### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00748
- CR

Stephen Armstrong, Jr. , Appellant

v. The State of Texas , Appellee

FROM THE 264TH DISTRICT COURT OF BELL COUNTY NO. 80557 , THE HONORABLE PAUL L. LEPAK , JUDGE PRESIDING

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

A jury convicted a ppellant Stephen Armstrong , Jr. , of possession of a controlled substance, less than one gram, and assessed his sentence at eighteenth months in state jail and a fine of $750. Tex. Health & Safety Code § § 481

. 115 (a) , (b) ; Tex. Penal Code § 12.35. In three issues, Armstrong challenges the legal and factual sufficiency of the evidence supporting his conviction and complains about error in the jury charge. W e will affirm the judgment of conviction.

BACKGROUND

Officers with the Belton Police Department were called out to the Hilltop Mobile Home Park on the morning of May 13, 2019, in response to a stabbing incident. The2

complainant, Andrea Andersen , 1 reported that her ex

- boyfriend Armstrong, against whom she ha d a protective order, had climbed in through a window of her trailer home, and she had stabbed him. Officer Richard Spurgeon testified at trial that he searched and photographed the trailer. During his search, Spurgeon saw a broken phone on the floor of the trailer and found a knife one to two feet inside the door area; there did not appear to be blood on the knife

.

While searching the outside of the trailer , officers noticed a pat h of footprints on the grass

. F ollowing the footprints, they discover ed a black “ wind breaker type [sic]” jacket next to an air conditioning unit underneath a window of the trailer. All of the trailer’s windows were “off the ground.” It had rained the n ight before, but although the grass , A/C unit, and side of the trailer were still wet, the jacket was dry, from which Spurgeon concluded it had not lain there long. Inside a pocket were a cell phone; lighter; stocking cap; baggie containing a white crystalline substance that appeared to be methamphetamine; and mail addresse d to Armstrong, including a medical bill

. Some of the mail was dated January 2019. A field test of the crystalline substance subsequently yielded a positive result for methamphetamine.

Spurgeon also testified that another officer, Sergeant William Hami lton, c ould be

seen on a body

- camera recording of the search wearing a short

- sleeved shirt and that it was “fairly w arm” during the daytime but “comfortable” the morning of the search

. Spurgeon added that officers wear body armor underneath the shirt, whi ch “kee p[s] heat well.”

Hamilton testified that he had been made aware that the “ suspect ,” who had “fled the scene” prior to his arrival , was Armstrong. An individual saw Armstrong walking near a

1 The complainant’s su rname is written as both “Anderson” and “Andersen” in the Reporter’s Record. We will refer to her as “Andersen,” the spelling used in the briefs of both parties, the witness index, and the caption immediately preceding her testimony.3

highway, and Hamilton located Armstrong at a gas station n ear the sighting. Armstrong did not try to flee at Hamilton’s approach. Although a police report described Armstro ng as wearing dark pants and a white shirt, Hamilton agreed that he was wearing a black shirt when Hamilton located him. However, Hamilton clarifie d that he was “looking for Stephen Armstrong and [knew] him very well from many previous experiences.” Armstrong insisted that he had not violated the protective orde r, been stabbed , or done anything wrong, but Hamilton could “ see evidence on [ Arm strong’s ] perso n that he’d been stabbed .” Hamilton arrested Armstrong for violation of a protective order and photographed him at the jail. While there, Armstrong asked Hamilton to return his phone, which he indicated he had left at the trailer home. Ha milton

r eturned to the trailer to search “[a]round the house.” Although he acknowledged that a phone was found in the jacket, Hamilton testified that he did nothing further with the phone.

