                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-07-236-CR
                                     2-07-237-CR
                                     2-07-238-CR


JESSE GENE ODOM                                                 APPELLANT

                                             V.

THE STATE OF TEXAS                                                    STATE

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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                  I. Introduction

     In two issues, Appellant Jesse Gene Odom (“Odom”) asserts that the trial

court erred in overruling Odom’s motion for instructed verdict because he




     1
         … See T EX. R. A PP. P. 47.4.
asserts the evidence was legally and factually insufficient to support the

verdict.

                                 II. History

      A. Factual Background

      On July 12, 2006, Mansfield Police Department set up surveillance at a

home located at 2518 Edgefield Trail in Mansfield, Texas, in response to an

anonymous complaint about narcotic sales.      The officers observed a 1999

Mercury Mountaineer SUV (“SUV”) backed up to the garage. The garage door

was partially open and police observed Odom making approximately ten trips

to and from the SUV to the garage loading things, including a black bag, into

the back of the SUV.

      After the officers saw Odom put the black bag in the SUV, they walked

up to Odom, identified themselves, and asked to search the house.        With

Odom’s consent, the police searched the house. During the search, the officers

determined that Odom had outstanding traffic warrants and arrested him.

During a search of his person, the officers found less than a gram of

methamphetamine and a glass pipe.

      Odom contends that after he was arrested and searched, he retracted his

consent to search the house, and that, because the officers did not find

anything in the house, they focused on the SUV. The State asserts that Odom

                                      2
told the officers some contradictory things about the SUV, but that he

eventually stated that he owned the SUV and his friend had just signed the

SUV’s title over to him.     The police then called for a K-9 drug dog that

proceeded to sniff the SUV and made a positive alert for contraband.

      Subsequently, the officers obtained a search warrant for the SUV and

proceeded to search the SUV. No contraband was found in the black zipper

bag or in any other items that they saw Odom carrying to the SUV. However,

the officers noticed several plastic baggies sticking out of a cardboard box in

the back seat area of the SUV; the plastic baggies were “the kind that are used

to package drugs.” The officers found an exhaust fan motor inside the box,

and, after a closer inspection of the fan motor, the officers found some tablets

of ecstacy,2 three vials of GHB, 3 and a small amount of methamphetamine (in

a baggie) inside the fan motor.

      Odom contends that the officers testified that they never saw Odom carry

the box containing the fan motor and contraband to the SUV and that the

officers discovered that Diana Moore (“Moore”) was the registered owner of the

SUV. He also contends that Moore’s name was on the SUV’s insurance card



      2
     … Ecstasy is the street name for methylenedioxy methamphetamine
(“MDMA”).
      3
          … “GHB” is gamma hydroxybutyric acid.

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as a permitted driver and that she lived at the house with Odom, but that

Moore was never questioned about the vehicle, the box, the fan motor, or the

contraband. There were also no fingerprints or DNA taken. Additionally, Odom

argues he never said that the box was his, and the officers admitted that

“anybody” could have put the box with the contraband in the SUV. Lastly,

Odom claims that the box was not “right next to” the black bag.

      B. Procedural Background

      Odom moved for an instructed verdict of not guilty, which the trial court

denied. Odom was subsequently convicted of (1) possession of a controlled

substance of less than one gram (methamphetamine) and sentenced to two

years’ imprisonment; (2) possession of a controlled substance of one to four

grams of MDMA and sentenced to eight years’ imprisonment; and (3)

possession of a controlled substance of four grams or more, but less than 200

grams of GHB and sentenced to twelve years’ imprisonment. The trial court

ordered Odom’s sentences to run concurrently. This appeal followed.

                           III. Standards of Review

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all the evidence in the light most favorable to the prosecution in order

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

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443

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U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

      This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the

sole judge of the weight and credibility of the evidence. See T EX. C ODE C RIM.

P ROC. A NN. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919

(Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute

our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735,

740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead, we

“determine whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light

most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.

Crim. App. 2007).      We must presume that the fact-finder resolved any

conflicting inferences in favor of the prosecution and defer to that resolution.

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

                                       5
Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.

State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the fact-finder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the fact-finder’s determination is

manifestly unjust. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23

S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,

we must determine, with some objective basis in the record, that the great

weight and preponderance of all the evidence, though legally sufficient,

contradicts the verdict. Watson, 204 S.W.3d at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence. Id. We may not simply substitute our judgment for the fact-

finder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407

(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result

                                        6
is appropriate, we must defer to the jury’s determination of the weight to be

given contradictory testimonial evidence because resolution of the conflict

“often turns on an evaluation of credibility and demeanor, and those jurors were

in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.

Thus, we must give due deference to the fact-finder’s determinations,

“particularly those determinations concerning the weight and credibility of the

evidence.” Id. at 9.

