JUAN VASQUEZ ELIZALDE, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRMED; Opinion Filed July 21, 2008.

In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00043-CR
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JUAN VASQUEZ ELIZALDE, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court No. 6
Dallas County, Texas
Trial Court Cause No. F05-51008-X
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OPINION
Before Justices Morris, FitzGerald, and Lang
Opinion By Justice Lang
        Juan Vasquez Elizalde appeals the trial court's judgment convicting him of unlawful possession with intent to deliver methamphetamine in an amount of four hundred grams or more. The jury found Elizalde guilty and answered the question concerning the deadly weapon in the affirmative. The trial court assessed his punishment at twenty-six years of imprisonment and a $2,500 fine.
        Elizalde raises eight issues that argue three points: (1) he is entitled to written findings of fact on the voluntariness of his statement and a new trial if the trial judge is unavailable; (2) the trial court erred when it denied his motion to suppress because his statement was involuntary; and (3) the evidence is legally and factually insufficient to support the affirmative deadly weapon finding and his conviction.
        Initially, upon submission, we concluded the trial court was required by article 38.22, section 6, to enter findings of fact and conclusions of law regarding the voluntariness of Elizalde's statement. Then, we abated the appeal and ordered the trial court to file a supplemental clerk's record with those findings and conclusions. The trial court filed a supplemental clerk's record containing its findings of fact and conclusions of law. Also, we conclude the trial court did not err when it denied Elizalde's motion to suppress. Finally, we conclude the evidence is legally and factually sufficient to support the affirmative deadly weapon finding and Elizalde's conviction. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND

        In March 2005, while working undercover, Det. Barry Ragsdale received information from a confidential informant that methamphetamine was being trafficked from a house located at 5224 Parkland Avenue. Based on that information, he conducted surveillance and obtained a warrant to search for narcotics and guns. On March 29, 2005, at 5:00 p.m., the police executed the warrant. They yelled “police” in English and Spanish, knocked the door open, and deployed a flash-bang device. The device makes a loud noise and a bright flash to create a distraction so the occupants do not immediately pick up a weapon. When the police entered the house, two men, Elizalde and Augustine Plancarte a/k/a Angel, who were lying on two different couches, jumped up. Elizalde moved out of the way and Plancarte ran into the hallway. The police told the men to lie on the ground and they complied. No other individuals were found in the house.
        Elizalde and Plancarte were handcuffed and removed from the house. When the police searched Elizalde, they found a small plastic bag that contained cocaine in his pocket. Also, when the police searched Plancarte, they found the keys to the house and $1,802 in cash.         The police searched the house. In the kitchen, the police found: (1) bags used for packaging; (2) a sifter, a fork, and a glass containing drug residue; (3) scales; (4) a calculator; (5) “tin foil” containing 125 grams of a cutting agent; (6) a cookie box containing 438 grams of methamphetamine sitting on top of the refrigerator; and (8) a plastic bag containing 117 grams of methamphetamine in a kitchen cabinet on the second shelf. In bedroom number one, Plancarte's bedroom, the police found a loaded Barretta 9 millimeter handgun on the bed. In bedroom number three, Elizalde's bedroom, the police found: (1) on the top shelf of the closet, .27 grams of methamphetamine wrapped in “tin foil,” a loaded Jennings automatic .22 caliber handgun, and a loaded Excam .32 caliber firearm; (2) on the closet floor, a box containing old cell phones and 53 grams of methamphetamine; (3) on the bedroom floor, a black bag with drug residue and a scale inside, an additional scale, plastic bags containing .95 grams of methamphetamine inside a film cannister, and a school pencil bag with drug residue; (4) one wire transfer receipt sent by Plancarte to Eduardo Lopez Plancarte in Mexico; (5) three wire transfer receipts sent by Uriel Plancarte Chavez to Abel Plancarte Solorio in Mexico; (6) one wire transfer receipt sent by Elizalde to Abel Plancarte Solorio in Mexico; and (7) a spiral notebook that included notes regarding apparent drug transactions or a ledger of amounts owed or spent.
        At the police station, Det. Jose Fonseca, who is fluent in Spanish, interviewed Elizalde. He asked Elizalde if he knew why he was at the police station and Elizalde stated that he did. Fonseca read Elizalde the Miranda warnings in both English and Spanish. Elizalde indicated he understood the Miranda warnings and decided to waive his rights. Elizalde told Fonseca that he knew Plancarte for five to six months, lived with Plancarte for two and a half months, a controlled substance known as “ice” was in the house, he picked up drugs for Plancarte on two or three occasions, he was paid $100 to $300 depending on the shipment he picked up, and he picked up the “ice” from “el Chaparro.” Fonseca provided Elizalde with the voluntary statement form, which includes the Miranda warnings. After Fonseca explained the form to him, Elizalde agreed to provide a written statement. Elizalde handwrote his statement in Spanish and signed it.
II. WRITTEN FINDINGS ON VOLUNTARINESS

