             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
       ___________________________

            No. 02-18-00310-CR
       ___________________________

       AARON JOHNSON, Appellant

                      V.

           THE STATE OF TEXAS


 On Appeal from Criminal District Court No. 1
            Tarrant County, Texas
         Trial Court No. 1517074D


 Before Sudderth, C.J.; Birdwell and Bassel, JJ.
Memorandum Opinion by Chief Justice Sudderth
                            MEMORANDUM OPINION

      On October 14, 2017, at 8:15 p.m., Fort Worth Police Officer Daniel Pritzker

was patrolling a high crime area known for narcotics and violence when he spotted an

occupied vehicle parked in front of a dilapidated one-story building on which “NO

STANDING,” “NO PARKING,” and “NO LOITERING” were stenciled in paint

in large letters. The building also had a large “No Trespassing” sign affixed to its

front. A man, identified at trial as Appellant Aaron Johnson, sat in the vehicle’s

driver’s seat and smoked a cigarette. The windows were down and the car’s interior

lights and radio were on.

      As Officer Pritzker approached the vehicle, he noticed a strong odor of

marijuana. Johnson told the officer that he was waiting for someone. When Officer

Pritzker informed Johnson that he had probable cause to search the vehicle, Johnson

demanded to speak to a supervisor. Officer Pritzker’s supervisor, as well as other

police officers, came to the scene, and after the supervisor explained to Johnson that

they had probable cause to search the vehicle, police found crack cocaine, marijuana,

and Xanax, as well as a digital scale, in the vehicle’s glove compartment.1 They also

found a purse in the back seat, on the driver’s side, that contained plastic baggies of

the kind used for packaging narcotics. The purse belonged to Aleisha Jones, one of

Johnson’s relatives, who later arrived at the scene and became agitated when the

      1
       A forensic scientist testified that 1.032 grams of cocaine, 1.507 grams of
Alprazolam (Xanax), and 27.023 grams of marijuana were recovered from the vehicle.


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police searched the car without her permission. (Johnson referred to the car as “his”

while he talked with police, but the car actually belonged to Jones.)

      The trial court admitted into evidence body-camera footage from many of the

officers who were on the scene and allowed it to be published to the jury. Among

other things, the footage showed Johnson’s removal from the vehicle and his pat-

down before being placed in Officer Pritzker’s patrol car.

      After Officer Pritzker ran a search on Johnson’s name and date of birth, he

discovered an outstanding warrant.        Johnson did not believe that he had an

outstanding warrant until, on the way to jail, Officer Pritzker showed him the

outstanding warrant on the patrol vehicle’s computer. Johnson then responded “Oh,

my bad.” At one point on the way to the jail, Johnson lamented, “I knew I shouldn’t

have smoked that shit” and mused that he should have waited until he “got into the

club.” He boasted twice during the 17-minute trip that he would be “out in two

days.” And he sang a bit. Officer Pritzker also observed that Johnson was sweating

profusely. Officer Pritzker believed that Johnson was under the influence of drugs.

      A jury found Johnson guilty of possession of a controlled substance (cocaine)

of one gram or more but less than four grams and assessed his punishment at 20

years’ confinement and a $5,000 fine.2          See Tex. Health & Safety Code Ann.



      2
       Johnson pleaded true, and the jury found true, the indictment’s repeat
offender notice on Johnson’s 2013 murder conviction, which enhanced the
possession offense’s punishment range from that of a third-degree felony to that of a

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§ 481.115(a), (c); Tex. Penal Code Ann. §§ 12.33–.34, .42(a). The trial court entered

judgment on the jury’s verdict and sentenced him accordingly.

      In a single point, Johnson complains that the evidence is insufficient to support

his conviction, arguing that there is no evidence that he possessed the cocaine when it

was found in the glove box of a vehicle that did not belong to him and the plastic

baggies were found in a purse belonging to the vehicle’s owner, who had been at a

nearby club. Johnson concedes that the police had a right to search the vehicle but

points out that the drugs were not found on his person and that no one testified that

he had tried to conceal anything. See Tex. Health & Safety Code Ann. § 481.002(38)

(defining “possession” as “actual care, custody, control, or management”); Tex. Penal

Code Ann. § 1.07(a)(39) (same).

      Federal due process requires that the State prove beyond a reasonable doubt

every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.

