Opinion issued June 30, 2011
In The
Court of Appeals
For The
First District of Texas
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NO. 01-10-00460-CR
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Michael Wayne Johnson, Appellant
V.
The State of Texas, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Case No. 981353
MEMORANDUM OPINION
In 2004, appellant, Michael Wayne Johnson, pleaded guilty to the felony offense of possession with intent to deliver a controlled substance, cocaine, weighing more than 400 grams.[1] The trial court deferred adjudication of guilt and placed appellant on eight years’ community supervision. The State subsequently moved to adjudicate guilt, alleging that appellant had violated the terms and conditions of his community supervision by committing a second offense of possession with intent to deliver cocaine. After the trial court found the allegation true, it revoked appellant’s community supervision and assessed punishment at twenty-five years’ confinement and a $5,000 fine. In one issue, appellant contends that the State did not present sufficient evidence to “link” appellant to the cocaine, and, therefore, the trial court erroneously revoked appellant’s community supervision.
We affirm.
Background
On July 16, 2004, appellant pleaded guilty to possession with intent to deliver over 400 grams of cocaine. Pursuant to an agreed recommendation on punishment, the trial court deferred adjudication of guilt, placed appellant on community supervision for eight years, and assessed a $500 fine. One of the terms and conditions of appellant’s community supervision required him to avoid committing an offense against the laws of Texas. On February 19, 2010, the State moved to adjudicate guilt, contending that appellant had violated the terms and conditions of his community supervision by unlawfully possessing, with intent to deliver, over 400 grams of cocaine.
On February 2, 2010, Houston Police Department (“HPD”) Officer S. Glaze was on his regular night-shift patrol in a residential area of southeast Houston when he saw a vehicle fail to stop at a stop sign. Officer Glaze testified that he turned on his headlights to stop the vehicle, and the driver, later identified as Jason Perry, briefly stepped on the brakes and then sped away down another street. Perry pulled into a driveway just before he reached the next intersection. Officer Glaze testified that Perry immediately left the car and started walking toward a yard separating two houses. The passenger, whom Officer Glaze identified as appellant, opened his door and started to climb out of the car. Officer Glaze believed that the two men “were going to try to either flee or do harm to [himself] and [his] partner.” He ordered Perry to get back into the vehicle and ordered appellant to close his door. Both men complied.
As Officer Glaze approached the rear driver’s side of the vehicle, he smelled “what appeared to be burning marijuana.” He described this odor as “very pungent, very potent.” When Officer Glaze did not see any burning marijuana in plain view inside of the vehicle, he and his partner, Officer B. Stewart, removed Perry and appellant from the vehicle and placed them in handcuffs. According to Officer Glaze, Perry was “extremely nervous” and “apprehensive” about answering questions, more so than the usual individual stopped by police officers. Perry also had a “hard time” answering basic questions, such as “Where are you coming from?” and “Where are you on your way to?” Officer Glaze observed that Perry would not make eye contact with the officers and that he was trembling and shaking. Like Perry, appellant was unable to tell Officer Glaze where he was coming from or where he was going.[2] Officer Glaze testified that appellant also appeared nervous and was “displaying some of the same traits” as Perry, but Glaze also testified that appellant seemed “a little bit more calm.” Officer Glaze stated that, based on the smell of marijuana and Perry’s and appellant’s behavior, he believed that they were engaging in criminal activity.
During the ensuing search of the vehicle, Officer Glaze discovered “highly pungent” marijuana in bags in the center console of the car. Officer Glaze also discovered what appeared to be cocaine, located in a zipped-up backpack, sitting on the rear floorboard behind the front passenger seat. He testified that, after he found the cocaine, appellant “[did not] want to talk.” He agreed with the prosecutor that if appellant had not known about the cocaine in the backpack, he would have expected appellant to react differently upon being confronted with the cocaine. Officer Glaze testified that, in his experience, people who do not have knowledge of criminal activity occurring in their presence “would be ready to basically cooperate with the police because, from their standpoint, they have a position of innocence they’re trying to maintain.”
