                                       NO. 12-07-00294-CR

                            IN THE COURT OF APPEALS

             TWELFTH COURT OF APPEALS DISTRICT

                                          TYLER, TEXAS

ANTONIO DONELL MARSH,                                     §             APPEAL FROM THE 114TH
APPELLANT

V.                                                        §             JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                                  §             SMITH COUNTY, TEXAS




                                         MEMORANDUM OPINION
       Antonio Donell Marsh appeals his conviction for possession of codeine, for which he was
sentenced to imprisonment for forty-five years and fined ten thousand dollars. In two issues,
Appellant argues that the evidence was legally and factually insufficient to support his conviction
and that his sentence amounted to cruel and unusual punishment. We affirm.


                                                  BACKGROUND
       Appellant was charged by indictment with possession of a compound mixture or preparation
in the amount of four hundred or more grams that contained up to two hundred milligrams per one
hundred milliliters of codeine, a first degree felony.1 Appellant pleaded “not guilty,” and the matter
proceeded to a bench trial.
       Texas Department of Public Safety (“DPS”) Trooper Jason Bundy testified as the State’s first
witness. Bundy testified that on November 7, 2006, he stopped a Lincoln Navigator driving


       1
           See T EX . H EALTH & S AFETY C O D E A N N . §§ 481.102(3)(A), 481.112(a), (d) (Vernon 2003 & Supp. 2008).
westbound on Interstate 20 in Smith County, Texas for failure to display a front license plate. Upon
Bundy’s request, the driver exited the vehicle, and Bundy sought to identify the driver as the two
stood at the roadside. Bundy stated that the driver was unable to produce a Texas driver’s license,
but gave Bundy a name, Timothy Leon Tave, and a date of birth.2 Bundy further stated that as he
spoke to the driver, he advised the driver that he detected the odor of burnt marijuana on the driver’s
person. According to Bundy, the driver admitted that he had smoked marijuana earlier that day while
in Longview, Texas, where his trip originated. Bundy searched the driver and discovered one
thousand three hundred dollars in cash. Bundy testified that he next approached the passenger of the
vehicle, a person whom he identified as Appellant, and sought to determine his identity. Bundy
further testified that Appellant stated that his name was Deon Jones and that his date of birth was
November 27, 1978. Bundy stated that he could smell the strong odor of marijuana emanating from
the passenger side of the vehicle as he spoke to Appellant. Bundy further stated that he questioned
Appellant concerning the nature of his trip and that Appellant gave him information that conflicted
with the driver’s account.
       Based on his conversations with Appellant and the driver and his detection of the odor of
marijuana, among other reasons, Bundy suspected that there was contraband in the vehicle and
sought to conduct a search thereof. Bundy stated that during his search of the vehicle, he discovered
loose marijuana, including seeds and debris, throughout the vehicle as well as in the front seats.
Bundy further stated that there were two Styrofoam drink cups in the front cup holders located
between the driver’s and passenger’s seats, one soda bottle on the floorboard of the rear seat behind
the center console, and a baby bottle also on the floorboard of the rear seat behind the center console.
Each of these containers and their contents were admitted into evidence. Bundy testified that each
of the containers were within reach of both the driver and Appellant. Bundy further testified that he
also discovered inside the passenger door panel a box of cigars that contained “marijuana blunts”
as well as a plastic bag containing marijuana.
       Karen Ream, a forensic scientist with the Texas DPS crime lab in Tyler, Texas, testified as
the State’s next witness. Ream testified concerning the contents of the four drink containers Bundy



       2
           The driver was later determined to be Dominique Gooch, the registered owner of the vehicle.

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located in the vehicle. Ream stated that the contents of the Styrofoam cup located in the cup holder
nearest to Appellant did not contain any controlled substance. Ream further stated that the
Styrofoam cup located in the driver’s side cup holder as well as the soda bottle and baby bottle
located on the floorboard of the rear seat each contained codeine.
       DPS Trooper Dennis Redden testified next on the State’s behalf. Redden testified that he
was at the scene on the day in question and performed an inventory search of the vehicle. Redden
stated that he noticed that the interior door panels were loose. Redden further stated that he believed
the fact that the door panels were loose was important because he was aware of people concealing
items behind door panels.
       Upon the conclusion of Redden’s testimony, both parties rested. Following argument of
counsel, the trial court found Appellant “guilty” as charged. A punishment hearing was conducted
at a later date. At the conclusion of the punishment hearing, the trial court sentenced Appellant to
imprisonment for forty-five years and fined Appellant ten thousand dollars. This appeal followed.


