i No. 03
- 15 -00112- CR

__________________________________________________________ IN THE COURT OF APPEALS FOR THE THIRD

DISTRICT OF TEXAS

__________________________________________________________

MATTHEW JARRETT LEE, Appellant

v. THE STATE OF TEXAS, Appellee

__________________________________________________________ On Appeal from County Court at Law, #2, Comal County, Texas

Cause No. 2014CR0532 The Honorable Charles A. Stephens, II, Presiding Judge

_______________________________________________________ ___

BRIEF FOR THE STATE

__________________________________________________________ Jennifer Tharp Criminal District Attorney By Melroy Koehler SBN: 24003663 Chief Misdemeanor Prosecutor 150 N. Seguin Avenue, Ste. #307 New Braunfels, Texas 78130 Phone: (830) 221-1300 Fax: (830) 608-2008 E-mail: koehlm@co.comal.tx.us Attorney for the State & Supervising Attorney
Scott Walther Associate Member Number: 24096091 E-mail: walt1274@gmail.com 

### Oral Argument Is Not Requested ACCEPTED 03-15-00112-CR 7259864 THIRD COURT OF APPEALS

AUSTIN, TEXAS 10/6/2015 6:19:07 PM JEFFREY D. KYLE

CLERKii 

### Identity of Parties and Counsel
Attor neys for the Appellant Matthew Jarrett Lee
AT TRIAL Michael Zamora SBN:24008327 211 Babcock Rd. San Antonio, TX 78201
ON WRIT & APPEAL OF WRIT DENIAL Frank B. Suhr SBN: 19466300 473 S. Seguin Ave., Suite 100 New Braunfels, TX 78130 Email: fsuhr@newbr aunfelslaw.com

At torneys for the Appellee, The State of Texas
AT TRIAL Ryan Vickers, SBN: 24079518 Assistant District Attorney vicker@co.comal.tx.us Abigail Whitaker, SBN: 24051915 Assistant District Atto rney whitta@co.comal.tx.us
ON WRIT & APPEAL OF WRIT DENIAL Melroy Koehler SBN: 24003663 Chief Misdemeanor Prosecutor COMAL COUNTY CRIMINAL DISTRICT ATTORNEY’S OFFICE 150 N. Seguin Avenue, Suite 307 New Braunfe ls, Texas 78130 Telephone: (830) 221

- 1300 Facsimile: (830) 608

- 2008 Email: koehlm @co.comal.tx.us
Scott Walther Associate Member Number: 24096091 Email: walt1274@gmail.comiii 

### Table of Contents
Index of Authorities

................................ ................................ ................................ .. iv Statement of the Case

................................ ................................ ................................ . 1
Issues Pre sented

................................ ................................ ................................ ......... 1 Statement of Facts

................................ ................................ ................................ ...... 1 Legal Sufficiency of the Evidence Standard of Review

. ................................ .......... 4
There Was Sufficient Evidence to Support the Jury’s Finding of Appellant ’s Guilt for the Offense of Possession of Marijuana

. ................................ ................ 6 Summary of the Argument

................................ ................................ ............. 6
A. The Evide nce Was Sufficient to Show Appellant Possessed the Marijuana

................................ ................................ ................................ ....... 7
B. Texas Case Law Demonstrates the Factors in Appellant’s Case Were Sufficient for a Reasonable Jury to Find Appellant Guilty

..................... 17 Conclusion

................................ ................................ ................................ .... 22 Prayer

................................ ................................ ................................ ....................... 2 5 Certificate of Service

................................ ................................ ............................... 2 6 Certificate of Compliance

................................ ................................ ........................ 2 6iv 

### I ndex of Authorities Statutes, Rules & Secondary Sources Tex. Health & Safety Code Ann. § 481.002(38) (West, Westlaw through 2015 Sess.)

................................ ................................ ................................ ................. 7 Tex. Health & Safety Code Ann. § 481.121 (West, Westlaw through 2015 Sess.)

................................ ................................ ................................ .......................... 7

Cases
A llen v. State , 249 S.W.3d 680 (Tex. App.

— Austin [3rd Dist.] 2011, no pet.)

................................ ................................ 7 , 17 , 18
Brown v. State , 649 S.W.2d 160 (Tex. App.

—

Austin 1983, no pet.)

................................ ................................ ........... 5
Cortez v. State , 08

- 02

- 00363

- CR, 2004 WL 178587 (Tex. App.

— El Paso Jan. 29, 2004, pet. ref

’ d) (not designated for publication)

................................ ................................ ................................ ................ 6
Evans v. State , 202 S.W.3d 158 (Tex. Crim. App. 2006)

................................ ................................ ................... 7 , 8, 9 , 13 , 23 Ferguson v. State , 313 S.W.3d 419 (Tex. App.

— Houston 2009, pet. denied)

................................ ...................... 8 , 9, 13 , 20, 21
Gant v. State , 116 S.W.3d 124 (Tex. App.

— Tyler [12th Dist.] 2003, pet. denied)

................................ ............................... 9 , 23 Gilbert v. State , 874 S.W.2d 290 (Tex. App.