Andersen testified that Armstrong had been living with her in t he three

- bedroo m trailer since February 2019 , despite the existence of the protective order

. On May 12, 2019, Armstrong , Andersen, and a friend smoked methamphetamine at the trailer. The friend left around 1 p.m., and Armstrong and Andersen spent the res t of the day smoking and arguing

. The argument became physical when Andersen attempted to leave the trailer, and Armstrong tried to stop her. Andersen managed to leave, but Armstrong followed her to a frien d’s house. Andersen
then returned to the traile r, while Armstrong stayed to speak with the friend. Andersen locked the door to the trailer because she “knew [Armstrong] was going to be insane at that point” and “feared for [her] life.” Armstrong climbed through a window of the trailer and ran toward Andersen . For about an hour, he kept her from leaving , and, when she attempted to call 911, he stepped on her phone, breaking it. Andersen grabbed a knife and testified that she stabbed4

Armstrong multiple t imes; Armstrong, bleeding, ran from the trailer. Anders en charged her phone and called 911 to “turn[ her]self in.” She testified that the jacket found by officers belonged to Armstrong and that she had seen him wear it before.

Lindsay Hatfield, a n anal yst with the Texas Department of P ublic Safety, testified that she tested the crystals seized from the jacket and determined that they contained methamphetamine in a weight of approximately .60 grams.

The jury found Armstrong guilty of possession of less than a gram of methamphetamine. Following a he aring on p unishment, it assessed his sentence at eighteen months in state jail and a fine of $750. This appeal followed.

DISCUSSION In three issues, Armstrong challenges the legal and factual sufficiency of the evidence proving possession and c omplains about an e rror in the jury charge.
Legal Sufficiency Due process requires that the State prove, beyond a reasonable doubt, every element of the crime charged. Jackson v. Virginia , 443 U.S. 307, 313 (1979); Lang v. State , 561 S.W.3d 174, 179 (Tex. Cr im. App. 2018 ). When reviewing the sufficiency of the evid ence to support a conviction, we consider all the evidence in the light most favorable to the verdict to determine whether, based on that evidence and reasonable inferences therefrom, any rational trier of fact could have found the essential elements of th e offense beyond a reasonable doubt. Jackson , 443 U.S. at 319; Temple v. State , 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); see Musacchio v. United States , 577 U.S. 237 , 243 (2016); Johnson v. Sta te , 560 S.W.3 d 224, 2265

(Tex. Crim. App. 2018). In our suf ficiency review, we consider all the evidence in the record, whether direct or circumstantial, properly or improperly admitted, or submitted by the prosecution or the defense. Thompson v. State , 4 08 S.W.3d 614 , 627 (Tex. App.

— Austin 2013, no pet.); see Je nkins v. State , 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We assume that the trier of fact resolved conflicts in the testimony, weig hed the evide nce, and drew reasonable inferences in a manne r that supports the verdict. Jackson , 443 U.S. at 318; Laster v. State , 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We consider only whether the factfinder reached a rational decision. Arroyo

v. State , 559 S .W.3d 484, 487 (Tex. Crim. App. 2018); see Mor gan v. State , 501 S.W.3d 84, 89 (Tex. Crim. App. 2016) (observing that reviewing court ’ s role on appeal “is restricted to guarding against the rare occurrence when a fact finder does not act ration ally” (quotin g Isassi

v. State , 330 S.W.3d 633, 638 (Tex. C rim. App. 2010))).

The trier of fact is the sole judge of the weight and credibility of the evidence. See Zuniga v. State , 551 S.W.3d 729, 733 (Tex. Crim. App. 2018); Blea v. State , 483 S.W.3d 29, 33 (Tex. Cri m. App. 2016); see also Tex. Code Crim. Proc. art 36.13 (explaining that “the jury is the exclusive judge of the facts”). Thus, when performing an evidentiary

