                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                       No. 07-14-00118-CR


                           TRAVON LA SHAE GINN, APPELLANT

                                                 V.

                             THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 108th District Court
                                      Potter County, Texas
               Trial Court No. 66,042-E, Honorable Douglas Woodburn, Presiding

                                        March 31, 2015

                               MEMORANDUM OPINION
                     Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


      Appellant, Travon La Shae Ginn, was indicted for the offense of possession with

intent to deliver a controlled substance, phencyclidine (PCP), in an amount of four

hundred grams or more.1 Appellant was convicted of the offense following a jury trial,

and the jury then assessed his punishment at confinement in the Institutional Division of

the Texas Department of Criminal Justice (ID-TDCJ) for 17 years.            Appellant has




      1
          See TEX. HEALTH & SAFETY CODE ANN. § 481.112(f) (West 2010).
perfected his appeal and presents one issue to the Court. Therein, appellant contends

that the evidence was legally insufficient to support the jury’s verdict. We will affirm.


                           Factual and Procedural Background


       On September 2, 2012, appellant was travelling from Moreno Valley, California,

to Oklahoma City, Oklahoma, when his vehicle was stopped for “failing to display a

license plate.” At the time of the stop, appellant was in the passenger seat, and the

vehicle was being driven by Anthony Piggue.             During the ensuing traffic stop,

Department of Public Safety Trooper David Edwards began to suspect that there was

some criminal activity connected to the vehicle and asked for and was granted

permission to search the vehicle. As a result of the search, two plastic containers were

discovered that contained the suspected contraband. Each plastic bottle was inside two

vacuum-sealed plastic bags. The officers who found the contraband recognized that

the liquid was leaking out of one of the bottles into the inner bag. This made the officers

suspect the liquid was PCP. Ultimately, appellant was arrested, and the contraband

was turned into the DPS Lab in Amarillo, Texas, where forensic testing proved that the

liquid was PCP.


       The jury returned a guilty verdict against appellant and assessed his punishment

at confinement in the ID-TDCJ for 17 years. Appellant contends on appeal that the

evidence was insufficient to support the jury’s verdict. Specifically, appellant contends

that the evidence was insufficient to show that appellant intentionally or knowingly

“possessed” the contraband. We disagree and will affirm.




                                              2
                                   Standard of Review


      In assessing the 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, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a factfinder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.”             Id.

When reviewing all of the evidence under the Jackson standard of review, the ultimate

question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07

n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d

404, 448–50 (Tex. Crim. App. 2006), as outlining the proper application of a single

evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s

credibility and weight determinations because the jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony.” Id. at 899. If a reviewing court

determines that the evidence is insufficient to establish any element of the offense, it

must reverse and render a judgment of acquittal. Dean v. State, 449 S.W.3d 267, 268

(Tex. App.—Tyler 2014, no pet.) (citing Cuddy v. State, 107 S.W.3d 92, 95 (Tex. App.—

Texarkana 2003, no pet.)); see Saldana v. State, 418 S.W.3d 722, 726 (Tex. App.—

Amarillo 2013, no pet.).


                                            3
                                    Applicable Law


      To prove possession of a controlled substance, the State is required to prove the

accused (1) exercised actual care, custody, control, or management over the substance

and (2) knew the matter he possessed was contraband. See Poindexter v. State, 153

S.W.3d 402, 405 (Tex. Crim. App. 2005); see also TEX. HEALTH & SAFETY CODE ANN. §

481.002(38) (West Supp. 2014).          The evidence must establish the accused’s

connection with the controlled substance was more than just fortuitous. See Evans v.

State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2005); Brown v. State, 911 S.W.2d 744,

747 (Tex. Crim. App. 1995) (en banc).


      If the appellant was not in exclusive possession of the contraband, the State is

required to present evidence that affirmatively links appellant to the said contraband.

See id. at 748. Courts have found numerous factors useful in determining whether an

accused’s link to a controlled substance was more than just fortuitous. Affirmative links

may include, but are not limited to the following considerations: (1) whether the

contraband was in plain view or recovered from an enclosed place; (2) whether the

defendant was the owner of the premises or had the right to possess or control the

place where the contraband was found; (3) whether the defendant was found in

possession of a large amount of cash; (4) whether the contraband was conveniently

accessible to the defendant; (5) whether the contraband was found in close proximity to

the defendant; (6) whether an odor of contraband was present; (7) whether the

defendant possessed other contraband when arrested; (8) whether the defendant

possessed paraphernalia to use the contraband; (9) whether paraphernalia to use the

contraband was available to or in plain view of the defendant; (10) whether the physical

                                           4
condition of the defendant indicated recent consumption of the contraband in question;

(11) whether conduct by the defendant indicated a consciousness of guilt; (12) whether

the defendant made any incriminating statements when arrested; (13) whether the

defendant attempted to flee; (14) whether the defendant made furtive gestures; (15)

whether the defendant had a special connection to the contraband; (16) whether the

persons present gave conflicting statements about relevant matters; (17) the quantity of

the contraband discovered; (18) whether the defendant was armed; (19) whether the

defendant was observed in a suspicious place under suspicious circumstances; (20)

whether the accused was familiar or had previous experience with drugs; and, (21)

whether any forensic evidence (e.g., fingerprints, DNA, etc.) connects the defendant to

the contraband or its container. Triplett v. State, 292 S.W.3d 205, 209 (Tex. App.—

Amarillo 2009, pet. ref’d). It is not the number of factors present that is important but

the logical force of these factors which determines whether the State’s evidence links

appellant to the contraband. See Evans, 202 S.W.3d at 162.


