### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 7 -00 193 -CR

Elv in M it c he ll A r m st r ong , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 299TH JUDICIAL DISTRICT NO. D-1- DC 06 20570 8 , HO NORAB LE CHARLES F . BAI RD , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N

After a benc h trial endingMarc h 5, 2007, Elvin Mitche ll Armstrong was c onvicted of possessing coca ine in an amount g reater than f our g rams but less than 200 g rams, a se cond-de g ree felony

. See Tex. Health & Safety Code Ann. § 481.115(a) , (d) ( West 2003). The indictment alleg ed that Armstrong had four previous felony convictions for the offe nse of possessi o n o f a co n t rolled substance. A t the sentenc ing hear ing, the trial court f ound the enha

nceme nt alleg ations to be true and sente nced A rmstron g to twenty -five year s’ imprisonment. See Tex. P enal Code A nn. §§ 12.32(a) , .42(b) (West Supp. 2007). I n two points of error , Armstrongchalleng es the leg al and fac tual sufficie ncy

of the e vidence , arguing that it failed to establish that h e k nowing ly exercised actua l car e, contr ol, or custody over the coca ine found in his vehicle. We o v er ru l e both points of

err or and a ffirm the judg ment of convic tion.2 BACK GR OUND At around 2 a .m. on th e morningof Oc tober 11, 2006, Of fice r Scott L ando of the Austin Pol ice De partment wa s on patrol in northea st Austin. After obser ving a black Volkswa g on Jett a dis re g ard a sto p s ig n w hil e dr ivi ngwi tho ut its he a dli g hts on , Of fi c e r L and o ini tiate d a

tr a ff ic sto p. Th e dr ive r o f t

he Jett a did no t imm e diate ly pu ll ov e r bu t c on tin ue d d ri vin g un til , a ft e r t

we nty or thirty seconds, he parke d the ca r outside a ne arby

motel. Armstrong emer g ed fr om the driver’ s seat a nd beg an to walk awa

y “at a normal pace ,” as did his passeng er, a man initially identified as “Johnson.” Office r L ando order ed the men to stop, and as they complied and returne d to the vehicle, Offic er L ando noticed that J ohnson was “pa lming” a n item in his hand. At that time, backup of

fice rs Gre g ory

Cortez a nd Br ett Tabler iou a

rrived on the scene and beg an questioning Armstrong and Johnson while Officer L ando checke d Armstrong ’s driver ’s license a nd vehicle information. Offic er Corte z, who was positioned next to the driver’ s side door, pulled Armstrong from the car in order to c onduct a pr otective f risk. Meanw hile, from his position beside the pa sseng er door of the Jetta, O ffice r Tabler iou sme lled the odor of burnt mar ihuana a nd observe d a mar ihuana c iga rette in the a shtray . He a lso detecte d “a strongresidual smell” of marihuana

“both in the vehicle and o n t he per sons” of Ar mstrong a

nd J ohnson. When Office r Tabler iou ordere d J ohnson to ex it the ve hicle, he notice d that J ohnson kept his rig ht fist balled up

and that w hit e po wd e r w a s “ c omi ngou t be tw e e n [J oh ns on ’s ] fi ng e rs .” John so n r e fu se d to re lin qu ish the item in his hand or exit t he vehic le, and a strug g le ensue d betwee n him and Offic er Ta bleriou. I n order to assist Office r Table riou in ext rac tin g J o hnson from the ve hicle, Of fice r Cor te z de ta ine d A rm str on g by pla c inghim

in h and c uf

fs and sittin g him

on the g ro un d. Th e n, a s aTh e pa sse ng e r’ s n a me is a pp are ntl y No rr is M ic ha e l, b ut w e wi ll c on tin ue to r e fe r t o h im 1 a s “ J o h n s o n ” f

o r t h e s a k e o f

c l ar i t y. 3 result of the e ffor

ts of all three office rs, J ohnson was forc ibly remove d from the passeng er se at, tased in the leg , and take n into custody . The item in J ohnson’s hand was re co v ere d and found to be a plastic bagcontaining coca ine in rock a nd powder form. J ohnson was also in possession of over four hundred dollar s in cash, and a fter be ing taken into custody , he admitted to the police that he had g iven them a f

