

NO. 07-09-0369-CR
 
                                                   IN
THE COURT OF APPEALS
 
                                       FOR
THE SEVENTH DISTRICT OF TEXAS
 
                                                                 AT
AMARILLO
 
                                                                      PANEL
B
 
                                                               AUGUST
3, 2010
                                            ______________________________
 
                                                      SHAUN
HEATH BROOKS, 
 
Appellant
 
                                                                             v.
 
                                                        THE STATE OF TEXAS, 
 
Appellee
                                           _______________________________
 
                      FROM
THE 251st DISTRICT COURT OF RANDALL COUNTY;
 
                                  NO.
20486-C; HON. ANA ESTEVEZ, PRESIDING
                                           _______________________________
 
                                                         Memorandum
Opinion
                                           _______________________________
 
Before QUINN, C.J., and CAMPBELL and HANCOCK,
JJ.
Shaun
Heath Brooks appeals his conviction for possessing a controlled substance.  His six issues involve the sufficiency of the
evidence establishing his guilt and the trial court’s decision to include a
parties’ charge in its jury instructions. 
We affirm.
 
 
Background
Amarillo
Police Department narcotics agents were conducting surveillance on a known drug
house.  While officers were watching the
house, a green Cadillac left the location. 
Appellant sat in the back seat of the vehicle, behind the driver.  Officers in unmarked cars followed the
Cadillac until it committed a traffic violation.  Then, they directed a motorcycle officer
(Hill) to stop the vehicle.  Hill
complied, obtained the driver’s identification, and walked to another officer’s
squad car to run a check for outstanding arrest warrants. 
While
checking the driver’s information, Hill was advised by the undercover officers
that he needed appellant to step out of the car and obtain identification
information.  Upon returning to the Cadillac,
Hill asked appellant to step out of the car. 
As appellant did so, he made “a motion with his left hand . . . a
throwing motion with his left hand back inside the car,” according to Hill.  The latter also saw “an object fly out of
[appellant’s] left hand and it flipped in the air and landed on the back
seat.”  Because this led Hill to believe
that appellant was trying to conceal something, the officer grasped appellant, placed
him against the car, and handcuffed him. 
The officer then looked inside the car for the object appellant tossed
but could not immediately find it.   
Hill
questioned the driver about the item. 
Appellant’s colleague stated that she did not know what he was talking
about.  The officer then directed her to
exit the car and began searching the back seat. 
Upon doing so, he discovered a “small, about one inch size square blue
plastic baggie with a crystal powdery type substance in it” lying “between the
two little pieces of the seat in the crack.” 
The packet, according to Hill, was the object he observed appellant tossing.   
After
being arrested, appellant informed Hill that the female driving the car had “tossed”
the packet to him.  The jury found
appellant guilty of possessing the controlled substance found in the packet. 
Issues
One and Two – Links to the Drugs
In his first two issues, appellant
contends that the evidence is insufficient to link him to the contraband found
in the car.  We disagree and overrule the
issues.
            The standards of review for legal and
factual sufficiency are found in Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979) and Watson v. State, 204 S.W.3d 404
(Tex. Crim. App. 2006).  We refer the parties
to those cases.
            Next,
one may not be convicted of possessing a controlled substance unless he
exercised actual care, control, or custody of it and knew the matter was
contraband. Poindexter v. State, 153 S.W.3d 402, 405
(Tex. Crim. App. 2005).  Furthermore,
the courts have divined numerous factors useful in determining whether such a
nexus and such knowledge existed.  Though
not an exclusive list, it includes such things as whether 1) the accused was
present when the search was conducted, 2) the contraband was plainly visible to
those present, 3) the drugs were near the defendant, 4) the defendant was under
the influence of the substance found, 5) the defendant possessed other
contraband or drug paraphernalia when arrested, 6) the defendant made any
incriminating statements, 7) the defendant attempted to flee, 8) the defendant
made any furtive gestures, 9) the contraband emitted a recognizable odor at the
time, 10) other contraband or drug paraphernalia was present, 11) the defendant
had the right to exclusive or joint possession of the locale at which the drugs
were found, 12) the place where the drugs were found was enclosed, 13) the
accused attempted to conceal the contraband, and 14) the accused was familiar
with the type of contraband involved.  Kyte v. State, 944 S.W.2d 29, 31 (Tex. App.–Texarkana
1997, no pet.); Hurtado v. State, 881 S.W.2d 738, 743 n.1 (Tex. App.–Houston
[1st Dist.] 1994, pet. ref'd). The number of factors present is not as
important as the degree to which they tend to link the defendant to the
contraband. Wallace v. State, 932 S.W.2d 519, 524 (Tex. App.– Tyler 1995, pet. ref'd).  Thus, it is the logical force of the
circumstantial evidence, not the number of links, that
supports a jury's verdict.  Evans v. State, 202 S.W.3d 158, 166 (Tex. Crim. App. 2006).
            Appearing
of record is evidence that 1) appellant was present in the car where the drugs
were found, 2) appellant admitted to having received a blue packet tossed to
him by the car’s driver, 3) the blue packet contained methamphetamine, 4)
appellant  tossed the same packet into
the back seat when he was asked to get out of the car, 5) the location of the
object once it was retrieved was in close proximity to where appellant had sat,
6) the place where the drugs were found was enclosed, 7) like contraband was
found in a purse sitting by the front seat passenger who happened to be
appellant’s sister, and 8) the group had just left a locale from which drugs
were sold.  These facts are sufficient to
link appellant to the drugs and provide some evidence upon which a juror could
rationally conclude, beyond reasonable doubt, that he exercised care, custody,
or control over them.  
            We
recognize that appellant offered an alternative theory for the jury's consideration.  Yet, the jury was not required to believe that,
see Evans v. State, 202 S.W.3d at 166, and we cannot say that its rejection
of the theory undermines our confidence in the verdict.  We further note that even if the drugs
belonged to the driver and she tossed them to appellant that does not ipso facto insulate him from possessing
them.  It is quite possible for multiple
people to exercise care, custody and control over the same contraband.  Moreover, we have been cited to nothing that
suggests that an accused must exercise such care, custody, and control for a
certain period of time before he becomes culpable of possessing them.  The moments it takes to receive drugs from
one person and pass them to another or receive them and immediately attempt to
hide them may be all that it takes depending on the accused’s knowledge and mens rea.  In any case, the record fails to support the
allegations that appellant’s verdict lacked the support of legally and
factually sufficient evidence.
 
