In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________
No. 06-10-00009-CR ______________________________
LISA GAIL HARRIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 196th Judicial District Court Hunt County, Texas Trial Court No. 25781
Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION
Lisa Gail Harris was convicted by a jury for possession of a controlled substance,
methamphetamine, and was sentenced to ten years in the Texas Department of Criminal
Justice—Institutional Division.1 Harris appeals, claiming the evidence is legally and factually
insufficient to support the conviction. We affirm the judgment.
I. FACTS
On the evening of March 8, 2009, Hunt County Sheriff’s Deputy David Wilson initiated a
traffic stop of a brown Chevrolet van driven by Christopher Johnson. Harris was the sole
passenger in the van. Because Wilson believed Johnson exhibited signs of having ingested
methamphetamine, he asked Johnson for consent to search the vehicle. Johnson consented, but
indicated that the van belonged to his wife—referring to Harris. After having advised Johnson to
stand in front of the patrol car, Wilson approached the passenger side of the vehicle. Because it
was a dark evening and Wilson was not carrying a flashlight, Harris did not see Wilson approach
her side of the van. As Wilson approached Harris’ window, he observed Harris bent over with her
arm underneath the passenger seat. It appeared to Wilson that Harris was either hiding something
or reaching for something. Wilson asked Harris to exit the vehicle and sought consent to search.
Harris indicated that she did not care if Wilson searched the vehicle.
1 ―[A] person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 1 . . . .‖ TEX. HEALTH & SAFETY CODE ANN. § 481.115(a) (Vernon 2010).
2 Upon searching the vehicle, Wilson discovered a clear container underneath the passenger
seat, containing a white, crystal substance, later identified as 3.6 grams of methamphetamine.
Wilson also discovered a glass pipe, commonly used to smoke methamphetamine, inside the van.2
Both Johnson and Harris denied ownership of the methamphetamine and the pipe; Harris
explained that ―other people‖ borrowed her van from time to time. Both Johnson and Harris were
arrested for possession of a controlled substance. Because Harris advised Wilson that the
container holding the methamphetamine would have her fingerprints on it, Wilson did not request
a fingerprint analysis of the container.
II. ANALYSIS
We are directed to subject challenges to the legal or factual sufficiency of the evidence to
the hypothetically correct jury charge analysis. Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim.
App. 2008). In order to prove its case under Section 481.115 of the Texas Health and Safety
Code, the State was required to prove that (1) Harris exercised actual care, control, and
management over the contraband; and (2) Harris knew the substance in her possession was
contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); Murphy v. State,
200 S.W.3d 753, 761 (Tex. App.—Texarkana 2006), aff’d, 239 S.W.3d 791 (Tex. Crim. App.
2007); see TEX. HEALTH & SAFETY CODE ANN. § 481.115(a). ―Possession‖ is defined as ―actual
care, custody, control, or management.‖ TEX. PENAL CODE ANN. § 1.07(a)(39) (Vernon Supp.
2 Wilson could not recall the precise location of the glass pipe, or whether the pipe contained any methamphetamine residue.
3 2009).
Where, as here, an accused is not in exclusive possession of the place where contraband is
found, additional independent facts and circumstances must be developed which link the
defendant to the contraband in order to raise a reasonable inference of the defendant’s knowledge
and control of the contraband. Poindexter, 153 S.W.3d at 406. This rule is designed to protect
an innocent bystander from conviction merely because of fortuitous proximity to someone else’s
drugs. Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim. App. 2006). Mere presence in the
vicinity of a controlled substance is insufficient to show possession. But proximity, when
combined with other direct or circumstantial evidence may be sufficient to establish beyond a
reasonable doubt a person’s possession of a controlled substance. 3 See id. (direct or
circumstantial evidence may be sufficient to establish possession beyond a reasonable doubt).
The evidence linking the accused to the contraband ―must establish, to the requisite level of
confidence, that the accused’s connection with the drug was more than just fortuitous.‖
Poindexter, 153 S.W.3d at 405–06. The number of links is not dispositive; rather, we look to
the ―logical force of all of the evidence, direct and circumstantial.‖ Evans, 202 S.W.3d at 162.
The following is a nonexclusive list of facts that have been found to be sufficient, either
singly or in combination, to establish a person’s possession of contraband: (1) the defendant’s
presence when a search is conducted; (2) whether the contraband was in plain view; (3) whether
3 The Texas Court of Criminal Appeals acknowledged, in a discussion of the ―affirmative links‖ test, that the term ―affirmative‖ adds nothing to the plain meaning of ―link.‖ When the term ―link‖ is utilized, it is clear that evidence of drug possession is judged by the same standard as all other evidence. Evans, 202 S.W.3d at 162.
