Opinion issued February 12, 2013




                                   In The

                            Court of Appeals
                                   For The

                        First District of Texas
                         ————————————
                            NO. 01-11-00805-CR
                          ———————————
                        LARRY D. SHAW, Appellant
                                     V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 232nd District Court
                           Harris County, Texas
                    Trial Court Case No. 129622701010



                        MEMORANDUM OPINION
     A trial court convicted appellant, Larry D. Shaw, of the state jail felony

offense of possession of less than one gram of cocaine. See TEX. HEALTH &

SAFETY CODE ANN. §§ 481.102(3)(D), 481.115(b) (West 2010). The trial court

assessed punishment at two years in state jail, and it suspended imposition of
punishment, placing Shaw on community supervision for two years. See TEX.

CODE CRIM. PROC. ANN. art. 42.12 (West 2006). On appeal, Shaw argues that the

State presented insufficient evidence that he possessed the cocaine. We affirm.

                                   Background

      Shaw and another man, Mike Johnson, were walking in the street at night

after a party. Johnson was drinking from a brown paper bag containing a bottle of

vodka. Two Houston Police Department officers on patrol saw the two men

walking toward them in the street. Because a sidewalk was available, it was a

misdemeanor offense for the men to walk down the street. See TEX. TRANSP. CODE

ANN. §§ 542.301, 552.006 (West 2011). One officer turned on the patrol car’s

headlamps and illuminated the two men, who were then 25 feet from the patrol car.

      At trial, both officers testified that after they turned on the lights, they saw

Shaw “flip” something behind his back with his left hand while keeping his left

arm straight. They simultaneously saw Johnson take a drink from the bottle. They

also testified that Shaw made eye contact with them and appeared as if he were

going to run.

      After detaining the two men, one officer retrieved a small bag containing

crack cocaine, which was about three to five feet from where Shaw had been

standing when they saw him “flip” something behind his back. The officers

arrested Shaw for possession of a controlled substance. A chemist subsequently

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confirmed that the substance in the bag was cocaine and that it weighed less than

one gram.

      Shaw testified at trial that he did not have cocaine in his possession that

night. He said that he never moved to throw anything to the ground when the

officers turned on their lights, and he also said he did not contemplate running

from the officers.

                                    Analysis

      In his sole issue on appeal, Shaw argues that the evidence was legally

insufficient to show that he possessed the bag of cocaine found on the street.

Specifically, he argues that at the distance and the angle from which the officers

were positioned, it would have been impossible for them to see him throw the bag.

Shaw contends that because the officers were facing him at the time, and because

they were 25 feet away, it would have been impossible for them to witness

anything that his hand did behind his back.       He also contends that it was

impossible for the officers to see him allegedly disposing of the cocaine and

simultaneously observe Johnson taking a drink. Therefore, Shaw argues, it was

implausible and irrational to conclude beyond a reasonable doubt that he possessed

cocaine.

      Both officers testified they saw Shaw use his left hand to toss something

behind his back, and that they saw a baggie fly across the street behind him and

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land a few feet from where he was standing. They also testified that Shaw looked

as if he were going to run. After detaining Shaw, one officer retrieved the bag, the

contents of which subsequently tested positive for cocaine. The State argues that

the testimony of the officers about the sequence of events, including Shaw’s

display of a “consciousness of guilt” by throwing the bag, was sufficient for the

trial court to rationally conclude that Shaw knowingly and intentionally possessed

the cocaine.

