                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                   No. 07-16-00145-CR


                    CHARLA JEANNE THOMPSON, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE

                         On Appeal from the 432nd District Court
                                  Tarrant County, Texas
            Trial Court No. 1414473D, Honorable Ruben Gonzalez, Jr., Presiding

                                  November 18, 2016

                           MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      A jury convicted appellant Charla Jeanne Thompson of possession of one gram

or less of a controlled substance, methamphetamine, and assessed punishment at nine

years’ confinement in prison and a fine of $10,000.1 The trial court imposed sentence

accordingly. Through a single issue on appeal, appellant argues the evidence was


      1
         Possession of less than one gram of methamphetamine is a state jail felony.
TEX. HEALTH AND SAFETY CODE ANN. § 481.112(a),(b) (West 2010). Punishment here
was enhanced to a third-degree felony based on appellant’s two prior state jail felony
convictions. TEX. PENAL CODE ANN. § 12.425(a) (West Supp. 2016).
insufficient to prove appellant knowingly possessed the contraband. Finding the proof

of this element of the State’s case-in-chief was sufficient, we will overrule appellant’s

issue and affirm the judgment of the trial court.


                                         Background


       Around 8:00 a.m. on May 15, 2015, the Fort Worth police department received a

call reporting a suspicious person outside a house. The caller lived across the street

from the house and testified at trial he saw a female walking around the house. She

was knocking and banging on the door and trying to enter through the windows. After

this had gone on for forty-five minutes to an hour, the caller telephoned the police.

According to the caller’s testimony, police were often at the house because of “domestic

violence, fighting, yelling, screaming.” Two officers were dispatched to investigate the

caller’s report. One of them testified at trial.


       At the house, the officers found a female sitting on the front porch steps. She

told the testifying officer she had a driver’s license but it was suspended. She also said

she was waiting for a friend, but was unable to provide the friend’s name. The officer

agreed on cross-examination that the woman told him her bicycle was broken, she was

acquainted with the person who lived in the house, and she needed to use the

telephone.


       While speaking with the woman, the officer noticed a white styrofoam cup sitting

nearby on the porch. The cup contained what the officer described as “dirty pond water.

Like slimy, green, gross.”




                                               2
      After verifying the spelling of the woman’s name, the testifying officer went to his

patrol car to run a background check. His initial search failed to identify a suspended

driver’s license in the name given him but, accessing other records, the officer learned

the woman had outstanding arrest warrants.        At trial, he identified the woman as

appellant.


      During his computer search, the officer testified, he maintained visual contact

with appellant. Though he could not see her whole body from his patrol car, he could

see appellant from “about jaw line up.” Asked if he saw “anyone else approach the

porch area,” the officer responded, “Not at all. Not at all. There was no one else in the

given area.” He also told the jury he “would have been able to see anybody approach

the house, or anybody walk out of the front door of the house, I would have been able to

see.” After learning of the outstanding warrants, he returned to the porch to arrest

appellant.


      As he placed appellant in handcuffs, the officer noticed spilled water around the

white styrofoam cup and that a “full-size sandwich baggie” was now sticking out of the

cup. The officer thought this “quite odd” since he “kn[ew] for a fact” the baggie was not

in the cup when he initially encountered appellant. Wearing gloves, the second officer

removed the baggie from the cup. The testifying officer observed the baggie contained

a substance he believed was methamphetamine.           A same-day test at the jail and

subsequent analysis by a forensic scientist proved the officer’s preliminary assessment

correct. During his testimony, the officer performed a demonstration of the cup and

baggie for the jury using a paper cup taken from counsel table and a tissue.



                                            3
       The testifying officer transferred the contents of the baggie to an evidence bag

but did not preserve the baggie, believing it a “biohazard.” The styrofoam cup was also

not preserved. Photographs of the baggie and the cup were not made.


       The officer agreed on cross-examination there was no report that appellant was

intoxicated at the time of the encounter. When asked later during cross-examination if

appellant appeared intoxicated the officer said she was “tweaking.” 2


                                         Analysis


       As noted, in her sole issue appellant argues the evidence was insufficient to

prove she knowingly possessed the contraband. In the indictment the State alleged

appellant “intentionally or knowingly possess[ed] a controlled substance, namely

methamphetamine, of less than one gram, including adulterants or dilutants[.]”


