                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-08-00014-CR

GARY LAWAYNE BELL,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                            From the 13th District Court
                              Navarro County, Texas
                               Trial Court No. 31,223


                           MEMORANDUM OPINION

       Appellant Gary Lawayne Bell was convicted of the felony offense of possession

of a controlled substance (Penalty Group One—cocaine, less than one gram) in a drug-

free zone and was sentenced to seventeen years in prison. He appeals, asserting in one

issue that the evidence is legally and factually insufficient. We will affirm.

       When reviewing a challenge to the legal sufficiency of the evidence to establish

the elements of a penal offense, we must determine whether, after viewing all the

evidence in the light most favorable to the verdict, any rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Adelman v. State,

828 S.W.2d 418, 422 (Tex. Crim. App. 1992). Any inconsistencies in the evidence are

resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App.

2000).

         In a factual sufficiency review, we ask whether a neutral review of all the

evidence, though legally sufficient, demonstrates either that the proof of guilt is so

weak or that conflicting evidence is so strong as to render the factfinder’s verdict clearly

wrong and manifestly unjust. Watson v. State, 204 S.W.3d. 404, 414-15 (Tex. Crim. App.

2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). “The court reviews the

evidence weighed by the jury that tends to prove the existence of the elemental fact in

dispute and compares it with the evidence that tends to disprove that fact.” Johnson, 23

S.W.3d at 7. The appellate court “does not indulge in inferences or confine its view to

evidence favoring one side of the case. Rather, it looks at all the evidence on both sides

and then makes a predominantly intuitive judgment. . . .” Id. (quoting William Powers

and Jack Ratliff, Another Look at “No Evidence” and “Insufficient Evidence,” 69 TEXAS L.

REV. 515, 519 (1991)). The nature of a factual sufficiency review authorizes an appellate

court, although to a very limited degree, to act as the so-called “thirteenth juror” to

review the factfinder’s weighing of the evidence and disagree with the factfinder’s

determination. Watson, 204 S.W.3d at 416-17.

         Bell argues that the evidence is insufficient to affirmatively link him to the

contraband. The Court of Criminal Appeals has provided the following explanation for

Bell v. State                                                                          Page 2
the “so-called ‘affirmative links’ rule”:

         [I]n a possession of a controlled substance prosecution, “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.”        Regardless of whether the evidence is direct or
         circumstantial, it must establish that the defendant’s connection with the
         drug was more than fortuitous. This is the so-called “affirmative links”
         rule which protects the innocent bystander—a relative, friend, or even
         stranger to the actual possessor—from conviction merely because of his
         fortuitous proximity to someone else’s drugs. Mere presence at the
         location where drugs are found is thus insufficient, by itself, to establish
         actual care, custody, or control of those drugs. However, presence or
         proximity, when combined with other evidence, either direct or
         circumstantial (e.g., “links”), may well be sufficient to establish that
         element beyond a reasonable doubt. It is, as the court of appeals correctly
         noted, not the number of links that is dispositive, but rather the logical
         force of all of the evidence, direct and circumstantial.

Evans v. State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006) (quoting Evans v. State, 185

S.W.3d 30, 34 (Tex. App.—San Antonio 2005)) (footnotes omitted). Thus, we examine

the record for direct or circumstantial evidence that established that Bell exercised

control, management, or care over the controlled substance and knew it was

contraband. See id. at 161-62.

         The evidence shows that Bell and about fifteen to twenty others were standing

on the property of the Corsicana Housing Authority at approximately 11:30 p.m. in the

vicinity of a streetlight when four Corsicana police officers arrived to execute an arrest

warrant for Bell. Most of the group, including Bell, fled. Officer Williams pursued Bell

on foot, and Officer Morris pursued him in a patrol car to where they were able to

surround Bell at a row of parking spaces. Bell stopped briefly next to a parked car, and

Morris stopped his car, got out, and ordered Bell to show his hands and get on the


Bell v. State                                                                           Page 3
ground. Bell then ran around the parked car, ran along a sidewalk, and then ran back

in between some other parked cars. Williams and Morris were closely behind Bell and

both said that they saw him remove a cellophane packet from the waistband of his

trousers and throw it on the ground. As Bell continued to flee, he collided with a third

officer, Officer Hudson, and was taken into custody.         Morris then retrieved the

discarded cellophane packet, and it was later determined to contain cocaine.

