Opinion issued July 16, 2013.

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-12-00928-CR

———————————

DANIEL BENARD PHILLIPS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Case No. 1335902

MEMORANDUM OPINION

Daniel Benard Phillips was convicted by a jury of possession of cocaine, 

more than four grams but less than two hundred grams, with intent to deliver. See 

TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d) (West 2010). The jury 

assessed punishment of fifteen years’ confinement. In two issues, Phillips 
2

contends that the evidence is insufficient to show he possessed the cocaine and that 

the trial court erred by refusing to require the State to disclose the identity of its 

confidential informant. We affirm. 

Background

Officer Castro of the Houston Police Department’s narcotics division used a 

confidential informant to conduct a “controlled buy” of narcotics at Napoleon 

Wooten’s home. Within forty-eight hours of the controlled buy, Officer Castro 

applied for a search warrant. In his affidavit supporting the search warrant, Castro 

included the information the informant had given him about the sellers. The 

informant described two men who sold him crack cocaine. The first, nicknamed 

“Tony,” was a black male, 50 to 55 years of age, 5’10" to 5’11" tall, and 200 to 

220 pounds in weight. The other man, nicknamed “Woo,” was a black male, 25 to 

30 years of age, 5’10" to 6’ tall, and 240 to 250 pounds in weight. According to 

Officer Castro’s affidavit, “Tony” and “Woo” were a father-son team. Officer 

Castro also testified at trial that he believed “Tony” was Napoleon Wooten and 

“Woo” was Daniel Phillips.

Officer Castro conducted surveillance of the house where the controlled buy 

occurred. Around 5:00 P.M. on February 3, 2012, Officer Castro parked his truck 

down the street from the house. He observed the house for about twenty minutes. 
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During that time, he saw Phillips come out of the house and sit in a chair in front of 

the house. Two people approached Phillips, and Officer Castro observed “a handto-hand exchange with [Phillips] and the unknown individuals.” Officer Castro did 

not see any drugs or money exchanged, but, based on his training and experience, 

he thought it was a narcotics transaction. 

At about 9:00 p.m. that evening, Officer Chapman began his surveillance of 

the house. Officer Chapman was providing reports to Officer Castro and his team, 

who were preparing to execute the search warrant. Officer Chapman saw Phillips 

participating in a barbecue outside the apartment, but saw no evidence of any 

narcotics transactions. 

At approximately 9:30, Officer Castro and his team executed the search 

warrant. They quietly approached the front door, but when they were preparing to 

remove the “burglar bars,” Phillips, who was seated on a couch next to Wooten, 

saw Officer Castro. Phillips stood up and ran towards the back of the home, 

yelling “Laws, laws!” By the time Officer Castro and his team entered the house, 

Phillips had returned to the living room. He cooperated with the officers. 

Officer Castro then searched the home. Under the couch where Phillips and 

Wooten had been sitting, Castro found a loaded pistol, 20.9 grams of crack cocaine

on a plate, and a scale with cocaine residue. The pistol was directly under where 
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Wooten had been sitting, but the plate with the crack cocaine on it was under the 

couch between Phillips and Wooten. In one of the bedrooms, officers found two 

debit cards in Phillips’s name, as well as men’s and women’s clothing. In the 

hallway closet, police found $1485 in a jacket pocket. 

During the search, Whitney White, Wooten’s daughter, arrived. She lived 

there with Wooten, and referred to herself as Phillips’s wife. Officer Castro 

testified that White told him Phillips and Wooten had been dealing drugs out of the 

home. Officer Castro also stated that Wooten admitted that Wooten and Phillips 

had been dealing crack from the house.

About two weeks later, officers conducted another controlled buy at

Wooten’s home, using the same confidential informant. This time, the informant 

indicated that “Daniel” had sold him drugs. However, when police executed the 

second search warrant, they found White and Bob Spiller. White was charged with 

possession of cocaine, and Spiller with possession of marijuana. 

Phillips’s defensive theory at trial was that Spiller was nicknamed “Tony” 

and was, in fact, the man from whom the confidential informant purchased crack 

cocaine during the first controlled buy. White testified that Phillips did not live 

with her and Wooten. She stated that Spiller lived with them. She explained that 

Spiller’s nickname was “Tony,” which was slang for cocaine, and that he and her 
5

father dealt drugs out of the house, while Phillips did not. White also denied 

having told Officer Castro that Phillips dealt drugs with her father.

