RYAN SCOTT KERTZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion May 14, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00385-CR
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RYAN SCOTT KERTZ, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Court at Law No. 4
Collin County, Texas
Trial Court Cause No. 004-81735-06
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OPINION
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Wright
        Ryan Scott Kertz waived a jury and pleaded not guilty to possession of marijuana in an amount of two ounces or less. After finding appellant guilty, the trial court assessed punishment at sixty days' confinement in the county jail, probated for six months, and a $250 fine. In two points of error, appellant contends the evidence is legally and factually insufficient to support his conviction. We affirm the trial court's judgment.
Background
 
        Greg Wells, a police officer for the City of Parker, testified he observed a pickup truck speeding on eastbound Parker Road. Wells initiated a traffic stop and pulled the truck over. Justin Hayward was driving the truck and appellant was sitting in the front passenger seat. Wells observed that Hayward's eyes were “red, glassy, and dilated,” and he acted “very nervous.” Wells removed Hayward from the vehicle and asked if there was anything inside the truck. Hayward said there was nothing in the truck, and gave Wells consent to search the truck. Wells looked inside the truck and found a pill bottle in plain view standing up in a split in the front seat. The bottle contained a useable quantity of marijuana totaling .45 ounce. Wells asked Hayward if the marijuana was his. Hayward looked over at appellant but did not say anything. Wells arrested both Hayward and appellant. Wells put Hayward in his patrol car and appellant in a separate patrol car. When Wells questioned Hayward, Hayward said the marijuana belonged to appellant.
        Officer Michael McCandless testified he watched Wells search the truck and saw Wells find the pill bottle containing marijuana in the front seat of the truck. McCandless transported appellant to the jail. At the jail, McCandless obtained a written statement from appellant, which said, “[T]here had been a kid in the car earlier in the day that had marijuana.”
        Appellant did not present any witnesses at trial.
Applicable Law
 
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). The fact- finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
        In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S. Ct. 282 (2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
        The State was required to prove beyond a reasonable doubt that appellant knowingly or intentionally possessed a usable quantity of marijuana in an amount of two ounces or less. See Tex. Health & Safety Code Ann. § 481.121(a), (d) (Vernon 2003). To do so, the State had to prove appellant exercised actual care, control, or management over the marijuana and knew it was contraband. See Taylor v. State, 106 S.W.3d 827, 830 (Tex. App.-Dallas 2003, no pet.). The control over the contraband need not be exclusive, but can be jointly exercised by more than one person. See id. at 831. Links between appellant and the contraband must be established by either direct or circumstantial evidence. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). No set formula of facts exists to dictate a finding of links sufficient to support an inference of knowing possession. See Taylor, 106 S.W.3d at 830. It is the logical force of the evidence, and not the number of links, that supports a fact-finder's verdict. See Evans v. State, 202 S.W.3d 158, 166 (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 quantity 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).
Discussion
 
        Appellant argues the evidence is legally and factually insufficient because nothing links him to the marijuana found in the truck. Appellant asserts that he was only a passenger in the truck and did not know marijuana was in the vehicle. The State responds the evidence is legally and factually sufficient to support appellant's conviction.
        The evidence shows appellant was a passenger in a vehicle where the marijuana was found. The marijuana was inside a pill bottle that was in plain view in the front seat of the vehicle, within close proximity of and accessible to appellant. Hayward, who was driving the vehicle, told the police the marijuana belonged to appellant. Appellant's written statement showed he knew marijuana had been in the truck.
        As the fact finder in this case, it was the trial judge's role to reconcile any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). The fact finder may choose to believe or disbelieve all or any part of any witness's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex. App.-Dallas 1993, no pet.). We conclude the sum total of the evidence is sufficient to support a rational fact finder's finding beyond a reasonable doubt that appellant exercised actual care, custody, and control of less than two ounces of marijuana, and thus is legally and factually sufficient to support the conviction. See Watson, 204 S.W.3d at 415; Evans, 202 S.W.3d at 166; Lane, 151 S.W.3d at 191- 92. We overrule appellant's two points of error.
        We affirm the trial court's judgment.
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
070385F.U05