                                     NO. 07-06-0389-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL A

                                  AUGUST 20, 2008
                          ______________________________

                        JESSIE ALLEN WILBORN, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

              FROM THE 241ST DISTRICT COURT OF SMITH COUNTY;

              NO. 241-0821-06; HONORABLE JACK SKEEN, JR., JUDGE
                       _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Appellant, Jessie Allen Wilborn, appeals his conviction for the offense of possession

of a controlled substance, namely cocaine, in an amount of less than one gram, enhanced

by two prior state jail felonies. The jury assessed punishment at confinement in the

Institutional Division of the Texas Department of Criminal Justice for a period of 18 years

and a $7,000.00 fine. Appellant, through three issues, contends the trial court committed

reversible error by denying a Batson challenge and that the evidence is legally and

factually insufficient. We affirm.
                                        Background


       While routinely checking license plates in a motel’s parking lot in Tyler, Texas,

Officer Larry Christian identified a van that had been reported stolen. According to the

information given the police, appellant was an employee of a company and had failed to

return the company’s van. A representative of the company reported that appellant was

no longer authorized to be in possession of the van and requested that the van be

recovered. Christian confirmed that appellant was a registered guest at the motel and

requested additional officers for backup. Once backup had arrived, Christian contacted

appellant in his room. Appellant answered the door and acknowledged that he had not

returned the van the previous night. Christian then placed appellant in handcuffs and

arrested him for unauthorized use of a motor vehicle. Because of the presence of two

other persons, Christian swept the motel room for his safety. He found a cigarette package

in the bathroom, that upon further investigation, contained a crack pipe. Additionally,

incident to appellant’s arrest, Christian searched appellant’s backpack and found a

scouring pad which Christian believed, based on his training and experience, was an item

typically associated with illegal drug use.


       After delivering appellant to the jail, Christian proceeded to submit the cigarette

package, crack pipe, and scouring pad as evidence. While logging in the evidence,

Christian found two crack cocaine rocks within the cigarette package. Therefore, appellant

was charged with both possession of drug paraphernalia and possession of a controlled

substance.    Appellant later pleaded guilty to the offense of possession of drug

paraphernalia, but pleaded not guilty to the possession of a controlled substance.

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       At trial, a jury convicted appellant of possession of a controlled substance, twice

enhanced, and sentenced him to 18 years confinement in the Institutional Division of the

Texas Department of Criminal Justice and a fine of $7,000. Appellant contends that the

trial court erred in denying his Batson challenge and that the evidence was legally and

factually insufficient to support his conviction.


               Batson Challenge to the State’s Use of Peremptory Strikes


       Appellant contends that, during the voir dire process, the State improperly excluded

several venire members solely on the basis of their race. Appellant objected to the State’s

use of peremptory strikes against African-American venire members contending that each

of the excluded venire members were qualified and that there were no justifiable reasons

for their exclusion. Hence, appellant moved for a Batson hearing arguing that the State

was unconstitutionally striking these jurors based solely on their race. At the Batson

hearing, the State provided race-neutral reasons for each of the contended strikes.

Appellant did not rebut the explanations or attempt to cross-examine the State regarding

the race-neutral explanations. The trial court found that the State’s reasons were race-

neutral and denied appellant’s Batson challenge.


       The Equal Protection Clause of the United States Constitution prohibits parties from

using peremptory strikes to exclude members of a jury panel solely on the basis of race.

See U.S. CONST . amend. XIV; TEX . CODE CRIM . PROC . ANN . art. 35.261 (Vernon 1989)

(codifying Batson standard); Batson v. Kentucky, 476 U.S. 79, 84, 106 S.Ct. 1712, 90

L.Ed.2d 69 (1986). A Batson objection to a peremptory strike is resolved by a three-step


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process. Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 131 L.Ed. 2d 834 (1995).

First, “the opponent of the . . . peremptory strike must establish a prima facie case of racial

discrimination.” Id. at 767. Second, the State, in exercising the strike, must present a

race-neutral explanation. Id. An explanation is deemed race-neutral if no discriminatory

intent is inherent in the State's explanation. Id. at 768. See also Thomas v. State, 209

S.W.3d 268, 270 (Tex.App.—Houston [1st Dist.] 2006, no pet.). Third, if the State provides

a race-neutral explanation for the challenged strikes, the opponent of the peremptory

strikes must carry the burden of persuasion to show the explanation is only a pretext for

race-motivated strikes. See Camacho v. State, 864 S.W.2d 524, 529 (Tex.Crim.App.

1993).


         Appellant failed to challenge the State’s race-neutral explanations by not cross-

examining the State or offering any evidence following the State’s race-neutral

explanations for the peremptory strikes. See Herron v. State, 86 S.W.3d 621, 630

(Tex.Crim.App. 2002); Camacho, 864 S.W.2d at 529. Therefore, we conclude that the trial

court did not err in overruling appellant’s Batson challenge to the State’s use of peremptory

strikes. Appellant’s first issue is overruled.


