Opinion issued September 29, 2015




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-14-00877-CR
                           ———————————
                  FALLON NICOLE WAGNER, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 149th District Court
                          Brazoria County, Texas
                        Trial Court Case No. 73035


                         MEMORANDUM OPINION

      A jury convicted appellant Fallon Nicole Wagner of possession of a

controlled substance, methamphetamine, in an amount less than one gram. See

TEX. HEALTH & SAFETY CODE § 481.102(6) (Penalty Group 1); id. § 481.115(b).

The jury also found that she previously had been convicted of two prior instances
of possession of a substance in Penalty Group 1, and she was thus subject to an

enhanced sentence. The jury assessed punishment at eight years in prison and a

fine of $1,000, and Wagner appealed. In her sole issue, she challenges the

sufficiency of the evidence to support the conviction.

      Finding no reversible error, we affirm.

                                    Background

      While on patrol, Manvel Police Officer E. Edwards observed a Ford Focus

with its hazard lights blinking, parked in a moving lane on southbound Highway

288. The car had Louisiana license plates and was registered to a rental company.

The officer stopped his patrol car behind the Ford Focus and checked on the

welfare of the driver.

      The officer approached the driver’s window and noticed that Wagner, the

sole occupant of the car, was slumped over as if she were sleeping. The officer

knocked on the window. When Wagner rolled down the window, Officer Edwards

smelled an “odor of alcohol.”

      Officer Edwards asked how much Wagner had to drink that night, and she

responded that she had consumed two mixed drinks. She had trouble finding her

driver’s license and proof of insurance, and she had difficulty reaching for a purse

on the front passenger floorboard. Officer Edwards noted that she “seemed to be a

little bit confused and disoriented.”



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      After observing Wagner’s glossy, bloodshot eyes and slurred speech, Officer

Edwards had her step out of the vehicle to conduct field sobriety tests. Wagner was

not wearing any shoes and had difficulty finding them. She and Officer Edwards

found one shoe in the front of the car and another behind the driver’s seat. Wagner

was unable to perform the field sobriety tests, and consequently she was arrested

for driving while intoxicated.

      Officer Edwards inventoried the vehicle. Inside the car, he found a silver gift

box on the front passenger seat. Inside the gift box, he found a “transparent, small

baggie” containing a “crystal-like substance.” The substance field-tested positive

for methamphetamine. Next, he found a purse on the passenger-side front

floorboard next to a bottle of brandy. The purse contained pills that were later

identified as Quetiapine, an antipsychotic drug. In the backseat, he found a purple

brandy bag, which held eight pills and two glass pipes with burnt ends. Officer

Edwards testified that the pipes could be used for smoking cocaine or

methamphetamine. He also stated that methamphetamine is commonly ingested

through a pipe. Additional drug paraphernalia was also found in the backseat.

      Officer Edwards drove Wagner to the police station. During the ride, she

alternated between being “relaxed” and having sudden “burst[s] of energy,”

nodding her head as if dozing and then suddenly picking it up. Officer Edwards

testified that, based on his past experience, her behavior during the ride suggested



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that she was under the combined influence of methamphetamine and alcohol. After

arriving at the police station, Wagner told Officer Edwards that the substance

found inside the silver box was “crystal meth.”

      Wagner was charged with possession of a controlled substance listed in

Penalty Group One, and the indictment included enhancements for two prior

felony convictions for possession of a controlled substance. At trial, the lead

chemist of the Brazoria County Crime Laboratory testified that the substance

contained 0.0832 grams of methamphetamine, which is a controlled substance

listed in Penalty Group One.

      The jury found Wagner guilty of possession of a controlled substance,

methamphetamine, in an amount less than one gram. Wagner appealed.

                                     Analysis

      In her sole issue on appeal, Wagner argues that the evidence was insufficient

to support her conviction.

      We determine the sufficiency of evidence to support a criminal conviction

by considering all of the evidence in the light most favorable to the verdict and

determining 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, 2789 (1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex.