— Houston 1994, writ denied)

................................ ................................ ...... 9 , 13 Glass v. State , 681 S.W.2d 599 (Tex. Crim. App. 1984)

................................ ................................ ......................... 12 , 13, 15v

Hooper v. State , 214 S.W.3d 9 (Tex. Crim. App. 2007)

................................ ................................ ................................ .................. 8 Jackson v. Virginia , 443 U. S. 307 (1979 )

................................ ................ 4 , 14, 16 , 22 Kiffe v. State , 361 S.W.3d 104 (Tex. App.

— Houston [1st Dist.] 2011, pet. ref ’ d)

................................ ................................ 4 , 22 Margraves v. State , 34 S.W.3d 912 (Tex. Crim. App. 2000), abrogated on other grounds by Laster v. State , 275 S.W.3d 512 (Tex. Crim. App. 2009)

................................ ................................ ....................... 5 Olivarez v. State , 171 S.W.3d 283 (Tex. App.

— Houston [14th Dist.] 2005, no pet.)

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

................................ ................................ ........................ 8, 12 Randle v. State , 04

- 14

- 00065

- CR, 2015 WL 1640306 (Tex. App.

— San Antonio Apr. 8, 2015, no pe t.) (not designated for publication)

................................ ................................ ............................ 10 , 20, 21, 22 Roberson v. State , 16 S.W .3d 156 (Tex. App.

— Austin 2000, pet. ref’d)

................................ ................................ .................. 5 Rockwell v. State , A P

- 76,737, 2013 WL 6529575 (Tex. Crim. App. Dec. 11, 2013) (not designated for publication)

................................ ................................ ................. 6 Whitworth v. State , 808 S.W.2d 566 (Tex. App.

— Austin 1991, pet. ref’d )

................................ ................................ ................ 23 Williams v. State , 03

- 08

- 00684

- CR, 2010 WL 2788819, at *1 (Tex. App.

— Austin July 14, 2010, no pet.) (mem. op.) (not designated for publication )

................................ ............................ 17 , 19, 201 

### Statement of the Case Appellant was charged by information with the Class B misdemeanor offense of pos session of marijuana (C.R. at 12). Appellant elected to have a trial by jury as to h is guilt/innocence ( I R.R. at 1). The jury found him guilty of the
mi sde meanor offense (C.R. at 46). The trial court assessed punishment at 90 days confinement in county jail, probated for 12 months, a $1,000 fine ($750 of which was probated), court co sts (C.R. at 52), a six

- month driver’ s license suspension (C.R. at 54) an d imposed other standard conditions of probation (C.R. at 62).



### Issue Presented
Whether there was sufficie nt evidence to support the jury ’ s finding of Appellant ’ s guilt of the offense of possession of marijuana.



### Statement of Facts On December 8, 2013, Matthew Jarrett Lee (hereinafter referred to as

“ Appellant ” ) was a passenger in a vehicle heading southbound on IH 35 through Comal County, Texas ( II R.R. at 20

- 22). A two officer Sheriff’ s patrol unit stopped the vehicle Appellant was riding in for an ob structed/expired temporary dealer ’ s license plate ( II R.R. at 19

- 20). The officers of this patrol unit were Deputies Guillermo Cano and Robert Huerta (hereinafter referred to as “ Deputy Cano ” and

“ Deputy Huerta ” respectively or “ deputies ” jointly ) ( II R.R. at 3

- 4, 15, 64). The2

video of the subsequent stop and search was introduced into evidence ( State’s Ex.
4 1 ). The vehicle was occupied by four people ( II R.R. at 21

- 22). A male, who owned the car, occupied the driver ’ s seat (hereinafter referred to as “ Dri ver ” ) ( II
R.R. at 21, 56, 74). A female passenger (hereinafter referred to as “ Passenger ” ) occupied the front passenger seat ( II R.R. at 21, 56, 74). A three

- or four

- month

old infant (hereinafter referred to as “ Baby ” ) , the child of the female passenger, occupied the back seat directly behind the female passenger ( II R.R. at 21

- 22, 74). Appellant occupied the backseat directly behind the driver ’ s seat ( II R.R. at 21

- 22, 74). During the initial stage of the stop, Deputy Huerta had the Driver exit the vehic le in order to speak with him ( II R.R. at 73

- 75; State’s Ex. 4 at 2:09 ). Later, upon noticing that Appellant was not wearing his safety belt ( II R.R. at 39, 75 ; State’s Ex. 4 at 2:09 ), Deputy Huerta had Appellant exit the vehicle and sit on the ground nea r the front of the vehi cle ( II R.R. at 39, 85; State’s Ex. 4 at 8:56 ). Appellant was acting overly nervous around the officers, continually repeated that he “ [ didn ’ t ] want no trouble ” and that he was “ just along for the ride ” without being prompted to by t he deputies, and had bloodshot eyes ( II R.R. at 22

- 23 , 26

-

1 References to the videos introduced into evidence, State’s Exhibit 4 (dash camera) and State’s Exhibit 5 (backseat of patrol camera), will be cited to an approximate minute : second reference like so: State’s Ex. 4 at 2:09.3

27, 48, 75

- 78, 100, 144 ; State’s Ex. 4 at 6:25

- 7:50, 8:30

- 8:50 ). The other two adult occupants of the vehicle were noticeably calm and collected throughout the entire transaction ( II R.R. at 75, 78, 99

- 100, 121). Passenger was allowed to briefly remain with her infant in the car until the Driver gave consent to the deputies to search the vehicle ( II R.R. at 27, 50