        Elizalde's first issue asserts that, because the trial court found his statement was made under voluntary conditions, the trial court erred when it failed to enter findings of fact as required by article 38.22, section 6, of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon 2005).   See Footnote 1 He contends these findings were mandatory and requests that the appeal be abated and the trial court ordered to enter the required findings of fact. In the alternative, if the trial judge is unavailable, Elizalde requests a new trial. The State's response cites a recent Texas Court of Criminal Appeals case, Cullen v. State, (Tex. Crim. App. 2006). The State contends Cullen directs us to proceed without the findings of fact because Elizalde failed to request the trial court to make findings of fact or state its findings on the record. See id. at 699-700. At the time of submission, we agreed with Elizalde and abated the case to secure findings of fact and conclusions of law. Those findings were made and included in a supplemental clerk's record in this case. However, because the State contested Elizalde's right to findings of fact and conclusions of law, we discuss the merits of his first issue to explain our reason for abating the case and requesting the trial court's findings of fact.
        We disagree with the State's argument that Cullen directs us to proceed without findings. Cullen does not apply to this case, nor does it change the clear requirements of article 38.22, section 6. In Cullen, the Texas Court of Criminal Appeals reviewed “whether, upon granting a defendant's motion to suppress evidence, a trial court must grant a timely request for findings of fact.” Id. at 696 (emphasis added). The Texas Court of Criminal Appeals created a new “requirement” that a trial court must grant a timely request for findings of fact by the losing party on a motion to suppress evidence. Id. at 699. This “requirement” was not based on an existing statute or court rule that required findings by the trial court, but rather was created for “the efficient administration of justice.” See Cullen, 195 S.W.3d at 699. In contrast, the express language of article 38.22, section 6, requires the trial court to make findings of fact, regardless of whether the defendant requests the findings, when the trial court has denied the defendant's motion to suppress because the trial court found his statement was made under voluntary conditions. See Tex. Code Crim. Proc. Ann. art. 38.22, § 6.
        Because the trial court denied Elizalde's motion to suppress his allegedly involuntarily made statement, article 38.22, section 6, requires findings to be made by the trial court. Urias v. State, , 142 (Tex. Crim. App. 2004); Green v. State, , 938-39 (Tex. Crim. App. 1995). Elizalde's first issue is decided in his favor.
III. MOTION TO SUPPRESS

        In issues two and three, Elizalde argues the trial court erred when it denied his motion to suppress. He argues his statement was involuntary and therefore, inadmissible because he was still in shock from the use of the flash-bang device and Fonseca promised to give him favorable treatment if he confessed. Elizalde asserts Fonseca, in his testimony, never specifically refuted that Elizalde was still in shock and stated he was “not sure” if Elizalde was still dazed after his arrest. The State responds that the evidence shows Elizalde was lucid, advised of his Miranda rights in both English and Spanish before he gave his statement, handwrote his statement, and Fonseca denied making any promises to Elizalde.
A. Standard of Review

