Affirmed and Memorandum Opinion filed April 16, 2015.
In The
Fourteenth 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
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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.
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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, 427 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,
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(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).
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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, 440 S.W.3d 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.
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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
1
Although appellant asserts that the room was registered to Fisher, the record contains no
evidence establishing the identity of the person renting the room.
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(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).
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