Opinion issued October 18, 2012.




                                   In The

                            Court of Appeals
                                   For The

                        First District of Texas
                         ————————————
                            NO. 01-09-01075-CR
                         ———————————
                       ROY JOE BAILEY, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



             On Appeal from the 184th Judicial District Court
                          Harris County, Texas
                     Trial Court Case No. 1210862



                        MEMORANDUM OPINION

     A jury found appellant, Roy Joe Bailey, guilty of the offense of possession

of cocaine weighing less than one gram,1 and it assessed his punishment at


1
     See TEX. PENAL CODE ANN. §§ 481.102(3)(D), 481.115(b) (Vernon 2010).
confinement for eighteen years with a $10,000 fine. In two issues, appellant

contends that the evidence is legally and factually insufficient to support his

conviction.

      We affirm.

                                   Background

      City of Humble Police Department (“HPD”) Officer J. Martinez testified

that on April 7, 2009, he saw a car with an expired inspection sticker. He initiated

a traffic stop, and, as he approached the car, he “immediately” smelled “the aroma

of burnt marijuana coming from out of the vehicle.” The driver of the car, a man,

reported his name as “Coleman.” Appellant was sitting in the passenger seat.

Martinez “noticed broken pieces of a glass crack pipe” in appellant’s lap and called

for assistance. After a second police officer arrived on the scene, Martinez arrested

Coleman and appellant, searching both men for weapons.            Martinez found a

“copper Brillo pad,” which he “immediately recognized” as an instrument

“commonly used” as a filter in “crack pipes,” in one of appellant’s pockets.

Martinez also found Coleman to be in possession of marijuana.

      After Officer Martinez arrested Coleman and appellant, he conducted an

inventory search of the car and found a piece of a “broken glass crack pipe . . .

located in between the front seat and the middle console that was within the reach

of [appellant].” The crack pipe was inside a “toothbrush holder,” which Martinez

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testified, based on his training and experience, was “commonly” used to hold

“crack pipes.” One end of the pipe was “blackened,” which indicated that it had

recently been used to smoke cocaine. Martinez then transported Coleman and

appellant to a detention facility and informed them “that there could be additional

charges for any contraband that would be brought into jail.”          At that point,

appellant told Martinez that he had “two crack cocaine rocks hidden in his left

sock.” Martinez then searched appellant’s left sock and found the two crack rocks.

      On cross-examination, Officer Martinez testified that although he saw

“pieces” of the crack pipe in appellant’s lap, he did not seize the pieces as

evidence; he seized only the remaining piece of the crack pipe found in the

“toothbrush holder.” Martinez determined that the piece of the crack pipe found in

the middle console belonged to appellant because it was “within his reach” and it

would have been “hard for [Coleman] to get to it.” Although he initially arrested

appellant for possession of drug paraphernalia, Martinez charged appellant with

possession of a controlled substance when he discovered the crack rocks in

appellant’s sock. At the detention facility, appellant “offered” to “make a phone

call and order some cocaine.” On re-direct examination, Martinez explained that

the broken pieces of the crack pipe that he saw in appellant’s lap were the same

color as the piece of the pipe that he found in the middle console.




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      Appellant testified that on April 7, 2009, he was attempting to hitchhike to

Conroe, Texas, when Coleman, whom he had never met before, picked him up “on

the side of the highway.” About fifteen minutes later, Officer Martinez initiated

the traffic stop, looked inside the car, and asked, “Where’s the weed?” Both

Coleman and appellant replied that neither of them had been smoking marijuana.

After a second police officer arrived on the scene, Martinez arrested Coleman for

driving without a driver’s license. The second police officer then approached

appellant and asked, “Where’s the drugs?” He pulled appellant out of the car and

searched him, finding “some Brillo pad” in appellant’s back pocket.

      After Officer Martinez placed appellant into the patrol car, he entered the car

and told appellant that he had found “crack rocks in a sock behind the passenger

seat” and “a crack pipe that was in a white container that he found in the car.”

Martinez told appellant, “I found it behind the passenger seat. It’s got to be

yours.” However, the only items in the car that belonged to appellant were a

“green pullover sweater and a small bible.” Martinez told appellant, “I can charge

you with this or you can give me somebody else,” and he directed appellant to

“[g]ive [him] somebody big.”       Appellant then called an acquaintance, using

Coleman’s cellular telephone, to set up a purchase of cocaine. Martinez, along

with several other police officers, then left to investigate the person appellant had

called.

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                              Sufficiency of the Evidence

       In his first issue, appellant argues that the evidence is legally insufficient to

support his conviction because “the State failed to affirmatively link appellant to

the cocaine.” In his second issue, appellant argues that the evidence is factually

insufficient to support his conviction because “the State failed to prove the

appellant had exclusive possession or control over the cocaine.”

