                                        In The

                                 Court of Appeals

                     Ninth District of Texas at Beaumont

                            ____________________
                                NO. 09-17-00110-CR
                            ____________________

                    JARROD DWAYNE MARKS, Appellant

                                          V.

                        THE STATE OF TEXAS, Appellee
________________________________________________________________________

                    On Appeal from the 163rd District Court
                           Orange County, Texas
                         Trial Cause No. B160473-R
________________________________________________________________________

                           MEMORANDUM OPINION

      In four appellate issues, Jarrod Dwayne Marks challenges his conviction for

possession of a controlled substance, hydromorphone, in an amount of less than one

gram. According to Marks, his conviction should be overturned for four reasons: (1)

the evidence introduced in his trial failed to establish that he ever owned, had custody

of, or controlled the hydromorphone that his wife took from him and then gave to

the police; (2) the trial court erred by admitting the hydromorphone into evidence,

                                           1
given the breaks in the chain of custody needed to tie him to the hydromorphone or

its container; (3) the hydromorphone should have been excluded from evidence

because his wife took it from him without his consent before turning it over to the

police; and (4) if the hydromorphone was admissible, the trial court should have

instructed the jury to disregard it if the jury determined or had a reasonable doubt

about whether the hydromorphone was taken from Marks in an illegal search.

      Based on our conclusions that issues one, two, and four are without merit and

that issue three was not properly preserved for appellate review, we affirm.

                                    Background

      The issues Marks raises in this case revolve around the hydromorphone that

the police discovered in a package of cigarettes that the jury determined was in

Marks’ possession or control. Charisa LeDoux, Marks’ ex-wife when the criminal

case was tried but his spouse on the day he was arrested, testified against Marks in

the guilt-innocence phase of the trial. According to Charisa, she arranged to meet

with Marks at an apartment complex so that Marks could sign some papers relevant

to their impending divorce. The testimony shows the meeting occurred in July 2016.

When the meeting was ending, Charisa called the police and notified them where

Marks could be found so that the police could arrest Marks on an outstanding warrant

as he left the meeting.

                                         2
      Shortly after Marks left the meeting, he was detained by the police while they

investigated whether he was the person who was wanted on an outstanding warrant.

After the police placed Marks in handcuffs, Charisa approached Marks. In the

presence of the police, Charisa went through Marks’ pockets to determine whether

he had any pawn tickets on him that she might use to reclaim property that he might

have pawned. While going through Marks’ pockets, Charisa removed a syringe, and

after determining that it was empty, returned it to Marks. When one of the officers

saw that, he told Charisa to retrieve the syringe and discard it because he did not

want to get pricked. She complied. With the officers watching, Charisa also took a

package of cigarettes and some money from Marks’ pockets that she stuffed into her

pocket.

      Officer Bryan Perry, one of the police officers involved in Marks’ arrest,

testified in Marks’ trial. As Officer Bryan Perry was putting Marks into a patrol car,

Marks told Officer Perry that he wanted the property Charisa took from him to be

returned. Although Charisa had begun walking away from the patrol car, Officer

Perry caught up with her and advised her that Marks wanted his property back.

Charisa handed the package of cigarettes and the money to him. The testimony about

what transpired after the police arrived at the apartment complex is consistent with

video recordings that were taken by a camera in a patrol car next to the location

                                          3
where the police arrested Marks and body-cameras that were worn by the police that

day. The three video recordings relevant to Marks’ arrest were admitted into

evidence during the trial.

      Officer Perry testified that before returning the package of cigarettes to Marks,

he opened the package to inspect it for contraband. According to the officer, upon

inspecting the package, he found “a clear foil-type packaging that contained . . . one

and a half small white tablets of some sort” in the bottom of the package under where

the cigarettes would normally sit. Officer Perry’s testimony shows that in the course

of Marks’ arrest, the officers seized Marks’ Texas I.D. card, a package of cigarettes,

between five and seven dollars in cash, a lighter, and a wrapper that contained one

and one-half small white tablets. Two additional police officers testified during the

guilt-innocence phase of Marks’ trial: Officers Leslie Lovelace and Timothy Pruitt.

Their testimony is consistent with Officer Perry’s.