       In determining whether the evidence is sufficient to support a conviction, a

reviewing court must consider all of the evidence in the light most favorable to the

verdict and determine whether, based on that evidence and reasonable inferences

therefrom, a rational fact finder could have found the essential elements of the crime

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781,

61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).

This “familiar standard gives full play to the responsibility of the trier of fact fairly 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. Circumstantial


       2
        The term “tweaking” has been used to designate a phase of methamphetamine
use. See Durham v. State, No. 10-04-00248-CR, 2005 Tex. App. LEXIS 8826, at *42
(Tex. App.—Waco Oct. 26, 2005, pet. refused) (mem. op.).

                                             4
evidence is as probative as direct evidence in establishing the guilt of the actor, and

circumstantial evidence alone may be sufficient to establish guilt. Carrizales v. State,

414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007)).


      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. Evans v. State, 202

S.W.3d 158, 161 (Tex. Crim. App. 2006); TEX. HEALTH & SAFETY CODE ANN.

§ 481.002(38) (West Supp. 2016). Possession means “actual care, custody, control, or

management.” TEX. HEALTH & SAFETY CODE ANN. § 481.002(38); TEX. PENAL CODE ANN.

§ 1.07(a)(39) (West Supp. 2016). A person commits a possessory offense only if she

voluntarily possesses the prohibited item. TEX. PENAL CODE ANN. § 6.01(a) (West 2011).

Possession is a voluntary act if the possessor knowingly obtains or receives the thing

possessed or is aware of her control of the thing for a sufficient time to permit her to

terminate her control. TEX. PENAL CODE ANN. § 6.01(b).


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

is found, the State must establish care, custody, control, or management by linking the

accused to the substance through additional facts and circumstances.         Evans, 202

S.W.3d at 161-62; Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005),

overruled on other grounds by Robinson v. State, 466 S.W.3d 166, 173 n.32 (Tex. Crim.

App. 2015). Whether the State’s evidence is direct or circumstantial, its evidence of

links must establish, to the requisite level of confidence, that the accused’s connection

with the drug was more than just fortuitous. Poindexter, 153 S.W.3d at 405-06 (citing

                                           5
Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)); Park v. State, 8 S.W.3d

351, 353 (Tex. App.—Amarillo 1999, no pet.).


       The many factors by which an accused may, under the unique circumstances of

each case, be sufficiently “linked” to the contraband, include: (1) the defendant’s

presence when a search is conducted; (2) whether the contraband is in plain view; (3)

the defendant’s proximity to and the accessibility of the contraband; (4) whether the

defendant was under the influence of contraband when arrested; (5) whether the

defendant possessed other contraband or narcotics when arrested; (6) whether the

defendant made incriminating statements when arrested; (7) whether the defendant

attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there

was an odor of contraband; (10) whether other contraband or drug paraphernalia were

present; (11) whether the defendant owned or had the right to possess the place where

the drugs were found; (12) whether the place where the drugs were found was

enclosed; (13) whether the defendant was found with a large amount of cash; and (14)

whether the conduct of the defendant indicated a consciousness of guilt. Evans, 202

S.W.3d at 162 n.12. See Triplett v. State, 292 S.W.3d 205, 208 (Tex. App.—Amarillo

2009, pet. refused) (listing numerous factors). These factors, however, are simply that:

factors which may circumstantially establish the sufficiency of evidence offered to prove

a knowing “possession.” See Evans, 202 S.W.3d at 162 n.12 (explaining that factors

“are not a litmus test”). It is not the number of links that is dispositive, but rather the

logical force of all the evidence. See id. at 162.


       For the argument that the evidence of her possession of contraband was

insufficient because the proof failed to sufficiently link her to the contraband, appellant

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relies chiefly on cases such as Oaks v. State, 642 S.W.2d 174 (Tex. Crim. App. 1982)

and Hernandez v. State, 517 S.W.2d 782 (Tex. Crim. App. 1975).3 While these cases

deal with questions of the sufficiency of proof under circumstances where the accused

was not in exclusive possession of the contraband or the location, we do not find any of

them sufficiently analogous to guide our decision.4 Particularly, in none of them did the

reviewing court find the character and quality of proof here presented by the State.


