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


                  No. 06-13-00152-CR



       JACORY DEWAYNE BUSSEY, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 145th District Court
             Nacogdoches County, Texas
              Trial Court No. F1219308




       Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Moseley
                         MEMORANDUM OPINION
        Based on a tip from a confidential informant, authorities obtained a “no knock” warrant

to search a Nacogdoches County1 residence rented by Melanie Arnold, the mother of Jacory

Dewayne Bussey’s two young children. Bussey was inside the residence when police officers

discovered marihuana and cocaine scattered throughout the house. At trial, Bussey admitted that

the marihuana was his, but disclaimed ownership of the cocaine. A jury convicted Bussey of

possessing both cocaine (in an amount of four grams or more but less than 200 grams) and

marihuana (in an amount of five pounds or less but more than four ounces). Pursuant to the

jury’s finding of “true” on the State’s enhancement allegations, Bussey (1) was sentenced to

eighteen years’ imprisonment and ordered to pay a $5,000.00 fine for the possession of cocaine

and (2) was sentenced to two years’ confinement in a state jail facility for the possession of

marihuana.

        On appeal, Bussey argues that the evidence is legally insufficient to support the jury’s

verdict that he possessed cocaine because (1) the drugs were not located at his residence, (2) his

fingerprints were not found on the packaging enclosing the drugs, and (3) he denied possessing

the cocaine. Bussey also argues that the trial court erred in refusing to require the State to

disclose the name of the confidential informant who provided information leading to his arrest.

We find that the evidence was legally sufficient to sustain Bussey’s conviction of possession of



1
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.


                                                        2
cocaine and that Bussey failed to preserve his point of error relating to disclosure of the

confidential informant’s identity. Consequently, we affirm the trial court’s judgments.

I.      The Evidence Was Legally Sufficient to Support Bussey’s Conviction of Possession
        of Cocaine

        Bussey concedes that there was legally sufficient evidence to support the conviction for

possession of marihuana. In evaluating legal sufficiency to determine whether any rational jury

could have found possession of cocaine beyond a reasonable doubt, we will review all the

evidence in the light most favorable to the jury’s verdict. 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) (citing Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Our rigorous legal sufficiency review focuses on

the quality of the evidence presented. Brooks, 323 S.W.3d at 917–18 (Cochran, J, concurring).

We examine legal 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).

        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 “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.
                                                3
            Looking at the elements of the offense with which he was charged, it was the duty of the

State to prove that (1) Bussey (2) intentionally or knowingly (3) possessed cocaine (4) in an

amount of four grams or more but less than 200 grams. See TEX. HEALTH & SAFETY CODE ANN.

§§ 481.102(3)(D), 481.115(d) (West 2010). “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); see Evans v. State, 202 S.W.3d 158, 161

(Tex. Crim. App. 2006); see also TEX. PENAL CODE ANN. § 1.07(a)(39) (West Supp. 2013).

Here, Bussey claims only that the State was unable to prove that the cocaine belonged to him.

            Sean Murray, a Nacogdoches deputy constable, testified that a confidential informant

participated in a controlled buy and reported that he purchased methamphetamine from Bussey at

the residence rented by Arnold. 2 Based on the confidential informant’s statement, Officer Rusty

Allen authored an affidavit to support his application for a “no knock” search warrant. The

search warrant was issued after a magistrate’s determination that probable cause supported the

search.

            Murray, Allen, Nacogdoches County Sheriff Jason Bridges, and Stephen Godfrey, a chief

deputy with the Nacogdoches County Sheriff’s Office, were among the officers who participated

in executing the “no knock” search warrant. Godfrey testified that upon entering the residence,

he witnessed evidence of heavy drug use. According to Godfrey, ash trays containing marihuana

cigar butts were strewn about, and the house smelled strongly of marihuana.


2
    There was video recorded surveillance of the controlled buy, but the recording was not introduced at trial.
                                                             4
        After entry, the officers’ first objective was to secure the residence. Bridges and Murray

found Bussey, Arnold, and their two small children asleep in the master bedroom of the house.

Bridges restrained Bussey and Arnold while other officers searched the house. Bussey, who

testified in his own defense, stated, “I told [an officer] that I had a pound of marihuana in the

bedroom, the top drawer on the right.” Following Bussey’s directions, Murray found this

marihuana in a nightstand drawer. Murray also found another bag of marihuana on top of the

master bedroom dresser and recovered a gun that was hidden under the mattress where Bussey

had been sleeping.

