                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00083-CR



       SIRENA DOROTHY SIMMONS, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 196th District Court
                 Hunt County, Texas
                Trial Court No. 28171




       Before Morriss, C.J., Carter and Moseley, JJ.
         Memorandum Opinion by Justice Carter
                                          MEMORANDUM OPINION
            Sirena Dorothy Simmons appeals her conviction of possession of a controlled substance

with intent to deliver. Trooper Jay Simpson, with the Texas Department of Public Safety (DPS),

detained a car driven by Leonard Davis, Simmons’ cousin, in Hunt County, Texas, for traveling

at sixty-eight miles per hour in a sixty-five-mile-per-hour speed zone. 1                         Simmons was a

passenger in the vehicle.

            After Simpson conducted brief interviews of Davis and Simmons, Davis consented to the

search of the rental 2 car. When Simpson discovered, in the spare tire well, a plastic bag

containing 2,949.69 grams of cocaine, Simpson drew his gun and ordered Davis 3 to get on the

ground. Instead of complying, Davis fled the scene. While Simpson and Trooper Phillip

McKenzie 4 pursued and apprehended Davis, Simmons fled from the scene. Several hours later,

McKenzie apprehended Simmons at an Exxon gas station approximately one-half mile from the

scene of the traffic stop.

            Simmons argues there are insufficient affirmative links to establish that she had actual or

constructive possession of the cocaine. We affirm.

            In reviewing the legal sufficiency of the evidence, we review all the evidence in the light

most favorable to the jury’s verdict to determine whether any rational jury could have found the

1
 At the time, the speed limit along this stretch of highway changed depending on the time of day and was sixty-five
miles per hour at night. Davis argued with Simpson about whether he was speeding and claimed he had his cruise
control set at seventy-miles-per-hour.
2
    Simpson testified drug traffickers often use rental cars.
3
    Davis had been ordered to stand to the side of the patrol car. Simmons remained in the car.
4
    McKenzie, with DPS, arrived at the scene while Simpson searched the car.

                                                                2
essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893,

912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v.

State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). We examine legal

sufficiency under the direction of the Brooks opinion, while giving deference to the

responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19).

       At trial, the State was required to prove that Simmons exercised control, custody,

management, or care over the drugs and that she knew the matter possessed was contraband. See

Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); see also TEX. PENAL CODE ANN.

§ 1.07(a)(39) (West Supp. 2013). Unless the accused had exclusive possession of the place

where the controlled substance was found, the State must present “additional independent facts

and circumstances which affirmatively link the accused to the contraband” in order to prove

possession beyond a reasonable doubt. Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App.

[Panel Op.] 1981).

       Mere presence at the location where drugs are found is insufficient, by itself, to establish

actual care, custody, or control of those drugs. Evans, 202 S.W.3d at 162. Presence or proximity

to drugs, however, when combined with other direct or circumstantial evidence, may be

sufficient to establish control, management, custody, or care provided the proof amounts to more

than a strong suspicion. Id. “The ‘affirmative links rule’ is designed to protect the innocent

bystander from conviction based solely upon his fortuitous proximity to someone else’s drugs.”

                                                3
Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). Texas courts have recognized

the following as affirmative links used to establish a person’s possession of contraband:

       (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 narcotic; (4) whether the accused was under the influence of narcotics when
       arrested; (5) whether the accused possessed other contraband or narcotics 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 drugs were found; (12) whether the
       place where the drugs were 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.

Wright v. State, 401 S.W.3d 813, 818–19 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d); see

Evans, 202 S.W.3d at 162 n.12. Possession may be established by proving either actual or

constructive possession. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985).

Further, it is well established that an accused may jointly possess contraband with another and

possession does not need to be exclusive. Id.