        A bifurcated standard of review is applied to a trial court's ruling on a motion to suppress evidence. See St. George v. State, , 725 (Tex. Crim. App. 2007). This standard of review gives almost total deference to a trial court's determination of historical facts and applies a de novo review of a trial court's application of the law to those facts. See St. George, 237 S.W.3d at 725; Guzman v. State, , 89 (Tex. Crim. App. 1997). A trial court is the sole trier of fact, the judge of witness credibility, and the determiner of the weight given to witness testimony. See St. George, 237 S.W.3d at 725; State v. Ross, , 855 (Tex. Crim. App. 2000). An appellate court reviews the record to determine whether the trial court's ruling is supported by the record and correct under some theory of law applicable to the case. See St. George, 237 S.W.3d at 725; Armendariz v. State, , 404 (Tex. Crim. App. 2003).
B. Applicable Law

        Article 38.21 of the Texas Code of Criminal Procedure provides that a defendant's statement may be used against him “if it appears that the same was freely and voluntarily made without compulsion or persuasion.” See Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005); Martinez v. State, , 794 (Tex. Crim. App. 2004). Article 38.22, section 2(b), specifies that no statement made by a defendant as a result of custodial interrogation may be admissible unless: (a) the written statement shows the defendant received certain admonishments; and (b) the defendant, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived those rights. Tex. Code Crim. Proc. Ann. art. 38.22, §§ 2(a), (b). The determination of whether a statement is voluntary is based on an examination of the totality of the circumstances surrounding its acquisition. See Delao v. State, , 239 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 1128 (2008); Wyatt v. State, , 23 (Tex. Crim. App. 2000); Creager v. State, , 855 (Tex. Crim. App. 1997).
        A statement may be deemed “involuntary” under three different theories: (1) failure to comply with article 38.22; (2) failure to comply with the dictates of Miranda; or (3) failure to comply with due process or due course of law because the statement was not freely given as a result of coercion, improper influences, or incompetency. Wolfe v. State, , 282 (Tex. Crim. App. 1996). Ordinarily, proof of proper warnings preceding the written statement and a defendant's willingness to waive his rights following those warnings should suffice to meet the State's burden on the issue of voluntariness. Griffin v. State, , 430 (Tex. Crim. App. 1989).
C. Application of the Law to the Facts

        The trial court conducted a pretrial hearing on Elizalde's motion to suppress his statement and denied the motion. Pursuant to article 38.22, section 6, of the Texas Code of Criminal Procedure, the trial court signed a written order stating its findings of fact to support its conclusion that Elizalde's statement was voluntary: (1) Elizalde stated he understood his rights, voluntarily waived his right to remain silent, and agreed to answer questions; (2) no promises were made to Elizalde to obtain his cooperation or statement; (3) no deals were made with Elizalde to obtain his statement; (4) after giving his oral statement, Elizalde voluntarily agreed to give a written statement; (5) Fonseca advised Elizalde of his rights, in Spanish, a second time, and had Elizalde read the Miranda warning, which was written in Spanish; (6) Elizalde wrote his statement in Spanish and signed it, and detectives Fonseca and Colon also signed Elizalde's written statement; (7) during the time that Elizalde made his statement, he did not request the presence of or to speak with an attorney; and (8) during the time that Elizalde made his statement, he did not assert his right to remain silent or ask to terminate the interview.
        After reviewing the record, in accordance with the applicable standard, we conclude the trial court did not abuse its discretion because the evidence supports the trial court's factual rendition. Although Elizalde introduced evidence that conflicted with the State's evidence, the trial court found his evidence was not credible. Accordingly, we conclude the trial court did not err when it denied Elizalde's motion to suppress and admitted his statement into evidence.
        Issue two is decided against Elizalde.
IV. SUFFICIENCY OF THE EVIDENCE

        In issues four and five, Elizalde argues the evidence is legally and factually insufficient to support the affirmative deadly weapon finding. In issues six through eight, he argues the evidence is legally and factually insufficient to support his conviction because it is insufficient to: (1) demonstrate the chain of custody for the methamphetamine was maintained; and (2) link him to the methamphetamine.
A. Standards of Review