On cross-examination, Officer Glaze acknowledged that Perry was driving a rental car, although he did not know if Perry was the one who rented the car.[3] Officer Glaze also testified that the cocaine was zipped up inside the backpack and, thus, was not located in plain view. He also stated that Perry had nearly $2,500 in cash in his pocket and that he found two prescription bottles in Perry’s name in the backpack.
Officer Stewart testified that after he removed appellant from the vehicle, he asked him about the burning marijuana that the officers had smelled. Appellant “didn’t really respond,” he “just kind of looked at [Stewart],” and he “wasn’t very verbal.” According to Officer Stewart, “[appellant] just didn’t appear like he wanted to answer any questions.”
HPD Narcotics Division Officer J. Scales testified that when determining if individuals are involved in narcotics dealing or trafficking officers consider factors such as whether the passengers give conflicting statements to basic questions and whether they are using a rental car. Officer Scales, who was called to the scene after Officer Glaze discovered the cocaine, stated that appellant appeared intoxicated, smelled like marijuana, and had red, bloodshot eyes.[4] He further testified that appellant did not “appear surprised about what was going on” and that most people who are genuinely unaware of the presence of drugs are “very surprised [and] argumentative” when confronted with the drugs.
Officer Scales testified that the backpack contained four kilos of cocaine, several “half kilogram” packages, and individual baggies of approximately four-and-one-half ounces of cocaine, packaged for sale.[5] He also stated that a large quantity of cocaine has a distinctive “chemical” smell, and he was able to distinguish that smell from the “strong” smell of marijuana inside the car.
The trial court found the allegation in the State’s motion to adjudicate guilt true. The court revoked appellant’s community supervision and assessed punishment at twenty-five years’ confinement and a $5,000 fine. After the trial court denied appellant’s motion for new trial, this appeal followed.
Standard of Review
A community supervision revocation proceeding is neither criminal nor civil in nature; rather, it is an administrative proceeding. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Canseco v. State, 199 S.W.3d 437, 438 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). At a revocation hearing, the State must prove by a preponderance of the evidence that the defendant has violated a condition of his community supervision. Rickels v. State, 202 S.W.3d 759, 763–64 (Tex. Crim. App. 2006) (quoting Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)); Canseco, 199 S.W.3d at 438. The State satisfies its burden if the greater weight of credible evidence creates a reasonable belief that the defendant violated a condition of his probation as alleged by the State. Solis v. State, 589 S.W.2d 444, 447 (Tex. Crim. App. 1979); Armstrong v. State, 82 S.W.3d 444, 448 (Tex. App.—Austin 2002, pet. ref’d). Our review of an order adjudicating guilt and revoking community supervision is limited to determining whether the trial court abused its discretion in ruling that the defendant violated the terms of his community supervision. Rickels, 202 S.W.3d at 763 (quoting Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984)); Duncan v. State, 321 S.W.3d 53, 56–57 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). We examine the evidence in the light most favorable to the trial court’s order. Duncan, 321 S.W.3d at 57; Canseco, 199 S.W.3d at 439. As the trier of fact at a revocation proceeding, the trial court judges the credibility of the witnesses and the weight to be given to their testimony. Armstrong, 82 S.W.3d at 448.
Sufficiency of Evidence of Possession
Appellant contends, in his sole issue, that the State failed to present sufficient evidence that he possessed the cocaine found in the vehicle, and, thus, the trial court abused its discretion when it revoked his community supervision.
To prove unlawful possession of a controlled substance, the State must demonstrate that (1) the defendant exercised care, custody, control, or management over the substance; and (2) the defendant knew the matter possessed was contraband. See Tex. Health & Safety Code Ann. § 481.002(38) (Vernon 2010); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). The evidence, either direct or circumstantial, “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 (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)). This rule is designed “to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else’s drugs.” Id. at 406. Thus, when the defendant “is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband.” Id. (quoting Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981)); see also Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006) (“Mere presence at the location where drugs are found is thus insufficient, by itself, to establish actual care, custody, or control of those drugs.”); Armstrong, 82 S.W.3d at 449 (“More than the defendant’s mere presence near the drugs is required, especially when several people are present or in possession of the place where the drugs are found.”). “The mere fact that a person other than the accused might have joint possession of the premises does not require the State to prove that the defendant had sole possession of the contraband, only that there are affirmative links between the defendant and the drugs such that he, too, knew of the drugs and constructively possessed them.” Poindexter, 153 S.W.3d at 412 (emphasis in original); Cole v. State, 194 S.W.3d 538, 548 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (“The State need not prove exclusive possession of the contraband for conviction.”) (citing Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d)).
