Opinion filed July 27, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-05-00040-CR

                                                     __________

                          PATRICK ARTHUR BOWERMAN, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                          On Appeal from the 42nd District Court

                                                          Taylor County, Texas

                                                 Trial Court Cause No. 21,589-A

                                                                   O P I N I O N

Patrick Arthur Bowerman was indicted for the offenses of possession of methamphetamine with the intent to deliver and possession of methamphetamine in an amount with an aggregate weight of 400 or more grams.   See Tex. Health & Safety Code Ann. '' 481.002(8), (38); 481.102(6) (Vernon Supp. 2005), '' 481.112(a); 481.115(a) (Vernon 2003).  The jury acquitted appellant of possession with intent to deliver but convicted him of simple possession.  The jury sentenced appellant to imprisonment in the Institutional Division of the Texas Department of Criminal Justice for a term of twenty-five years and assessed a fine of $25,000.  See Tex. Health & Safety Code Ann. ' 481.115(f) (Vernon 2003).  Appellant challenges his conviction for possession of methamphetamine in two points of error.  We affirm.

                                                               Background Facts

Officers of the Abilene Police Department executed a search warrant on a residence located in Abilene on the morning of May 19, 2004, for the purpose of searching for the presence of methamphetamine.  In searching the garage at the residence, Officer Tommy Pope testified that he noticed a strong odor of ether and observed a functioning Ameth lab@ in the garage.  Officer Pope also observed appellant lying on a couch in the garage approximately three to four feet away from the meth lab.  Officer Pope testified that the meth lab was in a final stage of producing methamphetamine.  The officers recovered a liquid solution from the meth lab which weighed in excess of 400 grams and contained the presence of methamphetamine.

A search of appellant=s pocket revealed a used syringe.  Officer Pope also observed fresh needle marks on appellant=s arm.  Officer Les Bruce testified that appellant made the following statements to him:

He stated to me that he was not a dope cook or a methamphetamine cook, that he arrived at that residence the day before and that [the occupant of the residence] was going to show him the process and show him how to cook methamphetamine.

Appellant testified in his own behalf at trial.  He stated that he went to the residence on the previous day for the purpose of buying drugs.  Appellant testified that he had not slept in the preceding four or five days and that he fell asleep after he Ashot up@ with methamphetamine at the residence.  He denied knowing of the existence of the meth lab prior to falling asleep in the garage.  However, appellant also acknowledged making the following statement to the police: AI believe I said, >[the occupant of the residence] was showing me how to cook this.  Can you release my wife?=@

                                                        Sufficiency of the Evidence

Appellant attacks the legal and factual sufficiency of the evidence supporting his conviction for possession of methamphetamine in his first point of error.  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).  In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004); Ross v. State, 133 S.W.3d 618 (Tex. Crim. App. 2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).  The jury is the sole judge of the weight and credibility of the witnesses= testimony, and due deference must be given to the jury=s determination. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981), art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 8-9. 

In a possession of a controlled substance case, the State must prove, either directly or circumstantially, that the accused exercised actual care, custody, control, or management over the contraband.  Section 481.002(38); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). The State does not have to prove the accused had exclusive possession of the contraband; joint possession is sufficient to sustain a conviction. See Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986).  When there is no evidence appellant was in exclusive control of the place where the contraband was found, the State must offer additional, independent facts and circumstances affirmatively linking him to the contraband.  See Poindexter, 153 S.W.3d at 406.  The purpose of affirmatively linking the accused to the contraband is to protect innocent bystanders from conviction based solely on their fortuitous proximity to the contraband. See Poindexter, 153 S.W.3d at 406.  Possible affirmative links include:  (1) whether the defendant was present when the drugs were found; (2) whether the drugs were in plain view; (3) whether the drugs were found in proximity to and accessible to the defendant; (4) whether the defendant was under the influence of drugs when arrested; (5) whether the defendant possessed other contraband or drug paraphernalia; (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 drugs; (10) whether the defendant owned or had the right to possess the place where the drugs were found; (11) whether the place the drugs were found was enclosed; (12) the amount of drugs found; (13) whether the defendant possessed weapons; and (14) whether the defendant possessed a large amount of cash.  Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.CDallas 2003, no pet.).  No set formula exists to dictate a finding of affirmative links sufficient to support an inference of knowing possession of contraband. Id.  It is the Alogical force@ of the factors, not the number of factors present, that determines whether the elements of the offense have been established. Id. at 831; Hawkins v. State, 89 S.W.3d 674, 677 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d).

