Opinion issued February 25, 2020




                                      In The

                              Court of Appeals
                                     For The

                         First District of Texas
                            ————————————
                              NO. 01-19-00344-CR
                           ———————————
                RAYMOND RUSSELL ASHLEY, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 239th District Court
                           Brazoria County, Texas
                       Trial Court Case No. 83790-CR


                         MEMORANDUM OPINION

     A jury convicted Raymond Russell Ashley of the third-degree felony offense

of possession of cocaine1 in an amount of one gram or more but less than four


1
     Cocaine is a “Penalty Group 1” drug in the Health and Safety Code. See TEX.
     HEALTH & SAFETY CODE § 481.102(3)(D).
grams. See TEX. HEALTH & SAFETY CODE § 481.115(a), (c). The jury sentenced

Ashley to two years’ confinement in the Institutional Division of the Texas

Department of Justice. In a single issue, Ashley contends that the evidence is

legally insufficient to support his conviction. We affirm the trial court’s judgment.

                                    Background

      Early one morning, L. Nichols realized that someone in a Ford F-150 truck

was following her as she was driving home. The truck continued to follow Nichols

for about five to ten minutes. Nichols telephoned her mother who advised her to

call police. Nichols called 911. The 911 operator told Nichols to pull into the

Angleton Police Department’s parking lot and wait for officers to meet her.

Nichols pulled into the parking lot around 1:00 A.M. and parked her car. The truck

parked behind Nichols, partially blocking her in.

      Corporal C. Castellow immediately approached the driver of the truck and

asked for his driver’s license. Castellow took Ashley’s license to Nichols and

asked her if she knew him. Nichols denied knowing Ashley. Castellow requested

Nichols’s contact information and told her that she was “free to go.”

      According to Castellow, he returned to Ashley to continue his investigation

“for safety reasons.” Ashley stepped out of the truck at Castellow’s request. Ashley

appeared “jittery” and his “body language,” “demeanor,” and “fast movements”




                                          2
were not normal. Castellow patted Ashley down. Ashley volunteered that he had a

firearm in his waistband and an expired handgun license.2

      Ashley explained why he was following Nichols. Ashley stated that he drove

first to Conroe and then to Pasadena to visit two friends, but neither friend was at

home when he arrived. While he was driving back to Angleton, Ashley received a

message from Chantel, a woman he was “pursuing.” Chantel suggested that Ashley

meet her “at the bridge over the railroad tracks” to “hook up.” They had never met

at this location before. Ashley parked at the bridge, waited for 45 minutes while

listening to music, and left when Chantel did not show up. He then saw a car drive

past his truck and the driver waved at him. Based on this gesture, he believed the

driver was Chantel. He was unfamiliar with Chantel’s car because she “has various

vehicles.” Ashley “sped up whenever she did” to catch up with her vehicle. Ashley

stated that he followed the car into the Angleton Police Department parking lot

with the thought that Chantel must know someone at the police station and

probably planned to park her car there to get into his truck.

      After speaking with Ashley for “a significant amount of time,” Castellow

conducted a horizontal gaze nystagmus test to determine Ashley’s level of

intoxication and concluded that Ashley’s performance on this test did not show


2
      See TEX. GOV’T CODE § 411.183 (governing expiration of a license to carry a
      handgun).

                                          3
intoxication for alcohol. Ashley told Castellow that he had not consumed alcohol.

Based on Ashley’s behavior and demeanor, Castellow wanted to ensure Ashley

had not consumed intoxicating substances other than alcohol.

      After receiving consent to search Ashley’s truck, Castellow smelled

marijuana and saw “pieces of green leafy substance” on the driver’s side floor,

which Ashley stated was “possibly marijuana.” Castellow also found marijuana in

a metal tin located inside a blue duffle bag behind the driver’s seat. When asked if

anyone in the truck had used marijuana recently, Ashley told Castellow that his

brother might have.3 Although he suggested the marijuana was his brother’s,

Ashley told Castellow that “everything inside the vehicle was his [own] property.”