                                        Analysis


      The vehicle in which appellant was a passenger was initially stopped for failure to

display a license plate. Trooper Edwards was initially informed that the license plates,

front and back, had been stolen. When Edwards opened the rear of the vehicle to begin

his search, a license plate, later verified as belonging on the vehicle, fell out. Edwards

asked appellant about this contradiction and was informed that appellant did not know

why the license plate was in the rear of the car. This change of stories and response

further raised Edwards’ belief that there was some sort of criminal activity afoot

surrounding the vehicle.

                                            5
      The amount of PCP found in appellant’s vehicle weighed 1.29 kilograms or 1,290

grams. The testimony reveals that this would be considered a large amount of PCP.

The contraband was found beneath the third row of seats in the vehicle in which

appellant was a passenger. The third row seat was folded down flat and had the effect

of extending the cargo area forward.      The contraband was stored in a two plastic

“Vitamin Water” bottles that had been double bagged in plastic vacuum-sealed bags.

These bags were marked with the “Food Saver” brand logo.


      There were numerous items of personal property located in the cargo area of the

vehicle. From the record, we learn that the vehicle belonged to appellant’s fiancée and

that he had permission to drive it from California to Oklahoma City. Appellant admitted

that the backpack found in the cargo area belonged to him. Inside that backpack were

found a plastic vacuum sealer, vacuum bags bearing the “Food Saver” brand, a set of

scales, latex gloves, and a power inverter. Testimony revealed that the power inverter

could be used to run the vacuum sealer off of the cigarette lighter in the vehicle.

Additionally, items of appellant’s personal property, clothes, eye care products, and a

watch were found in the backpack. During the search, another large roll of vacuum

bags bearing the “Food Saver” brand was also found in the rear of the vehicle.


      When Trooper Edwards stopped the vehicle for not displaying a license plate, he

initially dealt with Piggue, who was then driving the vehicle. Edwards testified that

Piggue was extremely nervous, breathing rapidly, and avoiding eye contact with the

officer. According to the trooper’s testimony, Piggue’s hands were visibly shaking when

he handed over his identification card.   After asking Piggue to step from the car and

taking him back to his patrol car, Edwards went back to the vehicle to ask permission to

                                           6
search the vehicle. According to Edwards, appellant began by giving him excuses

rather than simply granting consent to search or denying consent. Edwards observed

appellant when the contraband was discovered and stated that appellant showed no

surprise when the two bags were pulled from beneath the seat.


      Agent William Brown of the DPS actually found the PCP and transported

appellant to the DPS offices in Amarillo. Appellant advised Brown that he was coming

from California to Oklahoma City and that they, appellant and Piggue, drove straight

through without stopping to spend the night anywhere along the way. According to

Brown, this would have taken approximately 15 hours.


      Being mindful of our responsibilities as a reviewing court, we must view the

evidence in the light most favorable to the jury’s determination in order to ascertain

whether a rational jury could have found all of the essential elements required to convict

appellant beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323

S.W.3d at 912. We apply this analysis to the totality of the facts in reviewing whether

there is enough probative evidence to link appellant to the contraband in question. See

Evans, 202 S.W.3d at 161; Brown, 911 S.W.2d at 747.


      The evidence that links appellant to the contraband is as follows:

      (1)    the contraband was discovered in a closed place;

      (2)    appellant had a right of possession and control over the vehicle where the
             contraband was found;

      (3)    the contraband was conveniently accessible to appellant;


      (4)    the contraband was found in close proximity to appellant;



                                            7
       (5)    paraphernalia to use the contraband was discovered at the same time and
              in the same location;

       (6)    personal property belonging to appellant was located in the same
              backpack as the paraphernalia;

       (7)    appellant and Piggue both demonstrated significant nervousness when
              stopped, which along with the answers appellant provided regarding the
              license plate, could be properly viewed as a consciousness of guilt;

       (8)    appellant admitted to owning the vacuum sealer and the vacuum bags,
              and the bags were “Food Saver” brand;

       (9)    the plastic bottles containing the contraband were inside two vacuum-
              sealed bags that bore the “Food Saver” brand; and

       (10)   the amount of contraband was large, indicating more than for personal
              use.

See Triplett, 292 S.W.3d at 209. All of these links point directly, or circumstantially, to

appellant as possessing the contraband. See Evans, 202 S.W.3d at 161; Brown, 911

S.W.2d at 747.        Appellant’s connection with the contraband was more than just

fortuitous. See id.


       Appellant essentially contends that, because he produced testimony and

evidence that would show the reason for the trip had nothing to do with the contraband

and that he legitimately used some of the paraphernalia found in his ice cream truck

business, the evidence is insufficient. To accept appellant’s position requires this Court

to supplant the jury’s function as the arbiter of the credibility of the evidence and the

weight and value to be given to that evidence. See Brooks, 323 S.W.3d at 899. This

we cannot do, as we are instructed to defer to the jury’s findings in the area of credibility

and weight and value of evidence. See id.




                                             8
      Because we find there is sufficient evidence to link appellant to the contraband,

we overrule appellant’s contention to the contrary.


                                       Conclusion


      Having overruled appellant’s single contention, we affirm the trial court’s

judgment.




                                                Mackey K. Hancock
                                                    Justice



Do not publish.




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