5S7-/5 IN THE
ORIGINAL
TEXAS COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
FILED IN
COURT OF CRIMINAL APPEALS
JASON JACKSON JUL 10 2015 VS.
Abel Acosta, Clerk
STATE OF TEXAS
PETITION FOR DISCRETIONARY REVIEW
On Discretionary Review From The COURT OF APPEALS FOURTEENTH DISTRICT OF TEXAS , HOUSTON, TEXAS No. 14-14-00150-CR
On Appeal From The 176th District Court Harris County, Texas Trial Cause 1333636
JASON JACKSON, PRO-SE TDCJ-CID# 1940366 COFFIELD UNIT 2661 PM 2054 TENNESSEE COLONY,TX 75884
ItiCElVED IN ffifflOFCRIMINAL APPEALS
EVIDENTIARY HEARING REQUESTED JUL 10 2011
TABLE OF CONTENTS
Page
INDEX OF AUTHORITY ... ... ... ii
STATEMENT REGARDING ORAL ARGUMENT ... iii
STATEMENT OF THE CASE ... ••• • ••*• ••• iii
STATEMENT OF PROCEDURAL HISTORY ... iii
QUESTION[S] PRESENTED FOR REVIEW ..... ... 1
WHETHER THE FOURTEENTH COURT OF APPEALS ERRED IN FINDING THE EVIDENCE SUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT PETITIONER KNOWINGLY AND INTENTIONALLY POSSESSED A CONTROLLED SUBSTANCE WITH INTENT TO DELIVER? 1
WHETHER THE JUSTICES OF THE FOURTEENTH COURT OF APPEALS HAVE DISAGREED ON A MATERIAL QUESTION OF LAW NECESSARY TO THIS COURT'S DECISION? 1
ARGUMENT ..... 2
PRAYER FOR RELIEF.... ... 11
APPENDIX ... [ OPINION: -COURT.OF.APPEALS.].. 12
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INDEX OF AUTHORITIES
Cases Page Allen v. State,249 S.W.3d'68(Tex.App.-Austin,2008,no pet.) 7,8,9 Avila v. State,15 S.W.3d 568(Tex.App.-Houston[14th Dist.] 2000 no pet.) 6 Brooks v. State,323 S.W.3d 893(Tex.Crim.App.2010) 3 Brown v. STATE, (911 S.W.2d 744( Tex .Crim. App. 1995')' 6 Evans v. State 202 S.W.3d 158(Tex.Crim.App.2006) 5,6,9 Fisher v. State,887 S.W.2d 49(Tex.Crim.App.1994)(Op.on rehrg) 4 Flores v. State,100113 TXCA 14,14-12-00623-CR,Oct.1,2013) 9 Gear v. State,340 S.W.3d 743(Tex.Crim.App.2011) 4 Humason v. State,699 S.W.2d 922(Tex.App.-Houston!1st Dist.] 1985,aff'd, 728 S.W.2d 363(Tex.Crim.App.1987) 6,10 Isassi v. State,330 S.W.3d 633(Tex.Crim.App.2010) 4 Jackson v. Virginia,443 U.S. 307,99 S.Ct. 2781,61 L.Ed.2d 560(1979) 4 Medina v. State,2011 WL 6013094(Tex.App.-Houston[14th Dist] 2011,pet.ref'd.) 9 Oaks v. State,642 S.W.2d 174(Tex.Crim.App.1982) 8 Olivarez v. State,171 S.W.3d 283(Tex.App.-Houston[14th Dist] 2005,no pet.) 6 Poindexter v. State,153 S.W.3d 402(Tex.Crim.App.2005) 4 U.S. v. Phillips, 496 F.2d 1395(5th Cir.1974) 7 U.S. v. Rojas Alvarez, 451 F.3d 320(5th Cir.2006) 7
STATUTES
TEX.HEALTH AND SAFETY CODE:
Art. 481.112 3 TEX.PENAL CODE
Art. 6.01 ~ 3 Art. 46.04 3 RULES
TEX.R.APP.P.:
RULE 68.4(a) i RULE 68.4(b) ii RULE 68.4(c), (d), (e) iii RULE 68.4(f) 1 RULE 66.3(e) 1
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STATEMENT REGARDING ORAL ARGUMENT T.R.A.P. 68.4(c)
Oral argument is requested as it will aid the Court in deciding
this unique set of facts herein.