- 51 , 78

- 80; State’s Ex. 4 at 8:00

- 10:50 )

. During the period of time that the Passenger was in the front seat of the car, she was never out of the field of vision of either one of the deputies ( State’s Ex. 4 at 8:00

- 10:50). Upon receiving consent, the deputies first searched the driver ’ s area ( II R.R. at 80; Ex. 4 at 12:20

- 12:25 ). When they
f ound nothing, they searched the front passenger area, the Passenger, and then searched the Baby and the rear passenger area of the car ( II R.R. at 80

- 81; Ex. 4 at 13:00, 17:58

- 18:28 ). Contraband in the form of marijuana was found on the rear passenger floo rboard below the infant carrier ( II R.R. at 82

- 83 ; Ex. 4 at 18:28 )

. The marijuana was found closest to, and within arm ’ s reach of , Appellant ( II R.R.
at 60, 86

- 87). The deputies concluded, based on Appellant ’ s presence during the search, proximity to the marijuana, his overly nervous behavior, his unprompted statements of “ I don ’ t want no trouble ” and “ I ’ m just along for the ride, ” his visible shaking and his bloodshot eyes that the marijuana was linked to the Appellant ( II4

R.R. at 43

- 44, 55, 98

- 99, 109, 1 20, 126 ) . Appellant was then arrested for the Class B misdemeanor offense of possession of marijuana. Appellant elected try his case to a jury. The jury subsequently found him guilty and the trial court assessed pun ishment of a probated sentence.


### Legal Sufficiency of the Evidence Standard of Review Texas appellate courts review legal and factual sufficiency challenges in criminal cases using the same legal sufficiency standard of review. Kiffe v. State , 361 S.W.3d 104, 107 (Tex. App.

— Houston [1st Dist.] 2011, pet. ref ’ d) ( citing Ervin v. State, 331 S.W.3d 49, 54 (Tex. App.

— Houston [1st Dist.] 2010, pet. ref ’ d) ). Evidence is only insufficient if, when considering all the evidence in the light most favorable to the verdict, “ no rational factfinder could have found each essential element of the charged offense beyond a reasonable doubt. ” Id

. 2 (citing Jackson v. Virginia , 443 U.S. 307, 319 (1979)). Ultimately, the reviewing court is not to determine “ whether it believes that
t he evidence at the trial established guilt beyond a reasonable doubt, ” but whether

“ after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a

2 When viewin g the evidence in the light most favorable to the verdict, evidence can be insufficient in two circumstances: when the record contains “no evidence, or merely a ‘modicum’ of evidence, probative of an element of the offense” or when “the evidence conclusive ly establishes a reasonable doubt.” Id . The evidence may also be insufficient when the acts alleged do not constitute the offense charged. Id . at 108.5

reasonab le doubt. ” Jackson , 443 U.S. at 318

- 19 (emphasis in original)

. Accordingly, “ the verdict will be sustained if there is any evidence which, if believed, shows the guilt of the accused. ” Brown v. State , 649 S.W.2d 160, 163 (Tex. App.

—

Austin 1983, no pet.). L egal sufficiency review “ gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. ” Jackson , 443 U.S. at 319. Review ing courts determine whether the necessary inferences are reasonable based on the “ combined and cumulative force of the evidence when viewed in the light most favorable to the verdict. ” Kiffe , 361 S.W.3d at 108

. Appellate courts will presume that the fact finder “ resolved any conflicting inferences in favor of the verdict ” and defer to that resolution. Id . The reviewing courts will also defer to “ the factfinder ’ s evaluation of the credibility and the weight of the evidence. ” Id

. The factfinder is entitled t o accept some testimony and reject other testimony, in whole or in part. Margraves v. State , 34 S.W.3d 912, 919 (Tex. Crim. App. 2000), abrogated on other grounds by Laster v. State , 275 S.W.3d 512 (Tex. Crim. App. 2009); see also Roberson v. State , 16 S.W .3d 156, 164 (Tex. App.

—

Austin 2000, pet. ref ’ d) (factfinder may accept or reject any or all evidence presented by either party).6

Courts will treat direct and circumstantial evidence equally. Kiffe , 361 S.W.3d at 108

. “ [D]irect evidence of a fact, stand ing alone and if believed by the jury, is always... sufficient to prove that fact. ” Cortez v. State , 08

- 02

- 00363

- CR, 2004 WL 178587, at *3 (Tex. App.

— El Paso Jan. 29, 2004, pet. ref ’ d) (not designated for publication) (citing Goodman v. State , 66 S.W.3d 283, 286 (Tex. Crim. App. 200 1). Furt hermore, “ [c] ircumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. ” Rockwell v. State , AP

- 76,737, 2013 WL 6529575, at *1 (Tex. Crim. App. De c. 11, 2013) (not designated for publication) (citing Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)), cert. denied, 134 S. Ct. 2724 (2014). The sufficiency of the evidence is determined from the cumulative effect of all the evidence; each fact i n isolation need not establish the guilt of the accused. Roberson , 16 S.W.3d at 164 (emphasis added)

.