4 the contraband was in close proximity to, or accessible by, the defendant; (4) whether the place
where the contraband was found was enclosed; (5) whether the defendant was under the influence
of narcotics when arrested; (6) whether the defendant possessed other contraband or narcotics
when arrested; (7) whether the defendant made incriminating statements when arrested;
(8) whether the defendant attempted to flee; (9) whether the defendant made furtive gestures;
(10) whether there was an odor of contraband present at the scene; (11) whether other contraband
or drug paraphernalia were present; (12) whether the defendant owned or had a right to possess the
place where the contraband was found; (13) whether the defendant was found with a large amount
of cash; (14) whether the defendant possessed weapons; and (15) whether conduct of the defendant
indicated a consciousness of guilt. Evans, 202 S.W.3d at 162 n.12; Hargrove v. State, 211
S.W.3d 379, 385–86 (Tex. App.—San Antonio 2006, pet. ref’d).
Harris contends the evidence is legally and factually insufficient because it does not link
her to the methamphetamine discovered in the van. In conducting a legal sufficiency review, we
consider the evidence in the light most favorable to the verdict to determine whether any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.
Free access — add to your briefcase to read the full text and ask questions with AI
In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________
No. 06-10-00009-CR ______________________________
LISA GAIL HARRIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 196th Judicial District Court Hunt County, Texas Trial Court No. 25781
Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION
Lisa Gail Harris was convicted by a jury for possession of a controlled substance,
methamphetamine, and was sentenced to ten years in the Texas Department of Criminal
Justice—Institutional Division.1 Harris appeals, claiming the evidence is legally and factually
insufficient to support the conviction. We affirm the judgment.
I. FACTS
On the evening of March 8, 2009, Hunt County Sheriff’s Deputy David Wilson initiated a
traffic stop of a brown Chevrolet van driven by Christopher Johnson. Harris was the sole
passenger in the van. Because Wilson believed Johnson exhibited signs of having ingested
methamphetamine, he asked Johnson for consent to search the vehicle. Johnson consented, but
indicated that the van belonged to his wife—referring to Harris. After having advised Johnson to
stand in front of the patrol car, Wilson approached the passenger side of the vehicle. Because it
was a dark evening and Wilson was not carrying a flashlight, Harris did not see Wilson approach
her side of the van. As Wilson approached Harris’ window, he observed Harris bent over with her
arm underneath the passenger seat. It appeared to Wilson that Harris was either hiding something
or reaching for something. Wilson asked Harris to exit the vehicle and sought consent to search.
Harris indicated that she did not care if Wilson searched the vehicle.
1 ―[A] person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 1 . . . .‖ TEX. HEALTH & SAFETY CODE ANN. § 481.115(a) (Vernon 2010).
2 Upon searching the vehicle, Wilson discovered a clear container underneath the passenger
seat, containing a white, crystal substance, later identified as 3.6 grams of methamphetamine.
Wilson also discovered a glass pipe, commonly used to smoke methamphetamine, inside the van.2
Both Johnson and Harris denied ownership of the methamphetamine and the pipe; Harris
explained that ―other people‖ borrowed her van from time to time. Both Johnson and Harris were
arrested for possession of a controlled substance. Because Harris advised Wilson that the
container holding the methamphetamine would have her fingerprints on it, Wilson did not request
a fingerprint analysis of the container.
II. ANALYSIS
We are directed to subject challenges to the legal or factual sufficiency of the evidence to
the hypothetically correct jury charge analysis. Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim.
App. 2008). In order to prove its case under Section 481.115 of the Texas Health and Safety
Code, the State was required to prove that (1) Harris exercised actual care, control, and
management over the contraband; and (2) Harris knew the substance in her possession was
contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); Murphy v. State,
200 S.W.3d 753, 761 (Tex. App.—Texarkana 2006), aff’d, 239 S.W.3d 791 (Tex. Crim. App.
2007); see TEX. HEALTH & SAFETY CODE ANN. § 481.115(a). ―Possession‖ is defined as ―actual
care, custody, control, or management.‖ TEX. PENAL CODE ANN. § 1.07(a)(39) (Vernon Supp.
2 Wilson could not recall the precise location of the glass pipe, or whether the pipe contained any methamphetamine residue.
3 2009).
Where, as here, an accused is not in exclusive possession of the place where contraband is
found, additional independent facts and circumstances must be developed which link the
defendant to the contraband in order to raise a reasonable inference of the defendant’s knowledge
and control of the contraband. Poindexter, 153 S.W.3d at 406. This rule is designed to protect
an innocent bystander from conviction merely because of fortuitous proximity to someone else’s
drugs. Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim. App. 2006). Mere presence in the
vicinity of a controlled substance is insufficient to show possession. But proximity, when
combined with other direct or circumstantial evidence may be sufficient to establish beyond a
reasonable doubt a person’s possession of a controlled substance. 3 See id. (direct or
circumstantial evidence may be sufficient to establish possession beyond a reasonable doubt).
The evidence linking the accused to the contraband ―must establish, to the requisite level of
confidence, that the accused’s connection with the drug was more than just fortuitous.‖
Poindexter, 153 S.W.3d at 405–06. The number of links is not dispositive; rather, we look to
the ―logical force of all of the evidence, direct and circumstantial.‖ Evans, 202 S.W.3d at 162.
