                                   NO. 07-04-0596-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                 AUGUST 30, 2006
                         ______________________________

                       CURTIS DWIGHT THOMAS, APPELLANT

                                            V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

               FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

         NO. A15653-0408; HONORABLE ROBERT W. KINKAID, JR., JUDGE
                      _______________________________


Before QUINN, C.J., and CAMPBELL AND HANCOCK, JJ.


                                        OPINION


       Curtis Dwight Thomas brings this appeal challenging the sufficiency of the evidence

supporting his conviction for possession of cocaine and jury-assessed punishment,

enhanced by prior convictions, of fifteen years confinement. We affirm.


      In the early morning hours of June 11, 2004, Plainview police officer Brian Morris

responded to reports of a person knocking on doors and asking for help. Officer Morris

drove to Bullock Street in Plainview, where he found appellant sitting on the curb in boxer

shorts and socks.    Appellant chose not to engage in conversation with Morris and
“disappeared” into the night. While the police were searching for appellant, officer Joe

Poras retrieved items of clothing lying in Bullock Street and found a wallet containing

appellant’s driver’s license in a back pocket of the pants. About twenty minutes after the

original encounter a third responding officer, Art McIntee, located appellant in an area the

officers referred to as “the hood.”1 McIntee took appellant into custody and transported him

back to Bullock Street for identification. Morris identified appellant and arrested him for

public intoxication.


       Appellant identified the clothing found in the street as his and the officers removed

the handcuffs and allowed appellant to get dressed. Only after appellant was fully clothed

did Morris search him “to make sure . . . there is no knives, guns or anything like that on

their person, or anything illegal.” This search revealed a plastic bag in the front pocket of

appellant’s pants containing what was later determined to be crack cocaine, thus prompting

appellant’s prosecution for possession of a controlled substance.


       The State’s case in chief included the testimony of the officers named, a videotape

of the events from Morris’s patrol car, a chemist who identified the substance found in

appellant’s pocket as .39 grams of cocaine, and two officers who had custody of that

evidence. Appellant did not testify. The jury found appellant guilty and, on his plea of true

to two prior convictions, returned a verdict on punishment of fifteen years confinement and

a $5,000 fine. The trial court rendered judgment in conformity with the jury’s verdicts.



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        The record does not show the distance between these locations but testimony and
appellant’s counsel’s argument to the jury indicate they were separated by at least two
blocks.

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       Appellant now presents a single issue challenging the legal and factual sufficiency

of the evidence supporting his conviction. His brief correctly states the standards by which

we must review challenges to the legal and factual sufficiency of the evidence and

recitation of those standards here is unnecessary. See Jackson v. Virginia, 443 U.S. 307,

99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Zuniga v. State, 144 S.W.3d 477, 484-85

(Tex.Crim.App. 2004); Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996) (explicating

standards of review). To prove unlawful possession of a controlled substance, the State

was 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.

Tex. Health & Safety Code Ann. §§ 481.002(38), 481.115 (Vernon 2003); Brown v. State,

911 S.W.2d 744, 747 (Tex.Crim.App. 1995).          A defendant’s knowledge is typically

established by circumstantial evidence. When reviewing the sufficiency of the evidence

of knowing possession our courts have long looked to the affirmative links shown between

the accused and the contraband. Brown, 911 S.W.2d at 747. This “affirmative links rule,”

based on common-sense notions, is designed to protect an innocent bystander from

conviction based solely on his fortuitous proximity to someone else's contraband.

Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005).


       Appellant’s reliance on cases involving prosecution of motor vehicle passengers for

possession of a controlled substance found in the car is misplaced. In each of those

cases, the defendant was not the owner of the car and the controlled substance was not

in the passenger compartment or otherwise within their reach. Jenkins v. State, 76 S.W.3d

709, 715 (Tex.App.–Corpus Christi 2002, pet. ref’d) (defendant was front seat passenger,


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marihuana found in trunk and cocaine found after back seat was removed); Dixon v. State,

918 S.W.2d 678, 680 (Tex.App.–Beaumont 1996, no pet.) (marihuana found sealed in

speaker in trunk); Moreno v. State, 821 S.W.2d 344, 351 (Tex.App.–Waco 1992, pet. ref’d)

(cocaine found in engine compartment of car). Here appellant admitted to being the owner

of the clothing where the controlled substance was found.