      We review the legal sufficiency of the evidence by considering all of the

evidence “in the light most favorable to the prosecution” to determine whether any

“rational trier of fact could have found the essential elements of the offense beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781,

2788–89 (1979). Our role is that of a due process safeguard, ensuring only the

rationality of the trier of fact’s finding of the essential elements of the offense

beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim.

App. 1988). We give deference to the responsibility of the fact finder to fairly

resolve conflicts in testimony, to weigh evidence, and to draw reasonable

inferences from the facts. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.

App. 2007). However, our duty requires us to “ensure that the evidence presented

actually supports a conclusion that the defendant committed” the criminal offense

of which he is accused. Id.




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      We now review the factual sufficiency of the evidence under the same

appellate standard of review as that for legal sufficiency. Ervin v. State, 331

S.W.3d 49, 52–56 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d.).

      To establish the unlawful possession of a controlled substance, the State

must show that a defendant (1) exercised care, custody, control, or management

over the controlled substance, and (2) he knew he possessed a controlled

substance. TEX. HEALTH & SAFETY CODE ANN. §§ 481.002(38), 481.115 (Vernon

2010); Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App.1995). Possession

may be proved through either direct or circumstantial evidence. Poindexter v.

State, 153 S.W.3d 402, 405–06 (Tex. Crim. App. 2005); see also Rice v. State, 195

S.W.3d 876, 881 (Tex. App.—Dallas 2006, pet. ref’d) (stating jury could infer

knowing or intentional possession of contraband).

      Officer Martinez testified that when he first approached Coleman’s car, he

saw a broken crack pipe in appellant’s lap. He later found, in a console holder in

between the driver’s and passenger’s seats of the car, the remaining piece of the

broken crack pipe, which was the same color as the pieces of pipe that he saw in

appellant’s lap. After searching appellant, Martinez found a “Brillo” pad, which he

explained was “commonly used” as a filter in crack pipes.         Most important,

Martinez testified that when he transported appellant to the detention facility, he

advised appellant that police officers would conduct a strip search. He instructed

                                        6
appellant that “if he had any contraband that had not been found it might benefit

him to tell” Martinez. Appellant told Martinez that “he had two crack cocaine

rocks hidden in his left sock.” Martinez then searched appellant’s left sock and

found the cocaine.

      Appellant asserts that the State was required to prove “independent facts and

circumstances” that “affirmatively link” him to the cocaine. See Dickey v. State,

693 S.W.2d 386, 389 (Tex. Crim. App. 1984); Brazier v. State, 748 S.W.2d 505,

508 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d). However, the State need

only prove such “independent facts and circumstances” when the defendant is not

in “exclusive possession” of the place where the contraband is found. See, e.g.,

Brazier, 748 S.W.2d at 508. For example, in Dickey, the defendant was accused of

cultivating marijuana plants grown on another’s property. 693 S.W.2d at 388. In

Brazier, the defendant was accused of possessing cocaine found in the armrest of a

car in which he was a passenger. 748 S.W.2d at 507. As explained by the Texas

Court of Criminal Appeals, the “affirmative links rule” is “designed to protect the

innocent bystander from conviction based solely upon his fortuitous proximity to

somebody else’s drugs.”     Poindexter, 153 S.W.3d at 406.       The rule “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.

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      Here, however, the evidence reveals that appellant was not an “innocent

bystander” who shared joint possession of the car where the cocaine was found.

Officer Martinez testified that he found cocaine in appellant’s left sock after

appellant had admitted to possessing cocaine.       This evidence is sufficient to

establish that appellant had knowledge of and control over the contraband. See,

e.g., Sereal v. State, No. 01-09-00192-CR, 2011 WL 1234739, at *5 (Tex. App.—

Houston [1st Dist.] Mar. 3, 2011, pet. ref’d) (stating that officer’s testimony that

cocaine found on defendant’s person at police station was sufficient to link

defendant to cocaine). And although appellant testified that the sock was found

behind the passenger seat, the jury was entitled to disregard appellant’s testimony

and believe Martinez’s testimony. See Williams, 235 S.W.3d at 750. Thus, we

conclude that a rational trier of fact could have found, beyond a reasonable doubt,

that appellant knowingly possessed the cocaine. See Moreno, 755 S.W.2d at 867.

      Accordingly, we hold that the evidence is sufficient to support appellant’s

conviction.

      We overrule appellant’s first and second issues.




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                                    Conclusion

      We affirm the judgment of the trial court.




                                               Terry Jennings
                                               Justice

Panel consists of Justices Jennings, Higley, and Sharp.

Do not publish. TEX. R. APP. P. 47.2(b).




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