                                 NO. 12-10-00136-CR

                        IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

RUDOLPH TOMMY GILLIAM,                           §           APPEAL FROM THE 7TH
APPELLANT

V.                                               §           JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §           SMITH COUNTY, TEXAS


                                   MEMORANDUM OPINION
          Rudolph Gilliam appeals the revocation of his community supervision. In his sole issue,
Appellant argues that the evidence is insufficient to support the trial court’s revocation order. We
affirm.


                                          BACKGROUND
          Appellant was charged by indictment with the offense of aggravated robbery. He pleaded
guilty pursuant to a plea agreement, and the trial court placed him on deferred adjudication
community supervision for eight years.
          On November 3, 2009, Tyler police officer Jeff Roberts stopped a vehicle for failing to
have a license plate light. Appellant was seated on the passenger side of the vehicle and a female,
Patricia Daniel, was seated on the driver’s side. After marijuana was discovered in the center
console of the vehicle, Appellant was placed under arrest and taken to the Smith County Jail.
Subsequently, the State filed an application to proceed to final adjudication. In its second
amended application, the State alleged that Appellant violated five conditions of his community
supervision by (1) possessing a usable quantity of marijuana in an amount more than two ounces
but less than four ounces; (2) operating a motor vehicle when his license was suspended; (3)


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associating with a person convicted of prostitution; (4) possessing marijuana; and (5) failing to
participate in the state drug or alcohol abuse continuum of care treatment plan. Appellant pleaded
“not true” to the allegations in the State’s motion to adjudicate.
       After an evidentiary hearing, the trial court found that Appellant committed the first four
violations. Accordingly, the trial court adjudicated Appellant guilty and assessed punishment of
imprisonment for fifteen years. This appeal followed.


                           REVOCATION OF COMMUNITY SUPERVISION

       In his sole issue, Appellant argues that the evidence is insufficient to support revocation of
his community supervision.
Standard of Review
       We review a trial court’s order revoking community supervision under an abuse of
discretion standard. See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). In a
community supervision revocation proceeding, the state has the burden of proving a violation of
the terms of community supervision by a preponderance of the evidence. See Rickels, 202
S.W.3d at 763-64; Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The state meets
its burden when the greater weight of the credible evidence creates a reasonable belief that the
defendant violated a condition of community supervision as alleged. See Rickels, 202 S.W.3d at
764; Jenkins v. State, 740 S.W.2d 435, 437 (Tex. Crim. App. 1983). In a hearing on a motion to
revoke community supervision, the trial court is the sole trier of fact, and is also the judge of the
credibility of the witnesses and the weight to be given their testimony. Taylor v. State, 604 S.W.2d
175, 179 (Tex. Crim. App. 1980); Trevino v. State, 218 S.W.3d 234, 240 (Tex. App.–Houston
[14th Dist.] 2007, no pet.). Furthermore, on appeal, we examine the evidence in the light most
favorable to the trial court's ruling. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel
Op.] 1981); Duncan v. State, 321 S.W.3d 53, 57 (Tex. App. –Houston [1st Dist.] 2010, pet ref’d).
One single violation of the terms of community supervision is sufficient to support a trial court’s
order revoking community supervision. Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App.
1980); Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980) (stating that one
sufficient ground for revocation is enough to support trial court’s decision); Cochran v. State, 78
S.W.3d 20, 28 (Tex. App.–Tyler 2002, no pet.).