STATEMENT OF THE CASE T.R.A.P. 68.4(d)
Petitioner was charged by indictment in cause No. 1333636 with
the offense of possession of a controlled substance, namely
cocaine weighing between one and four grams, with intent to
deliver. The offense was allegedly committed on January 18,2012.
(Clerk's Record,10). The indictment included one enhancement
alleging a prior felony conviction. (Id.) Petitioner filed a
motion to suppress statements made in the course of custodial
interrogation. (Id.,63). The motion was granted.(Reporter's Record
IV,7-8,39).
Petitioner entered a plea of not guilty and a jury was empanelled.
(Id.,9). The jury returned a verdict of guilty.(Id.,99).
On January 29,2014,after a hearing on punishment,the Court
found the enhancement, paragraph to be true and sentenced him
to a term of 5 years in the Texas Department of Criminal Justice
Institutions Division. (Clerk's Record,88)
STATEMENT OF PROCEDURAL HISTORY T.R.A.P. 68.4(e)
Petitioner was convicted in cause 1333636 with possession
of a controlled substance (cocaine) between one and four grams, .
with intent to deliver. On January 29,2014 after a hearing on
punishment he was sentenced to 5 years in prison. He timely appealed. No motion for rehearing was filed. The Fourteenth Court of APPEALS AFFIRMED ON April 16,2015. An extension of time to file
PDR was granted until July |7th,2015 making this timely submitted.
-in-
QUESTION PRESENTED FOR REVIEW T.R.A.P. 68.4(f)
WHETHER THE FOURTEENTH COURT OF APPEALS ERRED IN FINDING THE EVIDENCE SUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT PETITIONER KNOWINGLY AND INTENTIONALLY POSSESSED A CONTROLLED SUBSTANCE WITH INTENT TO DELIVER?
T.R.A.P. 66.3(e) WHETHER THE JUSTICES OF THE FOURTEENTH COURT OF APPEALS HAVE DISAGREED ON A MATERIAL QUESTION OF LAW NECESSARY TO THIS COURT'S DECISION?
Statement Of Facts
At 3:54 a.m. on January 18,2012 Sheriff's deputy Herlong was
dispatched to a motel in Houston,Texas to meet a caseworker from Children's Protective Services(CPS).( RR,IV,10-12). The
CPS caseworker Marcil Patrick had been called at 3:30 a.m. to
investigate a tip that drugs were being sold from a motel room where young children were present.(Id.,64,69) Herlong and Patrick
knocked on the door of the motel room and asked permission to
enter. (Id., 15) Looking into the room,Herlong saw an adult male
an adult female,and two very young children.(Id.,16).According
to Herlong the woman gave oral consent to enter.(Id.,23-24) The woman(Shelly Fisher) said,"Let us put some clothes on first," but left the door open.(Id.,32). The man( Jackson) appeared to be walking away from a coatrack beside the sink in an area outside the bathroom. Herlong said the coat seemed to be moving as if Jackson had just handled it.(ID.,17). using a flashlight, Herlong was able to see a scale by the sink. For safety he ordered petitioner to approach him.(ID.,18) Herlong detained petitioner and turned on the light in the room. At that point he observed powder residue on the scale.(Id.,19). In a pocket of a coat on the coatrack Herlong found a pill container with plastic baggies holding more powder.(Id.,20). Herlong could not say if the coat was a man's or a woman's coat; he admitted
2
that the drugs found in the pocket could possibly have belonged
to Shelly„Fisher.(Id.,25-27). He did not search Fisher's purse
eventhough the original call slip read "investigate Shelly Fisher
who is selling drugs with her boyfriend and has a 2-month old
and a 2-year old in the room".(Id.,34-35). He also did not make a determination if the room had been rented to Fisher.(Id.,25).
