                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-15-00068-CR

JULIAN CRUZ,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 18th District Court
                             Johnson County, Texas
                              Trial Court No. F48700


                          MEMORANDUM OPINION


      In one issue, appellant, Julian Cruz, challenges his conviction for unlawful

possession of a controlled substance—cocaine—in an amount less than one gram. See

TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2010). Specifically, Cruz contends

that the evidence is insufficient to link him to the cocaine that was found on the ground

next to his pickup truck. Because we conclude that the logical force of the evidence

demonstrates that Cruz knowingly possessed the cocaine, we affirm.
                                      I.    BACKGROUND

         Here, Cruz was charged by indictment with unlawful possession of a controlled

substance—cocaine—in an amount less than one gram. See id. Also included in the

indictment were enhancement paragraphs referencing Cruz’s prior felony convictions for

burglary of a habitation.

         At the conclusion of the guilt-innocence phase, the jury found Cruz guilty of the

charged offense. During the punishment phase, Cruz pleaded “true” to the enhancement

paragraphs contained in the indictment. The jury subsequently sentenced Cruz to twenty

years’ confinement in the Institutional Division of the Texas Department of Criminal

Justice with a $10,000 fine. The trial court certified Cruz’s right of appeal, and this appeal

followed.

                              II.   SUFFICIENCY OF THE EVIDENCE

         In his sole issue on appeal, Cruz contends that the evidence is insufficient to

establish that he was in possession of the cocaine that was found on the ground next to

his pickup truck. We disagree.

A.       Standard of Review

         In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of

Criminal Appeals expressed our standard of review of a sufficiency issue as follows:

         In determining whether the evidence is legally sufficient to support a
         conviction, a reviewing court must consider all of the evidence in the light
         most favorable to the verdict and determine whether, based on that
         evidence and reasonable inferences therefrom, a rational fact finder could
Cruz v. State                                                                           Page 2
         have found the essential elements of the crime beyond a reasonable doubt.
         Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
         Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar
         standard gives full play to the responsibility of the trier of fact fairly to
         resolve conflicts in the testimony, to weigh the evidence, and to draw
         reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at
         319. “Each fact need not 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.” Hooper, 214 S.W.3d
         at 13.

Id.

         Our review of "all of the evidence" includes evidence that was properly and

improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if

the record supports conflicting inferences, we must presume that the factfinder resolved

the conflicts in favor of the prosecution and therefore defer to that determination. Jackson,

443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial evidence are

treated equally:       “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.” Hooper, 214 S.W.3d at 13. Finally, it is well established that the factfinder

is entitled to judge the credibility of the witnesses and can choose to believe all, some, or

none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461

(Tex. Crim. App. 1991).

         The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four
Cruz v. State                                                                                  Page 3
things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability; and (4) adequately describes the particular offense for which the

defendant was tried. Id.

         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. Evans v. State, 202 S.W.3d 158, 161

(Tex. Crim. App. 2006); see also TEX. HEALTH & SAFETY CODE ANN. § 481.002(38) (West

Supp. 2015) (defining “[p]ossession” as “actual care, custody, control, or management”).

Possession is not required to be exclusive. See Evans, 202 S.W.3d at 162 n.12; see also Sellers

v. State, No. 10-14-00226-CR, 2015 Tex. App. LEXIS 4702, at *4 (Tex. App.—Waco May 7,

2015, pet. ref’d) (mem. op., not designated for publication).

B.       Applicable Law

         When the defendant is not in exclusive possession of the place where the

controlled substance is found, then additional, independent facts and circumstances must

link the defendant to the substance in such a way that it can reasonably be concluded that

the defendant possessed the substance and had knowledge of it. See Poindexter v. State,

153 S.W.3d 402, 406 (Tex. Crim. App. 2005).           Whether this evidence is direct or

circumstantial, “it must establish, to the requisite level of confidence, that the accused's

connection with the drug was more than just fortuitous.” Id. 405-406 (quoting Brown v.


Cruz v. State                                                                            Page 4
State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)). Evidence that links the defendant to

the controlled substance suffices for proof that he possessed it knowingly. Brown, 911

S.W.2d at 747.

         A link generates a reasonable inference that the defendant knew of the

contraband’s existence and exercised control over it. See Brown, 911 S.W.2d at 747; see also

Santiesteban-Pileta v. State, 421 S.W.3d 9, 12 (Tex. App.—Waco 2013, pet. ref’d). Courts

have identified the following factors that may link a defendant to a controlled substance:

(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 controlled

substance; (4) whether the defendant was under the influence of a controlled substance

when arrested; (5) whether the defendant possessed other contraband or controlled

substances 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 controlled substances were found; (12) where

the location of the controlled substance 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. See Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim.

