In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-09-00071-CR

______________________________

ANTHONY GEORGE FOMBY, Appellant

V.

THE STATE OF TEXAS, Appellee

 

On Appeal from the 276th Judicial District Court

Morris County, Texas

Trial Court No. 10,035

 

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Carter
Eight plastic bags of white powder were found in the trash can; however, only the bag 1

containing 6.59 grams of cocaine was tested for verification of its contents. 

2

MEMORANDUM OPINION

After a trial by jury, Anthony George Fomby was convicted of possession of more than four

grams but less than 200 grams of cocaine, a second degree felony that was enhanced to first degree

felony punishment by a prior conviction. The jury assessed Fomby's punishment at ninety-nine

years' imprisonment and a $10,000.00 fine, to which he was sentenced by the trial court. 

I. Background Facts

On April 26, 2008, Texas Department of Public Safety Trooper Roger Penney clocked a car

driven by Fomby at seventy-nine miles per hour in a seventy-mile-per-hour zone, and Penney began

following the vehicle. The vehicle made two U-turns and eventually turned into the driveway of

Sam and Dixie Moore, neither of whom knew Fomby. Penney parked his patrol car behind Fomby's

car and saw him get out of the vehicle, walk to the Moores' front porch and carry on a short

conversation with someone, later identified as Dixie Moore, at the Moores' front door. Penney

looked through Fomby's car windows and saw an open container of beer and a clear plastic bag

found to contain 0.6 grams of cocaine. Dixie saw Fomby put something into a small trash can next

to the door. Subsequently, a plastic bag containing 6.59 grams of cocaine was found in the trash

can.1
Fomby admits that he possessed the 0.6 grams of contraband found in the vehicle, but 2

specifically challenges the charge that he possessed the 6.59 grams of cocaine found in the trash can.

Laster v. State, 275 S.W.3d 512, 517–18 (Tex. Crim. App. 2009). 3

Id. at 518–19. 4

We find the trial court's charge to the jury to have been in substantial, if not complete, 5

compliance with the applicable law, and thus, the equivalent of a hypothetically correct charge. 

3

On appeal, Fomby contends the evidence supporting the conviction is legally and factually

insufficient. We affirm the judgment because the evidence was legally and factually sufficient to

2

prove possession of a controlled substance. 

II. Legal and Factual Sufficiency 

In his sole point of error, Fomby argues the evidence supporting his conviction was legally

and factually insufficient. We disagree. After reviewing the evidence on the required standards for

legal and factual sufficiency, we find the evidence sufficient to support the jury verdict. 3 4

A. Standard of Review

In this analysis, we use a hypothetically correct jury charge to evaluate both the legal and

factual sufficiency of evidence. Grotti v. State, 273 S.W.3d 273 (Tex. Crim. App. 2008). Such a 5

charge 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. Villarreal v. State, 286 S.W.3d

321 (Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
4

B. Requirement of Links to the Controlled Substance

A conviction for possession of cocaine, a penalty group 1 controlled substance, see TEX.

HEALTH & SAFETY CODE ANN. § 481.102(3)(D) (Vernon Supp. 2008), is supported only when the

defendant "knowingly or intentionally possesses" the cocaine. See TEX. HEALTH & SAFETY CODE

ANN. § 481.115(a) (Vernon 2003). Proof of possession requires evidence that the accused exercised

"actual care, custody, control, or management" over the substance. TEX. PENAL CODE ANN.

§ 1.07(a)(39) (Vernon Supp. 2008); see also TEX. HEALTH & SAFETY CODE ANN. § 481.002(38)

(Vernon Supp. 2008). Thus, the State must prove the accused (1) exercised "actual care, custody,

control, or management over the [contraband]" and (2) knew that the matter "possessed" was

contraband. Martin v. State, 753 S.W.2d 384, 386 (Tex. Crim. App. 1988).

When an accused is not in exclusive possession of the place where contraband is found, it

cannot be concluded he or she had knowledge or control over the contraband unless there are

additional independent facts and circumstances that link the accused to the contraband. Poindexter

v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005). These "links" may be either direct or

circumstantial and must establish, to the requisite level of confidence, that the accused's connection

with the drug was more than just fortuitous. Id. at 405–06.

The number of links present is not as important as the degree to which they tend to link the

defendant to the controlled substance. Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.—Dallas

2003, no pet.); Williams v. State, 906 S.W.2d 58, 65 (Tex. App.—Tyler 1995, pet. ref'd); Whitworth
5

v. State, 808 S.W.2d 566, 569 (Tex. App.—Austin 1991, pet. ref'd). There is no set formula of facts

that dictate a finding of links sufficient to support an inference of knowing possession of contraband.

