                                               In The

                                        Court of Appeals
                            Ninth District of Texas at Beaumont
                                     _________________
                                       NO. 09-11-00481-CR
                                     _________________

                                DAROLD COLEMAN, Appellant

                                                 V.

                                THE STATE OF TEXAS, Appellee

________________________________________________________________                     _     _

                     On Appeal from the 252nd District Court
                            Jefferson County, Texas
                            Trial Cause No. 09-07669
_________________________________________________________________                          _

                                   MEMORANDUM OPINION

       Claiming that the evidence at his trial showed that the marijuana found in the trunk

of a rental car he was driving belonged to a passenger, Darold Coleman1 appeals, arguing

the evidence is insufficient to support his conviction for possession. See Tex. Health &

Safety Code Ann. § 481.121(b)(5) (West 2010) (making possession of more than fifty

pounds but less than two thousand pounds of marijuana a second degree felony). We

affirm the trial court’s judgment.


       1
           The record reflects that the defendant is also known as Darold David Coleman.
                                                  1
       Coleman raises two issues in his appeal, both of which challenge the sufficiency of

the evidence supporting his conviction. Although one of his issues, issue two, challenges

the trial court’s decision to deny his motion for instructed verdict, that too presents a

challenge to the legal sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479,

482 (Tex. Crim. App. 1996); Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App.

1990) (“A challenge to the trial judge’s ruling on a motion for an instructed verdict is in

actuality a challenge to the sufficiency of the evidence to support the conviction.”).

       We review a challenge to the legal sufficiency of the evidence in the light most

favorable to the verdict to determine if a rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S

307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also Brooks v. State, 323 S.W.3d

893, 894-95 (Tex. Crim. App. 2010). We apply the same standard to challenges to a trial

court’s decision denying a motion for instructed verdict. See Williams, 937 S.W.2d at

482; Madden, 799 S.W.2d at 686. In reviewing the evidence in response to legal

sufficiency challenges, appeals courts allow the jury deference, as the jury is responsible

for resolving any conflicts in the testimony, it weighs the evidence, and it is proper for

the jury to draw reasonable inferences from the evidence presented to it. See Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

       To support a conviction for unlawful possession of marijuana, the State must

prove the accused knowingly or intentionally exercised actual care, custody, control, or


                                                 2
management over the marijuana. See Tex. Health & Safety Code Ann. §§ 481.002(38),

481.121(a) (West 2010); see also Tex. Penal Code Ann. § 6.03(a), (b) (West 2011).

Generally, a person’s mere presence at the location where drugs are found is not enough,

by itself, to establish actual care, custody, or control of the drugs. See Evans v. State, 202

S.W.3d 158, 162 (Tex. Crim. App. 2006). However, the State is not required to prove that

the defendant was in exclusive possession of the place where the contraband is found. See

McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985); State v. Derrow, 981

S.W.2d 776, 779 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d). When the defendant

is not in exclusive possession of the premises where the police found the contraband,

additional independent facts and circumstances can affirmatively link the accused to the

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

(quoting Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981)). Having

evidence affirmatively linking the accused to the contraband requires that the evidence—

whether direct or circumstantial—establish that the defendant’s connection with the drugs

was more than fortuitous. Evans, 202 S.W.3d at 161.

       In considering whether the evidence sufficiently proved possession, courts

consider links, including but not limited to:

              whether the defendant was present when the search was conducted,

              whether the contraband was in plain view,

              whether the defendant was in proximity to and had access to the drugs,


                                                 3
              whether the defendant was under the influence of drugs when arrested,

              whether the defendant possessed other contraband or narcotics when
              arrested,

              whether the defendant made incriminating statements when arrested,

              whether the defendant attempted to flee,

              whether the defendant made furtive gestures,

              whether there was an odor of contraband,

              whether other contraband or drug paraphernalia were present,

              whether the defendant owned or had the right to possess the place where
              the drugs were found,

              whether the place where the drugs were found was enclosed,

              whether the defendant was found with a large amount of cash, and

              whether the conduct of the defendant indicated a consciousness of guilt.

