                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-15-00081-CR



             BOBBY JOE EVENS, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 196th District Court
                 Hunt County, Texas
                Trial Court No. 27,364




      Before Morriss, C.J., Moseley and Burgess, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                    MEMORANDUM OPINION
        As part of a drug trafficking investigation, officers of the Greenville Police Department

watched suspiciously as Bobby Joe Evens and his then girlfriend, Misty Brigham, loaded various

items from a local hotel room into a blue Ford pickup truck and a black, four-door Nissan Maxima.

After Evens drove the truck from the motel parking lot, followed by Brigham in the Nissan, Evens

was pulled over into a nearby parking lot, and Brigham followed. Though a drug-dog alerted on

the front door handles of the truck, no drugs were found in the truck. Brigham, however, admitted

that cigars in her car contained marihuana, resulting in her being arrested for possession of a

controlled substance and taken to the Greenville Police Station. A subsequent search of Brigham’s

person discovered, in her underwear, 187.3 grams of crack cocaine, which Brigham reported was

owned by Evens.

        That resulted in Evens’ prosecution and conviction for possession of more than four grams,

but less than 200 grams, of crack cocaine with intent to deliver and a resulting sentence of seventy-

five years in prison.1 Over Evens’ objection, the trial court ordered Evens’ sentence to run

consecutively to a life sentence Evens received in a prior case.

        On appeal, Evens argues that the evidence was legally insufficient to support the conviction

and that cumulating the sentence he received in this case with an earlier sentence is

unconstitutional because it is grossly disproportionate to the offense. We affirm the trial court’s




1
 Due to two prior felony convictions, Evens’ punishment range was enhanced to twenty-five to ninety-nine years or
life in prison.

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judgment because: (1) legally sufficient evidence supports the verdict and (2) cumulating Evens’

sentences was not constitutional error.

(1) Legally Sufficient Evidence Supports the Verdict

         Evens contends that the evidence was legally insufficient to support the verdict. Evens

focuses here on the fact that he did not physically possess the cocaine, but Brigham did.

         In evaluating legal sufficiency, we review all the evidence in the light most favorable to

the trial court’s judgment to determine whether any rational jury could have found the essential

elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305

S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). We examine evidentiary sufficiency

under the direction of the Brooks opinion, while giving deference to the responsibility of the jury

“to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)

(citing Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007).

         Legal sufficiency of the evidence is measured by the elements of the offense as defined by

a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

The “hypothetically correct” jury charge is “one that accurately sets out the law, is authorized by

the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for which the

defendant was tried.” Id.

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

accused exercised control, management, or care over the substance; and (2) the accused knew the

matter possessed was contraband.” Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App.

2005). When an accused does not exclusively possess the place where the contraband is found,

other evidence must link the defendant to the contraband. Id. at 406.

         The question becomes whether there is sufficient evidence linking the defendant with the

contraband to support “a reasonable inference that the accused knew of the contraband’s existence

and exercised control over it.” Haggerty v. State, 429 S.W.3d 1, 6 (Tex. App.—Houston [14th

Dist.] 2013, pet. ref’d). Such links may include:

         (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 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.

Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006). The logical force of the links,2

not their number, is the key. Id. at 162; Smith v. State, 176 S.W.3d 907, 916 (Tex. App.—Dallas



2
 Historically, these links have been regularly called “affirmative links,” but the Texas Court of Criminal Appeals has
ruled that such reference is passé. It is not an independent test for sufficiency of the evidence, but merely a way to
refer to a wide range of circumstantial evidence that can serve to show a knowing possession or control of contraband.
The word “affirmative” adds nothing meaningful to the word “links.” See Evans, 202 S.W.3d at 162 n.9.


                                                          4
2005, pet. ref’d)). There is no set formula. Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.—

Houston [14th Dist.] 2001, pet. ref’d). The links come from the totality of the circumstances. Id.

(citing Sosa v. State, 845 S.W.2d 479, 483–84 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d)).

          Evens contends that “there was no reliable evidence” that he knowingly and intentionally,

acting together with Brigham, possessed with intent to manufacture or deliver the crack cocaine in

question. Investigator Warren Mitchell testified that Brigham and Evens were working together

to move things out of the motel and into their two vehicles. When the pair left the motel, Brigham

was following Evens’ truck, and when investigator Russell Stillwagoner stopped Evens’ truck,

Brigham pulled her car over and waited for him. The drug dog gave a positive alert for drugs on

the door handles of Evens’ truck. Brigham testified that the 187.3 grams of crack cocaine she had

belonged to Evens, that he gave her the drugs to begin with, and that Evens was planning on getting

the drugs back from her. Evens was present when Brigham was arrested. When Brigham was

arrested, Evens “aggressively requested that [her] vehicle be released to him,” and Brigham

agreed.

