NO. 07-08-0448-CR 

 IN THE COURT OF APPEALS 

 FOR THE SEVENTH DISTRICT OF TEXAS 

 AT AMARILLO 

 PANEL D 

 FEBRUARY 9, 2010 

 ______________________________ 

 DEWAIN JENNINGS, APPELLANT 

 V. 

 THE STATE OF TEXAS, APPELLEE 

 _________________________________ 

 FROM THE 242ND DISTRICT COURT OF HALE COUNTY; 

 NO. B17509-0801; HONORABLE ED SELF, JUDGE 

 _______________________________ 

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. 

MEMORANDUM OPINION 

Appellant, Dewain Jennings, was convicted by a jury of possession of less than one 

gram of a controlled substance, to-wit: cocaine, a state jail felony; Tex. Health & Safety 

Code ' 481.115(b) (Vernon 2003),1

 and sentenced to confinement for two years. By two 

 1

Cocaine is a controlled substance listed in Penalty Group 1. See Tex. Health & Safety Code Ann. '

81.102(3)(D) (Vernon 2003). 
2 

issues, Appellant asserts the evidence is legally and factually insufficient to support his 

conviction. We affirm. 

Background 

On September 18, 2007, at approximately 12:00 a.m., Officers James Christopher 

Hall and Richard Reyes of the City of Plainview Police Department were dispatched to 

Room 117 of the Villa Motel to investigate a complaint that two women were using drugs in 

front of children. 

After arriving at the motel, they identified Room 117 and knocked on the door. 

Appellant answered. He was smoking a cigar. The officers smelled the odor of burnt 

marihuana and asked Appellant to step outside where he was detained and handcuffed. 

Appellant informed the officers he was smoking marihuana and there was a bag of 

marihuana in the room atop the refrigerator. He also indicated the room was his and gave 

the hotel address as his own. 

Inside the room,2

 the officers observed two women sitting on the bed. With consent, 

the officers searched their purses and discovered a crack cocaine pipe in one purse. Atop 

the refrigerator, the officers located a bag of marihuana. Approximately ten feet across the 

room opposite the refrigerator, a microwave oven sat on a table. On top of the oven, 

approximately chest high in plain view, the officers observed a white powdery substance 

 2

The room was twelve and one-half feet wide and eighteen feet long with a separate door for the 

bathroom. 
3 

atop a playing card that was field tested and identified as cocaine.3 The officers arrested 

Appellant for possession of a controlled substance and one female for possession of drug 

paraphernalia. 

Kishor Bhakta, owner and manager of the Villa Motel, testified the room was 

registered to AMa Inez Torres@ for September 17 and 18. He also testified he had seen 

Appellant around the motel a significant amount of time. 

On the trial=s conclusion, the jury found Appellant guilty of possession of a controlled 

substance, cocaine, in an amount of less than one gram and sentenced him to two years 

confinement. After the trial court issued its Judgment of Conviction, Appellant filed this 

appeal. 

Discussion 

In two issues, Appellant asserts the evidence is legally and factually insufficient to 

establish he exercised actual care, control, custody or management over the cocaine. 

 3

At trial, Scott Williams, forensic scientist for the Texas Department of Public Safety Crime Laboratory 

Division, identified the white, powdery substance as 0.03 grams of cocaine. 
4 

I. Standard(s) of Review 

When an appellant challenges both legal and factual sufficiency, we are required to 

conduct an analysis of the legal sufficiency of the evidence first and then, only if we find the 

evidence to be legally sufficient, do we analyze the factual sufficiency of the evidence. 

Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). In assessing the legal 

sufficiency of the evidence, we review all the evidence in the light most favorable to the 

verdict to determine whether any rational trier of fact could have found the essential 

elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 

99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. 2007). 

 In a factual sufficiency review, we must consider all of the evidence in a neutral light 

to determine whether a jury was rationally justified in finding guilt beyond a reasonable 

doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In our analysis, 

we must determine whether the evidence supporting the verdict is so weak or so against 

the great weight and preponderance of the evidence as to render the verdict manifestly 

unjust. See Steadman v. State, 280 S.W.3d 242, 246 (Tex.Crim.App. 2009). A wrong and 

unjust verdict includes instances in which the jury’s findings “shocks the conscience,” or 

clearly demonstrates bias. See Grotti v. State, 273 S.W.3d 273, 280 (Tex.Crim.App. 2008). 

 In doing a factual sufficiency review, we must be mindful that a jury has already passed on 

the facts and must give due deference to the determinations of the jury. See Lancon v. 

State, 253 S.W.3d 699, 704-05 (Tex.Crim.App. 2008). If our decision is to set aside the 

verdict of the jury, our opinion should clearly explain how the evidence supporting the 
5 

verdict is too weak on its own or how the contradicting evidence so greatly outweighs the 

evidence in support of the verdict. See id. Conversely, if our decision is to uphold a 

verdict, we are required to consider the most important evidence that the appellant claims 

undermines the jury's verdict and explain why that evidence does not have the persuasive 

force the appellant believes is sufficient to overturn the verdict. See Sims v. State, 99 

S.W.3d 600, 603 (Tex.Crim.App. 2003). 

