Jose L. Vasquez v. State of Texas

NO. 07-01-0042-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A APRIL 29, 2002 ______________________________ JOSE L. VASQUEZ, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 177TH DISTRICT COURT OF HARRIS COUNTY; NO. 831576; HONORABLE CAROL DAVIES, JUDGE _______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. Appellant Jose L. Vasquez was convicted by a jury of aggravated sexual assault and sentenced to confinement for 25 years in the Institutional Division of the Department of Criminal Justice. He challenges the legal and factual sufficiency of the evidence to sustain that conviction by asserting the evidence (1) is insufficient to corroborate the testimony of the accomplice witness that he penetrated the female sexual organ of the victim as required by the Code of Criminal Procedure, (2) is legally insufficient to support the conviction under paragraphs one and two of the indictment because the evidence does not show that he placed the victim in fear that serious bodily injury or death would be imminently inflicted on her, (3) is factually insufficient to support the conviction under paragraphs one, two, and three of the indictment, and thus the verdict is clearly wrong and manifestly unjust, and (4) is legally insufficient to support the conviction under paragraph four of the indictment because there is no evidence that he assaulted the victim anally. Finding no reversible error, we affirm the judgment of the trial court. On the night of December 18, 1999, the 14-year-old victim, T. F., went to a quinceanera with her friend N. R. At the party, the girls met two boys, who identified themselves as Daniel and Jose. About 1:30 a.m., the girls could not find who brought them to the party so that they could return home. Jose told them his brother would give them a ride, so they got into a station wagon with nine Hispanic males. When the driver went in the opposite direction of the home of N. R., she managed to escape as it stopped at a traffic light and obtained the license plate number. N. R. then ran home and called the police. T. F. tried to crawl out of the back of the station wagon, but someone stopped her. The car was driven down a dirt road and into a field. The men got out of the car, and T. F. tried to run away, but was pushed to the ground and had her clothes torn off. She was then assaulted, according to her testimony, nine times vaginally and three times anally. Some of these assaults occurred simultaneously. One or more of the men also attempted to force her to perform oral sex and ejaculated on her face. During most of the assaults, her eyes were covered, so she could not identify who was assaulting her at any particular moment, but she testified they were laughing during the assaults. The men then got back into the car and left, and T. F. ran to a local motel and called the police. The station wagon was stopped a short time later, and T. F. identified the men as those who assaulted her. In the first count of the indictment, appellant was charged with intentionally and knowingly causing the penetration of the female sexual organ of the complainant by acts and words placing her in fear that serious bodily injury and death would be imminently inflicted on her. In the second count, he was charged with causing the penetration of the anus of the complainant by the same aggravating acts. In the third and fourth counts, appellant was charged with the penetration of the complainant vaginally and anally by acting in concert with Miguel Lopez and Miguel Flores, who engaged in the conduct described and which occurred during the course of the same criminal episode. During the trial, one of the other men present that night, Christian Padilla, testified that appellant got on top of the victim, but did not know if he entered her. He further stated that appellant "didn't last long." It is appellant's contention in his first issue that the only evidence he had sexual intercourse with the victim or participated in any way is the testimony of the accomplice witness. Article 38.14 of the Code of Criminal Procedure provides: A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). There is no dispute among the parties that Padilla is an accomplice witness. In determining whether an accomplice witness's testimony has been corroborated, the accomplice testimony is ignored, and the remaining evidence is examined to determine if it tends to connect the defendant to the offense. Colella v. State, 915 S.W.2d 834, 838 (Tex.Crim.App. 1995); Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App. 1993). The corroborative evidence does not need to establish the defendant's guilt of the charged offense nor directly link him to the offense, but is sufficient if it tends to connect him to the offense. Colella, 915 S.W.2d at 838. All facts, both direct and circumstantial, may be considered, and if the combined cumulative weight of the other incriminating evidence tends to connect the defendant with the commission of the offense, then the requirements of article 38.14 have been met. Gosch v. State, 819 S.W.2d 775, 777 (Tex.Crim.App. 1991), cert. denied, 