App. 2006). The number of factors present is not as important as the logical force the


Cruz v. State                                                                         Page 5
factors create to prove the defendant knowingly possessed the controlled substance. See

Black v. State, 411 S.W.3d 25, 28-29 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

C.       Discussion

         At approximately 1:10 a.m. on June 4, 2014, Cody Moss, a patrol officer with the

Keene Police Department, pulled over Cruz after running the license plates on Cruz’s

pickup truck and discovering that Cruz had outstanding warrants. After initiating the

traffic stop, Officer Moss approached the pickup truck, identified Cruz as the driver,

determined that Cruz owned the vehicle, and identified the vehicle’s passenger as Cruz’s

girlfriend, Debra Thomas. Officer Moss then confirmed that the arrest warrants for Cruz

were valid and asked Cruz to exit and step to the rear of the vehicle. Cruz was

subsequently placed under arrest and escorted to the back of Officer Moss’s patrol car.

         Thereafter, Officer Moss returned to the pickup truck to speak with Thomas. 1

While Officer Moss spoke with Thomas, a second police officer, Sergeant Clifford Krieger,



         1Officer Moss testified that the first thing Thomas told him was: “I don’t have nothing on me.”
The defense characterized this statement as odd and argued that the cocaine was really Thomas’s. And as
stated in his brief, appellant criticizes the State’s position that Thomas’s “allegedly Brobdingnagian girth
and sloth-like speed” would have made it extremely difficult for Thomas to reach over the center console
and the driver’s seat to drop the baggie of cocaine on the ground near the driver’s side door.

        In any event, with its guilty verdict, the jury clearly disbelieved Cruz’s argument that the cocaine
was Thomas’s—a resolution of the evidence to which we must defer. See Chambers v. State, 805 S.W.2d 459,
461 (Tex. Crim. App. 1991) (stating that it is within the province of the factfinder to judge the credibility of
the witnesses); see also Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008) (noting that because the
resolution of conflicting testimony is within the province of the factfinder, appellate courts must defer to
the jury’s resolution of conflicts in the evidence); Render v. State, 316 S.W.3d 846, 859 (Tex. App.—Dallas
2010, pet. ref’d) (“An appellate court must give deference to a jury’s decision regarding what weight to give
contradictory testimonial evidence because the decision is most likely based on an evaluation of credibility
and demeanor, which the jury is in a better position to judge.”).

Cruz v. State                                                                                            Page 6
arrived and pulled behind Officer Moss’s patrol car. Sergeant Krieger examined the scene

and noticed on the ground on the driver’s side of the pickup truck a red lighter and a

cellophane baggie containing a crystal, rock-like substance that he believed to be rock

cocaine.2 Sergeant Krieger testified that these items were lying next to each other and

directly below the driver’s side door. Later, Cruz admitted that the lighter was his; that

he kept a red lighter in his lap while he drove; and that the lighter fell onto the ground

when he exited the pickup truck. However, Cruz denied that the cocaine was his.

         Police also inventoried the pickup truck and discovered in the center console

apparent drug paraphernalia—a blue-handled spoon—that was lying next to a small

trinket. Inside the trinket was a plastic baggie that contained a powdery substance later

identified as cocaine.

         Based on our review of the record, we conclude that the evidence is sufficient to

support the jury’s finding that Cruz possessed the cocaine found on the ground outside

of his pickup truck. This conclusion is premised on the following: (1) the cellophane

baggie of cocaine was found just beneath the driver’s side door of the pickup truck that

Cruz was driving; (2) the cocaine was located next to Cruz’s red lighter that fell from his

lap onto the ground when he exited the vehicle; (3) Officer Moss noted at the scene of the

traffic stop that he did not see anything on the ground when he first approached Cruz’s




         Lab tests confirmed that the crystal, rock-like substance found on the ground below the driver’s
         2

side door was indeed cocaine.

Cruz v. State                                                                                     Page 7
pickup; (4) Sergeant Krieger stated that the location of the traffic stop was not known for

drug use; (5) officers also found drug paraphernalia and additional cocaine inside the

center console of Cruz’s pickup truck; and (6) Cruz denied that the cocaine was Thomas’s.

         In light of this evidence, we cannot say that Cruz’s connection to the cocaine was

merely fortuitous. See Poindexter, 153 S.W.3d at 405-06. Rather, the evidence links Cruz

to the cocaine. See Evans, 202 S.W.3d at 162; Poindexter, 153 S.W.3d at 405; Brown, 911

S.W.2d at 747; see also Black, 411 S.W.3d at 28-29. Accordingly, viewing the evidence in

the light most favorable to the jury’s verdict, we hold that the evidence is sufficient to

support Cruz’s conviction for unlawful possession of a controlled substance in an amount

less than one gram. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b); see also Jackson,

443 U.S. at 319, 99 S. Ct. at 2789; Lucio, 351 S.W.3d at 894. We overrule Cruz’s sole issue

on appeal.

                                      III.   CONCLUSION

         We affirm the judgment of the trial court.




                                                  AL SCOGGINS
                                                  Justice




Cruz v. State                                                                        Page 8
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
(Chief Justice Gray concurring)*
Affirmed
Opinion delivered and filed August 10, 2016
Do not publish
[CR25]

*(Chief Justice Gray concurs in the judgment. A separate opinion will not issue.)




Cruz v. State                                                                       Page 9
