                                    IN THE
                            TENTH COURT OF APPEALS

                                   No. 10-08-00170-CR

EDDIE FOSTER,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                             From the 54th District Court
                              McLennan County, Texas
                             Trial Court No. 2007-1609-C2


                             MEMORANDUM OPINION


          A jury found Appellant Eddie Foster guilty of the state-jail felony offense of

possession of a controlled substance, to wit: cocaine, and assessed his punishment at

two years’ confinement. By two issues, Foster contends that the evidence of the element

of possession is legally and factually insufficient to support his conviction. We will

affirm.

          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, the evidence is reviewed in a
         neutral light. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007);
         accord Johnson v. State, 23 S.W.3d [1, 7 (Tex. Crim. App. 2000)]. Only one
         question is to be answered in a factual-sufficiency review: Considering all
         of the evidence in a neutral light, was a jury rationally justified in finding
         guilt beyond a reasonable doubt? Watson [v. State], 204 S.W.3d [404, 415
         (Tex. Crim. App. 2006)]. Evidence can be factually insufficient in one of
         two ways: (1) when the evidence supporting the verdict is so weak that
         the verdict seems clearly wrong and manifestly unjust; and (2) when the
         supporting evidence is outweighed by the great weight and
         preponderance of the contrary evidence so as to render the verdict clearly
         wrong and manifestly unjust. Roberts, 220 S.W.3d at 524 (citing Watson,
         204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 11); see also Castillo v. State, 221
         S.W.3d 689, 693 (Tex. Crim. App. 2007). “[A]n appellate court must first
         be able to say, with some objective basis in the record, that the great
         weight and preponderance of the . . . evidence contradicts the jury’s
         verdict before it is justified in exercising its appellate fact jurisdiction to
         order a new trial.” Watson, 204 S.W.3d at 417. A reversal for factual
         insufficiency cannot occur when “the greater weight and preponderance
         of the evidence actually favors conviction.” Roberts, 220 S.W.3d at 524.
         Although an appellate court has the ability to second-guess the jury to a
         limited degree, the factual-sufficiency review should still be deferential,
         with a high level of skepticism about the jury’s verdict required before a
         reversal can occur. Watson, 204 S.W.3d at 417; Cain [v. State], 958 S.W.2d
         [404, 410 (Tex. Crim. App. 1997)].

Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008).

Foster v. State                                                                             Page 2
         The State was required to prove beyond a reasonable doubt that the accused

intentionally or knowingly possessed cocaine in an amount less than one gram. See TEX.

HEALTH & SAFETY CODE ANN. § 415.115(a), (b) (Vernon 2003). To do so, the State had to

establish: (1) the accused exercised control, management, or care over the substance,

and (2) the accused knew the matter possessed was contraband. Poindexter v. State, 153

S.W.3d 402, 405 (Tex. Crim. App. 2005).            Whether the evidence is direct or

circumstantial, “it 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)).         Previously, this was

referred to as the “affirmative links” rule.     See id. at 406.   However, the Court of

Criminal Appeals has cautioned against use of the term “affirmative links” as

suggesting “an independent test of legal sufficiency” and has chosen instead to use only

the term “‘link’ so that it is clear that evidence of drug possession is judged by the same

standard as all other evidence.” Evans v. State, 202 S.W.3d 158, 162 n.9 (Tex. Crim. App.

2006).

         The 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

406. The rule simply restates the commonsense notion that a person, such as a father,

son, spouse, roommate, or friend, may jointly possess property like a house but not

necessarily jointly possess the contraband found in that house. Id. Thus, “[w]hen 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

Foster v. State                                                                       Page 3
contraband unless there are additional independent facts and circumstances which

affirmatively link the accused to the contraband.” Id. (quoting Deshong v. State, 625

S.W.2d 327, 329 (Tex. Crim. App. 1981)).

        Some circumstances that may link a defendant to the controlled substance are:

(1) the defendant’s presence when the search was executed; (2) the contraband was in

plain view; (3) the proximity to and accessibility of the contraband; (4) the defendant

was under the influence of contraband; (5) the defendant’s possession of other

contraband when arrested; (6) incriminating statements by the defendant when

arrested; (7) attempted flight by the defendant; (8) furtive gestures by the defendant; (9)

there was an odor of the contraband; (10) the presence of other contraband or drug

paraphernalia not included in the charge; (11) the defendant’s ownership or right of

possession of the place where the controlled substance was found; (12) the drugs were

found in an enclosed place; (13) there was a significant amount of drugs; and (14) the

defendant possessed weapons or large amounts of cash. Stubblefield v. State, 79 S.W.3d

171, 174 (Tex. App.—Texarkana 2002, pet. ref’d); see also Olivarez v. State, 171 S.W.3d

283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.); Lassaint v. State, 79 S.W.3d 736,

740-41 (Tex. App.—Corpus Christi 2002, no pet.); De La Garza v. State, 898 S.W.2d 376,

379 (Tex. App.—San Antonio 1995, no pet.). The number of links present is not as

important as the degree to which they tend to link the defendant to the controlled

substance. Stubblefield, 79 S.W.3d at 174; Williams v. State, 906 S.W.2d 58, 65 (Tex.

