In The
Court of Appeals
Ninth District of Texas at Beaumont
NO. 09-24-00355-CR
TED DARWIN MOORE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 22-10-13402-CR
MEMORANDUM OPINION
Appellant Ted Darwin Moore appeals his conviction for the second-degree
felony offense of possession of a controlled substance. See Tex. Health & Safety
Code Ann. § 481.115(d). In a single issue, Moore argues there is insufficient
evidence to support his conviction. For the reasons explained below, we affirm the
trial court’s judgment.
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BACKGROUND
A grand jury indicted Moore for the second-degree felony offense of
possession of a controlled substance, namely methamphetamine, in an amount of
more than 4 grams but less than 200 grams. See id. The State filed a Notice of
Extraneous Offenses and Prior Convictions, stating it intended to offer evidence of
Moore’s two prior convictions for possession of a controlled substance. The State
also filed a Notice of Enhancement, which included two enhancement paragraphs
and stated that the State intended to enhance Moore’s punishment range by
introducing evidence of Moore’s two prior felony convictions.
The trial court conducted a jury trial. Deputy Troy Mungia (“Mungia”) of
Montgomery County Precinct 4 Constable’s Office testified that his dash camera
was operating when he stopped the vehicle Moore was driving for not having a front
or rear license plate. The jury viewed the video recording from Mungia’s dash
camera. Moore reported that he and his wife had just purchased the vehicle and that
he was on his way to get insurance. Mungia did not think Moore’s story made sense
because Moore was not driving in the direction where his insurance company was
located. Mungia explained that it was policy to tow and inventory a vehicle without
a license plate.
Mungia described Moore as cordial and cooperative and stated Moore
consented to a search of the vehicle. Mungia stated that in his training and
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experience, people with narcotics on their person do consent to being searched.
Mungia testified that Deputy Trevor Young (“Young”) found a glass pipe containing
burnt residue in Moore’s left front shirt pocket, and Mungia explained the pipe was
typically used to smoke methamphetamine. Moore also had a couple of torch lighters
which are typically used to burn the pipe, and Moore did not have any cigarettes or
cigars.
Mungia detained Moore for further investigation of narcotics. Mungia found
a “black nylon eye glass case[]” that contained paraphernalia–a pick and small
straws–and a pair of socks containing four clear plastic bags with a white crystal
substance which he believed to be methamphetamine. Mungia also found a
marijuana bong and one additional pipe, which was in the center console of the
vehicle and contained residue. Mungia arrested Moore for possession.
On cross-examination, Mungia explained that the VIN number on the vehicle
did not come back to Moore or as stolen. Mungia stated it could have been someone
who recently purchased the vehicle. Mungia explained he field tested the contents
of the packages to determine that the substance was methamphetamine.
Young, of the Montgomery County Precinct 4 Constable’s Office, testified
that he was working with Mungia when they pulled Moore over. Young testified that
he got Moore’s consent to search both his person and the vehicle. Young explained
that in his experience, it was common for people with narcotics to consent to a search
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of their person and vehicle. Young searched Moore and found a few torch lighters
and a pink clear glass pipe with residue in Moore’s front right shirt pocket. Young
explained that the residue shows the pipe had been used to smoke illegal narcotics
and that the torch lighters are commonly used to smoke narcotics. In the driver’s side
door pocket, Young found the black nylon case containing drug paraphernalia–the
pick and straws–and plastic bags containing a white crystal-like substance. Young
also found a clear glass pipe in the center console and a pink bong used to smoke
marijuana.
Young inventoried the vehicle and had it towed. Young testified that it looked
as though somebody was moving because there were a lot of items in the vehicle,
including totes with clothes and a few bags. Young explained that Moore had
stomach pains, and EMS took Moore to the hospital, which cleared Moore to be
taken to jail.
Briana Ricks, a forensic scientist with the Texas Department of Public Safety
Crime Laboratory, analyzed some of the controlled substance found in Moore’s case
and determined that it was 6.15 grams of methamphetamine. Ricks explained that
the 6.15 grams of methamphetamine she tested was above 4 grams and between the
range of the 4 to 200 grams Moore was charged with possessing.
At the close of the State’s case, the defense moved for a directed verdict due
to the State’s alleged failure to prove Moore had any intent or knowledge and
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because the vehicle did not belong to Moore. The trial court denied Moore’s motion
for directed verdict.