The following is a nonexclusive list of facts that have been found to be sufficient, either
singly or in combination, to establish a person’s possession of contraband: (1) the defendant’s
presence when a search is conducted; (2) whether the contraband was in plain view; (3) whether
3 The Texas Court of Criminal Appeals acknowledged, in a discussion of the ―affirmative links‖ test, that the term ―affirmative‖ adds nothing to the plain meaning of ―link.‖ When the term ―link‖ is utilized, it is clear that evidence of drug possession is judged by the same standard as all other evidence. Evans, 202 S.W.3d at 162.
4 the contraband was in close proximity to, or accessible by, the defendant; (4) whether the place
where the contraband was found was enclosed; (5) whether the defendant was under the influence
of narcotics when arrested; (6) whether the defendant possessed other contraband or narcotics
when arrested; (7) whether the defendant made incriminating statements when arrested;
(8) whether the defendant attempted to flee; (9) whether the defendant made furtive gestures;
(10) whether there was an odor of contraband present at the scene; (11) whether other contraband
or drug paraphernalia were present; (12) whether the defendant owned or had a right to possess the
place where the contraband was found; (13) whether the defendant was found with a large amount
of cash; (14) whether the defendant possessed weapons; and (15) whether conduct of the defendant
indicated a consciousness of guilt. Evans, 202 S.W.3d at 162 n.12; Hargrove v. State, 211
S.W.3d 379, 385–86 (Tex. App.—San Antonio 2006, pet. ref’d).
Harris contends the evidence is legally and factually insufficient because it does not link
her to the methamphetamine discovered in the van. In conducting a legal sufficiency review, we
consider the evidence in the light most favorable to the verdict to determine whether any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We must give deference to ―the
responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts.‖ Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). We are not
5 required to determine whether we believe that the evidence at trial established guilt beyond a
reasonable doubt; rather, when faced with conflicting evidence, we must presume that the trier of
fact resolved any such conflict in favor of the prosecution, and we must defer to that resolution.
State v. Turro, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). In conducting a factual sufficiency
review, we consider the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414–15
(Tex. Crim. App. 2006).
We may find evidence factually insufficient in two ways: (1) the evidence supporting the
conviction is ―too weak‖ to support the fact-finder’s verdict, or (2) considering conflicting
evidence, the fact-finder’s verdict is against the great weight and preponderance of the evidence.
Laster, 275 S.W.3d at 518. In so doing, we may find the evidence insufficient when necessary to
prevent manifest injustice. Id. Although we give less deference to the verdict in a factual
sufficiency review, we will not override the verdict simply because we disagree with it. Id. Both
legal and factual sufficiency are measured by the elements of the offense as defined by a
hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997);
see also Grotti, 273 S.W.3d at 280.
While Harris was not in exclusive possession of the vehicle where the methamphetamine
was found, there was evidence of several additional facts and circumstances that demonstrate her
knowledge and control of this item of contraband. First, Harris readily acknowledged that she
was the owner of the vehicle where the contraband was found. Harris was present in the vehicle
6 when the search was conducted, where the methamphetamine was hidden underneath her
passenger seat in a Tupperware container. The contraband was easily accessible to Harris—just
within arm’s reach under her seat. Further, when Wilson approached the passenger side of the
van, he saw Harris bent forward with one of her arms underneath the passenger seat, causing
Wilson to suspect that Harris may have been attempting to conceal something. This could be
described as a ―furtive‖ gesture on Harris’ part. 4 In addition, a glass pipe used for smoking
methamphetamine was discovered in the van. Finally, Wilson testified that Harris advised, either
en route to the jail or while inside the jail, that the container containing the methamphetamine
should have her fingerprints on it because the Tupperware matches her Tupperware ―from the
house.‖ The plain implication of this statement is that Harris owned the Tupperware containing
the methamphetamine. This statement is incriminating, and when taken in conjunction with the
fact that Harris appeared to conceal the container underneath the passenger seat as Wilson
approached the van, that the container was within her easy reach, and that Harris owned the van
where the methamphetamine was concealed, we find a number of links tying Harris to the
methamphetamine. The number of factors or links present is not as important as the logical force
those factors have in establishing the elements of the offense. Hargrove, 211 S.W.3d at 386.
Here, we find particularly compelling the fact that the methamphetamine was located in the precise
4 ―Furtive‖ gestures are generally defined as those which are surreptitious, underhanded, or done by stealth. Lopez v. State, 267 S.W.3d 85, 94 n.26 (Tex. App.—Corpus Christi 2008, no pet.) (citing WEBSTER’S COLLEGIATE DICTIONARY 509 (11th ed. 1993)).
7 spot where Harris appeared to conceal something as Wilson approached the van.
Viewing this evidence in the light most favorable to the prosecution, a rational trier of fact
could have found beyond a reasonable doubt that Harris possessed the methamphetamine.
Moreover, we cannot say that the evidence supporting the conviction is ―too weak‖ to support the
fact-finder’s verdict. The only conflicting evidence is Harris’ denial of ownership or knowledge
of the drugs. We do not find the fact-finder’s verdict to be against the great weight and
preponderance of the evidence.
We affirm the judgment of the trial court.
Jack Carter Justice
Date Submitted: September 13, 2010 Date Decided: September 14, 2010
Do Not Publish