Castellow also found an herb grinder as well as rolling papers. Castellow then

placed Ashley under arrest for carrying a handgun while in possession of

marijuana, which is a criminal offense, and took him into the jail inside the police

department.4




3
      Ashley testified that the morning before, his younger brother whom he had not
      seen in five years asked to borrow his truck. Because they had just had a “family
      celebration” and because he felt “sympathy” for his brother, Ashley allowed him
      to borrow his truck for a few hours. According to Ashley, his brother returned his
      truck to him around 3:00 p.m.
4
      See TEX. PENAL CODE § 46.02(a-1)(2)(A) (criminalizing carrying weapons while
      engaging in criminal activity, other than a Class C misdemeanor or a traffic or
      boating violation).

                                           4
      Castellow performed an inventory search because the truck would be

impounded and he wanted to protect Ashley’s personal property from theft. In the

blue duffle bag where he had found the marijuana, Castellow discovered a white

powdery substance, which tested positive for cocaine when he conducted a field

test. He also found a spare firearm magazine that matched the type of handgun that

Ashley admitted to carrying. He found syringes and spoons in the same bag. In

addition, Castellow found a locked container in the truck. He took the container to

Ashley and asked for the “combination so it wouldn’t be damaged.” Ashley

provided it to him, and in the container he found a white, powdery substance

resembling cocaine inside a small bag. After taking photographs of the evidence

and completing an inventory report, Castellow concluded his search.

      Castellow submitted the drug evidence to the Brazoria County Sheriff’s

Office Crime Laboratory. H. Balser, a chemist with the laboratory, tested both

substances. The lab results confirmed that the green leafy substance was marijuana

and the white powdery substance in the tin and in the locked container was cocaine

with an aggregate weight of just under three grams.

      At the close of evidence, the jury found Ashley guilty of possession of

cocaine in an amount of one gram or more but less than four grams and sentenced

him to two years’ confinement. This appeal followed.




                                        5
                           Sufficiency of the Evidence

      Ashley argues the evidence was legally insufficient to prove, beyond a

reasonable doubt, that he had exercised “actual care, custody, [and] control over

the cocaine” and the evidence “does not affirmatively link [him] to the cocaine in

order to establish requisite knowledge.”

A.    Standard of review

      We review Ashley’s challenge to the sufficiency of the evidence under the

standard enunciated in Jackson v. Virginia, 443 U.S. 307 (1979). See Cary v. State,

507 S.W.3d 761, 765 (Tex. Crim. App. 2016). Under that standard, we examine all

the evidence in the light most favorable to the verdict and determine whether a

rational trier of fact could have found the essential elements of the offense beyond

a reasonable doubt. Jackson, 443 U.S. at 318–19; Acosta v. State, 429 S.W.3d 621,

624–25 (Tex. Crim. App. 2014). The jury is the sole judge of the credibility of

witnesses and the weight to give testimony. Montgomery v. State, 369 S.W.3d 188,

192 (Tex. Crim. App. 2012). The jury may reasonably infer facts from the

evidence presented, credit the witnesses it chooses, disbelieve any or all the

evidence or testimony proffered, and weigh the evidence as it sees fit. See Galvan-

Cerna v. State, 509 S.W.3d 398, 403 (Tex. App.—Houston [1st Dist.] 2014, no

pet.). Inconsistencies in the evidence are resolved in favor of the verdict. See

Bohannan v. State, 546 S.W.3d 166, 178 (Tex. Crim. App. 2017).


                                           6
      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. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In

circumstantial-evidence cases, it is unnecessary that every fact and circumstance

“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.” Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018). On

appeal, the same standard of review is used for both circumstantial and direct-

evidence cases. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

B.    Applicable law

      The offense Ashley was convicted of criminalizes the “knowingly or

intentionally” possession of a controlled substance, including cocaine, weighing

more than one gram but less than four grams. See TEX. HEALTH & SAFETY CODE §

481.115(a), (c); see also id. § 481.102(3)(D). The State must prove beyond a

reasonable doubt that the defendant (1) exercised care, control, and management

over the contraband and (2) knew the substance was contraband. Evans v. State,

202 S.W.3d 158, 161 (Tex. Crim. App. 2006). Control and knowledge of a

controlled substance requires more than a defendant’s mere presence in the

immediate vicinity. Hurtado v. State, 881 S.W.2d 738, 743 (Tex. App.—Houston

[1st Dist.] 1994, pet. ref’d). To meet the mens rea requirement of a possession


                                         7
offense, the State must establish “affirmative links” between the defendant and the

contraband, through direct or circumstantial evidence, that demonstrate the

defendant’s connection with the substance was “more than fortuitous.” Evans, 202

S.W.3d at 161.