ake na me. 1 Af t er the alter cation with J ohnson, the offic ers plac ed Ar mstrong in the ba ck of a patr ol ca r so that the y c ou ld se c ur e the sc e ne , but Ar mst ro ng wa s not told that he wa s und e r a rr e st at that time. Whil e detained in the patrol car , Armstrong called Offic er Tabler iou ove r to him and stated that there was a blue bag in the trunk of his car be longingto J ohnson. He spec ifically denied owning the bag , and he told Of fice r Table riou that he s h o u l d wa i t b efor e g oing to the tr unk and investigating the ba g beca use doing so would raise J ohnson’s suspicions. Office rs discover ed that the bagcontained “ a g lass Py rex measu ri n g cu p wi th residue, blister pa cks of pa in relieve r medication, and a

larg e box of baking soda,” items that are used in the manufa cture of cr ack c ocaine

. The ba g and its contents wer e the only items found in the car

that Armstrongexpli citly disowned. Duringa sea

rch of the interior of the J etta, the of fice rs re cover ed a pla stic bagfrom the ce nter c onsole that containe d 2.3 g rams of p o wder ed coc aine. Soon af terwa rd, the tow-tr

uck driver who had arr ived to impound the J etta pointed out a “silver cylinder” that was also in the ce nter console. Offic er L ando opened the cylinder and f ound that it contained 4.1 g rams of c rac k coca ine.4

Armstrong , as the owne r and dr iver of the J etta, was char g ed with possessing all of the drug s found in the cente r console.

At tr ia l, t he Stat e c a lle d M ary

Ne ll V ill arr e a l, a

fo re ns ic c he mis t w iththe Au sti n Police Depa

rtment, who testified to the ty pe and the amount of drug s found in A rmstrong ’s vehicle , as we ll as Offi ce rs L an d o, Cortez, and Tabler iou to testify reg ardingthe eve nts surrounding Armstrong ’s ar

rest. Of fice r L an d o t es t ified that Armstrongand Johnson’s behavior whe n he attempted to pull them over w as “suspicious,” pa rticularly in light of the f

act that he encounte red the men in “a ve ry

high na rcotics a rea ” at two o’ clock in the morning . He state d that he made the de c isi on to a rr e st A rm str on g fo r p os sess io n of the dr ug s f ound in t he c e nte r c on so le be c a

us e Ar mstro ngwa s th e ow ne r o f t he ve hicl e and

the ve hic le wa s in

Ar mst ro ng ’s c are and

c on tr ol. Offic er L ando also stated that the c enter console wa s equally

acc essible to the driver

and the f ront seat pa sseng er a

nd that, while he c ould not remember whether t h e ce n t er c onsole containe d any enclose d compar

tments, the plastic bagfilled with powder c ocaine was “ in plain view” to someone leaninginside the vehicle

. He f urther te stified, based on his tra ining a nd experience , that drug deale rs often w ork tog ether and that the area wher e he e ncounter ed Ar mstrong’ s vehicle “ is one of the wo rs t are a s in

the c ity” fo r n arc oti c s. Offic er Ta

bleriou testified that while he was standingnext t o the passeng er door of the Jett a , h e c ou ld s me ll the od or of burn t ma ri hu ana and he de te c te d th e sme ll o f m ari hu ana on bo th Armstrongand Johnson. He stated that the prese nce of the marihua na in the ashtra

y and the c ocaine in J ohnson’s hand provide d the basis for the office rs’ sea rch of the interior of

the vehicle

. Offic er Cortez, who frisked Armstrong for we apons, testified that he did not find anyArmstrong does not raise a point of er ror on a ppeal r eg ardingthe admission of the 2 extraneous offe nses, which we re c orre ctly admitted for the pur

pose of showing k n o wl edge. See Tex. R. Evid. 404(b) (evide nce of other c rimes, wrong s, or bad a cts admissible to show knowledg e); se e als o H

oll is v . S tate , 219 S.W .3d 446, 468 (Tex. App.—Austin 2007, no pet.). 5 wea pons or a lar g e am o u n t o f ca sh on Armstrong and that Ar mstrong w as coope rative w ith the police duringthe entire episode.