        Allen and Godfrey searched the kitchen. Godfrey located marihuana concealed in a

cookie tin and found a large quantity of crack cocaine and powder cocaine inside a Girl Scout

cookie box. Allen discovered crack cocaine in a drawer under the microwave. Marihuana cigars

and a cigar box of marihuana “shake,” which consisted of seeds and loose marihuana, was also

found in the living room.       Allen also searched the children’s room and found ten small

marihuana plants growing in the children’s closet. Another weapon was also retrieved from the

residence. Bussey and Arnold were arrested, and officers found methamphetamine on Arnold’s

person after searching her at the jail.

        At trial, Bussey admitted that he smoked marihuana all day every day, that he routinely

purchased marihuana for his own consumption, and that he knew the various stashes of

marihuana throughout the residence.       The officers’ trial testimony, bolstered by Bussey’s

admissions, was sufficient to prove that the plant substance recovered in the search was

marihuana. See Curtis v. State, 548 S.W.2d 57, 59 (Tex. Crim. App. 1977). Karen Collins, a

                                                5
forensic drug chemist for the Texas Department of Public Safety Crime Laboratory in Tyler,

Texas, testified that she weighed ten plastic bags containing plant material and determined that

the gross weight of the material and the bags together was 1.40 pounds. Collins weighed three

more bags containing plant material, which yielded a gross weight of 454.58 grams. Collins also

tested the white powdery and crystalline substances retrieved from the residence and confirmed

that they were cocaine and crack cocaine. In total, the cocaine substances weighed 9.62 grams.

       Bussey researched the law and learned that given the amounts alleged in the State’s

indictments, the possession of cocaine charge carried a significantly higher range of punishment

than the possession of marihuana charge. Although Bussey admitted at trial that the marihuana

was his, he disclaimed ownership of any cocaine. Bussey explained that his mother lived close

by, that he lived with his mother “off and on,” and that the cocaine could belong to someone

else. Bussey’s mother, Debra Ann Mosley, confirmed that Bussey lived with her on occasion.

       Bussey argues that there is no evidence that he possessed the cocaine because (1) the

cocaine could have been Arnold’s since (a) the home was rented by her, and (b) he did not live

exclusively at the residence, (2) no cocaine was found on his person, (3) his fingerprints were not

found on the cocaine packages (no fingerprint testing was conducted), and (4) he testified that

the cocaine was not his.

       Possession may be established by proving either actual or constructive possession.

McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985).               Further, it is well

established that an accused may jointly possess contraband with another and that possession need

not be exclusive.    Id.   However, mere presence at the location where drugs are found is

                                                6
insufficient, by itself, to establish actual care, custody, or control of those drugs. Evans, 202

S.W.3d at 162.      Presence or proximity to drugs when combined with other direct or

circumstantial evidence, on the other hand, may be sufficient to establish control, management,

custody, or care provided the proof amounts to more than a strong suspicion. Id.

       Unless the accused had exclusive possession of the place where the controlled substance

was found, the State must present “additional independent facts and circumstances which

affirmatively link the accused to the contraband” in order to prove possession beyond a

reasonable doubt. Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981);

see Jones v. State, 963 S.W.2d 826, 830 (Tex. App.—Texarkana 1998, pet. ref’d).             “The

‘affirmative links rule’ is designed to protect the innocent bystander from conviction based

solely upon his fortuitous proximity to someone else’s drugs.” Poindexter, 153 S.W.3d at 406.

       A nonexclusive list of affirmative links that can be sufficient, either singly or in

combination, to establish possession of contraband includes: (1) presence when a search is

conducted, (2) whether the contraband was in plain view, (3) proximity to and the accessibility

of the contraband, (4) being under the influence of narcotics when arrested, (5) possession of

other contraband or narcotics when arrested, (6) making incriminating statements when arrested,

(7) attempting to flee, (8) the making of furtive gestures, (9) the presence of an odor of

contraband, (10) the presence of other contraband or drug paraphernalia, (11) the ownership of or

the right to possess the place where the drugs were found, (12) whether the place where the drugs

were found was enclosed, (13) possession of a large amount of cash, (14) conduct indicating a

consciousness of guilt, (15) the quantity of the contraband, and (16) the accused’s presence in a

                                               7
suspicious area under suspicious circumstances. Evans, 202 S.W.3d at 162 n.12; Hargrove v.

State, 211 S.W.3d 379, 385–86 (Tex. App.—San Antonio 2006, pet. ref’d); Muckleroy v. State,

206 S.W.3d 746, 748 n.4 (Tex. App.—Texarkana 2006, pet. ref’d); Olivarez v. State, 171 S.W.3d

283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.); Kyte v. State, 944 S.W.2d 29, 31

(Tex. App.—Texarkana 1997, no pet.); see Jones, 963 S.W.2d at 830.