         Williams and Morris each testified that they personally saw Bell reach into his

waistband and discard the cellophane packet as he ran between two cars and just

seconds before he ran into Hudson. Morris recovered the packet about thirty seconds

after Bell was detained, and all three officers testified that no one else was between the

two cars in that brief period.

         Bell called four witnesses who testified favorably for him. Laketha Lusk, who

had four theft convictions, was on probation for theft, and was sitting in a car with two

cars between her and the location where the cocaine was recovered, testified that she

was able to see Bell when the officers claim that he discarded the cocaine and that she

did not see Bell reach into his waistband or discard anything. Chiquita Reese, whose

family had been friends with Bell’s mother for some time, said that she saw Bell fleeing

and that she did not see him throw anything on the ground.

         Joshua Ellison, Bell’s cousin, had been sitting in a car parked in the row of

parking spaces and got out and stood on the sidewalk when the police arrived. He said

that he did not see anything in Bell’s hands during the pursuit and that Bell kept his

hands up as he ran from the police. Loretta Beachum, Bell’s mother, said that she did

Bell v. State                                                                       Page 4
not see Bell reach into his waistband or discard anything and that Bell kept his hands

up as he ran from the police. There was at least one car between her and the location

where Bell was arrested.

         Viewing the evidence in the light most favorable to the verdict, we find that a

rational trier of fact could have found beyond a reasonable doubt that Bell exercised

control, management, or care over the cocaine. The evidence is legally sufficient.

         Bell’s factual sufficiency challenge focuses primarily on the discrepancy between

the two officers’ testimony and his four witnesses’ testimony, arguing that the “greater

weight” of the evidence was in Bell’s favor. As we have stated:

                The jury is the exclusive judge of the facts, the credibility of the
         witnesses, and the weight to be given to the witnesses’ testimony. Jaggers
         v. State, 125 S.W.3d 661, 670 (Tex. App.—Houston [1st Dist.] 2003, pet.
         ref’d) (citing Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App.
         1981)). The jury may believe all, some, or none of any witness’s testimony.
         Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Jaggers, 125
         S.W.3d at 670. As the reviewing court, we “should not substantially
         intrude upon the jury’s role as the sole judge of the weight and credibility
         of witness testimony.” Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim.
         App. 2002); see also Sharp, 707 S.W.2d at 614; Jaggers, 125 S.W.3d at 670.

            The degree of deference a reviewing court provides must be
            proportionate with the facts it can accurately glean from the trial
            record. A factual sufficiency analysis can consider only those few
            matters bearing on credibility that can be fully determined from a
            cold appellate record. Such an approach occasionally permits some
            credibility assessment but usually requires deference to the jury’s
            conclusion based on matters beyond the scope of the appellate
            court’s legitimate concern. See GEORGE E. DIX & ROBERT O. DAWSON,
            42 TEXAS PRACTICE—CRIMINAL PRACTICE AND PROCEDURE § 36.69
            (Supp. 1999). Unless the available record clearly reveals a different
            result is appropriate, an appellate court must defer to the jury’s
            determination concerning what weight to give contradictory
            testimonial evidence because resolution often turns on an evaluation


Bell v. State                                                                           Page 5
            of credibility and demeanor, and those jurors were in attendance
            when the testimony was delivered.

         Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).

Childress v. State, 285 S.W.3d 544, 547 (Tex. App.—Waco 2009, pet. filed).

         By finding Bell guilty, the jury obviously believed the police officers and

disbelieved Bell’s witnesses, and the record in this case warrants our deference to the

jury’s credibility determination. As the sole judge of the weight and credibility of the

evidence, the jury bore the burden of accepting or rejecting Bell’s witnesses’ version of

the events. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). Therefore,

considering all of the evidence in a neutral light, we find that the evidence is factually

sufficient to support the jury’s guilty finding. The proof of guilt is not so weak nor the

conflicting evidence so strong as to render the jury’s verdict clearly wrong and

manifestly unjust.

         We overrule Bell’s issue and affirm the trial court’s judgment.



                                                   REX D. DAVIS
                                                   Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed August 26, 2009
Do not publish
[CR25]




Bell v. State                                                                       Page 6
