5S7-/5

ORIGINAL

FILED IN

COURT OF CRIMINAL APPEALS

JUL 10 2015

Abel Acosta, Clerk

IN THE

TEXAS COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

JASON JACKSON

VS.

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

EVIDENTIARY HEARING REQUESTED

JASON JACKSON, PRO-SE

TDCJ-CID# 1940366

COFFIELD UNIT

2661 PM 2054

TENNESSEE COLONY,TX 75884

ItiCElVED IN

ffifflOFCRIMINAL APPEALS

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

-l-
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

-li-
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

-1-
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

-2-
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).

-3-
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

-4-
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

-5-
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.

-6-
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).

-7-
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

-8-
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

-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.

-9-

s
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 contraryConventional 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.

-10-
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 #1940366

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-
APPENDIX

-12-
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 ofthe 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 ofthe 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 ofthe 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 ofthe 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 ofthe 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 ofthe 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. refd).
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 tshirt, 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 ofmotel 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 ofthe person renting the room.

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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 ofJustices 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.

8