                                  NUMBER 13-10-00420-CR

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

GEORGE TREY HOUSTON III,                                                                  Appellant,

                                                   v.

THE STATE OF TEXAS,                                                                         Appellee.


                        On appeal from the 12th District Court
                             of Walker County, Texas.


                            MEMORANDUM OPINION
                   Before Justices Benavides, Vela, and Perkes
                   Memorandum Opinion by Justice Benavides1
        By two issues, Appellant, George Trey Houston III, argues that:                (1) the evidence

was legally insufficient to convict him of possession of a controlled substance,

specifically, cocaine; and (2) the State failed to establish beyond a reasonable doubt that
        1
          This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to an
order issued by the Supreme Court of Texas. See TEX. GOV‘T CODE ANN. § 73.001 (West 2005).
there were ―affirmative links‖ connecting Houston to the cocaine contraband found during

a vehicle search.       See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2010).

We affirm.

                                            I. BACKGROUND2

        On January 16, 2009, Huntsville police officers responded to a call that three men

who appeared intoxicated were standing near a Jeep vehicle at an Exxon gas station.

Sergeant Blake Golle arrived at the scene first.             He stopped the Jeep as it was about to

leave the station and discovered that three people were in the vehicle:                         the driver,

Brandon Williams; the front seat passenger, Houston; and the rear seat passenger,

Christian Jackson.        Sergeant Golle testified that he smelled marihuana as soon as

Williams rolled down the driver‘s side window.                Sergeant Golle had Williams exit the

vehicle, advised Williams that he smelled marihuana, and asked Williams if there was

anything illegal in the vehicle. Williams responded in the negative and gave Sergeant

Golle permission to search the vehicle. Williams did, however, state that he thought his

girlfriend ―might have left her pill bottle‖ in the glove compartment.

        At this point, Officers Todd Lewis and Cameron Mattison arrived at the scene as

back-up patrol officers.         Sergeant Golle asked the officers to escort each of the

remaining passengers out of the vehicle so that he could search it.                         Officer Lewis

escorted Jackson from the backseat; Officer Mattison escorted Houston from the front

passenger seat.         Officer Mattison observed that Houston had ―red glassy eyes,‖

―appeared high or intoxicated,‖ ―seemed out of it,‖ and ―seemed upset‖ about the officers‘
        2
            We note that the appellee, the State of Texas, did not file a response brief in this matter. See
Siverand v. State, 89 S.W.3d 216, 220 (Tex. App.—Corpus Christi 2002, no pet.) (noting that when the
State fails to file a brief, the appellate court must make an independent examination of the merits of the
appeal, but must limit its examination to the arguments advanced at the trial court level); see generally TEX.
R. APP. P. 38.2.

                                                      2
presence.    Officer Mattison stated that he did not see Jackson hand anything to

Houston prior to their departure from the vehicle.

       Sergeant Golle commenced his search. When he started to search the front

passenger seat, Houston made an effort to return to the vehicle.        Sergeant Golle soon

discovered a pill bottle on the right front passenger seat near the seatbelt buckle.

Based on a plain observation of the bottle, Sergeant Golle believed it contained crack

cocaine and Xanax pills.       Sergeant Golle stated that, based on his training and

experience, it is uncommon for people to leave cocaine ―laying around‖ because each

cocaine or crack rock can be worth up to $20; the substance is ―treated somewhat like a

commodity,‖ and people can ―be possessive‖ of it.

       Officer Mattison testified that Houston was wearing an oversized hooded

sweatshirt and baggy pants at the time of this search, and opined that it would be easy

―to slide something out of the pocket of those pants or . . . sweatshirt into the seat.‖

Officer Mattison also testified that, at one point during the search, Houston announced to

Sergeant Golle that he did not have probable cause to search the vehicle.          Houston

testified that Williams was the one who questioned Sergeant Golle‘s probable cause, not

him.   He also adamantly denied that the pill bottle was his. Houston stated that he got

into Williams‘s vehicle and did not feel the pill bottle on his seat.

       Sergeant Golle countered that, based on the small size of the seat and the

location of the bottle near the seat belt buckle, any person sitting in that seat would have

felt the pill bottle touching them.    Based on the foregoing evidence, Sergeant Golle

surmised that the pill bottle was Houston‘s and arrested him. No fingerprints were

taken of the pill bottle. Dottie Collins, a forensic scientist with the Texas Department of


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Public Safety Crime Laboratory, verified that the pill bottle contained cocaine.

       The jury found Houston guilty of possession of a controlled substance, sentenced

him to two years in the Texas Department of Criminal Justice—Institutional Division, and

assessed a fine of $10,000.      See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c).

Houston appealed.

