In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-09-00213-CR

______________________________

ARNOLD NELSON, Appellant

V.

THE STATE OF TEXAS, Appellee

 

On Appeal from the 202nd Judicial District Court

Bowie County, Texas

Trial Court No. 09F0313-202

 

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

Memorandum Opinion by Chief Justice Morriss
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MEMORANDUM OPINION

With a search warrant in hand, SWAT officers, accompanying officers from the Bi-State 

Narcotics Task Force, knocked on the door of a suspected drug house owned by Adrian Jackson in 

Bowie County and announced their presence. When no one responded, a battering ram was used 

to gain entry into the residence. Once officers were inside, they found Arnold Nelson on or near 

the living room couch, six feet away from ―a toilet paper roll‖—containing 6.35 grams of crack 

cocaine worth approximately $700.00 to $800.00—on the living room floor. Officers also found 

an unidentified male in a back bedroom and an unidentified female in a bathroom attempting to 

dispose of a small amount of crack cocaine in the toilet. 

A jury convicted Nelson of possessing cocaine in an amount of four grams or more but less 

than 200 grams. Pursuant to a plea of ―true‖ to an enhancement allegation, Nelson was assessed a 

$10,000.00 fine and was sentenced to fifty years’ incarceration in the Texas Department of 

Criminal Justice–Institutional Division. Nelson’s sole point of error on appeal questions the legal 

and factual sufficiency of the evidence supporting his conviction. We affirm the trial court’s 

judgment.

We no longer can address a factual-insufficiency claim. In a very recent plurality opinion, 

the Texas Court of Criminal Appeals found ―no meaningful distinction between the Jackson v. 

Virginia legal-sufficiency standard and the Clewis1factual-sufficiency standard, and these two 

 

1Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).
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standards have become indistinguishable.‖ Brooks v. State, No. PD-0210-09, 2010 WL 3894613, 

at *8 (Tex. Crim. App. Oct. 6, 2010) (4-1-4 decision). Further, a proper application of the 

Jackson v. Virginia legal-sufficiency standard is as exacting a standard as any factual-sufficiency 

standard. See id. at *11. In a concurring opinion, Judge Cochran pointed out that the United 

States Supreme Court has rejected a legal sufficiency test that requires a finding that ―no evidence‖

supports the verdict because it affords inadequate protection against potential misapplication of 

the ―reasonable doubt‖ standard in criminal cases. Id. at *16 (Cochran, J., concurring). Rather 

than meeting a mere ―no evidence‖ test, legal sufficiency is judged not by the quantity of evidence, 

but by the quality of the evidence and the level of certainty it engenders in the fact-finder’s mind. 

Id. at *17. Since the Texas Court of Criminal Appeals has now abolished factual-sufficiency 

review, we need not address Nelson’s challenge to the factual sufficiency of the evidence.

In evaluating the legal sufficiency of the evidence supporting Nelson’s conviction, we 

review the evidence, both properly and improperly admitted, in the light most favorable to the 

jury’s verdict to determine whether any rational jury could have found the essential elements of 

possession of more than four but less than 200 grams of cocaine beyond a reasonable doubt. 

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. 

App. 2003); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d)

(citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Based on the Brooks

plurality’s description of the new application of legal sufficiency review under Jackson as 
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―rigorous‖ and its statement that the use by reviewing courts of the factual sufficiency standard in 

tandem with the legal sufficiency standard may have ―skewed‖ its proper application, it appears 

that the Court is attempting to refocus the application of the legal sufficiency standard from the 

quantity to the quality of the evidence presented. 2010 WL 3894613, at *14. We examine legal 

sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility 

of the jury ―to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable 

inferences from basic facts to ultimate facts.‖ Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. 

App. 2007) (citing Jackson, 443 U.S. at 318–19). 

The sufficiency of the evidence is measured by the elements of the offense as defined by a 

hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). 

Under a hypothetically correct jury charge, the State was required to prove that (1) Nelson

exercised actual care, control, and management2over the cocaine; (2) in an amount of four grams 

or more but less than 200 grams; and (3) Nelson knew the substance in his possession was 

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

200 S.W.3d 753, 761 (Tex. App.—Texarkana 2006), aff’d, 239 S.W.3d 791 (Tex. Crim. App.

2007); see TEX. HEALTH & SAFETY CODE ANN. § 481.115(a)(d) (Vernon 2010). 

