      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                                       444444444444444
                                      NO. 03-03-00665-CR
                                       444444444444444

                                   Ronald Sorrells, Appellant

                                                 v.

                                  The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
           NO. 9034166, HONORABLE FRED A. MOORE, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Ronald Sorrells was convicted by a jury of possession of cocaine.

See Tex. Health & Safety Code Ann. § 481.115(a) (West 2003). The trial court sentenced him to

thirty years’ confinement in the Texas Department of Criminal Justice, Institutional Division. On

appeal, Sorrells challenges the legal and factual sufficiency of the evidence and claims that he

received ineffective assistance of counsel. We affirm.


                                         BACKGROUND

               On May 18, 2003, Austin Police Officer Scott Glasgow was on patrol near the

intersection of Webberville Road and Goodwin Avenue in Austin. At 11:02 p.m., Officer Glasgow

noticed two men fighting. One man, later identified as Sorrells, was wearing a black T-shirt and blue

jeans. The other, later identified as Quincey Alexander, was wearing a white shirt and black shorts.

Officer Glasgow observed Sorrells on the ground with Alexander on top of him, hitting Sorrells
repeatedly in the head and chest. According to Officer Glasgow, the two men appeared to be

struggling over some object that Sorrells had in his hand. Sorrells continued to hold onto this object

while Alexander assaulted him. Finally, after much struggle, Alexander forcibly wrestled the object

away from Sorrells.

               At this moment, Officer Glasgow—who, upon witnessing the fight, had left his patrol

car and run toward the men—discerned that the object was a white plastic baggie. He later testified

that white plastic baggies are commonly used in narcotics transactions.

               Alexander, now holding the baggie, noticed Officer Glasgow approaching, began

walking toward him and dropped the baggie on the ground. Officer Glasgow grabbed Alexander to

handcuff him. Before he could put the handcuffs on Alexander, he saw Sorrells pick up the baggie

that Alexander had just dropped and start running.1 Officer Glasgow chased Sorrells, caught him,

and attempted to get him into custody. As he attempted to take the baggie from Sorrells, Sorrells

dropped it on the ground. Sorrells pushed Officer Glasgow in his chest, causing him to stumble

backwards. Alexander then reached for the baggie that Sorrells had dropped. Officer Glasgow

turned to Alexander and told him to “[l]eave the dope,” at which point Alexander fled into a nearby

housing project, leaving the baggie on the ground. Officer Glasgow took possession of the baggie.

               Officer Glasgow then heard Sorrells yelling and saw him trying to break in to a nearby

gray pick-up truck owned and driven by Guadalupe Villareal, an off-duty security officer. Villareal

was sitting in the truck. Villareal had also seen the fight between Sorrells and Alexander and had




       1
         Officer Glasgow later testified that he recognized Sorrells from two previous encounters
with him.

                                                  2
watched as Officer Glasgow attempted to arrest the two men.2 Villareal was unable to identify

Sorrells at trial, but he did testify that he saw the white baggie in each man’s hands at least once.

                Sorrells failed to break into Villareal’s truck but instead fled toward the housing

project. Officer Glasgow pursued him, caught him, and tackled him as Sorrells stumbled on the

steps leading up to the housing project. As Glasgow struggled with Sorrells, Sorrells repeatedly told

him, “You know me. You know me,” referring to previous encounters with Officer Glasgow.3

                Once in custody, Sorrells told Officer Glasgow that Alexander had tried to steal

twenty dollars from him. Officer Glasgow returned to the scene of the fight between Sorrells and

Alexander and found a crumpled $20 bill and a piece of paper, both of which he collected as

evidence. He also testified that Sorrells did not live in the area of this offense. However, he

believed it was common for persons to frequent the area of Webberville Road and Goodwin Avenue

in order to purchase crack cocaine, which usually sold for twenty dollars a rock. He added that the

area was also notorious for gang activity.




