                                 NO. 07-04-0538-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                                  AUGUST 23, 2005

                         ______________________________


                          JIMMY C. THOMAS, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

           FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

        NO. 2004-4-5141; HONORABLE BRADLEY S. UNDERWOOD, JUDGE

                        _______________________________

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


                              MEMORANDUM OPINION


      Following a plea of not guilty, appellant Jimmy C. Thomas was convicted by a jury

of possession with intent to deliver methamphetamine in the amount of four grams or more

but less than 200.   The trial court assessed punishment at 25 years confinement.
Presenting a sole issue, appellant maintains the evidence is legally insufficient to establish

his conviction. We affirm.


       One January mid-morning in 2004, Trooper Jeff Ashburn stopped appellant for traffic

violations. Appellant turned into a liquor store parking lot and immediately exited his

vehicle and headed toward Ashburn, who had parked behind him. Appellant’s passenger

attempted to exit the vehicle and enter the liquor store, but was directed by Ashburn to

return to the vehicle. Ashburn detected the odor of marihuana on appellant and observed

the passenger acting restlessly in the vehicle. For officer safety, both appellant and the

passenger were handcuffed and, suspecting illegal activity, Ashburn initiated a search.


       Appellant admitted to smoking marihuana and having some in the ashtray of his

vehicle. Ashburn’s search led to the discovery of a black leather pouch containing

numerous small plastic bags of methamphetamine under the passenger’s seat. A small

scale was also in the pouch, a syringe was located on the center console, and two bottles

of formaldehyde were discovered.


       After both suspects were warned that transporting any contraband to jail was illegal,

appellant admitted he had methamphetamine on his person; the passenger, however, did

not disclose he had a loaded syringe on him. It was discovered after he was transported

to the county jail. Appellant was charged in a two-count indictment of possession of one

or more but less than four grams of methamphetamine and possession with intent to deliver




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four or more but less than 200 grams of methamphetamine. He was convicted of the

greater offense.


      By a single issue, appellant contends the evidence is legally insufficient to prove he

intentionally and knowingly possessed, with intent to deliver, methamphetamine in an

amount of four grams or more but less than 200. We disagree. In conducting a legal

sufficiency review, we must determine whether, after viewing the evidence in the light most

favorable to the prosecution, 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, 318,

99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 157

(Tex.Cr.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570, 573

(Tex.Cr.App. 2000). The legal sufficiency of the evidence is measured by the elements of

the offense as defined by the hypothetically correct jury charge that is authorized by the

indictment. Malik v. State, 953 S.W.2d 234, 239 (Tex.Cr.App. 1997). This is done by

considering all the evidence that was before the jury—whether proper or improper—so that

we can make an assessment from the jury's perspective. Miles v. State, 918 S.W.2d 511,

512 (Tex.Cr.App. 1996). As an appellate court, we may not sit as a thirteenth juror, but

must uphold the jury's verdict unless it is irrational or unsupported by more than a mere

modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988).


       Before determining whether the evidence is sufficient to support appellant’s

conviction, we must review the essential elements the State was required to prove.


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Appellant was convicted of possession with intent to deliver methamphetamine of four

grams or more but less than 200 grams. See Tex. Health & Safety Code Ann. § 481.112(a)

& (d) (Vernon 2003). To prove unlawful possession of a controlled substance with intent

to deliver, the State was required to prove by direct or circumstantial evidence that the

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

and (2) knew the matter he possessed was contraband. See Tex. Pen. Code Ann. §

1.07(a)(39) (Vernon 2003).      See also Poindexter v. State, 153 S.W.3d 402, 405

(Tex.Cr.App. 2005), citing Joseph v. State, 897 S.W.2d 374, 376 (Tex.Cr.App. 1995). The

evidence must establish the accused’s connection with the controlled substance was more

than just fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex.Cr.App. 1995).


       Intent to deliver may be proven by circumstantial evidence and is a question of fact

to be determined by the trier of fact. Avila v. State, 15 S.W.3d 568, 573 (Tex.App.–Houston

[14th Dist.] 2000, no pet.) It may be inferred from the acts, words, or conduct of the

accused. Puente v. State, 888 S.W.2d 521, 527 (Tex.App.–San Antonio 1994, no pet.).

Factors considered in establishing intent to deliver include (1) the nature of the place the

defendant was arrested; (2) the quantity of narcotics possessed by the defendant; (3) the

manner of packaging; (4) the presence of drug paraphernalia; (5) a large amount of cash;

and (6) the defendant’s status as a drug user. Williams v. State, 902 S.W.2d 505, 506

(Tex.App.–Houston [1st Dist.] 1994, pet. ref’d).




                                             4
       When the accused is not in exclusive possession of the place where contraband is

found or the contraband is not on the accused’s person, additional independent facts and

circumstances must affirmatively link him to the contraband. Deshong v. State, 625 S.W.2d

327, 329 (Tex.Cr.App. 1981). Affirmative links is a shorthand expression of what must be

proven to establish that the accused possessed some kind of contraband knowingly or

intentionally and is used to evaluate the sufficiency of the evidence. Brown, 911 S.W.2d

at 747. The affirmative links rule is a common sense notion designed to protect innocent

bystanders–a parent, child, spouse, roommate, or friend--from conviction based solely

upon his fortuitous proximity to someone else’s contraband. Poindexter, 153 S.W.3d at

406.