      An opinion addressing factual sufficiency must include a discussion of the

most important and relevant evidence that supports the appellant’s complaint

on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

                                 IV. Analysis

      In situations where the accused is not in exclusive possession of the

location of contraband, the State is required to adduce beyond a reasonable

doubt independent facts and circumstances that affirmatively link the accused

and the contraband, that is, that he had knowledge of the contraband and

exercised control over it. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim.

App. 1995); Naquin v. State, 607 S.W.2d 583, 586 (Tex. Crim. App. 1980

[Panel Op.]); Hudson v. State, 128 S.W.3d 367, 374 (Tex. App.—Texarkana

2004, no pet.).   A non-exclusive list of factors has been developed when

reviewing whether such affirmative links have been established. Those factors

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include whether: (1) the contraband was in plain view or recovered from an

enclosed place; (2) the accused was the owner of the premises or had the right

to possess the place where the contraband was found, or was the owner or

driver of the automobile in which the contraband was found; (3) the accused

was found with a large amount of cash; (4) the contraband was conveniently

accessible to the accused, or found on the same side of the vehicle as the

accused was sitting; (5) the contraband was found in close proximity to the

accused; (6) a strong residual odor of the contraband was present; (7) the

accused possessed other contraband when arrested; (8) paraphernalia to use

the contraband was in view, or found on the accused; (9) the physical condition

of the accused indicated recent consumption of the contraband in question;

(10) conduct by the accused indicated a consciousness of guilt; (11) the

accused attempted to flee; (12) the accused made furtive gestures; (13) the

accused had a special connection to the contraband; (14) the occupants of the

premises gave conflicting statements about relevant matters; (15) the accused

made incriminating statements connecting himself to the contraband; (16) the

quantity of the contraband; and (17) the accused was observed in a suspicious

area under suspicious circumstances. Tucker v. State, 183 S.W.3d 501, 510

(Tex. App.—Fort Worth 2005, no pet.); Jenkins v. State, 76 S.W.3d 709, 712-

13 (Tex. App.— Corpus Christi 2002, pet. ref’d). This determination is made

                                      8
on a case by case basis. Jenkins, 76 S.W.3d at 713. Concerning prosecutions

for possession of controlled substances, it is not the number of links found

between the defendant and the drug that is dispositive, but rather the logical

force of all of the evidence. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim.

App. 2006). When deciding whether there is sufficient evidence to link the

defendant to the controlled substance contraband, the trier of fact is the

exclusive judge of the credibility of the witnesses and the weight to be given

to their testimony. Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App.

2005). These links connecting the accused to the controlled substance in a

possession case do not need to be so strong as to exclude every other

reasonable hypothesis except guilt, and these links ordinarily emerge from an

orchestration of several factors and the logical force that they have in

combination. Rivera v. State, 59 S.W.3d 268, 274 (Tex. App.—Texarkana

2001, pet. ref’d).

                               V. Application

      First, there is only slight evidence that the vehicle was not in the

exclusive possession of Odom. A “Diana Moore” was a permitted driver on the

insurance card found in the vehicle and was the person from whom Odom

claimed to have recently purchased the SUV. No other evidence tied her to the

SUV and there was no evidence of her direct possession of the vehicle before,

                                      9
during, or after the vehicle search. Nevertheless, we will assume for purposes

of this opinion, there was not exclusive possession by Odom.

         As pointed out by the State, Odom made contradictory statements about

the SUV: he claimed to own the SUV, he had drugs in his pocket, he was

transferring items to the SUV from a garage through a partly open garage door

when observed by the police, the drugs found in his pocket were contained in

the same type of baggie that was found in the box in the SUV, and the black

bag that he was witnessed putting into the SUV contained $184 in cash.

Odom additionally concedes that his name was on the insurance card found in

the vehicle and that methamphetamine was found in his pocket (as was a glass

pipe).

         The jury had to determine whether Odom intentionally or knowingly

possessed the drugs in question, possession meaning actual care, custody,

control, or management. The evidence presented to the jury met several of the

affirmative link factors, including Odom's right to possession and ownership of

the SUV, the place where the contraband was found, and a glass pipe and

additional drugs on his person when arrested. See Tucker, 183 S.W.3d at 510;

Jenkins, 76 S.W.3d at 712-13.       From this evidence, and the other evidence

listed above, the jury could have reasonably concluded that Odom intentionally

or knowingly possessed the controlled substances located in the SUV. See

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Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778;

Hooper, 214 S.W.3d at 16-17. And we cannot say, reviewing this evidence

in a neutral light, that the jury's determination is clearly wrong and manifestly

unjust, or that a different result is clearly suggested by the evidence. See

Watson, 204 S.W.3d at 414-15, 417. Therefore, we hold that the evidence

is both legally and factually sufficient to support the jury's verdict, and we

overrule Odom's two points.

                                VI. Conclusion

      Having overruled Odom’s two issues, the judgment of the trial court is

affirmed.


                                            BOB MCCOY
                                            JUSTICE

PANEL B:     GARDNER, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: May 8, 2008




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