        2
          There is some dispute in the accounts of Officer Glasgow and Villareal regarding which
individual, Sorrells or Alexander, had attempted to force his way into Villareal’s truck. Officer
Glasgow testified that Sorrells, wearing a black shirt, had done so, while Villareal testified that it was
Alexander. Villareal also testified that while Officer Glasgow was earlier trying to detain Sorrells,
Alexander had snuck up behind Officer Glasgow with a rock in his hand. Villareal testified that he
had shined a high-powered flashlight into Alexander’s eyes to distract him and prevent him from
hitting Officer Glasgow with the rock.
        3
          Officer Glasgow had stopped Sorrells a month earlier for the offense of pedestrian in the
roadway, for which he issued Sorrells a citation. Also, a few weeks before the encounter at issue in
this case, Officer Glasgow came upon the scene as Sorrells was being examined by EMS after an
Austin police officer had shot him with a Taser stun gun. According to Officer Glasgow’s
testimony, the other officers indicated to him that Sorrells had been “causing a stink” and accusing
them of harassing him. Officer Glasgow further testified that, during both encounters, he had
believed that Sorrells was under the influence of narcotics.

                                                    3
               Sorrells was charged with the offense of possession of a controlled substance, namely

cocaine, in an amount of more than one gram, but less than four grams.4 See Tex. Health & Safety

Code Ann. § 481.115(a). After a jury found him guilty, the trial court assessed his punishment,

enhanced by two previous felony convictions, at thirty years’ confinement in the Texas Department

of Criminal Justice, Institutional Division. This appeal followed.


                                            DISCUSSION

               On appeal, Sorrells raises three issues. In his first two issues, he challenges the legal

and factual sufficiency of the evidence supporting the jury’s finding that he knowingly possessed a

controlled substance. In his third issue, Sorrells asserts that he received ineffective assistance of

counsel at trial because his trial counsel introduced evidence of Sorrells’s previous contacts with

Officer Glasgow and other police officers.


Sufficiency of the evidence

               In his first issue, Sorrells argues that the evidence is legally insufficient to support the

finding that he “possessed” a controlled substance.          See Tex. Health & Safety Code Ann.

§ 481.002(38) (West Supp. 2004-05) (defining possession as “actual care, custody, control, or

management”).5 In reviewing a legal sufficiency of the evidence claim, we must view the evidence



       4
         Gloria Rodriguez, a forensic drug chemist with the Austin Police Department, testified that
she determined the total weight to be 2.63 grams and the substance to be cocaine base.
       5
         Sorrells relies on the definition of possession found in the penal code. See Tex. Pen. Code
Ann. § 6.01(b) (West 2003). We apply instead the definition found in the health and safety code
because appellant was charged under that code. See Tex. Health & Safety Code Ann. §§ 481.002,
.115(a) (West 2003).

                                                   4
in the light most favorable to the verdict and 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, 324 (1979); Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). We do not resolve

any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to

do so. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). Instead, our duty is only to

determine if both the explicit and implicit findings of the trier of fact are rational by viewing all the

evidence admitted at trial in a light most favorable to the verdict. Id. at 422.

                Under the health and safety code, “a person commits an offense if the person

knowingly or intentionally possesses” cocaine. Tex. Health & Safety Code Ann. § 481.115(a). To

prove unlawful possession of a controlled substance, the State must show that the accused: (1)

exercised actual care, custody, control, or management over the contraband; and (2) knew that the

substance he possessed was contraband. See King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App.

1995); Hall v. State, 86 S.W.3d 235, 240 (Tex. App.—Austin 2002, pet. ref’d); see also Tex. Health

& Safety Code Ann. § 481.002(38). “Possession” means more than being where the action is; it

involves the exercise of dominion and control over the thing allegedly possessed. Castellano v.

State, 810 S.W.2d 800, 805 (Tex. App.—Austin 1991, no pet.).

                The crux of Sorrells’s legal sufficiency complaint is that the evidence does not satisfy

the statutory requirement of possession because his control of the baggie was only fleeting.6 Both


        6
          Sorrells argues that when contraband is not in the exclusive possession of the accused,
additional facts and circumstances must link him to the contraband. However, we find the
“affirmative-links rule” to be inapplicable to our analysis. The “affirmative-links rule” applies to
situations where the accused is not in sole possession of the premises or vehicle where drugs are
found. See, e.g., Jones v. State, 963 S.W.2d 826, 830 (Tex. App.—Texarkana 1998, pet. ref’d) (mere

                                                    5
Officer Glasgow and Villareal testified that Sorrells had the white plastic baggie in his hands at least

one time. Although Villareal was unable to identify Sorrells at trial, Villareal testified that each man

he had seen fighting—Sorrells and Alexander—had held the baggie at least once. According to

Officer Glasgow’s testimony, Sorrells only relinquished control of the baggie when Alexander

forcibly removed it from Sorrells’s hands. Officer Glasgow further testified that Sorrells had the

baggie in his possession again when he picked it up from the ground where Alexander had dropped

it. We find the evidence legally sufficient to determine that Sorrells exercised control over the

cocaine.

