                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-17-00116-CR

JIMMY LEE GARCIA,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 249th District Court
                              Johnson County, Texas
                              Trial Court No. F49872


                           MEMORANDUM OPINION


      Jimmy Lee Garcia was convicted of possession of a controlled substance and, after

the jury found two enhancement paragraphs to be true, was sentenced to life in prison.

See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2017). Because the evidence was

sufficient to prove Garcia possessed methamphetamine, the trial court conducted a

sufficient inquiry into the reasonableness of prospective witnesses’ assertions of a Fifth

Amendment privilege, and the trial court did not abuse its discretion in admitting certain
evidence, the trial court’s judgment is affirmed.

SUFFICIENCY OF THE EVIDENCE

        In his first issue, Garcia contends the evidence was insufficient to support a

conviction for possession of a controlled substance. Specifically, Garcia argues the

evidence was insufficient to prove he possessed the methamphetamine.

Standard of Review

        The Court of Criminal Appeals has expressed our standard of review of a

sufficiency of the evidence issue as follows:

               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must consider all of the evidence in the light
        most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This "familiar standard 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. "Each fact need not point directly
        and independently to the guilt of the appellant, as long as the cumulative
        force of all the incriminating circumstances is sufficient to support the
        conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

        The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v. State,

67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the


Garcia v. State                                                                             Page 2
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,

326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence

are treated equally: "Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is well

established that the factfinder is entitled to judge the credibility of witnesses and can

choose to believe all, some, or none of the testimony presented by the parties. Chambers

v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

Possession and Affirmative Links

        To prove unlawful possession of any controlled substance, "the State must prove

that (1) the accused exercised control, management, or care over the substance; and (2)

the accused knew the matter possessed was contraband."1 Evans v. State, 202 S.W.3d 158,

161 (Tex. Crim. App. 2006); see also TEX. HEALTH & SAFETY CODE ANN. § 481.002(38) (West

2017) ("'Possession' means actual care, custody, control, or management."). Possession is

not required to be exclusive. See Evans, 202 S.W.3d at 162 n.12. When a defendant is not

in exclusive possession of the place where the controlled substance is found, then

additional, independent facts and circumstances must affirmatively link the defendant to

the substance in such a way that it can reasonably be concluded that the defendant




1
 Garcia does not contest that he knew the substance was contraband. His focus is on whether he exercised
control, management, or care over the substance.

Garcia v. State                                                                                  Page 3
possessed the substance and had knowledge of it. Poindexter v. State, 153 S.W.3d 402, 406

(Tex. Crim. App. 2005); Kibble v. State, 340 S.W.3d 14, 18 (Tex. App.—Houston [1st Dist.]

2010, pet. ref'd). In other words, the evidence "must establish, to the requisite level of

confidence, that the accused's connection with the [contraband] was more than just

fortuitous," which may be established by direct or circumstantial evidence. Brown v. State,

911 S.W.2d 744, 747 (Tex. Crim. App. 1995).

        Evidence of any number of factors may help establish the connection between the

defendant and the contraband. Evans, 202 S.W.3d at 162 n.12. (listing 14 non-exclusive

factors). Not all of the factors must be proved; rather, it is the cumulative logical force

the evidence has in proving possession that we must consider. See James v. State, 264

S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd). Additionally, the

absence of evidence of some of the factors is not evidence of innocence that must be

weighed against the factors that are present. See id. Rather, proof of a factor is used to

assess the sufficiency of the evidence linking the defendant to the knowing possession of

contraband. See e.g., Roberson v. State, 80 S.W.3d 730, 735-36 (Tex. App.—Houston [1st

Dist.] 2002, pet. ref'd); Allen v. State, 249 S.W.3d 680, 694 n.13 (Tex. App.—Austin 2008, no

pet.) (explaining that presence or absence of factors "aid appellate courts in determining

the legal sufficiency of the evidence in knowing possession of contraband cases").

Ultimately, the inquiry is whether, based on the combined and cumulative force of the

evidence and any reasonable inferences therefrom, a jury was rationally justified in


Garcia v. State                                                                        Page 4
finding guilt beyond a reasonable doubt. Tate v. State, 500 S.W.3d 410, 414 (Tex. Crim.

App. 2016).

Relevant Facts/Application

        Although Garcia was not in exclusive possession of the premises where the

methamphetamine was found, there was sufficient evidence to link him to it. The record

reflects that officers for the Cleburne Police Department arrived at an apartment to arrest

two people, Randy Pullen and Kendra Shelby, on felony warrants. Upon initially seeing

Officer Davenport within a few feet outside the apartment door, Garcia suddenly went

back inside the apartment, walked quickly to the sole bedroom which was very small, sat

down on a chair in the corner of the room while facing the doorway to the bedroom.