                                         4
Crim. App. 2012). The standard is the same for both direct and circumstantial

evidence cases. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013).

      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 Merritt,

368 S.W.3d at 525–26. We presume that the factfinder resolved any conflicting

inferences in favor of the verdict, and we defer to that resolution. See Jackson, 443

U.S. at 326, 99 S. Ct. at 2793; Merritt, 368 S.W.3d at 526.

      To prove unlawful possession of a controlled substance, the State must

prove that the defendant exercised control, management, or care over the substance

and that he knew the matter possessed was contraband. See Poindexter v. State,

153 S.W.3d 402, 405 (Tex. Crim. App. 2005); see also TEX. HEALTH & SAFETY

CODE § 481.002(38). In this case the State was required to prove that Wagner

exercised control, management, or care over the methamphetamine and that she

knew that the substance in the silver gift box was methamphetamine. However, the

State was entitled to rely upon circumstantial evidence because circumstantial

evidence “is as probative as direct evidence in establishing the guilt of the actor,

and circumstantial evidence alone may be sufficient to establish guilt.” Carrizales,

414 S.W.3d at 742 (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007)).




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       Regardless of whether the evidence is direct or circumstantial, it must

establish that a defendant’s connection to the contraband was more than fortuitous.

Poindexter, 153 S.W.3d at 405–06. Presence or proximity, when combined with

other evidence, either direct or circumstantial, may be sufficient to establish the

element of possession beyond a reasonable doubt. Evans v. State, 202 S.W.3d 158,

162 (Tex. Crim. App. 2006).

       The Court of Criminal Appeals has recognized numerous “affirmative links”

as non-exclusive factors that may establish possession, including whether: (1) the

defendant was present when a search was conducted; (2) the contraband was in

plain view; (3) the contraband was in proximity to and accessible by the defendant;

(4) the defendant was under the influence of narcotics when arrested; (5) the

defendant possessed other contraband when arrested; (6) the defendant made

incriminating statements when arrested; (7) the defendant attempted to flee; (8) the

defendant made furtive gestures; (9) there was an odor of contraband; (10) other

contraband or drug paraphernalia was present; (11) the defendant owned or had the

right to possess the place where the contraband was found; (12) the place where

the contraband was found was enclosed; (13) the defendant was found with a large

amount of cash; and (14) the conduct of the defendant indicated a consciousness of

guilt. Id. at 162 n.12.




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      These factors do not comprise “an independent test of legal sufficiency.” Id.

at 161–62 n.9. Rather, the key legal question is whether the circumstances, in

conjunction with a defendant’s presence, justify a conclusion that the defendant

knowingly possessed the contraband. Id. “It is the logical force of the

circumstantial evidence, not the number of links, that supports a jury’s verdict.” Id.

at 166.

      When looking at the evidence in the light most favorable to the verdict, the

State presented evidence for six of the nonexclusive factors identified by the Court

of Criminal Appeals. However, it is not the number of links that is dispositive, but

rather the logical force of all of the evidence, both direct and circumstantial. Evans,

202 S.W.3d at 162. Based on the logical force of the evidence presented, we find

that a rational jury could have found Wagner guilty beyond a reasonable doubt.

      Factors 1 and 3: Wagner’s presence when the search was conducted, and

Wagner’s proximity to and the accessibility of the contraband. Officer Edwards

testified that when he arrived, Wagner was sitting in the driver’s seat of the Ford

Focus, and she was the sole occupant. He also testified that he found the silver gift

box containing the methamphetamine on the passenger seat next to Wagner. The

jury was free to rely on the testimony of Officer Edwards as to the location of the

box containing the methamphetamine. The jury was also free to consider the

testimony that the box was sitting on the passenger seat and that Wagner was in the



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driver seat and sole occupant of the vehicle as evidence that she was in close

proximity to the contraband and that it was accessible to her.