                              II. SUFFICIENCY OF THE EVIDENCE

A.     Applicable Law

       By his first issue, Houston argues that the evidence is insufficient to convict him of

possession of a controlled substance, specifically, cocaine.     Our sufficiency analysis is

conducted under ―a rigorous and proper application‖ of the Jackson v. Virginia standard

of review.    Brooks v. State, 323 S.W.3d 893, 906 (Tex. Crim. App. 2010). Under this

standard, ―the relevant question is 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 (1979); see Brooks, 323 S.W.3d at 902 n.19.       ―[T]he fact-finder‘s role as weigher of

the evidence is preserved through a legal conclusion that upon judicial review all of the

evidence is to be considered in the light most favorable to the prosecution.‖      Jackson,

443 U.S. at 319 (emphasis in original); see also Wesbrook v. State, 29 S.W.3d 103, 111

(Tex. Crim. App. 2000) (―The jury is the exclusive judge of the credibility of witnesses and

of the weight to be given testimony, and it is also the exclusive province of the jury to

reconcile conflicts in the evidence.‖); TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979)

(―The jury, in all cases, is the exclusive judge of facts proved and the weight to be given

to the testimony . . . .‖).


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          Sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge.             Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.

App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.—Corpus Christi 2002, pet.

ref‘d).       Under a hypothetically correct jury charge, the State was required to prove

beyond a reasonable doubt that Houston:                  (1) knowingly or intentionally (2) possessed

(3) a controlled substance listed in Penalty Group One3 (4) in an amount of one to four

grams.          See TEX. HEALTH & SAFETY CODE ANN. § 481.115.                        To establish unlawful

possession of a controlled substance, the State must prove (1) that the accused

exercised care, custody, control or management over the contraband; and (2) that the

accused knew the matter possessed was contraband.                          See Poindexter v. State, 153

S.W.3d 402, 405 (Tex. Crim. App. 2005); Martin v. State, 753 S.W.2d 384, 387 (Tex.

Crim. App. 1988).              While possession need not be exclusive, and facts and

circumstances may be sufficient to show an accused possessed a narcotic drug, there

must be some affirmative link existing between the person accused and the narcotic

drug.     Hausman v. State, 480 S.W.2d 721, 723 (Tex. Crim. App. 1972).

B.        Analysis

          The record shows that the pill bottle was found in the front passenger seat where


          3
          See TEX. HEALTH & SAFETY CODE ANN. § 481.102(3)(D) (West 2010). Penalty Group One
includes numerous opiates and opium derivatives, such as cocaine in its many forms:

          (D)      Cocaine, including:
                   (i)    its salts, its optical, position, and geometric isomers, and the salts of those
                          isomers;
                   (ii)   coca leaves and a salt, compound, derivative, or preparation of coca
                          leaves;
                   (iii)  a salt, compound, derivative, or preparation of a salt, compound, or
                          derivative that is chemically equivalent or identical to a substance
                          described by Subparagraph (i) or (ii), other than decocainized coca leaves
                          or extractions of coca leaves that do not contain cocaine or ecgonine.


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Houston was sitting.    Testimony revealed that the front passenger seat was small and

that the pill bottle was located near the seatbelt buckle, such that any person sitting there

would have noticed or felt it. The pill bottle was clear and, based on plain observation, it

was obvious that it contained some type of substance.      Houston had ―red glassy eyes,‖

―appeared high or intoxicated,‖ ―seemed out of it,‖ and was ―upset‖ about the officers‘

presence.    He also turned back toward the car when Sergeant Golle approached the

front passenger seat where he had been sitting.      This act could be interpreted to mean

that Houston knew the pill bottle was contraband and that it was in his possession at the

time of the stop. See Poindexter, 153 S.W.3d at 405; Martin, 753 S.W.2d at 387.

       In addition, the owner and driver of the vehicle, Williams, admitted to Sergeant

Golle that there were no illegal substances in the vehicle and voluntarily gave permission

for a search—a jury could have surmised that Williams would not have done so if he had

something to hide.     The evidence also showed that Officer Mattison did not notice

Jackson, the backseat passenger, hand anything to Houston as the men were exiting the

vehicle.   Sergeant Golle testified that because cocaine was so valuable on the street, it

was unlikely that someone would have just let it ―lay around.‖ Williams was wearing

loose, baggy clothing which would have made it easy to slide any contraband out of his

clothes before he left the vehicle.

       We acknowledge that Houston presented some evidence demonstrating that the

pill bottle was not his. For example, the vehicle in which the pill bottle was found was

not his. Williams stated that he thought his girlfriend might have left a pill bottle in the

glove compartment of his vehicle.     Houston also claimed that his companion, Jackson,

was the one who questioned Sergeant Golle‘s probable cause to conduct the search, not


                                             6
him.   Further, no fingerprints were taken of the bottle to confirm whether Houston had

held it.     However, it is within the province of the jury to reconcile conflicts or questions in

the evidence, and the jury believed that Houston possessed the pill bottle of cocaine.