The Stat e a l s o p re s en t edt es t i m o n y fr o m p o l i ce o ff

i ce rs wh o h adb ee ni n v o l v edin two

rec ent sting operations t hat had eac h led t o Armstrong ’s ar rest for delivery of a c ontrolled substance

. Both incide nts involved Armstrong eng ag ing unde rcove r police of fice rs from his ca

r, t he blac k Volkswag on J etta, and offe ring them quantities of crack coca ine, t he same substance f ound in the cylinder in the ce nter console of Armstrong’ s car in this case . During one of these incidents, whe n Armstrongg ave a

cra ck roc k to a “pr ostitut e dec oy ” upon securing a promise that they would meet in her motel room and smoke it togethe r, Armstronghad other passeng ers in the c ar w ith him. The extraneous-off

ense evidenc e was admitted over Armstrong ’s objection to show t h at Armstrong possessed the c ocaine knowing ly in the instant prosecution. 2 The c ourt found Ar

mstrong guilty

of possession of a c ontrolled sub s t an ce i n an amount g reater than four g rams but le ss tha n 200 g rams. On appe al, Armstrong ’s only issues are that the evidence was leg ally and factually insufficient to show that he ex erc ised actua l car e, contr ol, or custody over the coca ine in the ce nter c onsole of his vehicle

. STA ND AR

DS O F RE VI EW I n a leg al suffic iency

revie w, we vie w the evidence in the l ight most favor able to the verdic t and dec ide whethe r any rational trier

of fa ct could have found the e ssential elements of the6

offe nse beyond a re asonable doubt. J ac k so n v . V

irg ini a , 443 U.S. 307, 316 (1979); Ha mp ton v . S

tate , 165 S.W .3d 691, 693 (Tex. Crim. App. 2005). I n addition, we should “de termine whether the nec essar

y infere nces a

re r easona ble base d upon the cumulative forc e of all the evidenc e when view ed i n t h e l ight most favor able to the ve rdict.” Ho op e r v . S tate , 214 S.W .3d 9, 16-17 (T e x. Cr im. Ap p. 20 07 ). I n s o d oing , w e c on sid e r a ll e vid e nc e the fa c t f ind e r w a s p e rm itt e d to consider. Mo

ff v. Sta te , 131 S.W .3d 485, 488 (Tex. Crim. App. 2004). The trial c ourt, as fa ct finder , is the sole judge of the credibility of t he witnesses and of the weight assig ned to their testimony and may acc ept or reje ct any or all of a witness’s testimony

. Se e Ma rg ra v es v . S tate , 34 S.W .3d 912, 919 (Tex. Crim. App. 2000). We r esolve any inconsistencies in the e vidence in favor of the ver dict. Id. Th e ve rd ic t ma

y no t be ov e rt

ur ne d un le ss i t is ir

ra tio na l or un su pp or te d b y pr oo f b e y on d a

re a so na ble doubt. Ma tso n v . S

tate , 819 S.W .2d 839, 846 (Tex. Crim. App. 1991). The State is re quired to prove ever y element of the offe nse set forth in the indictment bey ond a re asonable doubt. Se e J ua re z v. S tate , 198 S.W .3d 790, 793 (Tex. Crim. App. 2006). A pe rs on c omm its the of

fe ns e of po sse ssi on of a c on tr oll e d sub sta nc e if he kn ow ing ly or

int e nti on a lly possesses it. Tex. He alth & Safety Code Ann. § 481.115(a)

. Under this indictment, the State had to prove bey ond a reasonable doubt that Armstrong (i) int entionally or knowing ly

