ROBERT ALAN WARDLAW, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and Opinion filed July 24, 2008.
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00441-CR
No. 05-07-00442-CR
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ROBERT ALAN WARDLAW, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 336th District Court
Grayson County, Texas
Trial Court Cause Nos. 55207, 55210
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MEMORANDUM OPINION
Before Justices Moseley, Bridges, and Lang-Miers
Opinion By Justice Moseley
        A jury convicted Robert Alan Wardlaw of possession or transport of certain chemicals with intent to manufacture a controlled substance and of possession of a controlled substance, methamphetamine, in an amount of four grams or more but less than 200 grams. The trial court assessed punishment at five years' confinement in the intent to manufacture case and twelve years' confinement in the possession case. Wardlaw appeals, arguing the evidence is insufficient to support the convictions and that the trial court erred by allowing the State to call an undisclosed rebuttal witness.
        The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgments.
        In his first two issues, Wardlaw challenges the legal and factual sufficiency of the evidence supporting his convictions. We apply the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003) (legal sufficiency); see also Garza v. State, 213 S.W.3d 338, 344 (Tex. Crim. App. 2007) (factual sufficiency); Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (factual sufficiency); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (factual sufficiency); Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002) (appellate court measures sufficiency of evidence against hypothetically correct jury charge authorized by indictment).
        The State was required to prove beyond a reasonable doubt that Wardlaw possessed or transported certain chemicals with intent to manufacture a controlled substance. Tex. Health & Safety Code Ann. § 481.124 (Vernon Supp. 2007). The State was also required to prove beyond a reasonable doubt that Wardlaw knowingly possessed a controlled substance in an amount of four grams or more but less than 200 grams. Tex. Health & Safety Code Ann. § 481.115(d) (Vernon 2003). To do so, the State had to prove Wardlaw exercised actual care, control, or management over the drugs and knew they were contraband. See Taylor v. State, 106 S.W.3d 827, 830 (Tex. App.-Dallas 2003, no pet.). We review the sufficiency of the evidence linking Wardlaw to the contraband. Evans v. State, 202 S.W.3d 158, 161 n.9 (Tex. Crim. App. 2006). Possible links include: (1) whether the accused 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 accused; (4) whether the accused attempted to flee; (5) the amount of drugs found; and (6) whether the accused possessed weapons or a large amount of cash. See Porter v. State, 873 S.W.2d 729, 732 (Tex. App.-Dallas 1994, pet. ref'd).
        The record contains evidence that deputies from the Grayson County Sheriff's Department were looking for Wardlaw in connection with an outstanding misdemeanor warrant. On August 28, 2006, the deputies went to the house of Wardlaw's mother, Mary Wardlaw's (“Mary”) in an unmarked vehicle. They observed Wardlaw and another man walking away from a shop building behind the house. Wardlaw saw the deputies' vehicle and fled inside the house. The deputies pursued and found Wardlaw hiding in a bedroom closet. Wardlaw resisted arrest, fighting with one deputy, and had to be tased by another deputy. Some of Wardlaw's belongings, including his wallet, clothes, and adult magazines, were present in the bedroom.
        After contacting Mary and receiving her consent to search the premises, the deputies searched the shop and found numerous items associated with a methamphetamine lab, including hoses, jars, red phosphorous, iodine, pseudoephedrine (an ingredient of methamphetamine), matchbooks with strike plates torn off, and camp fuel. The deputies also found a jar in a microwave oven containing 131.36 grams of methamphetamine. Additionally, the deputies found a receipt in a box of trash with Wardlaw's name on it; the receipt was dated October 1, 1996-almost ten years before Mary bought the property.   See Footnote 1 
        The deputies also searched a storage room built onto a carport and found iodine crystals-another ingredient of methamphetamine. The storage room was locked with a padlock and both Wardlaw and Mary told the deputies they did not have a key to it.
        At trial, Mary testified the padlock was there when she bought the house. Both Mary and Wardlaw's son, Billy, who lives with Mary, testified Wardlaw lives with his girlfriend in Pottsboro and only visits Mary's home once or twice a week and did not have a key to the property. They also testified the previous owners left many items in the shop, including containers and rubber tires. Billy also testified the previous owners returned several times to retrieve their materials in the shop. However, one of the previous owners, Susan Lindsey, testified that: she and her husband only left behind things they could not use; they did not leave behind any of the items associated with the methamphetamine lab; and that the padlock on the storage room was not there when they sold the property.