See Wesbrook, 29 S.W.3d at 111.

           Viewing the evidence in the light most favorable to the prosecution, we find that

the evidence was sufficient to support Houston‘s conviction of possession of a controlled

substance.        See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c).                  We overrule

Houston‘s first issue.

                                       III. AFFIRMATIVE LINKS

A.         Applicable Law

           Because the cocaine was not found in his actual possession, Houston argues that

the State‘s evidence did not offer any ―affirmative links‖ linking him to the pill bottle filled

with cocaine.      ―The ‗affirmative links rule‘ is designed to protect the innocent bystander

from conviction based solely upon his fortuitous proximity to someone else‘s drugs.‖

Poindexter, 153 S.W.3d at 405.         Accordingly,

           When the accused is not in exclusive possession of the place where the
           substance is found, it cannot be concluded that the accused had
           knowledge of and control over the contraband unless there are additional
           independent facts and circumstances which affirmatively link the accused
           to the contraband.

Id. at 406 (citing Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981)).

           Texas case law offers a list of nonexclusive factors to consider when attempting to

link an accused to the contraband involved in the case.              See Lassaint v. State, 79

S.W.3d 736, 740–41 (Tex. App.—Corpus Christi 2002, no pet.). The factors include

whether:


                                                  7
(1)    The contraband was in plain view or recovered from an enclosed
       place;

(2)    The accused was the owner of the premises or had the right to
       possess the place where the contraband was found, or was the
       owner or driver of the automobile in which the contraband was
       found;

(3)    The accused was found with a large amount of cash;

(4)    The contraband was conveniently accessible to the accused, or
       found on the same side of the vehicle as the accused was sitting;

(5)    The contraband was found in close proximity to the accused;

(6)    A strong residual odor of the contraband was present;

(7)    The accused possessed other contraband when arrested;

(8)    Paraphernalia to use the contraband was in view, or found on the
       accused;

(9)    The physical condition of the accused indicated recent consumption
       of the contraband in question;

(10)   Conduct by the accused indicated a consciousness of guilt;

(11)   The accused attempted to escape or flee;

(12)   The accused made furtive gestures;

(13)   The accused had a special connection to the contraband;

(14)   The occupants of the premises gave conflicting statements about
       relevant matters;

(15)   The accused made incriminating statements connecting himself to
       the contraband;

(16)   The quantity of the contraband; and,

                                    8
        (17)     The accused was observed in a suspicious area under suspicious
                 circumstances.

Id.; see Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006); Olivarez v. State,

171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.). The number of

factors is not as important as their logical force in establishing the elements of the

offense.    See Jenkins v. State, 76 S.W.3d 709, 713 (Tex. App.—Corpus Christi 2002,

pet. ref‘d); see also Jones v. State, 963 S.W.2d 826, 830 (Tex. App.—Texarkana 1998,

pet. ref'd).     ―In deciding whether the evidence is sufficient to link the defendant to the

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 406.

B.      Analysis

        Here, the pill bottle containing cocaine was in plain view and recovered from the

seat where Houston had just been sitting.       The testimony established that the pill bottle

was located in a small seat in a location where the occupant of the seat would have seen

it or felt it.    The contraband was conveniently accessible to Houston and in close

proximity to him.       Houston‘s ―physical condition‖ indicated that he was under the

influence of an intoxicating substance; Officer Mattison testified that Houston had glassy

eyes and a confused demeanor. Although Houston acknowledged during the trial that

he had been smoking marihuana that day, the jury could have concluded that he may

have been under the influence of another drug, like cocaine, as well.        Further, the fact

that Houston attempted to return to the vehicle when Sergeant Golle began to search the

right front passenger seat Houston had just occupied could be considered ―conduct by

the accused indicating a consciousness of guilt‖ or a ―furtive gesture.‖    See Lassaint, 79


                                                9
S.W.3d at 740–41

         The jury was the exclusive judge of the credibility of the witnesses and the weight

of their respective testimonies.     Id.   The jury determined that there were sufficient

―affirmative links‖ connecting Houston to the contraband at issue, and we will not

substitute our judgment for that of the factfinders‘.   We thus overrule Houston‘s second

issue.

                                       IV. CONCLUSION

         Having overruled both of Houston‘s issues, we affirm the judgment of the trial

court.



                                                         ________________________
                                                         GINA M. BENAVIDES,
                                                         Justice


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

Delivered and filed the
31st day of August, 2011.




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