                Next, we decide if the evidence is legally sufficient to determine that Sorrells knew

that the substance he possessed was cocaine. In determining whether an accused knowingly

possessed a controlled substance, knowledge can be inferred from the conduct of and remarks by the

accused and from circumstances surrounding the acts engaged in by the accused. Menchaca v. State,

901 S.W.2d 640, 652 (Tex. App.—El Paso 1995, pet. ref’d); see also Gutierrez v. State, 628 S.W.2d



possession of vehicle in which contraband is found, without additional facts and circumstances
linking accused to contraband, will not support conviction for possession); Levario v. State, 964
S.W.2d 290, 294 (Tex. App.—El Paso 1997, no pet.) (when contraband is not found on accused’s
person or it is not in exclusive possession of accused, additional facts and circumstances must link
accused to contraband); Nolen v. State, 872 S.W.2d 807, 810-11 (Tex. App.—Fort Worth 1994, pet.
ref’d) (to show possession of contraband when accused is not in exclusive control or possession of
premises where contraband is seized, state must present additional independent facts that
affirmatively link accused to contraband); Martinets v. State, 884 S.W.2d 185, 188 (Tex.
App.—Austin 1994, no pet.) (affirmative links established defendant’s knowledge of marihuana and
his control over it where defendant was driver of automobile in which marihuana found, defendant
routinely drove that automobile, marihuana and rolling papers found in closed ashtray were
conveniently accessible to defendant, and there was odor of marihuana in automobile); Byrd v. State,
835 S.W.2d 223, 227 (Tex. App.—Waco 1992, no pet.) (if accused is not in sole possession of place
where drugs are found, state must prove affirmative link between contraband and accused to
establish possession). Here, the contraband was found on Sorrells’s person.

                                                   6
57, 60 (Tex. Crim. App. 1980), overruled on other grounds by Chambers v. State, 711 S.W.2d 240,

247 (Tex. Crim. App. 1986) (jury could reasonably infer from independent facts and circumstances

that accused knew of drug’s existence). Here, the State presented sufficient evidence from which

the jury could reasonably infer that Sorrells knew that the baggie contained cocaine. The evidence

showed that Sorrells and Alexander fought over a piece of a plastic bag that, but for its contents,

would not have explained Sorrells’s determination to hold onto it. Sorrells did not relinquish control

of the baggie until Alexander wrestled it from him. Minutes later, as Officer Glasgow was

attempting to handcuff Alexander, Sorrells picked up the baggie from the ground where Alexander

had dropped it and ran. Officer Glasgow testified that this type of baggie was commonly used in

narcotics transactions. Officer Glasgow further testified that Sorrells did not live near the

Webberville Road and Goodwin Avenue intersection but that it was common for persons to frequent

the area for drug transactions. Officer Glasgow’s testimony that crack rocks commonly sell for

twenty dollars and the fact that Glasgow found a $20 bill at the scene of the fight further support a

finding of Sorrells’s knowledge that the baggie contained cocaine. We conclude that a rational jury

could conclude beyond a reasonable doubt that Sorrells knew the substance was cocaine.

                We have found the evidence legally sufficient to show that Sorrells possessed the

cocaine and that he knew it was cocaine. See King, 895 S.W.2d at 703; Hall, 86 S.W.3d at 240. We

overrule Sorrells’s first issue.

                In his second issue, Sorrells argues that the evidence is factually insufficient to

support the finding that he knew that he possessed a controlled substance. A factual sufficiency

review asks whether a neutral review of all the evidence, both for and against the finding of guilt,



                                                  7
demonstrates that the proof of guilt is so weak or the proof so strong as to preclude a finding of guilt

beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004). The

trier of fact has the responsibility of weighing all the evidence, resolving evidentiary conflicts, and

drawing reasonable conclusions from the evidence. Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim.

App. 2001). We are not free to reweigh the evidence and set aside a jury verdict merely because we

feel that a different result is more reasonable. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim.

App. 1996). Consequently, we may find the evidence factually insufficient only where necessary

to prevent a manifest injustice from occurring. See Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim.

App. 2000).