        Wardlaw contends the evidence was legally and factually insufficient because he did not own the shop, there was no fingerprint evidence linking Wardlaw to the shop or the items in it, there was no evidence Wardlaw was intoxicated or had recently used methamphetamine, no contraband or paraphernalia for the consumption of contraband was found on Wardlaw's person, no odors or stains from creating methamphetamine were on Wardlaw's person or clothing, and Wardlaw did not make any incriminating remarks or gestures. Further, Wardlaw contends he fled the deputies because he did not want to be arrested for his outstanding misdemeanor warrant, not for these offenses.
        However, the absence of links connecting Wardlaw to the contraband does not make the evidence insufficient. Rather, it is the existence of links such as the deputies seeing Wardlaw walking away from the shop where the methamphetamine lab was, Wardlaw's flight from the deputies, and the receipt with Wardlaw's name on it found in the shop that make the evidence sufficient. See Edwards v. State, 178 S.W.3d 139, 144 (Tex. Crim. App.-Houston [1st Dist.] 2005) (probative value not in number of factors met, but in logical force of totality of factors).
        Having considered the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found all elements of both offenses beyond a reasonable doubt. Jackson, 443 U.S. at 319; Swearingen, 101 S.W.3d at 95. Further, after reviewing the evidence in a neutral light, we cannot say the evidence supporting the convictions is so obviously weak as to undermine confidence in the factfinder's determination or is greatly outweighed by contrary proof. See Garza, 213 S.W.3d 338 at 344; Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 414. We overrule Wardlaw's first two points of error.
        In his third issue, Wardlaw claims the trial court erred by allowing the State to call an undisclosed rebuttal witness. The State called Susan Lindsey, one of the previous owners of the home, to rebut Mary and Billy's testimony implying the previous owners possessed and manufactured drugs and left the methamphetamine lab on the property. Wardlaw objected based on the State's failure to disclose her has a witness, and the trial court overruled his objection.
        The decision to allow a witness who was not on the State's witness list to testify is a matter within the court's discretion. Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993); Stoker v. State, 788 S.W.2d 1, 15 (Tex. Crim. App. 1989). Among the factors a reviewing court considers in determining whether there has been an abuse of discretion are: (1) a showing of bad faith on the part of the prosecutor in failing to disclose the witness's name before trial; and (2) whether the defendant could have reasonably anticipated that the witness would testify, although his or her name was not included on the witness list. See Nobles v. State, 843 S.W.2d 503, 514-15 (Tex. Crim. App. 1992); Stoker, 788 S.W.2d at 15 (citing Hightower v. State, 629 S.W.2d 920, 925 (Tex. Crim. App. [Panel Op.] 1981)).
        Wardlaw contends the prosecutor acted in bad faith because, although the prosecutor spoke with Lindsey the night before Mary and Billy testified, he did not disclose that Lindsey may be a rebuttal witness until just before she was called. The record contains evidence that the prosecutor called Lindsey on the telephone for some information about the property Lindsey and her husband sold to Mary, such as when they moved out. There is no evidence the prosecutor intended at the time to use Lindsey as a rebuttal witness. He called Lindsey as a rebuttal witness the next day in response to Mary and Billy's testimony.
        Wardlaw also contends he had no reason to anticipate that Lindsey might be called as a witness to deny leaving a methamphetamine lab behind because no defense witness accused the previous owners of leaving behind a methamphetamine lab, only of leaving behind some trash and auto-parts. We reject Wardlaw's argument. While no defense witness directly accused the previous owners of leaving behind a methamphetamine lab, their testimony clearly implied that the items found in the shop, including those items used in manufacturing methamphetamine as well as the methamphetamine itself, had been left behind by the previous owners. Wardlaw should have reasonably anticipated that Lindsey might be called to rebut such an accusation.
        We conclude the trial court did not abuse its discretion in allowing the State to call Susan Lindsey as a rebuttal witness. See Martinez, 867 S.W.2d at 39. We overrule Wardlaw's third issue.
        We affirm the trial court's judgments.
        
 
 
 
 
 
 
 
 
 
        
 
 
 
 
 
JIM MOSELEY
 
 
 
        
 
 
 
 
 
JUSTICE
 
 
 
 
Do Not Publish
Tex. R. App. P. 47
070441F.U05
 
Footnote 1         Mary purchased the property on July 31, 2006 and moved into the house August 11, 2006