509 U.S. 922, 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993). The victim was unable to identify appellant as one who assaulted her, covered her eyes, pushed her to the ground, or held her down. However, appellant admitted in his own testimony that he was present in the car and during some of the assaults. He also testified that he heard one of the men say while in the car that they were going to rape her. When arrested, appellant had dirt on his knee and his pants were unfastened, which was similar to the physical appearance of some of the other men in the car, although appellant attempted to explain his appearance by testifying that he went off to urinate, slipped and fell to his knee. There were no positive tests for blood or seminal fluid on appellant's clothing, but his DNA was found on the victim's halter top, chin, and neck, for which appellant could provide no explanation. Thus, even without Padilla's testimony, appellant was undisputedly connected to the scene of the crime and to some contact with the victim in order that his DNA was found on her. He also had mud on his knee and his pants were unfastened, such as might exist had appellant attempted to recently sexually assault the victim. Proof that the defendant was at or near the scene of the crime at or about the time it happened, along with evidence of other suspicious circumstances may tend to connect the accused to the crime. Richardson v. State, 879 S.W.2d 874, 880 (Tex.Crim.App. 1993), cert. denied, 513 U.S. 1085, 115 S.Ct. 741, 130 L.Ed.2d 643 (1995). However, appellant claims that proof of his DNA on the victim's halter top, neck, and chin does not corroborate the accomplice testimony that he engaged in sexual intercourse. The lack of blood, vaginal secretions, and seminal fluid containing sperm cells on his underwear or other clothing shows, he posits, that his DNA must have been transferred by some bodily fluid other than semen. Further, he asserts, his explanation as to why his pants were unfastened and why there was mud on his knee is uncontradicted, and therefore that evidence is insufficient to corroborate the accomplice testimony. He relies on Navejar v. State, 760 S.W.2d 786 (Tex.App.--Corpus Christi 1988, pet. ref'd), in support of that proposition. As already noted, the corroboration evidence does not have to prove the offense, but only has to connect the defendant to the offense. Thus, the evidence does not have to corroborate every element of the offense charged. Thomas v. State, 993 S.W.2d 392, 393 (Tex.App.--Eastland 1999, no pet.); see also Holladay v. State, 709 S.W.2d 194, 199-202 (Tex.Crim.App. 1986). Furthermore, the holding in Navejar is distinguishable because the court in that case relied on the fact that the only corroborating evidence was the defendant's presence at the scene of the crime and there was no evidence of direct contact between the defendant and the accomplice witness, who were involved in a drug transaction. Navejar, 760 S.W.2d at 788. In this instance, there is DNA evidence of direct contact between appellant and the victim. More specifically, DNA was found on the victim's halter top, neck and chin, and she testified that one or more persons ejaculated on her face. Moreover, although appellant's explanation as to the condition of his clothing at the time of his arrest is not directly contradicted, there is also evidence that several of the men had mud or dirt on one or both knees and their pants were unfastened at the time of their arrest, which reflects on the credibility of appellant's explanation. One of the chemists testified that if a male vaginally or anally penetrated a female, put on his clothes, did not shower, and was arrested within 30 minutes, it is likely there would be semen or body fluids on that person's clothes which were not found on appellant. However, another chemist stated that the presence of such evidence was only a possibility. We believe the cumulative weight of the evidence is sufficient corroboration of the accomplice testimony. Appellant's first issue is overruled. In his second and third issues, appellant argues the evidence is legally and factually insufficient to support his conviction under paragraphs one and two of the indictment because it does not show that appellant placed the victim in fear that serious bodily injury or death would be imminently inflicted on her. The gist of appellant's argument is that because the victim testified that he did not say one word to her and because she does not speak Spanish and he does not speak English, he did not verbally threaten her. Furthermore, the physical acts committed were only those commonly associated with a sexual assault, and even if the accomplice testimony is believed, the only evidence against appellant is that he got on top of the victim and had intercourse with her. Even though the victim testified that she was told that if she did not stop yelling, her throat would be cut and that threat caused her to fear for her life, appellant urges there is no evidence that he made or even had knowledge of that threat. The standard by which we review the legal sufficiency of the evidence