                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-07-00151-CR

BILLY JOE GIBSON,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                           From the 13th District Court
                             Navarro County, Texas
                              Trial Court No. 30,862


                          MEMORANDUM OPINION


      In a bench trial, Billy Joe Gibson was convicted of possession of a controlled

substance and sentenced to sixteen months confinement in a state jail facility. On

appeal, he argues that the evidence is legally and factually insufficient to support his

conviction. We will affirm.

                                     Background

      On September 11, 2006, Officer Boatright, a member of the Navarro College

Police Department, stopped Gibson for failure to use a turn signal on the campus of
Navarro College. After Gibson consented to a search of his vehicle, the officer found .03

grams of cocaine in the car.

                                 Legal and Factual Sufficiency

         In his sole issue, Gibson argues that the evidence is legally and factually

insufficient to support his conviction due to a lack of affirmative links connecting him to

the cocaine.

         When reviewing a challenge to the legal sufficiency of the evidence to establish

the elements of a penal offense, we must determine whether, after viewing all the

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

found the essential elements of the offense beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Our duty is to

determine if the finding of the trier of fact is rational by viewing all of the evidence

admitted at trial in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d

418, 422 (Tex. Crim. App. 1992). In doing so, any inconsistencies in the evidence are

resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App.

2000).

         In a factual sufficiency review, we ask whether a neutral review of all the

evidence, though legally sufficient, demonstrates either that the proof of guilt is so

weak or that conflicting evidence is so strong as to render the factfinder’s verdict clearly

wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App.

2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). “The court reviews the

evidence weighed by the jury that tends to prove the existence of the elemental fact in

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dispute and compares it with the evidence that tends to disprove that fact.” Johnson, 23

S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). The

appellate court “does not indulge in inferences or confine its view to evidence favoring

one side of the case. Rather, it looks at all the evidence on both sides and then makes a

predominantly intuitive judgment. . . .” Id. (quoting William Powers and Jack Ratliff,

Another Look at “No Evidence” and “Insufficient Evidence,” 69 TEXAS L. REV. 515, 519

(1991)).

        To prove drug possession, the State must show 1) a defendant exercised care,

custody, control, or management over the contraband, and 2) that he knew he

possessed a controlled substance. Rischer v. State, 85 S.W.3d 839, 843 (Tex. App.—Waco

2002, no pet.). A defendant's knowing possession of contraband may not be proved

merely by his presence at the scene when the drugs were found, unless the defendant

had been in exclusive possession of that location. See Hudson v. State, 128 S.W.3d 367,

374 (Tex. App.—Texarkana 2004, no pet.). The control over the contraband need not be

exclusive, but can be jointly exercised by more than one person. Cude v. State, 716

S.W.2d 46, 47 (Tex. Crim. App. 1986).

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

is found, the State must show additional affirmative links between the defendant and

the contraband to show his knowledge of or control over the contraband. Id. Factors

which have been considered affirmative links include: 1) the defendant’s presence when

the search was executed; 2) contraband in plain view; 3) the defendant’s proximity to

and accessibility of the contraband; 4) the defendant’s being under the influence of

Gibson v. State                                                                    Page 3
contraband when arrested; 5) the defendant's possession of other contraband when

arrested; 6) the defendant's incriminating statements when arrested; 7) attempted flight;

8) furtive gestures; 9) odor of the contraband; 10) presence of other contraband; 11) the

defendant's right to possession of the place where contraband was found; and 12) drugs

found in an enclosed place. Medina v. State, 242 S.W.3d 573, 576 (Tex. App.—Waco

2007, no pet.) (mem. op.); see Harris v. State, 994 S.W.2d 927, 933 (Tex. App.—Waco 1999,

pet. ref’d). The number of factors present is not as important as the "logical force" or the

degree to which the factors, alone or in combination, tend affirmatively to link the

defendant to the contraband. See Bellard v. State, 101 S.W.3d 594, 599 (Tex. App.—Waco

2003, pet. ref’d).   Furthermore, the defendant must be affirmatively linked to the

contraband itself rather than the area where it was found. Mendoza v. State, 583 S.W.2d

396, 399 (Tex. Crim. App. 1979).

