                              NUMBER 13-18-00174-CR

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


JOHN DAVID TORAN,                                                                        Appellant,

                                                        v.

THE STATE OF TEXAS,                                                                        Appellee.


                          On appeal from the 252nd District Court
                               of Jefferson County, Texas.


                                  MEMORANDUM OPINION

                  Before Justices Benavides, Hinojosa, and Tijerina1
                      Memorandum Opinion by Justice Tijerina

        A jury convicted appellant John David Toran of unlawful possession of a controlled

substance in penalty group one, between two and four hundred grams of cocaine, a


        1 This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
second-degree felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d). Toran was

found to be a repeat felony offender, and his punishment was enhanced. See TEX. PENAL

CODE ANN. §§ 12.42(d), 12.425. By three issues, which we address as two, Toran argues

that (1) the evidence is legally insufficient to sustain his conviction; and (2) the trial court

erred in denying his motion for an instructed verdict and his motion for new trial. We

affirm.

                                      I.     BACKGROUND

          On April 5, 2016, Beaumont Police Officers Randall Dommert and Clint Weir

initiated a traffic stop for a traffic violation. Officer Dommert testified that Toran was the

driver and sole occupant of the vehicle. Based on Toran’s mannerisms, Officer Dommert

conducted a pat down search and discovered a large amount of money in Toran’s pocket.

Thereafter, Toran consented to a search of the vehicle. Officer Dommert located a black

sock, which contained “an off-white rock-like substance that [he] suspected to be crack

cocaine” inside the center console of the vehicle. He also found “another smaller baggy”

containing what he believed to be powder cocaine.

          Officer Dommert testified that Toran initially denied having narcotics in the vehicle,

but after Officer Dommert asked Toran how much the substance weighed, Toran

responded, “Yeah, it’s going to be 28 grams in the—in the sock.” A forensic scientist at

the Jefferson County Regional Crime Laboratory testified that the cocaine found inside

the black sock weighed about 27.371 grams.

          Timothy Robinson testified on Toran’s behalf that he and Toran had been

“snorting” cocaine earlier that day at his house. Robinson asked Toran to bag up some

of the narcotics, which Robinson placed in the center console of Toran’s vehicle when



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they went to the store. Robinson testified that he forgot about the drugs because he was

“so high,” and he claimed that Toran did not know anything about them. When Toran

called him the next day accusing Robinson of setting him up, Robinson stated he would

take full responsibility for his own actions.

        Robinson did not know the weight of the narcotics or how they were packaged.

The next day Robinson returned to the stand and recanted his previous testimony. He

testified that Toran paid Robinson to “take the case for him” and denied placing the

narcotics in Toran’s vehicle. Toran denied knowing narcotics were in his vehicle. He

testified that he went to Robinson’s house to smoke narcotics. They went to the store for

alcohol, and he knew Robinson “had the stuff on him,” but he had no knowledge that

Robinson left the narcotics in the console of his vehicle.

        A jury found Toran guilty of the offense of possession of a controlled substance.

Toran then pleaded true to the enhancement paragraphs, and the trial court assessed

punishment at twenty-five years’ incarceration. Toran filed a motion for new trial, which

the trial court denied. This appeal followed.

                                       II.     LEGAL SUFFICIENCY

        By his first and second issues, which we address together, Toran argues that the

evidence is legally insufficient to support his conviction for possession of cocaine, and

therefore the trial court should have granted his motion for an instructed verdict. 2

A.      Standard of Review and Applicable Law

        We review the sufficiency of the evidence in the light most favorable to the verdict

and then determine whether any rational trier of fact could have found the essential


        2 An appeal of the denial of a motion for an instructed verdict is a challenge to the legal sufficiency
of the evidence. See Canales v. State, 98 S.W.3d 690, 693 (Tex. Crim. App. 2003).

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elements of the crime beyond a reasonable doubt. Acosta v. State, 429 S.W.3d 621,

624–25 (Tex. Crim. App. 2014); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979).

The jury is the sole judge of witness credibility and the weight to be attached to witness

testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981).

When the record supports conflicting inferences, we presume that the jury resolved the

conflicts in favor of the verdict, and we defer to that determination. Thomas v. State, 444

S.W.3d 4, 8 (Tex. Crim. App. 2014). Moreover, direct and circumstantial evidence are

equally probative. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). Not every

fact presented must directly indicate that the defendant is guilty, so long as the cumulative

force of the evidence is sufficient to support a finding of guilt. Nowlin v. State, 473 S.W.3d

312, 317 (Tex. Crim. App. 2015).