Moore testified in his defense and explained that he “turned to drugs[]” after
his divorce and the death of his parents and son. Moore explained he had been in
trouble a couple of times for “[s]mall possession charges[]” that he thought were
felonies, and he had spent time in prison and on parole. After completing parole,
Moore got in trouble for drugs again, was incarcerated, and still on parole. Moore
explained that his drug of choice was methamphetamine, and that he claimed to have
quit. Moore had been in a relationship with Sharon McGeehen, who also used drugs.
Moore tried to help McGeehen by letting her live with him and helping her to take
care of herself.
Moore testified that when he was arrested for the current offense, he had sold
his house, and he and McGeehen were going their separate ways. Moore explained
that he was driving McGeehen’s vehicle that McGeehen had purchased the night
before, because she had asked him to take her to pick up the vehicle, which already
contained everything McGeehen owned. Moore testified that he had never seen the
vehicle which had no license plates, and when he arrived at the location, McGeehen
left him there with the vehicle with no plates. Moore explained that the owner of the
location made him remove the vehicle, and he was pulled over five minutes after he
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left. Moore claimed he asked McGeehen if there was “anything in your car, and she
said, no.”
Moore testified that the drugs found in McGeehen’s vehicle were not his, and
he had no idea McGeehen had put them in the vehicle. Moore explained that he had
never seen the vehicle before and had no intention of driving the vehicle because his
plan was to drop McGeehen off so she could get the vehicle. Moore testified that he
pleaded not guilty to the current offense and that he had pleaded guilty to his prior
drug offenses.
On cross-examination, Moore explained that he helped McGeehen purchase
the vehicle he was driving. Moore agreed that he had three convictions for
possession of a controlled substance. Moore remained in a relationship with
McGeehen despite knowing that McGeehen had used methamphetamine. A couple
of weeks after his arrest for the current offense, Moore called McGeehen from jail,
and Moore denied telling McGeehen the drugs were hers during that recorded call.
During one jail call, Moore told McGeehen, who said she was his common law wife,
that “this was not mine, it was yours,” and McGeehen responded, “it’s not mine what
do you mean?” McGeehen stated, “so it is all on me, ok.” When Moore told
McGeehen that he “did not know,” McGeehen stated that “she didn’t know it was in
there either.”
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Concerning the pipe the police found in his front pocket, Moore stated that it
was under the gas pedal, and when he hit the brake, he stuck it in his pocket after it
rolled under the seat. Moore explained he was going to try to throw the pipe out
because he did not know where it came from. Moore claimed ownership of the torch
lighters. Despite testifying that he left his billfold in his truck before McGeehen left
him with her vehicle, Moore had his identification during the stop.
McGeehen testified that it was not Moore’s “stuff that was – he was charged
with. And I was terrified.” McGeehen stated that “[i]t was mine. It was my vehicle.”
McGeehen explained that she bought the vehicle the night before and it contained
her “stuff” and that she did not believe that Moore knew the “stuff” was in her
vehicle. McGeehen stated that she had medical conditions that caused her to easily
forget things. McGeehen was scared she would go to jail.
On cross-examination, McGeehen explained that she and Moore used drugs
during their dating relationship and that she still loves him. McGeehen stated she
was doing the right thing. McGeehen had a couple of phone calls with Moore while
he was in jail, and she claimed that she “was denying what was going on because I
was in denial. I did not want to go to jail.” When the State played one of the jail calls
for the jury and asked whether McGeehen sounded surprised that Moore was
blaming the drugs on her, McGeehen stated she “was scared. I was really terrified.
And, yes, they were mine.” The jury also heard another jail call during which Moore
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discussed writing McGeehen letters, and McGeehen claimed Moore was trying to
convince her to tell the truth. McGeehen explained that the drugs were found in a
“bag or something like that[,]” but she did not “remember correctly[]” and just knew
“they were in there.” McGeehen also did not remember the quantity of the
methamphetamine that was found, how it was packaged, or whether she had a pipe.
McGeehen agreed that she filed an affidavit in one of Moore’s prior cases
claiming possession of the drugs Moore was charged with because they were hers.
McGeehen explained the drugs in that case were found in a car Moore was driving
and that she was not present when he was stopped. McGeehen stated that the drugs
in that prior case were found in her shower bag, but drugs were also found in the air
intake of the vehicle, and McGeehen did not remember whether she claimed
ownership of those drugs. McGeehen testified that she “had no idea[]” about the
drugs found in the air intake. McGeehen was aware that her punishment range for
possession of the drugs in the current case was less than Moore’s.