        Differences exist between a legal sufficiency and factual sufficiency review of the evidence. Johnson v. State, , 7 (Tex. Crim. App. 2000); Lee v. State, 186 S.W.3d 649, 654 (Tex. App.-Dallas 2006, pet. ref'd). However, a factual sufficiency review is barely distinguishable from a legal sufficiency review. Rollerson v. State, , 724 (Tex. Crim. App. 2007); Marshall v. State, , 625 (Tex. Crim. App. 2006), cert. denied 128 S. Ct. 87 (2007). The primary difference between the two standards is that a legal sufficiency review requires an appellate court to defer to the jury's credibility and weight determinations while a factual sufficiency review permits the appellate court to substitute its judgment for the jury on these questions, albeit to a very limited degree. See Rollerson, 227 S.W.3d at 724; Marshall, 210 S.W.3d at 625.
1. Legal Sufficiency

        The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, , 318-19 (1979); Rollerson, 227 S.W.3d at 724; Hooper v. State, , 13 (Tex. Crim. App. 2007); Lane v. State, , 191-92 (Tex. Crim. App. 2004); Young v. State, , 753 (Tex. Crim. App. 2000). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. See Marshall, 210 S.W.3d at 625; King v. State, , 562 (Tex. Crim. App. 2000). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, , 647 (Tex. Crim. App. 1996). In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, , 917 (Tex. Crim. App. 2000). Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, , 41-42 (1988); Marshall, 210 S.W.3d at 625; Chaddock v. State, 203 S.W.3d 916, 920 (Tex. Crim. App. 2006); Moff v. State, , 488 (Tex. Crim. App. 2004); Johnson v. State, , 411 (Tex. Crim. App. 1998).

2. Factual Sufficiency

        In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Roberts v. State, , 524 (Tex. Crim. App. 2007), cert. denied 128 S. Ct. 282 (2007); Watson v. State, , 415 (Tex. Crim. App. 2006). Evidence that is legally sufficient to support a verdict of guilt may still be factually insufficient when the verdict seems clearly wrong or manifestly unjust, or it is against the great weight and preponderance of the evidence. See Berry v. State, , 854 (Tex. Crim. App. 2007); Rollerson, 227 S.W.3d at 724; Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 417.
        When conducting a factual sufficiency review, an appellate court considers all of the evidence, both direct and circumstantial, whether properly or improperly admitted. See Berry, 233 S.W.3d at 854; Marshall, 210 S.W.3d at 625; see also King, 29 S.W.3d at 565; Kutzner v. State, , 184 (Tex. Crim. App. 1999); Obigbo v. State, 6 S.W.3d 299, 304 (Tex. App.-Dallas 1999, no pet.); Morales v. State, 95 S.W.3d 561, 563 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd). Also, an appellate court gives due deference to the findings of the fact-finder, but the appellate court may substitute its judgment for the jury's credibility and weight determinations to a very limited degree. See Roberts, 220 S.W.3d at 524; Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 416-17; see also Johnson, 23 S.W.3d at 9 (factual sufficiency review requires reviewing court to afford “due deference” to jury's determinations); Clewis v. State, , 135 (Tex. Crim. App. 1996) (factual sufficiency review requires “deferential standards of review applied” to jury verdicts). However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, , 287 (Tex. Crim. App. 2001); Lee, 186 S.W.3d at 655. An appellate court cannot declare a conflict in the evidence justifies a new trial simply because it disagrees with the jury's resolution of that conflict. See Watson, 204 S.W.3d at 417. An appellate court must give deference to a jury's decision regarding what weight to give contradictory testimonial evidence because the decision is most likely based on an evaluation of credibility and demeanor, which the jury is in a better position to judge. Lancon, 253 S.W.3d at 706.         Reversal for factual insufficiency occurs only when: (1) the evidence supporting the verdict is so weak the verdict seems clearly wrong and manifestly unjust; or (2) there is some objective basis in the record that shows the great weight and preponderance of the evidence contradict the jury's verdict. See Berry, 233 S.W.3d at 854; Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417; see also Vasquez v. State, , 236 (Tex. Crim. App. 2002); Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129. A clearly wrong and unjust verdict occurs when the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Berry, 233 S.W.3d at 854.
B. Deadly Weapon Finding