       A conviction for possession of a controlled substance is supported only when the

evidence establishes that the defendant “knowingly or intentionally possesse[d]” the

alleged controlled substance. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a). “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). The mere presence of

the accused at the place where contraband is located does not make him a party to joint

possession, even if he knows of the contraband’s existence. Jenkins v. State, 76 S.W.3d

709, 712 (Tex. App.—Corpus Christi–Edinburg 2002, pet. ref’d). Proof of possession

requires evidence that the accused exercised “actual care, custody, control, or

management” over the substance. TEX. HEALTH & SAFETY CODE ANN. § 481.002(38).

Thus, the State must prove the accused (1) “exercised control, management, or care over



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the substance” and (2) knew that the substance “possessed” was contraband. Evans v.

State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); Martin v. State, 753 S.W.2d 384, 387

(Tex. Crim. App. 1988) (en banc).

      When the accused is not in exclusive control of the place where the contraband is

found, the State must establish care, custody, control, or management by linking the

accused to the substance through additional facts and circumstances. See Poindexter v.

State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) (quoting Deshong v. State, 625

S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981)). Be it direct or circumstantial, the

State’s evidence of links must establish, “to the requisite level of confidence, that the

accused’s connection with the drug was more than just fortuitous.” Id. at 405–06 (quoting

Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995) (en banc)); see Park v.

State, 8 S.W.3d 351, 352–53 (Tex. App.—Amarillo 1999, no pet.). In other words, the

evidence must affirmatively connect the accused to the contraband in such a manner and

to such a degree that a reasonable inference may arise that the accused knew of the

contraband’s existence and that he exercised control over it. See Travis v. State, 638

S.W.2d 502, 503 (Tex. Crim. App. [Panel Op.] 1982).

      The factors by which an accused may be sufficiently “linked” to the contraband

include the following considerations: (1) the defendant’s presence when a search is

conducted; (2) whether the contraband is in plain view; (3) the defendant’s proximity to

and the accessibility of the contraband; (4) whether the defendant was under the influence

of contraband when arrested; (5) whether the defendant possessed other contraband or

narcotics connecting himself to the contraband; (6) whether the defendant made

incriminating statements connecting himself to the contraband; (7) whether the defendant



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made furtive gestures; (8) whether there was an odor of contraband; (9) whether other

contraband or drug paraphernalia were present; (10) whether the defendant owned or

had the right to possess the place where the contraband was found; (11) whether the

place where the contraband was found was enclosed; (12) whether the defendant was

found with a large amount of cash; (13) whether the conduct of the defendant indicated a

consciousness of guilt, including whether the accused attempted to flee; and (14) whether

occupants of the premises gave conflicting statements about relevant matters. See

Evans, 202 S.W.3d at 162 n. 12; Jenkins, 76 S.W.3d at 712–13. These factors, however,

are simply factors which may circumstantially establish the sufficiency of evidence offered

to prove a knowing “possession.” See Evans, 202 S.W.3d at 162 n.12 (explaining that

these factors “are not a litmus test”). It is not the number of links that is dispositive; rather,

it is the logical force of all the evidence. See id. at 162.

B.     Discussion

       Here, Officer Dommert asked Toran if the vehicle in which the cocaine was found

was his, and Toran replied that it was. Officer Dommert discovered a large amount of

cash on Toran. After searching the vehicle, Officer Dommert asked Toran if the cocaine

he found was “all the dope you got in the car” to which Toran indicated that it was. The

jury also heard Toran’s own statements on Officer Dommert’s audio recording. When

Officer Dommert asked Toran how much cocaine was in the bag, Toran very accurately

responded, “twenty-eight grams, something like that.” Furthermore, Toran commented

that “somebody must have told on me” after the officers found the narcotics in his vehicle.

Officer Dommert asked Toran if the narcotics were crack and coke to which Toran shook




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his head and responded, “it’s just crack and cocaine.”

       Moreover, Toran testified that he and Robinson had smoked narcotics earlier that

day before taking the narcotics with them on the way to the store. Additionally, Toran

admitted to smoking more narcotics in his vehicle. Although at first Robinson testified

that the narcotics were his, he later recanted his testimony, and the jury was free to reject

Robinson’s testimony that the narcotics were his. See Brooks v. State, 323 S.W.3d 893,

899 (Tex. Crim. App. 2010) (stating that “the reviewing court is required to defer to the

jury's credibility and weight determinations because the jury is the sole judge of the

witnesses’ credibility and the weight to be given their testimony”).       Thus, the State

presented evidence from which the jury could have rationally found Toran (1) “exercised

control, management, or care over the substance” and (2) knew that the substance

“possessed” was contraband. See Evans, 202 S.W.3d at 161.

       In contrast, Toran directs our attention to factors he believes do not link him to the

narcotics. He argues that there was no evidence to show that he knew of the presence

of narcotics because Robinson had been in his vehicle earlier that day and testified that

he placed them in Toran’s vehicle without Toran’s knowledge. Thus, according to Toran,

the evidence was only sufficient to prove that narcotics were removed from his vehicle.