The State need not “exclude every reasonable hypothesis other than the defendant’s guilt, but it must show facts and circumstances that, viewed in the totality of the circumstances, indicate the defendant’s knowledge and control over the drugs.” Armstrong, 82 S.W.3d at 449. Texas courts have identified a non-exclusive list of possible “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 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 was 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.
Evans, 202 S.W.3d at 162 n.12. Additional link factors include a defendant’s “lack of surprise or concern” during an investigation and the amount of contraband discovered. See Fields v. State, 932 S.W.2d 97, 104 (Tex. App.—Tyler 1996, pet. ref’d) (holding defendant’s “unnatural equanimity and lack of concern” is a link factor); Bethancourt-Rosales v. State, 50 S.W.3d 650, 655–56 (Tex. App.—Waco 2001, pet. ref’d) (same); Robinson v. State, 174 S.W.3d 320, 328–29 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (considering amount of contraband). The Court of Criminal Appeals cautioned that these factors are “not a litmus test,” but are “simply some factors which may circumstantially establish the legal sufficiency of the evidence to prove a knowing ‘possession.’” Evans, 202 S.W.3d at 162 n.12. It is not the number of links that is dispositive, but rather the logical force of all of the evidence, direct and circumstantial. Id. at 162.
We examine each case on its own facts. Robinson, 174 S.W.3d at 326 (citing Hurtado v. State, 881 S.W.2d 738, 743 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d)). A factor tending to establish sufficiency in one particular set of facts may be of little value in another set of facts. Id. We need not consider affirmative link factors that are absent from the evidence. Batiste v. State, 217 S.W.3d 74, 80 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Hurtado, 881 S.W.2d at 745); see also Satchell v. State, 321 S.W.3d 127, 134 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (“The absence of various links does not constitute evidence of innocence to be weighed against the links present.”).
Appellant contends that he was not in close proximity to the backpack containing the cocaine because the backpack was located on the rear floorboard behind the passenger seat, and, as the front-seat passenger, he “did not have easy access to it.” Convenient access to the contraband is a factor that may link the accused to contraband found in a vehicle. See Robinson, 174 S.W.3d at 326 (citing Deshong, 625 S.W.2d at 329 and Hawkins v. State, 89 S.W.3d 674, 677 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d)). “Conveniently accessible” means that the contraband is “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.” Id. In Robinson, we held that the contraband, which was located in a factory compartment in the back wall of the truck and accessible only by folding down the rear seat of the truck, was “within the vicinity of and easily accessible to” the defendant, who was the front-seat passenger. Id. at 326–27; see also Medina v. State, 242 S.W.3d 573, 576–77 (Tex. App.—Waco 2007, no pet.) (holding contraband found under hood of vehicle was in close proximity to defendant, who was asleep in back seat).
Appellant cites the Fort Worth Court of Appeals’ decision in Tucker v. State, 183 S.W.3d 501 (Tex. App.—Fort Worth 2005, no pet.), for the proposition that items in the back seat are not accessible to front seat passengers. Tucker is factually distinguishable. In Tucker, the defendant, who had been sitting in the back seat, placed a plastic baggie containing cocaine in between the rear seats. Id. at 510. The Fort Worth court, in affirming the defendant’s conviction, noted that this particular baggie could not have been reached by either the driver or the front seat passenger. Id. Here, in contrast, the cocaine was found inside a backpack located on the rear floorboard, directly behind the seat in which appellant was sitting.[6] This backpack was within appellant’s reach. We conclude that the location of the cocaine relative to appellant inside the vehicle suggests that appellant had knowledge of and exercised control over the contraband. See Robinson, 174 S.W.3d at 327; see also Garcia v. State, 218 S.W.3d 756, 763 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (listing as affirmative link factor whether contraband was found on same side of vehicle as where accused was sitting).
