Opinion filed October 11, 2018




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-16-00300-CR
                                     __________

                 DANNY NEAL THOMPSON, Appellant
                                           V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 220th District Court
                           Comanche County, Texas
                        Trial Court Cause No. CR04002


                      MEMORANDUM OPINION
      The     jury   convicted     Danny    Neal   Thompson    of    possession   of
methamphetamine in an amount between four and 200 grams and sentenced him to
confinement for a term of twenty years in the Institutional Division of the Texas
Department of Criminal Justice. In a single issue on appeal, Appellant asserts that
the evidence is insufficient to support his conviction. We affirm.
                                 Background Facts
      Texas State Trooper Mitchell Best stopped a white van that he observed
speeding on U.S. Highway 67. Trooper Best recognized the passenger in the van,
Lacy Patterson. Appellant was the driver of the van. Trooper Best remembered
Appellant after he identified Appellant. A check of Appellant’s driving record
revealed that his driver’s license was suspended and that Appellant had two prior
arrests and convictions for driving with a suspended license. Trooper Best decided
to place Appellant under arrest for driving with a suspended license.
      Trooper Best testified that when he attempted to handcuff Appellant,
Appellant resisted and “started to take off.” Trooper Best tackled Appellant, but
Appellant continued to resist. Trooper Best testified that, while Appellant was
resisting, Appellant put his hands in his pocket, pulled something out, and dropped
it. Trooper Best called for backup and held Appellant down until backup arrived.
After arresting Appellant, Trooper Best found a case and a pill bottle with various
pills on the ground near Appellant. Specifically, Trooper Best testified, “Once I got
him arrested he was laying right there next to [the bottle and case].” The case
contained five baggies of methamphetamine and one baggie of what appeared to be
marihuana.
      Appellant testified that he did not pull anything out of his pockets because his
arms were restrained during the entire struggle. Appellant also testified that he was
not carrying any contraband. Appellant asserted that he saw Trooper Best on his
way to the Smoke Shack and that he would not have driven back on the same route
past Trooper Best if he had had any contraband. Appellant testified that he had prior
convictions   for   possession    of    methamphetamine       and    possession    of
methamphetamine with the intent to deliver. Appellant also testified that he began
using methamphetamine twenty years ago and never completely quit. Patterson


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testified that, during the stop, she did not believe that Appellant had any illegal
substances in his possession and did not see Appellant pull anything out of his
pocket. Patterson also testified that she used to be a methamphetamine user and that
she used methamphetamine with Appellant twice.
                                       Analysis
      In his sole issue on appeal, Appellant contends that the evidence is insufficient
to support his conviction. Appellant asserts that the State failed to affirmatively link
him to the methamphetamine.         Appellant also asserts that the evidence was
insufficient to sustain his conviction because Patterson’s testimony directly
contradicted Trooper Best’s “ambiguous” testimony and because Appellant’s
testimony proved that he did not throw away any contraband. Appellant also asserts
that Trooper Best’s testimony lacked credibility because the dashcam video from his
patrol vehicle did not support the testimony. We disagree.
      We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
of the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). When conducting a sufficiency review, we consider all the
evidence admitted at trial, including pieces of evidence that may have been
improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.
2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to
the factfinder’s role as the sole judge of the witnesses’ credibility and the weight
their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts


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for the factfinder’s duty 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; Clayton, 235 S.W.3d at 778. When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
verdict and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235
S.W.3d at 778.
        A person commits the offense of possession of a controlled substance if he
knowingly or intentionally possesses a controlled substance. See TEX. HEALTH &
SAFETY CODE ANN. § 481.115(a) (West 2017). Possession is defined as “actual care,
custody, control, or management.” TEX. PENAL CODE ANN. § 1.07(a)(39) (West
Supp. 2018). To prove unlawful possession of a controlled substance, the State must
show (1) that the accused exercised control, management, or care over the substance
and (2) that the accused knew the matter possessed was contraband. Poindexter v.
State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005), overruled in part on other
grounds by Robinson v. State, 466 S.W.3d 166, 173 n.32 (Tex. Crim. App. 2015).
The evidence must establish that the accused’s connection with the drugs was more
than just his fortuitous proximity to someone else’s drugs. Id. at 405–06.
        Trooper Best testified that the drugs were found near Appellant at the location
where their struggle occurred on the side of the road. “A defendant’s mere presence
is insufficient to establish possession.” Tate v. State, 500 S.W.3d 410, 413 (Tex.
Crim. App. 2016) (citing Oaks v. State, 642 S.W.2d 174, 177 (Tex. Crim. App.
1982)). When the contraband was not in the exclusive possession of the defendant,
the factfinder may nonetheless infer that the defendant intentionally or knowingly
possessed the contraband if there were sufficient independent facts and
circumstances to justify such an inference. Id. (citing Poindexter, 153 S.W.3d at
406).