### There Was Sufficient Evidence to Support the Jury ’ s Finding of Appellant ’ s Guilt of the Offense of Possession of Marijuana

Summary of the Argument Ther e was sufficient evidence to support the jury ’ s guilty verdict in the underlying case

. Appellant was linked to the marijuana through several factors : Appellant was closest to the marijuana which was in plain view, Appellant appeared overly nervous around t he deputies, and Appellant had bloodshot, glassy7

eyes consistent with marijuana use

. When viewed in their totality, the circumstances and evidence in this case clearly allowed a rational trier of fact to reasonably infer that Appellant exercised custody, c ontrol, care, or management of the marijuana

. Therefore, this Court should affirm the judgment of the trial court.

A. The Evidence Was Sufficient to Show Appellant Possessed the Marijuana . Appellant was charged by information with the Class B misdemea nor offense of Possession of Marijuana, under two ounces, “ on or about 8 th day of December, 2013, in the County of Comal and State of Texas ” (CR 12). See Tex. Health & Safety Code Ann. § 481.121 (West, Westlaw through 2015 Sess.). In possession of contro lled substances cases, the State must prove that the accused had actual care, custody, control, or management over the substance and that the accused knew that the substance was contraband

. Evans v. State , 202 S.W.3d 158, 161 (Tex. Crim. App. 2006) ; see al so Tex. Health & Safety Code Ann. § 481.002(38) (West, Westlaw through 2015 Sess.)

. “ Possession is a voluntary act if the possessor obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to term inate his control. ” Allen v.
State , 249 S.W.3d 680, 689

- 90 (Tex. App.

— Austin [3rd Dist.] 2011, no pet.) , citing Tex. Penal Code Ann. (West 2003) § 6.01(b)

.8

When actual care, custody, control, or management cannot be proven, then the State must show there are additional independent facts and circumstances connecting or linking the accused to the knowing possession or constructive possession of contraband

. Ferguson v. State , 313 S.W.3d 419 , 423 (Tex. App.

— Houston 2009, pet. denied) citing Poindexter v. Stat e , 153 S.W.3d 402, 412 (Tex. Crim. App. 2005). Circumstantial and direct evidence are both equally probative in showing these affirmative links. Hooper v. State , 214 S.W.3d 9 , 13 (Tex. Crim. App. 2007)

. The Texas Court of Criminal Appeals has observed a non - exclusive list of fourteen factors which Texas courts have recognized may be sufficient to link an accused to contraband in order to establish a person ’ s knowing possession. 3 Evans , 202 S.W.3d at 162 n. 12 , citing Olivarez v. State , 171 S.W.3d 283, 2 91 (Tex. App.

— Houston [14th Dist.] 2005, no pet.). These factors may be sufficient singly or in combination with one another. Evans , 202 S.W.3d at 162 n. 12 (emphasis

3 (1) the defendant’ s presence when a search is conducted, (2) whether the contraband was i n plain view; (3) the defendant’ s proximity to and accessibility of the narcotic; (4) whether the defendant was under the influence of 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 there was an odor of the 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 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 defendant indic ated a consciousness of guilt.
Evans , 202 S.W.3d at 162 n. 12

.9

added). Additionally, i t should be noted that these factors do not all need to exist beca use it is the logical force, not the sheer number, of the factors that is significant. Evans , 202 S.W.3d at 162; see also Gant v. State , 116 S.W.3d 124 , 131 (Tex. App.

— Tyler [12th Dist.] 2003, pet. denied) ; Gilbert v. State , 874 S.W.2d 290 (Tex. App.

— Houst on 1994, writ denied) citing Whitworth v. State , 808 S.W.2d 566, 569 (Tex. App.

— Austin 1991, pet. ref ’ d) . Furthermore, the absence of any Evans factors do es not weigh against the factors that are present. Ferguson
v. State , 313 S.W.3d 419 , 426; see also Ev ans v. State , 202 S.W.3d 158, 162. Appellant was the only principal to the crime due to the logical force of several of the linking factors found in Evans v. State including: being present during the search, his proximity to the drugs, his bloodshot eyes, and his being overly nervous. It is undisputed that the Appellant was present during the search of the car, but the other linking factors will be addressed below.

1. Appellant Was Closest to the Marijuana, Which Was in Plain View. Appellant argues that Passenger, who was located in the car while Appellant and Driver were removed, could have dropped the marijuana in the area where it was found. However, both deputies testified that as police officers, they were trained to watch several different peo ple at once in order to prevent threats (II R.R.
at 25

- 26, 117). Also, the Driver left the vehicle before the Appellant (II R.R. at 74

-10

75). The Passenger was watched constantly, throughout the traffic stop (II R.R. at 117). During the period of time that A ppellant stated that the Passenger was alone in the car in the front seat, she was never out of the deputies’ fields of vision ( State’s Ex. 4 at 8:00

– 10:50). The deputies testified that she made no movements towards the back seat or even her child (II R. R. at 26). Furthermore, throughout the events of December 8, 20 13, the Appellant never mentioned that the drugs were the Driver’s or the Passenger’s or that either one of them planted them on the backseat floorboard. In both Ferguson v. State and Randle v . State , the drugs were found in close and convenient proximity to the respective appellants. Ferguson , 313 S.W.3d a t 421 ; Randle , 04

- 14

- 00065

- CR, 2015 WL 1640306, at *4 (Tex. App.