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Applicable Law
         In its application in this case, the State alleged two different violations for possession of
marijuana. The first was that Appellant, by possessing “a usable quantity of marijuana in an
amount of four ounces or less but more than two ounces,” violated the condition that he “commit
no offense against the laws of this state or of any other state or the United States.” The second was
that Appellant, by possessing marijuana, violated the condition that he “not use, consume, nor
possess marijuana, any narcotic substance, controlled substance, or dangerous drug at any time
except as prescribed by a medical doctor and taken in accordance with the medical doctor’s
prescription.” Case law has established two different categories of violations: “new offense or new
crime” violations and “technical” violations.                  Coffel v. State, 242 S.W.3d 907, 909 (Tex.
App.–Texarkana 2007, no pet.). New offense violations involve the defendant’s alleged criminal
violation of Texas law. Id. Technical violations involve other conditions that have nothing to do
with obeying “the laws of this state or of any other State or of the United States.” Id. (quoting TEX.
CODE CRIM. PROC. ANN. art. 42.12 §11(a)(1) (Vernon Supp. 2007)). Here, we will address only the
second marijuana allegation, “simple possession,” which does not relate to whether Appellant
violated the law.1
         The sufficiency of the evidence necessary to establish simple possession is analyzed under
the same rules used in addressing the possession element of the criminal offense of possession of a
controlled substance. See Evans v. State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006)
(analyzing simple possession of controlled substance). To prove possession of a controlled
substance, the state must show (1) that the accused exercised care, control, or custody over the
substance, and (2) that the accused knew he possessed a controlled substance. Id. at 161; Brown v.
State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). When the accused is not in exclusive
possession of the place where the substance is found, the state must show additional independent
facts and circumstances that link the accused to the contraband in order to conclude that the
accused had knowledge and control of the contraband. Poindexter v. State, 153 S.W.3d 402, 406

         1
             Appellant argues that the “simple possession” violation is not shown because Texas law only prohibits
possession of marijuana in a “usable quantity,” and the evidence does not support a finding that the marijuana in this
case is “usable.” However, Appellant’s counsel specifically stated at trial that the simple possession allegation “does
not allege a violation of law because they don’t allege a usable amount of marijuana, [the simple possession allegation]
would be a violation of probation, even if it is not a violation of the law. The only difference in [the two marijuana
allegations] is the [first one] alleges a new violation of law. . . . There is some difference in finding the defendant
violated the law and, hence, his probation, and violated his probation.”



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(Tex. Crim. App. 2005). This “links” rule is not an independent test of legal sufficiency; it is
merely a shorthand catch-phrase for a large variety of circumstantial evidence that may establish
the knowing “possession” or “control, management, or care” of the contraband. Evans, 202
S.W.3d at 162 n.9.
       A nonexclusive list of factors that have been found to be sufficient, either singly or in
combination, to establish the legal sufficiency of the evidence to prove a knowing “possession”
includes (1) whether the defendant owned or had the right to possess the place where the drugs
were found; (2) whether the defendant made furtive gestures; (3) whether the contraband was in
plain view; (4) whether the place where the drugs were found was enclosed; (5) whether the
defendant was present when the search was conducted; (6) whether the defendant was in close
proximity to the contraband; (7) whether the defendant had access to the contraband; (8) whether
the defendant was found with a large amount of cash; and (9) whether the defendant made
incriminating statements when arrested. Id. at 162 n.12; Olivarez v. State, 171 S.W.3d 283, 291
(Tex. App.–Houston [14th Dist.] 2005, no pet.). It is not the number of links that is dispositive, but
rather the logical force of all of the evidence. Evans, 202 S.W.3d at 162. “In deciding whether the
evidence is sufficient to link the defendant to contraband, the trier of fact is the exclusive judge of
the credibility of the witnesses and the weight to be given to their testimony.” Poindexter, 153
S.W.3d at 405.
Analysis
       We first note that the record contains conflicting testimony about the ownership of the
vehicle in which the marijuana was found. Ms. Daniel, the other occupant of the vehicle, testified
that the vehicle was Appellant’s and that he drove it to pick her up the morning of the arrest. She
stated further that she and Appellant drove around Tyler for the next twelve hours during which
they stopped by a clothing store, went back to her apartment, went to a motel where they had
sexual relations, and then drove to a fast food restaurant before being stopped.        On the video
made by the officer’s in-car video camera, Appellant made conflicting statements concerning the
ownership of the car, referring to the vehicle as “my car,” “my dad’s car,” and “[Ms. Daniels’s]
car.” Regardless of who owned the vehicle, Appellant was in the vehicle most of the day of the
arrest, and the trial court reasonably could have found that, at a minimum, Appellant had the right
to possess the vehicle.
       Moreover, when Officer Roberts stopped the vehicle on the night of November 3, 2009, he