       When the search in this case was conducted, Bussey was present in the enclosed

residence where drugs had recently been purchased by a confidential informant. Marihuana, not

cocaine, was found in plain view. However, because Bussey testified that he often stayed with

Arnold, the mother of his children, the cocaine was accessible to him. Yet, Bussey’s testimony

demonstrated his accessibility to the cocaine. According to Bussey, he told officers that he had

“an ounce and a half of what they referred to as cush [marihuana] in the kitchen drawer up under

the microwave.” No marihuana was found in this drawer. Instead, this drawer contained a bag

of cocaine. While there was no testimony that Bussey was under the influence of narcotics when

he was arrested, Bussey testified that he smoked marihuana all day every day. Large quantities

of marihuana and cocaine, along with weapons, and multiple plastic bags were found throughout

the house. Bussey told officers where to find marihuana and further incriminated himself when

he mistakenly directed them to the kitchen drawer containing cocaine. Given that the “no

knock” search warrant was executed while Bussey was sleeping, there was no opportunity for

him to flee or make furtive gestures.

       The number of links is not dispositive; rather, we look to the “logical force of all of the

evidence, direct and circumstantial.” Evans, 202 S.W.3d at 162; see Taylor v. State, 106 S.W.3d

                                                8
827, 831 (Tex. App.—Dallas 2003, no pet.) (holding that number of links is less important than

degree to which links tend to connect defendant to controlled substance). We find that the

evidence established a number of affirmative links between Bussey and the cocaine recovered

during the search. More importantly, we find that the logical force of these links, taken together,

has a very strong tendency to connect Bussey to the cocaine.

        Bussey’s denial of the ownership of the cocaine required a resolution of conflicting

evidence, as well as an evaluation of witness credibility and the weight to be given to their

testimony. These are functions left to the jury’s sole discretion. See Cain v. State, 958 S.W.2d

404, 408–09 (Tex. Crim. App. 1997). While the record may demonstrate that Bussey disclaimed

ownership of the cocaine, the jury was free to discount Bussey’s testimony, especially since his

own testimony indicated that he inadvertantly directed officers to the location of a bag containing

cocaine. Thus, the logical force of the evidence supports an inference of conscious possession of

cocaine.

        We find that there is ample evidence to support the jury’s finding that Bussey knowingly

possessed cocaine in the amount alleged in the State’s indictment. Accordingly, we find the

evidence legally sufficient to support Bussey’s conviction of possession of cocaine. We overrule

his first point of error.

II.     Bussey Did Not Preserve his Argument that Rule 508(c)(2) Required Disclosure of
        the Confidential Informant’s Identity

        We review a trial court’s denial of a request for disclosure of a confidential informant’s

identity for abuse of discretion. Ford v. State, 179 S.W.3d 203, 210 (Tex. App.—Houston [14th

Dist.] 2005, pet. ref’d). We affirm the ruling unless the trial court’s decision was so clearly
                                                9
wrong as to lie outside the zone of reasonable disagreement. Taylor v. State, 268 S.W.3d 571,

579 (Tex. Crim. App. 2008); see Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1990) (op. on reh’g). We may not substitute our judgment for that of the trial court; rather, we

must decide whether the trial court acted arbitrarily or unreasonably without reference to any

guiding rules or principles. Id. at 380.

         Under the Texas Rules of Evidence, the State has a “privilege to refuse to disclose the

identity of a person who has furnished information relating to or assisting in an investigation of a

possible violation of a law to a law enforcement officer . . . .” TEX. R. EVID. 508(a). However,

there are exceptions to that privilege. Under Rule 508(c)(2), disclosure may be required “[i]f it

appears from the evidence in the case or from other showing by a party that an informer may be

able to give testimony . . . on guilt or innocence in a criminal case . . . .” 3 TEX. R. EVID.

508(c)(2). Under Rule 508(c)(3), disclosure may be required “[i]f information from an informer

is relied upon to establish the legality of the means by which evidence was obtained and the

court is not satisfied that the information was received from an informer reasonably believed to

be reliable or credible . . . .” TEX. R. EVID. 508(c)(3).