        In issues four and five, Elizalde argues the evidence is legally and factually insufficient to support the affirmative deadly weapon finding. He argues the State's witnesses conceded there was no evidence Elizalde handled the guns found in the house or that he owned them, the jury was not charged on party liability with respect to the deadly weapon finding, and the only connection between Elizalde and the two guns found in the closet of bedroom number three was a wire transfer receipt with his name on it. The State responds that the guns were loaded and ready for immediate use, two of the guns were found in the closet of bedroom number three where methamphetamine and scales were also found, the guns were not locked-up or concealed, but were accessible, there was no evidence of a purpose for the guns other than intimidation and protection during drug transactions, and guns are commonly used by drug traffickers. Although Elizalde claimed bedroom number three belonged to Plancarte's brother and he slept in the living room on the sofa or an air mattress, the State argues a wire transfer with Elizalde's name on it was found in bedroom number three, the sofa was two chairs pushed together with arm rests in the middle, which would prevent an individual from lying down, and there was no evidence of a mattress, pillows, blankets, or other bedding in the living room.
1. Applicable Law

        A deadly weapon finding may be made if a defendant used or exhibited a deadly weapon or he was a party to the offense and knew that a deadly weapon would be used or exhibited. Tex. Code Crim. Proc. art. 42.12 § 3g(a)(2) (Vernon Supp. 2007). The phrase “used . . . a deadly weapon” during the commission of the offense means only that the deadly weapon was employed or utilized in order to achieve its purpose. Id. art. 42.12, § 3g(a)(2); see Patterson v. State, , 941 (Tex. Crim. App. 1989); Smith v. State, 176 S.W.3d 907, 919 (Tex. App.-Dallas 2005). A deadly weapon may be “used” even if it is merely possessed, if that possession facilitates the associated felony offense. See Patterson, 769 S.W.2d at 941; Smith, 176 S.W.3d at 919. Ownership is not necessary to a finding that a person used a deadly weapon in violation of article 42.12, section 3g. Smith, 176 S.W.3d at 919; Dimas v. State, 987 S.W.2d 152, 155 (Tex. App.-Fort Worth 1999, pet. ref'd).
        A deadly weapon finding does not alter the sentence that may be imposed, but does affect a defendant's eligibility for community supervision. Ex parte Huskins, , 820 (Tex. Crim. App. 2005). A deadly weapon is anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Penal Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2007). Also, a deadly weapon means a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury. Id. § 1.07(a)(17)(A).
        If a court of appeals determines the State failed to show a defendant used a deadly weapon in the commission of an offense, the court of appeals may delete the deadly weapon finding. See Drichas v. State, , 798 (Tex. Crim. App. 2006).
2. Application of the Law to the Facts

        Viewing the evidence in the light most favorable to the verdict, there is sufficient evidence to support the affirmative deadly weapon finding. Elizalde and Plancarte were at the house when the police executed the search warrant. In bedroom number three, the police found: (1) on the top shelf of the closet, .27 grams of methamphetamine wrapped in “tin foil,” a loaded Jennings automatic .22 caliber handgun, and a loaded Excam .32 caliber firearm; (2) on the closet floor, a box containing old cell phones and 53 grams of methamphetamine; (3) on the bedroom floor, a black bag with drug residue and a scale inside, an additional scale, a plastic bags containing .95 grams of methamphetamine inside a film cannister, and a school pencil bag with drug residue; (4) one wire transfer receipt sent by Plancarte to Eduardo Lopez Plancarte in Mexico; (5) three wire transfer receipts sent by Uriel Plancarte Chavez to Abel Plancarte Solorio in Mexico; (6) one wire transfer receipt sent by Elizalde to Abel Plancarte Solorio in Mexico; and (7) a spiral notebook that appeared to be notes regarding drug transactions or a ledger of amounts owed or spent.
        Viewing the evidence in a neutral light, we conclude there is sufficient evidence to support the affirmative deadly weapon finding. The great weight and preponderance of the evidence do not contradict the jury's verdict.
        After reviewing all of the evidence under the appropriate standards of review, we conclude the evidence is legally and factually sufficient to support the affirmative deadly weapon finding. Issues four and five are decided against Elizalde.
C. Substance Tested by the Laboratory

