Opinion issued January 23, 2018




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-17-00175-CR
                           ———————————
                   DERICK DEWAYNE HUNT, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 179th District Court
                           Harris County, Texas
                       Trial Court Case No. 1508362


                         MEMORANDUM OPINION

      Derick Hunt was convicted by a jury of possession, with intent to deliver, of

between four and 200 grams of cocaine. See TEX. HEALTH & SAFETY CODE

§ 481.115(a), (d). Hunt pleaded “true” to two enhancement paragraphs, and the

trial court assessed punishment at 32 years’ imprisonment. Hunt contends (1) that
the evidence is legally insufficient to support his conviction for knowing or

intentional possession of cocaine and (2) that either his motion to suppress or his

trial objections to certain evidence should have been sustained because the

evidence was obtained by a warrantless search that violated the Fourth

Amendment. We affirm.

                                   Background

      Houston Police Officers V. Vu and A. Merino were on patrol when a driver,

R. Gonzalez, flagged them down to report an incident of road rage. Gonzalez told

Officer Merino that another car had stopped at a nearby intersection and that its

driver exited the car, approached Gonzalez’s car, cursed at Gonzalez, walked back

to his own car, and attempted to pull out an object that Gonzalez thought was

maybe a bat or a gun. While the officers were speaking with Gonzalez, the other

car “U”-turned in the intersection and pulled alongside where the officers were

speaking with Gonzalez. No one but the driver was in the other car. Upon arriving,

the driver, Derick Hunt, almost immediately told Officer Vu, “I didn’t do it, I

didn’t do it.” Because everyone’s cars were blocking the road, the officers asked

Gonzalez and Hunt to pull into a nearby parking lot.

      Once all three cars were parked in the lot, both Gonzalez and Hunt exited

their cars and started talking to each other. Their interaction was initially hostile

and then became harmonious. Gonzalez said that he did not want to press charges.


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Hunt hugged Gonzalez. Officer Vu then told both Hunt and Gonzalez that they

were free to leave. Gonzalez left.

       Hunt remained at the scene though he had not been ordered to do so. Officer

Vu continued to talk with Hunt. While they talked, Officer Merino approached the

car that Hunt had been driving. He did so because Hunt’s hug had struck him as

odd and because he wanted to ensure that no weapons had been involved. As

Officer Merino approached the car’s open front passenger window, he smelled a

strong odor of marijuana.

       Officer Merino told Officer Vu that he smelled marijuana, so Officer Vu told

Hunt that he was now being detained. Hunt then tried to reach back into the car.

Hunt admitted that there was marijuana in the car, telling Officer Vu that he only

had a little bit inside the vehicle.

       Because of this, Officer Merino searched the car, starting with its center

console. When he opened the center console, the smell of marijuana got stronger.

When he looked into the console, he saw a gun, which contained a loaded

magazine. He also found in the console a white grocery bag, which contained a

large amount of marijuana, about 114 grams of cocaine, and about 50 pills in

multiple pill bottles. Two of the pill bottles bore the name “David Cavanaugh.”

Lastly, he found in the console $311 in small denominations, weight scales, and

small baggies.


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      Hunt was prosecuted for knowing or intentional possession of cocaine in an

amount between four grams and 200 grams. See TEX. HEALTH & SAFETY CODE

§ 481.115(a), (d). In both a motion to suppress and in trial objections, Hunt

challenged the admission of the evidence that Officer Merino discovered in the car.

The trial court overruled both the motion to suppress and the trial objections. After

a jury trial, Hunt was convicted and was assessed punishment at 32 years’

imprisonment. This appeal followed.

      Legal Sufficiency of Evidence of Knowing or Intentional Possession

      We review Hunt’s legal-sufficiency challenge under the standard in Jackson

v. Virginia, 443 U.S. 307 (1979). See Ramsey v. State, 473 S.W.3d 805, 808 (Tex.

Crim. App. 2015). We examine all the evidence in the light most favorable to the

verdict and determine whether a rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 318–19.

Our review includes both direct and circumstantial evidence, as well as any

reasonable inferences that may be drawn from that evidence. Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007). We do not reevaluate the weight and

credibility of the evidence or substitute our judgment for that of the factfinder.

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Because the jury

is the sole judge of the credibility of the witnesses and of the weight given to their




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testimony, any conflicts or inconsistencies in the evidence are resolved in favor of

the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).

      In a prosecution for possession of a controlled substance, a necessary

element of the offense is the defendant’s actual care, custody, or control of the

controlled substance. See TEX. HEALTH & SAFETY CODE § 481.115(a); Evans v.

