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Adkins v. State3/24/2003
llant's motion to suppress did not allege that appellant's statements that he owned the stick were obtained in violation of Miranda and article 38.22. During trial counsel's closing arguments at the suppression hearing and trial, he argued that one of the reasons appellant's arrest was illegal was because the officers did not give appellant Miranda warnings before appellant told them he owned the stick. But, he did not object at trial or during the hearing on the motion to suppress when the officers testified that appellant told them the stick was his. Consequently, we hold that appellant did not preserve this issue for our review. See Tex. R. App. P. 33.1(a)(1). We overrule appellant's third issue.
Legal Sufficiency
In his second issue, appellant complains that the trial court erroneously overruled his motion for directed verdict because the State failed to prove at trial that the arrest was valid. We have already held that the arrest was lawful; we therefore overrule appellant's second issue.
At oral argument, we granted appellant leave to file a supplemental brief further challenging the legal sufficiency of the evidence. In his supplemental brief, appellant complains that the evidence was legally insufficient to prove the drugs were in his possession and to tie the stick to the possession offense.
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), cert. denied, 507 U.S. 975 (1993). 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.), cert. denied, 522 U.S. 844 (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).
Appellant has been convicted of possession of a controlled substance. Possession is defined as actual care, custody, control, or management. Tex. Health & Safety Code Ann. § 481.002(38) (Vernon Supp. 2003). Possession may be proved by circumstantial evidence, as long as the evidence affirmatively links the accused to the offense such that it may be inferred that the defendant knew of the contraband's existence and exercised control over it. McQuarters v. State, 58 S.W.3d 250, 259 (Tex. App.--Fort Worth 2001, pet. ref'd). Evidence that is relevant to establish this "affirmative link" includes but is not limited to: (1) the defendant's presence when the contraband was discovered; (2) whether the contraband was in plain view; (3) the defendant's proximity to and the accessibility of the narcotics; (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 the 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 the driver of the automobile in which the contraband was found; (14) whether the defendant was found with a large am
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