      Courts consider many non-exhaustive factors in determining whether an

affirmative link exists. Among the factors to be considered in determining whether

an affirmative link exists are whether the drugs were (1) in plain view, (2)

conveniently accessible to the defendant, (3) in a place owned by the defendant, (4)

in a car driven by the defendant, (5) found on the same side of the car as the

defendant, or (6) found in an enclosed space; whether (7) the drug’s odor was

present, (8) drug paraphernalia was in view of or found on the defendant, (9) the

defendant’s conduct suggested a consciousness of guilt, (10) the defendant had a

special relationship to the drug, (11) the car’s occupants gave conflicting

statements about relevant matters, (12) the physical condition of the defendant

suggested recent consumption of the drug found in the car; and whether (13)

affirmative statements connected the defendant to the drug. See Roberson v. State,

80 S.W.3d 730, 735 n.2 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (citing

Hurtado, 881 S.W.2d at 743 n.1); Bates v. State, 155 S.W.3d 212, 216 (Tex.

App.—Dallas 2004, no pet.); Trejo v. State, 766 S.W.2d 381, 385 (Tex. App.—

Austin 1989, no pet.).


                                         8
      The number of factors present is not as important as the logical force or the

degree to which the factors, alone or in combination, tend to affirmatively link the

defendant to the contraband. See Espino-Cruz v. State, 586 S.W.3d 538, 544 (Tex.

App.—Houston [14th Dist.] 2019, pet. ref’d). Moreover, the link need not be so

strong as to preclude every other reasonable explanation except his guilt. See

Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995) (en banc).

      Evidence that shows the defendant jointly possessed the contraband with

another is sufficient to sustain a conviction. McGoldrick v. State, 682 S.W.2d 573,

578 (Tex. Crim. App. 1985) (en banc). “[W]hen the theory of prosecution is that

the accused or another acted together in possessing a narcotic drug, the evidence

must affirmatively link the accused to the contraband in such a manner that it can

be concluded that he had knowledge of the contraband as well as control over it.”

Martin v. State, 753 S.W.2d 384, 386 (Tex. Crim. App. 1988) (en banc).

Circumstances that support joint possession are: (1) presence when the search was

executed; (2) proximity to and accessibility of the contraband; (3) furtive gestures;

(4) presence of other contraband; (5) defendant’s right to possession of the place

where contraband was found; and (6) drugs found in an enclosed place. Chavez v.

State, 769 S.W.2d 284, 288–89 (Tex. App.—Houston [1st Dist.] 1989, pet. ref’d).




                                         9
C.    The evidence was legally sufficient that Ashley knowingly or
      intentionally possessed cocaine

      Ashley contends that the evidence was legally insufficient to establish that

he knowingly or intentionally possessed cocaine because his brother may have

placed the cocaine in his bag without his knowledge when he borrowed his truck.

Castellow testified that Ashley’s “jittery” and “fast movements” led Castellow to

ask Ashley for consent to conduct a search. Ashley was present when the search

was executed and told Castellow that he owned the contents in his truck. Castellow

found a blue duffle bag behind the driver’s seat, within Ashley’s reach. A spare

handgun magazine was inside the duffle bag. This magazine matched the handgun

that Ashley admitted he had in his waistband when Castellow first encountered

him. Thus, the blue duffle bag circumstantially links Ashley to its contents,

including the cocaine. And, most importantly, the jury was entitled to disbelieve

Ashley’s explanation that his brother, whom he had not seen in five years,

borrowed his truck and placed cocaine, marijuana, and drug paraphernalia in

Ashley’s bag. Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. App. 2018).