        Gibson argues that the State failed to establish sufficient affirmative links

between him and the cocaine for several reasons. First, Gibson claims that a friend

owned the car he was driving. Allegedly, the vehicle’s owner asked Gibson to use the

car to pick up his brother from Navarro College. Second, he had only been in the car

for five minutes when he was pulled over, and he did not notice the small amount of

cocaine found in the front and back seats.

        Gibson further argues that the total weight of the contraband was only .03 grams

and most of it was found in the glove compartment on the passenger side of the vehicle.

Even though a small portion of the contraband was found in the driver’s seat of the car,

it was in powder form and therefore not conveniently accessible to Gibson. Moreover,

Gibson v. State                                                                       Page 4
when he was pulled over by Boatright, Gibson was not under the influence of drugs,

there were no drugs or paraphernalia on his person, he did not make furtive gestures,

he never attempted to flee, and instead he offered to allow Boatright to search the

vehicle before Boatright asked. He also argues that Boatright testified that he had

previous experience with the vehicle’s owner and knew him to be a person who used

cocaine.

        The State counters that the evidence presented at trial is legally and factually

sufficient to convict Gibson by pointing to several factors that establish an affirmative

link; specifically, that: (1) the cocaine was located in the front seat of the vehicle, in the

back seat, and the glove compartment, all locations conveniently accessible to Gibson.

Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.—Houston [1st Dist.] 1994, pet ref’d). (2)

the cocaine in the front seat and the back seat was in plain view. Roberson v. State, 80

S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d); (3) Gibson was the

driver of the vehicle when Boatright found the cocaine and being the driver of a vehicle

in which contraband is found is considered an affirmative link to the contraband.

Powell v. State, 112 S.W.3d 642, 645-46 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d);

(4) the cocaine was found in an enclosed space. Robinson v. State, 174 S.W.3d 320, 327

(Tex. App.—Houston [1st Dist.] 2005, pet. ref’d); and (5) the conduct of the defendant

indicated a consciousness of guilt. Gilbert, 874 S.W.2d at 298. We agree with the State.

        In this case, Gibson was the driver of the vehicle in which the contraband was

found. Some of the cocaine was discovered in plain view on the back seat of the

vehicle, and all of the cocaine was conveniently accessible to Gibson. Although, some

Gibson v. State                                                                         Page 5
of the cocaine was recovered from the passenger side of the vehicle, some of the cocaine

was also recovered from the driver's seat where Gibson was sitting. Along with the

cocaine, Boatright testified that when he pulled Gibson over and asked him for his

identification, Gibson appeared to be extremely nervous, wide-eyed and sweating

profusely. According to Boatright, Gibson was talking in a fast non-stop manner and it

was because of this excited emotional condition that Boatright decided to further

investigate Gibson by asking for his consent to search the vehicle.

        In viewing the evidence in the light most favorable to the verdict, we cannot say

that a rational trier of fact could not have found guilt beyond a reasonable doubt or that

the court was not rationally justified in finding guilt.       Curry, 30 S.W.3d at 406.

Accordingly, we find that the evidence is legally sufficient to support a finding that

Gibson knowingly possessed cocaine as alleged. In viewing the evidence in a neutral

light, we find that the court was justified in finding Gibson guilty. Watson, 204 S.W.3d.

at 415. The record shows that some of the cocaine was found in the car Gibson was

driving, was in plain view on the same seat where he was sitting and in plain view on

the back seat. We do not find this evidence so weak or the contrary evidence so strong

as to render the verdict manifestly unjust. Accordingly, we find that the evidence is

factually sufficient to support a finding that Gibson knowingly possessed cocaine as

alleged. We overrule Gibson’s sole issue.

                                       Conclusion

        Having overruled Gibson’s sole issue, we affirm the judgment of the trial court.




Gibson v. State                                                                     Page 6
                                                 BILL VANCE
                                                 Justice



Before Chief Justice Gray,
       Justice Vance, and
       Justice Reyna
       (Chief Justice Gray concurs in the judgment with a note)*
Affirmed
Opinion delivered and filed December 17, 2008
Do not publish
[CR25]

*(Chief Justice Gray concurs in the judgment of the Court to the extent it affirms the trial
court’s judgment of conviction and sentence. A separate opinion will not issue.)




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