                Sorrells claims that the evidence concerning his knowledge is factually insufficient

because it depended entirely on Officer Glasgow’s testimony. However, as we have noted above,

knowledge can be inferred from the conduct of and remarks by the accused and from circumstances

surrounding the acts engaged in by the accused. See Menchaca, 901 S.W.2d at 652; see also

Gutierrez, 628 S.W.2d at 60. In light of our review of the legal sufficiency of the evidence

concerning whether Sorrells knew the baggie contained cocaine and the factual-sufficiency standard

of review, and giving due deference to the jury, we conclude that the evidence supporting the verdict

is not so weak as to render the verdict clearly wrong and manifestly unjust. See Zuniga, 144 S.W.3d

at 484-85. We overrule Sorrells’s second issue.




                                                   8
Effective assistance of counsel

               In his third issue, Sorrells complains that he was denied his constitutional right to

effective assistance of counsel because defense counsel introduced prejudicial evidence of Sorrells’s

prior encounters with Austin police officers. Specifically, Sorrells complains that his counsel’s

cross-examination of Officer Glasgow regarding these encounters opened the door for Officer

Glasgow to testify that he believed Sorrells was on drugs during these prior encounters.

               To prevail on this claim, Sorrells must show that counsel made such serious errors

that he was not functioning effectively as counsel and that these errors prejudiced Sorrells’s defense

to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687

(1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). The adequacy of defense

counsel’s assistance is based upon the totality of the representation rather than upon isolated acts or

omissions of trial counsel. Garcia v. State, 887 S.W.2d 862, 880 (Tex. Crim. App. 1994). Here, the

burden is on Sorrells to prove by a preponderance of the evidence: (1) that counsel’s representation

fell below the standard of prevailing professional norms; and (2) that there is a reasonable probability

that, but for counsel’s deficiency, the result of the trial would have been different. McFarland v.

State, 845 S.W.2d 824, 842 (Tex. Crim. App. 1992); Hernandez, 726 S.W.2d at 56-57. In reviewing

a claim of ineffective assistance, we apply a strong presumption that counsel rendered adequate

assistance and exercised reasonable professional judgment and that counsel’s conduct fell within the

wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; Jackson v. State, 877

S.W.2d 768, 771 (Tex. Crim. App. 1994).




                                                   9
                 Decisions regarding trial strategy may constitute ineffective assistance only if the

record demonstrates that the conduct by counsel is without any plausible basis. Thompson v. State,

9 S.W.3d 808, 813 (Tex. Crim. App. 1999); McFarland, 845 S.W.2d at 842. An appellate court

must avoid the distortions of hindsight and must evaluate counsel’s conduct from his perspective at

the time of trial. Strickland, 466 U.S. at 689; Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim.

App. 1993). A conscious and informed decision on trial strategy cannot be the basis for a

constitutional ineffective assistance claim unless it is so poorly chosen that it permeates the trial with

obvious unfairness. See Kunkle, 852 S.W.2d at 505. Ineffective assistance claims regarding issues

of trial strategy are particularly difficult to sustain on direct appeal when defense counsel was

otherwise competent and aggressive. See id.

                 The trial record here does not reveal ineffectiveness of counsel to a degree sufficient

to sustain such a claim. Trial counsel’s decision to present evidence of Officer Glasgow’s prior

encounters with Sorrells could have been a matter of reasoned trial strategy. Counsel sought to

introduce evidence of these encounters to demonstrate that Officer Glasgow was biased against

Sorrells. The evidence showed that, during these encounters, Sorrells accused Officer Glasgow and

other officers of stopping him for racially-motivated reasons and that Sorrells had been hostile to the

officers. Counsel used this evidence to argue to the jury that these prior incidents played a part in

Officer Glasgow’s decision to arrest Sorrells in this case because Sorrells had previously challenged

his authority.

                 The record supports the conclusion that Sorrells’s trial counsel’s decision to offer the

evidence of Sorrells’s prior encounters with police was possibly a matter of trial strategy and the

                                                   10
basis of the defense’s theory at guilt/innocence phase of the trial. Moreover, there is nothing in the

record to overcome the strong presumption that counsel’s actions fell within the broad range of

reasonable professional assistance. We overrule Sorrells’s third issue.


                                          CONCLUSION

                  We have overruled Sorrells’s issues on appeal. We affirm the judgment of the

district court.




                                               __________________________________________

                                               Bob Pemberton, Justice

Before Justices B. A. Smith, Puryear and Pemberton

Affirmed

Filed: March 24, 2005

Do Not Publish




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