                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-17-00257-CR


DAVID NEIL HARPER                                                 APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE

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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
                   TRIAL COURT NO. 1477941D

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                       MEMORANDUM OPINION1

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      Appellant David Neil Harper appeals from a judgment convicting him of

possession of less than one gram of methamphetamine and sentencing him to

three years’ confinement upon his plea of true to an enhancement allegation. In

three points, Harper challenges the sufficiency of the evidence to support his




      1
      See Tex. R. App. P. 47.4.
conviction and the trial court’s rulings denying his motion to suppress evidence

and his requested charge instruction. We will affirm.

      Deputy Jeff Tindel of the Tarrant County Sheriff’s Office narcotics unit was

on patrol in West Fort Worth on November 21, 2016, at around 9:00 p.m. when

he noticed a vehicle—later determined to be driven by Harper and occupied by a

single female passenger—with a defective headlight. Deputy Tindel stopped the

vehicle and noticed during the ensuing investigation that Harper was acting

nervous: he attempted to exit the vehicle without being asked to do so, he said

that the vehicle belonged to a friend, he claimed that he was headed to the

hospital after first stopping at a game room, and he gave nonresponsive answers

to Deputy Tindel’s questions. When Deputy Tindel asked Harper to exit the

vehicle, contrary to instructions, Harper put his hand in his pocket, prompting

Deputy Tindel to pat down Harper and to discover a syringe in his back pocket.

Harper said that he was diabetic and that a retired prostitute had thrown the

hernandezmark@example.org. Officer Tindel did not observe the female passenger make any

furtive movements while he was speaking with Harper.

      Around this time, one of several other law-enforcement officers who had

arrived on the scene observed a marijuana pipe in plain view in Harper’s vehicle.

A search of the vehicle uncovered a toiletry bag on the floorboard near the

driver’s seat, a soda can in the center console, a digital scale, and two unused

syringes in a backpack that belonged to the female passenger. The toiletry bag

contained men’s products and syringes, including one that was loaded with a


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clear liquid and one that was loaded with a red liquid, and the can contained a

small Ziploc-style bag with a crystal-like substance in it.     Subsequent testing

confirmed that the two syringes and the small plastic bag contained

methamphetamine.        Police arrested Harper for possessing a controlled

substance and the passenger for an outstanding warrant.

      In his first point, Harper argues that the evidence was legally insufficient to

show that he possessed the methamphetamine found in the vehicle.

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

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, 319, 99 S. Ct. 2781, 2789 (1979); Jenkins v. State, 493 S.W.3d 583, 599

(Tex. Crim. App. 2016). 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, 443 U.S.

at 319, 99 S. Ct. at 2789; Jenkins, 493 hernandezmark@example.org.

      The State had to prove that Harper intentionally or knowingly “possesse[d]”

the methamphetamine. See Tex. Health & Safety Code Ann. § 481.115(a) (West

2017). “Possession” means that the accused exercised “actual care, custody,

control, or management” over the substance.              Tex. Penal Code Ann.

§ 1.07(a)(39) (West Supp. 2017). Although mere presence at the location where

drugs are found is, by itself, insufficient to establish possession, when combined

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with other evidence, either direct or circumstantial, presence or proximity may

become sufficient to establish guilt beyond a reasonable doubt. Evans v. State,

202 S.W.3d 158, 161–62 (Tex. Crim. App. 2006).             Relevant factors and

circumstances may link the accused to the contraband, permitting the factfinder

to justifiably conclude that the accused knowingly possessed it.2 Olivarez v.

State, 171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.). It is

not the number of factors present but the “logical force” they create to prove the

crime was committed. Id. (citing Gilbert v. State, 874 S.W.2d 290, 298 (Tex.

App.—Houston [1st Dist.] 1994, pet. ref’d)).

      Multiple factors link Harper to the methamphetamine found in the vehicle

and provide sufficient logical force for the jury to have concluded beyond a

reasonable doubt that Harper possessed the methamphetamine. Specifically,

the drugs were found in close proximity to where Harper was seated and were

easily accessible by him; the toiletry bag contained men’s products, and unlike


      2
        Those factors include the following: the defendant’s presence when a
search is conducted, whether the contraband was in plain view, the defendant’s
proximity to and the accessibility of the narcotic, whether the defendant was
under the influence of narcotics when arrested, whether the defendant
possessed other contraband or narcotics when arrested, whether the defendant
made incriminating statements when arrested, whether the defendant attempted
to flee, whether the defendant made furtive gestures, whether there was an odor
of contraband, whether other contraband or drug paraphernalia were present,
whether the defendant owned or had the right to possess the place where the
drugs were found, whether the place where the drugs were found was enclosed,
whether the defendant was found with a large amount of cash, and whether the
conduct of the defendant indicated a consciousness of guilt. Valentin v. State,
No. 02-14-00474-CR, 2015 WL 5297585, at *2 (Tex. App.—Fort Worth Sept. 10,
2015, no pet.) (mem. op., not designated for publication).