(ii) possessed, i.e., exercised actua l c are , custody , control, and ma nag ement over

coca ine (iii) in an amount of more than fo ur grams bu t le ss t

ha n 2 00 g ra

ms o n o r a

bo ut t he date se t f

or th i n th e ind ic tme nt. See id. §§ 48 1. 00 2( 38 ), .1 15 (a ), (d ); Po ind e x te r v. S tate , 153 S.W .3d 402, 405-06 (Te x . Crim. App. 20 05 ); Br own v . S

tate , 911 S.W .2d 744, 747 (Tex. Crim. App. 1995). I n deter mining fa ctual sufficiency , we must weig h all the evidenc e in a ne utral lig ht and will reve rse only if the evidenc e supporting g uilt is so obviously weak as to r ender the conviction7

c le arl y wr on g and

manif e stl y un jus t, or if that e vid e nc e , a lth ou g h a de qu a te wh e n ta ke n a lon e , is so g reatly o u t we i g hed by

the over whelming weig ht of contra ry evidenc e as to re nder the conviction clea rly wrongand manife stly

unjust. Va sq ue

z v . S tate , 67 S.W .3d 229, 236 (Tex. Crim. App. 2002). An a pp e llate c ourt

mus t be a pp ro pr iate ly de fe re nti a l to th e ve rd ic t, i n o rd e r t o avo id s ub sti tut ingits own j udg ment for that of the fac t finder. Id. I n a benc h trial, the trial judg e is the sole fa ct finder , and his cre dibilit y

and we ight de terminations are entitled to the same de fer ence as that g iven to a jur y . See W il lia ms v . S

tate , 692 S.W .2d 671, 676 (Tex. Crim. App. 1984). A fac tual sufficie ncy revie w must include an examination of t he mos t important and relevant evidence that supports the appellant’ s complaint on appea l. Sim s v . S tate , 99 S.W .3d 600, 603 (Tex. Crim. App. 2003).

AN AL YSI S Legal Sufficiency

Arms t ro n g argues that there wer e insuffic ient “af firmative links” to cr eate a

rea sonable infe renc e that he was conscious of his c onnection with the drug s found in his car and that he exerc ised control over them. He contends that the evidenc e prese nted at trial in fac t served to link J ohnson, the passeng er, to the coca ine found in the cente r console a nd that his mere owne rship of the vehicle in which the drug s were found ca nnot by itself support a conviction for possession of the

c oc a ine . B a se d o n th e c umu lativ e fo rc e of a ll the e vid e nc e in t he re c or d, vie we d in

the lig ht m os t favor able to the ve rdict, we hold that the evidenc e wa s leg ally sufficie nt to support Armstrong ’s conviction on the g round that he e x erc ised ac tual car e, control, and custody over the coc aine in the cente r console of

his vehicle.8 Wit h reg ard to the of

fense of possession of a controlled substance, Texas c ourts have de ve lop e d a

numbe r o f f

a cto rs th at may

be us e d to lin k a

n a c c us e d to c on tr a

ba nd se ize d f ro m a location over which the a ccuse d does not possess exclusive control. See, e .g. , Br own , 911 S.W .2d at 74 7; Cud e v . S tate , 7 16 S.W. 2d

46 , 4 7 ( Te x. Cr im. Ap p. 19 86 ); W hit wor th v . S tate , 808 S.W .2d 566, 56 9 (T e x. Ap p. —Aus tin 19 91 , p e t. r e f’ d) . “ Whe the r t his e vid e nc e is d ir e c t or

c ir c ums tanti a l, i t mu st establish, to the requisite leve l of confide nce, that the acc used’s c onnection with t he drug was more than just fortuitous.” P o in d e xter , 1 5 3 S.W .3d at 405-06. This is what has until rec ently been de sc ri be d a s th e “ a ff

ir mativ e lin ks ru le ,” te rm ino log y that ha s b e e n a

ba nd on e d in fa vo r o f s imp ly ref err ing to the e videntiary

“links” betwe en the a ccuse d an d t h e contraband. Se e Ev an s v . S tate , 20 2 S. W.3 d 1 53 , 1 62 n. 9 ( Te x. Cr im. Ap p. 20 06 ) ( no tin g “ ‘a ff ir mativ e ’ a dd s no thingto t he pla in meaningof ‘link’” and cour t will hencef

orth “use only

‘link’”)

