                                          NO. 07-08-0211-CR

                                    IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                              AT AMARILLO

                                                 PANEL C

                                             MARCH 6, 2009

                               ______________________________


                                    LARRY MCGEE, APPELLANT

                                                      V.

                                THE STATE OF TEXAS, APPELLEE

                             _________________________________

                FROM THE 100TH DISTRICT COURT OF CARSON COUNTY;

     NO. 3611; HONORABLE JOHN FORBIS, JUDGE SITTING BY ASSIGNMENT1

                              _______________________________


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


                                      MEMORANDUM OPINION


        Appellant, Larry McGee, was convicted by a jury for third-degree felony possession

of marihuana enhanced by prior felony convictions and sentenced to twenty-five years



        1
        John Forbis, (Ret.), 100 th District Court, sitting by assignm ent. Tex. Gov’t Code Ann. § 75.002(a)(3)
(Vernon 2005).
confinement. Appellant contends the evidence at trial was (1) legally insufficient and (2)

factually insufficient to support his conviction. We affirm.


                                        Background


       The following evidence was adduced at trial. On December 5, 2005, Texas

Department of Public Safety Trooper Michael Smith was patrolling Carson County when

he stopped a Mercury SUV for speeding and a seatbelt violation by the driver. Jessie

Moore, Jr. was driving the SUV and Appellant was a passenger. Although Moore indicated

the SUV was a rental vehicle, neither Moore nor Appellant could produce a rental

agreement.


       Trooper Smith asked for, and received, consent from Moore to search the SUV. As

he conducted his search, he noticed a very strong odor of marihuana emanating from the

SUV’s interior that was overwhelming. He found a black bag containing marihuana in the

back seat and four other bundles underneath the SUV’s seats. The combined weight of

the bundles was seven pounds. He also found user amounts on Moore and Appellant.

Appellant had a small package of marihuana in his shoe. In total, there was 7.64 pounds

of marihuana recovered from the SUV, Moore, and Appellant.


       During the traffic stop, Moore and Appellant gave inconsistent descriptions of their

trip to Las Vegas, i.e., their stories varied in their times of departure and the days actually

spent in the city. In addition, although Appellant told Trooper Smith that Moore was a


                                              2
family friend, he could not recall Moore’s last name. Finally, Moore indicated that only he

knew about the seven pounds of marihuana and Appellant denied knowing that the seven

pounds of marihuana was present in the SUV.


                                        Discussion


       Appellant contends the evidence at trial was legally and factually insufficient to

support a conviction for third-degree felony possession of marihuana because the State

failed to establish that he had custody, care and/or control over the seven pounds of

marihuana in the SUV. In support, Appellant contends he was merely a passenger and

knew nothing about the large amounts of marihuana.


       I.     Legal Sufficiency


       When conducting a legal sufficiency review of the evidence to support a criminal

conviction, we view the evidence in the light most favorable to the verdict and determine

whether any rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Drichas v. State, 175 S.W.3d 795, 798 (Tex.Crim.App. 2005).

We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any

witnesses, as this is the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735,

740 (Tex.Crim.App. 1999). Instead, we determine whether both the explicit and implicit

findings of the trier of fact are rational by viewing all the evidence admitted at trial in the




                                              3
light most favorable to the adjudication.    Adelman v. State, 828 S.W.2d 418, 422

(Tex.Crim.App. 1992).


      To convict someone of the offense of third degree felony possession of marihuana,

the State must prove that Appellant (1) knowingly or intentionally (2) possessed (3) a

usable quantity of marihuana of not more than fifty pounds and not less than five pounds.

Tex. Health & Safety Code Ann. § 481.121(a)(4) (Vernon 2003). Possession means

“actual care, custody, control, or management,” § 481.102(38) (Vernon 2003). See also

Tex. Penal Code Ann. § 1.07(39) (Vernon Supp. 2008), and is established by evidence

that the accused exercised control, management, or care over the substance and knew

that the matter possessed was contraband.         King v. State, 895 S.W.2d 701, 703

(Tex.Crim.App. 1995).


      The State need not prove exclusive possession of the contraband since control over

contraband may be jointly exercised by more than one person; McGoldrick v. State, 682

S.W.2d 573, 578 (Tex.Crim.App. 1985); Taylor v. State, 106 S.W.3d 827, 831

(Tex.App.–Dallas 2003, no pet.); however, if the accused was not in exclusive possession

of the contraband, the State is required to present some evidence linking him to it. Evans

v. State, 202 S.W.3d 158, 162 (Tex.Crim.App. 2006).2 Regardless whether the State’s




      2
       The Court of Criminal Appeals has recognized that “affirmative” adds nothing to the
plain meaning of “link” and now uses only the word “link” to judge evidence of possession.
Evans, 202 S.W.3d at 161 n.9.

