                                    NO. 07-05-0289-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                    JULY 11, 2007
                           ______________________________

                              JERRY L. SMITH, APPELLANT

                                              V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

             FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

        NO. 2004-406817; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
                      _______________________________


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


                                MEMORANDUM OPINION


       Appellant Jerry L. Smith appeals his conviction for the felony offense of possession

of a controlled substance and punishment, enhanced by a prior conviction, of twenty years

confinement. We will affirm.


       Most of the relevant facts are undisputed. When Shallowater police officer Craig

Williams attempted to stop a vehicle for erratic driving about 1 a.m., the driver fled, leading

to a pursuit which ended when the vehicle left the road and came to rest in a dry lake bed.

Williams saw only one occupant in the car and it was empty when he reached it after the
accident. Deputy sheriff Jason Johnson responded to the event and used a police dog to

locate the driver. When led to the car, the dog initially indicated the presence of drugs in

the car. The dog soon located appellant lying in the grass a distance away from the car.

Officer Williams accompanied appellant to a hospital. At trial, Williams related appellant

asked the following questions while he was waiting for tests to be performed: “Did you get

all the drugs out of my car?” and “Did you even get the ones out of the console and the

trunk?”1


        Shortly after these questions, Deputy Johnson called Williams to report finding

cocaine in the center console of the passenger compartment. No drugs were found in the

trunk. Subsequent testing showed the substance found contained cocaine and weighed

1.21 grams. Appellant was indicted for possession of one to four grams of cocaine, less

than one gram of methamphetamine,2 and evading arrest. The indictment also alleged

two prior felony convictions. At trial the jury was charged only on the possession of

cocaine count. It found him guilty and assessed punishment at twenty years confinement.

Appellant presents three points by which he challenges the legal and factual sufficiency

of the evidence and the State’s failure to disclose evidence.


        The briefs correctly state the standards by which we must review challenges to the

legal and factual sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 99


        1
            Appellant’s final comment was: “Damn, you didn’t leave me with anything, did
you?”
        2
      No mention was made of the methamphetamine allegation until the punishment
phase of trial. There the evidence showed a substance suspected of being
methamphetamine was also found in the console compartment.

                                             2
S.Ct. 2781, 61 L.Ed.2d 560 (1979) (legal sufficiency); Watson v. State, 204 S.W.3d 404,

417 (Tex.Crim.App. 2006) (factual sufficiency).


       To establish possession the State was required to prove appellant exercised control,

management, or care over the substance while knowing it to be contraband. Poindexter

v. State, 153 S.W.3d 402, 405-06 (Tex.Crim.App. 2005); Tex. Health & Safety Code Ann.

§§ 481.002(38) (defining possession), .115(a) (defining offense) (Vernon 2003 & Supp.

2006). Appellant concedes his statements at the hospital were evidence he was aware of

the presence of drugs in his car. His argument is that the incriminating statements did not

specifically show knowledge the substance was cocaine. Appellant offers no authority

supporting his view that the State was obligated to prove appellant’s knowledge of the

specific controlled substance by direct evidence.


       The evidence established the substance found was cocaine. It also showed

appellant’s knowledge that “drugs” were located in the vehicle of which he had exclusive

control. From appellant’s statements and evidence that cocaine was found in the specific

location identified by appellant, a trier of fact could rationally find beyond a reasonable

doubt appellant knew the nature of the substance under his control.3 Moreover, the Court

of Criminal Appeals has consistently described the knowledge element satisfied by proof

“the accused knew the matter possessed was contraband.” See Evans v. State, 202




       3
          As noted, there was no evidence before the jury at the guilt or innocence stage of
trial that a substance suspected to be methamphetamine was also found in the center
console. Appellant makes no complaint based on the omission of that evidence in the first
phase of the trial.

                                             3
S.W.3d 158, 161 (Tex.Crim.App. 2005); Poindexter, 153 S.W.3d at 405. We overrule

appellant’s first point.


       In his second point, appellant questions the factual sufficiency of the evidence that

he exercised “care, custody, control or management” of the cocaine.4 He argues his

admission to police merely showed knowledge of the presence of the drugs and was

factually insufficient to show his possession of them. As noted, appellant’s unsolicited

statements to police and the testimony of the officers also showed appellant’s exclusive

possession of the car where the cocaine was found.5 Recognizing that a person may

jointly possess property where contraband is found but not necessarily jointly possess the

contraband, our courts apply the rule that “[w]hen the accused is not in exclusive

possession of the place where the substance is found, it cannot be concluded that the

accused had knowledge of and control over the contraband unless there are additional

independent facts and circumstances which affirmatively link the accused to the

contraband.” Id. at 406, quoting Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App.