      Ashley also contends that the evidence that he knowingly or intentionally

possessed cocaine was legally insufficient because Castellow may have planted the

cocaine on him in “retaliation” for a “civil rights report” he filed against a

“government agency.” The jury determines witness credibility and reasonably

could have disbelieved Ashley’s testimony and credited Castellow’s account of the

                                       10
events. Febus, 542 S.W.3d at 572. Castellow found cocaine in a bag inside a

locked container during the inventory search. Ashley knew the combination to

unlock the container and voluntarily provided it to Castellow. Ashley’s knowledge

of this code supports an inference that the box was his and he owned and

controlled any and all items located inside the locked box. See Boughton v. State,

643 S.W.2d 147, 149 (Tex. App.—Fort Worth 1982, no pet.) (holding that

methamphetamine located in key box attached to steering column was

affirmatively linked to appellant where appellant was the sole occupant of the

vehicle and the box was located on the appellant’s side of the car); Fenlon v. State,

No. 01-01-00062-CR, 2002 WL 31835768, at *2 (Tex. App.—Houston [1st Dist.]

Dec. 19, 2002, pet. ref’d) (mem. op., not designated for publication) (describing

defendant’s knowledge of combination to safe in room where cocaine was found as

an affirmative link).

      Although Ashley contends that the cocaine may have belonged to his brother

or may have been planted by Castellow, the jury need not accept as true his version

of the facts. See King v. State, 710 S.W.2d 110, 114 (Tex. App.—Houston [14th

Dist.] 1986, pet. ref’d); Coleman v. State, 113 S.W.3d 496, 502 (Tex. App.—

Houston [1st Dist.] 2003), aff’d on other grounds, 145 S.W.3d 649 (Tex. Crim.

App. 2004) (concluding that evidence is not insufficient merely because appellant

offered a different explanation for the facts). Likewise, the State need not exclude


                                         11
every other reasonable hypothesis except Ashley’s guilt. See Montgomery, 369

S.W.3d at 192; Stoutner v. State, 36 S.W.3d 716, 722 (Tex. App.—Houston [1st

Dist.] 2001, pet. ref’d) (op. on reh’g) (citation omitted). The logical force of the

circumstantial evidence, coupled with reasonable inferences from it, supports the

jury’s determination that, beyond a reasonable doubt, Ashley exercised actual care,

custody, control, and management of the cocaine recovered from the duffle bag

and the container to convict him for possession of the cocaine. In sum, the jury

heard that the police found cocaine inside a locked box, for which Ashley had the

combination. The box was within Ashley’s reach as the only person in his car. The

car contained marijuana in plain view. Cocaine, marijuana, and drug paraphernalia

were also found in the car. The jury did not have to accept Ashley’s competing

explanations that the police may have planted the cocaine in retaliation for his civil

rights complaint or that the cocaine was his brother’s.

      The evidence is also legally sufficient to support the jury’s determination

that Ashley knew the cocaine was contraband. Along with the loose cocaine and

the cocaine found in the container, Castellow also found syringes, spoons, rolling

papers, and an herb grinder in the duffle bag. Joseph v. State, 897 S.W.2d 374, 376

(Tex. Crim. App. 1995) (holding that drug paraphernalia in home with contraband

supported conclusion the defendant knew he possessed cocaine); Barbosa v. State,

537 S.W.3d 640, 646–47 (Tex. App.—San Antonio 2017, no pet.) (affirming drug


                                         12
possession conviction where drug paraphernalia was present in addition to the

narcotics). Moreover, Castellow found other contraband, namely, marijuana, on the

driver’s side floor and in a metal tin inside the duffle bag. See Evans, 202 S.W.3d

at 162 n.12, 163–65 (considering presence of other contraband and narcotics

paraphernalia an affirmative link); Hargrove v. State, 211 S.W.3d 379, 386 (Tex.

App—San Antonio 2006, pet. ref’d) (concluding presence of narcotics

paraphernalia, including digital scale, and weapons in house constituted affirmative

links).

          When considered in the light most favorable to the verdict, we conclude

there is legally sufficient evidence to support the jury’s finding affirmatively

linking Ashley to the cocaine. See, e.g., State v. Derrow, 981 S.W.2d 776, 779

(Tex. App.—Houston [1st Dist.] 1998, pet. ref’d). Legally sufficient evidence

supports the determination that Ashley’s connection with the cocaine was “more

than fortuitous.” Evans, 202 S.W.3d at 161.




                                         13
                                   Conclusion

      We affirm the trial court’s judgment.



                                                Sarah Beth Landau
                                                Justice

Panel consists of Justices Kelly, Landau, and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).




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