Opinion issued September 29, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00877-CR
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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.
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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.
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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
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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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