is whether, after reviewing the evidence in the light most favorable to the prosecution, 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, 61 L.Ed.2d 560 (1979). Under a factual sufficiency review, we must review all of the evidence without the prism of in the light most favorable to the prosecution and determine whether the verdict is so against the weight of the evidence as to be clearly wrong and manifestly unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The charge allowed the jury to find appellant guilty if he acted alone or with others as a party by either placing the victim in fear of imminent serious bodily injury or death or acting in concert with Lopez or Flores during the course of the same criminal episode. The jury returned a general verdict of guilt. A person is criminally responsible as a party to an offense if it is committed by his own conduct or by the conduct of another for which he is criminally responsible. Tex. Pen. Code Ann. § 7.01(a) (Vernon 1994). A person is criminally responsible for the offense committed by the conduct of another if he acts with intent to promote or assist the commission of the offense and solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a)(2). In determining the sufficiency of the evidence under the law of parties, we must examine the events before, during, and after the commission of the offense, and may rely on actions of appellant which show an understanding and common design to commit the offense. Burdine v. State, 719 S.W.2d 309, 315 (Tex.Crim.App. 1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987). The evidence is sufficient when the actor is physically present at the commission of the offense and encourages the commission by words or other agreement. Id. The State does not argue that there is evidence that appellant, either acting alone or as a party, placed the victim in fear of imminent serious bodily injury or death. However, the State argues that if the evidence is sufficient to establish that appellant acted either as a principal or party in concert with Lopez or Flores during the course of the same criminal episode, then it is not necessary for us to make a determination as to the victim's fear of serious bodily injury or death. While we agree that there is no evidence that appellant made a threat to the victim or had knowledge that one was made, we also agree with the State that since the jury returned a general verdict, if the evidence is sufficient to support a guilty verdict under any of the allegations, the verdict will be upheld. Rabbani v. State, 847 S.W.2d 555, 558 (Tex.Crim.App. 1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3047, 125 L.Ed.2d 731 (1993). A person commits an aggravated sexual assault if he acts in concert with another who engages in the conduct directed toward the same victim and occurring during the course of the same criminal episode. Tex. Pen. Code Ann. § 22.021(a)(2)(A)(v) (Vernon Supp. 2002). There was evidence that, before the commission of the offense while still in the car, several of the men talked about raping the victim, although appellant claims he thought these comments were a joke. Padilla testified that Lopez raped the victim vaginally and Flores raped her anally. Padilla also testified that appellant raped the victim. (1) Appellant himself testified both Flores and Lopez raped her vaginally, but denied he had done so. However, it is uncontroverted that appellant was present while those events were taking place. There is also evidence that at least one unidentified person ejaculated on the victim's face, and appellant's DNA was found on her neck and chin. Lopez's DNA was also found on her forehead, chest, and chin. Additionally, Flores's boxer shorts and jeans showed DNA of the victim. Positive tests for the presence of seminal fluid were also found on Lopez's jeans and Flores's underwear and jeans. Appellant claimed not to know whether the sexual intercourse was without consent, even though he observed N. R. escape from the car while yelling and saw the victim attempt to escape, but someone pulled her back. He also saw one of the other men grab the victim and throw her to the ground, and someone covered her eyes. After the commission of the offense, the men in the car were arrested and were observed with mud or dirt on their knees or other clothes, including appellant, and appellant's pants were unfastened. Under these facts, the trier of fact could have found that appellant acted in concert with Flores and Lopez in penetrating the sexual organ of the victim, and that finding is not manifestly unjust. Any conflicts in the evidence were within the province of the jury to resolve. Appellant's second and third issues are overruled. In his fourth issue, appellant claims there is no evidence to support his conviction for aggravated sexual assault under paragraph four of the indictment because there is no evidence that appellant assaulted the victim anally. As already discussed, even if there is no evidence that appellant himself placed his sexual organ in the victim's anus, there is evidence that appellant vaginally assaulted the victim and acted in