                                    IN THE
                            TENTH COURT OF APPEALS

                                  No. 10-12-00245-CR

TYRONE COOKS, JR.,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                             From the 52nd District Court
                                Coryell County, Texas
                             Trial Court No. FDP-11-20919


                            MEMORANDUM OPINION


       The jury convicted Tyrone Cooks, Jr. of the offense of possession of a controlled

substance. The trial court assessed punishment at eighteen months confinement in a

state jail facility. We affirm.

       In his sole issue on appeal, Cooks argues that the evidence is legally insufficient

to support his conviction. The Court of Criminal Appeals has expressed our standard of

review of a sufficiency issue as follows:
               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must consider all of the evidence in the
        light most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
        responsibility of the trier of fact fairly to resolve conflicts in the testimony,
        to weigh the evidence, and to draw reasonable inferences from basic facts
        to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
        directly and independently to the guilt of the appellant, as long as the
        cumulative force of all the incriminating circumstances is sufficient to
        support the conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert den’d , 132 S.Ct. 2712, 183

L.Ed.2d 71 (2012).

        The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,

326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence

are treated equally: "Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is

well established that the factfinder is entitled to judge the credibility of witnesses and

can choose to believe all, some, or none of the testimony presented by the parties.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).



Cooks v. State                                                                              Page 2
        Officer Hope Bazin, with the Copperas Cove Police Department, testified that

she was on patrol May 28, 2011 at 4:30 a.m. when she encountered Cooks at a

convenience store. Officer Bazin stated that Cooks was acting in a suspicious manner,

and she followed his vehicle when he left the store. Officer Bazin stopped Cooks’s

vehicle after she observed him commit a traffic violation. During the stop, Officer Bazin

learned that Cooks had an outstanding warrant, and she placed him under arrest for the

outstanding warrant. Another officer arrived at the scene to assist Officer Bazin.

        Officer Bazin testified that she searched Cooks, but that she did not conduct a

thorough search of his person. Officer Bazin stated that being a female officer, she was

cautious in searching Cooks’s crotch area and that she was aware a more thorough

search would be conducted by a male officer at the jail.

        Officer Bazin handcuffed Cooks and placed him in the back of the patrol car

without fastening the safety belt. Cooks was in the patrol car unattended for a short

time while Officer Bazin and the other officer at the scene discussed the arrangements

for someone to pick up Cooks’s vehicle. The cameras in the patrol car recorded Cooks’s

movements. The video was played for the jury, and it shows Cooks moving around in

the backseat. At trial, Officer Bazin demonstrated that she was able to reach her crotch

area while handcuffed.

        Officer Bazin took Cooks to the police station, and she testified that she smelled a

foul odor in the patrol car. At the police station, Cooks was booked for the outstanding

warrant, and Officer Bazin completed the paperwork relating to the arrest. Officer

Bazin then returned to her car where she again smelled a foul odor. Officer Bazin

Cooks v. State                                                                        Page 3
searched the backseat of the patrol car, and she found a bag of marijuana and a mint tin

under the seat. Officer Bazin explained that the seats are not attached to the bottom and

that they are able to be removed. The mint tin contained small “white bricks” that were

determined to be cocaine.

        Officer Bazin testified that before her shift, she conducted a thorough search of

her patrol car. Officer Bazin looked under the rear seats, and there was nothing in the

patrol car. Officer Bazin further testified that she made no other arrests that night prior

to the arrest of Cooks.

        Cooks specifically argues that the evidence is insufficient to show that he was in

possession of the controlled substance. To prove unlawful possession of a controlled

substance, the State must establish that (1) the accused exercised care, control, or

management over the contraband, and (2) knew the substance was contraband.

Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005).         The elements of

possession may be proven through direct or circumstantial evidence; although the

evidence must establish that the accused's connection with the substance was more than

fortuitous. Id. at 405-06.

        Cooks argues that the only link between him and the controlled substance was

that Officer Bazin stated that she found it underneath the seat where he had been

sitting. 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 v. State, 153 S.W.3d at 406. There was evidence that no one else was in the

car prior to the arrest of Cooks. Officer Bazin thoroughly searched the patrol car prior

Cooks v. State                                                                       Page 4
to her shift, and she did not make any arrests prior to the arrest of Cooks. Officer Bazin

smelled a foul odor after placing Cooks in the patrol car, and she testified that she has a

particular sensitivity to the smell of marijuana. The jury viewed the video from the

patrol car that showed Cooks’s movements in the back seat of the patrol car. The jury

heard the evidence and could rationally have concluded Cooks placed the controlled

substance in the back of the patrol car. Gullatt v. State, 368 S.W.3d 559, 564 (Tex.App.-

Waco 2011, pet ref’d). We overrule the sole issue on appeal.

        We affirm the trial court’s judgment.




                                          AL SCOGGINS
                                          Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 10, 2013
Do not publish
[CR25]




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