. The rele vant links ra ised by the parties in this case include: (1 ) t h e d ef endant’ s close proximit y

to the contra

band; (2) whether

the contra

band wa s convenien t l y acc essible to the defe ndant; (3) whe ther the c ontraba nd was in pla in vie w; (4) a ffirmative statements conne cting the defe ndant to the contra

band; (5) w hether

the def endant attempted to flee ; (6) whe ther the de fenda nt made f urtive g estures; (7) whether there was a strong residual odor of the c ontraba nd; (8) whe ther othe r c o n tr a

b an d o r dr

u g p ar a p h e r n a li a w a s p r e s e n t; ( 9 ) w h e th e r th e d e f e n d an t o w n e d o r had a rig ht to possess the place w here the drug s were found; (10) w hether the def endant wa s the operator of the au t o m o b i l e in which contra band wa s found; (11) whe ther the de fenda nt was found with a larg e amount of c ash o r we apons at the time of his a rre st; and (12) whe ther the c onduct of the de fenda

nt indicated consc iousne s s o f gu i l t. Se e Gr e go ry v . S tate , 159 S.W .3d 254, 26 0 ( Tex

. App .—Te xar ka na 20 01 , p e t. r e f’ d) ; Po rte r v . S tate , 873 S.W .2d 729, 733Under the links analy sis, “proxi mity ” re fer s to the phy sical di stance betwee n the ac cused 3 and the c ontraba

nd, while “a cce ssibili ty ” re fer s to the convenie nce with which the contra band ca n be re ache d. Whil e these fac tors ar e related and a re of ten discussed tog ether , they repr esent two distinct li nks. Se e Ev an s v . S tate , 202 S.W .3d 153, 163 (Tex. Crim. App. 2006).

9 (T e x. Ap p. —D a lla s 1 99 4, pe t. r e f’ d) ; W hit wor th , 808 S.W .2d at 569. The trie r of f act de termines whether the fac tors prese nted at trial combine to f orm an aff

irmative link between the acc used and the contraband suff

icient to establish g uilt bey ond a re asonable doubt. Se e Ha ll v . S tate , 86 S.W .3d 235, 241 (Tex. App.—Austin 2002, pet. ref ’d). The tri er o f fa ct m akes this determination by examining the n u m b er an d weig ht of the fa ctors indicatingcontrol and la ck of c ontrol of the contra band. Id. “The number of f actor s prese nt is of less import than the logic al forc e the f actor s have, a lone or in c ombination, in establishing the elements of the offe nse.” Id. ; se e als o W hit wor th , 808 S.W .2d at 569.

Armstrongmaintains that the State relied on the mere fac t that he was the owner and dr ive r o f t he c ar t o p ro ve that he kn ow ing ly po sse sse d th e dr

ug s f ound in t he c on so le

. Citi nga

c a se from the Co rp u s C h ri s t i court of a ppeals, he urg es that we should not permit “a sing le fa ctor indicating g uilt to t rump any number of othe r f

ac t o rs which did not tend to establish possession.” Se e J e nk ins v . S tate , 76 S.W .3d 709, 719 n.13 (Tex. App.—Corpus Christi 2002, no pet.). We disag ree , howeve r, that the State in t h is case pr oved only one fa ctor linking Armstrongto the drug s in the cente r console. I n addition to provin g t h at Armstrongowned a nd operated the vehic le, the evide nce established t hat Armstrong was in close proximi ty to the coca ine in t he c e nte r c on so le and

that th e c oc a ine wa s a c c e ssi ble to h im. The c ourt of criminal appea ls has 3 held that evidenc e showingthat drug s were located “ within arm’s re ach” of the de fenda nt “constitutes t wo ex tremely strong ‘pre sence ’ and ‘ proxi mity ’ links.” Evans , 202 S.W .3d at 163.10

The fa ct that the ce nter c onsole was a lso in close proxi mity to Johnson does not neg ate the pr esenc e and proxim i t y

links with respect to Armstrong , as he sug g ests on appea l. See, e .g. , Sh or tna c yv . S tate , 4 74 S.W. 2d

71 3, 71 5 ( Te x. Cr im. Ap p. 19 72 ) (“posse ssi on in a na rc oti c c a se

ne e d n ot b e e xclu siv e ” ); Ha rv e y v. Stat e , 487 S.W .2d 75, 77 (Tex. Crim. App. 1972) (“e vidence which shows that the a ccuse d jointly possessed the c ontraba

nd with another is suff

icient”)

