NUMBER 13-25-00554-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
RYAN BOOKER MCGEE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 54TH DISTRICT COURT
OF MCLENNAN COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Tijerina and Justices Cron and Fonseca
Memorandum Opinion by Justice Fonseca
After a bench trial, appellant Ryan Booker McGee was convicted of possession of
one gram or more but less than four grams of methamphetamine, a third-degree felony.
See TEX. HEALTH & SAFETY CODE § 481.115(c). McGee pleaded true to two punishment
enhancement paragraphs, and the trial court sentenced him as a habitual felony offender
to twenty-six years’ imprisonment. See TEX. PENAL CODE § 12.42(d). On appeal, McGee argues: (1) the evidence was insufficient to support the conviction, and (2) the trial court
violated his constitutional rights by “[d]enying [him] a meaningful opportunity to present
closing argument.” We affirm. 1
I. BACKGROUND
McGee was indicted for the above-referenced offense in May of 2024. Prior to trial,
he filed a motion to suppress evidence obtained by police during a traffic stop. At a
hearing on the motion, Mathew Quinn testified that he was serving as a deputy with the
McLennan County Sheriff’s Office (MCSO) on August 14, 2023. That morning at around
1:00 a.m., Quinn was patrolling northbound Interstate 35 when he observed a vehicle
going eighty-six miles per hour in a sixty-five-miles-per-hour zone. He activated his
emergency lights, but the vehicle did not immediately pull over, which Quinn found
suspicious. When the vehicle did pull over, Quinn approached on the passenger side and
“[i]mmediately smelled marijuana.” Accordingly, he asked the driver, McGee, to step out
of the car. A search later revealed marijuana residue on the passenger-side floor and
methamphetamine under the driver’s seat. McGee was arrested along with his brother,
who was a passenger in the front seat. McGee’s wife, who was a passenger in the back
seat, was released with the vehicle.
A dashcam video and audio recording from Quinn’s patrol unit was entered into
evidence. It shows that McGee turned on his right turn signal about fifteen seconds after
Quinn first activated his emergency lights. 2 However, he did not come to a complete stop
1 This appeal was transferred from the Tenth Court of Appeals in Waco pursuant to an order issued
by the Texas Supreme Court. See TEX. GOV’T CODE § 73.001. We are required to follow the precedent of the transferor court to the extent it differs from our own. TEX. R. APP. P. 41.3.
2 Quinn did not testify that he activated his siren at any time, and no siren is audible on the dashcam
recording.
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until one minute and 45 seconds after activation of the lights, even though there was a
wide shoulder and no traffic.
The trial court denied McGee’s motion to suppress. At trial, Quinn gave largely the
same testimony as in the suppression hearing. He also stated he determined that McGee
owned the car he was driving. According to Quinn, the occupants of the car did not initially
“want[] to own up” about who owned the methamphetamine. The prosecutor asked: “And
after everyone kind of initially denied, did Mr. McGee try to take ownership after that?”
Quinn replied: “[I]f I recall correctly, yes.” Later, Quinn said: “They all denied, and then I
remember vaguely about, I believe, McGee saying something.”
Daniel Strahl testified he was serving as an MCSO patrol deputy on the evening in
question, and he responded to Quinn’s call for backup. When he arrived at the scene, he
removed McGee’s brother from the car and observed him “start kicking something under
the car,” which Strahl later discovered to be a plastic bag containing marijuana. At some
point, Quinn advised Strahl that there was methamphetamine found in the car, so Strahl
placed McGee and his brother in handcuffs and put them in the back seat of his patrol
unit. Two video recordings from inside Strahl’s unit were entered into evidence. In one of
the videos, Strahl asked both men if they had any contraband on them; McGee replied
that he had some marijuana, so Strahl removed him from the car and confiscated it from
his crotch area. After McGee returned to the back seat of the patrol unit, he can be seen
reaching into his pants, tossing an unidentified object aside, and then smiling at his
brother.
After Strahl’s questioning concluded, the prosecutor announced, “State rests and
close—closes,” and defense counsel stated: “And we close, Your Honor. We’re resting
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and closing.” The trial court then pronounced McGee guilty as charged. When asked if
there was anything else that needed to be “put on the record as to guilt,” both sides replied
in the negative. McGee was sentenced as set forth above, and this appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
By his first issue, McGee contends the evidence was insufficient to support his
conviction for possession of methamphetamine.
A. Standard of Review and Applicable Law
To satisfy constitutional due process requirements, a criminal conviction must be
supported by sufficient evidence. Baltimore v. State, 689 S.W.3d 331, 340 (Tex. Crim.
App. 2024). “Evidence supporting a conviction is legally sufficient if a rational trier of fact
could have found that the defendant committed each element of the offense beyond a
reasonable doubt.” Id. (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In a
sufficiency review, we view the evidence in the light most favorable to the verdict and
consider all of the admitted evidence. Stahmann v. State, 602 S.W.3d 573, 577 (Tex.