Deputy Alan Whitlock who was dispatched to the motel after Herlong and the CPS caseworker had already arrived, found on the counter by the sink a scale with plastic baggies(Id.,44,45-46) which field tested positive for cocaine. (Id.,47). Fisher and petitioner were both arrested and the children were placed in CPS custody.(Id.,) Fisher was taken into custody on a felony warrant but was not charged with possession of the drugs in
the room.(Id., 59,61). While the room was rented in Fisher's name
,(Id.,59) Whitlock could not say if the coat was a man's or a woman's (Id.,60) and Whitlock did not test the scale or baggies for prints and took no picture of the coat.(Id., 53-55).
ARGUMENT
Where a defendant is not in exclusive control of the place where
drugs are found, the State must show sufficient affirmative links between the defendant and the contraband to meet its burden
of proof. Mere presence by itself is insufficient to prove possession.
Being present in a room rented by Shelly Fisher where police received a tip that she was selling drugs from the motel is not sufficient to constitute an affirmative link to petitioner and the contraband. Petitioner was seen near a coatrack where drugs were
later discovered in a coat hanging there is also conjecture at
3
best. It is a gross miscarriage of justice where mere presence
alone without more tends to establish the State's case.
LEGAL SUFFICIENCY REVIEW STANDARD
The offense of possession of a controlled substance with intent
to deliver is defined as follows:
TEX.HEALTH AND SAFETY CODE 481.112
(a) a person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty group 1.
TEX.PENAL CODE 6.01
(b) Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of or in control of the thing for a sufficient time to permit him to terminate his control.
Petitioner moved for an instructed verdict on the ground that
the evidence did not establish sufficient affirmative links to
prove possession beyond a reasonable doubt. The motion was denied. (RR,IV,84). Petitioner did not contest the State's witnesses' testimony that Shelly Fisher consented to their entry into the motel room.(Id.,15,32). Hence the issue on appeal is the narrow
one of whether the evidence was sufficient to prove he knowingly obtained or received the cocaine or was aware that he had control of the cocaine for a sufficient time to permit him to terminate control while having the intent to deliver the same.
This Court has overruled previous line of cases affording factual sufficiency review and stated that Legal-sufficiency review is the only standard a reviewing Court need apply. Brooks v. State,323 S.W.3d 893,912(Tex.Crim.App.2010).
4
Therefore the trial court's ruling on petitioner's instructed
verdict motion should be reviewed by looking at the relevant
evidence in the light most favorable to the verdict and determining
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, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).
Gear v. State,340 S.W.3d 743,746(Tex.Crim.App-2011). Deference
must be given to the finder of fact's judgment of the weight
and credibility of the evidence. Isassi v. STATE,330 S.W.3d 633,
638 (Tex.Crim.App.2010)
TEST FOR AFFIRMATIVE LINKS TO CONTRABAND
A legal sufficiency analysis begins by examining the indictment
as incorporated in the court's charge to the jury. Fisher v. State 887 S.W.2d 49,53(Tex.Crim.App.1994)(Op.on rehearing). In the
present case, the trial, court charged the jury on possession in relevant part as follows:
"Possession" means actual care, custody, control, or management. ...
Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.(CR,79-80)
To prove unlawful possession of a controlled substance, the State must show that the defendant 1) exercised care, custody
or management over the substance; and 2) knew that the substance was contraband. Poindexter v. State,153 S.W.3d 402,405(Tex.Crim.
App.2005). This may be established by direct or circumstantial evidence, but the evidence must show that the defendant's connection
to the controlled substance is more than fortuitous. Id. at 405
-406. Mere presence at a location where drugs are found is not
5
sufficient to prove that a defendant exercised care, custody, or
control. Evans v. State,202 S.W.3d 158,162(Tex,Crim.App.2006).
Affirmative links between the defendant and the contraband must
be shown to prevent convicting a bystander whose proximity to
the drugs may be the result of happenstance. Id.,at 161-162.