       Appellant acknowledges and attempts to distinguish the more factually similar case

of Moss v. State, 850 S.W.2d 788 (Tex.App.–Houston [14th Dist.] 1993, pet. ref’d). Moss

involved a controlled buy conducted by an informant acting for police. When officers

attempted to arrest Moss, he ran into an apartment, removed his outer clothing and

escaped through a window. Id. at 791. After Moss was found and arrested, police

retrieved the clothing from outside the apartment window. They found crack cocaine in a

pocket of the pants. Id. When the pants were offered to Moss at the jail he took them and

put them on “without complaint.” Id. Based in part on testimony of officers that they saw

Moss wearing the clothes found outside the window, the court found the evidence sufficient

to sustain the conviction. Id. at 794. Appellant attempts to distinguish Moss on the basis

that no one saw him wearing the clothes before his encounter with the police. Appellant’s

admission the clothing was his provides equal, if not greater, connection to the clothing

than was present in Moss, especially when augmented with the presence of appellant’s

driver’s license in the pants pocket.


       Some of the facts of Bucklin v. State, 634 S.W.2d 44 (Tex.App.–Beaumont 1982,

no pet.), are similar to those presented here. In Bucklin officers executing a search warrant



                                             4
found Bucklin and a woman in the house. On the bed of the master bedroom officers

found a pair of pants containing $1,415 cash in one pocket and Bucklin’s driver’s license

and methamphetamine in another pocket. Id. 45. Before leaving for the jail, Bucklin asked

to put on some clothes. He retrieved and put on the pants officers found on the bed. Id.

at 46. The court of appeals rejected Bucklin’s sufficiency challenge, citing the presence

of his driver’s license in the pants, his selection of those pants to wear to jail, and evidence

he lived at the house. Id. at 47. Here, as in Bucklin, the officers did not see the defendant

wearing the clothing before arresting him. In both cases the defendant’s identification was

in the same garment as the contraband.


       Appellant argues the State failed to produce any evidence he was in possession of

the controlled substance before officer Morris gave him the pants found lying in Bullock

Street. We disagree. The conclusion that appellant had worn the clothing earlier in the

evening is supported by his unclothed condition when first encountered by officers, the

nearby location of the pants, his express identification of the pants as his, his putting them

on, and the presence of a wallet in the pocket containing his driver’s license. The

circumstantial nature of the evidence does not alter our sufficiency review. Geesa v. State,

820 S.W.2d 154, 158 (Tex.Crim.App. 1991).


       The State was not required to disprove the possibility someone found appellant’s

pants in the street and, unknown to appellant, placed cocaine in the pocket. The State’s

burden is to prove each element beyond a reasonable doubt, not to exclude every

conceivable alternative to a defendant’s guilt. See Geesa, 820 S.W.2d at 161 (rejecting



                                               5
outstanding reasonable hypothesis of innocence as standard for reviewing sufficiency of

circumstantial evidence).     The presence of appellant’s clothing in the street is not

significantly different from the fact in Moss that the clothing was outside the apartment

window while officers located and arrested Moss. 850 S.W.2d at 791. A rational trier of

fact could have found the elements of the offense beyond a reasonable doubt. The

evidence was legally sufficient to support the jury’s verdict.


       By his factual insufficiency argument, appellant contends a neutral review shows the

evidence “is so obviously weak and factually insufficient that the verdict is unjust.” His brief

elsewhere challenges the sufficiency of evidence supporting the jury’s implicit finding that

the cocaine was present in the pants at the time appellant removed them, by characterizing

the area where the clothing was found as a “densely-occupied residential area” and

pointing out there were 30 to 40 people in the general vicinity. But the clothing was found

lying in Bullock Street. The 30 to 40 people officer McIntee saw were on Brazier Street.

Moreover, the jury saw the videotape made from Morris’s patrol car. During the eleven

minutes that expired between Morris’s initial approach of appellant and officer Poras’s

report he found appellant’s identification, Morris drove several streets and alleys looking

for appellant. Not a single pedestrian is shown on the videotape and the only vehicle

Morris passed was another patrol car. Even if we consider the evidence of the presence

of other people on Brazier Street to be contrary to the jury’s verdict, it is not so strong as

to preclude appellant’s guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 485.

Considering all the evidence in a neutral light, the jury was rationally justified in finding




                                               6
appellant guilty beyond a reasonable doubt. Id. at 484. The evidence of guilt was factually

sufficient. We overrule appellant’s sole issue and affirm the trial court’s judgment.




                                                 James T. Campbell
                                                     Justice




Publish.




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