                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-14-00466-CR


KATHERINE SUE MCKEEVER                                           APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 271ST DISTRICT COURT OF WISE COUNTY
                     TRIAL COURT NO. CR17445

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                       MEMORANDUM OPINION1

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                                  I. Introduction

     In one issue, Appellant Katherine Sue McKeever challenges the sufficiency

of the evidence used to support her conviction for possession of a controlled

substance. Specifically, McKeever argues that the evidence does not prove that




     1
      See Tex. R. App. P. 47.4.
she possessed the methamphetamine found in a plastic bag on the passenger

floorboard during a search of a pickup. We affirm.

                                     II. Facts

      On December 12, 2012, while on patrol for the City of Rhome, Officer

Brody Brown noticed McKeever watching him closely from the passenger seat of

a pickup truck parked in the Love’s Truck Stop.2 Based upon his training and

experience, Officer Brown felt that she was behaving suspiciously.

      Officer Brown radioed in a routine check of the pickup’s license plate and

found it did not match the description of the registered vehicle. So Officer Brown

waited for the pickup to pull out of the parking lot, and he followed it until he

observed the driver commit a minor traffic violation—failure to signal within 100

feet of a turn. At that point, Officer Brown pulled the pickup over and, after some

brief questioning, asked the driver, Dusty Jobe, to step out of the vehicle. Before

Jobe left the vehicle, Officer Brown noticed that McKeever was “very fidgety with

her fingers, she was not willing to look at [him], [and] she was grinding her

teeth.”3




      2
       Officer Brown testified that McKeever “turned around and watched [him]”
when he went around to the backside of the truck stop, and she “never took her
eyes off [him] until [he] was out of her sight.”
      3
       Officer Brown testified that, based upon his training and experience,
fidgety fingers and teeth grinding are two indicators that a person is under the
influence of methamphetamine.


                                        2
      As Jobe exited the vehicle, Officer Brown noticed an open beer bottle on

the floorboard. He removed the bottle, emptied the contents onto the ground,

and placed the empty container into the bed of the pickup. After asking for and

receiving permission from Jobe to search the vehicle, Officer Brown asked

McKeever to exit the vehicle. Because McKeever emerged from the pickup with

her hands in her pockets, Officer Brown became concerned for his safety, so he

instructed McKeever to take her hands out of her pockets. McKeever complied,

but she did so in such a manner that her hands went immediately from her

pockets, over the tailgate of the pickup, and into the bed of the truck.

      As she completed this odd maneuver, Officer Brown heard a muffled

sound of clinking glass, as if something had fallen into the bed of the pickup. At

that point, Officer Brown asked both Jobe and McKeever to step away from the

pickup and toward the front of his vehicle.           Jobe immediately complied.

McKeever initially hesitated but then complied. Officer Brown then looked inside

the pickup bed where he noticed a black nylon cosmetics bag, which he had not

seen previously, near the beer bottle. When he looked inside the bag, Officer

Brown found a glass methamphetamine pipe containing burnt residue. The pipe

was not tested to determine whether it contained any illegal substance, but

Officer Brown arrested McKeever for possession of drug paraphernalia.

      Upon searching the cab of the pickup, Officer Brown also found a small

plastic bag containing a crystal substance on the passenger-side floorboard and




                                          3
a crystal substance on the carpet.4 No fingerprints were taken from the plastic

bag, and Officer Brown testified that he had no idea how long it had been sitting

on the floorboard of the vehicle.

      McKeever was charged with possession of a controlled substance, penalty

group 1, in an amount less than one gram. The jury found McKeever guilty, and

the trial court sentenced her to eight years’ confinement but suspended

imposition of sentence and placed her on eight years’ community supervision,

including the condition that she serve 180 days in the Wise County Jail and

complete a substance abuse treatment program.

                           III. Evidentiary Sufficiency

      In her sole issue on appeal, McKeever argues that the evidence is legally

insufficient to support her conviction for possession of a controlled substance.5

A. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

      4
     Crime lab analysis subsequently revealed that the bag contained trace
amounts of methamphetamine. The substance on the carpet was not tested.
      5
        The court of criminal appeals has held that there is no meaningful
distinction between the legal sufficiency standard and the factual sufficiency
standard. Brooks v. State, 323 S.W.3d 893, 895, 912 (Tex. Crim. App. 2010)
(overruling Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 1996));
see Acosta v. State, 429 S.W.3d 621, 624 (Tex. Crim. App. 2014) (“[W]e review
the sufficiency of the evidence establishing the elements of a criminal offense
under the single sufficiency standard set out in Jackson v. Virginia.”).




                                         4
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); Dobbs v. State, 434 S.W.3d 166, 170

(Tex. Crim. App. 2014). 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; Dobbs, 434 S.W.3d at 170.

      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 (West 1979); Dobbs, 434

S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we

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

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). We must presume that the factfinder resolved any conflicting inferences

in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.

B. Analysis

      A person commits the offense of possession of a controlled substance if

she knowingly or intentionally possesses a controlled substance listed in penalty


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group 1, which includes methamphetamine. Tex. Health & Safety Code Ann.

§§ 481.102(6), .115(a) (West 2010). To prove possession, the State must prove

that the accused (1) exercised actual care, custody, control, or management over

the substance and (2) knew that the matter possessed was a controlled

substance. Id. § 481.002(38) (West 2010 & Supp. 2014); Evans v. State, 202

S.W.3d 158, 161 (Tex. Crim. App. 2006). The State may prove the elements of

possession through direct or circumstantial evidence; however, the evidence

must establish that the accused’s connection with the substance was more than

fortuitous. Poindexter v. State, 153 S.W.3d 402, 405–06 (Tex. Crim. App. 2005).