          Issues Three and Four – Party
Theory
            Through
his third and fourth issues, appellant contends that the evidence was
insufficient to show he acted as a party to the offense of possessing
controlled substances.  We again disagree
and overrule the issues.
            Since
there exists sufficient evidence to hold him culpable as the primary actor, it
matters not whether like evidence illustrates that appellant was a party to
another’s effort at possessing contraband. 
See Miles v. State, 07-02-0108-CR,
2003 Tex. App. Lexis 1668, at *10-11
(Tex. App.–Amarillo February 24, 2003,
pet. ref’d) (not designated for publication) (holding that when different theories, i.e.
commission of a crime as the primary actor or as a party, are submitted to the
jury, a general verdict is sufficient if the evidence supports one of the
theories submitted); Barnes v. State, 62 S.W.3d 288, 299 (Tex. App.–Austin
2001, pet. ref’d) (holding the same).
            
 
Issues
Five and Six - Charge on the Law of Parties
            In
his final two issues, appellant argues that the trial court erred in overruling
his objection to submitting a parties’ charge to the jury.  This is allegedly so because no evidence warranted
the submission.  We overrule these issues
as well.
In reaching our decision, we find
guidance in Brown v. State, 716 S.W.2d 939 (Tex. Crim. App. 1986) and Reyes
v. State, 910 S.W.2d 585 (Tex. App.–Amarillo 1995, pet. ref’d).  Both hold that any error in charging the jury
on the law of parties is harmless “if the evidence clearly supports appellant’s
guilt as a primary actor.”  Brown v.
State, 716 S.W.2d
at 946; Reyes v. State, 910 S.W.2d at 593.  Having previously determined that the
evidence was legally and factually sufficient to sustain appellant’s conviction
as the primary actor, we find that appellant suffered no harm when the trial
court included the party instruction in its jury charge, assuming arguendo that the act was erroneous.  
            Accordingly,
the judgment of the trial court is affirmed.
            
                                                                                    Brian
Quinn
                                                                                    Chief
Justice     
 
Do
not publish.
 
  