— San Antonio Apr. 8, 2015, n o pet.) (not designated for publication). In this case, it is undisputed that the Appellant had the easiest access to the drugs that were in his “plain view” in the backseat. While mere proximity cannot be sufficient to uphold a verdict, there are several other Evans affirmative links that are present in this case just as in Ferguson and Randle

. Appellant’s proximity to

– and plain view of

– the marijuana in this case are only some of the multiple affirmative links that connect Appellant to the care, custod y, control, or management of the marijuana.11

2. Appellant Displayed Symptoms of Marijuana Use. Of the three adult occupants, Appellant was the only one who exhibited any sign of being under the influ ence of drugs. Officers observed Appellant’s blood shot eyes and Deputy Huerta observed Appellant visibly and noticeably shaking throughout his interaction with the Appellant (II R.R. at 41

- 42, 55, 77, 99, 109, 121). Deputy Huerta consistently maintained that Appellant’s eyes were bloodshot, even under cro ss examination. Appellant argues that Deputy Huerta admitted that “you cannot really tell if [Appellant’s] eyes are bloodshot .” Brief for Appellant at 12. However, Deputy Huerta’s so called “admission” is as follows: Q: Can you distinguish that on the vide o? A: Kind of, but not really. Q: So your testimony is you could ascertain they were red bloodshot in person, but it’s not that obvious on the video? A: If you play the video a little more. Q: That is an unobstructed view of his eyes? A: Yes sir, the y look red bloodshot to me. (II R.R. 121) . The “admission” that Appellant’ s bloodshot eyes were not captured on a certain part of the video was clarified when the defense counsel showed Deputy Huerta a different

– and unobstructed

– video of Appellant’s e yes. The Appellant was also shown to have bloodshot or glassy eyes in the backseat video ( State’s Ex. 5, 43:44, 45:50, 48:40).12

It should be noted that this evidence was played before the jury. Appellate courts in Texas recognize that the trier of fact (jur y) is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. Poindexter v. State , 153 S.W.3d 402, 406. T his was also only one of the affirmative links that the jury used in order to determine that the Appella nt was guilty, and this Court should look to the logical force of all of the links in their totality. See Evans v. State , 202 S.W.3d 158, 162.

3. Appellant Was the Only Occupant Who Appeared Overly Nervous
. Throughout the events of December 8, 201 3, Appellant acted overly nervous. Acting nervous around police is not a crime , as the deputies admitted (II R.R. 122). However, Appellant’s behavior was anything but the “natural impulse” of nervousness alluded to by Appellant. Glass v. State , 681 S.W.2d 599, 602 (Tex. Crim. App. 1984). Deputies Cano and Huerta both testif ied that Appellant was overly nervous throughout the events of December 8, 2013 (II R.R. at 22

- 23, 41

- 42, 48

- 49, 51, 55, 57, 75

- 76, 77

- 78, 84, 98; State’s Ex. 4 at 9:25

– 10:00). Firs t, in their interactions with the Appellant, the deputies testified that the Appellant would persistently claim that he “[didn’t] want no trouble” and that he was “just along for the ride” (II R.R. 75

- 78, 100, 144; Ex. 4 at 6:25

– 7:50, 8:30

– 8:50). Appel lant made these statements repeatedly, and without prompting by the13

deputies (II R.R. at 76). Second, Deputy Huerta testified that Appellant was shaking all over his body, especially his hands and thighs (II R.R. at 78). Third, once the Appellant left the car and was seated on a nearby curb, he requested and was encouraged to smoke a cigarette because of his noticeable “overly nervous” behavior ( State’s Ex. 4 at 10:25). Finally, the deputies state that during the early portion of the traffic stop, Appellant was “adamant” about leaving the car ( State’s Ex. 4 at 4:30). The behavior exhibited by the Appellant and observed by the deputies rises above the “natural impulse” of nervousness presented by the Appellant and showed a consciousness of guilt. Glass v. Sta te , 681 S.W.2d 599,
602.

4. The Absence of Particular Links Sometimes Present in Other Cases Is Not Dispositive. Appellant lists several linking factors in Evans that were absent in the instant case, but “it is well established that the absenc e of certain links do not weigh against those that are present.” Ferguson v. State , 313 S.W.3d 419 , 426; Evans v.
State , 202 S.W.3d at 162; Robinson v. State , 174 S.W.3d 320, 326 (Tex. App.

-- Houston [1st Dist.] 2005, pet. ref ’ d)

. Appellant incorrectly char acterizes “a logical force” of the absence of linking factors being dispositive. Brief for Appellant at 15

- 16. Rather, it is the logical force of the links that do exist that is dispositive. Gilbert
v. State , 874 S.W.2d a t 298 ; Olivarez v. State , 171 S.W.3d a t 291

.14

5. The Jury Rejected the Alleged “Links” to the Driver. Appellant tried to argue that there were more affirmative li nks connecting the Driver to the marijuana than the Appellant. Driver did own and operate the vehicle (II R.R. at 56). This is not sufficient to amount to conclusive evidence of reasonable doubt as it only proves that Driver was indeed the owner and opera tor of the vehicle. See Jackson v. Virginia , 443 U.S. 307, 314, 318 n

