      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-05-00443-CR



                                    Brian Thompson, Appellant

                                                   v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
         NO. 2030759, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Brian Thompson appeals his conviction for possession of four grams or more but less

than 200 grams of cocaine.           See Tex. Health & Safety Code Ann. § 481.102(3)(D)

(West Supp. 2006), § 481.115(d) (West 2003). After the jury found appellant guilty, the trial court

assessed punishment at three years’ confinement. In three points of error, appellant contends the

evidence is legally and factually insufficient to support his conviction. Because we find the evidence

to be sufficient, we affirm the judgment of conviction.


                                          BACKGROUND

                The facts at trial showed that on February 23, 2003, at approximately 11:00 p.m.,

Austin Police Officer Ewa Wegner was on patrol duty when she stopped a car in which appellant was

a passenger because the car ran a red light. Wegner had observed the vehicle for several minutes

prior to the traffic stop because it would stop abruptly at red lights and then take off at a “very high
rate of speed” when the light turned green. As she followed the car, it pulled into a convenience

store parking lot and started to turn around. She noticed that it did not have a front license plate.

As she pulled in behind the vehicle to view its rear license plate, the car ran a red light, and she

pulled it over. She observed a female driving the car and two male passengers, one in the front

passenger seat and the other in the back seat.

               As appellant, the passenger in the front seat, started to get out of the car, Wegner

instructed him to stay in the vehicle. Wegner observed that the female driver and appellant were

engaged in a heated argument. After notifying her dispatcher of the stop, Wegner asked the female

driver for her driver’s license. She did not produce it immediately, and Wegner observed that she

was very angry. She told Wegner that she was having a fight with appellant, her boyfriend, and that

she just wanted to go home.

               As back-up officers Julian Guzman and Lee Rogers arrived on the scene and assisted

Wegner in separating the parties, Wegner conducted a weapons frisk of appellant and continued to

speak with the female driver. Wegner eventually issued a citation to the driver for running the red

light. Meanwhile, Guzman allowed appellant to sit in the back seat of his patrol car because

appellant complained of a medical condition and the weather was cold. After the issuance of the

citation, Wegner arranged for a taxicab because she could smell alcohol on the driver and they

acknowledged they had come from a bar. Appellant got out of the back seat of the patrol car to leave

with the others.

               Moments later—a few minutes according to Rogers and a few seconds according to

Guzman—in accordance with department policy, Guzman conducted a search of the back of his car



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and “found a clear plastic baggie filled with white powder” under the back seat where appellant had

been seated. Guzman testified that it is standard procedure to check the back seat at the beginning

of each shift and each time an individual is arrested or transported in the patrol car. He described

how he had begun his shift that evening at 8:30 p.m., had searched the back seat of the vehicle by

detaching the back seat and searching underneath, and had determined that nothing had been left in

the car. He testified that he had not arrested or transported anyone before allowing appellant to sit

in the vehicle. Guzman testified that the seat detaches from its base and that a routine inspection is

completed at the beginning of each shift and following each use. Guzman’s offense report from the

night in question also notes that he had performed the required search before “going into service.”

Wegner weighed and performed a field test on the white substance contained in the bag found in

Guzman’s car, and placed appellant under arrest. A chemist later determined and testified at trial

that the substance consisted of 13.23 grams of powdered cocaine. No fingerprint test was conducted

on the bag of cocaine.

               At trial, appellant called one witness, the driver of the vehicle, who testified on

appellant’s behalf. She testified that the other passenger was her brother, that she and her brother

had been drinking alcoholic beverages, and that she was intoxicated on the evening in question but

that the officer did not investigate any alcohol offenses. She expressed surprise that she was not

investigated or arrested for driving while intoxicated. She also testified that, although she was

intoxicated, she thought appellant got in and out of Guzman’s vehicle more than one time that night.

               A jury found appellant guilty of intentionally and knowingly possessing cocaine.