- sufficiency review, we may not re

- evaluate the weight and credibility of the eviden ce and substi tute our judgment for that of the factfinder. Arroyo , 559 S.W.3d at 487; see Montgomery v. State , 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we must defer to the credibility and weight determinations of the factfinder. Cary v. Sta te , 507 S.W.3 d 750, 757 (Tex. Crim. App. 2016); Nowlin v. S tate , 473 S.W.3d 312, 317 (Tex. Crim. App. 2015). When the record supports conflicting reasonable inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we6

defer to that resolution. Zuniga , 551 S.W.3d at 733; Cary , 507 S.W.3d at 757; see Musacchio , 577 U.S. at 243 (reaffirming that appellate sufficiency review “does not intrude on the jury ’ s role ‘to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ulti mate facts’” (quoting Jackson , 443 U.S. at 319)). We must “determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light mo st favorable to the verdict.” Murray v. State , 457 S.W.3d 446, 448 (Tex. Crim. App. 2015) (quoting Clayton , 235 S.W.3d at 778); accord Arroyo , 559 S.W.3d at 487. The jury is not allowed, however, to make conclusions based on speculation, whi ch, unlike re asonable inferences, are “ i nsufficiently based on the evidence to support a finding beyond a reasonable doubt .” Tate v. State , 500 S.W.3d 410, 413 (Tex. Crim. App. 2016) ; see Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (“ Speculat ion is
mere t heorizing or guessing about the possible meaning of facts and evidence presented. ”)

.

Because factfinders are permitted to make reasonable inferences, “[i]t is not necessary that the evidence directly proves the defendant ’ s guilt; circumstanti al evidence is as probative as direct evidenc e in establishing the guilt of the actor, and circumstantial evidence alone can be sufficient to establish guilt.” Carrizales v. State , 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper , 214 S.W.3d at 1 3 ) ; accord Joh nson , 560 S.W.3d at 226. The

s tandard of review is the same for direct and circumstantial evidence cases. Jenkins , 493 S.W.3d at 599; Nowlin , 473 S.W.3d at 317.

Under the Texas Health and Safety Code, an individual commit s an offense if he or she “ knowin gly or intentionally possesses” methamphetamine in an amount of less than one gram. Tex. Health & Safety Code §§ 481.102(6), .115 (a), (b). “Possession” means “actual7

care, custody, control, or management.” Id

. § 481.002(38). Accordingly , to prove unlaw ful possession of a controlled substance, the State must prove that the accused : (1) “exercised care, control, and management over the contraband” and (2) “knew the matter was contraband.”
Ex parte Lane , 303 S.W.3d 702, 709 (Tex. Crim. App. 2009)

. “ Poss ession 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.” Tex. Penal Code § 6.01(b).

We have explained the requiremen ts for proving possession o f contraband when the accused is not in exclusive possession or control of the place where the contraband is found:
When an accused is not in exclusive possession and control of the place where the contraband is f

ound, it cannot be concluded or presumed t hat the accused had knowledge of or control over the contraband unless there are additional independent facts and circumstances connecting or linking the accused to the knowing possession of contraband . . . . Sim ilarly, when th e contraband is not found o n the accused’s person or it is not in the exclusive possession of the accused, additional independent facts and circumstances must link the accused to the knowing possession of the contraband.

Allen v. State , 249 S.W.3d 680, 69 0

– 91 (Tex. App.

— Austin 2008, no pet.)

. “ Mere presence at the location where drugs are found is thus insufficient, by itself, to establish actual care, custody, or control of those drugs.” Evans v. State , 202 S.W.3d 158, 162 (Tex. Crim. App . 2006). “Howe ver, presen ce or proximity, when combined with other evidence, either direct or circumstantial (e.g., ‘links’), may well be sufficient to establish that element beyond a reasonable doubt.” Id

.8 The Court of Criminal Appeals (“CCA”) has not ed that the fol lowing non exhaustive 2 list of “links ” 3 may circumstantially establish the legal sufficiency of the evidence to
prove knowing possession:
(1) the defendant’s presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defenda nt’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 in crimina ting 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 def endant 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 defe ndant i ndicated a consciousness of guilt.

Id . at 162 n.12 (quoting Evans v. State , 185 S.W.3d 30, 35 (Tex. App.

— San Antonio 2005), rev’d on other grounds by Evans , 202 S.W.3d 158). The absence of links does not constitute evidence of innocence to be weigh ed agai nst the links present. James v. State , 264 S.W.3d 215, 219 (Tex. App.