2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-process evidentiary-

sufficiency review, we view all the evidence in the light most favorable to the verdict

to determine whether any rational factfinder could have found the crime’s essential

elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This standard gives full

play to the factfinder’s responsibility to resolve conflicts in the testimony, to weigh the

second-degree felony. See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), .115(c);
Tex. Penal Code Ann. §§ 12.33–.34, .42(a).


                                            4
evidence, and to draw reasonable inferences from basic facts to ultimate facts. See

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Queeman, 520 S.W.3d at 622. The factfinder

alone judges the evidence’s weight and credibility. See Tex. Code Crim. Proc. Ann.

art. 38.04; Queeman, 520 S.W.3d at 622.

      While a defendant’s mere presence near contraband is insufficient to establish

his possession of it, a factfinder may infer that the defendant intentionally or

knowingly possessed it if there are sufficient independent facts and circumstances

justifying such an inference, even if the contraband was not in the defendant’s

exclusive possession. Tate v. State, 500 S.W.3d 410, 413–14 (Tex. Crim. App. 2016); see

Tex. Penal Code Ann. § 6.03(a) (“A person acts intentionally, or with intent, with

respect to the nature of his conduct or to a result of his conduct when it is his

conscious objective or desire to engage in the conduct or cause the result.”).

        The court of criminal appeals has set out a nonexclusive list of factors that

may indicate a link connecting the defendant to the knowing possession of

contraband:

      (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 the
      accessibility of the narcotic; (4) whether the defendant was under the
      influence of narcotics when arrested; (5) whether the defendant
      possessed other contraband or 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 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

                                           5
      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.

Tate, 500 S.W.3d at 414. Although these factors can help guide our analysis, the

inquiry ultimately remains that set forth in Jackson: Based on the combined and

cumulative force of the evidence and any reasonable inferences therefrom, was a jury

rationally justified in finding guilt beyond a reasonable doubt? Id. (citing Jackson, 443

U.S. at 318–19, 99 S. Ct. at 2788–89); see Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex.

Crim. App. 2006) (“These are simply some factors which may circumstantially

establish the legal sufficiency of the evidence to prove a knowing ‘possession.’ They

are not a litmus test.”); see also Harris v. State, 173 S.W.3d 575, 580 (Tex. App.—Fort

Worth 2005, no pet.) (“It is not the number of affirmative links present that is

important, but rather the ‘logical force’ that they create to prove that the defendant

committed the crime.”).

      The State asserts that it established sufficient affirmative links between Johnson

and the cocaine.

      We agree. The evidence reflected Johnson’s presence when the search was

conducted; Johnson’s proximity to and the accessibility of the cocaine, which was in

the vehicle’s glove box; the presence of other narcotics in the vehicle; the odor of

marijuana, which triggered probable cause for the vehicle search; and the presence of

drug paraphernalia in the form of the digital scales, which Officer Pritzker testified

were typically used to weigh narcotics, and which were found in the glove

                                           6
compartment with all of the drugs. The evidence also reflected that Johnson admitted

having used drugs that evening and appeared to be under the influence of narcotics

when he was arrested. Since no drugs were found on his person during his pat-down,

the jury could have inferred that he had used some of the drugs that were in the

vehicle. Johnson also had at least an apparent right to possess the place where the

drugs were found because he was in the driver’s seat of the vehicle, referred to the

vehicle as “his,” and was the only person in the vehicle when Officer Pritzker arrived

on the scene.3

      Accordingly, based on the combined and cumulative force of all of this

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

finding Johnson’s guilt beyond a reasonable doubt of possession of a controlled

substance (cocaine) of one gram or more but less than four grams. See Tate, 500

S.W.3d at 414.     We overrule Johnson’s sole point and affirm the trial court’s

judgment.

                                                     /s/ Bonnie Sudderth
                                                     Bonnie Sudderth
                                                     Chief Justice


      3
        While Jones actually owned the vehicle and the purse found therein that held
plastic baggies, and while she appeared at least equally vexed at its search by police
when she arrived on the scene, the fact that she might also have had “actual care,
custody, control, or management” of the drugs in the car did not preclude Johnson’s
possession of them. See Harris, 173 S.W.3d at 579 (“It is well established that drug
possession need not be exclusive, and that an individual can possess drugs jointly with
others.”).


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Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 26, 2019




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