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

CLERK

 RECEIVED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 10/6/2015 6:19:07 PM JEFFREY D. KYLE Clerk
ii

Identity of Parties and Counsel

Attorneys 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@newbraunfelslaw.com

Attorneys 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 Attorney

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 Braunfels, 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.com
iii

Table of Contents

Index of Authorities..................................................................................................iv

Statement of the Case.................................................................................................1

Issues Presented .........................................................................................................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 Evidence 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 .......................................................................................................................25

Certificate of Service ...............................................................................................26

Certificate of Compliance ........................................................................................26
iv

Index 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

Allen 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, 15
v

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 pet.) (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, AP-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, 20
1

Statement of the Case

Appellant was charged by information with the Class B misdemeanor 

offense of possession of marijuana (C.R. at 12). Appellant elected to have a trial by 

jury as to his guilt/innocence (I R.R. at 1). The jury found him guilty of the 

misdemeanor 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 costs (C.R. at 52), a six-month driver’s license suspension 

(C.R. at 54) and imposed other standard conditions of probation (C.R. at 62).

Issue Presented

Whether there was sufficient 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 obstructed/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). The 
2

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 “Driver”) (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-monthold 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 

vehicle 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 near the front of the vehicle (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 the 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 

found 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 floorboard 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 (II 
4

R.R. at 43-44, 55, 98-99, 109, 120, 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 punishment 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 

the 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 viewing 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 

conclusively 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

reasonable 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.). Legal 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. Reviewing 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 factfinder “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 to 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, standing 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. 2001). Furthermore, “[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. Dec. 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 in 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

There 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 the deputies, and Appellant had bloodshot, glassy 
7

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, control, 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 misdemeanor 

offense of Possession of Marijuana, under two ounces, “on or about 8th 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 controlled 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 also 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 terminate 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. State, 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.3Evans, 

202 S.W.3d at 162 n. 12, citing Olivarez v. State, 171 S.W.3d 283, 291 (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 in 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 indicated a consciousness of guilt.

Evans, 202 S.W.3d at 162 n. 12.
9

added). Additionally, it should be noted that these factors do not all need to exist 

because 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.—Houston 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 does not weigh against the factors that are present. Ferguson 

v. State, 313 S.W.3d 419, 426; see also Evans 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 people 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 Appellant 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, 2013, 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 at 

421; Randle, 04-14-00065-CR, 2015 WL 1640306, at *4 (Tex. App.—San Antonio 

Apr. 8, 2015, no 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, custody, 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 influence of drugs. Officers observed Appellant’s 

bloodshot 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 cross 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 video?

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, they 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 eyes. 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 (jury) 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. This was also only one of the 

affirmative links that the jury used in order to determine that the Appellant 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, 2013, 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 testified 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). 

First, 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). Appellant made these statements repeatedly, and without prompting by the 
13

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. State, 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 absence 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 characterizes “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 at 298; Olivarez v. State, 171 S.W.3d at 291.
14

5. The Jury Rejected the Alleged “Links” to the Driver. 

Appellant tried to argue that there were more affirmative links 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 operator 

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 factor” 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 125-26). 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 likely consent to a search of his vehicle. Instead, he was 

calm throughout the entire transaction prior to the drugs being discovered; he did 
15

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 the 

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 regarding 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 officers, 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 implicates 

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 that 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 that 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 the 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 resolve 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 favorable 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 Guilty. 

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 at 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 are present in Appellant’s case. Williams

also provides for a sharp contrast with Appellant’s case. Both Allen and Williams

actually lend support 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 children were the 

only occupants at the time that police executed a search warrant. Id. Allen 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 possession 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 

cocaine, 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 in 
18

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, in a multiroom apartment which did not belong to the appellant, it is difficult to successfully 

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 

vehicle, 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 “the whole time” (id. at 25).

Allen was not found to have exhibited any consciousness of guilt. Allen, 249 

S.W.3d at 702. Conversely, Appellant was “overly nervous” and continuously 

stated (without prompting from the deputies) that he “[didn’t] want no trouble” 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, in Appellant’s case, the deputies testified 

that they observed the symptoms 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 Williams v. State is also readily distinguishable from 

Appellant’s case. In Williams, officers went to the appellant’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 appellant knew to be a drug dealer, and who 

sometimes lived with the appellant – was also in her apartment with his 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 apartment was not enough to suggest she possessed the 

drugs in the closet – particularly when John and his girlfriend were also in the 

apartment.4Id. at *5. The Court explicitly noted that “[i]t is also significant that the 

drugs were not in plain view, but rather 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 linking 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 in these cases are more 

instructive 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 enclosed. Id. All of these listed factors were also present in 

Appellant’s case. Whereas in 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 Appellant. 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 that found sufficient in Ferguson.

In Randle, the appellant was found in a van with several other occupants.

2015 WL 1640306 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 proximity” 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. These affirmative 

links listed were also present in the instant case. If anything, in Appellant’s case, 

the marijuana was more visible lying 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 Appellant 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 contrast 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, unobstructed 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 glassy, 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 number of links that exist. Evans v. State, 202 S.W.3d at 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 added). 
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 factfinder” 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 Court of Appeals affirm in all matters the judgment of the trial court in 

this case.

JENNIFER THARP

Criminal District Attorney

 By 

/s/ Melroy Koehler

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

150 N. Seguin Avenue, Ste. #307

New Braunfels, Texas 78130

Phone: (830) 221-1300

Fax: (830) 608-2008

E-mail: walt1274@gmail.com
26

Certificate of Service

I, Melroy, Assistant District Attorney 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, TX 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/ Melroy Koehler

Melroy Koehler

Certificate of Compliance

I hereby certify, 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/ Melroy Koehler

Melroy Koehler