       Affirmative links may include, but are not limited to: (1) appellant’s presence when

the contraband was found; (2) whether the contraband was in plain view; (3) appellant’s

proxim ity to and the accessibility of the contraband; (4) whether appellant was under the

influence of narcotics when arrested; (5) whether appellant possessed other contraband

when arrested; (6) whether appellant made incriminating statements when arrested; (7)

whether appellant attempted to flee; (8) whether appellant made furtive gestures; (9)

whether there was an odor of the contraband; (10) whether other contraband or drug

paraphernalia was present; (11) whether appellant owned or had the right to possess the

place where the drugs were found; (12) whether the place the drugs were found was

enclosed; (13) the amount of contraband found; (14) whether appellant was the driver of the

automobile in which the contraband was found; and (15) whether appellant possessed a


                                            5
large amount of cash. See Taylor v. State. 106 S.W.3d 827, 832 (Tex.App.–Dallas 2003,

no pet.). See also Trejo v. State, 766 S.W.2d 381, 384 (Tex.App.--Austin 1989, no pet.).

Affirmative links are established by the totality of the circumstances. Wootton v. State, 132

S.W.3d 80, 87 (Tex.App.–Houston [14th Dist.] 2004, pet. ref’d). The logical force of the

factors, not the number present, determines whether the evidence links appellant to the

contraband. Trejo, 766 S.W.2d at 385.


       By his argument, appellant contends the evidence does not link him to the

methamphetamine contained in the black pouch found under the passenger’s seat. He

suggests, instead, that his passenger, who law enforcement officers were searching for that

day, was more closely linked to the larger quantity of methamphetamine.


       Appellant was the owner and driver of the vehicle. Trooper Ashburn testified he

detected an odor of marihuana on appellant, and appellant admitted he had marihuana in

his ashtray and methamphetamine on his person. An undercover narcotics officer testified

that usually marihuana use is associated with methamphetamine and it is common for a

user to be a dealer. The officer also testified that given the manner of packaging, there

was no doubt the methamphetamine in the pouch was for sale. According to Trooper

Ashburn, the quantity of methamphetamine found in the pouch was more than for personal

use, and the scales found in the pouch were an indicator of selling for profit.


       Testimony from a drug analyst confirmed that the amount of methamphetamine

found on appellant was 1.02 grams, and the black pouch contained small plastic bags

                                             6
weighing 21.87 grams. He also testified that samples from both were consistent with one

another. Trooper Ashburn testified that the syringe taken from the passenger contained

a brown substance, whereas the methamphetamine found on appellant was similar in color

and packaging to the contents of the plastic bags found in the leather pouch.


       The undercover narcotics officer testified that some of the ingredients used in

cooking methamphetamine include lithium batteries and starter fluid.             Following his

testimony, the State requested an opportunity to present testimony from three witnesses

outside the jury’s presence that appellant was obtaining precursors for cooking

methamphetamine to support its delivery allegation. Two loss prevention security officers

from Wal-Mart testified they are trained to watch high theft areas and that one such area

is the lithium batteries display. They testified that on two separate occasions appellant was

caught shoplifting lithium batteries. Shortly before the first offense, appellant aroused the

suspicion of one of the officers because his shopping basket contained 12 cans of starter

fluid, plastic tubing, and a package of 50 plastic baggies. The third witness, a police officer,

testified he was called to the scene of the first offense to issue a criminal trespass warning

to appellant.


       Following their testimony, defense counsel objected on the ground that appellant

had not been charged with manufacturing methamphetamine and the testimony might

cause the jury to convict for the wrong reason. He further objected that no testimony was

presented on the size of the plastic baggies contained in appellant’s shopping cart.


                                               7
       The court ruled the witnesses would be allowed to testify to show knowledge and

intent to deliver and offered to give the jury a limiting instruction. Thereafter, the witnesses

testified before the jury regarding the shoplifting offenses. During cross-examination, the

police officer who issued the criminal trespass warning could not recall what size plastic

baggies appellant purchased.


       The narcotics undercover officer was recalled and testified without objection that

methamphetamine is packaged in small plastic sandwich bags and that most people who

cook methamphetamine are users who sell to support their habit. In his words, cooks,

dealers, and users are “all wrapped up in one.”


       Evidence was also presented that appellant was cooperative, did not attempt to flee

or make furtive gestures, did not have large amounts of cash, and the black pouch was in

closer proximity to the passenger. However, the logical force of the evidence presented

by the State, i.e., appellant was the owner and driver of the vehicle, the odor of marihuana

and its connection to methamphetamine, the similarity in color and packaging to the

methamphetamine on appellant’s person and in the pouch, the presence of a syringe and

scales, the quantity of the methamphetamine in the pouch, and the shoplifting incidents,

affirmatively linked appellant to possession of methamphetamine contained in the black

pouch and established intent to deliver. Appellant’s version of the events without evidence

supporting his hypothesis of innocence does not render the evidence insufficient to support

his conviction. See Sosa v. State, 845 S.W.2d 479, 483 (Tex.App.–Houston [1st Dist.]


                                               8
1993, pet. ref’d) citing Little v. State, 758 S.W.2d 551, 563 (Tex.Cr.App. 1988), cert.

denied, 488 U.S. 934, 109 S.Ct. 328, 102 L.Ed.2d 346 (1988). We conclude a rational trier

of fact could have found the elements of the crime beyond a reasonable doubt. Appellant’s

sole issue is overruled.


       Accordingly, the judgment of the trial court is affirmed.


                                          Don H. Reavis
                                            Justice


Do not publish.




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