      Factor 4: Whether Wagner was under the influence of narcotics when

arrested. Officer Edwards testified that Wagner’s inability to perform field

sobriety tests, the odor of alcohol, and her behavior during the ride to the police

station led him to believe that she was under the influence of both alcohol and

methamphetamine. He testified that Wagner would nod her head and then pick it

back up quickly as if she had a burst of energy, which he said was consistent with

the effects of a combination of alcohol and a stimulant such as methamphetamine.

The jury was entitled to rely on this testimony to determine that Wagner was under

the influence of methamphetamine at the time she was arrested.

      Factor 6: Whether Wagner made incriminating statements when arrested.

Officer Edwards testified that after the arrest Wagner told him the crystalline

substance was crystal meth. The jury, as factfinder, was entitled to determine

Officer Edwards’s credibility and to consider his testimony as evidence that

Wagner knew that the substance was methamphetamine and as a link between her

and control of the substance.

      Factor 10: Whether other contraband or drug paraphernalia was present.

Officer Edwards testified that a purple brandy bag containing pills and two pipes

that could be used for smoking methamphetamine were found in the backseat.



                                          8
Additional drug paraphernalia were found in the backseat of the car. The jury was

entitled to consider the presence of the additional contraband and drug

paraphernalia in the car as a link between Wagner and the methamphetamine.

      Factor 12: Whether the place where the contraband was found was

enclosed. When the officer approached, the car’s doors and windows were closed.

He had to knock on the window in order to speak with Wagner. The jury was

entitled to consider this testimony with the testimony that she was the only person

in the car in order to infer that Wagner possessed the methamphetamine.

      Wagner contends that several affirmative links are not supported by the

evidence. She is correct that some of the factors that have been used to establish

possession are absent in this case. For example, she was not found with a large

amount of cash. See Evans, 202 S.W.3d at 162 n.12. 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).

      Wagner contends that there was no evidence showing she was the owner of

the car in which the methamphetamine was found. Yet the State is not required to

prove that Wagner owned the car in order to show that she exercised control,

management, or care over the methamphetamine and knew what it was. See, e.g.,

Blackman v. State, 350 S.W.3d 588, 589 (Tex. Crim. App. 2011) (upholding the



                                        9
conviction for possession of a controlled substance of a passenger in a car that

contained cocaine). The jury was free to determine that she possessed the

methamphetamine despite the fact the car was rented.

       Wagner also argues that there was no evidence that she had access to the

controlled substance. In Cole v. State, 194 S.W.3d 538 (Tex. App.—Houston [1st

Dist.] 2006, pet. ref’d), evidence showing that the substance was located near the

defendant’s possessions in the enclosed trunk of a car being driven solely by the

defendant, when combined with evidence supporting other links, was sufficient for

a jury to convict the defendant for possession of a controlled substance. See Cole

194 S.W.3d at 549. The evidence of Wagner’s access was much stronger than that

found to be sufficient in Cole. Additionally, Wagner’s personal belongings, such

as her shoes and purse, were scattered next to and among the drugs and

paraphernalia. The jury could rationally conclude that Wagner had access to and

possessed the methamphetamine based on this evidence.

       Finally, Wagner argues that there was no evidence that she was the only one

to have control over the car. However, Officer Edwards testified that Wagner was

the sole occupant and driver of the car. The jury was entitled to consider this issue

and weigh the evidence in light of the fact that Officer Edward’s testimony was not

contested at trial.




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      Viewing the evidence in the light most favorable to the verdict, we conclude

that a rational jury could have found beyond a reasonable doubt that Wagner

possessed methamphetamine in an amount less than one gram. See Jackson, 443

U.S. at 319, 99 S.Ct. at 2789; Merritt, 368 S.W.3d at 525. Accordingly we overrule

Wagner’s sole issue.

                                   Conclusion

      We affirm the judgment of the trial court.



                                                Michael Massengale
                                                Justice

Panel consists of Justices Keyes, Massengale, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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