Affirmed and Memorandum Opinion filed September 25, 2014.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00917-CR

                     PRENTIS DEAN COOPER, Appellant

                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 338th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1370198

                 MEMORANDUM                      OPINION


      Appellant Prentis Dean Cooper appeals his conviction for possession of
cocaine. See Tex. Health & Safety Code § 481.115(b). In a single issue appellant
argues the evidence is insufficient to support the conviction. We affirm.

                                   BACKGROUND

      On the night of December 5, 2012, Officers Jacobs and Lacy of the Houston
Police Department were patrolling Jensen Drive when they observed a van parked
near a church with two men sitting behind the van. Jacobs stopped his patrol
vehicle and exited to check on the men. When he walked toward the men Jacobs
saw appellant sitting in the driver’s seat of a white Mitsubishi Galant that was
parked on the sidewalk. Jacobs observed appellant make “an overt movement
towards the center console.” Jacobs asked Lacy to speak with the two men sitting
behind the van while he approached appellant in the vehicle. Jacobs testified that
he was suspicious of appellant because appellant had made a furtive movement and
Jacobs could not see his hands. As Jacobs approached the car he used his flashlight
and saw a rock of crack cocaine on the center console of the car. When Jacobs saw
the cocaine he asked appellant to step out of the car. Appellant got out of the car;
Jacobs detained him in handcuffs, and patted him down for weapons. After
completing an inventory search of the car, Jacobs found a crack pipe with a crack
rock inside of it in the center console. He also recovered two rocks of crack
cocaine from under the driver’s seat. Appellant denied the drugs belonged to him.
A check of the car revealed that it was not registered in appellant’s name.

       Officer Charles Mann testified that approximately six weeks earlier, on
October 22, 2012, he executed a traffic stop on the white Mitsubishi Galant, which
was the same vehicle as the one in which Jacobs observed appellant. Appellant was
the driver of the car, but was driving without a driver’s license. Appellant
explained to Mann that the car did not belong to him, but he had been using the
car.

       John Taylor, appellant’s employer, testified on appellant’s behalf. Taylor
testified that he owned the white Mitsubishi Galant and that he frequently lent it to
his employees to be used in his handyman business. When the car is returned to
him he frequently finds items that were left in the car by his employees. Taylor
testified the car’s windows are tinted, and he did not know who placed cocaine in

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the vehicle.

      Michael Harris, who was one of the men sitting behind the van, testified that
he had not seen anyone but appellant drive the car. Occasionally, if appellant “had
a little too much to drink,” he would sleep in the car.

                                     DISCUSSION

      In a single issue, appellant complains the evidence is insufficient to support
his conviction.

      When reviewing sufficiency of the evidence, we view all of the evidence in
the light most favorable to the verdict and determine, based on that evidence and
any reasonable inferences therefrom, whether any rational factfinder 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)); see also Atkins v. State, 402 S.W.3d 453, 459 (Tex. App.—
Houston [14th Dist.] 2013, pet. ref’d). We do not sit as the thirteenth juror and may
not substitute our judgment for that of the factfinder by reevaluating the weight and
credibility of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010); Atkins, 402 S.W.3d at 459. Rather, we defer to the factfinder to fairly
resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences
from basic facts to ultimate facts. Isassi, 330 S.W.3d at 638; Atkins, 402 S.W.3d at
459. Each fact need not point directly and independently to the appellant’s guilt, as
long as the cumulative effect of all incriminating facts is sufficient to support the
conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Atkins, 402
S.W.3d at 459.

      To prove appellant committed this offense, the State was required to show
beyond a reasonable doubt that appellant knowingly or intentionally possessed less


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than one gram of cocaine. Tex. Health & Safety Code § 481.115(b). In that
connection, the State was required to establish that appellant exercised control,
management, or care over the cocaine and knew it was contraband. Poindexter v.
State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). Appellant’s connection with
the contraband must be more than fortuitous. Evans v. State, 202 S.W.3d 158, 161–
62 (Tex. Crim. App. 2006). Mere presence in the same place as the controlled
substance is insufficient to justify a finding of possession. Id. at 162.

      Presence or proximity, when combined with other evidence, either direct or
circumstantial (e.g., “affirmative links”), can establish possession. Id. The logical
force of all of the evidence—not the number of affirmative links—is dispositive.
Id. In the context of a charge of possession of a controlled substance, the following
affirmative links, among others, have been considered in other cases: (1) the
accused was the owner of the place where the contraband was found; (2) the
physical condition of the accused indicated recent consumption of the contraband
in question; (3) conduct by the accused indicated a consciousness of guilt; (4) the
accused made furtive gestures; (5) the accused was observed in a suspicious area
under suspicious circumstances; (6) the contraband was found in close proximity to
the accused; (7) the accused made incriminating statements connecting himself to
the contraband; and (8) the contraband was recovered from an enclosed space. See
Black v. State, 411 S.W.3d 25, 29 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

      In this case appellant was in possession and control of the vehicle and the
sole occupant of the vehicle. Although appellant was not the owner of the vehicle,
he had previously been stopped by police while driving the vehicle, the owner
testified he lent the vehicle to appellant, and a witness testified that he had never
seen anyone else driving the vehicle and that appellant sometimes slept in the
vehicle. Therefore, appellant was linked to the vehicle despite the facts that he did

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not own the vehicle and other people may have had the right to use the vehicle.

      In addition to appellant’s control over the vehicle, there are other factors that
affirmatively link appellant to the cocaine, including: (1) appellant’s sole
occupancy of the vehicle when the cocaine was found; (2) the cocaine was
accessible to appellant because it was located on top of the center console next to
the driver’s seat; (3) appellant made a furtive gesture when the police officers
stopped their patrol car; (4) upon further search more cocaine was found under the
driver’s seat and in the center console; and (5) the interior of the vehicle was an
enclosed space.

      Appellant argues it was impossible for Officer Jacobs to see a single crack
rock on the center console when he viewed it through the dark tint of the vehicle at
night, or, in the alternative, that it could not have been immediately apparent to
Jacobs that the substance he saw was cocaine. Appellant argues therefore that
Jacobs’ observation of the cocaine on the console did not meet the “plain view
doctrine” requirements.

      Appellant relies on general authority about the plain view doctrine, which
permits a police officer to seize anything he has probable cause to believe
constitutes contraband. See State v. Dobbs, 323 S.W.3d 184, 187 (Tex. Crim. App.
2010). A finding that the evidence was seized in violation of the plain view
doctrine affects admissibility of evidence, not sufficiency of the evidence to
support a conviction. See Tex. Code Crim. Proc. art. 38.23(a) (no evidence
obtained in violation of Constitution or law shall be admitted in evidence against
the accused).

      In this case, however, appellant did not challenge the admissibility of the
evidence and whether it was properly seized in plain view. Appellant seems to
challenge the credibility of Jacobs’ testimony that he saw the rock of crack cocaine
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in plain view. In reviewing the sufficiency of the evidence, however, we do not
reevaluate the credibility of the witnesses. See Isassi, 330 S.W.3d at 638.
Therefore, the question of Jacobs’ credibility when he testified that he saw the rock
of crack cocaine with his flashlight through the tinted windows was resolved by the
jury.

        We hold that a reasonable jury could conclude from the evidence presented
that appellant knowingly exercised possession and control over the cocaine.
Accordingly, the evidence is sufficient to support the conviction. We overrule
appellant’s sole issue on appeal and affirm the trial court’s judgment.




                                       /s/       John Donovan
                                                 Justice



Panel consists of Justices Boyce, Jamison, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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