Wooten also testified for Phillips. Wooten agreed that Phillips did not live 

at the home and did not deal drugs, but he denied that Spiller lived in the home. In 

addition to being impeached with Officer Castro’s testimony about Wooten’s oral 

admission that he and Phillips had been dealing crack out of the house, Wooten 

was impeached with his judicial confession from his possession with intent to 

distribute case, in which he acknowledged he and Phillips jointly possessed the 

crack cocaine.

Phillips also presented evidence that he weighed approximately 180 to 190 

pounds, much less than the 240 to 250 pounds that the informant estimated “Woo”

weighed. Phillips asserted that the informant’s description was a better description 

of Spiller than of Phillips. Phillips also elicited testimony from Officer Castro that 

the informant was never shown any photographs of Phillips or Spiller to verify 

who had sold the crack cocaine. Officer Castro also testified that Phillips seemed 

surprised by the discovery of the crack cocaine, but Wooten did not. 

The jury found Phillips guilty and assessed his punishment at fifteen years’

confinement. Phillips appeals.
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Sufficiency of the Evidence

In his first issue, Phillips contends that the evidence was insufficient to 

support his conviction because the evidence presented at trial failed to establish 

that he knowingly possessed the cocaine. Phillips argues that the State’s evidence, 

which he contends “weakly tie[d]” him to the scene, was not strong enough to 

support his conviction for possession with intent to distribute. 

A. Standard of Review

“[E]vidence is insufficient to support a conviction if considering all record 

evidence in the light most favorable to the verdict, a factfinder could not have 

rationally found that each essential element of the charged offense was proven 

beyond a reasonable doubt.” Gonzalez v. State, 337 S.W.3d 473, 478 (Tex. App.—

Houston [1st Dist.] 2011, pet. ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 319, 

99 S. Ct. 2781, 2789 (1979)). Evidence is insufficient under this standard in four 

circumstances: (1) the record contains no evidence probative of an element of the 

offense; (2) the record contains a mere “modicum” of evidence probative of an 

element of the offense; (3) the evidence conclusively establishes a reasonable 

doubt; and (4) the acts alleged do not constitute the criminal offense charged. 

Gonzalez, 337 S.W.3d at 479. The sufficiency of the evidence is measured by the 

elements of the offense as defined in a hypothetically correct jury charge, which is 
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one that accurately sets out the law, is authorized by the indictment, does not 

unnecessarily increase the State’s burden of proof or unnecessarily restrict the 

State’s theories of liability, and adequately describes the particular offense for 

which the defendant was tried. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. 

App. 1997). If an appellate court finds the evidence insufficient under this 

standard, it must reverse the judgment and enter an order of acquittal. Gonzalez,

337 S.W.3d at 479.

An appellate court determines whether the necessary inferences are 

reasonable based upon the combined and cumulative force of all the evidence 

viewed in the light most favorable to the verdict. Clayton v. State, 235 S.W.3d 

772, 778 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17 

(Tex. Crim. App. 2007)). When the record supports conflicting inferences, an 

appellate court presumes that the factfinder resolved the conflicts in favor of the 

verdict and defers to that resolution. Id. (citing Jackson, 443 U.S. at 326, 99 S. Ct. 

at 2793). “An appellate court likewise defers to the factfinder’s evaluation of the 

credibility of the evidence and the weight to give the evidence.” Gonzalez, 337 

S.W.3d at 479. A court treats direct and circumstantial evidence equally: 

circumstantial evidence can be as probative as direct evidence, and circumstantial 
8

evidence alone can be sufficient to establish guilt. Clayton, 235 S.W.3d at 778 

(citing Hooper, 214 S.W.3d at 13).

B. Applicable Law

To demonstrate possession of cocaine with intent to deliver, the State is 

required to show that: (1) appellant knowingly or intentionally, (2) possessed, 

(3) cocaine, (4) in an amount of greater than four but less than two hundred grams, 

(5) with the intent to deliver the cocaine. TEX. HEALTH & SAFETY CODE ANN. 

§ 481.112(a), (d). In order to prove unlawful possession, the State must present 

evidence that: (1) the accused exercised control, management, or care over the 

substance; and (2) the accused knew the matter possessed was contraband. 

Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). 

Possession need not be exclusive. Wiley v. State, 388 S.W.3d 807, 813 (Tex. 

App.—Houston [1st Dist.] 2012, pet. ref’d). When the accused is not in exclusive 

possession of the place where the contraband is found, then additional, independent 

facts and circumstances must link the defendant to the contraband in such a way 

that it can reasonably be concluded that the defendant had knowledge of the 

contraband and exercised control over it. Kibble v. State, 340 S.W.3d 14, 18 (Tex. 