       The State argues, “There were three strong affirmative links between Appellant and

2,949.69 grams of Cocaine found in the trunk area of the rental car [in which] Appellant was a

passenger.” The State argues these affirmative links are (1) the location of Simmons’ suitcase

near the contraband, (2) conflicting statements, and (3) consciousness of guilt as demonstrated

by fleeing and nervousness. Simmons claims she merely accepted a ride from her cousin and did




                                                4
not know about the contraband. Simmons points out that the police found no large amounts of

cash or contraband on her person or close to the passenger seat. 5

        The State does not explain how the location of Simmons’ suitcase tends to connect her to

the contraband. Under certain circumstances, the location of a suspect’s property may tend to

connect the suspect to contraband. For example, contraband found near a suspect’s luggage

might indicate either that the contraband fell out of the luggage or that the suspect placed all of

his property together. Either situation would tend to connect the contraband to the suspect. We

are not persuaded that the location of Simmons’ suitcase near the contraband under the

circumstances of this case tends to connect Simmons to that contraband. The contraband was

located in the spare tire wheel well of the trunk. Although Simmons’ luggage was also located in

the trunk, the trunk is the usual location for a suitcase. Simpson acknowledged that there was a

cover on the spare tire well concealing the drugs. This cover prevents a conclusion that the

contraband fell out of Simmons’ luggage or an association indicating the Simmons placed all of

her property together. The fact that Simmons’ suitcase was also located in the trunk has little—if

any—tendency to connect Simmons to the contraband.

        The State also alleges that the conflicting statements have some tendency to connect

Simmons to the contraband. Simpson separated Davis and Simmons, who was a passenger in the

vehicle, to conduct separate interviews. Davis, who had a New Jersey driver’s license, claimed

to have been visiting Simmons’ grandmother, who was receiving hospice care. When Simpson

asked Davis if Simmons’ grandmother had passed away, Davis claimed that she had. Simmons

5
 Monty Posey, a sergeant with the DPS, testified that he conducted an inventory search of the vehicle and
discovered no additional contraband.
                                                   5
claimed to have been visiting Texas because her brother was involved in a motorcycle accident.

When asked about her grandmother, Simmons’ claimed her grandmother was still alive. On

cross-examination, Simpson agreed Davis’ and Simmons’ stories “matched up with the

exception of whether or not the grandmother had passed or not passed.” Even viewed in a light

most favorable to the prosecution, we find little connection between this conflict and Simmons

alleged possession of the contraband.

           The State argues Simmons’ nervousness indicates a consciousness of guilt. There are

two problems with this argument. First, the record contains sparse evidence that Simmons was

nervous. The only evidence of nervousness we have been directed to is Simpson’s testimony

stating,

                   You know, based on my training and experience, sir, I look at people’s
           body language, and I try to determine how -- how excited they are. And I do that
           through looking at their neck -- I can’t say that -- that carotid artery that’s in their
           neck, at their blood pressure, and it kind of tells me something suspicious.
                   And in doing that, I could see when I came back up there and started to
           grab stuff, when I was looking at her tattoo, that something’s not right here.
           Again, that sixth sense that you pick up on.

The State characterizes this testimony as evidence that Simmons was nervous.                    Simmons

characterizes this testimony as merely an opinion that Simmons was suspicious.                        While

excessively nervous behavior has long been recognized as an example of consciousness of guilt,

Texas courts—including this one—have also observed that most people are somewhat nervous

when confronted by a police officer; nervousness is a tenuous link to the contraband. Lassaint v.

State, 79 S.W.3d 736, 744 (Tex. App.—Corpus Christi 2002, no pet.); Hernandez v. State, 867




                                                      6
S.W.2d 900, 905 (Tex. App.—Texarkana 1993, no pet.). Although Simmons’ nervousness is an

affirmative link to the contraband, the link is tenuous.

       The last affirmative link argued by the State is that Simmons fled the scene to avoid

arrest. Simmons claims her flight should not be considered because she only fled the scene out

of fear of Simpson. On cross-examination, Simpson admitted he shouted, “[Y]ou’re going to

die,” as he chased Davis with a drawn gun. Simmons claims she fled due to this threat. A

rational juror could have disbelieved Simmons for two reasons. First, Simpson explained that he

was referring to the dangers of running across an interstate highway and was not making a threat.

