In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-17-00201-CR
_________________
DOROTHY CARTER, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 356th District Court
Hardin County, Texas
Trial Cause No. 23514
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MEMORANDUM OPINION
A Hardin County grand jury indicted Dorothy Carter for the offense of
possession of a controlled substance, specifically methamphetamine, with intent to
deliver in an amount greater than one gram but less than four grams, a second-degree
felony. See Tex. Health & Safety Code Ann. §§ 481.102(6) (West Supp. 2018);
481.112(a), (c) (West 2017). Carter pled not guilty. A jury found her guilty of the
lesser-included offense of possession of a controlled substance, a third-degree
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felony. See Tex. Health & Safety Code Ann. § 481.115(a), (c) (West 2017). The trial
judge assessed punishment at ten years confinement in TDCJ but placed Carter on
probation for ten years. In one issue on appeal, Carter asserts the trial court erred in
denying her motion for instructed verdict because the State failed to prove each
element beyond a reasonable doubt in that it failed to establish the requisite
affirmative links to prove care, custody, and control equating to possession.
Background
On January 5, 2015, narcotics officers with the Hardin County Sheriff’s Office
(HCSO) went to the residence Carter shared with her husband, Bobby, to notify them
their residence was being seized pursuant to Texas Code of Criminal Procedure
chapter 59. Because the front door was padlocked, former HCSO Sergeant Charles
Daigle indicated he and his partner, Sergeant Mark Vincent, knocked on the back
door of the residence and announced they were law enforcement. Sergeant Daigle
and Sergeant Vincent, testified that when Carter answered the door, they explained
they were there to seize the house and property.
Sergeant Vincent stated the back door of the residence went straight into the
master bedroom, and when Carter opened the door, Sergeant Daigle noticed the
“distinct smell of burnt marijuana” leading him to believe someone smoked
marijuana in the home recently. Sergeant Vincent also testified he smelled the strong
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odor of burnt marijuana coming from the residence. When the officers spoke with
Bobby, one of them asked “[w]here is the dope?” Sergeant Daigle testified that after
Bobby responded, they entered the residence and observed illegal narcotics,
specifically methamphetamine and marijuana, in various places in the master
bedroom in plain sight. They conducted a presumptive field test of the items, which
revealed the presence of methamphetamine. The officers found the meth-
amphetamine packaged in four small plastic baggies inside a red and white cigarette
box on a nightstand in the master bedroom. When asked if the cigarette box was in
plain view, Sergeant Daigle responded “yes, . . . behind the lamp[.]” The marijuana
was packaged in two larger plastic bags. In addition to narcotics, officers found two
digital scales in the master bedroom near the drugs.
Minh Nguyen testified as the State’s expert. Nguyen is a DPS chemist who
tested the substances retrieved from Carter’s residence. Nguyen described the tests
he conducted, and he confirmed the substance from the four small bags tested
positive for methamphetamines. Nguyen indicated the net weight was 1.75 grams.
After the State rested, the defense moved for an instructed verdict of not guilty
asserting the State failed to present evidence of care, custody, control, or knowledge,
and there was no affirmative link between Carter and the drugs. The trial court
denied the motion for instructed verdict. The jury convicted Carter of the lesser-
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included offense of possession of a controlled substance in an amount greater than
one gram but less than four grams. The trial judge sentenced Carter to ten years in
TDCJ but placed her on probation for a period of ten years.
Standard of Review
On appeal, Carter argues the trial court improperly denied her motion for
instructed verdict. We review a trial court’s denial of a motion for directed verdict
as a challenge to the legal sufficiency of the evidence. See Williams v. State, 937
S.W.2d 479, 482 (Tex. Crim. App. 1996) (citing Cook v. State, 858 S.W.2d 467, 470
(Tex. Crim. App. 1993)); Andrus v. State, 495 S.W.3d 300, 304 (Tex. App.—
Beaumont 2016, no pet.). Upon a claim of legal insufficiency of the evidence, we
review the evidence in the light most favorable to the verdict to determine whether
any rational factfinder could have found the essential elements of the offense beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Brooks
v. State, 323 S.W.3d 893, 899, 912 (Tex. Crim. App. 2010); Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007). In a legal sufficiency review, we examine all
evidence in the record, direct and circumstantial, whether admissible or
inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). The
jury is the sole judge of the witnesses’ credibility and weight given to their
testimony, and we will defer to the jury on those matters. See Tate v. State, 500
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S.W.3d 410, 413 (Tex. Crim. App. 2016). Juries may draw multiple reasonable
inferences so long as each inference is supported by the evidence presented at trial.
Id.