App.—Houston [1st Dist.] 2010, pet. ref’d); Roberts v. State, 321 S.W.3d 545, 549 

(Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). The evidence, whether direct 
9

or circumstantial, “must establish, to the requisite level of confidence, that the 

accused’s connection with the drugs was more than just fortuitous.” Poindexter, 

153 S.W.3d at 405–06 (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. 

App. 1995)). “This rule simply [states] the common-sense notion that a person—

such as a father, son, spouse, roommate, or friend—may jointly possess property 

like a house but not necessarily jointly possess the contraband found in that 

house.” Id. at 406. The accused’s presence at the scene where contraband is found 

is insufficient, by itself, to establish possession. Roberts, 321 S.W.3d at 549 

(citing Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006)). However, 

presence or proximity when combined with other direct or circumstantial evidence 

may be sufficient to establish the elements of possession beyond a reasonable 

doubt. Id. 

Links that may establish knowing possession include: (1) the defendant’s 

presence when a search is conducted; (2) whether the substance was in plain view; 

(3) the defendant’s proximity to and the accessibility of the substance; (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 
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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 substance was found; (12) whether the place where the 

substance was found was enclosed; (13) whether the defendant was found with a 

large amount of cash; and (14) whether the conduct of the defendant indicated a 

consciousness of guilt. Evans, 202 S.W.3d at 162, n.12. The “number of . . . links 

proven is not as important as the logical force that they collectively create.” Wiley, 

388 S.W.3d at 814 (quoting Hubert v. State, 312 S.W.3d 687, 691 (Tex. App.—

Houston [1st Dist.] 2009, pet. ref’d)). The absence of various links does not 

constitute evidence of innocence to be weighed against the links that are present. 

Id. (quoting James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 

2008, pet. ref’d)). 

C. Analysis

Viewed in the light most favorable to the verdict, we conclude that the 

evidence supports the jury’s finding that Phillips possessed the crack cocaine. 

Officer Castro testified that both White and Wooten told him that Phillips and 

Wooten had been dealing drugs out of the home. And, although he testified 

differently at Phillips’s trial, Wooten signed a confession and stipulation as part of 

a guilty plea that stated he possessed the cocaine “along with Daniel Phillips.” On 
11

appeal, Phillips attacks the credibility of these statements, but credibility 

determinations are the sole province of the jury. See Gonzalez, 337 S.W.3d at 479.

Other evidence also supports the jury’s finding. Phillips was present when 

the search was conducted. See Evans, 202 S.W.3d at 162, n.12. The cocaine was 

found in close proximity to Phillips, in a location accessible by him. See id. Other 

contraband—the digital scale with cocaine residue on it—also was under the couch 

with the cocaine and accessible by Phillips. See id. And, Phillips’s conduct upon 

seeing Officer Castro demonstrated a consciousness of guilt. See id. 

Viewing the evidence in the light most favorable to the jury’s verdict, and 

considering the logical force of all the evidence, we conclude that sufficient

evidence supports the finding that Phillips exercised care, custody, or control over 

the cocaine.1

 See Villarreal v. State, No. 04-02-00242-CR, 2003 WL 1824970, at 

*2 (Tex. App.—San Antonio Apr. 9, 2003, no pet.) (mem. op., not designated for 

publication) (finding evidence sufficient to show more than “mere presence” and 

establish possession where drugs were equally accessible to appellant and other 

passenger in truck, appellant attempted to leave scene when he noticed officers, 

 

1 Phillips argues that there was no evidence presented of several of the links. 

However, the absence of evidence of some of the affirmative links is not evidence 

of innocence that we weigh against the links that are present. See Evans, 202 

S.W.3d at 162; Wiley, 388 S.W.3d at 814.
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drug paraphernalia was found in appellant’s residence, and appellant’s daughter 

stated appellant and other passenger were returning from purchasing drugs). We 

therefore hold that the evidence is sufficient to support Phillips’s conviction for 

possession of a controlled substance with intent to deliver. 

We overrule Phillips’s first issue.

Motion to Disclose Confidential Informant

In his second issue, Phillips contends that the trial court abused its discretion 

in denying his motion to require the State to disclose the identity of the 

confidential informant. We review a trial court’s denial of a motion to disclose a 

confidential informant under an abuse of discretion standard. Blake v. State, 125 

S.W.3d 717, 728 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (citing Taylor v. 