The State contends that appellant’s behavior during the stop indicates a “consciousness of guilt” because appellant was nervous, was “reticent to answer even basic questions,” and could not tell Officer Glaze where he had come from and where he was going. “Excessive nervous behavior and unsettled demeanor may be examples of consciousness of guilt.” Lassaint v. State, 79 S.W.3d 736, 744 (Tex. App.—Corpus Christi 2002, no pet.); see also Hurtado, 881 S.W.2d at 743 (considering defendant’s nervousness and “unusual conduct” of frequently looking toward area where contraband found as affirmative links).
Officer Glaze testified that Perry was “extremely nervous” and apprehensive about answering questions, more so than the usual person when stopped by police officers. He also testified that appellant was nervous as well, although he was “a little bit more calm” than Perry. Officer Glaze stated that appellant was “probably” able to answer questions better than Perry, but he noted that both Perry and appellant were unable to tell him where they were coming from or where they were going. He testified that this behavior was “highly unusual” because most people, when stopped by an officer, are able to provide this kind of basic information with “almost no hesitation.” When asked how appellant responded to his questions, Officer Stewart testified:
He actually didn’t really respond. He just kind of looked at me. But he wasn’t—he just wasn’t very verbal. He was just kind of looking around. . . . [H]e just didn’t appear like he wanted to answer any questions.
Thus, the State presented evidence that appellant was nervous, uncooperative, and unable to answer basic questions about his activities and destination, which, according to Officer Glaze, was “highly unusual.” We conclude that appellant’s nervous and unusual behavior upon being stopped and questioned by the officers demonstrates a consciousness of guilt, which establishes another link between appellant and the cocaine.[7] See Evans, 202 S.W.3d at 162 n.12 (listing whether defendant’s conduct indicates a consciousness of guilt as affirmative link factor); Hurtado, 881 S.W.2d at 743 (considering defendant’s nervous and “unusual conduct” of frequently glancing at location of contraband as linking factors).
Similarly, we may also consider a defendant’s “unnatural equanimity and lack of concern throughout the temporary detention and the subsequent investigation” as an affirmative link factor. Fields, 932 S.W.2d at 104; see also Bethancourt-Rosales, 50 S.W.3d at 655 (“[L]ack of surprise or concern during a temporary detention and investigation can suggest knowledge of the presence of contraband.”). Here, Officer Scales testified that, after the other officers discovered the contraband, appellant did not “appear to be surprised about what was going on.” He further agreed that, in his experience, this behavior is not consistent with that of someone who was genuinely unaware of the presence of contraband, because individuals in that circumstance are generally “[v]ery surprised [and] argumentative” when contraband is discovered. According to Officer Scales, appellant did not demonstrate the behavior of one unaware of the contraband. Cf. Armstrong, 82 S.W.3d at 449–50 (“[Officer] Childs testified that when he discovered the drugs, Armstrong ‘immediately asked how that got into her bag,’ a statement that . . . could indicate she was unaware of the presence of the drugs.”). We therefore conclude that appellant’s lack of surprise at the discovery of contraband is another factor linking appellant to the cocaine.
We also consider the amount of contraband found in the presence of the defendant. Robinson, 174 S.W.3d at 328. “The power of this factor generally increases as the amount of contraband found increases. This factor, therefore, is more effective at establishing an affirmative link when large quantities of contraband are involved.” Id. at 328–29 (citing Roberson, 80 S.W.3d at 740); see also Allen v. State, 249 S.W.3d 680, 698 (Tex. App.—Austin 2008, no pet.) (“Where a large quantity of contraband is involved, the factor is more effective in establishing the requisite link. It may strengthen the inference that the accused was aware of the cocaine.”). In Robinson, we observed that two kilos of cocaine found in a compartment in the trunk “were neither an ‘insignificant amount of cocaine,’ nor an amount small enough to be concealed on one’s person.” 174 S.W.3d at 329 (quoting Roberson, 80 S.W.3d at 740). We concluded that because that quantity of cocaine was “too much for mere personal use,” the amount was “strongly indicative of an affirmative link between [the cocaine] and [Robinson.]” Id.