concert with Flores and Lopez in their assaults. The sufficiency of that evidence alone will uphold the judgment. Appellant's fourth issue is overruled. Finally, appellant complains that the evidence is factually insufficient to support his conviction for aggravated sexual assault under paragraph three of the indictment because the evidence is so weak that the verdict is manifestly unjust. We have previously recited the testimony that appellant, Flores, and Lopez all vaginally raped the victim during the same criminal episode, and we decline to hold that any jury finding that appellant acted in concert with Flores and Lopez is clearly wrong. Appellant's fifth issue is overruled. Having overruled all of appellant's issues, we affirm the judgment of the trial court. John T. Boyd Chief Justice Do not publish. 1. Even though Padilla could not say if appellant entered the victim, it has been held that any contact which results in pushing aside the labia constitutes penetration, even if the vaginal canal is not entered. Vernon v. 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mso-ascii-font-family:Arial; mso-fareast-font-family:Arial; mso-hansi-font-family:Arial; mso-bidi-font-family:Arial;} /* Page Definitions */ @page {mso-footnote-separator:url("07-09-0171-CR%20%20Opinion_files/header.htm") fs; mso-footnote-continuation-separator:url("07-09-0171-CR%20%20Opinion_files/header.htm") fcs; mso-endnote-separator:url("07-09-0171-CR%20%20Opinion_files/header.htm") es; mso-endnote-continuation-separator:url("07-09-0171-CR%20%20Opinion_files/header.htm") ecs;} @page WordSection1 {size:8.5in 11.0in; margin:1.0in 1.0in 1.0in 1.0in; mso-header-margin:.5in; mso-footer-margin:.5in; mso-title-page:yes; mso-footer:url("07-09-0171-CR%20%20Opinion_files/header.htm") f1; mso-paper-source:0;} div.WordSection1 {page:WordSection1;} --> NO. 07-09-0171-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C DECEMBER 10, 2010 KEVIN CECIL MAEDA, APPELLANT v. THE STATE OF TEXAS, APPELLEE FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY; NO. 19,955-A; HONORABLE HAL MINER, JUDGE Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Appellant, Kevin Cecil Maeda, was convicted by a jury of possession of a controlled substance (methamphetamine) in an amount of less than one gram[1] and sentenced to two years confinement in a state jail facility. On appeal, he asserts the evidence was legally and factually insufficient. We affirm. Background On August 20, 2008, a Randall County Grand Jury indicted Appellant for intentionally and knowingly possessing a controlled substance, methamphetamine, in an amount by aggregate weight, including any adulterants and dilutants, of less than one gram. At trial, Deputy Marcus Woods of the Randall County Sheriff's Office testified that, in the early morning hours of May 12, 2008, he spotted Appellant and Jimmy Flores sitting in Appellant's pickup parked at an Amarillo chipping site. When Deputy Woods approached Appellant, he was overwhelmed by the odor of marijuana coming from inside the pickup's cab. He observed Appellant's eyes were very red and his speech was slurred. Deputy Woods asked Appellant if there was anything illegal in the pickup. Appellant pulled the ashtray from the dashboard, handed it to Deputy Woods through the driver's side window, and told the Deputy he had marijuana. Deputy Woods asked Appellant to exit the pickup and, as he came out, a glass pipe fell out of his lap onto the ground. Deputy Woods identified the pipe as the type of pipe used to smoke methamphetamine.[2] He handcuffed Appellant and searched his pockets where he found a cigarette box containing regular cigarettes and a rolled marijuana cigarette. He then placed Appellant in the backseat of his patrol car. Deputy Levi Randall, a deputy-in-training who accompanied Deputy Woods, searched Flores and found nothing illegal on his person. Deputy Randall escorted Flores to the backseat of the patrol car where the two men were advised of their Miranda rights.[3] During questioning, Appellant indicated there was more marijuana in the pickup. After Deputy Woods removed Appellant from the patrol car to assist him in locating the marijuana, Deputy Randall discovered a crushed blue pill where Appellant had been sitting. When Deputy Randall found the pill, Flores told him that they should be concerned for Appellant's welfare. Appellant was subsequently taken to a hospital where he was examined in the emergency room. When Deputy Woods searched Appellant's pickup, he found some blue pills, later identified as Xanax, in an empty cigarette box on the passenger's side of the pickup and marijuana in the glove compartment. In the console, accessible to Appellant and Flores, he discovered a plastic baggie containing what was later identified as .04 gram of methamphetamine.