          Evens admitted that, in May 2010, Brigham was distributing drugs for him. While he was

in prison, he instructed her to buy various drugs from his supplier, gave her directions as to how

to prepare the drugs for sale, where to deliver them, and what to do with the income from selling

the drugs. In prior testimony in federal court, Evens admitted that Brigham was his girlfriend, that

the “over 200 grams of crack cocaine” she was carrying that day belonged to him, that they were

leaving from a motel that day, and that she was supposed to take the drugs to his nephew, Chase

Grant. Based on the totality of the circumstances, we find there was legally sufficient evidence

                                                  5
that Evens was working with Brigham and sufficient links to raise the reasonable inference that

Evens knew of the drugs’ presence and exercised control over the drugs.

        Evens also argues that the State’s evidence was scant, that Brigham’s testimony was self-

serving, and that his prior testimony regarding the drugs found on Brigham was referring to the

fourteen grams he had given her earlier that day. When there is conflicting testimony, the “jury is

the sole judge of the credibility of witnesses and the weight to be given to their testimonies, and

the reviewing court must not usurp this role by substituting its own judgment for that of the jury.”

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). “To the extent the testimony

is inconsistent, the jury as the trier of fact had the ultimate authority to determine the credibility of

witnesses and the weight to be given to their testimony.” Herrero v. State, 124 S.W.3d 827, 833

(Tex. App.—Houston [14th Dist.] 2003, no pet.). Here, the jury could have reasonably chosen to

believe that Evens’ prior testimony amounted to an admission that the drugs found on Brigham

were his, to believe Brigham’s testimony that the drugs belonged to Evens, and to disbelieve

Evens’ testimony and explanations to the contrary. See id.

        Viewing the evidence in the light most favorable to the verdict, we find the evidence legally

sufficient for a reasonable jury to find Evens guilty beyond a reasonable doubt. Accordingly, we

overrule this point of error.




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(2)     Cumulating Evens’ Sentences Was Not Constitutional Error

        Evens also contends that, by ordering his seventy-five-year sentence to run consecutively

to the life sentence he received in a prior case, the trial court “technically sentenced [him] to life

without parole,” which is outside the statutory range of punishment and grossly disproportionate

to the severity of the offense.

        When a particular sentence is within the statutorily authorized range of punishment, the

sentence is not cruel or unusual.3 Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.—Texarkana

1999, no pet.) (citing, inter alia, Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973)).

Nonetheless an Eighth Amendment claim survives this presumption. Id.

        A sentence of seventy-five years for a first-degree-felony offense of possession of four

grams or more but less than 200 grams of cocaine with the intent to deliver is within the allowed

sentencing range. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West 2010); TEX. PENAL

CODE ANN. § 12.42(d) (West Supp. 2015), § 12.32 (West 2011). Trial courts are given, by statute,

discretion to cumulate a defendant’s sentences. See Ex parte Davis, 506 S.W.2d 882, 883 (Tex.

Crim. App. 1974). The trial court’s sentence and order that it be served consecutively after Evens’

prior life sentence are presumptively proportionate and not cruel or unusual for the offense of

which Evens was convicted.

        To address Evens’ claim, we first compare the severity of the sentence to the gravity of the

offense underlying the current conviction as well as the offenses underlying the prior convictions.


3
 The United States Constitution prohibits cruel and unusual punishment, while the Texas Constitution prohibits cruel
or unusual punishment. Cf. U.S. CONST. art. VIII; TEX. CONST. art. I, § 13. Evens’ argument is made under the U.S
Constitution.
                                                         7
See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Alberto v. State, 100 S.W.3d 528,

530 (Tex. App.—Texarkana 2003, no pet.). If that “initial comparison create[s] an inference that

the sentence was grossly disproportionate to the offense,” we then consider “(1) sentences for

similar crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions.”4

Mullins v. State, 208 S.W.3d 469, 470 (Tex. App.—Texarkana 2006, no pet.) (citing McGruder,

954 F.2d at 316 (interpreting Harmelin v. Michigan, 501 U.S. 957, 964–65 (1991)).

         Evens contends that what is effectively a sentence of life without parole is outside the

statutory range of punishment and grossly disproportionate to the severity of the offense for which

he was convicted. His argument ignores the essence of the statute under which he was sentenced.