App.—Tyler 1995, pet. ref’d).



Foster v. State                                                                      Page 4
        In this case, Investigator Calvin McLean of the Waco Police Department Drug

Enforcement Section testified that, for more than thirty days before obtaining a search

warrant, he was investigating “the possession and distribution of a controlled

substance, namely cocaine,” by Foster and his girlfriend, Shameka Joiner, at the

residence at 807 North 10th Street in Waco, Texas. The following evidence supports

that Foster was either living or staying at the residence:

          McLean stated that, during his surveillance of the residence, he saw Foster and
          Joiner entering and leaving the residence on several occasions. While others
          who visited the home would knock and wait to be invited inside, neither Joiner
          nor Foster would knock before entering. Allen Thompson, also an investigator
          in the Waco Police Department Drug Enforcement Section, testified that when
          Foster arrived at the residence, at times it looked like he was using a key to
          enter. When the search was finally executed on July 18, 2007, Investigator
          Donald Repp determined that the key that he was told was removed from
          Foster’s personal belongings did turn the cylinder on the front door lock of the
          residence.

          Thompson testified that in May 2007 he saw Foster coming and going from the
          residence driving a white Taurus. McLean and an employee of the Waco Police
          Department’s customer representative intake office testified that on June 14,
          2007, approximately one month before the search was executed, Foster filed a
          police report that his car, a white 1992 Ford Taurus, had been stolen from 807
          North 10th Street in Waco. In the report, Foster also gave 807 North 10th Street
          as his residence address.

          David Starr, a narcotics investigator for the Waco Police Department, testified
          that during the search, he located paperwork inside the residence that “came
          back to” Foster. Starr found a personal résumé for employment for Foster that
          had 807 North 10th Street listed as his address. Starr also located important
          private mail addressed to Foster.

          Investigator Rickey Revis of the Waco Police Department Drug Enforcement
          Section testified that he took several photographs of men’s clothing in the
          living room of the residence. Revis also testified that he took a photograph of
          men’s shoes that were located in the bedroom of the home, and the shoes
          matched closely in size to those worn by Foster when the search was executed.


Foster v. State                                                                     Page 5
        On the other hand, there is some evidence that Foster was not living or staying at

the residence. During the search, investigators discovered a lease agreement for the

residence, and only Joiner’s name was listed. Joiner later testified that she signed a

lease on the residence at 807 North 10th Street and was paying rent. Joiner testified that

two people lived with her at the home, her cousins Antoine and Danny Joiner, and that

the men’s clothing belonged to them. Joiner and Foster’s sister testified that Foster was

helping take care of his mother at the time and would go to his mother’s house every

day, sometimes spending the night. Foster’s sister also stated that he used several

different addresses on his résumés, and Joiner testified that Foster also used his

mother’s and sister’s addresses as his address.

        But Joiner did acknowledge that Foster was at the residence at 807 North 10th

Street about five days per week, visiting her because she was pregnant with his child

and “sickly.” She gave him a key to lock the door to the house, and he did leave

important personal papers there.

        McLean and Thompson testified that, during their surveillance of the residence,

they noticed a large amount of both vehicular and pedestrian traffic coming and going

from the residence. Thompson testified that he saw both Foster and Joiner opening the

door and letting visitors inside the residence. The visitors would stay for only short

periods of time, i.e., several minutes, before leaving. Both McLean and Thompson

testified that this activity is consistent with drug activity.

        Thompson testified that, while he was surveilling the residence on the day the

search warrant was executed, he saw Foster enter the house at least two separate times.

Foster v. State                                                                     Page 6
The evidence also establishes that Foster was present when the search was executed.

Investigators testified that Foster was on the front porch of the residence when they

arrived to execute the search warrant. Furthermore, Starr testified that when they

cleared the residence, no one was inside at that time. There is no evidence that Foster

was under the influence of a controlled substance, attempted to flee, or made

incriminating statements or furtive gestures. No contraband, currency, or weapons

were found on Foster’s person.

        Revis testified that a plastic baggie containing what appeared to be crack cocaine

was found on a bookshelf in the living room of the residence at 807 North 10th Street.

Revis stated that the shelf itself was glass and that the baggie was “to the side [of a

photograph] in the back corner” of the shelf. The substance in the baggie field-tested

positive for the presence of cocaine. A forensic scientist for the Texas Department of

Public Safety in Waco later confirmed that the baggie contained 0.97 grams of cocaine.

Revis testified that the cocaine was in plain view and open and obvious in the

residence.