[4] At the scene, neither Appellant nor Flores would identify who owned the methamphetamine. Both men were placed under arrest. Jimmy Flores, Appellant's best friend for fifteen years, testified for the defense. He testified that Appellant operated a landscaping business that specialized in tree trimming. He also testified that Appellant owned the pickup they were sitting in at the chipping site and normally drove the truck in connection with his work. The day before the two men were arrested at the chipping site, Flores testified they had driven from Amarillo to Pampa, Texas, with four climbers and three grounds men where they completed three to four jobs. Flores testified that Appellant drove his truck and his employees shared two other trucks. He testified that he and Appellant had smoked three or four marijuana cigarettes that day and Appellant told him he had taken a Xanax pill. He did not see Appellant use any methamphetamine. Flores testified that early the next morning he and Appellant were at the Amarillo chipping site to drop off some limbs. They had been smoking marijuana for about five minutes when the deputies arrived. He testified the pickup they were sitting in had been driven by four or five others the day before while they were working. He also testified that the Xanax pills and methamphetamine were not his drugs. He further denied ownership of the pipe which he testified was used to smoke methamphetamine or crack cocaine. He opined that the pipe was not suitable for smoking marijuana. At the conclusion of the testimony, Appellant was found guilty by the jury of possessing less than one gram of methamphetamine and sentenced to two years confinement. This appeal followed. Discussion As an initial consideration, we note that Appellant contends the evidence is both legally and factually insufficient to establish that he exercised care, custody and control of the methamphetamine in question. After briefs were filed by both parties, the Court of Criminal Appeals held that the only standard a reviewing court should apply in determining whether the evidence in a criminal proceeding is sufficient to support each element of the offense beyond a reasonable doubt is the legal sufficiency standard set forth in Jackson v. Virginia.[5] Brooks v. State, No. PD-0210-09, 2010 Tex. Crim. App. LEXIS 1240, at *2 (Tex.Crim.App. Oct. 6, 2010).[6] Accordingly, we need not address Appellant's challenge to the factual sufficiency of the evidence. I. Standard of Review In assessing the sufficiency of the evidence to support a criminal conviction under the standard enunciated in Jackson, this Court considers all the evidence in a light most favorable to the verdict and determines whether, based on that evidence and reasonable inferences to be drawn therefrom, a 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, 33 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Brooks, 2010 Tex. Crim. App. LEXIS 1240, at *14. When conducting such a review, this Court is required to defer to the jury's role as the sole judge of credibility of the witness and the weight to be given their testimony. Id. at *15. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). Furthermore, to establish legal sufficiency, "[e]ach fact need not point directly and independently to the guilt of the defendant, as long as the cumulative force of the incriminating circumstances is sufficient to support the conviction." Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). If, however, a rational jury would necessarily entertain a reasonable doubt as to the defendant's guilt after considering all the evidence, due process requires that we reverse and render a judgment of acquittal. Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003) (citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App. 1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993)). II. Applicable Law To support the verdict rendered in this case, the State was required to prove that Appellant knowingly possessed a controlled substance, to-wit: methamphetamine, in an amount of less than one gram. To prove possession, the State was required to show that Appellant (1) exercised "actual care, custody, control, or management" of the substance and (2) knew the matter possessed was contraband. See § 481.115(b). See also Tex. Penal Code § 1.07(39) (West Supp. 2010); Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex.Crim.App. 2005). Where, as here, the accused does not have actual possession of the controlled substance or exclusive possession of the locale where the controlled substance was found, it cannot be concluded or presumed that the accused had possession over the contraband unless there are independent facts or circumstances that tend to connect or link[7] the accused to the knowing possession of the contraband. Poindexter, 153 S.W.3d at 406; Evans v. State, 202 S.W.3d 158, 161-62 (Tex.Crim.App. 2006). Numerous nonexclusive factors have been recognized as contributing to an evaluation of whether an accused is linked to the contraband. See Triplett v. State, 292 S.W.3d 205, 208 (Tex.App.