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Opinion filed December 21, 2006
In The
Eleventh Court of Appeals
__________
No. 11-05-00207-CR
__________
MARTY MAYNARD DUNLAP, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court
Taylor County, Texas
Trial Court Cause No. 21,409-A
O P I N I O N
The jury convicted Marty Maynard Dunlap of possession of methamphetamine. The trial court found both enhancement allegations to be true and sentenced appellant to confinement for twenty-five years. We affirm.
In his first two issues, appellant challenges the legal and factual sufficiency of the evidence. Specifically, appellant contends that the evidence was both legally and factually insufficient to prove that he possessed the methamphetamine seized in the motel room.
In order to determine if the evidence is legally sufficient, we must review all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State,17 S.W.3d 664 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 2006 WL 2956272, at *8 (Tex. Crim. App. Oct. 18, 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 2006 WL 2956272, at *8; Johnson, 23 S.W.3d at 10-11.
In cases involving unlawful possession of a controlled substance, the State must prove that the accused exercised care, control, or management over the substance and that the accused knew that the substance was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). When the accused does not have exclusive possession of the place where the contraband was recovered, the evidence must affirmatively link the accused to the contraband. Poindexter, 153 S.W.3d at 406; Brown v. State, 911 S.W.2d 744 (Tex. Crim. App. 1995); Pollan v. State, 612 S.W.2d 594 (Tex. Crim. App. 1981). The link, however, need not be so strong that it excludes every other reasonable hypothesis except the defendant=s guilt; and the evidence can be direct or circumstantial. Brown, 911 S.W.2d at 747-48.
Abilene Police Officer Les Bruce testified that he executed a search warrant for Room 111 at the Tower Motel. The room was registered to James Michael Mosley. Police officers found only two people in the room: appellant and Mosley. Appellant was on the bed closest to the door, Mosley was on the other bed. Both men were Apretty relaxed,@ and each had fresh track marks on their arms. In plain view on the night stand between the two beds, Officer Bruce saw a razor blade with white residue on it, a cup of water, and a spoon with traces of white powder. Officer Bruce testified that a razor blade was often used to chop methamphetamine into a fine powder. Then the powder would be placed in a spoon, diluted with water, heated, and injected. The officers also observed in plain view a Asnorting straw,@ a plastic bag with traces of methamphetamine, and a bigger bag of methamphetamine on Mosley=s bed; used syringes; and methamphetamine on top of the dresser. The night stand and the items on Mosley=s bed were within reaching distance of appellant. The dresser was approximately six feet away from appellant. Marihuana was also recovered from the room. Laboratory testing established that the white substances recovered contained methamphetamine and had a net weight of over 2.39 grams. Appellant did not testify.
Due deference must be given to the fact-finder=s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000); Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996). The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses= testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981), art. 38.04 (Vernon 1979).
The evidence is both legally and factually sufficient to support the verdict. The police officers observed used syringes, a razor blade with methamphetamine residue, methamphetamine, and other drug paraphernalia within reaching distance from appellant. Appellant had recent track marks on his arm and was Arelaxed@ when the officers entered the room. When viewed in the light most favorable to the verdict, a reasonable trier of fact could have found the essential elements of the offense beyond a reasonable doubt. When viewed in a neutral light, we find that the evidence supporting the verdict is not so weak that the verdict is clearly wrong and manifestly unjust and that the verdict is not against the great weight and preponderance of the conflicting evidence. The evidence sufficiently links appellant to the methamphetamine and establishes that appellant=s connection with the contraband was Amore than just fortuitous.@ Poindexter, 153 S.W.3d at 406; Brown, 911 S.W.2d at 747. The cases cited by appellant are factually distinguishable. We note that the number of factors linking a defendant to the contraband is not as important as the logical force the factors have in establishing the elements of the offense. Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d). The first and second issues are overruled.
At the guilt/innocence phase of trial, appellant=s trial counsel argued in his closing argument that appellant was not in possession of any of the items containing methamphetamine. The State responded by noting that appellant had fresh track marks and stating: A[H]ow does he get around the fact that somebody has been cutting it right there on the table between his bed and the other bed? How does he get around the fact that it is strewn not only on the other bed, but on the dresser as well, right there in plain sight.@ The trial court overruled appellant=s objection that the argument was a comment on his failure to testify.
In his third issue, appellant argues that the trial court erred in overruling his objection and that the argument had a substantial and injurious effect on the jury=s verdict. We disagree.
Proper jury argument includes summation of the evidence presented at trial, reasonable deduction drawn from that evidence, answer to the opposing counsel=s argument, and a plea for law enforcement. Jackson, 17 S.W.3d at 673. An argument that is manifestly improper or injects new and harmful facts into the case is reversible error. Id. The language used must be viewed from the standpoint of the jury, and the direct implication must be a reference to the defendant=s failure to testify: an allusion is not sufficient to constitute reversible error. Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001).
When viewed from the jury=s standpoint, the argument in this case was an answer to appellant=s counsel=s argument and was not a direct reference to any failure on appellant=s part to testify. The third issue is overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
December 21, 2006
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J,
McCall, J., and Strange, J.