. As an additional link, Of

fice r L ando testified that the drug s in the cente r console w ere in plain view to someone lea ning into the passeng er area of t he vehicle. W hile there was a question raised a s to whether a

Volkswag on J etta mig ht contain any enclose d are as with i n i t s console a nd whether any of the c ocaine m i gh t h ave be en in such a n enclose d compar

tment, it was for the f

act finder to de termine the c redibility of the witness’s testimony on this iss ue, and w e must resolve a ny inc on sis te nc y

c on c e rn ingwh e the r t

he c oc a ine wa s in

pla in v ie w i n f

a vo r o f t he ve rd ic t. Fur thermore , the re co rd contains evidence that Armstrong attempted to flee , y et another link. Office r L ando testified that a fter he activate d his overhea d lights and A rmstrong ’s veh icl e cam e to a st op , Ar ms tr on g g ot ou t o f the car andwal kedaway

t o ward s t he m ot el. By attempting to wa lk away , even at a “n o rm al pace,” A rmstrong evade d detention, re g ardle ss of wh e the r h e late r r e tur

ne d w he n in st ructe d to do so . Wa lki ngawa y fr om t he po lic e c ou ld a lso

re a so na bly be int e rp re te d a s c on du c t in dic a tin g Ar mst ro ng ’s c on sc iou sness of guilt, w hic h is a further link. I n addition, the record includes Offic er Tableriou’s testimony that Armstronghad a strong odor of mar ihuana and that other c ontraba nd, a mar ihuana c iga

rette, w as pre sent in the ashtra y of the ve hicle nea

r the c onsole wher e the c ocaine was found.11 Moreove r, Armstrong ’s statements to Off ice r T a b le r io u c a n b e v ie w ed as a

nother link

connec ti n g h i m to the coca ine found in the c onsole. The r ecor d shows that befor e the of fice rs

c on du c te d a

se arc h o f t

he ve hic le , A rm str on g c a lle d O ff ic e r T a ble ri ou ov e r to h im a

nd a le rt e d h im to t he fa c t th a t John so n h a d p la c e d a ba g in the tr unk. He fu

rt he r state d that the of

fi c e rs sh ou ld w a it

a wh ile be fo re loo kin g in t he tr un k a nd inv e sti g a tin g the bag , beca us e it w ou ld l oo k s us pic iou s if the y a pp ro a c he d th e tr

un k im me diate ly

a ft e r spe a kin g wi th him

. Ar mst ro ng ’s state me nts ind ic a te both his knowledg e that his vehicle contained c ontraba nd and his attempt to distance himself f rom the bag , which conta ined par apher nalia for manufa cturing cra ck coc aine. As a result, the fa ct finder could re asonably

have inf err ed fr om th es e s t at em ents that Armstrongknew of the exist ence of

c on tr a ba nd in t he veh icl e and

wa s atte mpt ingto a

vo id r e sp on sib ili ty

by bla min g John so n. Th is infere nce is fur

ther bolstere d by the evidence of Armstrong ’s ex trane ous offe nses; the pre sence of

c oc a ine and

pa ra ph e rn a lia in A rm str on g ’s same bla c k Jetta on tw o o the r r e c e nt o c c a sio ns su pp or ts the asser tion that Armstrong knowing ly possessed coc aine in this instance. Whil e the numbe r o f l ink s a lon e do e s n ot d ic tate th e ou tcome of the ana ly sis , Armstrong ’s asser

tion that “the only

fac tor” linking him to the drug s “wa s the fac t that [ he] owned the ca r” is unsupported by

the re cord. A lthough it is signific ant t h at Armstrong owne d and wa s exerci s i ng control over

the vehicle , fac ts making it less likely that J ohnson could have place d a po rt ion of his c oc a ine in t

he c e nte r c on so le wi tho ut A rm str on g ’s kn ow le dg e , this wa s n ot t he on ly evidenc e bef

ore the t ri al co u rt. The State a rg ues that the totality

of the c ircumstantial evidenc e, which includes the evidenc e that the men w ere stopped in an area known f or nar cotics traf