Id. at 162 n.12; see also Nixon v. State, 928 S.W.2d 212, 215 (Tex. App.—Beaumont

1996, no pet.) (explaining that whether “the occupants of the premises gave conflicting

statements about relevant matters” is an affirmative link factor to consider).

       The State is not required to prove all of these links are present; instead, the

“number of . . . links is not as important as the logical force that they collectively create.”

Hubert v. State, 312 S.W.3d 687, 691 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).

Additionally, “[t]he absence of various affirmative links does not constitute evidence of




                                                  4
innocence to be weighed against the affirmative links present.” James v. State, 264

S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).

      In mid-December 2008, around 2:00 a.m., Beaumont Police Department Officer

Clint Wier and Jefferson County Sheriff’s Deputy Sergeant Trish Molfino were patrolling

Interstate 10. The driver of a car passed them, suddenly cut in front of Wier, and

decelerated. Wier stopped the car.

      After stopping the car, Wier noticed that there were three occupants in the car, two

males and a female. According to Wier, a male passenger, who was seated in the

backseat, appeared to be sleeping. After approaching the driver’s window, Wier asked for

Coleman’s driver’s license, and Coleman produced a valid New Jersey license. Coleman

told Wier that his license had previously been suspended and that it was reinstated two

days before.

      According to Wier, Coleman told him he had driven from New Jersey to pick up

his friend, James Thomas, the backseat passenger. Coleman also told Wier that Thomas

was from New Jersey or Pennsylvania. Coleman said that Thomas had been visiting his

girlfriend in Houston for about a week when he asked Coleman to come get him.

Coleman indicated that he and the female travelling in the front seat, Shakiera Stevens,

were just friends. Wier noticed that Coleman claimed to have driven to Houston on

December 16: however, Coleman’s paperwork showed that the State of New Jersey had

reinstated Coleman’s license December 17. Wier also learned that Coleman was not


                                               5
listed as an authorized driver on the rental car, and that the car was rented in New Jersey.

Although Coleman told Wier that none of the people in the car were on the rental

agreement, the agreement identified Thomas as an authorized driver.

       Wier then interviewed Stevens separately. According to Wier, she provided a

different account about why the three of them were together. Wier testified that Stevens

told him that the three of them drove from New Jersey to Houston to bring clothes to

Thomas’s brother, who was in college. Wier also interviewed Thomas separately, and

Thomas gave Wier yet another account about why the three of them were together.

Thomas told Wier that they were in Texas visiting his uncle.

       A recording of the stop was admitted into evidence. The recording shows that

Wier questioned each of the occupants of the car separately, and the recording is

generally consistent with Wier’s testimony.

       After interviewing the occupants, Wier asked whether he could search the car.

When Wier was not given consent to search the car, Wier requested that the police send a

drug dog to assist in the investigation. Approximately thirty minutes later, the dog and a

K9 officer arrived; after the K9 officer told Wier that the dog had alerted to the car, Wier

opened the car’s trunk. According to Wier, upon opening the trunk, he smelled a “slight

odor” of marijuana and saw “duct tape and cellophane wrapped packages, blocks, that

[he] believed” to be marijuana. In addition to the 150 plus pounds of marijuana found in

the trunk of the car, Wier discovered a roll of duct tape, a box of trash bags, Clorox


                                                6
wipes, and a spray deodorizer. Based on his training and experience, Wier explained that

“subjects will often use duct tape to wrap the packages of narcotics to hold it, Clorox

wipes to wipe down the packaging of fingerprints/attempt to get odor off the packaging,

and [the spray deodorizer] to spray to try to prevent us from detecting it.” On cross-

examination, Wier explained that no one admitted having placed the contraband in the

car’s trunk. Wier acknowledged that none of the passengers, including Coleman,

appeared intoxicated.

       Sergeant Molfino also testified at the trial. She described the wipes, tape, bags,

and deodorizer as “[m]asking materials.” She felt that Coleman seemed unusually

nervous. Molfino added that she thought it was “[e]xtremely” odd that Coleman had

driven from New Jersey to Texas in what she estimated to be a straight, non-stop, twenty-

five hour drive.

