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


                  No. 06-13-00022-CR



            TOMMY THOMPSON, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 3rd District Court
               Anderson County, Texas
                Trial Court No. 30837




       Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                     MEMORANDUM OPINION
           Conducting a consensual search of Tommy Thompson’s wife’s automobile in the parking

lot of the Texas Department of Criminal Justice (TDCJ) Beto prison facility in Anderson

County, 1 officers found a package of marihuana wrapped in black electrical tape, secreted in the

wheel well beneath the floor of the trunk. Thompson, Orelia Collins, and Collins’ young son had

traveled together in the automobile from Houston to the Beto Unit to visit, respectively,

Thompson’s son and Collins’ boyfriend, who were cellmates. 2 Thompson and Collins had

entered the prison together. Thompson had successfully cleared security to get into the visiting

area and had been physically separated from Collins, when guards found hidden in Collins’

“crotch area” and under her clothing two packages of contraband, also wrapped in black

electrical tape. 3 The discovery of contraband on Collins’ person prompted officers to get the

consent to search the Thompson automobile.

           As a result of the discovery of marihuana in the vehicle, Thompson stands convicted by a

jury of having a prohibited item in a correctional facility 4 and sentenced to nine years’

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
 Although there is some uncertainty about the relationship—Thompson is either father or uncle to the person he
intended to visit—Thompson was visiting his relative Antonio Shrepee. Collins intended to visit James Mask, her
purported boyfriend and Shrepee’s cellmate. Thompson visited the unit regularly to see Shrepee, was always
courteous, and never caused any problems.
3
 Collins was wearing two sets of clothing, consisting of a long skirt with pants underneath. The contraband found
on Collins consisted of twelve small vials of liquid, identified as PCP, and a separate, larger package containing
marihuana.
4
    See TEX. PENAL CODE ANN. § 38.11 (West 2011).


                                                        2
incarceration. On appeal, Thompson contends that the evidence is insufficient to link him to the

marihuana in the vehicle. Because sufficient evidence supports Thompson’s conviction, we

affirm the judgment of the trial court.

       In evaluating legal sufficiency, we review all the evidence in the light most favorable to

the trial court’s judgment to determine whether any rational jury could have found beyond a

reasonable doubt the essential elements of having a prohibited item in a correctional facility.

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). 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); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007). 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.

       The indictment charged Thompson with possession of a “controlled substance, namely,

marijuana, while on property owned or used or controlled by the Texas Department of Criminal

Justice Beto Unit, a correctional facility, to wit: parking area at Beto Unit.” Our law provides

                                                  3
that a person commits an offense if the person “possesses a controlled substance or dangerous

drug while in a correctional facility or on property owned, used, or controlled by a correctional

facility.” TEX. PENAL CODE ANN. § 38.11(d)(1). A person possesses an object if he or she has

actual care, custody, control, or management of that object.            TEX. PENAL CODE ANN.

§ 1.07(a)(39) (West Supp. 2013); Woodard v. State, 355 S.W.3d 102, 107 (Tex. App.—Houston

[1st Dist.] 2011, no pet.). “Possession is a voluntary act if the possessor knowingly obtains or

receives the thing possessed or is aware of his control of the thing for a sufficient time to permit

him to terminate his control.” TEX. PENAL CODE ANN. § 6.01(b) (West 2011).

       “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). The State may accomplish its task of proving “possession,” where possession

is an element of the charged offense, by demonstrating the defendant’s consciousness of his or

her connection with the thing allegedly possessed and that the defendant knew what it was.

Hawkins v. State, 89 S.W.3d 674, 677 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d); see,

e.g., Poindexter, 153 S.W.3d at 405.

       Here, Thompson contends he did not knowingly possess the controlled substance found

in the spare tire well of the vehicle under his control, claiming the package in question must have

belonged to Collins. Where, as here, the controlled substance is not in the exclusive control of

the defendant at the time when and in the place where it is found, the State must make a showing

of links between the accused and the controlled substance. Evans v. State, 202 S.W.3d 158, 161–

                                                 4
62 (Tex. Crim. App. 2006); Muckleroy v. State, 206 S.W.3d 746, 748 (Tex. App.—Texarkana

2006, pet. ref’d).   The links must establish, “to the requisite level of confidence, that the

accused’s connection with the drug was more than just fortuitous.” Brown v. State, 911 S.W.2d

744, 747 (Tex. Crim. App. 1995). A defendant’s mere presence at the location where drugs are

found is insufficient, by itself, to establish care, custody, or control of the drugs. Evans, 202

S.W.3d at 162.       However, presence or proximity, when combined with other direct or

circumstantial evidence, may be sufficient to establish control, management, custody, or care

beyond a reasonable doubt if the proof amounts to more than a strong suspicion or probability.

Id.; Lassaint v. State, 79 S.W.3d 736, 741 (Tex. App.—Corpus Christi 2002, no pet.).