However, the “absence of various affirmative links does not constitute evidence of

innocence to be weighed against the affirmative links present.” Jones v. State, 466

S.W.3d 252, 260 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (quoting James v. State,

264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd)). Although Toran

directs our attention to the fact that Robinson testified he placed the narcotics in Toran’s

vehicle without Toran’s knowledge, the fact that Robinson also knew of and possessed



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the narcotics is not a bar to Toran’s conviction. See Cole v. State, 194 S.W.3d 538, 548

(Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (“The State need not prove exclusive

possession of the contraband for conviction.”). Moreover, Toran admitted that he knew

about the narcotics to Officer Dommert. Accordingly, we find that the evidence was

sufficient for a jury to rationally conclude that Toran knowingly or intentionally possessed

the cocaine. See Dominguez v. State, 474 S.W.3d 688, 694 (Tex. App.—Eastland 2013,

no pet.) (holding that knowledge of the presence of contraband may be inferred from

control over the vehicle in which the contraband is concealed). Therefore, the trial court

properly denied Toran’s motion for an instructed verdict. We overrule Toran’s first and

second issues.

                              III.      MOTION FOR NEW TRIAL

       By his third issue, Toran argues the trial court abused its discretion in overruling

his motion for new trial based upon the arrest of Toran’s only defense witness.

A.     Standard of Review

       We review a trial court’s denial of a motion for new trial under an abuse of

discretion standard and decide whether its decision was arbitrary or reasonable.

McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012). A trial court abuses its

discretion in denying a motion for new trial when no reasonable view of the record could

support the trial court's ruling. Id.

B.     Discussion

       Toran filed a motion for new trial on the grounds that the trial court’s material error

likely injured Toran’s rights. Specifically, Toran alleged that a material witness had been




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kept from court by force or threats; and the verdict was contrary to the law and facts. 3

Under rule 21.3(b) and (e), a motion for new trial must be granted “when a material

defense witness has been kept from the court by force, threats, or fraud . . .” or when the

trial court has “committed some other material error likely to injure the defendant’s rights.”

TEX. R. APP. P. 21.3(b),(e) (emphasis added).

       At trial, Robinson testified that the narcotics were his and that Toran had no

knowledge Robinson placed them in Toran’s vehicle. Robinson was arrested following

his testimony and subsequently recanted his confession in front of the jury. Robinson

testified that Toran agreed to pay him $2,500 “to take the case for” Toran. He apologized

to the jury for lying in court when he previously stated the narcotics were his because he

was there to “make amends, to tell the truth.” Thus, the evidence establishes that

Robinson was not kept from court by force or threats as Robinson testified before the jury

on more than one occasion. Moreover, the record does not indicate any threats or

intimidation of Robinson on either part of the State or trial court.

       Toran argues that “[h]ad the trial court not improperly ordered the warrantless

arrest of Robinson, the facts preponderate that Robinson would not have requested to

return to court to change his testimony in the hopes that he would be released from

custody.” However, other than Toran’s bare assertion, there is nothing in the record

indicating that but for Robinson’s arrest, Robinson would not have returned to court to

change his testimony, such that the outcome of his trial would have been different. See

Dedesma v. State, 806 S.W.2d 928, 934 (Tex. App.—Corpus Christi–Edinburg 1991, pet.


        3 Because we determined the evidence was legally sufficient to convict Toran of unlawful

possession of a controlled substance, we overrule his argument that a motion for new trial should have
been granted because the verdict was contrary to the law and facts. See Dominguez v. State, 474 S.W.3d
688, 694 (Tex. App.—Eastland 2013, no pet.).

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ref’d); see also Kothe v. State, 152 S.W.3d 54, 60 (Tex. Crim. App. 2004) (holding that a

defendant cannot challenge the alleged constitutional violations of a third party). In fact,

Robinson’s arrest occurred outside the presence of the jury and had no bearing on the

State’s case in chief. Other than citing to the Texas Rules of Appellate Procedure, Toran

has failed to provide any specific authority in support of his claim that rule 21.3(b) or (e)

applies to the particular facts as set out above. See TEX. R. APP. P. 38.1.

       Nonetheless, where an accomplice recants his trial testimony, his recantation may

be dismissed. Villarreal v. State, 788 S.W.2d 672, 674 (Tex. App.—Corpus Christi–

Edinburg 1990, pet. ref’d). Here, Toran testified again on his own behalf to further rebut

Robinson’s recantation. In this regard, we presume that the jury resolved the conflicts in

favor of the verdict, and we defer to that determination. See Thomas, 444 S.W.3d at 8.

Under these circumstances, we cannot say the trial court abused its discretion in denying

Toran’s motion for new trial. We overrule his third issue.

                                    IV.    CONCLUSION

       We affirm the judgment of the trial court.

                                                         JAIME TIJERINA,
                                                         Justice


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

Delivered and filed the
30th day of January, 2020.




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