                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00187-CR
        ______________________________


   MELROY LYNN ANDERSON, JR., Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 354th Judicial District Court
                Hunt County, Texas
               Trial Court No. 25,165




     Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Carter
                                  MEMORANDUM OPINION

       Melroy Lynn Anderson, Jr., was convicted by a jury of possessing cocaine, in an amount of

four or more but less than 200 grams, and was sentenced to ten years‘ incarceration. Anderson

challenges only the legal sufficiency of the evidence supporting his conviction. We affirm the

judgment of the trial court.

I.     Facts

       Anderson agreed to drive George Washington Sharper and Markus Ladane Stephenson

from Greenville, Texas, to Commerce, Texas, using his sister-in-law‘s maroon Buick Alero.

After Anderson pulled into an apartment complex, Sharper and Stephenson exited the vehicle and

robbed Terrance ―Boo‖ Pitts and Erica Pitts at gunpoint. Stolen items included 25.23 grams of

crack cocaine, eight pairs of ―Nike-brand Jordan shoes,‖ and three bejeweled rings. After the

robbery, Sharper and Stephenson met Anderson in the parking lot, and both jumped in the back

seat while Anderson drove away.

       Responding to a radio broadcast describing Anderson‘s vehicle, Commerce Police Officer

Neil Johnson drove to the suspected location, spotted Anderson travelling at a high rate of speed in

a vehicle matching the broadcast description, and conducted a felony traffic stop.            After

Anderson, Sharper, and Stephenson were detained, Johnson searched the car. A ―.380 caliber

pistol was located under the front driver‘s side seat,‖ a ―.22 caliber pistol was located under the

rear passenger seat,‖ and ―a bag containing at least 11 individual baggies‖ of crack cocaine was



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spotted on the rear passenger side floorboard in plain view. Nike shoes taken during the robbery

were found in a black ―duffle-style‖ bag, and the Pittses‘ rings were found in Stephenson‘s

possession.

       In his initial interview with lead investigator Chris Bryan Vaughan, Sharper claimed that

he did not know Anderson. Sharper knew Terrance was a drug dealer. Sharper told Vaughan

that while riding with Anderson, he and Stephenson concocted a plan in which they would pretend

to buy drugs from Terrance, and would then rob Terrance of the drugs when the opportunity arose.

After the robbery, Sharper stated Stephenson was counting the stolen crack cocaine in the back

seat while Anderson drove. Sharper claimed that Anderson was a drug user and knew what was

going on.

       At trial, Sharper claimed Anderson ―was just giving us a ride. He didn‘t know what was

going on.‖ Sharper testified, ―[W]e got to Commerce and we went to some apartments and told

[Anderson] we was just going to see some friends but it really wasn‘t and we robbed somebody.‖

Stephenson also claimed that he possessed the drugs and that Anderson had no involvement with

the robbery or drug possession. Stephenson did admit that he began counting the drugs in the car

while Anderson was driving.

       Anderson testified in his defense. He claimed that his cousin asked him to give Sharper

and Stephenson a ride to ―pick up some money.‖ He averred that he did not know Sharper or

Stephenson, was unaware of the plan to rob Terrance, and was unaware of the drugs placed in the



                                               3
car.


           At the conclusion of the evidence, the jury found Anderson guilty of possessing the

cocaine.

II.        Standard of Review

           In evaluating legal sufficiency, we review all the evidence in the light most favorable to the

jury‘s verdict to determine whether any rational jury could have found the essential elements of

possession of four or more but less than 200 grams of cocaine beyond a reasonable doubt. 1

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S.

307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet.

ref‘d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Our rigorous legal

sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917

(Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks

opinion, while giving deference to the responsibility of the jury ―to fairly resolve conflicts in

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.‖ Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at

318–19).

           Legal 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.

1
    Anderson does not challenge that the amount of cocaine was four or more but less than 200 grams.

                                                           4
1997). ―To prove unlawful possession of a controlled substance, the State must prove that:

(1) the accused exercised control, management, or care over the substance; and (2) the accused

knew the matter possessed was contraband.‖2 TEX. HEALTH & SAFETY CODE ANN. § 481.115(a),

(d) (Vernon 2010); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005).

        Anderson‘s mere presence in the vicinity of the cocaine found is insufficient to show

knowing possession of it. Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim. App. 2006).

When combined with other direct or circumstantial evidence, however, his proximity may be

sufficient to establish beyond a reasonable doubt possession of the cocaine. Id. Where, as here,

Anderson was not in exclusive possession of the vehicle where the cocaine was found, additional

independent facts and circumstances must be developed in order to raise a reasonable inference of

his knowledge and control of the contraband. Poindexter, 153 S.W.3d at 406. This rule protects

an innocent bystander from conviction merely because of proximity to someone else‘s drugs.

Evans, 202 S.W.3d at 161–62.