                                           4
      Texas courts have used an “affirmative links” analysis for instances when the
accused was not in exclusive possession of the place where the substance was found.
Poindexter, 153 S.W.3d at 406. In this circumstance, it cannot be concluded that the
accused had knowledge of and control over the contraband unless there are
additional independent facts and circumstances that affirmatively link the accused
to the contraband. Id. at 406 (citing Deshong v. State, 625 S.W.2d 327, 329 (Tex.
Crim. App. 1981)); see Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App.
2006) (listing affirmative links recognized by courts); see also Tate, 500 S.W.3d at
413–14 (citing Evans, 202 S.W.3d at 162 n.12). The affirmative links analysis is
routinely employed to establish joint possession when the accused is not in exclusive
possession of the place where the drugs are found. Poindexter, 153 S.W.3d at 406.
The analysis “simply restates the common-sense notion that a person—such as a
father, son, spouse, roommate, or friend—may jointly possess property like a house
but not necessarily jointly possess the contraband found in that house.” Id. The
following links have been applied to infer knowledge relating to the contraband:
(1) the defendant’s presence when a search was conducted; (2) whether the
contraband was in plain view; (3) the defendant’s proximity to and the accessibility
of the narcotic; (4) whether the defendant was under the influence of narcotics when
arrested; (5) whether the defendant possessed other contraband or narcotics when
arrested; (6) whether the defendant made incriminating statements when arrested;
(7) whether the defendant attempted to flee; (8) whether the defendant made furtive
gestures; (9) whether there was an odor of contraband; (10) whether other
contraband or drug paraphernalia was present; (11) whether the defendant owned or
had the right to possess the place where the drugs were found; (12) whether the place
where the drugs were found was enclosed; (13) whether the defendant was found
with a large amount of cash; and (14) whether the conduct of the defendant indicated


                                         5
a consciousness of guilt. Tate, 500 S.W.3d at 414 (citing Evans, 202 S.W.3d at 162
n.12).
         Although Appellant was not in exclusive possession of the place where the
drugs were found, the independent facts and circumstances justify the
jury’s conclusion that Appellant had possession of the methamphetamine and that
he knew the case contained methamphetamine. It is not the number of affirmative
links that is dispositive, but rather, the logical force of all of the evidence, both direct
and circumstantial, that is the determining factor. Evans, 202 S.W.3d at 162. “In a
legal-sufficiency review, the logical force of all of the admitted evidence must be
considered in the light most favorable to the conviction, meaning that all reasonable
inferences from the evidence must be resolved in favor of the jury’s guilty verdict.”
Tate, 500 S.W.3d at 417 (citing Thornton v. State, 425 S.W.3d 289, 305 (Tex. Crim.
App. 2014)).
         Appellant attempted to flee when Trooper Best attempted to place him under
arrest. Trooper Best testified that Appellant removed something from Appellant’s
pocket as Trooper Best attempted to restrain Appellant.                 Furthermore, the
methamphetamine was found within close proximity of the location where
Trooper Best restrained Appellant. The logical force of this evidence supports the
jury’s     implicit   determination    that   Appellant     knowingly     possessed     the
methamphetamine.
         Appellant asserts that the evidence was insufficient to sustain his conviction
because      his   testimony   and    Patterson’s    testimony     directly   contradicted
Trooper Best’s testimony. However, we defer to the jury’s role to resolve conflicts
in the testimony.       Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778.
Furthermore, we disagree with Appellant’s contention that the dashcam video did
not support Trooper Best’s testimony. Other than Trooper Best’s initial attempt to


                                              6
handcuff Appellant, the remainder of their scuffle occurred out of view of the
camera. Based on the evidence affirmatively linking Appellant to the
methamphetamine, a rational jury could have found beyond a reasonable doubt that
Appellant intentionally or knowingly possessed the methamphetamine. We overrule
Appellant’s sole issue on appeal.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           JOHN M. BAILEY
                                                           CHIEF JUSTICE


October 11, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.;
Gray, C.J., 10th Court of Appeals 1;
and Wright, S.C.J.2

Willson, J., not participating.




        1
         Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment
to the 11th Court of Appeals.
        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.


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