       Officer Daniel Valdez, the K9 officer who brought the drug sniffing dog to the

stop, testified during the trial. He confirmed that the dog alerted when it sniffed the car.

According to Valdez, he could smell marijuana when the trunk was opened but not when

it was closed.

       Thomas, who had been travelling in the backseat before the stop, was the sole

witness who testified for Coleman during trial. According to Thomas, all of the marijuana

in the trunk of the car belonged to him. Thomas also testified that he pled guilty and

received a seven-year sentence for possessing the marijuana found in the car’s trunk.


                                                7
According to Thomas, he came to Houston for the purpose of purchasing marijuana.

Thomas said that he knew Coleman because their girlfriends were close friends.

Thomas’s girlfriend rented the car in New Jersey, listing Thomas as an authorized driver.

According to Thomas, Coleman wanted to go to Houston to see a girl Coleman knew.

Thomas testified that he asked Stevens to come on the trip to help drive, and he knew she

had never been to Texas. After arriving in Houston, they checked into a motel. Thomas

then left Coleman and Stevens at the motel, and he went to another location

approximately twenty minutes away, where he purchased the marijuana at issue. After

purchasing the marijuana, Thomas testified that he concealed it in the trunk, and that

neither Coleman nor Stevens knew about it. According to Thomas, Coleman did not

know that Thomas intended to purchase marijuana while in Houston, why Thomas left

the motel, or that there were drugs in the car.

       On cross-examination, Thomas admitted that he had a number of other drug-

related convictions. Although Thomas testified that he was taking medication for an arm

injury that interfered with his driving, he stated that he wrapped and packaged the

marijuana alone. Additionally, Thomas acknowledged that Stevens also pled guilty to

possessing the marijuana in the car; however, he asserted that she did so because the State

scared her into pleading guilty.

       On appeal, Coleman claims that there was “absolutely nothing to affirmatively

connect” him to the marijuana. With respect to Coleman’s arguments, and because the


                                                  8
jury found against him at trial, we view the evidence in the light most favorable to the

verdict. See Jackson, 443 U.S at 319. In that light, the jury could have chosen to reject

Thomas’s testimony, and it could conclude that Thomas, who had already pled guilty to

possession, was trying to prevent his friend from also being convicted of possession. See

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We conclude that the jury

was not required to accept Thomas’s claim that he solely possessed the drugs.

       Affirmative links also tie Coleman to the drugs. He was driving the car, and it is

undisputed that marijuana was found in the car’s trunk. The jury could have believed that

because of Thomas’s arm injury, the circumstances made it unlikely that he could wrap

and load the marijuana by himself. Notably, each of the occupants of the car gave

conflicting stories, a circumstance tending to indicate all of the stories were fabricated to

cover up the true reason they were travelling together. Additionally, the fact that

Coleman claimed he came to Houston to pick up Thomas, but Thomas indicated in his

testimony that the three of them drove to Texas from New Jersey, allowed the jury to

conclude that Coleman lied to police about his true purpose for going to Houston.

Instead, the jury could reasonably infer that all of the occupants in the car knew that the

purpose of the trip was to purchase marijuana in Houston.

       The logical force of the evidence linking Coleman to the marijuana found in the

car’s trunk makes his connection to the marijuana more than fortuitous. See Evans, 202

S.W.3d at 161; Hubert, 312 S.W.3d at 691. Having reviewed all the evidence, we


                                                 9
conclude that a rational trier of fact could have found beyond a reasonable doubt that

Coleman was guilty of possession. See Jackson, 443 U.S at 319. These same affirmative

links are sufficient to support the trial court’s decision denying Coleman’s request for an

instructed verdict. See Williams, 937 S.W.2d at 482. Accordingly, we overrule Coleman’s

issues, and we affirm the trial court’s judgment.

       AFFIRMED.




                                                       ___________________________
                                                              HOLLIS HORTON
                                                                    Justice

Submitted on June 27, 2012
Opinion Delivered December 19, 2012
Do Not Publish

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




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