 In a sufficiency of the evidence review, the essential elements of the offense are 

those of a hypothetically correct jury charge for the offense in question (i.e., one that 

accurately sets out the law and adequately describes the offense for which the appellant 

was tried without increasing the state’s burden of proof or restricting the state’s theory of 

criminal responsibility.) Hooper, 214 S.W.3d at 14; Malik v. State, 953 S.W.2d 234, 240 

(Tex.Crim.App. 1997). 

 In our review, we consider both direct and circumstantial evidence and all 

reasonable inferences that may be drawn from that evidence. Hooper, 214 S.W.3d at 13. 

Circumstantial evidence alone is sufficient to establish the guilt of the accused and the 

standard of review as to the sufficiency of the evidence is the same for both direct and 

circumstantial evidence cases. Id. Each fact need not point directly and independently to 

the guilt of the accused, so long as the cumulative force of all the evidence, when coupled 

with reasonable inferences to be drawn from that evidence, is sufficient to support the 

conviction. Evans v. State, 202 S.W.3d 158, 166 (Tex.Crim.App. 2006). 
6 

II. Possession of a Controlled Substance 

A conviction for possession of cocaine is supported only when the defendant 

Aknowingly or intentionally possesses@ the drug. See Tex. Health & Safety Code Ann. 

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

Aactual care, custody, control, or management@ over the substance. See Tex. Health & 

Safety Code Ann. 481.002(38) (Vernon 2003). Thus, the State must prove the accused (1) 

Aexercised care, custody, control, or management over the [contraband]@ and (2) knew that 

the substance Apossessed@ was contraband.4

 Martin v. State, 753 S.W.2d 384, 386 

(Tex.Crim.App. 1988). 

 4

Appellant does not contend he was unaware the white substance was cocaine.

When the accused is not in exclusive control of the place where the contraband is 

found, the State must establish care, custody, control or management by linking the 

accused to the substance through additional facts and circumstances. See Evans v. State, 

202 S.W.3d 158, 161-62 (Tex.Crim.App. 2006); Poindexter v. State, 153 S.W.3d 402, 406 

(Tex.Crim.App. 2005). Whether the State=s evidence is direct or circumstantial, its 

evidence of links must establish, Ato the requisite level of confidence, that the accused=s 

connection with the drug was more than just fortuitous.@ Poindexter, 153 S.W.3d at 405-60 

(citing Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995); Park v. State, 8 S.W.3d 

351, 353 (Tex.App.BAmarillo 1999, no pet.). 
7 

 The many factors by which an accused may, under the unique circumstances of 

each case, be sufficiently Alinked@ to the contraband, include: (1) the defendant=s presence 

when a search is conducted; (2) whether the contraband is in plain view; (3) the 

defendant=s proximity to and the accessibility of the contraband; (4) whether the defendant 

was under the influence of contraband when arrested; (5) whether the defendant 

possessed other contraband or narcotics when arrested; (6) whether the defendant made 

incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) 

whether the defendant made furtive gestures; (9) whether there was an odor of contraband; 

(10) whether other contraband or drug paraphernalia were present; (11) whether the 

defendant owned or had the right to possess the place where the 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. See Triplett v. State, 

292 S.W.3d 205, 208 (Tex.App.BAmarillo 2009, pet. ref’d.) (numerous factors listed). 

These factors, however, are simply that Bfactors which may circumstantially establish the 

sufficiency of evidence offered to prove a knowing Apossession.@ Evans, 202 S.W.3d at 

162 n.12 (AThey are not a litmus test.@). It is not the number of links that is dispositive, but 

rather the logical force of all the evidence. Id. at 162. 
8 

III. Legal Sufficiency

 Appellant correctly states that mere presence at a location where drugs are found 

is insufficient by itself to establish actual care, custody, or control of the drugs. Evans, 202 

S.W.3d at 162. However, presence, proximity, and plain view, when combined with other 

evidence, either direct or circumstantial, may well be sufficient to establish Apossession@

beyond a reasonable doubt. Id.

Here, the State has produced evidence of the presence of at least eight of the 

fourteen factors cited in Evans. Appellant answered the officers= knock at the door;5

 he 

asserted the room was his and gave the address of the Villa Motel as his own during 

booking;6

 he was using marihuana and was under its influence when arrested;7 he was 

present when the search was conducted;8 the cocaine and bag of marihuana were in plain 

 5

That the accused answers the door to the hotel room is evidence of control. Watson v. State, 861 

S.W.2d 410, 415-16 (Tex.App.BBeaumont 1993, pet. ref=d). 