        In issues six and seven, Elizalde argues the evidence is legally and factually insufficient to support his conviction because the chain of custody for the methamphetamine was not maintained. He claims the evidence failed to demonstrate the substance tested by the laboratory was the same substance seized by the police and admitted into evidence because: (1) Ragsdale did not deliver the substances to the laboratory or refer to the tag numbers identifying the substances; and (2) Monica Lopez, the laboratory analysts' supervisor, did not conduct the tests or review the analysts' reports, and did not correlate the reports with the substances admitted into evidence. The State responds that the forensic lab numbers on the methamphetamine corresponded with the lab numbers on the analysts' lab reports, which were also admitted into evidence, and the tag numbers referenced in the lab reports are internal police identification numbers that are not used by the laboratory.
1. Applicable Law

        Authentication of physical evidence requires identification by “evidence sufficient to support a finding that the matter in question is what its proponent claims.” Tex. R. Evid. 901(a). Evidence should be admitted if the trial court finds a reasonable juror could find the evidence was authenticated. Pondexter v. State, , 586 (Tex. Crim. App. 1996). It is within the trial court's discretion to determine the sufficiency of a predicate. Smith v. State, , 405 (Tex. Crim. App. 1984). Once the proponent of the evidence meets the threshold requirement of presenting testimony that the evidence is what the proponent says it is, the weight given to the evidence and related testimony is within the province of the trier of fact. See Davis v. State, 992 S.W.2d 8, 11-12 (Tex. App.-Houston [1st Dist.] 1996, no pet.).
        Proof of the chain of custody goes to the weight of the evidence, rather than its admissibility. See Lagrone v. State, , 617 (Tex. Crim. App. 1997). When the evidence shows the chain of custody of an alleged controlled substance is intact up until its identity is ascertained in the laboratory, any objection to the chain of custody goes to the weight of the evidence, rather than its admissibility. Wright v. State, 853 S.W.2d 154, 156 (Tex. App.-Corpus Christi 1993, pet. ref'd). Also, when the State shows the beginning and the end of the chain of custody, any gaps in between go to the weight of the evidence rather than admissibility, particularly if the chain of custody through the laboratory is shown. See Foster v. State, 101 S.W.3d 490, 489 (Tex. App.-Houston [1st Dist.] 2002, no pet.). Juries trump both trial and appellate judges on weight-of-evidence determinations. See Evans v. State, , 164 (Tex. Crim. App. 2006) (discussing sufficiency of evidence to link appellant to drugs); see also Lancon, 235 S.W.3d at 706 (appellate court must give deference to jury's decision regarding what weight to give contradictory testimonial evidence).
2. Application of the Law to the Facts