State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). The evidence, whether direct,

circumstantial, or both, “must establish that the defendant’s connection with the

drug was more than fortuitous.” Evans, 202 S.W.3d at 161. This is the “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.” Id. at 161–62. “Mere presence at the location

where drugs are found is . . . insufficient, by itself, to establish actual care, custody,

or control of those drugs.” Id. at 162. “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.” Id. “It is

. . . not the number of links that is dispositive, but rather the logical force of all of

the evidence, direct and circumstantial.” Id.

      The kinds of links that the Court of Criminal Appeals and our sister courts of

appeals often look to include:

      (1) the defendant’s presence when a search is conducted; (2) whether
      the contraband was in plain view; (3) the defendant’s proximity to and
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      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 were 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 a consciousness of guilt.

Id. at 162 n.12.

      Hunt focuses his legal-sufficiency challenge on whether the State proved

beyond a reasonable doubt that he knowingly or intentionally possessed the

cocaine. Hunt was the only occupant of the car. He voluntarily talked with Officer

Vu. During that conversation, Officer Merino smelled marijuana through the car’s

open front passenger window. Hunt was therefore detained. Hunt admitted to

Officer Vu that he had marijuana inside the vehicle. Officer Merino then searched

the car’s closed center console and found a gun containing a loaded magazine and

a white grocery bag containing marijuana, 114 grams of cocaine, and pills.

      Based on this evidence, when viewed in the light most favorable to the

verdict, the jury could reasonably have found that Hunt knowingly or intentionally

possessed the cocaine. Hunt admitted that he “had”—that is, possessed—marijuana

in the car. The same bag that contained Hunt’s marijuana also contained the 114

grams of cocaine. There is evidence, therefore, that Hunt knew that he had cocaine

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in the white grocery bag in the car he was driving. There is no evidence suggesting

that Hunt was simply near someone else’s cocaine. On the contrary, the evidence

shows the presence of Evans links 1 (Hunt was present during the search), 3 (Hunt

was near the cocaine, and it was accessible to him), 6 (Hunt made an incriminating

statement), 9 (Officer Merino smelled marijuana), 10 (Officer Merino found

marijuana, weight scales, and baggies), 12 (Officer Merino had to open the

console), and 13 (Officer Merino found $311). See 202 S.W.3d at 162 n.12.

      In response, Hunt argues that there are nine sets of facts and circumstances

that tend to show that no rational trier of fact could have found knowing or

intentional possession of cocaine:

      1.    Officer Vu did not request DNA or fingerprint testing of the gun or
            bullets, though Officer Vu “agreed that if he could show that Mr. Hunt
            had handled the weapon that was sitting on top of the drugs, that
            would help show Mr. Hunt knew that was there.”
      2.    During the search, Hunt did not appear to be high, to be intoxicated, to
            have bloodshot eyes, to be under the influence of drugs, or to smell
            like marijuana.

      3.    The car Hunt was driving was a rental car owned by Enterprise.
      4.    Officer Merino did not find any paperwork in the car indicating that
            Hunt owned the car.

      5.    The pill bottles found in the car’s center console were not labeled with
            Hunt’s name.

      6.    No one tried to find any fingerprints on the weight scales or baggies.
      7.    Officer Merino did not receive any DNA or fingerprint results from
            the gun.

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      8.    Two pill bottles found in the grocery bag bore the name “David
            Cavanaugh.”

      9.    Officer Merino did not know who David Cavanaugh is and did not
            look him up on his patrol car’s computer.

These do not alter the analysis. We must examine the evidence in the light most

favorable to the verdict. In that light, Hunt’s point number one, for example, does

not undermine Hunt’s having admitted to possessing the marijuana that was in the

same bag as the cocaine. Showing that Hunt knew that the marijuana was in the

bag strongly suggests that he knew the cocaine was in the bag too. Even Hunt

agrees with this logic by contending that, had Hunt known that the gun was in the

console, that “would help show that Mr. Hunt knew” that the cocaine was in the

console too. Hunt’s point number two demonstrates, at most, that Evans link 4 is

not present, but that does not undermine the logical force of the separate presence

of links 1, 3, 6, 9, 10, 12, and 13. Hunt’s points three through nine raise issues

about whether Hunt owned the car that he was driving; recently handled the gun,

weight scales, and baggies; or owned the pill bottles. But none of this necessarily

undermines the independently reasonable conclusion that Hunt knowingly or

intentionally possessed both the marijuana and the cocaine in the white grocery

bag. We overrule Hunt’s first issue.




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             Denial of Motion to Suppress and Trial Objections to
                Evidence Obtained from Warrantless Search

      In reviewing a motion to suppress, we must view the evidence in the light

most favorable to the trial court’s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex.