      The testifying officer encountered appellant on the steps of the house and at that

time first observed the styrofoam cup in plain view. The foul appearance of the water in

the cup caught his attention. Without equivocation he testified the cup did not contain

the baggie, nor was there spilled water around the cup, at that point in time. The officer

maintained sight of appellant’s head and the porch area while checking records in his

patrol car. No one was present on the porch but appellant. The officer returned to


      3
        She cites also Schultz v. State, 502 S.W.2d 817 (Tex. Crim. App. 1973);
Haynes v. State, 475 S.W.2d 739 (Tex. Crim. App. 1971); Allen v. State, 249 S.W.3d
680 (Tex. App.—Austin 2008, no pet.); and Meyers v. State, 665 S.W.2d 590 (Tex.
App.—Corpus Christi 1984, pet. refused). She also generally cites Martin v. State, 753
S.W.2d 384 (Tex. Crim. App. 1988) and Meeks v. State, 692 S.W.2d 504, 511 (Tex.
Crim. App.1985).
      4
         Parenthetically, most of these cases predate Geesa v. State, 820 S.W.2d 154
(Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d
570, 573 (Tex. Crim. App. 2000). In Geesa the Court of Criminal Appeals abandoned
the alternative-reasonable-hypothesis sufficiency analysis that required “[a] conviction
based on circumstantial evidence [to] exclude every other reasonable hypothesis except
the guilt of the accused.” Carlsen v. State, 654 S.W.2d 444, 447 (Tex. Crim. App.
1983), overruled by Geesa, 820 S.W.2d at 161. Courts now examine both direct and
circumstantial evidence in the same manner; reasonable inferences are not disregarded
when drawn from circumstantial evidence. Anderson v. State, No. 02-15-00405-CR,
2016 Tex. App. LEXIS 4187, at *9-10 (Tex. App.—Fort Worth Apr. 21, 2016, no pet.)
(mem. op.) (not designated for publication) (citing Dobbs v. State, 434 S.W.3d 166, 170
(Tex. Crim. App. 2014); Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014);
and Hearne v. State, 80 S.W.3d 677, 680 (Tex. App.—Houston [1st Dist.] 2002, no
pet.)).

                                            7
arrest appellant for outstanding warrants. As he placed her in handcuffs he saw the cup

now contained the baggie and saw the spilled water near the cup. Appellant was in

near proximity to the cup and no one else had access to the cup from the officer’s

perspective until he returned from the patrol car.     In other words, the area was in

appellant’s exclusive possession at that time. Cf. Mesa v. State, No. 13-10-00604-CR,

2011 Tex. App. LEXIS 8358, at *12-13 (Tex. App.—Corpus Christi Oct. 20, 2011, no

pet.) (mem. op., not designated for publication) (finding fact that defendant exclusively

possessed vehicle when contraband was located significantly linked defendant to

contraband).


       As fact finder, the jury was the sole judge of the credibility of the witnesses and

was entitled to believe all, some, or none of the testimony presented. Lancon v. State,

253 S.W.3d 699, 707 (Tex. Crim. App. 2008); Chambers v. State, 805 S.W.2d 459, 461

(Tex. Crim. App. 1991). We may not reweigh the evidence or second-guess the jury’s

credibility determinations. Perez v. State, No. 07-11-00249-CR, 2012 Tex. App. LEXIS

2647, at *9-10 (Tex. App.—Amarillo Apr. 4, 2012, no pet.) (mem. op., not designated for

publication).


       Appellant exercised her right not to testify and did not present a case-in-chief in

defense. The only narrative of the events the jury heard thus was from the officer. If

accepted, the officer’s testimony without question allowed the jury to infer appellant put

the baggie in the cup, and spilled the water doing so. Viewing all of the evidence under

the required standard, we conclude the jury was free to conclude appellant knowingly

possessed the methamphetamine. We overrule appellant’s issue on appeal.



                                            8
                                      Conclusion


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




                                                       James T. Campbell
                                                         Justice


Do not publish.




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