--Amarillo 2009, pet. ref'd). Those links include, but are not limited to: (1) whether the contraband was in plain view or recovered from an enclosed place; (2) whether the defendant was the owner of the premises or had the right to possess or control the place where the contraband was found; (3) whether the defendant was found in possession of a large amount of cash; (4) whether the contraband was conveniently accessible to the defendant; (5) whether the contraband was found in close proximity to the defendant; (6) whether an odor of contraband was present; (7) whether the defendant possessed other contraband when arrested; (8) whether the defendant possessed paraphernalia to use the contraband; (9) whether paraphernalia to use the contraband was available to or in plain view of the defendant; (10) whether the physical condition of the defendant indicated recent consumption of the contraband in question; (11) whether conduct by the defendant indicated a consciousness of guilt; (12) whether the defendant made any incriminating statements when arrested; (13) whether the defendant attempted to flee; (14) whether the defendant made furtive gestures; (15) whether the defendant had a special connection to the contraband; (16) whether the persons present gave conflicting statements about relevant matters; (17) the quantity of the contraband discovered; (18) whether the defendant was armed; (19) whether the defendant was observed in a suspicious place under suspicious circumstances; (20) whether the accused was familiar or had previous experience with drugs; and, (21) whether any forensic evidence (e.g., fingerprints, DNA, etc.) connects the defendant to the contraband or its container. See Evans, 202 S.W.3d at 162 n.12. See also Triplett, 292 S.W.3d at 209; Figueroa v. State, 250 S.W.3d 490, 500 (Tex.App.--Austin 2008, pet. ref’d), cert. denied, No. 08-7719, 2009 LEXIS 1276 (U.S. Tex. Feb. 23, 2009). There is no set formula that an appellate court can use to determine if there are sufficient links to support an inference of knowing possession of drugs. Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.--Dallas 2003, no pet.). Each case must be examined according to its own facts on a case-by-case basis; Roberson v. State, 80 S.W.3d 730, 736 (Tex.App.--Houston [1st Dist.] 2002, pet. ref'd), and the number of links is not as important as the combined logical force of all the evidence tending to link the accused to the contraband. Evans, 202 S.W.3d at 162, 166. III. Analysis Viewing the evidence in a light most favorable to the verdict, the evidence at trial showed that at least seven links listed above were present. Appellant owned the pickup where the contraband was found and had the right to possess or control its contents. He was also present when the search was conducted, made incriminating statements when arrested, had other contraband in his possession, possessed drug paraphernalia, and had been using drugs when he was approached by Deputy Woods. Further, the methamphetamine was found inside the pickup's interior console which was conveniently accessible to Appellant, and a pipe, identified by three witnesses as a type of pipe used to smoke methamphetamine, fell from his lap as he exited the pickup. Furthermore, Flores testified the pipe was not suitable for smoking marijuana and denied ownership of the marijuana, Xanax pills, methamphetamine, and pipe. This evidence sufficiently links Appellant to the methamphetamine and establishes, to the requisite level of confidence, that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Appellant's issue is overruled. Conclusion The trial court’s judgment is affirmed. Patrick A. Pirtle Justice Do not publish. [1]See Tex. Health & Safety Code Ann. § 481.115(a), (b) (West 2010). Throughout the remainder of this opinion, provisions of the Texas Health and Safety Code will be cited as "section ____" and/or "§ ____." [2]Bruce Evans, a crime scene technician and lab analyst for the Randall County Sheriff's Office, also testified that, based on his experience, the pipe was of the type used to smoke methamphetamine. [3]Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). [4]Roy Murphy, manager of the Texas Department of Safety Regional Crime Laboratory, identified the various substances found in Appellant's pickup and their respective weight. [5]Jackson v. Virginia, 443 U.S. 307, 335 S.Ct. 2781, 61 L.Ed.2d 560 (1979). [6]Judge Hervey delivered the Brooks opinion, joined by Judges Keller, Keasler, and Cochran, and Judge Cochran delivered a concurring opinion, joined by Judge Womack. Brooks, 2010 Tex. Crim. App. LEXIS 1240, at *1, *59. Although we are not bound by a decision of four justices, Pearson v. State, 994 S.W.2d 176, 177 n.3 (Tex.Crim.App. 1999), we read the combined opinions of Judges Hervey and Cochran as abandoning factual sufficiency as an evidentiary sufficiency standard of review distinct from legal sufficiency. [7]The Court of Criminal Appeals has recognized that the term "affirmative" adds nothing to the plain meaning of "link" and now uses only the word "link" to evaluate evidence of possession. Evans v. State, 202 S.W.3d 158, 161 n.9 (Tex.Crim.App. 2006). A link is a fact or circumstance which generates a reasonable inference that the defendant knew of the contraband's existence and exercised control over it. Lair v. State, 265 S.W.3d 580, 600 (Tex.App.--Houston [1st Dist.] 2008, pet. ref'd). The evidence demonstrating such links may be direct or circumstantial. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995).