Crim. App. 2020). In a bench trial, the judge “is the exclusive judge of the credibility of the
witnesses and the weight to be given to their testimony.” Joseph v. State, 897 S.W.2d
374, 376 (Tex. Crim. App. 1995).
Sufficiency is measured by the elements of the offense as defined by a
hypothetically correct jury charge. Curlee v. State, 620 S.W.3d 767, 778 (Tex. Crim. App.
2021) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). A
hypothetically correct jury charge in this case would instruct the jury to find McGee guilty
if he knowingly or intentionally possessed one gram or more but less than four grams of
methamphetamine. See TEX. HEALTH & SAFETY CODE § 481.115(c). “To prove unlawful
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possession of a controlled substance, the State must prove that: (1) the accused
exercised control, management, and care over the substance; and (2) the accused knew
the matter possessed was contraband.” Joseph, 897 S.W.2d at 376; see TEX. PENAL CODE
§ 1.07(a)(39) (“‘Possession’ means actual care, custody, control, or management.”). Both
elements of possession may be established with circumstantial evidence. See Villarreal
Lopez v. State, 267 S.W.3d 85, 91 (Tex. App.—Corpus Christi–Edinburg 2008, no pet.).
“To establish the first element, the State must prove that the defendant’s
connection with the controlled substance is more than just fortuitous.” Medina v. State,
565 S.W.3d 868, 873 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d) (citing Evans v.
State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006)). “The defendant’s mere presence at
the location where drugs are found is insufficient, by itself, to establish actual care,
custody, control, or management.” Id. However, the defendant’s presence, when
combined with other “affirmative links,” can be sufficient to establish this element beyond
a reasonable doubt. Id.; see Villarreal Lopez, 267 S.W.3d at 91–92 (noting that when the
“accused is not in exclusive possession of the place where the contraband is found” or
“when the contraband is not found on the accused’s person,” it cannot be presumed that
the accused had knowledge of or control over the contraband “unless there are additional
independent facts and circumstances connecting or linking the accused to the knowing
possession of the contraband”). Such links may include:
(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 narcotic; (4) whether the defendant was under the
influence of narcotics when arrested; (5) whether the defendant possessed
other contraband or narcotics 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
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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.
Tate v. State, 500 S.W.3d 410, 414 (Tex. Crim. App. 2016) (citing Evans, 202 S.W.3d at
162 n.12). It is not the number of links that is dispositive, but the combined logical force
of all the evidence, direct and circumstantial. Evans, 202 S.W.3d at 162.
B. Analysis
McGee argues the State failed to affirmatively link him to the methamphetamine.
He notes correctly that his status as driver of the vehicle in which the drugs were found
does not, by itself, establish possession. See Roberson v. State, 80 S.W.3d 730, 736
(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (“[E]vidence is not legally sufficient when
the State merely shows that a defendant was driving a vehicle containing narcotics.”).
Similarly, he contends that his status as owner of the vehicle is also not alone sufficient
to show possession. Nevertheless, he concedes that ownership and driver status are
relevant factors in the affirmative links analysis. See Tate, 500 S.W.3d at 414; Roberson,
80 S.W.3d at 736 (“[A]ppellant’s status as the driver of the car is insufficient on its own to
prove possession, but may help show legal sufficiency if combined with other evidence.”).
Here, in addition to McGee’s status as owner and driver of the car in which
contraband was found, there was evidence that: (1) McGee took an unusually long time
to stop after Quinn activated his emergency lights; (2) the methamphetamine was found
underneath the driver’s seat and was therefore in close proximity to McGee as the driver;
(3) there was an odor of marijuana emanating from the vehicle when the officer first
approached it; (3) McGee admitted to having marijuana on his person; and (4) he made
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furtive gestures while in Strahl’s patrol unit following his arrest. 3 These are all factors
which affirmatively link McGee to the contraband. See Tate, 500 S.W.3d at 414.
McGee notes that the methamphetamine was not in plain view when it was
recovered, that there was no evidence he appeared intoxicated at any time, and that there
was no drug paraphernalia recovered from the car. However, “the absence of various
links does not constitute evidence of innocence to be weighed against the affirmative links
present.” Espino-Cruz v. State, 586 S.W.3d 538, 544 (Tex. App.—Houston [14th Dist.]
2019, pet. ref’d). McGee further contends that the evidence must “meaningfully
distinguish the accused from other occupants who had equal access to the contraband”
and “[f]actors that apply equally to all occupants do not meaningfully link the defendant to
the drugs.” However, he does not cite any authority supporting these propositions, and
we find none. See TEX. R. APP. P. 38.1(i). Instead, it is well-settled that evidence of an
affirmative link need not “be so strong that it excludes every other outstanding reasonable
hypothesis except the defendant’s guilt.” Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim.