        Elizalde does not argue on appeal the trial court abused its discretion when it determined the evidence of the chain of custody was sufficient to support the evidentiary predicate or when it admitted the evidence. The record shows Elizalde objected only to the admission of the methamphetamine on the basis of relevance. The trial court overruled the objection and admitted the evidence. When conducting a legal and factual sufficiency review, we must consider all of the evidence, whether properly or improperly admitted. See Chaddock, 203 S.W.3d at 920; Moff, 131 S.W.3d at 488; Obigbo, 6 S.W.3d at 304; Morales, 95 S.W.3d at 563.
        Viewing the evidence in the light most favorable to the verdict, there was sufficient evidence to demonstrate the methamphetamine tested by the laboratory was the same substance seized by the police and admitted into evidence, showing the chain of custody for the methamphetamine was maintained. Ragsdale stated the substances seized were placed into evidence bags, which were heat sealed and labeled to indicate the contents of the bag, where the contents were found in the house, and the address where the contents were found. He stated the State's exhibits were the evidence bags containing the substances seized during the execution of the search warrant. Also, Ragsdale stated he delivered the evidence bags containing the substances seized “into evidence.” The lab reports show the evidence bags were delivered from the Dallas Police Department to the laboratory by “Roberts/Valdez” and received by “Rosie Brewer.”         Lopez testified about the standard procedure in the laboratory. An evidence bag usually arrives at the laboratory in a heat-sealed bag. The evidence registrar inspects the seal, initials the evidence bag to indicate it was sealed when received, writes a forensic lab number on it, and logs the information into the laboratory computer system. Then, the evidence registrar places the evidence bags in the vault. When an analyst receives an evidence bag, he checks the seal to ensure it is intact, records the contents of the evidence bag, and analyzes the contents. After the contents of the evidence bag are analyzed, the analyst places it back in the evidence bag, seals it, initials the seal, and returns it to the evidence registrar. The analyst prepares a lab report that is reviewed by a supervisor who checks the analyst's notes and calculations to ensure accuracy.
        The lab reports show the substances seized were analyzed by Andrew Moore and Jennifer Hight, and were determined to be methamphetamine. Anne Weaver reviewed the reports, but Lopez, who is also a supervisor, stated she reviewed the reports before coming to court.
        Each evidence bag admitted into evidence had a lab number that corresponded to a lab report that was also admitted into evidence. Further, in his statement, Elizalde admitted he picked up drugs for Plancarte and delivered money to “el Chaparro,” and stated he did not sleep well the night before because he knew there were drugs in the house, so he was napping when the police arrived. However, he denied knowing the amount of drugs.
        Viewing the evidence in a neutral light, we conclude there is sufficient evidence from which a fact-finder could rationally conclude beyond a reasonable doubt the controlled substances tested by the laboratory were the same substances seized by the police and admitted into evidence. The great weight and preponderance of the evidence do not contradict the jury's verdict.
        After reviewing all of the evidence under the appropriate standards of review, we conclude the evidence is legally and factually sufficient to support Elizalde's conviction because there was sufficient evidence the chain of custody was maintained. Issues six and seven are decided against Elizalde.

D. Sufficiency of Evidence to Link Elizalde to the Methamphetamine

        In issue eight, Elizalde argues the evidence is factually insufficient to link him to the methamphetamine. He argues his fingerprint was put on the glass before it was used to handle the methamphetamine, the cocaine found in his pocket was not his as he had borrowed the pants from another man, the State did not prove the substance found in his pocket was cocaine, and his statement was induced by a promise and contradicts the other evidence. The State responds that Elizalde is linked to the methamphetamine by his statement, his fingerprint on the glass with drug residue, a wire transfer receipt with his name on it in bedroom number three where methamphetamine and scales were found, and his possession of cocaine when he was arrested.
1. Applicable Law

        The Texas Controlled Substances Act provides that a person commits an offense if the person knowingly or intentionally possesses methamphetamine with the intent to deliver. See Tex. Health & Safety Code Ann. §§ 481.102(6), 481.112(a) (Vernon 2003 & Supp. 2007). The term “possession” means actual care, custody, control, or management. Id.§ 481.002(38) (Vernon Supp. 2007). The State must prove the accused: (1) exercised actual care, custody, control, or management over the substance; and (2) knew the substance possessed was contraband. See Evans, 302 S.W.3d at 161; Poindexter v. State, , 405 (Tex. Crim. App. 2005). Whether direct or circumstantial, the evidence must establish the defendant's connection with the controlled substance was more than just fortuitous. See Evans, 302 S.W.3d at 161; Poindexter, 153 S.W.3d at 405. Mere presence at the location where the controlled substance was found is insufficient, by itself, to establish possession. See Evans, 302 S.W.3d at 162.         Control over a controlled substance need not be exclusive, but can be jointly exercised by more than one person. See McGoldrick v. State, , 578 (Tex. Crim. App. 1985); Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.-Dallas 2003, no pet.). If the defendant was not in exclusive possession of the controlled substance, the State is required to present evidence linking him to it. See Taylor, 106 S.W.3d at 830-31.
        When determining whether sufficient evidence exists to link a defendant to the contraband, an appellate court considers a variety of facts, including: (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 controlled substance; (4) whether the defendant was under the influence of a controlled substance when arrested; (5) whether the defendant possessed other contraband or controlled substances 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 controlled substance was found; (12) whether the place where the controlled substance was 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. See Evans, 202 S.W.3d at 162 n.12. However, these are just factors which may circumstantially establish the sufficiency of the evidence to prove a knowing “possession.” See id. These factors are not a litmus test. See id. The number of links is less important than the “logical force” or degree to which the links, alone or in combination, tend to link the defendant to the controlled substance. See id. at 162; Taylor, 106 S.W.3d at 830. A defendant can be linked to a controlled substance when the controlled substance is hidden in a place tied to the defendant. See Poindexter, 153 S.W.3d at 409 n.24.
2. Application of the Law to the Facts