The jury found Moore guilty of the second-degree felony offense of
possession of a controlled substance. Moore and the State reached an agreement as
to Moore’s punishment–thirty years of confinement. Moore pleaded “[t]rue” to the
State’s enhancement paragraphs, and the trial court found the enhancement
paragraphs to be “true” and assessed Moore’s punishment as a habitual felony
offender at thirty years of confinement.
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ANALYSIS
In his sole issue, Moore complains that his Fifth and Fourteenth Amendment
due process rights under the United States and Texas Constitutions were violated
because the evidence was insufficient to establish that he possessed the
methamphetamines beyond a reasonable doubt. Moore complains the State failed to
prove he knowingly or intentionally exercised care, custody, management or control
of the methamphetamines found in McGeehen’s vehicle because he lacked
knowledge and exclusive control. Moore contends that McGeehen claimed
ownership of the vehicle’s contents.
When an appellant challenges the sufficiency of the evidence supporting a
conviction in a criminal case, appellate courts consider all the evidence in a light
most favorable to the verdict and decide, after reviewing the evidence in that light,
whether a rational trier of fact could have found the appellant guilty of the essential
elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.
307, 318-19 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
We apply “only one standard” to evaluate whether the evidence is sufficient to
support a criminal conviction beyond a reasonable doubt and that is “legal
sufficiency.” Temple, 390 S.W.3d at 360; Brooks v. State, 323 S.W.3d 893, 895
(Tex. Crim. App. 2010). In reviewing a sufficiency challenge, we defer to the jury’s
findings and its conclusions, as it was the jury’s responsibility to fairly resolve all
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conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from the basic facts to resolve whether the defendant is guilty of the criminal offense
that is at issue at trial. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
Direct evidence and circumstantial evidence are equally probative, and
circumstantial evidence alone may be sufficient to uphold a conviction so long as
the cumulative force of all the incriminating circumstances is sufficient to support
the conviction. Ramsey v. State, 473 S.W.3d 805, 808-09 (Tex. Crim. App. 2015)
(citing Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013); Hooper, 214
S.W.3d at 13).
The jury, as the judge of the facts and credibility of the witnesses, may choose
to believe or not believe the testimony of the witnesses, or any portion of their
testimony, despite any contradictory evidence. Sharp v. State, 707 S.W.2d 611, 614
(Tex. Crim. App. 1986) (citing Esquivel v. State, 506 S.W.2d 613 (Tex. Crim. App.
1974)). “‘When the record supports conflicting inferences, we presume that the jury
resolved the conflicts in favor of the verdict, and we defer to that determination.’”
Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016) (quoting Dobbs v. State,
434 S.W.3d 166, 170 (Tex. Crim. App. 2014)). A jury is allowed to draw multiple
reasonable inferences from facts as long as each is supported by the evidence
presented at trial. Temple, 390 S.W.3d at 360.
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A person commits the offense of possession of a controlled substance if he
knowingly or intentionally possesses the controlled substance in the prescribed
amount, by aggregate weight, including adulterants or dilutants. See Tex. Health &
Safety Code Ann. §§ 481.102, 481.115(d). To prove possession, the State must prove
that (1) the accused exercised control, management, or care over the substance; and
(2) the accused knew the matter possessed was contraband. Evans v. State, 202
S.W.3d 158, 161 (Tex. Crim. App. 2006). The State does not have to prove that the
defendant had sole or exclusive possession of the drugs. See Cude v. State, 716
S.W.2d 46, 47 (Tex. Crim. App. 1986). However, when the defendant does not have
exclusive possession of the place where the contraband is found, then independent
facts and circumstances must link him to the drugs. Poindexter v. State, 153 S.W.3d
402, 405-13 (Tex. Crim. App. 2005) (citing Deshong v. State, 625 S.W.2d 327, 329
(Tex. Crim. App. 1981)). Regardless of whether the evidence is direct or
circumstantial, it must establish that the defendant’s connection with the drugs was
more than fortuitous. Evans, 202 S.W.3d at 161. This is called the “affirmative links”
rule. Id. This Court has recognized the following non-exclusive factors as tending to
establish affirmative links: (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 contraband; (4) whether the defendant was under the
influence of narcotics when arrested; (5) whether the defendant possessed other
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contraband 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 drugs were found;
(12) whether the place where the drugs were 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 Cogar v. State, No. 09-19-00342-CR, 2020 WL 5805955, at *3 (Tex. App.—Beaumont Sept. 30, 2020, no pet.)
(mem. op., not designated for publication); Dixon v. State, 918 S.W.2d 678, 681
(Tex. App.—Beaumont 1996, no pet.). The number of factors is not as important as
the logical force they collectively create to prove that a crime has been committed.
