick A. Pirtle
                                                    Justice


Do not publish.




                                            7