                                    EVIDENTIARY SUFFICIENCY
       In his first issue, Appellant argues that the evidence is neither legally nor factually sufficient
to support the trial court’s judgment. Specifically, Appellant argues that the evidence is insufficient
to support that he possessed codeine.
Legal Sufficiency
       Legal sufficiency is the constitutional minimum required by the Due Process Clause of the
Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307,
315–16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1,
6 (Tex. App.–San Antonio 1999, pet. ref’d). The standard for reviewing a legal sufficiency challenge
is whether any rational trier of fact could have found the essential elements of the offense beyond
a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871
S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to
the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A
successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court.
See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982).


                                                   3
        The sufficiency of the evidence is measured against the offense as defined by a hypothetically
correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a
charge would include one that “accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of
liability, and adequately describes the particular offense for which the defendant is tried.” Id.
        In the case at hand, to support Appellant’s conviction for possession of a controlled
substance, the State was required to prove that Appellant (1) exercised control, management, or care
over the substance and (2) knew the matter possessed was contraband. See Poindexter v. State, 153
S.W.3d 402, 405 (Tex. Crim. App. 2005). A person acts knowingly, or with knowledge, with respect
to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the
nature of his conduct or that the circumstances exist. TEX . PENAL CODE ANN . § 6.03(b) (Vernon
2003). The State must establish, to the requisite level of confidence, that the accused’s connection
with the drug was more than just fortuitous. Poindexter, 153 S.W.3d at 406. When the accused is
not in exclusive possession of the place where the substance is found, we cannot conclude that he
had knowledge of and control over the contraband unless there are additional independent facts and
circumstances which link the accused to the contraband.3 Id. Links that may circumstantially
establish the sufficiency of the evidence to prove that a defendant had knowing “possession” of
contraband include the following: (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 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;



        3
           The court of criminal appeals has recognized that the adjective “affirmative” adds nothing to “link” and
resolved to use only the word “link” to describe circumstances tending to connect the accused to the contraband. See
Evans v. State, 202 S.W.3d 158, 161-62 & n. 9 (Tex. Crim. App. 2006).

                                                         4
and (14) whether the conduct of the defendant indicated a consciousness of guilt. See Evans, 202
S.W.3d at 162 n.12. It is not the number of links that is dispositive, but rather the logical force of
all of the evidence, both direct and circumstantial. Id. Ultimately, the question of whether the
evidence is sufficient to link the appellant to the contraband must be answered on a case by case
basis. See Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.–Austin 1991, pet. ref’d).
         Here, Appellant was present when the search was conducted of the vehicle. Furthermore,
Bundy testified that the cups located in the drink holders between the driver’s and passenger’s seats
were visible when he was standing outside the vehicle. Bundy also testified that each of the
containers of codeine were within Appellant’s reach. Moreover, Bundy stated that he discovered
inside the passenger door panel a cigar box containing several “marijuana blunts” and a plastic bag
containing marijuana in addition to the loose marijuana he found in the front seats and elsewhere in
the vehicle. Bundy further stated that he detected the strong odor of marijuana while he was standing
outside the vehicle conversing with Appellant.
         Examining the aforementioned evidence in the light most favorable to the verdict, we
conclude that the trial court could have determined beyond a reasonable doubt that Appellant
exercised control, management, or care over the containers of codeine located in the vehicle and that
he knew the matter possessed was contraband. Therefore, we hold that the evidence is legally
sufficient to support the trial court’s judgment.
Factual Sufficiency
         Turning to Appellant’s contention that the evidence is not factually sufficient to support the
jury’s verdict, we must first assume that the evidence is legally sufficient under the Jackson
standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all
of the evidence weighed by the trial court that tends to prove the existence of the elemental fact4 in
dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939
S.W.2d 155, 164 (Tex. Crim. App. 1997). Although we are authorized to disagree with the trial
court’s determination, even if probative evidence exists that supports the verdict, see Clewis, 922



         4
          As with a review for legal sufficiency, we measure the factual sufficiency of the evidence of the offense as
defined by a hypothetically correct jury charge. See Wooley v. State, No. PD-0861-07, 2008 W L 2512843, at *1
(Tex. Crim. App. June 25, 2008).