                                        4
the passenger in the vehicle, Harper is a male; the syringe found in Harper’s

back pocket matched the syringes in the toiletry bag; Harper exhibited behavior

that was consistent with someone who had used methamphetamine, the same

drug discovered in the vehicle; and a marijuana pipe was found in the vehicle.

      Harper stresses certain facts that do not link him to the drugs—he did not

own the car, the toiletry bag was not in plain view, another person was in the

vehicle with him—but the absence of facts and circumstances is not evidence of

innocence to be weighed against evidence connecting Harper to the contraband.

See Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App. 1976). Rather,

the   question    is    whether   sufficient   evidence   linked   Harper   to   the

methamphetamine to support the reasonable inference that he knowingly

possessed it. See id.

      Harper also likens the facts here to a case in which the court of appeals

concluded that insufficient evidence supported the appellant’s conviction for

unlawfully possessing a firearm, Harris v. State, 532 S.W.3d 524 (Tex. App.—

San Antonio 2017, no pet.), but unlike the facts in this case, and as the court in

Harris clarified, “the evidence relied on by the State—other than the location of

the firearm—was not the type of evidence relied on by courts to affirmatively link

a defendant to a firearm or was nothing more than speculation from which a jury

could not make a rational inference of possession.” Id. at 531. We overrule

Harper’s first point.




                                          5
      After the State rested, the trial court denied Harper’s motion to suppress

the evidence discovered during the vehicle search, finding that police had

probable cause to conduct the search after a police officer observed a marijuana

pipe inside.   Harper argues in his second issue that the trial court erred by

denying his motion to suppress because the officers lacked probable cause to

conduct the search.

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.    Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV. A search conducted

without a warrant is per se unreasonable unless it falls within one of the

“specifically defined and well established” exceptions to the warrant requirement.

McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App.), cert. denied, 540 U.S.
1004 (2003); see Best v. State, 118 S.W.3d 857, 862 (Tex. App.—Fort Worth

2003, no pet.). The automobile exception to the warrant requirement permits


                                         6
police officers to conduct a warrantless search of a vehicle if it is “readily mobile

and there is probable cause to believe that it contains contraband.” Keehn v.

State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009). Probable cause to search

exists when reasonably trustworthy facts and circumstances within the

knowledge of the officer on the scene would lead a man of reasonable prudence

to believe that an instrumentality or evidence of a crime will be found. Gutierrez

v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). An officer’s observation

of contraband or evidence of a crime in plain view inside an automobile can

establish probable cause to conduct a warrantless search of the vehicle. Barnes

v. State, 424 S.W.3d 218, 224‒25 (Tex. App.—Amarillo 2014, no pet.); Stephens

v. State, No. 09-10-00488-CR, 2011 WL 2732253, at *2‒3 (Tex. App.—

Beaumont July 13, 2011, no pet.) (mem. op., not designated for publication).

      Deputy Tindel testified that he did not begin the search until after another

police officer had discovered a marijuana pipe in plain view in the vehicle.

Officers consequently had probable cause to conduct a warrantless search of the

vehicle pursuant to the automobile exception. See Keehn, 279 S.W.3d at 335;

Barnes, 424 S.W.3d at 224–25; see also Tex. Health & Safety Code Ann.

§ 481.125(a) (West 2017) (criminalizing possession of drug paraphernalia).

      Harper nevertheless argues that the search was illegal because Deputy

Tindel never saw where the pipe was found in plain view by the other officer, but

in making his probable-cause determination, Deputy Tindel was entitled to rely

on the information conveyed by the other, reasonably trustworthy officer. See


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Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (“Known facts and

circumstances include those personally known to law enforcement officers or

those derived from a ‘reasonably trustworthy’ source.”). Harper also contends

that Deputy Tindel’s dashcam video appears to show that the search began

before the pipe was found, but the video plainly shows that the police did not

begin the search until after they had located an object resembling the pipe that

was later admitted into evidence and the female passenger and dog had been

removed from the vehicle. We overrule Harper’s second point.

      In his third point, Harper argues that the trial court erred by denying his

request for an article 38.23 instruction because there was a fact issue regarding

whether the police searched the vehicle before finding the pipe. See Tex. Code

Crim. Proc. Ann. art. 38.23(a) (West 2018).

      A defendant’s right to the submission of a jury instruction under article

38.23(a) is limited to disputed fact issues that are material to his claim of a

constitutional or statutory violation that would render evidence inadmissible.

Madden v. State, 242 S.W.3d 504, 509‒10 (Tex. Crim. App. 2007).              As we

clarified immediately above, the dashcam video does not reflect that the officers

began the search before the pipe was found. There being no disputed material-

fact issue about the search, the trial court did not abuse its discretion by denying

Harper’s requested article 38.23(a) instruction. See id.; see also Kirsch v. State,

357 S.W.3d 645, 649 (Tex. Crim. App. 2012) (providing that charge-error

analysis ends if no error). We overrule his third point.


                                         8
      Having overruled Harper’s three points, we affirm the trial court’s judgment.




                                                   /s/ Bill Meier
                                                   BILL MEIER
                                                   JUSTICE

PANEL: SUDDERTH, C.J.; MEIER and BIRDWELL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 28, 2018




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