                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                §
 ROTAURUS D. SMITH,                                             No. 08-12-00297-CR
                                                §
                  Appellant,                                      Appeal from the
                                                §
 v.                                                             213th District Court
                                                §
 THE STATE OF TEXAS,                                          of Tarrant County, Texas
                                                §
                  Appellee.                                       (TC# 1112179D)
                                                §

                                         OPINION

       Rotaurus Smith appeals the trial court’s revocation of community supervision based on

his breach of a probation agreement prohibiting him from violating the laws of this State, another

state, or the United States. In his sole issue, Appellant argues that the testimony of a police

officer who claimed to have seen him briefly bend over behind a bush where drugs were later

found is insufficient to establish Appellant’s knowing possession of a controlled substance,

particularly when viewed in light of his own contradictory testimony and that of his girlfriend,

who admitted at trial the drugs were hers and that she had thrown them behind the bush before

calling the police in anger over a domestic dispute. As such, he contends, the trial court abused

its discretion in revoking his community supervision and subsequently adjudicating him guilty of

his prior offense. We affirm.
                                        BACKGROUND

       On June 13, 2008, Appellant pleaded guilty to possession of MDMA, a controlled

substance. The trial court deferred adjudication for four years, assessed a $400.00 fine, and

placed Appellant on community supervision. As a condition of his probation, Appellant agreed,

inter alia, to refrain from violating any state or federal laws, including those pertaining to drug

possession.

       On February 28, 2012, Appellant and his girlfriend Sheri Green were involved in a

domestic dispute at her residence in Fort Worth, with Green accusing Appellant of having stolen

$100.00 from her purse. Following her argument with Appellant, Green left her second-floor

apartment, went down to the ground floor, and flagged down a patrol unit to make a complaint.

Green, who was intoxicated at the time, told police that she believed Appellant had stolen her

money and told them that he had warrants and was in possession of drugs. A subsequent

investigation revealed that Green had dropped the money inside her own apartment.

       While Green spoke with police, Appellant left Green’s apartment. Officer A. Parker

testified he then observed Appellant walk toward the stairwell furthest away from where police

were located on the ground floor. Officer Parker noted this was “strange” given that there were

several other stairwells leading to the ground floor that were closer to the two officers. He also

stated that he did not see Appellant carrying anything in his hands. As Appellant descended the

stairs, according to Officer Parker, Appellant appeared to bend over behind a bush, briefly

disappearing from Officer Parker’s line of sight. Appellant stood back up and then voluntarily

approached Officer Parker to speak with him. Officer Parker later searched the area around the

bush and discovered an electronic scale, a jar, and a plastic bag containing 10.84 grams of

marijuana and 3.06 grams of 4-methylethcathinone, a controlled substance. Police then arrested



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Appellant. Officer Parker noted that the apartment complex was known as a high-crime area.

       The State subsequently petitioned the trial court to proceed to adjudication on the merits

of Appellant’s deferred charge from 2008, accusing Appellant of possessing a controlled

substance. Appellant pleaded “not true.” At the revocation hearing, Green testified that she

owned the drugs and the scale police found near the bush. She maintained that she got rid of the

drugs prior to flagging down the officers because she had already been drinking and did not want

to get into more trouble. She also testified that the scale was hers, and that she used it to ensure

that when she bought drugs, she received the correct amount.

       Appellant waived his Fifth Amendment rights and testified on his own behalf. Appellant

disputed Officer Parker’s contention that he had bent down behind a bush before approaching

police officers to talk. Appellant testified that when he first entered Green’s apartment, she was

intoxicated and belligerent, and that when she opened her purse while accusing him of taking her

money, he saw the drugs inside her purse. Appellant further testified that he had told Green she

should not being doing drugs and that he felt angry that Green was still doing drugs. Appellant

stated that after she left the apartment, he did not chase after her because he was mad, but instead

smoked a cigarette. He then left the apartment, heard her talking, and realized she was speaking

with police. He testified that he considered leaving, but decided instead to approach the officers

and explain his situation.

       The trial court found that Appellant violated the terms of his probation, adjudicated him

guilty of the underlying charge, and sentenced him to three years in prison.

                                          DISCUSSION

       Appellant asserts in his sole issue that the State failed to meet its evidentiary burden in

establishing his intentional and knowing possession of drugs found in an open-air, shared access



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portion of a high-crime apartment complex, rendering the trial court without discretion to revoke

his community supervision. We disagree.