. 11, 320. Next, Appellant mentions that Driver took evasive action to avoid getting in front of the deputies (II R.R. at 71). Deputy Huerta also testified that it was normal for any driver to behave the same way when police officers are on the road (II R.R.
at 72). Also, when asked if the driving behavior of the Driver was suspicious, Deputy Huerta responded that it was just “human nature” to engage in what he called the “parade fact or” of maintaining whatever speed necessary to stay behind police officers (II R.R. at 72). The Appellant then mentions that the Driver was on probation for a drug offense (II R.R. at 125). When cross

- examined by defense counsel, Deputy Huerta testified that being on probation is a good motivator to stay away from drugs period (II R.R. at 1 25

- 26). It would logically follow that if the Driver was indeed the possessor of the marijuana, then he would be overly nervous around police officers and would not li kely consent to a search of his vehicle. Instead, he was calm throughout the entire transaction prior to the drugs being discovered ; he did15

not hide the fact that he was on probation from the deputies, and readily consented to a search of his vehicle (II R .R. at 57, 75, 98

- 99, 100; State’s Ex. 4 at 12:20

– 12:25). In fact, Appellant was the only person who was overly nervous throughout the stop (II R.R. at 22

- 23, 41

- 42, 48

- 49, 51, 55, 57, 75

- 76, 77

- 78, 84, 98). Finally, Appellant mentions that the Driver became upset once the marijuana was discovered by the deputies. Appellant claims that Driver was so upset that th e deputies had to calm him down. Brief for Appellant at 16. However, the video does not support this claim ( see State’s Ex. 4 at 23:10

– 23:45)

. The Driver does not act nor sound overly upset. Appellant cites Glass v. State r egarding the normal tendency to be nervous during a police encounter. Glass v. State , 681 S.W.2d 599,
602. Just as it is normal to be nervous to some extent around police off icer s , it is also normal to become upset after unknown drugs are found in your vehicle. Accordingly, the typical reaction of the Driver to the discovery of the marijuana is insufficient to compel a conclusion that the logical force of the evidence implicat es the Driver more than the Appellant. Any links to the Driver are refutable and do not conclusively establish reasonable doubt. Because they are refutable, the jury reasonably determined in its evaluation of the weight and credibility of the evidence t hat the alleged “links” to the Driver were insignificant.16

6. In Addition to Appellant’s Proximity, Officers Relied on Several Other Factors to Make the Arrest. The arresting officer, Deputy Huerta, stated that he arrested the Appellant based on the totality of the circumstances (II R.R. at 98

- 99, 109, 143

- 144). These circumstances included: the Appellant was present when the search was conducted, he was the only adult within very easy reach of the marijuana, the Appellant was the only individual tha t was overly nervous throughout the encounter, he was very adamant about leaving the car ( State’s Ex. 4 at 4:30), he had bloodshot eyes, he was shaking all over his body, especially his hands and thighs, and no other adult occupant of the vehicle exhibited similar behavior (II R.R. at 98

- 99). Several of these circumstances are not disputed by the Appellant, and it is clear that the facts of this case do not support the Appellant’s assertion that mere “proximity” constituted the entirety of the basis for t he arrest. Instead, the facts support the conclusion that proximity to the marijuana was one of several facts which led to the Appellant’s arrest for possession of marijuana. Ultimately, it is for the jury to decide how to weigh evidence, testimony, and re solve factual conflicts. Appellate courts defer to those determinations to avoid replacing the jury’s verdict with their own judgments. Jackson v. Virginia , 443 U.S. 307, 326 (1979)

. When the totality of the circumstances is viewed in the light most favora ble to the judgment, the jury reasonably concluded that the Appellant was guilty based on all of the linking factors that existed.17

B. Texas Case Law Demonstrates the Factors in Appellant’s Case Were Sufficient for a Reasonable Jury to Find Appellant Gui lty. Appellant believes that the Allen v. State case and Williams v. State , are instructive as to the disposition of the current case. See Allen , 249 S.W.3d a t 683 ; Williams , 03

- 08

- 00684

- CR, 2010 WL 2788819, at *1 (Tex. App.

— Austin July 14, 2010, no pet.) (mem. op.) (not designated for publication). However, several facts which were noticeably absent in Allen a re present in Appellant’s case. Williams also provides for a sharp contrast with Appellant’s case. Both Allen and Williams actually lend supp ort the State ’ s position

. In Allen v. State , this Court dealt with a possession case where drugs were found in an apartment. Allen , 249 S.W.3d at 684. Allen and two child ren were the only occupants at the time that police executed a search warrant. Id . Al len was the child ’ s babysitter and was only in the apartment a few hours a week. Id . Allen was found with a recently smoked marijuana roach within easy reaching distance. Id. at 684

- 85. It should be noted that Allen v. State pertained to knowing possessi on of all of the cocaine within the apartment. The Court found that Allen did not have knowing possession of cocaine and paraphernalia under the kitchen sink, in a dog food bag, or on a ceramic platter located in the kitchen

. Id . at 684

- 85. Most of the

co caine, this Court reasoned, was located in areas that were enclosed, secreted, and not in the “ plain view ” of Allen. Id

. at 694

- 96. By contrast, the marijuana in18

Appellant’s case was located in plain view on the floor in the rear passenger side of the car ( II R.R. at 82

- 83).
In Allen v. State , the State attempted to rely primarily upon the proximity of Allen to the cocaine. Allen v. State , 249 S.W.3d at 694