        Viewing the evidence in a neutral light, we conclude there is sufficient evidence from which a fact-finder could rationally conclude beyond a reasonable doubt Elizalde knowingly possessed methamphetamine. In his written statement, Elizalde stated he lived in Plancarte's house for approximately one and a half months. He admitted picking up drugs with “el Chaparro” on three or four occasions, and picking up drugs for Plancarte and delivering money to “el Chaparro.” Also, he stated he was involved in these activities for three or four months and he was paid for these activities, but denied knowing the amount of the drugs involved. Further, he admitted that on March 29, he was going to deliver drugs, but the police arrived. He stated he was sleeping when the police arrived because he had not slept well the previous night, knowing drugs were in the house.
        Ragsdale stated he received information from a confidential informant in March 2005 that methamphetamine was being trafficked from a house located at 5224 Parkland Avenue. Based on that information, he conducted surveillance and obtained a warrant to search for narcotics. When the police executed the warrant, they found Elizalde and Plancarte in the house. The police found methamphetamine and scales in the closet of bedroom number three, where they also found a receipt with Elizalde's name on it. In the kitchen, they found methamphetamine, bags, a sifter, an electronic scale, a calculator, 438 grams of methamphetamine in a cookie box, and a cutting agent, indicating the methamphetamine was being packaged for resale. Also, in the kitchen, the police found a drinking glass with drug residue that had Elizalde's fingerprint on it. Further, when the police arrested Elizalde, they found a small plastic bag of cocaine in his pocket.   See Footnote 2
        After reviewing all of the evidence under the appropriate standard of review, we conclude the evidence is factually sufficient to support Elizalde's conviction because there was sufficient evidence to link Elizalde to the methamphetamine. Issue eight is decided against Elizalde.
V. CONCLUSION

        The trial court was required by article 38.22, section 6, to enter findings of fact and conclusions of law regarding the voluntariness of Elizalde's statement. This appeal was abated and the trial court was ordered to file a supplemental clerk's record with those findings and conclusions. The trial court filed a supplemental clerk's record containing its findings of fact and conclusions of law. The trial court did not err when it denied Elizalde's motion to suppress. Also, the evidence is legally and factually sufficient to support the affirmative deadly weapon finding and Elizalde's conviction.
        The trial court's judgment is affirmed.


                                                          DOUGLAS S. LANG
                                                          JUSTICE

Do Not Publish
Tex. R. App. P. 47
070043F.U05

Footnote 1 Article 38.22, section 6, of the Texas Code of Criminal Procedure provides:

In all cases where a question is raised as to the voluntariness of a statement of an accused, the court must make an independent finding in the absence of the jury as to whether the statement was made under voluntary conditions. If the statement has been found to have been voluntarily made and held admissible as a matter of law and fact by the court in a hearing in the absence of a jury, the court must enter an order stating its conclusion as to whether or not the statement was voluntarily made, along with the specific finding of facts upon which the conclusion was based, which order shall be filed among the papers of the cause.

Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (emphasis added).
Footnote 2 Elizalde did not object to Ragsdale's testimony that the small plastic bag found in Elizalde's pocket contained cocaine.

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