      If the contraband is not found on the accused’s person, independent facts

and circumstances may “link” the accused to the contraband such that it may be

justifiably concluded that the accused knowingly possessed the contraband.

Evans, 202 S.W.3d at 161–62; Roberson v. State, 80 S.W.3d 730, 735 (Tex.

App.—Houston [1st Dist.] 2002, pet. ref’d). Links are established by the totality

of the circumstances, and no set formula necessitates a finding of a link sufficient

to support an inference of knowing possession. Wright v. State, 401 S.W.3d 813,

819 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). The number of linking

factors present is not as important as the “logical force” they create to prove that

an offense was committed. Roberson, 80 S.W.3d at 735.

      Texas courts have identified a number of links that may, alone or in

combination with others, establish a person’s possession of contraband,

including the following: whether the contraband was (1) in plain view; (2)


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conveniently accessible to the accused; (3) in a place owned, rented, possessed,

or controlled by the accused; (4) in a car driven by the accused; (5) found on the

same side of the car as the accused; or (6) found in an enclosed space; and

whether (7) the odor of narcotics was present; (8) drug paraphernalia was in view

of or found on the accused; (9) the accused’s conduct indicated a consciousness

of guilt (e.g., furtive gestures, flight, conflicting statements); (10) the accused had

a special relationship to the drug; (11) the accused possessed other contraband

or narcotics when arrested; (12) the accused was under the influence of

narcotics when arrested; (13) affirmative statements connected the accused to

the drug; (14) the accused’s presence; and (15) the accused was found with a

large amount of cash. Evans, 202 S.W.3d at 162 n.12; Roberson, 80 S.W.3d at

735 n.2; Villegas v. State, 871 S.W.2d 894, 897 (Tex. App.—Houston [1st Dist.]

1994, pet. ref’d). However, the absence of various links does not constitute

evidence of innocence to be weighed against the links present. Hernandez v.

State, 538 S.W.2d 127, 131 (Tex. Crim. App. 1976); James v. State, 264 S.W.3d

215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).

      Because the plastic bag containing the methamphetamine was not found

on McKeever’s person, linking factors must be present to support a conviction.

See Roberson, 80 S.W.3d at 735.           The linking factors present in this case

include:

            McKeever’s suspicious behavior in “never [taking] her eyes off
             of [Officer Brown]” once he arrived in the Love’s Truck Stop
             parking lot;


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          Other behavior consistent with being under the influence of
           methamphetamine, i.e., the grinding of teeth and fidgeting with
           her fingers;

          The manner in which McKeever exited the pickup, with her
           hands in her pockets, combined with the odd manner in which
           she removed her hands from her pockets when directed to do
           so—by immediately putting her hands over the tailgate of the
           pickup and into the back of the truck;

          The simultaneous noise Officer Brown heard when McKeever
           put her hands into the back of the truck, described as a
           muffled sound of clinking glass, as if something had hit the
           bed of the pickup truck, combined with the appearance in the
           pickup bed of a black nylon bag containing a glass
           methamphetamine pipe, which had not been there previously;

          McKeever’s initial hesitation when she was asked to step
           away from the area near the pickup bed where the glass pipe
           was found; and

          The    location where        the  plastic bag  containing
           methamphetamine was         found—on the passenger side
           floorboard.

      McKeever argues that despite the fact that the plastic bag containing

methamphetamine was found “in plain sight on the floorboard of the vehicle,”

there was no evidence to show how long either McKeever or the bag had been in

the vehicle, the bag could have belonged to Jobe, and it could have slid out from

under the seat at some undetermined point in time. This much of McKeever’s

assessment of the evidence is correct. McKeever also correctly points out that

she did not make any incriminating statements at the scene.

      However, while there is no evidence of incriminating statements, there is

evidence of incriminating conduct at the scene, including her suspicious

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demeanor at the Love’s Truck Stop and her bodily gestures and behaviors which,

according to Officer Brown, were consistent with methamphetamine use. And it

is completely inaccurate to suggest, as McKeever does in her brief, that there is

no evidence that she made any furtive gestures. McKeever stepped out of the

pickup with both hands in her pockets, conduct which Officer Brown perceived as

a potential threat to his safety from a concealed object. After Officer Brown

heard the sound of clinking glass, McKeever’s hesitation to obey his direction to

step away from the area also constituted some evidence of secretive behavior.

Finally, methamphetamine drug paraphernalia, albeit untested for the presence

of drugs, was discovered near the place where she appeared to drop something

into the pickup bed in what could reasonably be described as a furtive manner.

      When viewed in the light most favorable to the verdict and given the

required due deference to the jury’s credibility determinations, these facts

combine to create a logical force that would enable a rational jury to determine

beyond    a   reasonable    doubt    that   McKeever’s    relationship   to   the

methamphetamine found on the pickup’s floorboard was more than fortuitous and

that she intentionally or knowingly exercised care, custody, control, or

management over it.      See James, 264 S.W.3d at 219–20 (affirming gun

possession conviction of passenger observed bending down as though he was

placing something under his seat near where gun was later found).

      We therefore hold the evidence is sufficient to support McKeever’s

conviction for possession of a controlled substance, namely, methamphetamine,


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in an amount of less than one gram. See Jackson, 443 U.S. at 319, 99 S. Ct. at

2789. We overrule McKeever’s sole point.

                               IV. Conclusion

      Having overruled McKeever’s sole point, we affirm the trial court’s

judgment.

                                                /s/ Bonnie Sudderth
                                                BONNIE SUDDERTH
                                                JUSTICE

PANEL: DAUPHINOT, GARDNER, and SUDDERTH, JJ.

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

DELIVERED: April 30, 2015




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