— Houston [1st Dist.] 2008, pet. ref’d). In performing this review, “[i]t is . . . not the number of links that is dispositive, but rather the logical force of all of the evidence , direc t

2 A dditional links have been identified by o ur sister courts. See e.g., Black v. State , 411 S.W.3d 25, 28

- 29 (Tex. App.

— Houston [14th Dist.] 2013, no pet.) ( incriminating statements made by accused connecting himself to contraband); Villegas v. State , 871 S.W.2d 894 , 896 (T ex. App.

— Houston [1st Dis t.] 1994, pet. ref ’ d) ( proximity of contraband to defendant’s personal belongings).

3 Although both parties’ bri efing used the term “affirmative links,” the C ourt in Evans recognized that “affirmative” added nothing to the plain meaning of “link” and dec la red that , going forward, it would use “only ‘link’ so that it is clear that evidence of drug possession is judge d by the same standard as all other evidence. ” Evans v. State , 202 S.W.3d 158, 16 1 n.9 (Tex. Crim. App. 2006)

.9

and circumstantial.” Id

. at 162. The force of the links need not be such as to exclude every other alternative hypothesis except the defendant’s guilt. Brown v. State , 911 S.W.2d 744, 748 (Tex. Crim. App. 1995). “Whether the evidence b e direct or cir cumstantial, ‘it must establish, to the requisite level of confidence, that the accused’s connection with the [contraband] was more than just fortuitous.’” Allen , 249 S.W.3d at 691 (quoting Brown , 911 S.W.2d at 747) ; see Poindexter
v. State , 153 S.W.3d 40 2, 406 (Tex. Crim. App. 2005), abrogated on other grounds by Robinson
v. State , 466 S.W.3d 166 (Tex. Crim. App. 2015) (“ The ‘affirmative links rule’ is designed to protect the innocent bystander from conviction based solely upon his fortuito us proximity to someone else’s drugs.”)

. Ultimately, however, the links merely help to guide a reviewing court’s analysis; the fundamental sufficiency inquiry is still the standard set forth in Jackson : “ Based on the combined and cumulative force of the e vidence and an y reasonable inferences therefrom, was a jury rationally justified in finding guilt beyond a reasonable doubt? ” Tate , 500 S.W.3d at 414

.

Here, the jury heard evidence of the following links:
(1) Armstrong resided at the trailer outside o f which the ja cket containing methamphetamine was found and had been at the trailer the day before it was discovered; (2) The jacket belonged to Armstrong, and he had been seen wearing it on at least one prior occasion; (3) Armstrong had been wear ing a jac ket the night before the jacket in question was found but was not wearing one when he was arrested; (4) Armstrong climbed into the trailer through a window, and the jacket was found beneath one of the trailer’s windows next to a path of footprints leading around the tra iler; (5) the windows were “off the ground,” and the jacket was next to an A/C unit providing access to the window; (6) mail addressed to Armstrong was found in a pocket of the jacket containing the methamphetamine; (7) Armstrong pur chased me thamphetamine on May 11th and spent May 12th, the day before the jacket was found, smoking methamphetamine provided by a friend; (8) it had rained the night before the jacket was found, and, although the grass around the jacket was wet, the jacket itself w as dry, indica ting that it had not lain there long; (9) a phone was found in the pocket of the jacket, and Armstrong had indicated to an officer that he had dropped his phone near the trailer; and (10)10

Armstrong initially told the arresting office r that he had not been near the trailer nor been stabbed, despite evidence to the contrary.
Armstrong argues on appeal that “the affirmative links analysis ha s a chronology component” and “suggests that this . . . component attaches to every potential af firmative link.”
In su pport of his contention, Armstrong cites to cases listing links involving a temporal element

. See Damron v. State , 570 S.W.2d 933, 936 (Tex. Crim. App. [Panel Op.] 1978) (listing whether appellant was at place searched at time of search, whe ther other per sons were present and shown to be living there, and whether appellant was in possession of contraband at time of arrest as links to be considered in determining possession) ; Villegas , 871 S.W.2d at 896 (“ whether the defendant was a t the place searched at t he time of the search ” and “ whether there were other persons present at the time of the search ”); Ex parte Stowe , 744 S.W.2d 615, 617 (Tex. App.