1981) (other internal citation omitted). The “links” requirement is designed to protect the



       4
          As worded, appellant’s second point of error asserts the trial court erred by failing
to direct a verdict of not guilty. An appellate challenge to the denial of a motion for directed
verdict is a challenge to the legal sufficiency of the evidence rather than its factual
sufficiency. Turner v. State, 101 S.W.3d 750, 761 (Tex.App.–Houston [1st Dist.] 2003, pet.
ref’d) (citing Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996)). Because most
of appellant’s argument on the point of error, however, addresses the factual sufficiency,
we evaluate it on that basis. See State v. Garland, 963 S.W.2d 95, 101 (Tex.App.–Austin
1998, pet. denied) (reviewing court should consider a party’s arguments supporting a point
of error and not merely the wording of the point).
       5
       The jury was not informed the car appellant was driving had been stolen until the
punishment phase of trial.

                                               4
innocent bystander from conviction merely because of his “fortuitous proximity to someone

else’s drugs.” Evans, 202 S.W.3d at 161-62. Here, the evidence is that appellant was in

exclusive possession of the vehicle in which the cocaine was found. The threshold

condition requiring independent facts and circumstances linking appellant to the

contraband, that of joint possession of the place at which it was found, therefore, is not

present in this case.


       Further, evidence of links present here included the location of the cocaine adjacent

to the driver’s seat. See Evans, 202 S.W.3d at 163 (court described cocaine less than a

foot away from defendant as being “right under his nose”); Deshong, 625 S.W.2d at 329

(drugs located on floor by driver’s seat). Appellant’s statements to police were links to the

contraband. See Evans, 202 S.W.3d 162 n.12 (listing possible links). Testimony that

appellant appeared to be under the influence of drugs was another link supporting the

jury’s verdict. Id. Viewing the evidence in a neutral light, we cannot say the great weight

and preponderance of the evidence contradicts the jury’s verdict. Watson, 204 S.W.3d at

417. We overrule appellant’s second point.


       Appellant’s third point assigns error to the trial court’s denial of his motion for a

mistrial based on the State’s failure to disclose “discoverable evidence.” Appellant’s

argument in support relies on a line of cases holding that due process requires the State

to disclose exculpatory evidence. See United States v. Bagley, 473 U.S. 667, 677, 105

S.Ct. 3375, 87 L.Ed.2d 481 (1985); Harm v. State, 183 S.W.3d 403, (Tex.Crim.App. 2006).




                                             5
       The evidence at issue was a dashboard camera recording from Deputy Johnson’s

patrol car. Johnson explained the camera begins recording when the emergency lights

are activated. When the recording was mentioned at trial, appellant moved for a mistrial

based on violation of his pretrial discovery motions. Johnson initially testified the recording

was still available, but the relevant portion could not be located. Johnson described the

recording as showing his trip to the location and then the road where he parked to go into

the lake bed.6 It did not contain audio of events where appellant’s car was found and the

only occurrence on the road during the recording was the arrival of an ambulance.

Johnson had informed the prosecutor of the recording but did not preserve it because it did

not show any of the events at issue.


       To demonstrate reversible error from the State’s failure to disclose exculpatory

evidence a defendant must show 1) the State failed to disclose evidence, regardless of the

prosecutor's good or bad faith; 2) the withheld evidence is favorable to the defendant; and

3) the withheld evidence is material, that is, there is a reasonable probability that had the

evidence been disclosed, the outcome of the trial would have been different. Hampton v.

State, 86 S.W.3d 603, 612 (Tex.Crim.App. 2002). Here, however, the prosecution did not

fail to disclose evidence, the evidence was simply not preserved.


       None of the authority on which appellant relies addresses a circumstance in which

evidence has been lost or destroyed. The U.S. Supreme Court has held the State’s duty



       6
       Appellant’s brief erroneously states the recording showed the pursuit. The pursuit
was conducted by Officer Williams, who did not have working recording equipment in his
car.

                                              6
to preserve evidence is limited to that which might be expected to play a significant role in

the suspect’s defense. California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528,

2534, 81 L.Ed.2d 413 (1984). To meet that standard, the exculpatory value of the

evidence must be apparent before its destruction and the evidence must be of a nature

that the defendant would be unable to obtain comparable evidence by other means. Id.

If, however, the evidence is merely potentially useful, the defendant must show the State

was acting in bad faith when it failed to preserve the evidence. Arizona v. Youngblood, 488

U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).7


       Here the exculpatory nature of the video recording is not apparent. Appellant offers

no explanation of how the recording was exculpatory. Nor does he point to anything to

suggest failure to preserve the recording was the result of bad faith on the part of the State.

We overrule appellant’s third point and affirm the trial court’s judgment.




                                           James T. Campbell
                                               Justice


Do not publish.




       7
        The Waco Court of Appeals has applied a different standard, based on our state
constitution. Pena v. State, ___ S.W.3d ___, 2007 WL 1289426, slip op. at 16
(Tex.App.–Waco May 2, 2007). This court has followed the Arizona v. Youngblood
standard. Alvarado v. State, No. 07-06-0086-CR, 2006 WL 2860973 (Tex.App.–Amarillo,
October 9, 2006, no pet.) (not designated for publication).

                                              7