        The evidence linking Anderson to the cocaine ―must establish, to the requisite level of

confidence, that [Anderson‘s] connection with the drug was more than just fortuitous.‖

Poindexter, 153 S.W.3d at 405–06. The following is a nonexclusive list of links that have been

found to be sufficient, either singly or in combination, to establish a person‘s possession of

contraband: (1) the defendant‘s presence when a search is conducted; (2) whether the contraband


2
 Possession is defined as ―actual care, custody, control, or management.‖ TEX. PENAL CODE ANN. § 1.07(a)(39)
(Vernon Supp. 2010).

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was in plain view; (3) whether the contraband was in close proximity to, or accessible by, the

defendant; (4) whether the place where the contraband was found was enclosed; (5) whether the

defendant was under the influence of narcotics when arrested; (6) whether the defendant possessed

other contraband or narcotics when arrested; (7) whether the defendant made incriminating

statements when arrested; (8) whether the defendant attempted to flee; (9) whether the defendant

made furtive gestures; (10) whether there was an odor of contraband present at the scene;

(11) whether other contraband or drug paraphernalia were present; (12) whether the defendant

owned or had a right to possess the place where the contraband was found; (13) whether the

defendant was found with a large amount of cash; (14) whether the defendant possessed weapons;

and (15) whether conduct of the defendant indicated a consciousness of guilt. Evans, 202 S.W.3d

at 162 n.12; Hargrove v. State, 211 S.W.3d 379, 385–86 (Tex. App.—San Antonio 2006, pet.

ref‘d). The number of links is not dispositive; rather, we look to the ―logical force of all of the

evidence, direct and circumstantial.‖ Evans, 202 S.W.3d at 162.

III.     Legally Sufficient Evidence Supported Anderson’s Conviction

         Anderson was present when the search was conducted; Johnson testified the cocaine was in

plain view; it is possible the drugs were accessible by Anderson even though they were found on

the rear passenger side floorboard; and the drugs were found in the Alero, an enclosed space.

Additionally, a gun believed to be used in the robbery was present.3 Another gun was found


3
 ―‗Contraband‘ means property of any nature, including real, personal, tangible, or intangible, that is: (A) used in the
commission of: (i) any first or second degree felony under the Penal Code.‖ TEX. CODE CRIM. PROC. ANN.

                                                           6
under the front driver‘s side seat, and both Sharper and Stephenson testified that Sharper did not

have a gun on the day of the robbery. Anderson was driving his cousin‘s vehicle, which indicated

he had a right to temporarily possess the vehicle where the cocaine was found. See Menchaca v.

State, 901 S.W.2d 640, 652 (Tex. App.—El Paso 1995, pet. ref‘d) (holding appellant‘s control

over borrowed vehicle raised inference he knew of drugs in vehicle).

          There was no evidence indicating Anderson was under the influence of narcotics when

arrested, that he possessed other contraband or narcotics when arrested, made incriminating

statements when arrested, attempted to flee, or made furtive gestures. Additionally, there was no

testimony of an odor of contraband present at the scene, no indication that Anderson possessed a

large amount of cash, and no allegation that Anderson indicated a consciousness of guilt.

        The jury also heard testimony that Anderson became aware of the plot to steal the drugs

and that he was a drug user. A juror could reasonably infer that Anderson drove the other two to

the house knowing theft of drugs would occur and that Anderson expected to receive a portion of

the drugs for his efforts; such evidence provides an additional link between Anderson and the

stolen contraband. See Williams v. State, 309 S.W.3d 124, 129 (Tex. App.—Texarkana 2010, pet.

ref‘d) (knowing that drugs were placed in vehicle under defendant‘s control while he had

sufficient time to terminate that possession, but failed to do so, could result in defendant being a


art. 59.01(2)(B)(i) (Vernon Supp. 2010). The aggravated robbery committed by Sharper and Stephenson was a first
degree felony. TEX. PENAL CODE ANN. § 29.03(b) (Vernon 2003).



                                                      7
joint possessor).

       Again, the number of links is not dispositive. We find that the logical force of all of the

evidence indicates more than mere presence in the vicinity where the crack cocaine was found.

       Control over contraband need not be exclusive, but can be jointly exercised by more than

one person. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985); Martinez v.

State, 880 S.W.2d 72, 77 (Tex. App.—Texarkana 1994, no pet.). The jury was the judge of

credibility in this case. As such, the jury was free to believe statements in Sharper‘s initial

interview with Vaughan that Anderson was a drug user and knew what was going on. The jury

could have regarded Stephenson‘s statement at trial that he was counting the drugs while Anderson

drove as evidence that Anderson knew the matter possessed was contraband. With the links

analysis, when viewed in a light most favorable to the verdict, we find that a rational jury could

have found unlawful possession of a controlled substance beyond a reasonable doubt.

IV.    Conclusion

       We affirm the trial court‘s judgment.



                                                    Jack Carter
                                                    Justice

Date Submitted:       January 24, 2011
Date Decided:         February 3, 2011

Do Not Publish



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