State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980)). A trial court does not abuse 

its discretion unless its decision “was so clearly wrong as to lie outside that zone 

within which reasonable persons might disagree.” Id. (citing Montgomery v. State,

810 S.W.2d 372, 380 (Tex. Crim. App. 1990)).

The State has a privilege to refuse to disclose the identity of an informant 

that has assisted in an investigation. TEX. R. EVID. 508(a). But, this does not apply 

in a criminal case when the trial court determines there is a “reasonable 

probability” that the informant “may be able to give testimony necessary to a fair 
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determination . . . on guilt or innocence . . . .” Id. 508(c)(2). To obtain disclosure, 

a defendant bears the burden of showing that the informant may be able to give 

testimony relevant to the determination of guilt or innocence. See Sanchez v. State, 

98 S.W.3d 349, 355–56 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (citing 

Bodin v. State, 807 S.W.2d 313, 318 (Tex. Crim. App. 1991)). To meet this 

burden, “the defendant must present evidence, from any source, but cannot rely on 

mere speculation or conjecture.” Id. (citing Bodin, 807 S.W.2d at 318). The 

defendant may not actually know the nature of the informant’s testimony; 

therefore, “the defendant need make only a plausible showing of how the 

informant’s testimony may be important, i.e., how that testimony could be 

necessary to a fair determination of guilt or innocence.” Id. at 355–56. The 

defendant must still show that the informant’s potential testimony would 

significantly aid him. Id. at 356 (citing Bodin, 807 S.W.2d at 318). For example, 

“[w]henever it is shown that an informant was an eyewitness to an alleged 

offense[,] then certainly that informant can in fact give testimony ‘necessary to a 

fair determination of the issues of guilt, innocence.’” Anderson v. State, 817 

S.W.2d 69, 72 (Tex. Crim. App. 1991).

Phillips’s defense rests on a purported case of mistaken identity to which he 

claims the informant’s information contributed. To obtain the first warrant, Officer 
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Castro relied upon the description of two men, thought to be father and son, 

provided him by the informant. One description fairly closely matched Wooten’s 

actual appearance. A few weeks later, during the execution of the second search 

warrant, Phillips was not present, but White and Spiller were. Spiller’s appearance 

was a closer match to the informant’s description of the second man given in the 

affidavit for the first search warrant. Additionally, Phillips elicited testimony from 

White that Spiller lived at Wooten’s house and went by the nickname the 

informant gave to Castro after the first controlled buy.

2 From this evidence, 

Phillips argues that the informant should have been disclosed to testify to whether 

Spiller or Phillips was the person involved in the first controlled buy with Wooten. 

However, the confidential informant was not an eyewitness to the offense 

for which Phillips was charged. The informant made a controlled buy at some 

point within forty-eight hours before the execution of the search warrant. Phillips 

was not charged with any alleged criminal activity that occurred during the 

controlled buy, but with the possession of a controlled substance with intent to 

deliver that occurred around 9:30 p.m. on February 3, 2012, when police executing 

a search warrant found him in close proximity to over 20 grams of crack cocaine. 

 

2 Wooten testified that Spiller would sometimes “come by,” but denied that he lived 

there.
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Phillips has made no showing that the informant could give any testimony relevant 

to the events that occurred at that time. In other words, there is nothing that 

indicates the informant would testify concerning whether Phillips exercised care, 

control, or custody over the crack cocaine on the evening of February 3, 2012. For 

this reason, we conclude that the trial court’s decision was not outside of the zone 

of reasonable disagreement. See Daniels v. State, 25 S.W.3d 893, 898 (Tex. 

App.—Houston [1st Dist.] 2000, no pet.) (holding trial court did not abuse 

discretion where informant was not present when appellant allegedly committed 

charged offense and informant’s alleged knowledge of appellant selling drugs out 

of her house at one time does bear on her guilt or innocence of offense for which 

she was later arrested and charged); Long v. State, 137 S.W.3d 726, 733 (Tex. 

App.—Waco 2004, pet. ref’d) (holding trial court did not abuse discretion because 

informant only supplied information that established probable cause for search

warrant, was not present at time of charged offense or during execution of search 

warrant, and did not supply information upon which State relied on for conviction 

of charged offense).

We overrule Phillips’s second issue.
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Conclusion

We affirm the trial court’s judgment.

Rebeca Huddle

Justice

Panel consists of Justices Jennings, Brown, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).