In the present case, the drugs were found in a motel room
rented by Shelly Fisher.(RR IV,59). The original call slip
dispatching the deputies to the motel indicated that drugs were
being sold by Shelly Fisher in the motel room with her boyfriend and children.(Id.,34). The powder cocaine was found in the pocket
of a coat which the deputies could not identify as a man's or a
woman's.(Id., 26-27,60). Petitioner was present in the room
with Fisher and her children, but the State's witnesses did not
see petitioner actually holding, touching, or doing anything with the cocaine. (Id., 17).
The first witness on the scene, Deputy Herlong, simply assumed
petitioner was connected to the drugs; Herlong thought that since the coat appeared to be moving, petitioner must have been in contact with the coat. (Id.,20). But Herlong did,not see petitioner
do anything with the coat and could not even say if the coat belonged to him or Fisher.(Id., 26-27, 60). The coat was hanging on a rack next to the bathroom and it is possible petitioner
could have brushed by the coat on his way to or from the bathroom or the sink. Herlong's testimony about the coat was uncontradicted; however, a factfinder is not bound to accept uncontradicted testimony,, much less any inferences that purportedly flow from it. Evans, 202 S.W.3d at 162.
Where, as here, the accused is not in exclusive control of the place
6
where the evidence is found, it cannot be presumed that he or
she had knowledge or control of the contraband. Brown v. State
911 S.W.2d 744,747(Tex.Crim.App.1995). Additional independent
facts and circumstances must be shown to link the evidence to
the accused. Avila v. State,15 S.W.3d 568,673(Tex.App.-Houston
[14th Dist.]2000,no pet.). "Possession means more than just
being where the action is. It involves dominion and control
over the thing allegedly possessed. Affirmative links may be shown
by circumstantial evidence, but strong suspicion or even probability
will not suffice." Humason v. State,699 S.W.2d 922,923(Tex.App.-
Houston[lst Dist.]1985,aff'd, 728 S.W.2d 363(Tex.Crim.App.1987).
To evaluate whether such affirmative links have been shown,
the Court has set out an extensive list of factors as follows:
l)was the defendant present when the search was conducted; 2)was the contraband in plain view; 3)was the defendant near accessible contraband; 4)was the defendant under the influence of drugs when arrested; 5)did the defendant possess other drugs when arrested; 6)did the defendant make incriminating statements; 7)did the defendant attempt to flee; 8)did the defendant make furtive gestures; 9)was there an odor of contraband; 10)were other drugs or paraphenalia present; ll)did the defendant have the right to possess the place where the drugs were found;
12)was the place where the drugs were found enclosed; 13)was the defendant found with a large amount of- cash; 14)did the defendant's conduct indicate a consciousness of guilt. Olivarez v. State, 171 S.W.3d 283,291(Tex.App.-Houston[14th Dist.]
2005,no pet.); Evans,202 S.W.3d at 162,n. 10.
7
COURT OF APPEALS ERRED IN FINDING SUFFICIENT AFFIRMATIVE LINKS IN THIS CASE
Applying the above factors to the facts of the present case
the Court of Appeals erred. Petitioner was present when the search
was conducted. The drugs were not in plain view/but in the pocket
of a coat hanging on a coatrack. Petitioner was near the coat,
according to the State's witness, but the drugs in the pocket were
not immediately accessible. There'was no evidence that petitioner
was under the influence of drugs at the time. He possessed no
other narcotics. There was no evidence admitted as to incriminating
statements by petitioner. He made no attempt to flee and made no
furtive gestures. There was no evidence of odor of contraband.
Other paraphernalia, i.e.,the scale and baggies, were present,
but there was no evidence that he owned the coat or had a key to
the motel room. Petitioner was not shown to be in possession of a
large amount of cash, and did nothing to indicate a consciousness
of guilt.
The above factors for the most part do not establish the affirmative
links needed to prove possession beyond a reasonable doubt. The only
factors that tend to connect petitioner to the contraband are
that he was present in the motel room; he was seen near the coat
where the drugs were found; and drug paraphernalia such as scales
and baggies were visible in his proximity. But mere proximity to contraband is not sufficient to prove the element of knowing
possession. U.S. v. Phillips,496 F.2d 1395,1397(5th Cir.1974).