        There is also some evidence that other contraband was present at the location

when the search was executed. Revis testified that during the search, he photographed

a razor blade that appeared to have some type of cocaine residue on it. He also found a

small white rock that appeared to be crack cocaine on the dining room table. Both field-

tested positive for the presence of cocaine.1 Furthermore, several investigators testified



        1   Foster asks this Court to take judicial notice on appeal of the following:


Foster v. State                                                                          Page 7
that when they arrived to execute the warrant, a man named Ronnie Reyes was on the

front porch with Foster and Joiner.                Starr testified that they were ordered “to the

ground.” While Reyes lay on the front porch, Starr noticed that Reyes had a plastic

baggie containing “something white” and some cash in his pocket. Starr suspected that

the white substance was cocaine. Starr searched Reyes’s pockets and found a total of

three baggies of the white substance along with the cash. The forensic scientist later

confirmed that the baggies contained 1.27 grams of cocaine. Additionally, Michelle

Starr, a detective in the Waco Police Department Family Violence Unit, testified that she

was called to the scene to search Joiner and Carolyn Waits, another woman at the

residence at the time of the search. Michelle Starr found a pill bottle containing some

pills in one of Waits’s front pockets. David Starr testified that the prescription label on

the bottle identified the patient as “Mildred Moore,” not Waits. He also stated that the




        the Sirchie Finger Print Laboratories, Inc. catalog, which states regarding the NARK II
        Presumptive Drug Test Kit: “Presumptive identification is generally recognized within
        our legal system as a component of probable cause. There is no drug identification system
        presently in use which completely eliminates the occurrence of false positives and false negatives.
        A forensic laboratory is required to qualitatively identify an unknown substance.” (emphasis
        added).

Judicial notice on appeal should be taken, if at all, where necessary to avoid an unjust judgment. Watkins
v. State, 245 S.W.3d 444, 456 (Tex. Crim. App. 2008). A judicially noticed fact must be one not subject to
reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial
court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned. TEX. R. EVID. 201(b). Foster has not adequately established the indisputability
of the Sirchie Finger Print Laboratories, Inc. catalog; thus, he has not demonstrated that judicial notice on
appeal is necessary to avoid an unjust judgment. See Watkins, 245 S.W.3d at 456. Furthermore, even if we
were to take judicial notice of the catalog, we would not be prevented from considering the fact that the
substance on the razor blade and the small white rock found on the dining room table field-tested
positive for the presence of cocaine. Foster made no objection to the admission of that testimony at trial;
therefore, any complaints about the reliability of the field tests were not preserved for review. See TEX. R.
APP. P. 33.1(a).

Foster v. State                                                                                               Page 8
bottle contained nine pills and that the prescription label identified the pills as the

painkiller Hydrocodone, a drug that is popular on the streets for abuse.

        Joiner pleaded guilty to possessing the controlled substance in this case and

received probation.    She also testified that Foster knew nothing about any of the

controlled substances that were found during the search. However, she stated that she

did not recognize the razor blade found in the residence. She testified that she uses

razor blades to chop up rocks of cocaine, but she throws them away every time. She

also stated that she did not recognize the crumbs on the dining room table that field-

tested positive for the presence of cocaine. When asked if she knew Reyes, she replied,

“I’ve seen him around.” She stated that although he is a drug user, he was not there to

buy drugs or give her additional inventory; he was just there “hanging out.” She

testified that Waits is also a drug user but that she does not know her.

        Foster argues that the foregoing evidence shows that he stayed at the residence

on and off for a time and that he had access to the room in which the contraband was

found, but he contends that the evidence is not enough to allow a jury to reasonably

find that he possessed the contraband. However, we conclude that the evidence links

Foster to the cocaine. See Evans, 202 S.W.3d at 166 (noting that it is the logical force of

the combined pieces of circumstantial evidence, not the number of links, that supports a

jury’s verdict). A jury was not required to believe the contrary direct evidence from

Joiner that Foster knew nothing about any of the controlled substances that were found

during the search. See id.




Foster v. State                                                                      Page 9
        The cases on which Foster relies—Mares v. State, 801 S.W.2d 121 (Tex. App.—San

Antonio 1990, no pet.), Allen v. State, 249 S.W.3d 680 (Tex. App.—Austin 2008, no pet.),

and Martin v. State, 753 S.W.2d 384 (Tex. Crim. App. 1988)—are distinguishable. In

Mares and Allen, there was no evidence that the defendants ever lived or stayed at the

apartments where the controlled substances were found, nor were the defendants

shown to be closely related to the other persons in joint possession of the contraband or

who owned or leased the premises where the contraband was found. Allen, 249 S.W.3d

at 684-85; Mares, 801 S.W.2d at 126-27. In Martin, the defendant was not present when

the search was executed, and the methamphetamine was found in the purse belonging

to defendant’s wife and in a black bag found in the front seat of defendant’s car at least

one and a half hours after defendant and his wife parked their car, during which time

the car was unlocked and the driver’s window was rolled down. Martin, 753 S.W.2d at

386-87.

        Viewing all the evidence in the light most favorable to the verdict, the jury could

reasonably conclude, beyond a reasonable doubt, that Foster committed the offense of

possession of a controlled substance. See Curry, 30 S.W.3d at 406. Also, the proof of

guilt is not so weak nor the conflicting evidence so strong as to render the verdict

clearly wrong and manifestly unjust. See Grotti, 273 S.W.3d at 283. We overrule both of

Foster’s issues and affirm the trial court’s judgment.



                                                 REX D. DAVIS
                                                 Justice


Foster v. State                                                                     Page 10
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed March 10, 2010
Do not publish
[CR25]




Foster v. State                              Page 11