Crim. App. 2007). The trial judge, unlike us, is uniquely situated to observe

witness demeanor and appearance. Id. Consequently, the trial court is the sole trier

of fact and judge of the credibility of the witnesses and the weight to be given their

testimony when entertaining a motion to suppress. Id. at 24–25. When a trial court

makes explicit fact findings, we determine whether the evidence, viewed in the

light most favorable to the trial court’s ruling, supports these fact findings. Johnson

v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013).

      In reviewing whether evidence obtained by a warrantless search is properly

admitted or suppressed, we must determine what type of citizen–police interaction

is at issue—a consensual encounter, an investigative detention, or an arrest. Id. at

191. Consensual encounters do not implicate Fourth Amendment protections. Id.

      The trial court stated the following when it denied the motion to suppress:

      The defendant’s initial encounter with Officers Merino and Vu was
      consensual. Officer Merino was well within his legal rights and within
      the -- to be where he was when he smelled marijuana through the
      open window of the defendant’s car. Search subsequent to that was
      legally allowed where the guns and drugs were recovered.

The trial court’s finding that Hunt’s initial encounter with Officers Merino and Vu

was consensual is supported by the record. The trial court could have believed

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Officer Vu’s testimony that there was no traffic stop, that Hunt was not detained

until after Officer Merino smelled the marijuana, and that Officer Vu told Hunt

after Hunt hugged Gonzalez that Hunt was free to leave. Amid Hunt’s admittedly

consensual encounter with the officers, Officer Merino approached Hunt’s car and

its open window and smelled marijuana through the open window.

      Though Hunt admits that this interaction was a consensual encounter, he

relies on investigative-detention case law to argue that the search was

unconstitutional. Because Hunt’s encounter with the officers was consensual and

was not a detention, Fourth Amendment protections are not implicated. See

Johnson, 414 S.W.3d at 191.

      In a prior instance when the police did not detain a driver but the driver

instead voluntarily stopped the car and exited it, the Court of Criminal Appeals

held that the police did not initiate an unlawful search merely by walking toward

the stopped car, smelling marijuana, and then detaining the driver. See Stewart v.

State, 603 S.W.2d 861, 862 (Tex. Crim. App. 1980). This case is akin to Stewart

because, in both instances, the search of a car that produced evidence of possession

of a controlled substance resulted simply from the officers’ having approached a

car that the defendant had opened on his own without having been detained. See id.

      Hunt argues that the case is more akin to Rodriguez v. United States, 135

S. Ct. 1609 (2015), which he characterizes as involving an unlawful “police


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extension of a traffic stop in order to conduct a . . . sniff . . . .” There, a police

officer pulled over a driver for having driven on the shoulder, a violation of state

law. The officer collected the driver’s license, registration, and proof of insurance;

ran a records check on the driver; returned to the driver’s car; gathered the

passenger’s driver’s license; questioned the driver and passenger about where they

were coming from and where they were going; ran a records check on the

passenger; issued a written warning to the driver; explained the warning; and

returned the driver’s and passenger’s documents. Rodriguez, 135 S. Ct. at 1612–

13. At that point, the officer had handled the matter for which the stop was made.

See id. at 1613. The officer then prolonged the encounter to conduct a dog sniff of

the car. Id. The Supreme Court of the United States held that

      a police stop exceeding the time needed to handle the matter for which
      the stop was made violates the Constitution’s shield against
      unreasonable seizures. A seizure justified only by a police-observed
      traffic violation, therefore, “become[s] unlawful if it is prolonged
      beyond the time reasonably required to complete th[e] mission” of
      issuing a ticket for the violation.
Id. at 1612 (alterations in original).

      Rodriguez’s outcome depended on a preexisting, and completed, traffic stop

before a dog sniff. See id. (“This case presents the question whether the Fourth

Amendment tolerates a dog sniff conducted after completion of a traffic stop.”); id.

at 1613 (“He moved to suppress the evidence seized from his car on the ground,

among others, that [the officer] had prolonged the traffic stop without reasonable

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suspicion in order to conduct the dog sniff.”); id. at 1614 (“We granted certiorari to

resolve a division among lower courts on the question whether police routinely

may extend an otherwise-completed traffic stop, absent reasonable suspicion, in

order to conduct a dog sniff.”).

      This case does not involve a traffic stop. Hunt voluntarily stopped his car,

exited it, and spoke with Officer Vu. Officer Merino’s approach of the car’s open

window and smell of marijuana did not prolong the time Hunt needed to stay at the

scene. Rodriguez is inapplicable. We overrule Hunt’s second issue.

                                    Conclusion

      We affirm the trial court’s judgment.



                                                Harvey Brown
                                                Justice

Panel consists of Justices Keyes, Brown, and Lloyd.

Do Not Publish. TEX. R. APP. P. 47.2(b).




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