- 96. However, i n a multi

room apartment which did not belong to the appellant , it is difficult to su ccessfully argue that an accused has knowledge of drugs in other rooms, especially when those drugs are hidden, enclosed, and secreted. Id

. at 694

- 96. In Appellant’s case , it is undeniable that the Appellant was the closest to the marijuana found in the

ve hicle , which was visible and within arms ’ reach ( II R.R. at 86

- 87). Moreover, Deputy Cano testified that he did not observe the Passenger make any movements as if she was trying to conceal something, despite the fact that he kept an eye on the Passenger “t he whole time” ( id . at 25). Allen was not found to have exhibited any consciousness of guil t. Allen , 249 S.W.3d at 702. Conversely, Appellant was “ overly nervous ” and continuously stated (without prompting from the deputies) that he “ [d idn’t ] want no trou ble ” and that he was “

just along for the ride ” ( II R.R. at 75

- 78 , 84 ). Allen was not under the influence of cocaine, the drug in question in that

case. Allen , 249 S.W.3d at 698. However, i n Appellant’s case, the deputies testified that the y observed the s ymptoms of marijuana use

– including “glassy” and “[b]loodshot eyes”

– in Appellant during the stop (II R.R. at 26, 41, 54).19

The unpublished case W

illiams v. State is also readily distinguishable from Appellant’s case. In Williams , officers went to the a ppellant’s house to arrest her on a child

- custody charge. Williams , 2010 WL 2788819 at *1. At the time, the appellant’s brother John

– who the app ellant knew to be a drug dealer, and who sometimes lived with the appellant

– was also in her apartment with h is girlfriend. Id . at *2. When the police attempted to arrest John on an outstanding warrant, he struggled with them. Id . at *1. Officers tased him and wrestled John to the ground. Id . When officers handcuffed John and lifted him off the floor, they found a baggie of cocaine with a Batman logo sticker on it. Id

. Officers had not observed the baggie on the floor before struggling with John. Id . n.4. Officers then found additional baggie of cocaine with Batman stickers in an unlocked living

- room closet, along with $1,600 in cash in John’s wallet. See id . at *1. In finding the evidence in that case to be legally insufficient to show John’s
sister knowingly exercised control over the drugs, the Court observed that the mere fact the appellant rented the apartme nt was not enough to suggest she possessed the drugs in the closet

– particularly when John and his girlfriend were also in the apartment. 4 Id . at *5. The Court explicitly noted that “[i]t is also significant that the drugs were not in plain view, but rath er were stashed in a closed closet.” Id

.

4 The appellant ’s uncontroverted testimony in Williams also indicated that her brother John and his girlfriend had initially slept in her living room the night before, while appellant slept in her bedroom. Id . at *2 , *7

.20

Although the State tried to argue that the appellant “must have” known John was high, the Court observed that such a fact would have no bearing on whether she knew about drugs in her closet. Id . at *6. While the l inking facts in Williams indicated the appellant’s brother had possessed the drugs, in the instant case, the facts support that Appellant knowingly possessed the marijuana. See supra (at 1

- 3 , 9

- 17 ). Appellant was closest to the marijuana, which was within arms’ reach. It was also “significant” that the drugs were in Appellant’s plain view. See Williams , 2010 WL 2788819 at *5. And unlike Williams , the fact that officers could observe that Appellant was high was further evidence linking him to the Marijuana. The facts in Appellant’s case are vastly different

– and much stronger

– than those presented in Allen and Williams

. The cases in Ferguson v. State and Randle v. State are much more on point with the facts of Appellant’s case. See Ferguson , 313 S.W.3d 419 ; Randle , 2015 WL 1640306, at *1

. The application of law to facts i n these cases are more
i nstructive than either Allen or Williams

. In Ferguson , the appellant was in a vehicle with two other individuals. 313 S.W.3d at 421. The appellant was found alone in the backseat where the drugs were also found. Id . The appellant and the other occupants were “ extremely

nervous ” and “ fidgety. ” Id

. The vehicle was searched based on the behavior of the occupants and the drugs were found in the same area of the van as the appellant.21

Id . The Court in Ferguson determined that mere proximity was not necessarily sufficient to determine guilt, but, if additional Evans affirmative links were found along with proximity, then it could be sufficient. Id . at 424. The Court in Ferguson observed that the appellant: was present when the van was searched, exhibited behavior that indicated a consciousness of guilt, was found in close proximity to the drugs and that they were within convenient reach, and that he appeared to be under the influence when arrested. Id . at 426. The location where the drugs were found was also enclo sed. Id . All of these listed f actors were also present in Appellant’s case

. Whereas i n Ferguson , the police also discovered drug paraphernalia in addition to the drugs themselves, in Appellant’s case, the marijuana was located in plain view of the Appellan t. Compare with id . at 427 (drugs were hidden under a pile of clothes)

. The totality of the facts in Appellant’s

case is stronger than th at found sufficient in Ferguson

. In Randle , the appellant was found in a van with several other occupants.
2015 WL 1640 306 at *1. A detective pulled the van over because the driver and front passenger were not wearing their seatbelts. Id . at * 2 . The detective conducted a search of the van and found a bag of marijuana underneath the appellant’s seat

. Id . at *3 . He initially detained the appellant and the driver, but eventually arrested only the appellant and not the driver because there “ was nothing to arrest him [driver] on. ” Id

.22

The appellant in Randle argued that the State only proved that the drugs were in “ mere proximi ty ” to the appellant and nothing more. Id . at *4

. The Court
in Randle observed that the State proved several of the Evans affirmative links ; among others, the fact that that the appellant was present during the search of the van, had the easiest access to the marijuana because it was beneath his seat, and that the marijuana was in his “ plain view ” were significant. Id . The se affirmative links listed were also present in the instant case

. If anything, in Appellant’s case, the marijuana was more vis ible lyin g in the floorboard. Additionally, Appellant exhibited consciousness of guilt through his nervous actions as well as symptoms of marijuana use.