6

Whether the accused Aowned or had the right to possess where drugs were found@ is also a factor 

linking the accused to the contraband. Beall v. State, 237 S.W.3d 841, 850 (Tex.App.BFort Worth 2007, no 

pet.). 

7

The presence and/or use of other contraband are affirmative links from which to infer knowledge and 

control. See Peters v. State, 93 S.W.3d 347, 356 (Tex.App.BHouston [14th Dist.] 2002, pet. ref=d) (presence of 

shotgun and marihuana admissible to prove appellant=s knowledge and control over cocaine). See also Hyett 

v. State, 58 S.W.3d 826, 830 (Tex.App.BHouston [14th Dist.] 2001, pet. ref=d) (listing presence of other 

contraband as Aaffirmative link@ from which to infer knowledge and control); Levario v. State, 964 S.W.2d 290, 

295 (Tex.App.BEl Paso 1997, no pet.) (considering presence of marihuana in sufficiency review).

8

See Isham v. State, 258 S.W.3d 244, 248 (Tex.App.BEastland 2008, pet. ref=d).
9 

view, easily accessible and in close proximity;9

 the drugs were recovered from an enclosed 

spaceBa small hotel room;10 and the room smelled of burnt marihuana.11 

Although no direct evidence shows Appellant exercised care, control, and/or 

management over the cocaine found in the motel room, the State presented sufficient 

circumstantial evidence to allow a reasonable jury to rationally infer and find beyond a 

reasonable doubt that Appellant possessed the cocaine. See Park, 8 S.W.3d at 353-54 

(upholding conviction on evidence that accused controlled hotel room, drugs were in plain 

view and accessible to accused, room smelt of burnt marihuana, accused and guest were 

only two persons in the room); Levario, 964 S.W.2d at 295 (upholding conviction on 

evidence of accused inhabiting the room, his proximity to the drug, the accessibility of the 

drug to the accused, and the drug=s visibility). Therefore, we find the evidence legally 

sufficient to support the conviction. Appellant=s first issue is overruled. 

IV. Factual Sufficiency 

The evidence relevant to Appellant=s guilt was essentially uncontradicted. Disputing 

the inferences to be drawn from the facts, Appellant argues the facts demonstrated he was 

merely in the motel room and not using cocaine. In support, he asserts: (1) one of the 

 9

Whether contraband Awas conveniently accessible to the accused@ is a factor in linking the accused 

to the contraband. Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App. 1981). 

10See Barrett v. State, No. 03-06-00102-CR, 2007 WL 1790709, at *5 (Tex.App.BAustin 2007, no pet.) 

(not designated for publication); Trevino v. State, No. 13-02-00223-CR, 2004 WL 169232, at *3 

(Tex.App.BCorpus Christi, no pet.) (not designated for publication). 

11See Park, 8 S.W.3d at 354. 
10 

females was linked to the cocaine because she was carrying a crack cocaine pipe in her 

purse; (2) the motel room was registered in another person=s name; (3) officers did not 

observe Appellant close to the cocaine; (3) Appellant appeared surprised when the officers 

discovered cocaine in the room; (4) Appellant had no drug paraphernalia on his person; 

and (5) only traces of cocaine were found in the room.12 On the other hand, Officer Reyes 

and DPS=s Williams testified at trial that the type of cocaine found in the motel room was 

typically taken through the nose or injectedBnot smoked in a pipe. In addition, although the 

room was registered to another person, Bhakta, the motel=s owner/manager, had noticed 

Appellant at the motel a significant amount of time. 

 12Appellant also points to the absence of evidence of some of the links to support his assertion that 

the cocaine was not in his actual care, custody, control, or management. True, there was no evidence of 

conflicting statements by the persons in the motel room, affirmative statements about the cocaine, the 

presence of a large sum of money, an odor of cocaine, and the cocaine was not hidden within the room. The 

absence of some links evidence, is not, however, evidence of an appellant=s innocence to be weighed against 

other evidence tending to link him with the contraband. Hernandez v. State, 538 S.W.2d 127, 131 

(Tex.Crim.App. 1976). Rather, the issue is whether there is sufficient evidence linking Appellant to the 

contraband to support the reasonable inference that he was knowingly in possession of the cocaine. Id. 

 We are not free to weigh the evidence merely because a different result may be 

more reasonable. Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996). To the 

extent there was any contradictory evidence, we note that the jury, as the trier of fact, is the 

sole judge of the credibility of witnesses and the weight to be given to testimony. See 

Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996); Sharp v. State, 707 S.W.2d 

611, 614 (Tex.Crim.App. 1986). Considering the above evidence in a neutral light, the 

evidence cited by Appellant does not demonstrate the proof of guilt was so weak as to 

undermine confidence in the jury=s determinations or greatly outweighed contrary proof. 
11 

Thus, we hold the evidence was factually sufficient to support Appellant=s conviction. His 

second issue is overruled. 

 Conclusion 

The trial court’s judgment is affirmed. 

Patrick A. Pirtle 

 Justice 

Do not publish.