       Various factors have been recognized as contributing to an evaluation of whether an

accused is linked to the contraband. A nonexclusive list of links that may circumstantially

establish the sufficiency of the evidence to prove that a defendant had knowing possession of

contraband include the following: (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 contraband, (4) whether the defendant possessed other contraband when

arrested, (5) whether the defendant made incriminating statements when arrested, (6) whether the

defendant attempted to flee, (7) whether the defendant made furtive gestures, (8) whether other

contraband was present, (9) whether the defendant owned or had the right to possess the place

where the contraband was found, (10) whether the place where the contraband was found was

enclosed, (11) whether the defendant was found with a large amount of cash, (12) whether his or

her conduct indicated a consciousness of guilt, (13) the quantity of the contraband, and

                                               5
(14) whether he or she was observed in a suspicious area under suspicious circumstances.

Evans, 202 S.W.3d at 162 n.12; Muckleroy, 206 S.W.3d at 748 n.4. 5

         Shortly after the discovery of the marihuana in the vehicle, Thompson was interviewed

by Larry Mars, an investigator for the Office of Inspector General. In his interview with Mars,

Thompson indicated that he drove to the prison in his wife’s car to visit Shrepee. 6 Thompson

brought Collins and her son along so Collins could visit her boyfriend. Along the way, the trio

stopped at a gas station, where Collins bought a hot dog for her son. Thompson stated that he

told Collins, “[Y]ou can’t take that, you know, on the inside of the prison, but your ID is all you

need . . . .” According to Thompson’s statement to Mars, Collins then told him (Thompson) that

she was going to put her jacket and her purse in the trunk. Collins’ purse was later located in the

front seat of Thompson’s car. A piece of woman’s clothing (possibly a jacket) was located in the

car’s trunk, although it was never identified as belonging to Collins. Collins reportedly had her

jacket with her inside the prison.

         Thompson volunteered to Mars that he knew officers had discovered contraband on

Collins’ person, packaged in “a black thing like that.” Thompson also claimed that he “did not

know she had that on . . . the privates or whatever it was.” 7

5
 This has been termed the “affirmative links” rule. Evans, 202 S.W.3d at 161. This rule “is not an independent test
of legal sufficiency.” Id. at 161 n.9. Rather, the term is used “merely as a shorthand catch-phrase for a large variety
of circumstantial evidence that may establish the knowing ‘possession’ or ‘control, management, or care’ of some
item such as contraband.” Id.
6
 Shrepee has known Collins for many years, as the two grew up together in the same apartment complex on Coke
Street in Houston.
7
 Mars’ interview with Thompson was audio recorded, after which Thompson was afforded the opportunity to
provide a written statement. In his written statement, Thompson indicated that he gave Collins a ride to the prison to
visit her boyfriend. He stated that he did not know that she “had weed on her.”
                                                          6
          Mars testified that, because Thompson and Collins were separated before Collins was

searched, Thompson must have known that Collins had contraband hidden in a private area

before Collins’ entrance into the prison.    The same was true of the manner in which the

contraband was wrapped. Thompson described the contraband found on Collins as “a black

thing like that.” The contraband found in the trunk of Thompson’s vehicle was also wrapped in

black electrical tape. Mars’ only explanation for Thompson’s description of the contraband as “a

black thing” was that he must have known how it was packaged before Collins entered the

prison.     Mars conceded, however, that someone could have told Thompson that Collins

concealed the contraband in her clothing.

          Here, Thompson was in possession of the car where the contraband was located—

ostensibly with his wife’s permission—and, as the driver, was in possession of the keys.

Thompson was present when the canine search revealed marihuana hidden in the spare tire well

under the floor of the car’s trunk. See Hudson v. State, 128 S.W.3d 367, 374 (Tex. App.—

Texarkana 2004, no pet.) (finding trunk of car an enclosed space). Thompson’s possession of the

car, his presence when the search was conducted, and the location of the marihuana in an

enclosed space, helps to establish the requisite affirmative links between Thompson and the

marihuana.

          While there was no additional contraband found in Thompson’s vehicle, Collins was

caught while attempting to smuggle contraband into the prison visitation area. The contraband

found on Collins was wrapped with black electrical tape, as was the contraband located in

Thompson’s vehicle. Thompson’s apparent prior knowledge of the appearance and location of

                                               7
the contraband found on Collins’ person also links him to the contraband located in his vehicle.

Directly after the search of Thompson’s vehicle, Thompson was interviewed by Mars. Although

Thompson and Collins were separated before Collins removed the hidden contraband from her

clothing, Thompson was able to describe where the contraband was hidden (“on . . . the

privates”) and its basic appearance (“a black thing”). There was no evidence that Thompson was

ever told, after the contraband was discovered on Collins but before he spoke with Mars, how the

contraband found on Collins was packaged and where it was located.

       The logical force of the evidence linking Thompson to the marihuana found in the spare

tire well located in the car’s trunk makes his connection to the contraband more than fortuitous.

Viewing the evidence in the light most favorable to the verdict, we hold that the jury could have

rationally found, beyond a reasonable doubt, that Thompson knowingly possessed marihuana on

property owned, used, or controlled by the TDCJ. Therefore, we find the evidence legally

sufficient to support his conviction.

       We affirm the judgment of the trial court.




                                            Josh R. Morriss, III
                                            Chief Justice

Date Submitted:        January 28, 2014
Date Decided:          February 27, 2014

Do Not Publish




                                                8
