                                                                                          ACCEPTED
                                                                                      03-15-00112-CR
                                                                                              7259864
                                                                           THIRD COURT OF APPEALS
                                                                                      AUSTIN, TEXAS
October 15, 2015                                                                 10/6/2015 6:19:07 PM
                                                                                    JEFFREY D. KYLE
                                                                                               CLERK
                              No. 03-15-00112-CR
          __________________________________________________________
                                                             RECEIVED IN
                                                        3rd COURT OF APPEALS
                 IN THE COURT OF APPEALS FOR THE THIRD      AUSTIN, TEXAS
                             DISTRICT OF TEXAS          10/6/2015 6:19:07 PM
          __________________________________________________________
                                                          JEFFREY D. KYLE
                                                                Clerk
                       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
                                         i
                    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              Abigail Whitaker, SBN: 24051915
Assistant District Attorney              Assistant District Attorney
vicker@co.comal.tx.us                    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



                                    ii
                                                 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




                                                               iii
                                               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

                                                                iv
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


                                                                 v
                             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

                                         1
video of the subsequent stop and search was introduced into evidence (State’s Ex.

41).

       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-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

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.

                                               2
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




                                          3
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.

                                               4
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).




                                         5
      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

                                         6
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).




                                          7
       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.3 Evans,

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.

                                               8
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-


                                          9
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.




                                          10
      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).

                                         11
      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


                                         12
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.


                                            13
      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


                                         14
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.




                                         15
      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.

                                         16
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

                                          17
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 multi-

room 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).


                                          18
       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.4 Id. 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.

                                                19
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.


                                         20
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.


                                         21
      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.


                                         22
      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).




                                        23
       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).




                                        24
                                     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




                                        25
                              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 6th 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




                                         26
