                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00067-CR

DEBARSHI EDISON BANERJEE,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                      From the County Court at Law No. 1
                             Brazos County, Texas
                      Trial Court No. 10-02293-CRM-CCL1


                           MEMORANDUM OPINION


      Debarshi Banerjee appeals from a conviction for the offense of possession of

marijuana. TEX. HEALTH AND SAFETY CODE ANN. § 481.115 (West 2010). In his sole issue,

Banerjee complains that the evidence was insufficient to link Banerjee to the marijuana

that was found in a vehicle in which Banerjee was a passenger. Because we find that

the evidence was sufficient, we affirm the judgment of the trial court.

Sufficiency of the Evidence

      The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:

        In determining whether the evidence is legally 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 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). 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. “Each fact need not point
        directly and independently to the guilt of the appellant, as long as the
        cumulative force of all the incriminating circumstances is sufficient to
        support the conviction.” Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

        The Court of Criminal Appeals has also explained that our review of “all of the

evidence” includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. at

326. Further, direct and circumstantial evidence are treated equally: “Circumstantial

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

circumstantial evidence alone can be sufficient to establish guilt.” Hooper v. State, 214

S.W.3d at 13. Finally, it is well established that the factfinder is entitled to judge the

credibility of witnesses and can choose to believe all, some, or none of the testimony

presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).


Banerjee v. State                                                                           Page 2
Possession and Affirmative Links

        To prove unlawful possession of any 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); see also TEX. HEALTH & SAFETY CODE ANN. § 481.002(38)

(West 2010) ("'Possession' means actual care, custody, control, or management.").

        Possession is not required to be exclusive. See Evans, 202 S.W.3d at 162 n.12.

When the defendant is not in exclusive possession of the place where the controlled

substance is found, then additional, independent facts and circumstances must

affirmatively link the defendant to the substance in such a way that it can reasonably be

concluded that the defendant possessed the substance and had knowledge of it.

Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005); Kibble v. State, 340 S.W.3d

14, 18 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). In other words, the evidence

"must establish, to the requisite level of confidence, that the accused's connection with

the [contraband] was more than just fortuitous," which may be established by direct or

circumstantial evidence. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).

        Several factors may help to establish an affirmative link between the defendant

and the contraband, including (1) the defendant's presence when a search is conducted;

(2) whether the substance was in plain view; (3) the defendant's proximity to and the

accessibility of the substance; (4) whether the defendant was under the influence of


Banerjee v. State                                                                     Page 3
narcotics 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 substance was found; (12) whether the

place where the substance was 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.

        Not all of these factors must be proved; rather, it is the cumulative logical force

the factors have in proving possession that we must consider. See James v. State, 264

S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd). Additionally, the

absence of some of the factors is not evidence of innocence that must be weighed

against the factors that are present. Id. Rather, they are used to assess the sufficiency of

the evidence linking the defendant to the knowing possession of contraband. See, e.g.,

Roberson v. State, 80 S.W.3d 730, 735-36 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd);

Allen v. State, 249 S.W.3d 680, 694 n.13 (Tex. App.—Austin 2008, no pet.) (explaining

that presence or absence of factors "aid appellate courts in determining the legal

sufficiency of the evidence in knowing possession of contraband cases").




Banerjee v. State                                                                     Page 4
Relevant Facts

        Based on a call regarding suspicious activity, Officer Lunt approached a Chevy

Colorado pickup parked behind a church late at night. Lunt approached on foot so as

to avoid detection by the occupants of the truck. Banerjee, Ross Woods, Kent Childress,

and Ted Helms were seated in the truck. Lunt observed flickering of some lighters in

the truck and something being passed around. Lunt made contact with the driver,

Woods, and was informed by Woods that the four of them were smoking cigarettes

because they were unable to smoke them on the campus of Texas A&M, where all four

of them resided. Lunt detected the odor of cigarette smoke in the truck, but did not

detect the smell of marijuana.

        Lunt believed that Childress, who was seated in the front passenger's seat of the

truck, was intoxicated on marijuana. Childress admitted to smoking marijuana that

night and told Lunt that there was a marijuana pipe somewhere in the truck. Lunt

searched the truck and found a marijuana pipe under Banerjee's jacket on the back seat

of the truck next to where Banerjee had been seated. Lunt also found marijuana in a

plastic Walmart sack and a marijuana grinder in the center console of the truck. Lunt

testified that the center console could be reached by anyone in the truck. The marijuana

grinder was used to grind marijuana so that it could be smoked in a marijuana pipe.

        After the marijuana and paraphernalia were found, Banerjee admitted to Lunt

that he had smoked marijuana from the pipe found in the truck earlier that evening and


Banerjee v. State                                                                  Page 5
that the bag of marijuana had been in his dorm room earlier that evening. Banerjee

denied knowledge of how the marijuana got into the truck, and claimed that he had

only been in the truck for a short time. In Lunt's opinion, Banerjee did not exhibit any

signs of intoxication from marijuana use.

        When Lunt questioned Banerjee, Childress, and Helm, who had been seated next

to Banerjee in the back seat of the truck, all three nodded when asked if they had

smoked marijuana that night. Banerjee, Childress, and Helm were all arrested for

possession of the marijuana found in the truck. Woods was not arrested because he

denied knowledge of or use of the marijuana, showed no signs of intoxication, and

when Lunt asked them if Woods had anything to do with the marijuana, Banerjee,

Childress, and Helm shook their heads in a manner to indicate he did not.

Analysis

        In reviewing the evidence in a light most favorable to the verdict, we find that

the evidence was sufficient for the jury to have found Banerjee guilty of possessing the

marijuana. Banerjee was present at the scene where the search was conducted. He was

in close proximity to the marijuana and had easy access to the center console. Banerjee

admitted that he had smoked marijuana that evening and identified the marijuana

found in the truck as having been in his dorm room earlier that evening. Banerjee told

Lunt that he had smoked marijuana from the marijuana pipe which was found under

Banerjee's jacket next to where he was seated in the truck. When we consider the


Banerjee v. State                                                                 Page 6
cumulative force of the present factors set forth in Evans, we find that there is sufficient

evidence to connect Banerjee to the possession of the marijuana found in the truck. We

overrule Banerjee's sole issue.

Conclusion

        Having overruled Banerjee's sole issue, we affirm the judgment of the trial court.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed November 21, 2013
Do not publish
[CR25]




Banerjee v. State                                                                     Page 7