      The State sent the white tablets found in the cigarette package for testing to

the Jefferson County Regional Crime Lab. A gas chromatograph analysis on one of

the tablets revealed that it contained at least .151 grams of hydromorphone. The

police did not retain the syringe. Officer Pruitt, who was the lead officer on the scene

of Marks’ arrest, testified that based on his twenty-six years of experience as a police

officer, he is aware that addicts use syringes to inject hydromorphone.

                                           4
      Prior to the trial, in a motion to suppress, Marks challenged the adequacy of

the chain of custody for the evidence that the officers seized from Marks. In the

motion, Marks argued that Charisa was out of sight for a sufficient period that she

could have tampered with the evidence before turning it over to Officer Perry.

During the hearing on Marks’ motion to suppress, which the trial court conducted

more than a month before Marks’ trial began, the trial court viewed the video

recordings and heard the following four witnesses testify about Marks’ arrest: (1)

Officer Perry; (2) Charisa; (3) Jason Ply, Charisa’s former boyfriend, who was

standing nearby when Charisa took the package of cigarettes from Marks; and (4)

Karen Northern, Marks’ mother, who testified that Charisa called her when she was

distraught and told her that she had set up Marks. When the hearing ended, the trial

court denied the motion to suppress.

                                 Standard of Review

      In his first issue, Marks argues the evidence the jury considered in his trial

was insufficient to allow the jury to find that he owned, had custody of, or controlled

the tablets that Officer Perry discovered in the package of cigarettes he got from

Charisa. According to Marks, the evidence from his trial shows that Charisa is the

person who had custody or control over the package of cigarettes containing the

tablets when the police arrested Marks.

                                          5
      We review a challenge to the sufficiency of the evidence supporting a

defendant’s conviction under the standards established by the United States Supreme

Court in Jackson v. Virginia, 443 U.S. 307, 319 (1979). 1 Under the Jackson standard,

we view the evidence in the light most favorable to the verdict. 2 Based on that

evidence and any reasonable inferences from it, we determine whether any rational

factfinder could have found the essential elements of the offense beyond a

reasonable doubt.3 “The jury is the sole judge of credibility and weight to be attached

to the testimony of witnesses.” 4 In this role, the jury may choose to believe all, some,

or none of the testimony presented by the parties.5 Further, the jury is permitted to

draw multiple reasonable inferences from facts as long as the inferences the jury

draws from the evidence are reasonable. 6 If the evidence admitted in a defendant’s

trial allows reasonable jurors to reach conflicting inferences, we presume the jury



      1
          See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).
      2
        Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (citing
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)).
      3
          Id.
      4
          Id.
      5
          Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
      6
          Temple, 390 S.W.3d at 360.
                                           6
resolved any such conflicts in a way that is consistent with the jury’s verdict, and we

defer to the jury’s determination when the jury’s conclusions from the evidence were

reasonable.7

      In reviewing the record, we consider the evidence that was before the jury in

the trial regardless of whether the evidence should have been admitted. 8 Direct and

circumstantial evidence are equally probative of an actor’s guilt, and

“‘circumstantial evidence alone can be sufficient to establish guilt.’” 9 In a

circumstantial evidence case, each fact need not point directly and independently to

the guilt of the defendant when the combined and cumulative force of the

incriminating circumstances warrant a conclusion that the defendant is guilty.10

“After giving proper deference to the factfinder’s role, we will uphold the verdict

unless a rational factfinder must have had reasonable doubt as to any essential

element.”11


      7
          Id.
      8
          See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
      9
       Temple, 390 S.W.3d at 359 (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007)).
      10
         Id. (quoting Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App.
1993)); Hooper, 214 S.W.3d at 13.
      11
           Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009).
                                           7
                                Sufficiency of the Evidence