                                            4
evidence is direct or circumstantial, it must establish that the connection between the

defendant and the contraband was more than fortuitous. Id.


       Courts have identified a non-exhaustive list of factors that may help to show an

affirmative link to the controlled substance. Some relevant factors that may affirmatively

link an accused to contraband include: (1) the defendant’s presence when a search is

conducted; (2) whether the contraband is 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. Evans, 202 S.W.3d at 162 n.12. Each case is examined on its own facts and it

is not the number of linking factors that is important but the “logical force” they create to

prove that the defendant committed the crime. Roberson v. State, 80 S.W.3d 730, 735-36

(Tex.App.–Houston [1st Dist.] 2002, pet. ref’d).




                                             5
       Viewing the evidence in a light most favorable to the verdict, the record shows

Appellant was riding in the SUV, an enclosed space, containing a substantial amount of

marihuana–7.64 pounds. Appellant was present when the search was conducted in close

proximity to the marihuana which was accessible and possessed a useable amount on his

person. The odor of the marihuana permeated the car’s interior so much so Appellant

must have been aware of the presence of a large amount of marihuana. When asked to

describe their trip, Appellant’s account substantially differed from Moore’s account.

Appellant described Moore as a family friend but could not recall his last name and,

although Moore indicated the SUV was a rental, neither he nor Appellant could produce

a rental agreement. A rational juror could have found these circumstances sufficient to

show Appellant’s knowing possession of the marihuana. Accordingly, we hold this

evidence is legally sufficient to support Appellant’s conviction for third-degree felony

possession of marihuana and overrule his first point of error.


       II.        Factual Sufficiency


       When conducting a factual sufficiency review, we must begin with the assumption

that the evidence is legally sufficient under Jackson.3 Laster v. State, ___S.W.3d ___, PD-

1276-07, 2009 WL 80226, at *2 (Tex.Crim.App. Jan. 14, 2009). A conviction is not subject

to reversal on the basis of factually insufficient evidence unless: (1) the evidence

supporting the conviction is “too weak” to support the factfinder’s verdict, or (2) considering


       3
           Jackson v. Virginia, 443 U.S. 307, 33 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

                                                      6
conflicting evidence, the factfinder’s verdict is “against the great weight and preponderance

of the evidence.” Id. In conducting our factual sufficiency review, we must defer to the

jury’s findings and we cannot conclude that the conviction is factually insufficient simply

because we might disagree with the jury’s verdict. Watson v. State, 204 S.W.3d 404, 416-

17 (Tex.Crim.App. 2006); Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). As

directed by the Court of Criminal Appeals, in applying our analysis we are guided by at

least three “basic ground rules”: (1) we must consider all of the evidence in a neutral light,

as opposed to in a light most favorable to the verdict4; (2) we may only find the evidence

factually insufficient when necessary to “prevent manifest injustice”;5 and (3) we must

explain why the evidence presented is too weak to support the verdict or why the conflicting

evidence greatly weighs against the verdict.6 Laster v. State, 2009 WL 80226, at *2; Sims

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


       In support of his assertion of factual insufficiency, Appellant points to videotaped

statements recorded during the traffic stop and arrest. Specifically, Moore and Appellant

stated Appellant knew nothing of the seven pounds of marihuana in the SUV. Generally,

a jury is the sole judge of the credibility and demeanor of witnesses as well as the weight

to be given to testimony, see Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997),

and we are required to afford “due deference” to the jury’s determinations. Marshall v.

       4
           W atson v. State, 204 S.W .3d at 414.

       5
           Cain v. State, 958 S.W .2d at   407.
       6
           W atson v. State, 204 S.W .3d at 414.

                                                   7
State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Here, it was within the jury’s province

to disbelieve videotaped statements by Moore and Appellant. See Fuentes v. State, 991

S.W.2d 267, 271 (Tex.Crim.App. 1999).


       Appellant also asserts that the absence of a large amount of cash in the SUV or on

the person of Moore or Appellant militates in favor of a finding of factual insufficiency.

However, the absence of various affirmative links does not constitute evidence of

innocence to be weighed against the affirmative links present. James v. State, 264 S.W.3d

215, 219 (Tex.App.–Houston [1st Dist.] 2008, pet. ref’d) (citing Hernandez v. State, 538

S.W.2d 127, 131 (Tex.Crim.App. 1976)).


       Having reviewed the entire record, we conclude the evidence is not so weak that the

verdict is clearly wrong and manifestly unjust, and there is no basis in the record for a

determination that the great weight and preponderance of the evidence contradicts the

jury’s verdict. See Watson, 204 S.W.3d at 417. We hold that the evidence is factually

sufficient and overrule Appellant’s second point of error.


                                       Conclusion


       The trial court’s judgment is affirmed.


                                                 Patrick A. Pirtle
                                                     Justice

Do not publish.


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