Shelby followed Garcia into the bedroom and briefly stood by an aquarium before being

ordered out of the bedroom by Officer Davenport.

        While seated in the bedroom, Garcia reached behind him toward the floor where

two of the drug exhibits, a glass vial containing 2.37 grams of methamphetamine and a

yellow baggie containing .08 grams of methamphetamine, were located. The third drug

exhibit, a blue baggie containing .14 grams of methamphetamine, was also found in the

bedroom by an aquarium within a few steps from where Garcia was sitting. Drug

paraphernalia was also located on the floor under the chair where Garcia was sitting.

That paraphernalia included syringes, alcohol wipes, a rubber tourniquet, a digital scale,

and a metal measuring spoon.


Garcia v. State                                                                      Page 5
        Two bags/backpacks within arm’s reach of the chair where Garcia was sitting in

the bedroom were determined to belong to Garcia. Drug paraphernalia, including

needles and three empty yellow plastic baggies similar to the yellow plastic baggie found

beneath the chair on which Garcia was sitting, was discovered inside one of the bags.

        In reviewing this evidence in the light most favorable to the verdict, we find that

the evidence was sufficient for the jury to find Garcia guilty of possessing the

methamphetamine. Garcia’s first issue is overruled.

FIFTH AMENDMENT PRIVILEGE

        In his second issue, Garcia contends the trial court failed to conduct a sufficient

inquiry into the reasonableness of David Curtis’s and Kendra Shelby’s assertion of the

Fifth Amendment privilege against self-incrimination.

        The Fifth Amendment, made applicable to the states by the Fourteenth

Amendment, provides that, "no person ... shall be compelled in any criminal case to be a

witness against himself." U.S. CONST. amend. V; Walters v. State, 359 S.W.3d 212, 215 (Tex.

Crim. App. 2011). This privilege extends not only to answers that would in themselves

support a conviction, but also includes those which would furnish a link in the chain of

evidence needed to prosecute the claimant. Walters, 359 S.W.3d at 215. "[I]t need only be

evident from the implications of the question, in the setting in which it is asked, that a

responsive answer to the question or an explanation of why it cannot be answered might

be dangerous because injurious disclosure could result." Hoffman v. United States, 341 U.S.


Garcia v. State                                                                      Page 6
479, 486-87, 71 S. Ct. 814, 95 L. Ed. 1118 (1951); Walters, 359 S.W.3d at 215.

        Trial courts are not to simply take the word of potential witnesses who claim to

fear prosecution. Walters, 359 S.W.3d at 215. Rather, trial courts are required to inquire

into the source and reasonableness of that fear. Id. The trial judge, in appraising the

claim, "must be governed as much by his personal perceptions of the peculiarities of the

case as by the facts actually in evidence." Hoffman, 341 U.S. at 487; Walters, 359 S.W.3d at

215.

Relevant Facts

        After the State rested its case, Garcia sought to compel the testimony of David

Curtis and Kendra Shelby. Both prospective witnesses were subpoenaed to appear in

court and appeared with counsel. Both asserted their Fifth Amendment privilege. In

separate hearings outside the presence of the jury, Garcia proposed the questions he

would ask of each witness. As to Curtis, Garcia would ask: (1) whether Curtis was

depicted in State's Exhibit No. 11; (2) whether his bedroom was depicted in State's Exhibit

No. 4; and (3) if anyone else slept in the bedroom depicted in State's Exhibit No. 4. As to

Shelby, Garcia wanted to ask: (1) whether she was at the apartment on the date of

Garcia’s arrest; (2) whether she recognized State's Exhibit No. 4, a photograph of the

bedroom; and (3) whether she was in the bedroom on the date of Garcia’s arrest. He also

wanted to ask Shelby to: (1) identify the backpacks depicted in State’s Exhibit 15; (2)

identify the backpacks in State’s Exhibit 6; (3) confirm that she told Officer Davenport


Garcia v. State                                                                       Page 7
that the methamphetamine found was Garcia’s; and (4) confirm that in consideration for

this information, she was not charged with possession of methamphetamine. Both

Curtis’s and Shelby’s attorney’s explained to the Court that based on these questions,

their clients would invoke their right not to testify.

Application

        The statute of limitations for the offense had not run. Thus, both Curtis and Shelby

could expose themselves to prosecution if they answered Garcia’s questions a certain

way. Curtis was the person who rented the apartment. It was his bedroom in which the

drugs and paraphernalia were found. Shelby followed Garcia into the bedroom when

the police arrived.       She stood by the aquarium where the blue baggie of

methamphetamine was found. Further, if Shelby identified any of the “backpacks” as

belonging to her, she could also be charged with possession of drug paraphernalia.