Similarly, here, HPD officers recovered a total of 4,733 grams, or 4.7 kilos, of cocaine from the backpack. This amount of cocaine far exceeds amounts generally intended for personal use. See id. We therefore conclude that the amount of cocaine found in the backpack is “strongly indicative” of an affirmative link between appellant and the cocaine. Id.
Furthermore, “[t]he odor of contraband in a vehicle is an accepted factor which may affirmatively link an accused to seized contraband.” Id. at 327 (citing Hurtado, 881 S.W.2d at 743 n.1); see also Evans, 202 S.W.3d at 162 n.12 (listing whether there was an odor of contraband as affirmative link). Here, all three officers testified that they smelled a strong odor of burning marijuana emanating from the vehicle. Officer Scales, the narcotics officer, testified that, in addition to the odor of marijuana, he also detected the distinct chemical odor of cocaine. He agreed with the prosecutor that the “strong” smell of marijuana did not “overpower” the smell of cocaine and that “[one] could distinguish from both of them.” We thus conclude that the odor of the cocaine is an additional link between appellant and the contraband.
An additional affirmative link is whether other contraband is also present. See Evans, 202 S.W.3d at 162 n.12; Batiste, 217 S.W.3d at 81. In Batiste, an officer testified that he smelled burning marijuana “immediately” as he approached the vehicle, and another officer testified that Batiste smelled like burnt marijuana. 217 S.W.3d at 81. Officers discovered, in addition to methamphetamine, which was the charged offense, a bottle of Xanax, eight “blunts,”[8] and eighty grams of marijuana. Id. We concluded that “the profusion of contraband found in the vehicle increases the probability that Batiste was aware of its presence.” Id. Here, all three officers testified regarding the strong smell of burning marijuana present both inside and outside of the vehicle. Officer Scales testified that appellant smelled like marijuana. Officers discovered marijuana in the center console of the vehicle. As in Batiste, we conclude that the additional contraband in the vehicle “increases the probability” that appellant was aware of its presence. Id.
When determining whether a defendant who was not in exclusive possession of the place where the contraband was found possessed the contraband, we consider the totality of the circumstances. See Bethancourt-Rosales, 50 S.W.3d at 656. Here, appellant was a passenger in a car rented by Perry that contained nearly five kilos of cocaine. The cocaine was located in an enclosed space, a backpack, in close proximity to and easily accessible by appellant, who was sitting directly in front of where the backpack was located on the rear floorboard. Both men were nervous, uncooperative, and unable to answer basic questions regarding where they were coming from and where they were going, which, according to Officer Glaze, was “highly unusual.” Appellant did not “appear to be surprised” by the discovery of contraband. Officers discovered nearly five kilos of cocaine, a quantity that far exceeds amounts generally intended for personal use, and Officer Scales testified that he could smell the distinct odor of cocaine beyond the “strong” smell of marijuana also present. Officers also discovered marijuana inside the center console of the car.
Appellant contends that the facts in this case are “closely related” to those in Armstrong, in which the Austin Court of Appeals held that the State failed to present sufficient evidence of possession, and, thus, that the trial court abused its discretion in revoking Armstrong’s probation. 82 S.W.3d at 449–50. We disagree.
In Armstrong, Armstrong, who was driving, was involved in a car accident. Id. at 446. The investigating officer, Childs, who was not the first officer on the scene, noticed that Armstrong’s sister-in-law, Felicia, was holding a bag, and one of the deputies informed him that Armstrong “was more interested in locating this purple bag . . . than worrying about [her] children” who were also involved in the accident. Id. Later, at the emergency room, Childs observed Felicia constantly standing or sitting near Armstrong and still holding the bag. Id. Felicia gave her consent to search the bag, which she said contained clothes, and Childs discovered a paper sack containing cocaine amongst the children’s clothes. Id. Armstrong immediately asked “how that got in her bag.” Id.