      To prove that Marks was guilty of possessing the hydromorphone, the State

needed to prove, beyond reasonable doubt, that Marks knowingly or intentionally

possessed the hydromorphone that Officer Perry discovered in the package of

cigarettes.12 The State, however, was not required to establish that his possession of

it was exclusive. 13 Thus, “‘[w]hen the accused is not in exclusive possession of the

place where the substance is found, it cannot be concluded that the accused had

knowledge of and control over the contraband unless there are additional

independent facts and circumstances which affirmatively link the accused to the

contraband.’” 14 Under the circumstances in Marks’ case, the State had to establish

that affirmative links existed that allowed the jury to reasonably infer that Marks’

connection to the hydromorphone was more than just fortuitous. 15


      12
        See Tex. Health & Safety Code Ann. § 481.102(3)(A) (West Supp. 2018),
§ 481.115(a), (b) (West 2017).

      13
         Poindexter v. State, 153 S.W.3d 402, 412 (Tex. Crim. App. 2005 (“The
mere fact that a person other than the accused might have joint possession of the
premises does not require the State to prove that the defendant had sole possession
of the contraband.”).
      14
           Id. at 406 (quoting Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App
1981)).
      15
         See Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016); Evans v.
State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); Poindexter, 153 S.W.3d at 406.
                                        8
      “In deciding whether the evidence is sufficient to link the defendant to

contraband, the trier of fact is the exclusive judge of the credibility of the witnesses

and the weight to be given to their testimony.” 16 A jury may use both direct and

circumstantial evidence in determining that a defendant knowingly or intentionally

was in possession of contraband.17 Thus, juries are allowed to consider

circumstantial evidence, such as the defendant’s presence or proximity to the

controlled substance, together with other relevant circumstances, to infer that the

defendant possessed the controlled substance and to reject the notion that the

defendant was merely present in the location where the controlled substance was

found.18 Examples of the categories of affirmative links that juries may consider

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

      16
           Poindexter, 153 S.W.3d at 406.
      17
           See Tate, 500 S.W.3d at 413.
      18
           Id. at 413-14.


                                            9
      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.19

      In Marks’ trial, the jury viewed the video recordings that were relevant to his

arrest. In them, the package of cigarettes can be seen in Marks’ pocket until Charisa

took it from him. The video recordings also show Charisa removing some money

from Marks’ pockets and placing the package of cigarettes and the money in her

pocket. They then show that she removed these items from her pocket and handed

them to Officer Perry. The video recordings also reveal that Marks had a syringe in

his pocket and the jury heard evidence that hydromorphone is injected using a

syringe. Viewing the evidence in the light most favorable the jury’s verdict, the

combined logical force of the evidence allowed the jury to infer that the cigarette

package belonged to Marks, that he knew the hydromorphone was in the package,

and that his connection to the package was not merely fortuitous. We overrule

Marks’ first issue.




      19
           Id. at 414 (quoting Evans, 202 S.W.3d at 162 n.12)
                                           10
                                  Chain of Custody

      In issue two, Marks argues that the State failed to sufficiently tie him to the

hydromorphone discovered in the package of cigarettes because Charisa, who he

claims had the opportunity to tamper with the package, had the package in her

possession before she gave it to the police. The argument that Marks raises on

appeal, which suggests that Charisa’s possession of the package broke the chain of

custody that might have tied him to the package of cigarettes and its contents are

consistent with the argument he made in his motion to suppress. In the hearing on

that motion, the trial court ruled that Marks’ suggestion that Charisa planted the

hydromorphone tablets in the package of cigarettes went “to the weight, not the

admissibility” of the evidence the jury could consider in deciding whether Marks

possessed the hydromorphone.

      “Although the State must prove that a defendant is guilty beyond a reasonable

doubt, the State’s burden does not require it to disprove every conceivable

alternative to a defendant’s guilt.”20 No dispute exists in this case about whether one

of the tablets in the cigarette package that Officer Perry got from Charisa tested

positive at the Jefferson County Regional Crime Lab for the presence and required

amount of hydromorphone. But Marks does argue that the evidence linking him to


      20
           Id. at 413.
                                          11
the hydromorphone failed to prove that he knew the hydromorphone was in the

package because the police did not discover the hydromorphone immediately after

he was detained. He suggests that Charisa had the package in her possession long

enough that she could have placed hydromorphone inside. Marks argues that “when

there is evidence of tampering or impropriety, such evidence should be excluded.”

Additionally, he argues “the moment where [Charisa] obtained custody, any tenuous

link between [his] alleged ownership of the cigarette pack and the contraband later

found inside was shattered.”