        The trial court’s inquiry need not be more than what occurred in this case. See

Walters v. State, 359 S.W.3d 212, 216-217 (Tex. Crim. App. 2011).           The questions

propounded, the argument of counsel, and the testimony in evidence, were sufficient to

establish the fear of incrimination for both Curtis and Shelby.         Accordingly, after

reviewing the record, we hold the trial court conducted a sufficient inquiry into the

reasonableness of Curtis’s and Shelby’s invocation of the Fifth Amendment privilege.

Garcia’s second issue is overruled.




Garcia v. State                                                                       Page 8
RULES 401 AND 403

        In his third, and final, issue, Garcia asserts that the trial court erred in admitting

into evidence the digital scales located in the same area as the methamphetamine for

which Garcia was charged with possessing. Specifically, Garcia argues that the scales

were irrelevant and the probative value of admitting the scales was substantially

outweighed by the danger of unfair prejudice.

Standard of Review

        We review a trial court's decision regarding the admissibility of evidence under

an abuse of discretion standard and uphold a trial court's admissibility decision when

that decision is within the zone of reasonable disagreement. Williams v. State, 301 S.W.3d

675, 687 (Tex. Crim. App. 2009); Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007).

If the ruling was correct on any theory of law applicable to the case, we must uphold the

judgment. See Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004).

Rule 401-Relevance

        Evidence is relevant if it has any tendency to make the existence of "any fact that

is of consequence to the determination of the action more probable or less probable than

it would be without the evidence." TEX. R. EVID. 401.

        Garcia actively contested the possession element of the offense. And while not

actively contested, the State was, nevertheless, also required to prove Garcia knew the

substance was contraband. Whether “other contraband or drug paraphernalia were


Garcia v. State                                                                         Page 9
present” is included in the list of evidentiary factors which may be used to prove a

person’s possession of contraband. See Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim.

App. 2006). Thus, evidence of a digital scale, which Officer Davenport stated could be

used by drug users and drug dealers, tended to make Garcia’s possession of the

methamphetamine more probable, and thus, was relevant.

Rule 403-Probative Value

         "Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice…” TEX. R. EVID. 403. Rule

403 favors admission of relevant evidence and carries a presumption that relevant

evidence will be more probative than prejudicial. Allen v. State, 108 S.W.3d 281, 284 (Tex.

Crim. App. 2003); Jones v. State, 944 S.W.2d 642, 652-53 (Tex. Crim. App. 1996). In

considering a Rule 403 objection, the trial court must balance (1) the inherent probative

force of the proffered item of evidence along with (2) the proponent's need for that

evidence against (3) any tendency of the evidence to suggest a decision on an improper

basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues,

(5) any tendency of the evidence to be given undue weight by a jury that has not been

equipped to evaluate the probative force of the evidence, and (6) the likelihood that

presentation of the evidence will consume an inordinate amount of time or merely repeat

evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App.

2006).


Garcia v. State                                                                       Page 10
        The trial court has broad discretion in conducting a Rule 403 balancing test, and

we will not lightly disturb its decision. Allen, 108 S.W.3d at 284. All testimony and

physical evidence will likely be prejudicial to one party or the other. Jones v. State, 944

S.W.2d 642, 653 (Tex. Crim. App. 1996). It is only when there exists a clear disparity

between the degree of prejudice of the offered evidence and its probative value, in other

words, the evidence is unfairly prejudicial, that Rule 403 is applicable. Id.; see Montgomery

v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991, op. on rhg).

        The presence of the scale underneath the chair where Garcia was sitting, along

with the drugs and paraphernalia located in the small space of the room, strengthens the

inference that Garcia was in possession of the methamphetamine. Thus, the evidence

was necessary and probative. The evidence did not consume an inordinate amount of

time to present and was not repetitive of evidence already admitted. That the jury might

think that Garcia was a drug dealer because a digital scale was introduced into evidence

was minimal, especially in light of the other types of paraphernalia, such as syringes,

needles, a tourniquet, and alcohol wipes, which suggested Garcia used drugs, that were

located near the scale and also in a bag belonging to Garcia.

        Based on our review of the record, the trial court, after balancing the various Rule

403 factors, could have reasonably concluded that the probative value of the digital scale

was not substantially outweighed by the danger of unfair prejudice.

        Accordingly, the trial court did not abuse its discretion in admitting the digital


Garcia v. State                                                                       Page 11
scale into evidence, and Garcia’s third issue is overruled.

CONCLUSION

        Having overruled each issue presented by Garcia, we affirm the trial court’s

judgment.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed April 11, 2018
Do not publish
[CRPM]




Garcia v. State                                                              Page 12