App. 1995). In any event, the methamphetamine was found underneath the driver’s seat
and was therefore in closer proximity to McGee than to any of the other occupants.
We conclude that all of the facts in evidence, combined, allowed the trial court to
reasonably infer that McGee exercised control, management, and care over the
methamphetamine. See Medina, 565 S.W.3d at 873; Tate, 500 S.W.3d at 414. McGee’s
first issue is overruled.
3 Referring to Quinn’s trial testimony, the State argues there was also evidence that McGee “tried
to take ownership of the methamphetamine.” Quinn’s testimony in that regard, however, was qualified, equivocal, and uncertain. Quinn himself stated his recollection was “vague.” No trier of fact could have reasonably determined from this testimony that McGee “tried to take ownership” of the methamphetamine. We therefore do not consider this testimony probative in the affirmative links analysis.
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III. CLOSING ARGUMENT
As noted, the record reflects the trial court pronounced its guilty verdict
immediately after the final witness concluded his testimony, without hearing closing
arguments. By his second issue, McGee argues the trial court violated his constitutional
rights, necessitating reversal of his conviction, by “[d]enying [him] a meaningful
opportunity to present closing argument.” See Herring v. New York, 422 U.S. 853, 865
(1975) (holding trial court violated appellant’s Sixth Amendment right to counsel by
refusing, under color of statute, to hear closing arguments at the guilt phase of trial); Lake
v. State, 532 S.W.3d 408, 411 (Tex. Crim. App. 2017); Habib v. State, 431 S.W.3d 737,
741 (Tex. App.—Amarillo 2014, pet. ref’d) (“Both the United States and Texas
Constitutions guarantee a defendant the opportunity to present closing argument.” (citing
U.S. CONST. amend. VI; TEX. CONST. art. I, § 10)), abrogated on other grounds by
Anastassov v. State, 664 S.W.3d 815 (Tex. Crim. App. 2022).
In response, the State contends this issue has been waived because McGee’s
counsel did not ask to make a closing argument and did not object to the lack of such
argument when given the opportunity. See TEX. R. APP. P. 33.1(a) (regarding preservation
of error for appeal). We agree. “[T]he right to present closing argument can be waived by
a defendant’s failure to request argument or a failure to object to the denial of a request.”
Habib, 431 S.W.3d at 742. Here, defense counsel expressly stated she was “resting and
closing” her case before the judge pronounced its verdict. After the pronouncement of the
verdict, counsel was given the opportunity to object on the record but declined. And
though McGee complains that he “cannot be said to have forfeited a right when the court’s
own procedure made it impossible to assert,” he did not file a motion for new trial making
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this argument. See id. at 741 (“When a trial court makes a ruling and there is no
opportunity to object, a defendant must timely file a motion for new trial. . . . A timely filed
motion for new trial affords a defendant the opportunity to object to the denial of closing
argument if such an opportunity was not available during trial.”).
Even assuming the issue was preserved and the trial court erred, the record does
not demonstrate that McGee suffered the requisite level of harm from the error. See Lake,
532 S.W.3d at 411 (concluding that Herring error was not labeled “structural” by the
United States Supreme Court and is therefore not immune to a harm analysis).
Constitutional error will be disregarded if we determine beyond a reasonable doubt that it
“did not contribute to the conviction or punishment.” TEX. R. APP. P. 44.2(a). On appeal,
McGee argues that because his counsel was denied the opportunity to close, “the court
never heard what counsel would have said—which arguments would have been made,
which inferences would have been urged, and which aspects of the State’s proof would
have been challenged.” However, by the same token, he does not identify any such
argument or challenge on appeal. In particular, McGee does not explain what his trial
counsel would have argued or how any particular argument would have affected the trial
court’s determination of guilt or innocence. See TEX. R. APP. P. 38.1(i). We observe that
the trial court ultimately assessed punishment close to the minimum permitted for a
habitual felony offender. See TEX. PENAL CODE § 12.42(d) (providing that a defendant
found to be a habitual felony offender “shall be punished by imprisonment in the Texas
Department of Criminal Justice for life, or for any term of not more than 99 years or less
than 25 years”). On this record, we conclude beyond a reasonable doubt that the lack of
a closing argument at the guilt-innocence phase did not contribute to McGee’s conviction
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or punishment. See TEX. R. APP. P. 44.2(a). But see Lake v. State, No. 02-13-00521-CR,
2017 WL 3821902, at *5 (Tex. App.—Fort Worth Aug. 31, 2017, pet. ref’d) (mem. op. on
remand) (declining to find harmless error under Rule 44.2(a) because “whether
appellant’s success in terms of avoiding revocation or lessening sentencing might have
been greater if he had been able to present a closing argument is a matter of bald
conjecture”).
We overrule McGee’s second issue.
IV. CONCLUSION
The trial court’s judgment is affirmed.
YSMAEL D. FONSECA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
10th day of September, 2026.
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