3
 “If it appears . . . the informer may be able to give . . . relevant testimony [as to guilt or innocence], an in camera
hearing is required where the State has the opportunity to show that the testimony is not necessary to a fair
determination of the issues of guilt and innocence.” Murray v. State, 864 S.W.2d 111, 118 (Tex. App.—Texarkana
1993, pet. ref’d). In making this determination, courts consider whether the informant participated in the offense,
was present at the time of the offense or arrest, or was otherwise shown to be a material witness either to the
transaction or to whether the defendant knowingly committed the offense charged. Id.

                                                          10
         During Bridges’ cross-examination, Bussey asked him to identify the confidential

informant who provided information leading to the execution of the search warrant. 4 The State

objected to the question, prompting the trial court to dismiss the jury and conduct a hearing on

the matter. At this hearing, Bussey argued,

         Your Honor, it’s our belief that this does fall under 508(C)(3), that the
         information from the informer is relied upon to establish the legality of the means
         by which the evidence was obtained. And, there has been no -- and, I understand,
         that there’s a determination by the magistrate that the witness was credible, but
         there seems to be only just boiler plate allegations, or recitations, that the
         confidential informant was of a known reliability. There is just summary and
         conclusory statements that the affiant believes the C.I. to be reliable, nor is there
         any indication that the C.I. has proven to be reliable in providing information with
         other cases.
                 This goes to the heart of the defense’s case in chief in terms of the legality
         of the search. And, also, the, there is a discrepancy between the evidence that was
         alluded to in the warrant to gain justification to enter into the house versus the
         evidence that was recovered, and is evidenced by the search warrant inventory
         return. And, so, for that reason, I think that it is necessary and material that the
         informer’s identity be disclosed at this time.

After Bussey confirmed that he had no additional grounds to advance in support of his claim of

entitlement to the confidential informant’s identity, the trial court denied Bussey’s request,

stating, “I don’t think that it meets the requisites under . . . 508(c)(3).”

         On appeal, Bussey does not argue that the trial court’s ruling under Rule 508(c)(3) was

improper. 5 Instead, Bussey now contends that the trial court should have required disclosure


4
 Bussey did not challenge the issuance of the search warrant itself and did not seek to suppress evidence obtained as
a result of its execution.
5
 “Rule 508(c)(3) requires an in camera hearing where information from an informant is used to establish probable
cause, and the judge is not satisfied that the informant was reasonably believed to be reliable or credible.” Murray,
864 S.W.2d at 118. The issue is not whether the parties or the trial court might now believe or disbelieve the
informant or whether the informant, in hindsight, proved himself unreliable or mistaken as to certain facts. See
Ashorn v. State, 802 S.W.2d 888, 892 (Tex. App.—Fort Worth 1991, no pet.); Thompson v. State, 741 S.W.2d 229,
                                                        11
under the Rule 508(c)(2) exception. The record demonstrates that Rule 508(c)(2)’s exception

was not the ground which was argued at trial. 6 It is well established that an issue raised on

appeal must be the same issue raised by motion or objection asserted at trial. TEX. R. APP. P.

33.1(a); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999) (holding nothing preserved

for review if issue on appeal does not comport with objection at trial). The objection must “‘let

the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly

enough for the judge to understand him at a time when the trial court is in a proper position to do

something about it.’” Thomas v. State, 408 S.W.3d 877, 884 (Tex. Crim. App. 2013) (quoting

Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). Bussey raised no argument

below regarding the confidential informant’s ability to provide testimony relevant to the

determination of his guilt/innocence. 7 Therefore, Bussey’s second point of error on appeal,

based on an argument which the trial court did not have the opportunity to review, was not

preserved.




231 (Tex. App.—Fort Worth 1987), pet. ref’d, 763 S.W.2d 403 (Tex. Crim. App. 1989). Rather, the issue is
whether the trial court was satisfied that the informant was reasonably believed to be reliable or credible when the
application for the search warrant was made. See Ashorn, 802 S.W.2d at 892; Thompson, 741 S.W.2d at 231.
6
 Although a motion for new trial was filed, it raised no complaint relating to disclosure of the confidential
informant’s identity.
7
 Moreover, if the informant’s information is used only to establish probable cause for a search warrant and the
informant was neither a participant in the offense for which the accused was charged, nor present when the search
warrant was executed, the identity of the informant need not be disclosed because the testimony is not essential to a
fair determination of guilt/innocence. Ford v. State, 179 S.W.3d 203, 210 (Tex. App.—Houston [14th Dist.] 2005,
pet. ref’d).
                                                        12
III.   Conclusion

       We affirm the trial court’s judgment.




                                               Bailey C. Moseley
                                               Justice
Date Submitted:       February 25, 2014
Date Decided:         April 9, 2014

Do Not Publish




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