— Houston [1st Dist.] 1987, no pet.) (listing Damron links, among others) . While it is true that

v arious putativ e links listed in these and other cases may include “a chronology component,” no list is exhaustive , and other links do not include such a component . Moreover, as noted above, the nonexistence of certain links is “not evidence of innocence” to be balanced against the links present in this case. James , 264 S.W.3d at 219 (citing Hernandez v. State , 538 S.W.2d 127, 131 (Tex. Crim. App. 1976)). Instead, we must focus on the “logical force” of the “combined pieces
of circumstantial ev iden ce in t his case , ” tog ether with “reasonable inferences from them.”
Evans , 202 S.W.3d at 166. I nsomuch as Armstrong maintains that we should read a temporal limitation into a link where none is expressly stated, we find nothing in the case law to support his ass ertion

.11 Arms trong also argues that when contraband is “ hidden, ” the State “must offer evidence that the defendant knew of the existence of the hidden location and its contents.” In support of his argument , he cites to our previous decision in Allen v. State , 249 S.W. 3d 680, 694 (Tex. App.

— Austin 2008, no pet.) , as well as two opinions from our sister courts, Roberts

v. State , 321 S.W.3d 545 , 549 (Tex. App.

— Houston [14th Dist.] 2010, pet. ref’d) , and Medina

v. State , 242 S.W.3d 573, 576 (Tex. App.

— Waco 2007, no pet.)

. His argument , however, misconstrues the opinions . In Allen , we noted only that “[w]here the contraband is hidden or secreted, the State . . . must address whether the accused knew of the existence of the secreted place and its contents ” a nd must “ link th e accused to the contraband in such a manner that a reasonable inference arises that the accused knew of its existence and its whereabouts and that the object possessed was contraband. ” 249 S.W.3d at 694 (internal citations omitted) (empha sis added). The conclusions of our sister courts were similarly nuanced

. See Roberts , 321 S.W.3d at 549 (“ [T] he State must show addi tional facts and circumstances linking the accused to the contraband to show the accused ’ s knowledge of or control over th e contraband. ”); Medina , 242 S.W.3d at 576 (“ [T]he State must address whether the defendant knew of the existence of the secret place and its contents.”).

Here, the State, in presenting evidence of the links listed above, sufficiently tied Amstrong to the methamphetamin e in such a manner that the jury could have reasonably inferred that he knew of its existence, location , and nature as contraband. Viewing the evidence in the light most favorable to the verdict, t he logical force of the evidence , couple d with reasonable inferences therefrom , was sufficient to establish beyond a reasonable doubt that Armstrong exercised actual care, custody, control, or management of the methamphetamine and knew that it12

was in fact methamphetamine. The jury was not requi red to believe evi dence to the contrary.
See Evans , 202 S.W.3d at 166. A nd a lthough Armstrong attempted in closing argument to impugn Andersen’s credibility and suggest that she planted the jacket and methamphetamine, it was the jury’s prerogative as the exclusive judge o f facts to make decisions on the weight and credibility of the evidence. See Zuniga , 551 S.W.3d at 733 ; Tex . Code Crim. Proc. art. 36.13. Assuming that the jury resolved conflicts in the evidence and drew reasonable inferences in a

mann er supporting the verdict, we cannot conclude that it reached an irrational decision. Arroyo , 559 S.W.3d at 487; see Jackson , 443 U.S. at 318. Consequently, we overrule Armstrong’s
first issue.
Factual Sufficiency On appeal, and citing Article V, S ecti on 6 of the Texas C onstitution and Article 44.2 5 of the Code of Criminal Pr oc e dure, Armstrong contends that Brooks v. State , 323 S.W .3d 893 (Tex. Crim. App. 2010), which overruled t he factual

- sufficie ncy standard, shou ld be reconsidered.