Further, where contraband is in a hidden place , the State must
show that the defendant was aware of the place and its contents.
Allen v. State,249 S.W.3d 680,693(Tex.App.-Austin,2008,no pet.);
U.S. v. Rojas Alvarez,451 F.2d 320,334(5th Cir.2006).
8
In the instant case the State offered no evidence that petitioner
was aware of the drugs in the coat pocket other than Deputy Herlong's
supposition that 1) the coat was moving because petitioner had done
something with the coat; and 2) that if petitioner had done something
with the coat, he must have known what was in.the pocket. Herlong did
not say he saw petitioner touch the coat or reach for the pocket.
Herlong could offer nothing more conclusive than speculation.
Further, the presence of the scale and baggies in plain view should
not be determinative. The original call for service indicated that
Shelly Fisher was selling drugs with her boyfriend and children
in the motel room. (RR ,IV,34 ). However, a defendant does not become
a party to joint possession of contraband even if he or she has
knowledge of an offense being committed by another. Allen,249 S.W.3d
at 698; Oaks v. State,642 S.W.2d 174,177(Tex.Crim.App.1982). Evidence
that merely tends to show a defendant has knowledge that cocaine
is present is not of itself sufficient to prove the requisite mental
state for exercise of care, custody, and control. Allen,248 S.W.3d
at 703.
In Allen the police observed drug transactions by a male suspect at
an Austin apartment and obtained a search warrant. When they executed
the warrant, they found a female present in the apartment with
marijuana in plain view. They located cocaine out of view in kitchen
cabinets and charged the female suspect with possession of cocaine.
The court held these facts to be insufficient to affirmatively
link her with the cocaine. 248 S.W.3d at 684-686,704. Just as in
Allen , in the present case the original reason for the police
to arrive at the scene was the alleged behavior of someone other
than petitioner. And as in Allen, petitioner's physical proximity
9
to the contraband led to his being charged with posssession.
Hence the logic of Allen suggests that the evidence of presence
in proximity to contraband was not sufficient to prove petitioner's
guilt.
It must be conceded that in Flores v. State, 100113 TXCA 14, 14-12-
00623-CR, Oct.1,2013) this Court explicitly declined to follow Allen
and another case reaching a similar result, Medina v. State, 2011
WL 6013094(Tex.App.-Houston[1st Dist.]2011,pet,ref'd). However, the
facts of Flores distinguish it from the present case. In Flores the
defendant was observed making a number of hand-to-hand transactions i
earlier on the day of his arrest. The defendant was then seen to
enter the premises with a key. Once inside,he met other individuals
at the door and engaged in a further apparent drug transfer.
When he was arrested, he was found to be in possession of $600 and
a medallion of a type favored by drug traffickers. Taken together
these facts in Flores, generate that degree of 'logical force'that
Cochran,J.,pointed to in Evans as sufficient to prove care, custody^
and control. 202 S.W.3d at 166. But none of these are present in
the instant case. Without them, the 'logical force' to ©rove posses s
-ion is lacking.
LOGICAL FORCE LACKING ALONG WITH UNIFORMITY OF COURT OF APPEALS DECISIONS .
The "Logical Force" discussed by Honorable Cochran,J. of the Court in Evans is surely lacking here along with the uniformity of decisions rendered in similar situations by both the First and Fourteenth Courts
of Appeals. Specifically, the Fourteenth Court of Appeals has failed to apprehend a material question in this whole equation; Shelly Fisher was the subject of the investigation.(RR IV,59) The room was hers. Herlong's conjecture is the 'sole' thread that ties this case.
10
All contents ,in the room, absent some substantive (credible) proof
belonged to Fisher.(RR IV,59) Did the State get two for the price
of one? Fisher was wanted on a felony warrant,which she went to jail
for. Did the State, in turn, ignore her involvement here and give
petitioner this possession with intent to deliver case? If lady
Justice is truly blind then it's Fisher's case,absent proof to the contrary-
Conventional wisdom and facts which are not in dispute suggest
that the State gave petitioner this case because it could. A "CI"
made a call identifying Fisher as selling drugs from the room.