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                                           DISCUSSION

               A person commits an offense if the person knowingly or intentionally possesses

cocaine. Tex. Health & Safety Code Ann. §§ 481.102, .115. To establish the unlawful possession

of a controlled substance, the State must prove that the accused exercised actual care, control, or

custody over the substance, and was conscious of his connection with it and knew what it was. Id.

§ 481.002(38) (West Supp. 2006); Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).

These elements may be established by either direct or circumstantial evidence. Brown, 911 S.W.2d

at 747.

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

drugs are found, the State must affirmatively link the defendant with the drugs. Id. at 747-48.

Evidence that affirmatively links the accused to the contraband suffices for proof that he possessed

it knowingly. Id. at 747. This evidence can be either direct or circumstantial. Id. In either case, the

evidence must establish that the accused’s connection with the drugs was more than just fortuitous.

Id. However, the evidence need not be so strong that it excludes every other outstanding reasonable

hypothesis except the defendant’s guilt. Id. at 748.

               Affirmative links are established by a totality of circumstances. They may include:

(1) the defendant’s presence when the contraband was discovered; (2) whether the contraband was

in plain view; (3) the defendant’s proximity to the narcotic, particularly if the defendant had been

sitting where the drugs were located; (4) whether the defendant was under the influence of narcotics

when arrested; (5) whether the defendant possessed other contraband when arrested; (6) whether the

defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee;



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(8) whether the defendant made furtive gestures; (9) whether there was an odor from the contraband;

(10) whether other contraband or drug paraphernalia were present; (11) whether the place where the

drugs were found was enclosed; and (12) whether the defendant owned or had the right to possess

the place where the drugs were found. See, e.g., Evans v. State, No. PD-1911-05, 2006 Tex. Crim.

App. 1815, at *7 n.12 (Tex. Crim. App. Sept. 20, 2006); Whitworth v. State, 808 S.W.2d 566, 569

(Tex. App.—Austin 1991, pet. ref’d). There is no set formula of facts necessary to support an

inference of knowing possession. The number of affirmative links present is not as important as the

logical force they have in establishing the offense. Evans, 2006 Tex. Crim. App. 1815, at *7.

               In his first point of error, appellant contends that the evidence is legally insufficient

as to the element of possession. In reviewing the legal sufficiency of the evidence to support a

conviction, we view all the evidence in the light most favorable to the verdict to determine whether

any rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Drichas v. State, 175 S.W.3d 795, 798

(Tex. Crim. App. 2005).

               Here, the testimony of Officers Wegner, Guzman, and Rogers affirmatively linked

appellant to the cocaine, satisfying the possession element. Guzman explained that before going on

duty, officers are required to perform a routine search of their patrol cars. In particular, they search

the detachable back seats of their cars to make sure there is no contraband or misplaced items.

Guzman testified that he conducted the search at the commencement of his shift and found nothing

under the seat. He also testified that appellant was the first person who was placed in the patrol car




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that evening and that no one had been transported or arrested prior to appellant sitting in the back

seat. The officer testified that no one else had been in the back of the vehicle other than appellant

and that he searched the back seat “a few seconds” after appellant exited the vehicle. Guzman

testified that he found the bag stuffed “under the base of the metal plate where the base is, in between

the seat.”

                Because the door to the back seat of the vehicle was open and there were moments

when Guzman had his back to appellant and other officers had access to the vehicle, appellant urges

that the evidence is legally insufficient. He argues that there is no testimony about the third

passenger and that he or someone else could have placed the contraband in the patrol car. In

addition, he contends that the evidence is insufficient because the investigators failed to test and

adduce evidence concerning fingerprints on the baggie.

                Because the officer found no contraband in the back of the patrol car during the

routine check at the commencement of his shift, appellant was the only occupant of the back seat

thereafter, and the cocaine was found in the area where he had been sitting, the totality of the

circumstances affirmatively links appellant to the cocaine. See Williams v. State, 784 S.W.2d 428,

429-30 (Tex. Crim. App. 1990) (finding sufficient evidence defendant possessed cocaine found in

back of patrol car after his arrest considering officers checked the back of the car before their shift,

defendant was the first occupant of the back seat during the shift, and he was fidgeting while being

transported to police station). As in Williams, the back seat of the patrol car had been subjected to

a routine search before leaving the station; the seat was lifted and the area was thoroughly inspected.

