IN THE

TENTH COURT OF APPEALS

No. 10-02-089-CR

     FABIEN J. MURRY,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 2001-673-C

MEMORANDUM OPINION

      A jury convicted Fabien Murry of possession of methamphetamine and sentenced him to two years’ imprisonment and a $2000 fine. Murry appeals one issue: that the evidence is legally insufficient to support his conviction. We affirm.

Background

      The police had been conducting surveillance of a trailer home where the presence of methamphetamine was suspected. In the course of that investigation, officers observed a maroon Nissan pickup truck bearing license plates assigned to a white Ford pickup. Three days later, immediately after executing the search warrant on the trailer home and finding drugs, the officers once again saw the Nissan in the vicinity. Knowing that, at the very least, the Nissan was improperly registered, the police stopped the vehicle and questioned Fabien Murry, who was the driver and sole occupant of the truck. They discovered that the truck was reported stolen and arrested Murry. An inventory search revealed over two grams of methamphetamine in the cab of the truck. Murry was indicted and found guilty by a jury for the offense of possession of methamphetamine. Murry appeals the legal sufficiency of the evidence supporting his conviction.

Sufficiency of the EvidenceIn his sole issue, Murry argues that the evidence is legally insufficient to uphold his conviction. He argues that the evidence presented by the State showed only two affirmative links: 1) that Murry was driving the truck in which the contraband was found; and 2) that Murry may have been in close proximity to the contraband. He contends that in light of the possible affirmative links that the State did not show, his conviction must be reversed and be remanded for acquittal.

Legal Sufficiency standard

      In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict. Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex. Crim. App. 2000); Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).

Applicable Law

      To prove drug possession, the State must show 1) a defendant exercised care, custody, control, or management over the drugs, and 2) that he knew he possessed a controlled substance. Rischer v. State, 85 S.W.3d 839, 843 (Tex. App.—Waco 2002, no pet.). When a defendant is not in exclusive possession or control of the place where the drugs are found, the State must affirmatively link the defendant with the drugs. Id. Factors which have been considered affirmative links include: 1) presence when the search was executed; 2) contraband in plain view; 3) proximity to and accessibility of the contraband; 4) accused under the influence of contraband when arrested; 5) accused’s possession of other contraband when arrested; 6) accused’s incriminating statements when arrested; 7) attempted flight; 8) furtive gestures; 9) odor of the contraband; 10) presence of other contraband; 11) accused’s right to possession of the place where contraband was found; and 12) drugs found in an enclosed place. Id. The presence of all of these factors is not necessary in every possession case, rather affirmative links are established by the totality of the circumstances. Id. We adapt these factors to Murry’s circumstances.

      Further, we have said that the State must prove sufficient “affirmative links” in every possession case, but the links that must be proved will vary depending on the nature of the accused’s possession of the contraband. Gill v. State, 57 S.W.3d 540, 544-45 (Tex. App.—Waco 2001, no pet.). For example, if the contraband is found in the pants pocket of a defendant, then sufficient affirmative links may be shown by the mere presence of the contraband on the defendant’s person. See id. at 545. Conversely, if the contraband is found in a room occupied by the defendant and others, then the State will have to show “additional independent facts and circumstances which affirmatively link the accused to the contraband.” Id. (quoting Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986)).

      The fact that the accused was driving the car in which contraband was found has been held to be an affirmative link by this Court. Bellard v. State, ___S.W.3d___, ___ (Tex. App.—Waco 2003, pet. filed). In addition, being alone in a car with contraband in plain view and accessible to the accused has been held to be legally sufficient to uphold a conviction of possession. Harmond v. State, 960 S.W.2d 404, 407 (Tex. App.—Houston [1st Dist.] 1998, no pet.).

Evidence

      It is undisputed that Murry was the driver and sole occupant of the truck. It is also undisputed that methamphetamine was found somewhere in the cab of the truck. It is less clear as to exactly where the drug was found. This lack of clarity is caused by the fact that the trial court excluded one of the State’s witnesses because the State did not include his name on a witness list given to Murry shortly before trial. This witness is the officer who found the methamphetamine in the cab of the truck Murry was driving.

      The jury did hear evidence from the officer, Kyle Moeller, who photographed the evidence as it was found in the truck Murry was driving. Moeller testified as to the procedure the police used to document the evidence as it is found:

Asst. DA: Let’s say that an investigator finds some evidence, what is the procedure as far as them touching it, and you taking a picture of it, what procedure do you have?

Moeller: Basically they will leave the evidence exactly where it is at, and they will call for me to come up and take pictures of the evidence exactly where it is at.

During cross-examination, the following exchange occurred between Murry’s attorney and Officer Moeller:

Attorney: And you are not trying to tell this jury that you were there, and you saw the location of this evidence?

Moeller: Yeah, I was there.

Attorney: You weren’t there when it was found, and saw the evidence, exactly where it was found?

Moeller: You are confusing me as to what time frame are you talking about....

Attorney: I was talking about....

Moeller: Let me finish. What you are talking about present, just like hey, I found this, come here, take a picture of it, I was present at that search warrant.

Attorney: But you didn’t see where the officers found the items exactly, did you?

Moeller: Yes.

Attorney: You were looking when they found it?

Moeller: No, that is not the question you asked. The question you asked was, did I see exactly where the officer found it, yes, because the officer said hey, look, I need you to take a picture of where I found the evidence.

Attorney: Your Honor, I object, that is hearsay.

Court: Overruled.

The series of photographs that Murry’s attorney and Moeller are discussing show the methamphetamine in a plastic bag on the “back little extended cab part of the pickup on the driver’s side by the console.” There are three photographs taken at various distances and with the plastic bag opened and the drug exposed in the third picture. Moeller testified that in the third picture, the drugs had been moved and the “bag stretched open so you can see all of the contents of the plastic bag.” Murry’s attorney objected to the submission of these pictures and requested a limiting instruction “that this is not testimony or evidence as to where they found these items.” The trial court overruled his objection.

Analysis

      Murry argues the evidence is legally insufficient to support his conviction. The evidence supports the following factors that affirmatively link Murry to the methamphetamine: 1) the fact that he was the driver and sole occupant of the car when the search was executed; 2) his presence when the search was executed; 3) his proximity to and the accessibility of the contraband; 4) the fact that the drugs were found in plain view; and 5) the fact that the drugs were found in the enclosed cab of the truck he was driving. Viewing the evidence in the light most favorable to the verdict, the evidence is legally sufficient to support the jury’s finding that Murry possessed methamphetamine.

      Accordingly, we overrule issue one and affirm the trial court’s judgment.

                                                                   REX D. DAVIS

                                                                   Chief Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed

Opinion delivered and filed July 23, 2003

Do not publish

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