                             Standard of Review and Applicable Law

        “The question at a revocation hearing is whether the appellant broke the contract he made

with the court after the determination of his guilt.” Armstrong v. State, 134 S.W.3d 860, 863

(Tex.App.--Texarkana 2004, pet ref’d), citing Kelly v. State, 483 S.W.2d 467, 469

(Tex.Crim.App. 1972)(internal quotations omitted). “In a revocation proceeding, the trial court

has discretion to revoke community supervision when a preponderance of the evidence supports

one of the State’s allegations that the defendant violated a condition of his community

supervision.” Leonard v. State, 385 S.W.3d 570, 576 (Tex.Crim.App. 2012). A preponderance

of the evidence is “[t]he greater weight of the evidence; superior evidentiary weight that, though

not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair

and impartial mind to one side of the issue rather than the other.” BLACK’S LAW DICTIONARY

1201 (7th ed. 1999). Thus, “[t]he State’s burden of proof is satisfied if the greater weight of

credible evidence creates a reasonable belief that the defendant violated a condition of [his]

probation as alleged by the State.” Armstrong v. State, 82 S.W.3d 444, 448 (Tex.App.--Austin

2002, pet. ref’d).

        “Though defendants are not entitled to community supervision as a matter of right, once a

defendant is assessed community supervision in lieu of other punishment, this conditional liberty

should not be arbitrarily withdrawn by the court.” Leonard, 385 S.W.3d at 576 (internal citation

and quotation marks omitted).        We review a trial court’s decision to revoke community

supervision for abuse of discretion.      Id.   “A trial court abuses its discretion if it revokes

community supervision despite the State’s failure to prove a violation of the conditions of



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supervision” with sufficient evidence. Vidal v. State, 167 S.W.3d 897, 898 (Tex.App.--Austin

2005, no pet.). “The trial court is the sole judge of the credibility of the witnesses and the weight

to be given their testimony, and we review the evidence in the light most favorable to the trial

court’s ruling.” Cantu v. State, 339 S.W.3d 688, 691 (Tex.App.--Fort Worth 2011, no pet.).

           Here, the State alleged that Appellant violated the terms of his community supervision by

intentionally and knowingly possessing less than a gram of a controlled substance in violation of

the laws of Texas and the United States.                 “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). “Mere presence at the location where

drugs are found is . . . insufficient, by itself, to establish actual care, custody, or control of those

drugs.” Evans v. State, 202 S.W.3d 158, 162 (Tex.Crim.App. 2006); see also Poindexter, 153

S.W.3d at 406. However, presence coupled with other direct or circumstantial evidence may

affirmatively “link” the defendant to the drugs and establish knowing possession or control.

Evans, 202 S.W.3d at 162. Our sister courts have recognized a constellation of non-exclusive

factors which we may consider in determining knowing possession. See id. at 162 n.12.1 “We


1
    These factors include, inter alia:

           (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

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need not consider affirmative link factors that are absent from the evidence.” Batiste v. State,

217 S.W.3d 74, 80 (Tex.App.--Houston [1st Dist.] 2006, no pet.). “It is . . . not the number of

[affirmative] links that is dispositive, but rather the logical force of all of the evidence, direct and

circumstantial.” Evans, 202 S.W.3d at 162.

                                                    Analysis

        Appellant argues that the State failed to meet its burden by establishing a sufficient

number of affirmative links between him and the drugs. The State counters that, when viewing

those factors favorable to the ruling, the trial court did not err in exercising its discretion to

revoke community supervision. Specifically, the State contends that Green’s initial statement to

police that Appellant possessed drugs, Appellant’s use of the stairwell furthest away from police

to descend to the ground floor, and Officer Parker’s testimony that he saw Appellant briefly bend

over and disappear from view behind a bush where drugs and an electronic scale were later

found are all links that, when taken together, are sufficient for the trial court to find possession

by a preponderance of the evidence. We agree.

        While Appellant presented evidence that contradicted Officer Parker’s account of events,

the trial judge, as sole trier of fact, could have resolved the disputed facts in the manner laid out

by the State. See Cantu, 339 S.W.3d at 691 (appellate court must view evidence in light most

favorable to ruling).       Under those facts, his girlfriend’s initial accusations that he was in

possession of drugs, Appellant’s choice to use the stairwell furthest from the police in

descending to the ground floor, his bending over near the bush where drugs were found prior to

approaching police, Appellant’s relative proximity to the drugs at the time of the search, and the



        (14) whether the conduct of the defendant indicated a consciousness of guilt.

See Evans, 202 S.W.3d at 162 n.12, citing Olivarez v. State, 171 S.W.3d 283, 291 (Tex.App.-Houston [14th Dist.]
2005, no pet.).

                                                        6
presence of a substantial amount of more than one drug and an electronic scale, when taken in

the aggregate, are sufficient to support a finding that he more likely than not possessed the

controlled substance. See Evans, 202 S.W.3d at 162 n.12 (listing furtive gestures, the presence

of several narcotics, presence of contraband in plain view, and other facts as indicative of

possession). As such, the State met its evidentiary burden, triggering the trial court’s ability to

revoke community supervision in the exercise of its sound discretion. Leonard, 385 S.W.3d at

576. Since we find no evidence in the record that the trial court abused this discretion by acting

arbitrarily or without reference to any guiding principles, see Lyles v. State, 850 S.W.2d 497, 502

(Tex.Crim.App. 1993)(setting out abuse of discretion standard), we hold that the revocation was

proper.

          Issue One is overruled. We affirm the trial court’s judgment.



April 16, 2014
                                               YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)




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