(RR, IV, 34) (2) the room was rented to her. (3) the coat could
not be identified as to gender was found with drugs inside.(RR IV
26-27,60) (4) a scale and baggies suggesting intent to deliver
was also found. The 'sole' link which went uncontroverted was Herlong's
conjecture that Jackson seemed to be walking away from the coatrack.
Any affirmative links must 'necessarily' inculpate Shelly Fisher.
The Fourteenth Court of Appeals failed to give proper weight to
Fisher's involvement here. Their decision in this case conflicts
with another Court of Appeals on the same issue. T.R.A.P. 66.3(a) The First Court of Appeals has held: "Possession means more than
just being where the action is. It involves dominion and control
over the thing allegedly possessed. Affirmative links may be
circumstantial evidence, but strong suspicion or even, probability
will not suffice." Humason v. STATe, 699 S.W.2d 922,923(Tex.App.-
Houston[lst Dist.]1985,aff'd,728 S.W.2d 363(Tex.Crim.App.1987) Herlong's assertion that Jackson 'seemed' to be walking away from the coatrack. And the coat 'seemed'to be moving, are not affirmative
statements which should be given credibility in a court of law.
Herlong's assertions should be analyzed in the light of Humason
and this Court's previous precedent. Even when viewed in the light
most favorable to the verdict, this 'conjecture' fails to prove
knowing and intentional possession beyond a reasonable doubt.
This Court should grant Petition for discretionary review,and
appoint counsel for briefing and oral arguments.
PRAYER FOR RELIEF
WHEREFORE,PREMISES CONSIDERED, petitioner respectfully prays for
the relief requested.
Respectfully submitted,
~k
mBV-J^fcks on # 19403 66
Coffield Unit 2661 FM 2054 Tennessee Colony,Tx 75884
CERTIFICATE OF SERVICE
I, Jason B. Jackson hereby certify that a true and correct copy of the foregoing Petition for discretionary review was mailed postage prepaid to the Clerk of the Court of Criminal Appeals of Texas to P.O. Box 12308,.Capitol Station, Austin,Texas 78711. Executed on this *-~ day of <^3 ^ *V 2015 "^S!^ J^.
f ^-TgTgn^tu^e >T
UNSWORN DECLARATION
I,Jason B. Jackson being currently incarcerated at the Coffield Unit located in Anderson County, Texas declare under penalty of perjury that the foregoing is true according to myJoeliefL Executed on this <L^ day of C J^-\\\ 2015
•11-
12
APPENDIX
Affirmed and Memorandum Opinion filed April 16, 2015.
In The
jfitmrtztntty Court of Appeals
NO. 14-14-00150-CR
JASON B. JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court Harris County, Texas
Trial Court Cause No. 1333636
MEMORANDUM OPINION
Appellant Jason B. Jackson was convicted of possession with intent to deliver more than one but less than four grams of cocaine, a second-degree felony. See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.112(a), (c) (West 2010). Appellant presents one issue for review: whether the evidence is legally sufficient to show that appellant possessed the cocaine. We affirm.
Facts and Procedural Background
On January 18, 2012, the Texas Department of Family and Protective Services (DFPS) received a tip that Shelley Fisher was with her children at a motel, selling drugs with her boyfriend. Patrick Marcil, a DFPS caseworker, was assigned to investigate. Marcil requested assistance from law enforcement. Deputy Brandon Herlong of the Harris County Constable's Office, Precinct Five, responded.
Herlong met Marcil in the parking lot outside the motel. The two knocked on the door to room 208. Fisher gave them permission to enter. The room was dark. Herlong used his flashlight to scan the room. Herlong and Marcil saw Fisher, appellant, and two young children in the room.
Herlong observed appellant walking away from a clothes rack in the bathroom area of the room. There was a coat hanging on the rack. The coat was moving.
Herlong searched the coat and found a plastic pill container. Inside the pill container, Herlong discovered a clear plastic baggy containing a white powdery substance. The contents of the baggy tested positive for cocaine and weighed 2.524 grams.