Before the raid, neighbors had complained to police about drug activity at the residence 

and the ―in-and-out traffic‖ at the house. The Bi-State Narcotics Task Force set up a daily 

 

2

―Possession‖ is defined as ―actual care, custody, control, or management.‖ TEX. PENAL CODE ANN. § 1.07(a)(39) 

(Vernon Supp. 2010).
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surveillance of the residence for approximately two weeks and used confidential informants to 

obtain narcotics from various individuals inside the residence. Officers observed Nelson, who 

lived on the same street a few blocks away, at Jackson’s residence ―[p]retty much on a daily basis.‖ 

On the day of the raid, Nelson’s ―older blue pickup truck‖ was parked in the driveway. 

Once inside, officers found things as we stated above, with Nelson in close proximity to a 

significant quantity of crack cocaine.

Mere presence in the vicinity of a controlled substance is insufficient to show knowing 

possession. Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim. App. 2006). When combined 

with other direct or circumstantial evidence, however, proximity may be sufficient to establish 

beyond a reasonable doubt a person’s possession of a controlled substance. Id. Where, as here, 

Nelson was not in exclusive possession of the place where the cocaine was found, additional 

independent facts and circumstances must be developed in order to raise a reasonable inference of 

Nelson’s knowledge and control of the contraband. Poindexter, 153 S.W.3d at 406. This rule 

protects an innocent bystander from conviction merely because of proximity to someone else’s 

drugs. Evans, 202 S.W.3d at 161–62.

The evidence linking Nelson to the cocaine ―must establish, to the requisite level of 

confidence, that [Nelson’s] connection with the drug was more than just fortuitous.‖ Poindexter, 

153 S.W.3d at 405–06. The following is a nonexclusive list of links that have been found to be 

sufficient, either singly or in combination, to establish a person’s possession of contraband: (1) 
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the defendant’s presence when a search is conducted; (2) whether the contraband was in plain 

view; (3) whether the contraband was in close proximity to, or accessible by, the defendant; (4) 

whether the place where the contraband was found was enclosed; (5) whether the defendant was 

under the influence of narcotics when arrested; (6) whether the defendant possessed other 

contraband or narcotics when arrested; (7) whether the defendant made incriminating statements 

when arrested; (8) whether the defendant attempted to flee; (9) whether the defendant made furtive 

gestures; (10) whether there was an odor of contraband present at the scene; (11) whether other 

contraband or drug paraphernalia were present; (12) whether the defendant owned or had a right to 

possess the place where the contraband was found; (13) whether the defendant was found with a 

large amount of cash; (14) whether the defendant possessed weapons; and (15) whether conduct of 

the defendant indicated a consciousness of guilt. Evans, 202 S.W.3d at 162 n.12; Hargrove v. 

State, 211 S.W.3d 379, 385–86 (Tex. App.—San Antonio 2006, pet. ref’d). The number of links 

is not dispositive; rather, we look to the ―logical force of all of the evidence, direct and 

circumstantial.‖ Evans, 202 S.W.3d at 162.

Nelson was present when the search warrant on Jackson’s residence was executed. His 

presence at the residence nearly every day for a period of two weeks, even when Jackson was not 

present, would allow the fact-finder to conclude he had a right to exercise care, custody, control, or 

management over Jackson’s residence for certain periods of time. Although officers testified that 

the contraband was not in plain view, it was within approximately six feet of Nelson. Nelson was 
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the only person found in the same room as the cocaine, and the drugs were in close proximity to, 

and accessible by, him. Other contraband was present in the residence, although in the 

unidentified female’s presence. The jury heard that the female was likely a user and that Nelson 

was likely a dealer. Officers testified that the living room table contained a box of plastic bags 

and a digital scale, items which, based on officers’ experience, were used to deal drugs. The 

unemployed Nelson was found with $2,915.00 in his wallet, an amount consistent with dealing 

drugs, though his mother claimed that $2,500.00 of that sum belonged to her. No significant 

amount of money was found on the unidentified male or female. After Nelson’s arrest, a canine 

unit alerted on Nelson’s truck, and another digital scale was recovered. This evidence 

demonstrated links 1, 3, 6, 11, 12, and 13 from the above list.

Although officers did not claim there was an odor of contraband and Nelson was not under 

the influence of drugs when arrested, did not possess weapons, and did not make incriminating 

statements, furtive gestures, or any attempt to flee, we find the evidence sufficient for a rational, 

fact-finding jury to have found beyond a reasonable doubt that Nelson knowingly possessed 

cocaine in an amount of four grams or more but less than 200 grams. We overrule Nelson’s sole 

point of error.

We affirm the trial court’s judgment.

Josh R. Morriss, III

Chief Justice
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Date Submitted: November 10, 2010

Date Decided: November 12, 2010

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