                       Legal and Factual Sufficiency of the Evidence


         In assessing the legal sufficiency of the evidence, we review 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 offense beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133


                                                 4
S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency review, an

appellate court may not sit as a thirteenth juror, but rather must uphold the jury’s verdict

unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno

v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988).


       When an appellant challenges the factual sufficiency of the evidence supporting his

conviction, the reviewing court must determine whether, considering all the evidence in a

neutral light, the jury was rationally justified in finding the appellant guilty beyond a

reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In

performing a factual sufficiency review, we must give deference to the fact finder’s

determinations if supported by evidence and may not order a new trial simply because we

may disagree with the verdict. See id. at 414. As an appellate court, we are not justified

in ordering a new trial unless there is some objective basis in the record demonstrating that

the great weight and preponderance of the evidence contradicts the jury’s verdict. See id.

at 417. Additionally, an appellate opinion addressing factual sufficiency must include a

discussion of the most important evidence that appellant claims undermines the jury’s

verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).


       To prove possession of a controlled substance, the State is required to prove the

accused (1) exercised actual care, custody, control, or management over the substance

and (2) knew the matter he possessed was contraband. See Poindexter v. State, 153

S.W.3d 402, 405 (Tex.Crim.App. 2005); TEX . HEALTH & SAFETY CODE ANN . § 481.002 (38)

(Vernon 2003). The evidence must establish the accused’s connection with the controlled



                                             5
substance was more than just fortuitous. Brown v. State, 911 S.W.2d 744, 747

(Tex.Crim.App. 1995).


       Courts have found numerous factors useful in determining whether an accused's

link to a controlled substance was more than just fortuitous. Affirmative links may include,

but are not limited to: (1) appellant's presence when the contraband was found; (2) whether

the contraband was in plain view; (3) appellant's proximity to and accessibility of the

contraband; (4) whether appellant was under the influence of narcotics when arrested; (5)

whether appellant possessed other contraband when arrested; (6) whether appellant made

incriminating statements when arrested; (7) whether appellant attempted to flee; (8)

whether appellant made furtive gestures; (9) whether there was an odor of the contraband

present; (10) whether appellant owned or had the right to possess the place where the

drugs were found; (11) whether the place the drugs were found was enclosed; (12) the

amount of contraband found; (13) whether appellant possessed weapons; and (14)

whether appellant possessed a large amount of cash. See Taylor v. State, 106 S.W.3d

827, 831 (Tex.App.—Dallas 2003, no pet.). It is not the number of factors present that is

important but the logical force of these factors which determines whether the State's

evidence links appellant to the contraband. See Gilbert v. State, 874 S.W.2d 290, 298

(Tex.App.—Houston [1st Dist.] 1994, pet. ref'd).


       Appellant asserts that the bathroom was accessible to the two other persons found

in the motel room and that he was not in exclusive possession of the contraband. Thus,

the State was required to present evidence, direct or circumstantial, linking appellant to the

contraband to establish appellant was guilty of possession. While many of the factors

                                              6
neither support nor dispute the conclusion that appellant had possession of the controlled

substance, several factors weigh against appellant. The motel room where the cocaine

was found was rented to appellant. Additionally, appellant pleaded guilty to possession of

the crack pipe found in the same cigarette package containing the cocaine thereby

connecting appellant to the cocaine. Finally, appellant’s backpack contained additional

paraphernalia, the scouring pad, that also linked appellant to the cocaine. When all this

evidence is viewed in the light most favorable to the verdict, as we must in a legal

sufficiency review, we cannot say the jury acted irrationally when it found the evidence

sufficient to convict beyond a reasonable doubt. Jackson, 443 U.S. at 319; Ross, 133

S.W.3d at 620. Furthermore, turning to factual sufficiency, even when the evidence is

viewed in a neutral light, we conclude that the jury was rationally justified in finding

appellant guilty beyond a reasonable doubt. Watson, 204 S.W.3d at 415. Appellant’s

main argument is that there were others present in the motel room and that they also had

access to the bathroom where the cocaine was found. While this assertion may be true,

it only shows that appellant was not in exclusive control of the contraband. Exclusive

control is not a required element of a possession charge. See Martin v. State, 753 S.W.2d

384, 386 (Tex.Crim.App. 1988). The presence of others in the motel room does not

eliminate the jury’s rational belief that, in light of all the evidence, appellant exercised actual

care, custody, control, or management over the substance and knew the matter he

possessed was contraband. Accordingly, appellant's contention regarding the insufficiency

of the evidence is overruled. We overrule appellant’s second issue.




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                                    Conclusion


      Having overruled both of appellant’s issues, the judgment of the trial court is

affirmed.




                                             Mackey K. Hancock
                                                  Justice



Do not publish.




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