      We disagree with Marks’ conclusion that there is any actual evidence showing

that Charisa tampered with the package. Charisa denied planting the drugs in the

package, and as the exclusive judge of the credibility of the witnesses, the jury was

entitled to believe her. 21 In the absence of any direct evidence of tampering,

questions that might exist about the strength of the evidence establishing a proper

chain of custody were matters that concerned the weight of the evidence, not its




      21
           See Temple, 390 S.W.3d at 360.


                                         12
admissibility. 22 “[P]roof of only an opportunity to tamper, alter, or commingle the

challenged evidence is not sufficient to mandate its exclusion.” 23

          In Marks’ case, while Charisa possibly had the opportunity to tamper with the

package of cigarettes while walking away from the officers, no affirmative evidence

was introduced showing Charisa tampering with the package before she handed it to

Officer Perry. For that reason, we hold the items that the police took from Charisa

were admissible, and the trial court did not err when it concluded that Marks’

arguments about the break in the chain of custody was a matter that went to the

weight the jury might give to the package and its contents.24 We overrule Marks’

second issue.

                                    Exclusionary Statute

          The Texas exclusionary statute, article 38.23 of the Texas Code of Criminal

Procedure, provides that “[n]o evidence obtained by an officer or other person in

violation of any provisions of the Constitution or laws of the State of Texas, or of

the Constitution or laws of the United States of America, shall be admitted in


          22
          See Davis v. State, 313 S.W.3d 317, 348 (Tex. Crim. App. 2010); Lagrone
v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997).
          23
               Qualls v. State, 547 S.W.3d 663, 680 (Tex. App.—Fort Worth 2018, pet.
ref’d).
          24
               See Davis, 313 S.W.3d at 349.
                                               13
evidence against the accused on the trial of any criminal case.” 25 In issue three,

Marks argues that the trial court’s ruling admitting the package of cigarettes and

hydromorphone tablets in it violated this statute.

      Our review of the record reveals that Marks failed to assert the admission of

this evidence would violate article 38.23. 26 Instead, the arguments Marks made

during the suppression hearing and in his trial about this evidence addressed whether

a sufficient chain of custody tied him to the package of cigarettes and the

hydromorphone when his wife had custody of the package immediately before

turning it over to the police.

      “Whether a party’s particular complaint is preserved depends on whether the

complaint on appeal comports with the complaint made at trial.” Pena v. State, 285

S.W.3d 459, 464 (Tex. Crim. App. 2009). In his brief, Marks argues that Charisa

conducted an illegal search when she took the package from him and taking the

package amounted to a theft. Neither in Marks’ motion to suppress, in the hearing

on the motion, nor in his trial did Marks ever argue that Charisa conducted an illegal

search or that she had stolen the package of cigarettes from him. We conclude that




      25
           Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2018).
      26
           Id. art. 38.23 (West 2018).
                                         14
Marks failed to preserve the argument he advances in issue three for our review.27

For that reason, the issue is overruled.

                                       Charge Error

      In issue four, Marks argues that even if the hydromorphone was admissible,

the trial court should have instructed the jury that it should disregard any evidence

that it believed or held a reasonable doubt about whether the hydromorphone had

been obtained in a way that violated his legal rights. In Marks’ case, while the

question of whether Charisa could legally search Marks is a matter that Marks might

have (but did not) place at issue, the fact Charisa took the package from Marks was

undisputed. The following criteria must exist before a defendant is entitled to a

limiting instruction under article 38.23(a): “(1) The evidence heard by the jury must

raise an issue of fact; (2) The evidence on that fact must be affirmatively contested;

and (3) That contested factual issue must be material to the lawfulness of the

challenged conduct in obtaining the evidence.”28 In other words, there must be a

disputed issue of material fact before a trial court is required to give the jury a

limiting instruction under article 38.23.29


      27
           See Tex. R. App. P. 33.1.
      28
           Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007).
      29
           Id. at 510-11.
                                           15
      Because no fact dispute existed about whether Charisa took the package,

whether she legally had the right to search her husband presents a question of law,

not a question of fact. Therefore, the trial court was under no duty to give the jury

the instruction that Marks suggests should have been included in the charge.30

      We overrule issue four. Having overruled the appellant’s issues, we affirm the

trial court’s judgment.

      AFFIRMED.



                                            ________________________________
                                                    HOLLIS HORTON
                                                          Justice


Submitted on December 5, 2018
Opinion Delivered February 20, 2019
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




      30
           Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012).
                                          16