fic at 2 a .m. and

Of fi c e r L and o’ s te sti mony

that dr ugde a le rs in t

hat are a c omm only

wo rk in p a ir s, isJ ohnson was char g ed with posse ssion of the 11.4 g rams of cra ck coc aine a nd 0.8 g rams of 4 powder coca ine found in his hand. 12 sufficie nt to support a rational finding , bey ond a re asonable doubt, that Armstrong exercised a ctual

car e, contr ol, or custody

over the coca ine found in the c onsole of his vehicle . We ag ree . Ar mstro ngargue s, ho we ve r, that John so n w a s a lso in c los e pr oximi ty to t he same drug s and em p hasizes that it was J ohnson—not Armstrong—who made f urtive g estures, r esisted

sear ch and a

rre st, acte d nervous, smelled of m arihua na, had a lar g e amount of mone y on him, gave

a fa lse name to the po lic e , an d ha d on his pe rs on the same tw o s ub sta nc e s d isc ov e re d in

the c on so le of the Jetta. Thus, Armstrong ’s arg ument is simil ar to that made by the appellant in W hit wor th who, 4 in a n atte mpt to per su a de us that th e e vid e nc e wa s in su ff ic ie nt t o e sta

bli shthat he kn ow ing ly possessed mar ihuana, a

rg ued that “the State failed to disprove that other individuals standing a round h i s ca r w h i l e s m o k i n g m ar i h u an a co u l d h av e p l ac ed t h e co n t rab an d i n h i s ca r wi t h o u th i s kn o wl ed ge

or c on se nt. ” 88 4 S. W.2 d at 18 7. I n urg ingus to w e ig h h is c ulpabi lity re lativ e to Johns on ’s , Armstrongis essent i al l y as k ing that we neg ate e very other re asonable hy

pothesis raised by

the evidenc e other

than his g uilt in order to sustain the conviction. This is not t he standa rd for revie wing leg al suffic iency

in T ex as . Se e Ge esa v . S tate , 820 S.W .2d 154, 158 (Tex. Crim. App. 1991); W hit wor th , 884 S.W .2d at 187. Rather, we apply the ra tionality standard of J

ac k so n v . V irg ini a to deter mine whether any rational trier of fact could find the essential elements of the cr ime bey ond a

rea sonable doubt. Ge esa , 82 0 S.W. 2d a t 15 8; see also Poindex ter , 1 5 3 S

. W

. 3 d at 4 0 5

. I ns o d o i n g,

we e mphasize the fac t that any evidenc e that Johnson was also i n p o s s es s i o n of coc aine doe s not

nece ssarily

neg ate Ar

mstrong’ s own conne ctions to the drug s, based upon Armstrong ’s af firmative state me nts and c on du c t as e vid e nc e d in the re c or d. John so n’ s f

ur tiv e g e sture s o r atte mpt s to re sis t13

arr e st, fo r ex ample , a

re no t f a c tor s e sta

bli sh ingthat Armstrong did not possess the drug s in the

co n s ole. See J

enkins , 7 6 S. W. 3 d a t 7 1 9 n . 1 3

. Su c h e v id e n c e s im p ly r e in f o r c e s th a t Johnson was also g uilty

of the same offe nse. Ev e n ta kin g int o c on sid e ra

tio n th e e vid e nc e of John so n’ s link s to the dr ug s f ound in the c on so le , h ow e ve r, the fa c t f ind e r c ou ld h a ve de te rm ine d, ba se d o n th e pr oximi ty and a c c e ssi bil ity of the dr ug s to both me n a

nd Of fi c e r L and o’ s te sti mony

that dr ugde a le rs c omm on ly

wo rk in p a ir s, that Armstrongand Johnson were wor king in tande m. The t ri al co u rt was e ntitled to believe Ar mstro ng ’s a lte rn a tiv e hy

po the sis , th a t a ll o f t

he dr ug s b e lon g e d to John so n and he wa s si mpl y g ivi ngJohn so n a

ri de , b ut it was not r e qu ir e d to do so , a nd by its ve rd ic t, i t c le arl y

re je c te d th is alternate sce nario. See E

vans , 202 S.W .3d at 165. Th e re fo r e , b e c a

u s e t h e e v i d e n c e , v i e w e d

i nt h e l i g h tm o s tf

a v o r a b l e t o t h e v e rd ic t, is suf ficient to e stablish be y ond a rea sonable doubt that Armstrong knowing ly possessed the c ocaine found in his vehicle, we hold that it was leg ally sufficie nt to support the conviction. Factual Sufficiency