Appellant contends that the evidence was legally and factually insufficient to support his conviction because there is no evidence that he was aware of the presence of the meth lab in the garage before he fell asleep there.  We disagree.  Based upon the evidence offered at trial, the issue of appellant=s previous knowledge of the meth lab is a question that involves the jury=s assessment of his credibility.  While appellant ultimately denied knowing about the meth lab at trial, he told the officers at the scene that the occupant of the residence was teaching him how to make methamphetamine.  As the sole judge of the witnesses= credibility, the jury was permitted to accept appellant=s initial statement about his knowledge of the meth lab.  Furthermore, there were other  facts which affirmatively linked appellant to the methamphetamine in addition to his incriminating statement.  These factors included appellant=s proximity to the meth lab when Officer Pope discovered it, the strong odor present in and around the garage, and appellant=s possession of drug paraphernalia at the time of his arrest.  When all of the evidence is viewed in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Furthermore, our review of the evidence in a neutral light does not indicate that the evidence supporting appellant=s guilt was so weak that the verdict was clearly wrong and manifestly unjust or that the evidence contrary to the verdict was so strong that the beyond-a-reasonable-doubt burden of proof could not have been met.  Accordingly, we conclude that the evidence supporting appellant=s conviction was both legally and factually sufficient.  Appellant=s first point of error is overruled.

                                                             Motion for New Trial

In his second point of error, appellant asserts that the trial court erred in denying his motion for new trial. An appellate court reviews a trial court=s denial of a motion for new trial under the Aabuse of discretion@ standard.  Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004); Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995).  We do not substitute our judgment for that of the trial court; but, rather we decide whether the trial court=s decision was arbitrary or unreasonable.  Id.  A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court=s ruling. Charles, 146 S.W.3d at 208.

Appellant alleged in his motion for new trial that the testimony by Officers Pope and Bruce at trial differed from testimony that they gave at a previous hearing.^[1]  Appellant contends that the officers= testimony differed in the following respects:

1. Officer Pope testified at trial that appellant Aappeared to be asleep@ when the officers entered the garage.  Appellant contends that this testimony is contradictory to Officer Pope=s testimony at the previous hearing wherein he testified that appellant definitely was asleep when the officers entered the garage.

2. Officer Bruce testified at trial that the strong odor of ammonia produced by a meth lab would prevent anyone from sleeping near it.  Officer Pope testified at the previous hearing that he found an Igloo cooler that had an odor of ammonia but that the cooler was located outside of the garage.  Officer Pope also testified at trial that the garage smelled of ether.

Our review of the record indicates that the trial court did not abuse its discretion in denying appellant=s motion for new trial.  Officer Pope acknowledged at trial that he may have previously testified that appellant was asleep.  With respect to the testimony regarding the odor of ammonia, Officer Pope also testified at trial about finding the cooler outside of the garage.  Thus, the jury essentially had the same testimony presented to it which appellant cites from the previous hearing.  Appellant had the opportunity to point out to the jury any perceived inconsistencies in the officers= testimony and it was within the jury=s province to resolve any inconsistencies.  Furthermore, the alleged inconsistencies which appellant raises appear to be inconsequential.  The distinction between being asleep and appearing to be asleep is a matter of semantics.  As for the Aodor@ testimony, both officers testified about the presence of strong odors whenever methamphetamine is manufactured, and they both indicated that the use of ammonia in the process is one of the sources of these odors.  Appellant=s second point of error is overruled.

                                                               This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

July 27, 2006

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.