                                             NO. 07-03-0179-CR

                                      IN THE COURT OF APPEALS

                             FOR THE SEVENTH DISTRICT OF TEXAS

                                                 AT AMARILLO

                                                    PANEL E

                                         MARCH 15, 2004
                                 ______________________________

                                            MICKLE A. NELSON,

                                                                                 Appellant

                                                         v.

                                         THE STATE OF TEXAS,

                                                             Appellee
                               _________________________________

                FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

                  NO. 2002-401,159; HON. JIM BOB DARNELL, PRESIDING
                           _______________________________

                                      Memorandum Opinion
                                _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1

         Appellant Mickle A. Nelson contests his conviction for possessing a controlled

substance (cocaine). Through two issues, he contends that the evidence was both legally

and factually insufficient to support the conviction. We affirm the judgment of the trial

court.




         1
          John T. B oyd, C hief Justice (R et.), Se venth Court o f Appea ls, sitting by assignm ent. T E X . G O V ’T
C ODE A N N . §75.002 (a)(1 ) (Vernon Sup p. 2004).
       Appellant was indicted for the offense of possessing, with intent to deliver, a

controlled substance. However, the trial court incorporated into its jury charge the lesser

included offense of simple possession. See Hanks v. State, 104 S.W.3d 695, 699 -700

(Tex. App.–El Paso 2003, pet. granted in part) (stating that simple possession is a lesser-

included offense of possession with intent to deliver). Neither party objected to the trial

court’s action. Thereafter, the jury found appellant guilty of the lesser offense.

       By failing to object to the inclusion of the lesser-included offense in the jury charge,

an appellant is estopped from complaining on appeal that the evidence is legally or

factually insufficient to support the verdict. Jaramillo v. State, No. 07-00-0077-CR, 2000

Tex. App. LEXIS 7697 at 2-3 (Tex. App.–Amarillo November 13, 2000, pet. ref’d); Otting v.

State, 8 S.W.3d 681, 686-87 (Tex. App.–Austin 1999, pet. ref’d); Reaves v. State, 970

S.W.2d 111, 118 (Tex. App.–Dallas 1998, no pet.); Bisco v. State, 964 S.W.2d 29, 30 (Tex.

App.–Tyler 1997, pet. ref’d); Taylor v. State, 947 S.W.2d 698, 702 (Tex. App.–Fort Worth

1997, pet. ref’d); see Tamez v. State, 865 S.W.2d 518, 519-20 (Tex. App.–Corpus Christi

1993, pet. ref’d) (applying the rule to issues involving legal sufficiency). Here, appellant

did not object to the inclusion of the lesser offense below. Thus, he cannot now question

either the legal or factual sufficiency of the evidence underlying his conviction. Id.

       Nevertheless, we reviewed the evidence of record and find it both legally and

factually sufficient to illustrate that he knowingly possessed the cocaine found in the car.

Though appellant was a passenger, the 13 cocaine rocks were found in a plastic gray case

sticking out between the seat and the center armrest on the passenger side of the vehicle.

Furthermore, appellant had on his person a crack cocaine pipe. So too were two



                                              2
marijuana cigarette butts found in the car ashtray, and the arresting officer noted the smell

of burned marijuana in the vehicle before making the arrests. The smell of marijuana, the

presence of marijuana cigarette butts within appellant’s reach, the presence of a large

amount of crack cocaine next to appellant (as opposed to the driver of the car) and

appellant’s possession of a device used to ingest contraband of the ilk discovered are

affirmative links upon which a jury could conclude beyond reasonable doubt that appellant

knowingly possessed the cocaine. And, though other evidence illustrated that the driver

may have possessed the contraband, it was not so weighty as to overwhelm that which

also linked appellant to the drug.

       Accordingly, we overrule both issues and affirm the judgment.



                                                  Brian Quinn
                                                    Justice



Do not publish.




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