However, w e are bound to follow the C CA’s holding in Brooks and its progeny. “When the Court of Criminal Appeals has deliberately and unequivocally interpreted the law in a criminal matter, we must adhere to its interpretation under the dictates of vertical stare decisis .”
Mason v. State , 4 16 S.W.3d 720, 728 n.10 (Tex. App.

— Housto n [14th Dist.] 2013, pet. ref ’ d) ;

see Temple v. State , 342 S.W.3d 572, 628 (Tex. App.

— Houston [14th Dist. ] 2010) (Brown, J., concurring) , aff’d , 390 S.W.3d 341 (Tex. Crim. App. 2013) (“ Even if B rooks were an abomina tion, it is not the role of lower courts to rein in our courts of last resort

. . . . When the Supreme Court of Texas and the Court of Criminal Appeals interpret our state ’ s constitution, we13

must follow. That ’ s how our system works. ” ); see also State ex rel. Wilson v. Briggs , 351 S.W.2d 892, 89 4 (Tex. Crim. App. 1961) (“The Court of Criminal Appeals is the court of
last resort in this state in criminal matters. This being so, no other court of this state has authority to overrule or circumvent its decisi ons, or disobey its mandates.”). Because the CCA has consistently and stridently disavowed the factual

- sufficiency standard, we will not now apply it in this case.
Jury Charge Error In his third issue, Armstrong contends that the tr ial court failed to in struct the jury properly regarding the c ulpable mental states applicable to the offense of possession of a controlled substance. Armstrong alleges that the charge was erroneous because it included definitions of culpable mental state s relating to result

- o riented offenses or, alternatively, because it failed to tailor the applicable definitions to the nature and circumstances of the proscribed conduct.

A trial court is statutori ly obligated to instruct the jury on the “law applicable to the case.” See Tex. Code Crim. Proc. art. 36.14; Mendez v. State , 545 S.W.3d 548, 552 (Tex. Crim. App. 2018); Arteaga v. State , 521 S.W.3d 329, 334 (Tex. Crim. App. 2017). The jury charge should tell the jury what law applies and how it applies to th e case. Delgado v. Stat e , 235 S.W.3d 244, 249 (Tex. Crim. App. 2007). The trial court ’ s duty to instruct the jury on the “law applicable to the case” exists even when defense counsel fails to object to inclusions or exclusions in the charge. Vega v. Sta te , 394 S.W.3d 514, 519 (Tex. Crim. App. 2013) (citing Taylor v. State , 332 S.W.3d 483, 486 (Tex. Crim. App. 2011)). The trial court is “ultimately14

responsible for the accuracy of the jury charge and accompanying instructions.” Mendez,
545 S.W.3d at 552 (quoting Delgado , 235 S. W.3d at 249).

We review alleged jury charge error in two steps: first, we determine whether error exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal. Arteaga , 521 S.W.3d at 333; Ngo v. State , 175 S.W.3d 73 8, 743

– 44 (Tex. Crim. App. 2005). When no error exists, as here, the inquiry ends, and we need not address the question of harm. Price v. State , 457 S.W.3d 43 7, 44 0 (Tex. Crim. App. 2015)

.

The Penal Code delineates three “conduct e leme nts” that can be in volved in an offense: (1) the nature of the conduct, (2) the result of the conduct, and (3) the circumstances surrounding the conduct. McQueen v. State , 781 S.W.2d 600, 603 (Tex. Crim. App. 1989); see Tex. Penal Code § 6.03. The st atutory definitions of the culpable mental state in a jury charge must be tailored to the conduct elements of the offense. Price , 457 S.W.3d at 44 1 ; Cook v. State , 884 S.W.2d 485, 487 (Tex. Crim. App. 1994). A trial court errs when it fails to limit the definitions of the cul pable mental states to the conduct element or elements involved in the particular offense. Price , 457 S.W.3d at 441; Patrick v. State , 906 S.W.2d 481, 492 (Tex. Crim. App. 1995); Cook , 884 S.W.2d at 491.