Analysis
To establish its case for possession of a controlled substance, the State must
prove Carter exercised care, control, or management over the methamphetamine and
knew the substance was methamphetamine. See Tex. Health & Safety Code Ann. §§
481.002(38) (West 2017); 481.115(a); Poindexter v. State, 153 S.W.3d 402, 405
(Tex. Crim. App. 2005), abrogated on other grounds by Robinson v. State, 466
S.W.3d 166, 173 & n.32 (Tex. Crim. App. 2015). The evidence must show the
defendant’s connection with the drug was more than just fortuitous, which is the
“affirmative links” rule. Poindexter, 153 S.W.3d at 405–06; Nixon v. State, 928
S.W.2d 212, 215 (Tex. App.—Beaumont 1996, no pet.). In cases where a defendant
does not have exclusive possession of the place where the controlled substance is
discovered, additional facts beyond mere presence must link her to the illegal
substance. Tate, 500 S.W.3d at 413–14. The State is not required to prove exclusive
possession of the contraband as control may be jointly exercised by more than one
person. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985).
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Some factors courts consider when determining the establishment of
affirmative links include:
(1) the defendant’s presence when a search is conducted; (2) whether
the contraband was in plain view; (3) the defendant’s proximity to and
the accessibility of the narcotic; (4) whether the defendant was under
the influence of narcotics when arrested; (5) whether the defendant
possessed other contraband or narcotics when arrested; (6) whether the
defendant made incriminating statements when arrested; (7) whether
the defendant attempted to flee; (8) whether the defendant made furtive
gestures; (9) whether there was an odor of contraband; (10) whether
other contraband or drug paraphernalia were present; (11) whether the
defendant owned or had the right to possess the place where the drugs
were found; (12) whether the place where the drugs were found was
enclosed; (13) whether the defendant was found with a large amount of
cash; and (14) whether the conduct of the defendant indicated a
consciousness of guilt.
Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006); see also Tate,
500 S.W.3d at 414. “It is . . . not the number of links that is dispositive, but rather
the logical force of all the evidence, direct and circumstantial.” Evans, 202 S.W.3d
at 162.
Looking to the “affirmative links” factors, Carter shared the home with her
husband and was in the home when the officers entered and searched the home. The
methamphetamine was found in a cigarette box in plain view on the nightstand of
the master bedroom she shared with her husband. The methamphetamine was
packaged in small plastic bags. Digital scales and small plastic bags were found in
the master bedroom near the methamphetamine, which officers indicated were often
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used to weigh and package narcotics to sell. In addition to the methamphetamine,
marijuana was found in Carter’s home, and officers smelled a strong odor of burnt
marijuana when Carter opened the door. The logical force of the evidence establishes
an affirmative link between Carter and the methamphetamine. See id. Moreover, the
State is not required to establish Carter had exclusive possession of the
methamphetamine. See McGoldrick, 682 S.W.2d at 578.
When viewing the evidence in the light most favorable to the jury’s verdict,
we determine the evidence is sufficient for a rational fact finder to conclude beyond
a reasonable doubt Carter knowingly possessed methamphetamine. See Tex. Health
& Safety Code Ann. §§ 481.102(6); 481.115(a); Brooks, 323 S.W.3d at 912. The
trial court did not err in denying Carter’s motion for instructed verdict. We overrule
her sole issue.
Conclusion
We conclude the evidence was legally sufficient to support the jury’s verdict
convicting Carter of possession of a controlled substance. Accordingly, the trial
court did not err in denying Carter’s motion for instructed verdict. Although we
affirm the trial court’s judgment, we determine it should be reformed. The trial
court’s judgment incorrectly states Carter was convicted of possession of a
controlled substance with intent to deliver in an amount of one gram or more but less
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than four grams in violation of Texas Health and Safety Code section 481.112. See
Tex. Health & Safety Code Ann. § 481.112(a). The trial court’s judgment further
indicates the offense was a second-degree felony. See id § 481.112(c). However, the
jury convicted Carter of the lesser-included offense of possession of a controlled
substance, specifically methamphetamine, in an amount of one gram or more but
less than four grams in violation of Texas Health and Code section 481.115, which
is a third-degree felony. See id. § 481.115(a), (c). This Court has the authority to
reform the trial court’s judgment to correct clerical errors. See Bigley v. State, 865
S.W.2d 26, 27 (Tex. Crim. App. 1993). Therefore, we delete “WITH INTENT TO
DELIVER” from the section of the judgment entitled “Offense for which Defendant
Convicted” and leave “POSSESSION OF A CONTROLLED SUBSTANCE PG1
ONE GRAM OR MORE BUT LESS THAN FOUR GRAMS[.]” We further delete
“2ND DEGREE FELONY” from the section of the judgment entitled “Degree of
Offense” and substitute “3RD DEGREE FELONY.” Finally, we delete “481.112”
from the section entitled “Statute for Offense” and substitute “481.115[.]” We affirm
the trial court’s judgment as reformed.
AFFIRMED AS REFORMED.
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CHARLES KREGER
Justice
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Submitted on August 21, 2018
Opinion Delivered November 7, 2018
Do Not Publish
Before Kreger, Horton, and Johnson, JJ.
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