In determining whether the State presented sufficient evidence of possession, the Austin court noted that Childs did not see Armstrong hold the bag, he did not see her make any furtive gestures toward the bag, he did not find any other contraband on or near her, the contraband had no odor, and Armstrong did not appear to be under the influence of any illicit drugs. Id. at 449. Childs also did not testify regarding the amount of time between the accident, when police officers first arrived at the scene, and when he arrived at the scene, nor did he testify regarding how much time elapsed between Armstrong’s arriving at the hospital and Childs’ arriving and searching the bag. Id. The State presented no evidence regarding whether Armstrong and Felicia rode in the same ambulance, whether Felicia did anything while Armstrong was treated at the scene, or whether anyone else had access to the bag. Id. at 450. Furthermore, upon discovering the cocaine, Armstrong immediately asked how that got into her bag, which “could indicate that she was unaware of the presence of the drugs.” Id. at 449–50. The Austin court concluded that the affirmative links were “too weak to support the district court’s finding that Armstrong violated her probation by intentionally and knowingly possessing the drugs found in the purple bag.” Id. at 450.
The Austin court, in reversing the trial court’s revocation of Armstrong’s community supervision, held that the only evidence linking Armstrong to the cocaine was “(1) an unidentified deputy’s statement to Childs alleging that before Childs arrived on the scene Armstrong ‘was more interested in locating this purple bag . . . than worrying about the children,’ and (2) Armstrong’s statement at the hospital that the bag was hers.” Id. at 449. In contrast, as we have already discussed, even though appellant was a passenger in Perry’s rental car, several factors link him to the cocaine found by the officers in this case. The nexus between appellant and the cocaine discovered here is stronger than the nexus between Armstrong and the cocaine found in her bag. See id. at 449–50.
We thus conclude that the State met its burden of proving by a preponderance of the evidence that appellant unlawfully possessed cocaine. We therefore hold that the trial court did not abuse its discretion in finding the allegation in the motion to adjudicate guilt true and in revoking appellant’s community supervision.[9]
We overrule appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Chief Justice Radack and Justices Keyes and Higley.
Do Not Publish. Tex. R. App. P. 47.2(b).
[1] Tex. Health & Safety Code Ann. § 481.112(f) (Vernon 2010).
[2] Officer Glaze testified that this behavior was “highly unusual,” because, in most traffic stops, individuals are able to answer these basic questions with no hesitation.
[3] Appellant attached the rental car records, demonstrating that Perry had rented the car, to his motion for new trial.
[4] The trial court later admitted hair follicle test results revealing that appellant had tested negative for the presence of any controlled substances.
[5] HPD Criminalist Myra Cuevas testified that the contraband seized from the vehicle tested positive for 4,733 grams of cocaine.
[6] We further note that whether the contraband was found inside an enclosed space is another factor that courts have identified as establishing an affirmative link. See Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006); Robinson v. State, 174 S.W.3d 320, 327 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). Both the car itself and the zipped backpack containing the cocaine are enclosed spaces. See Robinson, 174 S.W.3d at 327. Thus, the fact that the cocaine was discovered in an enclosed space is another link between appellant and the contraband.
[7] Appellant argues that his “suspicious” and nervous behavior is consistent with being nervous due to his community supervision status. Although the evidence may support conflicting inferences, “we presume that the trier of fact resolved any such conflict in favor of the prosecution.” Howard v. State, 972 S.W.2d 121, 124 (Tex. App.—Austin 1998, no pet.) (citing Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993)).
[8] A “blunt” is an altered cigar containing marijuana. See Batiste v. State, 217 S.W.3d 74, 78 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
[9] Appellant argues that the evidence affirmatively links Perry, not appellant, to the cocaine because Officer Glaze discovered prescription bottles in Perry’s name in the backpack with the cocaine, Perry was carrying a large amount of cash, Perry was “extremely nervous” and more apprehensive than appellant, and Perry, as the renter of the vehicle, had sole control and the right of exclusive possession of the vehicle. We note that that State need not prove that the defendant had sole possession over the contraband; rather, someone other than the defendant may have joint possession as long as the State establishes links demonstrating that the defendant knew of and constructively possessed the contraband. See Poindexter v. State, 153 S.W.3d 402, 412 (Tex. Crim. App. 2005); Cole v. State, 194 S.W.3d 538, 548 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (“The State need not prove exclusive possession of the contraband for conviction.”) (citing Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d)).