The room contained items normally associated with the narcotics trade. A digital scale was on the counter next to the sink. Herlong saw a white powdery substance on the scale. Marcil observed small Ziploc-style baggies on the counter.
Appellant was indicted for knowing possession with intent to deliver cocaine weighing more than one gram and less than four grams. The case was tried to a jury. Appellant did not put on any evidence. After the guilt-innocence phase, appellant moved for an instructed verdict, which was denied. The jury convicted appellant of the charged offense. The trial court subsequently sentenced appellant to five years in the Institutional Division of the Texas Department of Criminal Justice. This appeal followed.
In his sole issue on appeal, appellant challenges the sufficiency of the evidence to support the jury's verdict. Appellant argues that because the evidence does not link him to the cocaine, the State did not prove the possession element of the charged offense.
Standard of Review
When evaluating the legal sufficiency of the evidence, we "consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt." Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). We defer to the factfinder's (1) resolution of conflicts in testimony; (2) evaluation of the credibility and weight of the evidence; and (3) responsibility to draw reasonable inferences from basic facts to ultimate facts. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). This standard applies equally to circumstantial and direct evidence. Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009). In reviewing cases based on circumstantial evidence, we need not find that the State's evidence negated every reasonable hypothesis other than the defendant's guilt. See Geesa v. State, 820 S.W.2d 154, 160-61 (Tex. Crim. App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). Our role "is restricted to guarding against the rare occurrence when a factfinder does not act rationally." Laster, 275 S.W.3d at 517. Accordingly, we will uphold the verdict unless a rational factfinder must have had a reasonable doubt as to any essential element. Id. at 518.
Applicable Law
A person commits a second-degree felony offense if he knowingly possesses with intent to deliver over one but less than four grams of cocaine. Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.112(a), (c). When an accused is charged with unlawful possession of a controlled substance, the State must prove: (1) the defendant exercised actual care, custody, control, or management over the contraband and (2) the accused knew the object he possessed was contraband. Flores v. State, 440 S.W.3d 180, 188 (Tex. App.—Houston [14th Dist.] 2013), judgment vacated on other grounds, All S.W.3d 399 (Tex. Crim. App. 2014); see Tex. Penal Code Ann. § 1.07(a)(39) (West Supp. 2014). Possession can be established with direct or circumstantial evidence. Poindexter v. State, 153 S.W.3d
402, 405-06 (Tex. Crim. App. 2005). The evidence must establish, to the requisite level of confidence, that the accused's connection with the drugs was more than just fortuitous. Id. at 406. This is the so-called "affirmative links" rule. Id.
When, as here, the accused is not in exclusive possession of the place where the contraband is found, the record must contain additional facts and circumstances linking the defendant to the contraband. Flores, 440 S.W.3d at 188. We must consider the totality of the circumstances when determining whether the defendant is linked to the contraband. Id. Mere presence at the scene where contraband is found does not establish possession. Id. However, presence or proximity might be sufficient to establish possession when combined with other direct or circumstantial evidence—i.e., "links." Id. We have established a nonexhaustive list of potential links that, individually or in combination, might establish the defendant's possession of contraband:
(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 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.
Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.). "The number of linking factors present is not as important as the 'logical force' they create to prove the crime was committed." Id. The absence of various links does not constitute evidence of innocence to be weighed against the links present. Flores, 440 S.W.3d at 189.
Analysis
The thrust of appellant's argument is that, under these factors, the State did not link him to the cocaine. We disagree.
Factor (1) favors a link because appellant was present when the police arrived and searched the motel room. See Watson v. State, 861 S.W.2d 410, 415- 16 (Tex. App.—Beaumont 1993, pet. ref d).
Factor (2) does not link appellant to the cocaine because the cocaine was hidden in a coat pocket. See Flores, 440 S.W.3d at 189.
Factor (3) favors a link. Appellant was seen in close proximity to the coat containing the cocaine and was observed moving away from the coat. The deputy saw the coat moving as appellant moved away from it towards the bathroom. The jury reasonably could have inferred that appellant was in close proximity to and could access the cocaine. See Poindexter, 153 S.W.3d at 409 n.24 (noting that link can be established when contraband is hidden in a place tied to the accused); Flores, A40 S.W3d at 189.