      In reviewing the legal sufficiency of the evidence to support a criminal

conviction, a court of appeals will determine “whether, after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not resolve any

conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as

this is the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740

(Tex. Crim. App. 1999). We presume that the factfinder resolved any conflicting

inferences in favor of the verdict, and we defer to that resolution. See Jackson, 443

U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. On appeal we may not

re-evaluate the weight and credibility of the record evidence and thereby substitute

our own judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742,

750 (Tex. Crim. App. 2007). The testimony of a single eyewitness may constitute

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legally sufficient evidence to support a conviction. See Davis v. State, 177 S.W.3d

355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Aguilar v. State,

468 S.W.2d 75, 77 (Tex. Crim. App. 1971)).

      A person commits an offense under Texas law if he knowingly or

intentionally possesses cocaine weighing less than one gram. See TEX. HEALTH &

SAFETY CODE ANN. §§ 481.102(3)(D), 481.115(b).          In order to establish the

unlawful possession of a controlled substance, the State must prove: (1) the

accused exercised care, custody, control, or management over the contraband; and

(2) the accused knew the matter possessed was contraband. TEX. HEALTH &

SAFETY CODE ANN. § 481.002(38) (West 2010) (defining “possession” as “actual

care, custody, control, or management”); Hubert v. State, 312 S.W.3d 687, 690

(Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).

      When the accused does not exclusively possess the place where the

contraband is found, the State must establish independent facts and circumstances

that affirmatively link the accused to the contraband. Blackman v. State, 350

S.W.3d 588, 594–95 (Tex. Crim. App. 2011); Cole v. State, 194 S.W.3d 538, 548

(Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). The number of links is not as

important as the logical force they collectively create to prove that a crime has

been committed. Cole, 194 S.W.3d at 548–49. The links do not have to be so

strong as to negate every other reasonable hypothesis other than the defendant’s

                                        5
guilt. See Laster v. State, 275 S.W.3d 512, 520 (Tex. Crim. App. 2009). Mere

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

actual care, custody, or control of those drugs. Evans v. State, 202 S.W.3d 158,

162 (Tex. Crim. App. 2006). But presence or proximity, when combined with

other factors linking the accused to the contraband, may be sufficient to establish

that element beyond a reasonable doubt. Id.

      The court considers the links that are present in the evidence. See Hubert,

312 S.W.3d at 691. A police officer’s testimony that he found contraband in the

exact location where he saw the accused throw an object can link the accused to

the contraband. See, e.g., Floyd v. State, 494 S.W.2d 828, 830 (Tex. Crim. App.

1973) (holding that a bag of pink LSD capsules found in a bathroom window

minutes after an officer saw the accused throw a bag containing pink capsules into

the window was evidence that linked the accused to the contraband); Edwards v.

State, 807 S.W.2d 338, 339 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d).

Additional factors that help to link the accused and the contraband include whether

the contraband was in plain view and whether the accused attempted to flee. Cole,

194 S.W.3d at 548.

      In Edwards v. State, 807 S.W.2d 338, 339 (Tex. App.—Houston [14th Dist.]

1991, pet. ref’d), two patrol officers saw the accused throw a small bag into his car

as they were walking toward him, and they later found a small bag containing

                                          6
cocaine on the floor of his car. Edwards, 807 S.W.2d at 339. The officers testified

there were no objects on the floor other than the bag of cocaine. Id. The court of

appeals held that this evidence was sufficient for a rational trier of fact to find

beyond a reasonable doubt every element of possession of a controlled substance.

Id.

      Both officers saw Shaw toss a small bag to the ground using his left hand,

and the officers later retrieved a small bag of cocaine from the street where they

had seen Shaw “flip” the bag. Both officers testified that Shaw appeared as though

he contemplated running. As the sole factfinder, the trial court can accept one

version of facts and reject another. See Long v. State, 245 S.W.3d 563, 570 (Tex.

App.—Houston [1st Dist.] 2007, no pet.). The logical force of the links in this

case was sufficient for a rational factfinder to conclude that the bag of cocaine that

the officers found in the street was the same one that the officers saw Shaw flip

from his left hand.    Therefore, the court could rationally conclude beyond a

reasonable doubt that Shaw knowingly or intentionally possessed the bag of

cocaine. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                               Michael Massengale
                                               Justice

Panel consists of Justices Keyes, Massengale, and Brown.

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




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