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noticed “all kinds of furtive movements going on in the vehicle.” He testified that when he
approached the vehicle from the passenger side, where Appellant was seated, both occupants were
breathing heavily and appeared very nervous. Officer Roberts became concerned and called for
backup. Officer Roberts testified further that Appellant continued to make furtive movements by
“moving his hands in different parts of the vehicle.” According to Officer Roberts, he told
Appellant multiple times to keep his hands where they could be seen. Officer Matthew Leigeber,
also with the Tyler Police Department, arrived during the interaction between Officer Roberts and
Appellant. He approached the driver’s side, where Ms. Daniel was seated. Officer Leigeber
testified that Appellant was making “a lot of furtive movements,” reaching around, and was told
repeatedly to show his hands.
       Officer Leigeber also testified that the marijuana was plainly visible from his vantage
point. He stated that when he had Ms. Daniel exit the vehicle, he saw a clear plastic bag with a
green leafy substance he believed to be marijuana in the center console of the car between the
passenger’s and driver’s seats. He stated further that the center console had a cover that opened
like a door with the hinge on the passenger’s side, but the door was open about two inches.
Appellant had been sitting in the passenger’s seat next to the console and was present when the
marijuana was found.
       Additionally, Appellant was in close proximity and had access to the marijuana. Officer
Leigeber testified that the distance between where the marijuana was located and where a person
would be seated in the front of the vehicle was “small.” Officer Roberts testified that Appellant
tried twice to reach with his left hand toward the center console of the vehicle.
       Officer Leigeber testified further that when Appellant was searched, he had $633 in cash,
which the officer testified was a fairly substantial amount of cash. Officer Leigeber also testified
that Appellant made an incriminating statement in the back of the patrol car on the way to the
Smith County Jail. The video made by the officer’s in-car video camera shows Appellant asking
why he is going to jail and Officer Leigeber responding that he was going to jail for possession of
marijuana and driving with a suspended license. The trial judge concluded after watching the
video that Appellant then asked “[w]here did my marijuana go?” Office Leigeber responded that
“the other officer has it.”       The trial judge’s opinion is consistent with Officer Leigeber’s
testimony about what he believed Appellant asked.2

       2
           Appellant contended at the hearing that the statement was “[b]ut it wasn’t my marijuana, though.” On


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         Appellant points out, however, that the evidence shows Ms. Daniels admitted that the
marijuana was solely hers. On the day after the arrest, Ms. Daniel signed a handwritten affidavit
claiming ownership of the marijuana and stating that Appellant had no knowledge of it. At the
hearing, Ms. Daniel testified that she was driving the car, the marijuana was hers, she placed it in
the console, and Appellant did not know she placed it there. However, the trial court, sitting as
finder of fact, is the exclusive judge of the credibility of the witnesses and the weight to be given to
their testimony. Poindexter, 153 S.W.3d at 405. The trial court did not find this testimony
credible, which was within its prerogative as fact finder.
         Keeping in mind the lesser preponderance of the evidence standard and viewing the
evidence in the light most favorable to the trial court’s order, we conclude that the evidence
discussed above, coupled with the reasonable inferences from that evidence, provide sufficient
logical force to establish that Appellant exercised actual care, custody, control, or management of
the marijuana in the vehicle. See Evans, 202 S.W.3d at 166. Consequently, the evidence is
sufficient to show that Appellant violated a condition of his community supervision based on his
simple possession of marijuana. Therefore, we need not address his challenge to the sufficiency
of the evidence to support the other alleged violations.3 Sanchez, 603 S.W.2d at 871; Moore, 605
S.W.2d at 926; Cochran, 78 S.W.3d at 28.


                                                    DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.
                                                                JAMES T. WORTHEN
                                                                      Chief Justice
Opinion delivered June 8, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
                                              (DO NOT PUBLISH)


appeal, he asserts that he asked “[w]here did my money go?” After reviewing the videotape, we find it impossible to
determine, with any certainty, what Appellant asked the officer. Therefore, we defer to the trier of fact, who is the
exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. See Poindexter, 153
S.W.3d at 405.
         3
           Appellant argues that we should decline to apply the “one violation” appellate rule because it introduces an
element of arbitrariness to appellate adjudication. However, this rule, as set out in Sanchez and Moore, has not been
overturned and has been applied consistently in Texas appellate courts on multiple occasions. Alternatively, he argues
that if the court finds a violation, we are required to conduct a second analysis on whether the violation is
“substantial.” See Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). The Texas Court of
Criminal Appeals did not include this additional step in its analysis in either Moore or Sanchez, and we decline to do
so here.


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