There is no agreement among T exas courts regarding the classification of possession of a controlled substance by its cons tituent conduct elements. See Aguilera v. State , No. 07

- 13

- 00280

- CR, 2015 WL 4594118, at *3 (Tex. App.

— Amarillo July 30, 2015, pet. ref’d) (mem. op., not designate d for publication) (“ O ur courts have not placed the offense of possession of a controlled su bstance within a single category as a nature

- , result

- or circumstances

- oriented offense.”); Harris v. State , No. 02

- 12

- 00091

- CR, 2014 WL 1389756 (Tex. App.

– Fort Wo rth15

Apr. 10, 2014, pet . ref ’ d) (mem. op., not designated for publication) ( “ Possession of a controlled substance has not been clearly categorized as either result or conduct oriented.”) ; see also
Ex parte Saucedo , 576 S.W.3d 712, 727 n.13 (Tex. Crim. App. 2019) (Keller, J., dis senting) ( recognizing that “ a t least one court of appeals has concluded that possession of a controlled substance can qualify as a result

- oriented offense for the purpose of instructing the jury”) ; Allen , 249 S.W.3d at 690 (“Where the offense is the posses sion of a controlled substance, the proscribed conduct is poss ession.”); Seals v. State , 187 S.W.3d 417, 423

– 24 (Tex. Crim. App. 2005) (Cochran, J., dissenting) (“ The gravamen of the offense is the quantity of the usable drug.”); Wats on v. State , 752 S.W.2 d 217, 222 (Tex. App.

— San Antonio 1988, pet. ref’d) (“ The

mens rea requirement of a possessory offense is knowledge by a defendant that his conduct or the circumstances surrounding his conduct constitutes possession of a controlled su bstance.”); Adams v. S tate , 744 S.W.2d 622, 628 (Tex. App.

— Fort Worth 1987, pet. re f’d) (“[P]ossession may be a ‘result oriented’ offense, since many cases have held that the defendant’s actions resulted in possession.”)

. B ut see Penrice v. State , No. 14

- 93

- 00326

- CR, 1995 WL 4 58954, at *4 (Tex. App.

— Houston [14 th Dist.] Aug. 3, 1995, no pet.) (not designated for publication) (“ Appellant does not cite any cases nor do we find any cases which hold that possession of a controlled substance is a result orient ed crime.”).

Where the categorization of an offense is undecided, a trial court does not err by including the complete statutory definitions of “intentionally” and “knowingly.” See Baker

v. State , 94 S.W.3d 684, 691 (Tex. App.

— Eastland 2002, no pet.) ( ex plaining that “[w] here a n offense is not clearly categorized with respect to the conduct elements required, the trial court may submit the full statutory definition s of ‘intentionally’ and ‘knowingly’”); Murray v. State ,16

804 S.W.2d 279, 281 (Tex. App.

— Fort Worth 1991, pet. ref’d) (“ [W]hen an offense is not clearly categorized as either a ‘result’ or a ‘nature of the conduct’ type offense, with respect to
the intent a nd knowledge required, . . . the trial court may submit statutory definitions of ‘intentiona l’ and ‘knowingly’ becau se both definitions allow the jury to consider the nature of the offender’s conduct or the results of his conduct.”); accord Saldivar v. Sta te , 783 S.W.2d 265,
267

– 68 (Tex. App.

— Corpus Christi

– Edinburg 1989, no pet.)

. Because the C CA has not definitively ruled on the conduct

- elements classification of possession of a controlled substance , the trial court here did not err in including the definitions of “intentionally” and “knowingly” as they apply to result

- oriented offenses.

We th erefore overrule Armstron g’s third issue.

CONCLUSION Having overruled each of Armstrong’s issues, we affirm the trial cour t’s judgment
of conviction.

__________________________________________ Edward Smith , Justice Before Justices Goodwin, Triana, and Smith Affirmed Filed: October 15, 2021 Do Not Publish