Evens was sentenced under the provisions of Section 12.42(d) of the Texas Penal Code. Under

that statute, sentence is imposed to reflect the seriousness of the most recent offense, not as it

stands alone, but in light of prior offenses. See Rummel v. Estelle, 445 U.S. 263, 276 (1980). A

repeat offender’s sentence is “based not merely on that person’s most recent offense but also on

the propensities he has demonstrated over a period of time during which he has been convicted of

and sentenced for other crimes.” Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.—Houston [14th

Dist.] 2000, pet. ref’d). Therefore, in considering whether Evens’ cumulated sentence is “grossly

disproportionate,” we consider the present offense, the enhancements alleged in the indictment,




4
 In Harmelin, Justice Kennedy concurred in part and concurred in the judgment of the Court. Regarding the analysis
for such a claim, he suggested “intrajurisdictional and interjurisdictional analyses are appropriate only in the rare case
in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross
disproportionality.” Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring). Justice Scalia’s majority opinion would
have done away with the jurisdictional comparisons, but that section of the opinion was not joined by a majority of
the Court. See Harmelin, 501 U.S. at 988–89.
                                                            8
and other sentencing evidence regarding Evens’ criminal history. Vrba v. State, 69 S.W.3d 713,

724 (Tex. App.—Waco 2002, pet. ref’d).

       Evens was convicted of possessing the 187.3 grams of crack cocaine with intent to deliver,

a first degree felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d); TEX. PENAL CODE

ANN. § 12.32. The distribution and use of illegal drugs continues to be a serious issue in our

society. The possession, use, and distribution of illegal drugs represent “one of the greatest

problems affecting the health and welfare of our population.” Harmelin, 501 U.S. at 1002,

(Kennedy, J., concurring), (quoting Treasury Employees v. Von Raab, 489 U.S. 656, 668 (1989)).

       The gravity of the underlying offense was greatly increased by the evidence admitted

during the punishment phase, which showed that Evens has a consistent pattern of serious and

drug-related criminal behavior that spans more than thirty years. In 1978, Evens received

probation for the third-degree felony of escape, but the court, in 1980, revoked his probation and

sentenced him to two years in prison. In 1987, Evens was convicted of theft by receiving and

concealing stolen property over $750.00, a third-degree felony. He was sentenced to community

supervision, but it was later revoked, and a sentence of seven years was entered. In 1989, Evens

pled guilty to the first-degree felony offense of possession of a controlled substance with intent to

deliver, for which he received a ten-year sentence. In 1991, Evens pled guilty to possession of a

controlled substance, a second-degree felony, receiving three years’ deferred probation. In 2008,

Evens pled guilty to evading arrest in a vehicle, a state jail felony that was enhanced to a second-

degree felony, for which he received a three-year sentence. Evens admitted that he was ordering

and directing the sale of drugs while he was in prison in 2010. In the prior federal proceeding,

                                                 9
Evens testified that, from February 2010 through September 2011, he and those working for him

sold between four and five kilograms of crack cocaine.

        In Rummel, the United States Supreme Court held that it did not constitute “cruel and

unusual punishment” to impose a life sentence under the Texas “recidivist statute,” now Section

12.42(d) of the Texas Penal Code, on a defendant who had been convicted, successively, of

fraudulent use of a credit card to obtain $80.00 worth of goods or services, passing a forged check

in the amount of $28.36, and obtaining $120.75 by false pretenses. Rummel, 445 U.S. at 285.

        In McGruder, the Fifth Circuit Court of Appeals held that it did not constitute “cruel and

unusual punishment” to impose a life sentence without the hope of parole under a habitual offender

statute on a defendant who had been convicted, successively, of burglary of an automobile, armed

robbery, burglary and larceny, and armed robbery again. McGruder, 954 F.2d at 315.

        Because the sentences are within the statutory range of punishment, and evidence was

presented regarding his previous felonies, Evens’ punishment is not prohibited as cruel, unusual,

or excessive. Moreover, having compared the seventy-five-year sentence with the nature and

gravity of Evens’ prior criminal history, the sentences are not grossly disproportionate in violation

of the Eighth Amendment. Neither did the trial court’s cumulation of the seventy-five year

sentence with a previous life sentence violate the Eighth Amendment. See Stevens v. State, 667

S.W.2d 534, 537 (Tex. Crim. App. 1984). Having determined that the consecutive sentences are

not grossly disproportionate, we find it unnecessary to consider the remaining factors of the Solem

test.



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      We affirm the trial court’s judgment.



                                                   Josh R. Morriss, III
                                                   Chief Justice

Date Submitted:      October 7, 2015
Date Decided:        November 25, 2015


Do Not Publish




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