On the issue of the fac tual suffici en cy of the e vidence , Armstrongrepe ats the arguments prese nted on the issue of leg al sufficie ncy , asser ting that the verdic t is so ag ainst the g reat weig ht and pre pondera

nce of the evidenc e that it should be overtur ned. As dis c us se d a

bo ve , the State pr e se nte d e vid e nc e that the dr ug s we re fo un d in

pla in view in Armstrong ’s ca

r, that Armstrongwas drivingthe vehicle when the drug s were discovere d, that the drug s were in close proximi ty to Armstrong and we re easily acc essible to him, that Armstrongattempted to flee , that Armstrong ’s statements and c onduct indicated a consciousness of14

g uil t, a nd tha t A rm str on g ma de a ff

ir mat iv e state me nts ind ic a tin g he kn e w that hi s v e hic le contained c ontraba

nd. Viewingall the evidenc e in a ne utral lig ht, the evidenc e of Armstrong ’s links to the

c oc a ine in h is v e hic le is n ot s o w e a k th a t th e ve rd ic t se e ms clearly wr on g or

manif e stl y un jus t. There fore , we must compar e the evidenc e prese nted by Armstrong to the evidenc e pre sented by the State in order to deter

mine whether

the ver dict is ag ainst the g reat weig ht and pre pondera nce of the evidenc e. See V

asquez , 67 S.W .3d at 236. I n support of his fac tual sufficie ncy challeng e, Armstrong r easse rts the evidenc e that he argue s p ro ve s John so n’ s k no wl e dg e of

and c on tr ol o ve r t

he dr ug s fo un d in

the c on so le . H e a lso points to Officer

L ando’s state ment that he would not have arre sted Armstrong for possession of the drug s in the cente r console if Armstrong had not owned the vehicle a nd if he ha d instead bee n the passeng er r ather

than the drive r. The State responds that Armstrong ’s claim overlooks the evidenc e presented at trial that J ohnson and Armstrongcould have been w orking toge ther to sell the coca ine. This evidenc e inc lud e s O ff

ic e r L and o’ s unc on tr a dic te d te sti mony that it wa s “ ve ry

c omm on ” fo r d

ru g de a le rs to work in pairs; the f

act that Ar

mstrong a nd J ohnson were driving toge ther at 2 a .m. in an are a known fo r heavy narcot ic s tr a ff

ic ; te sti mony

that th e tw o me n s me lle d o f m ari hu ana and that th e re wa s a marihuana

cig are tte in the ashtray , indicating that they wer e smoking marihuana toge ther; and the two men’s suspicious behavior when O ffice r L ando attempted to initiate a t ra ffic stop a nd they instead exited the car

and beg an wa lking towa

rds the motel tog ether

. Armstrong ’s evidenc e r e g a r d in g Jo hn s o n ’ s c o n d

u c t doe s not preponder ate a g ainst the State’s evidenc e of A rmstrong ’s links to the coca ine in the console of his ve hicle and the e vidence15

su g g e sti ngAr

mstro ng and John so n we re wo rk ingin c on c e rt to s up po rt

a fi nd ingthat th e ve rd ic t is ag ainst the g reat weig ht and pre pondera nce of the evidenc e. We there fore hold that the evidenc e wa s fac tually sufficie nt to support Armstrong ’s conviction.

CO NC LU SION Be cause we find that the evidence was leg ally and factually sufficie nt to show that Armstrongexercised a ctual ca re, c ontrol, or custody

over the coca ine found in his vehicle, w e af firm the judg ment of convic tion.

__________________________________________ Diane H enson, Jus tice Be fore Chief J ustice L aw, Justi ces Waldrop a nd Henson Affir med Filed: F ebrua

ry 21, 2008 Do No t Pu

bli sh