Second, another officer, McKenzie, had arrived at the scene, and his presence would have

mitigated any fears concerning a rogue officer. To give proper deference to the jury verdict, we

are required to view the evidence in a light most favorable to the prosecution. Because a rational

juror could have concluded Simmons did not flee out of fear of Simpson, we reject Simmons’

argument that her flight should not be considered.

        A police manhunt, lasting approximately four hours, was organized to search for

Simmons. McKenzie testified that the police searched “[t]hroughout the night -- out there on the

top of the hill.” A police helicopter from Longview arrived at the scene approximately ten

minutes after Simmons absconded but was only briefly involved in the search. Shortly after the

helicopter arrived, it was recalled to Longview. Two police officers with a tracking dog traveled

approximately two miles west until the dog lost the scent it was following. Several police

officers followed these two officers in their cars. Other police officers searched along the

interstate east of the traffic stop for approximately three miles. Police officers visited a nearby

                                                  7
abandoned house, a nearby mobile home park, and several houses in the area. One of the houses

had “a lot of dogs,” and the owner informed the police that the dogs had not been barking at

anything. McKenzie visited the local gas stations and truck stops to inform the clerks of the

suspect. The gas station where Simmons was apprehended was visited twice by McKenzie prior

to Simmons’ arrival at that station. Describing Simmons’ condition, McKenzie testified, “[S]he

was dirty. I could see that she did have mud on her clothes, and she looked pretty much resigned

that she’s -- that we were there to get her or pick her up.”

       Flight from the location of the contraband is persuasive evidence from which a jury could

infer that Simmons realized she had been caught jointly possessing the cocaine and that she fled

in an attempt to avoid prosecution. See Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App.

1989) (“Evidence of flight is admissible as a circumstance from which an inference of guilt may

be drawn.”) (citations omitted). Evidence of flight alone will not support a guilty verdict. Id.;

Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. [Panel Op.] 1979); Holloway v. State,

525 S.W.2d 165, 167 (Tex. Crim. App. 1975); Hill v State, 161 S.W.3d 771, 776 (Tex. App.—

Beaumont 2005, no pet.). But it is clear that flight from the scene of a crime is a circumstance

from which an inference of guilt can be drawn by a fact-finder. Foster, 779 S.W.2d at 859;

Valdez, 623 S.W.2d at 321. The fact that Simmons fled the scene after drugs were found in the

vehicle is not the only circumstance for the jury to consider. She was a passenger in a rented

vehicle, which contained a large quantity of cocaine, driven by a person with an extensive

criminal history.   Viewed in a light most favorable to the jury’s verdict, Simmons’ flight

provides a strong link to the contraband.

                                                  8
           Simmons relies on Jenkins v. State, 76 S.W.3d 709, 713 (Tex. App.—Corpus Christi

2002, pet. ref’d), in which the defendant was the passenger in a car containing contraband and

the only affirmative link to that contraband was the defendant’s nervousness. Id. Similar to this

case, more affirmative links connected the driver to the contraband than the passenger. 6 Id.

Also similar to this case, the contraband was secreted, and there was no direct evidence that the

defendant knew of the existence of the contraband. Id. There is a significant difference, though,

between Jenkins and this case. Jenkins explicitly notes that the defendant “did not attempt to

flee.” Id. at 717. This case is distinguishable from Jenkins because Simmons did flee the scene.

           Simmons argues that the absence of numerous of the affirmative links should be

considered. As noted above, the list of affirmative links is not exclusive. Appellate courts do

not balance the absent affirmative links against the affirmative links that are present. Wiley v.

State, 388 S.W.3d 807, 814 (Tex. App.—Houston [1st Dist.] 2012, no pet.). In other words, the

absence of various affirmative links is not evidence of innocence. Id.

           The flight, when considered with the other facts, is sufficient evidence tending to connect

Simmons to the contraband. We conclude that the evidence, viewed in a light most favorable to

the prosecution, is sufficient. A rational juror could have found Simmons guilty as a principal

beyond a reasonable doubt.




6
    The Troopers found $2,200.00 in Davis’ possession.


                                                         9
      For the reasons stated, we affirm.



                                                Jack Carter
                                                Justice

Date Submitted:      January 7, 2014
Date Decided:        February 19, 2014

Do Not Publish




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