Evans, 202 S.W.3d at 162. The State is not required to present evidence on each
factor to show a link between the defendant and the controlled substance, and the
absence of a factor is not evidence of innocence that must be weighed against the
factors that are present. See Espino-Cruz v. State, 586 S.W.3d 538, 544 (Tex. App.—
Houston [14th Dist.] 2019, pet. ref’d).
“Mere presence at the location where drugs are found is thus insufficient, by
itself, to establish actual care, custody, or control of those drugs.” Evans, 202 S.W.3d
at 162. However, presence or proximity, when combined with other evidence, either
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direct or circumstantial, can be sufficient to establish that element beyond a
reasonable doubt. Id. Convenient access to the contraband is an accepted factor. See
Robinson v. State, 174 S.W.3d 320, 326 (Tex. App—Houston [1st Dist.] 2005, pet.
ref’d). “[C]onveniently accessible” means that the contraband must be within the
close vicinity of the accused and easily accessible while in the vehicle so as to
suggest that the accused had knowledge of the contraband and exercised control over
it.” See id. (citing Deshong, 625 S.W.2d at 329; Rhyne v. State, 620 S.W.2d 599, 601
(Tex. Crim. App. 1981)); see also Gregory v. State, 159 S.W.3d 254, 260 (Tex.
App.—Beaumont 2005, pet. ref’d).
In this case, the jury could have considered the following affirmative links to
conclude that Moore possessed the methamphetamine found in the vehicle: Moore
was the driver and only person present when the police searched the vehicle and
found methamphetamine; Moore was in close proximity to the methamphetamine
and related paraphernalia found in the driver’s side door pocket; the police found a
glass pipe containing burnt residue in Moore’s pocket and that pipe is typically used
to smoke methamphetamine; Moore also claimed ownership of other related
paraphernalia–torch lighters–that were found in the vehicle and typically used to
smoke methamphetamine; and the police found an additional pipe containing residue
in the center console of the vehicle. See Cogar, 2020 WL 5805955, at **3-4; Dixon,
918 S.W.2d at 681. Mungia also testified that Moore’s story that he was on his way
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to purchase insurance did not make sense, and McGeehen did not offer testimony
supporting Moore’s account. Moore testified that he and McGeehen were going their
separate ways and that she took off and left him with the vehicle. McGeehen stated
that she was following Moore to park the vehicle at a place she could not remember
and that she and Moore were supposed to be moving in together. They jury also
considered McGeehen’s testimony that she had previously claimed ownership of
drugs in one of Moore’s prior cases.
Despite hearing that Moore did not own the vehicle, which both Moore and
McGeehen claimed she purchased the night before the stop, the jury could have
disbelieved both Moore’s and McGeehen’s claim that the methamphetamine was not
Moore’s and reasonably concluded that Moore knowingly or intentionally possessed
the methamphetamine and had exercised control, management, or care over the
substance. See Tex. Health & Safety Code Ann. § 481.115(d); Temple, 390 S.W.3d
at 360; Evans, 202 S.W.3d at 161; Sharp, 707 S.W.2d at 614. Deferring to the jury
as factfinder and viewing the evidence in the light most favorable to the verdict, we
conclude that the jury could have determined that the cumulative force of all the
incriminating circumstances was sufficient to support the conviction of Moore for
possession of a controlled substance. See Tex. Health & Safety Code Ann. §
481.115(d); Temple, 390 S.W.3d at 360; Hooper, 214 S.W.3d at 13; Evans, 202
S.W.3d at 161. We overrule Moore’s sole issue.
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We note, however, that the trial court’s judgment contains a clerical error
because it incorrectly states that Moore was charged and convicted of an offense
under section 481.115(d) of the Texas Penal Code, whereas Moore was convicted of
a violation of section 481.115(d) of the Tex. Health & Safety Code. See Tex. Health
& Safety Code Ann. § 481.115(d). This Court has the authority to modify the trial
court’s judgment to correct clerical errors. See Tex. R. App. P. 43.2(b); Bigley v.
State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Accordingly, we modify the
trial court’s judgment to reflect that Moore was convicted of violating section
481.115(d) of the Texas Health & Safety Code. We affirm the trial court’s judgment
as modified.
AFFIRMED AS MODIFIED.
JAY WRIGHT
Justice
Submitted on May 13, 2026
Opinion Delivered August 26, 2026
Do Not Publish
Before Golemon, C.J., Johnson and Wright, JJ.
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