Porter v. State, 873 S.W.2d 729, 732 (Tex. App.—Dallas 1994, pet. ref'd). Nonetheless, recognized

factors include whether: (1) the contraband was in plain view or recovered from an enclosed place;

(2) the accused was the owner of the premises or the place where the contraband was found; (3) the

accused was found with a large amount of cash; (4) the contraband was conveniently accessible to

the accused; (5) the contraband was found in close proximity to the accused; (6) a strong residual

odor of the contraband was present; (7) the accused possessed other contraband when arrested;

(8) paraphernalia to use the contraband was in view, or found on the accused; (9) the physical

condition of the accused indicated recent consumption of the contraband in question; (10) conduct

by the accused indicated a consciousness of guilt; (11) the accused attempted to flee; (12) the

accused made furtive gestures; (13) the accused had a special connection to the contraband; (14) the

occupants of the premises gave conflicting statements about relevant matters; (15) the accused made

incriminating statements connecting himself or herself to the contraband; (16) the quantity of the

contraband; and (17) the accused was observed in a suspicious area under suspicious circumstances.

See Lassaint v. State, 79 S.W.3d 736, 740–41 (Tex. App.—Corpus Christi 2002, no pet.); Kyte v.

State, 944 S.W.2d 29, 31–32 (Tex. App.—Texarkana 1997, no pet.). It is the logical force the

factors have in establishing the elements of the offense, not the number of them, that is important.

In other words, we ask if there is evidence of circumstances, in addition to mere presence or
Sam did not see with whom Dixie was speaking; however, he positively identified Fomby 6

as the man speaking with Penney. Dixie testified Fomby was similar in appearance to the man that

knocked on her door, but she could not positively identify Fomby as the same man.

6

proximity, that adequately justifies the conclusion that the defendant knowingly possessed the

substance. Evans v. State, 202 S.W.3d 158, 161 n.9 (Tex. Crim. App. 2006); see generally King v.

State, 895 S.W.2d 701 (Tex. Crim. App. 1995).

 C. Fomby's Possession of the Contraband

Considering the framework just set out, we now turn to the facts of the case to determine if

sufficient evidence links Fomby to the 6.59 grams of cocaine found in the trash can. Penney parked

his patrol car behind Fomby's car and saw him get out of the vehicle, walk to the Moores' porch and

carry on a short conversation with someone, later identified as Dixie, at the Moores' front door. The

trash can in which the 6.59 grams of cocaine was found was on the Moores' porch adjacent to the

door. While Fomby spoke with Dixie, Penney looked through Fomby's car windows and saw an

open container of beer and a clear plastic bag containing a white powder. After leaving the Moores'

porch, Fomby spoke with Penney and admitted that the white powder was cocaine. 

Dixie testified that a man she did not know knocked on her door and asked if the Moores' car

was for sale, and she told him "no." There was no "for sale" sign on the car or in the Moores' yard.

After the conversation, as Dixie was closing the door, she saw "him lean over and try to stuff

something inside the trash can," "like he was pushing something down toward the bottom." She 6

explained to her husband, Sam, what happened; he searched the trash can, found the plastic bag
7

containing 6.59 grams of cocaine, and alerted Penney. The bag of cocaine was "wrapped similarly"

to the plastic bag of cocaine in Fomby's car. 

When faced with a record that supports conflicting inferences, we presume the trier of fact

resolved any conflict in support of the verdict. See id. at 164 n.19; Matson v. State, 819 S.W.2d 839,

846 (Tex. Crim. App. 1991). "The jury is the exclusive judge of the credibility of witnesses and of

the weight to be given testimony, and it is also the exclusive province of the jury to reconcile

conflicts in the evidence." Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). In

resolving conflicts in the evidence, a jury "may accept one version of facts and reject another or

reject any of a witness' testimony." Baker v. State, 986 S.W.2d 271, 276 (Tex. App.—Texarkana

1998, pet. ref'd). 

Here, Fomby's presence and actions at the Moores' residence indicated suspicious

circumstances. The contraband was found in close proximity to Fomby, recovered from an enclosed

place, and was conveniently accessible to Fomby. Other contraband was found in Fomby's

possession. The logical force of the evidence is sufficient for a jury to reasonably infer that Fomby

placed the bag of cocaine in the trash can, and therefore, the bag of cocaine was knowingly under

Fomby's care, custody, control, or management. Cf. Evans, 202 S.W.3d at 162. There is ample

evidence supporting the verdict from which a rational jury could find the elements of possession of

a controlled substance beyond a reasonable doubt. The evidence is not so weak that the jury's verdict

is clearly wrong and manifestly unjust. 
8

We overrule Fomby's points of error and affirm the judgment of the trial court. 

Jack Carter

Justice

Date Submitted: September 16, 2009

Date Decided: October 2, 2009

Do Not Publish