Conclusion The burden is on the Appellant to show that “ no rational trier of fact” could have found the A ppellant guilty. Kiffe v. State , 361 S.W.3d 104, at 107 (citing Jackson v. Virginia , 443 U.S. 307, 319 (1979))(emphasis added). Although Appellant attempts to rely on Allen and Williams , the notable absence of several factors in those cases

– in sharp cont rast to the distinct facts in Appellant’s case

– ultimately lends support to the State’s position. Furthermore , the facts in Appellant’s case exceeded those found sufficient in the more pertinent cases of Ferguson and Randle

.23

Appellant incorrectly claims that mere proximity to the marijuana was the only affirmative link that led to his arrest. Brief for Appellant at 17. Contrary to Appellant’s assertion, there were several additional factors in his case. The marijuana was in Appellant’s plain, unobstruct ed view. He was the only adult who was overly nervous throughout the events on December 8, 2013 (II R.R. at 22

- 23,
41

- 42, 48

- 49, 51, 55, 57, 75

- 76, 77

- 78, 84, 98) . He continuously stated that he “[didn’t] want no trouble” and was just “along for the ride” without ever being prompted by the deputies (II R.R. at 75

- 78, 100, 144; State’s Ex. 4 at 6:25

– 8:50). He was visibly shaking all over his body and he never claimed a medical condition that would explain it (II R.R. at 78 ). Appellant also exhibited glass y, bloodshot eyes, which deputies testified were hallmarks of marijuana use

. It has been consistently found by courts in Texas that the logical force of affirmative links between evidence and actors is more important in possession cases than the raw numb er of links that exist. Evans v. State , 202 S.W.3d a t 162 ; see also Gant v. State , 116 S.W.3d at 131 ; Gilbert v. State , 874 S.W.2d 290 citing Whitworth v. State , 808 S.W.2d 566, 569 (Tex. App.

— Austin 1991, pet. ref’d). The Court of Criminal Appeals has also stated that the affirmative links may be sufficient “ singly or in combination ” with each other. Evans , 202 S.W.3d at 162 n. 12 (emphasis add ed).24

Viewing all of the evidence, testimony, and linking factors in the light most favorable to the State, the logical force of the evidence and reasonable inferences derived from the evidence allowed a rational trier of fact to determine that Appellant exercised care, custody, control, or management of the marijuana and that he knew that it was contraband. See Evans , 202 S.W.3d at 162. Because

– when viewing the evidence in the light most favorable to the verdict

– it cannot be said that “ no rational fa ctfinder” could have found Appellant guilty, the Court should affirm the judgment of the trial court in this case. See Kiffe , 361 S.W.3d at 107 (emphasis added).25 

### Prayer Wherefore, premises considered, Appellee respectfully prays that this Honorable Cou rt of Appeals affirm in all matters the judgment of the trial court in this case.

JENNIFER THARP Criminal District Attorney

By /s/ M elroy Koehler Melroy Koehler SBN: 2 4003663 C hief Misdemeanor Prosecutor 150 N. Seguin Avenue, Ste. #307 New Brau nfels, Texas 78130 Phone: (830) 221

- 1300 Fax : (830) 608

- 2008 E

- mail: koehlm @co.comal.tx.us Attorney for the State & Supervising Attorney
Scott Walther Associate Member Number : 24096091 150 N. Seguin Avenue, Ste. #307 New Braunfels, Texas 78130 Phone: (830) 221

- 1300 Fax: (830) 608

- 2008 E

- mail: walt1274@gmail.com26 

### Certificate of Service I, M elroy , Assistant District A ttorney for the State of Texas, Appellee, hereby certify that a true and correct copy of this Brief for the State has been delivered to Appellant MATTHEW JARRETT LEE ’ s attorney of record in this matter: Frank B. Suhr fsuhr@newbraunfelslaw.com Law Offices of Frank B. Suhr 473 S. Seguin Ave., Suite 100 New Braunfels, T X 78130 Attorney for Appellant on Appeal By electronically sending it through efile.txcourts.gov to the above

- listed email address, this the 6 th day of October , 2015. /s/ M elroy Koehler Melroy Koehler


### Certificate of Compliance I hereby certif

y, pursuant to Rule 9.4(i)(2)(B) and Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure that the instant brief is computer

- generated using Microsoft Word and said computer program has identified that there are 5 ,668 words within the portions of this brief required to be counted by Rule 9.4(i)(1) & (2) of the Texas Rules of Appellate Procedure. The document was prepared in proportionally

- spaced typeface using Times New Roman 14 for text and Times New Roman 12 for footnotes. /s/ M elroy Koehler Melroy Koehler