Guzman testified that he was certain he had searched his car before leaving the station that night.



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Appellant was the first person to sit in the back seat of Guzman’s car during his shift that night. As

in Williams, the cocaine was found under the spot where appellant had been sitting. The contraband

was found immediately after appellant exited the vehicle. But unlike Williams, appellant was not

handcuffed or closely watched while he was alone in the police car, so he had a greater opportunity

to conceal or discard the contraband.         See, e.g., Logan v. State, No. C14-91-0195-CR,

1993 Tex. App. LEXIS 1667, at *5-6 (Tex. App.—Houston [14th Dist.] June 10, 1993, no pet.) (not

designated for publication) (finding sufficient evidence defendant possessed cocaine found in back

of patrol car although he made no incriminating gestures; because he was not handcuffed, he could

have rid himself of the cocaine without noticeable movement).

               There was no evidence that the third passenger—or anyone else—approached the

vehicle while appellant was in it. The jury could have found beyond a reasonable doubt that

appellant knowingly possessed the cocaine. Accordingly, the evidence is legally sufficient to support

the verdict. We overrule appellant’s first point of error.

               In his second and third points of error, appellant challenges the factual sufficiency of

the evidence supporting the verdict and the inadequacy of the circumstantial evidence. In reviewing

the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a

neutral light, favoring neither party. Watson v. State, No. PD-469-05, 2006 Tex. Crim. App. LEXIS

2040, at *30 (Tex. Crim. App. Oct. 18, 2006) (citing Cain v. State, 958 S.W.2d 404, 408

(Tex. Crim. App. 1997)). While we may disagree with the jury’s conclusions, we must also exercise

appropriate deference to avoid substituting our judgment for that of the jury, particularly in matters

of credibility. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). We may find the



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evidence to be factually insufficient if the evidence supporting the verdict is so weak as to make the

finding of guilt clearly wrong or manifestly unjust, or if the verdict is against the great weight and

preponderance of the evidence. Watson, 2006 Tex. Crim. App. LEXIS 2040, at *31 (citing

Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)).

                The standards of review for legal and factual sufficiency are applicable to both direct

and circumstantial evidence cases. See Geesa v. State, 820 S.W.2d 154, 158 (Tex. Crim. App.

1991). Whether the evidence of possession 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.” Brown, 911 S.W.2d at 747. Circumstantial evidence often has equal or even greater

probative value than direct evidence. Id. at 746.

                Appellant urges that the evidence is just as consistent with the officer simply missing

the baggie of cocaine when he conducted the routine sweep of the car and that mere proximity of

appellant to the drugs is insufficient to support the verdict. He also suggests that testimony is lacking

about the location and acts of the third passenger. He asserts that these alternative hypotheses as to

the source of the drugs render the evidence factually insufficient. But appellant offered no contrary

evidence to support his theory and argues only competing inferences from the evidence.

                Guzman testified that appellant was the first person to sit in the back seat after he

conducted the routine search at the beginning of the shift and the drugs were found in a location

consistent with Guzman’s description of appellant’s location and movement. Guzman found the

drugs immediately after appellant exited the vehicle. Viewing this evidence in a neutral light, we

find no evidence presented at trial that undermines the verdict. The finding of guilt is not clearly



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wrong or manifestly unjust, nor is it against the great weight and preponderance of the evidence. See

Watson, 2006 Tex. Crim. App. LEXIS 2040, at *31. We overrule appellant’s second and third points

of error.


                                         CONCLUSION

               Because we find the evidence legally and factually sufficient, we overrule appellant’s

points of error and affirm the conviction.




                                              Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Affirmed

Filed: October 27, 2006

Do Not Publish




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