Affirmed and Memorandum Opinion filed February 20, 2014.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-13-00175-CR

                   TYRONE DWIGHT HAILEY, Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 183rd District Court
                           Harris County, Texas
                       Trial Court Cause No. 1351466

                MEMORANDUM                     OPINION


      Appellant Tyrone Dwight Hailey appeals his conviction for possession of a
controlled substance. We affirm.

                      FACTUAL AND PROCEDURAL BACKGROUND

      Appellant was charged with the offense of possession of a controlled
substance (cocaine weighing more than four and less than 200 grams). Officer John
Guerra testified that on the night of the offense he was flagged down by two
individuals who explained that an incident had occurred and gave him a
description of the suspects. Guerra arrived at the location described and saw
individuals matching the descriptions of the suspects. He saw one man, later
identified as appellant, stopped by a light pole and two others running away. He
then saw appellant drop something by the light pole. Guerra exited his vehicle,
pointed his weapon toward the suspects and told all of them to get down on the
ground.

       Officer Wendell Gilbert responded to Guerra’s call for assistance. Guerra
directed Gilbert to look by the light pole for the item he had seen appellant drop.
Gilbert found a purple Crown Royal bag on the ground. There were no other items
around the light pole. Gilbert gave the Crown Royal bag to Officer Robert
Gilchrest, who opened the bag and found a blue bag, which contained a substance
that a field test revealed was approximately 11 grams of crack cocaine.

       Appellant was arrested and transported to the Harris County Jail. When
appellant was searched at the jail, a blue bag containing crack cocaine was found
inside his socks. Appellant later admitted to Officer Paul Reese that he had crack
cocaine in his shoes, but appellant denied possessing any other drugs. Appellant
was convicted of possession of between four and 200 grams of cocaine and the
jury assessed punishment at eleven years’ confinement.

                                ISSUE PRESENTED

       In appellant’s sole issue, he challenges the sufficiency of the evidence to
support his conviction for possession of between four and 200 grams of cocaine.
Specifically, he challenges the sufficiency of the evidence that he knowingly
exercised care, custody, and control over the cocaine found in the Crown Royal
bag.


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                                    ANALYSIS

      In evaluating a sufficiency challenge, we view all of the evidence in the light
most favorable to the verdict and determine whether, based on that evidence and
any reasonable inferences from it, any rational fact finder could have found the
elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743,
746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19
(1979)). The jury is the exclusive judge of the credibility of witnesses and the
weight of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010). We defer to the jury’s responsibility to fairly resolve conflicts in the
evidence, and we draw all reasonable inferences from the evidence in favor of the
verdict. Id. When faced with conflicting evidence, we presume the trier of fact
resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43,
47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt, we must affirm.
McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

      A person commits the offense of possession of a controlled substance if that
person knowingly or intentionally possesses a controlled substance listed in
Penalty Group 1, and the substance was not prescribed by a practitioner. Tex.
Health & Safety Code Ann. § 481.115(a), (d) (West 2010). Cocaine is a controlled
substance listed in Penalty Group 1. Id. § 481.102(3)(D). “Possession” is defined
as “actual care, custody, control, or management.” Tex. Penal Code Ann. §
1.07(a)(39) (West 2011); Tex. Health & Safety Code Ann. § 481.002(38). 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

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or circumstantial evidence, although the evidence must establish that the accused’s
connection with the substance was more than fortuitous. Id. at 405–06.

      When the accused is not in exclusive possession of the place where the
contraband is found, the State must show additional affirmative links between the
accused and the contraband. See Olivarez v. State, 171 S.W.3d 283, 291 (Tex.
App.—Houston [14th Dist.] 2005, no pet.). An affirmative link generates a
reasonable inference that the accused knew of the contraband’s existence and
exercised control over it. See Olivarez, 171 S.W.3d at 291. Courts have identified
the following factors that may help to show an accused’s affirmative links to a
controlled substance: (1) the accused’s presence when a search is conducted; (2)
whether the contraband was in plain view; (3) the accused’s proximity to, and the
accessibility of, the contraband; (4) whether the accused was under the influence of
narcotics when arrested; (5) whether the accused possessed narcotics or other
contraband when arrested; (6) whether the accused made incriminating statements
when arrested; (7) whether the accused attempted to flee; (8) whether the accused
made furtive gestures; (9) whether there was an odor of contraband; (10) whether
other contraband or drug paraphernalia were present; (11) whether the accused
owned or had the right to possess the place where the contraband was found; (12)
whether the place where the contraband was found was enclosed; (13) whether the
accused was found with a large amount of cash; and (14) whether the conduct of
the accused indicated a consciousness of guilt. Evans v. State, 202 S.W.3d 158,
162 n. 12 (Tex. Crim. App. 2006). No set formula necessitates a finding of an
affirmative link sufficient to support an inference of knowing possession;
affirmative links are established by the totality of the circumstances. See Wright v.
State, 401 S.W.3d 813, 819 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).
The number of factors present is not as important as the logical force the factors


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create to prove the accused knowingly possessed the controlled substance. Roberts
v. State, 321 S.W.3d 545, 549 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).

      One of the links is the accessibility and proximity of the contraband to the
accused. See Earvin v. State, 632 S.W.2d 920, 924 (Tex. App.—Dallas 1982, pet.
ref’d). There is no dispute that the cocaine was found in a bag close to where
appellant was standing. Appellant argues there is no evidence linking him to the
bag of cocaine. He asserts that neither Gilbert nor Guerra saw him drop the bag.
Guerra, however, did see appellant drop an item, although he could not identify the
item as the bag. Guerra then secured the suspects and asked Gilbert to look near
the light pole where Gilbert found the Crown Royal bag, which contained the
contraband. The parking lot was clean and there were no other items near the light
pole. The jury reasonably could have inferred from the testimony of Guerra and
Gilbert that appellant dropped the bag containing cocaine when the police arrived.
Further linking appellant to the contraband is the fact that he made a furtive gesture
in dropping the bag when Guerra arrived and he was found in possession of a
lesser amount of crack cocaine.

      The contraband was not in plain view, appellant did not attempt to flee, there
was not an odor of contraband, appellant did not have a right to own the place
where the drugs were found, nor was it an enclosed space. However, Guerra and
Gilbert’s testimony constituted eyewitness accounts of appellant’s link to the
contraband and it was within the province of the fact finder to believe their
testimony. See Edwards v. State, 807 S.W.2d 338, 339 (Tex. App.—Houston [14th
Dist.] 1991, pet. ref’d) (stating that eyewitness testimony of officer viewing
appellant discard drugs was sufficient to support conviction of possession of a
controlled substance); Dempsey v. State, 667 S.W.2d 801, 803 (Tex. App.—
Beaumont 1983, pet. ref’d) (stating that the state may establish the affirmative link

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by eyewitness testimony tying the accused to the location where the contraband
was found.).

      The testimony at trial showed that appellant possessed more than four grams
and less than 200 grams of cocaine. We conclude that the logical force from the
totality of the links is sufficient for a rational jury to have affirmatively linked
appellant to the contraband and found that appellant exercised care, custody,
control, or management over the contraband. A rational jury could have found the
elements of the offense beyond a reasonable doubt. Having viewed all of the
evidence in the light most favorable to the verdict, we conclude the evidence is
sufficient to support appellant’s conviction. Accordingly, we overrule appellant’s
sole issue.

      The trial court’s judgment is affirmed.


                                      /s/       Kem Thompson Frost
                                                Chief Justice



Panel consists of Chief Justice Frost and Justices Jamison and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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