                                                          5
S.W.2d at 133, our evaluation should not substantially intrude upon the trial court’s role as the sole
judge of the weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where
there is conflicting evidence, the trial court’s verdict on such matters is generally regarded as
conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.–El Paso 1996, pet. ref’d).
Ultimately, we must ask whether a neutral review of all the evidence, both for and against the
finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence
in the trial court’s determination, or the proof of guilt, although adequate if taken alone, is greatly
outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also
Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) (evidence is factually insufficient
only when reviewing court objectively concludes that the great weight and preponderance of the
evidence contradicts the verdict).
       In the instant case, Appellant argues that the only container of codeine clearly within
Appellant’s reach was the Styrofoam cup in the driver’s cup holder. Appellant further argues that
the record is silent as to how far away the soda bottle or baby bottle were from Appellant in this
rather large vehicle. Appellant further notes that the only cup devoid of a controlled substance was
the one nearest him. Thus, Appellant contends, it was an entirely reasonable hypothesis that
Appellant was riding in a vehicle with no knowledge of codeine was present in the car. However,
Appellant overlooks Bundy’s testimony that the soda bottle and baby bottle, as well as the Styrofoam
cup in the driver’s cup holder were all within Appellant’s reach. Appellant makes no reference to
the other evidence tending to link him to the various containers of codeine as set forth above or to
any evidence tending to contradict such evidence linking him to the codeine.
       We have reviewed the record in its entirety. We iterate that our evaluation should not
substantially intrude upon the trial court’s role as the sole judge of the weight and credibility of
witness testimony, see Santellan, 939 S.W.2d at 164, and where there is conflicting evidence, the
trial court’s verdict on such matters is generally regarded as conclusive. See Van Zandt, 932 S.W.2d
at 96. Our review of the record as a whole, with consideration given to all of the evidence, both for
and against the trial court’s finding, has not revealed to us any evidence that causes us to conclude
that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof
as to render Appellant’s conviction clearly wrong or manifestly unjust. Therefore, we hold that the


                                                  6
evidence is factually sufficient to support the trial court’s judgment.
       Appellant’s first issue is overruled.


                               CRUEL AND UNUSUAL PUNISHMENT
       In his second issue, Appellant contends that the forty-five year sentence imposed on him
amounts to cruel and unusual punishment. See U.S. CONST . amend. VIII; see also TEX . CONST . art.
I, § 13. However, Appellant made no timely objection to the trial court raising the issue of cruel and
unusual punishment and has, therefore, waived such an issue on appeal. See Willis v. State, 192
S.W.3d 585, 595–97 (Tex. App.–Tyler 2006, pet. ref’d); see also TEX . R. APP . P. 33.1.
       However, even absent waiver, we conclude that Appellant’s sentence did not constitute cruel
and unusual punishment. Appellant was convicted of possession of codeine, a Schedule 1 controlled
substance. See TEX . HEALTH & SAFETY CODE ANN . §§ 481.102(3)(A), 481.112(a). The punishment
range for such an offense, given the amount of codeine in Appellant’s possession, is between five
and ninety-nine years, or life. See TEX . HEALTH & SAFETY CODE ANN . § 481.112(d); TEX . PENAL
CODE ANN .§ 12.32(a) (Vernon 2003). Here, the sentence imposed by the trial court falls within the
range set forth by the legislature. Id. Therefore, the punishment is not prohibited as cruel, unusual,
or excessive per se. See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v.
State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Davis v. State, 905 S.W.2d 655, 664 (Tex.
App.–Texarkana 1995, pet. ref’d).
       Nonetheless, we have considered the threshold question of whether Appellant’s sentence is
grossly disproportionate to the crime. See, e.g., McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.),
cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992); see also Jackson v. State, 989
S.W.2d 842, 845–46 (Tex. App.–Texarkana 1999, no pet.); see also Harmelin v. Michigan, 501
U.S. 957, 1005, 111 S. Ct. 2680, 2707, 115 L. Ed. 2d 836 (1991); Solem v. Helm, 463 U.S. 277,
298–300, 103 S. Ct. 3001, 3013–15, 77 L. Ed. 2d 637 (1983). In conducting our analysis, we are
guided by the holding in Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980),
in which the Supreme Court upheld the petitioner’s mandatory life sentence under a prior version
of the Texas habitual offender statute for a conviction of obtaining $120.75 by false pretenses. Id.,
445 U.S. at 266, 100 S. Ct. at 1135. The offense committed by Appellant—possession of four


                                                  7
hundred or more grams of a Schedule 1 controlled substance—is more serious than any of the
offenses committed by the appellant in Rummel, and Appellant’s forty-five year sentence is less
severe than the life sentence upheld by the Supreme Court in Rummel. Thus, it follows that if the
sentence in Rummel was not unconstitutionally disproportionate, then neither is the sentence
assessed against Appellant in the case at hand. Therefore, since we do not find the threshold test to
be satisfied, we need not apply the remaining elements of the Solem test.5 Appellant’s second issue
is overruled.


                                                      DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court's judgment.




                                                                              BRIAN HOYLE
                                                                                      Justice



Opinion delivered September 3, 2008.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (DO NOT PUBLISH)




         5
           Under this test, the proportionality of a sentence is evaluated by considering (1) the gravity of the offense
and the harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the
sentences imposed for commission of the same crime in other jurisdictions. Solem, 463 U.S. at 292, 103 S. Ct. at
3011.

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