Factors (4), (5), (6), (7), and (8) do not link appellant to the cocaine. The record does not show at the time of arrest that he was under the influence of any drugs; possessed other contraband or narcotics; made incriminating statements; attempted to flee; or made furtive gestures.
Factor (9) does not link appellant to the cocaine because the record does not indicate whether the contraband in this case had an odor.
Factor (10) favors a link. See Flores, 440 S.W.3d at 190. Herlong and Marcil saw in plain view a scale and baggies on the counter next to the sink. According to Herlong and Marcil, these items are normally associated with the narcotics trade. Additionally, Herlong observed a white powdery substance on the scale that he believed was either cocaine or methamphetamine.
Appellant contends factor (11) does not favor a link because he was merely a guest in a hotel room visiting his girlfriend. The evidence indicates, however, that Fisher and appellant were sharing the motel room. When Herlong and Marcil arrived, appellant and Fisher were not fully dressed. Fisher was wearing only a t- shirt, and appellant was wearing only boxer shorts. The children were sleeping.
The call received by DFPS indicated both Fisher and appellant were in the motel room together selling drugs. The jury rationally could have inferred from appellant's and Fisher's shared occupancy and state of undress at the time of Herlong's and Marcil's early-morning entry that appellant had at least a right of possession with regard to the motel room. This factor favors a link.1 See id. (finding that indicators of possession support the inference of a right of possession); Watson, 861 S.W.2d at 415-16 (finding affirmative links to defendant even though defendant was not the registered occupant of motel room).
Factor (12), like factor (2), does not link appellant to the cocaine because the cocaine was found in an enclosed space, a coat pocket.
Factors (13) and (14) do not link appellant to the cocaine. The record contains no evidence that appellant had a large amount of money or that appellant's conduct indicated a consciousness of guilt.
In sum, upon entering the motel room shared by appellant and Fisher, Deputy Herlong observed appellant walking away from a jacket hanging on the motel-room clothes rack in the bathroom. The jacket was moving. When Deputy Herlong searched the jacket, he found a pill bottle containing a plastic baggy. The plastic baggy contained a white powdery substance that later tested positive for cocaine. Herlong and Marcil saw drug paraphernalia, a scale and plastic baggies, on the counter in plain view. From these facts, a juror rationally could have concluded that appellant had recently manipulated the moving jacket. A juror could have determined that appellant hid the pill bottle containing cocaine in the jacket pocket when Marcil and Herlong arrived. Therefore, a juror rationally could have concluded beyond a reasonable doubt that appellant exercised the requisite
Although appellant asserts that the room was registered to Fisher, the record contains no evidence establishing the identity of the person renting the room.
care, custody, control, or management over the contraband and, based on the presence of other drug paraphernalia and appellant's attempt to conceal the pill bottle from Marcil and Herlong, that appellant knew the substance possessed was contraband.
Conclusion
Viewing the evidence in the light most favorable to the verdict, we hold that the evidence of links between appellant and the cocaine was legally sufficient to support the jury's verdict that he possessed the cocaine. We affirm the trial court's judgment.
/s/ Marc W. Brown
Justice
Panel consists of Justices Jamison, Busby, and Brown. Do Not Publish — Tex. R. App. P. 47.2(b).
2This case is distinguishable from Allen v. State, 249 S.W.3d 680 (Tex. App.—Austin 2008, no pet.). There, the evidence only established that the defendant was present in an apartment in which she did not reside when cocaine was found secreted throughout the house— in a plastic bag buried in a closed dog food bag; under the kitchen sink; in a kitchen cabinet; and on a platter on top of a refrigerator. Id. at 694-99. The Austin Court of Appeals held that this evidence was legally insufficient to support a conviction for cocaine possession. Id. at 704. Here, in contrast, the evidence indicates that appellant was sharing possession of the motel room with Fisher; the cocaine was found in the pocket of a moving jacket in close proximity to appellant; the cocaine was immediately apparent when Herlong opened the pill bottle; and drug paraphernalia was seen in plain sight.