                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-16-00158-CR


LAWRENCE E. WHITE                                                  APPELLANT

                                         V.

THE STATE OF TEXAS                                                      STATE


                                      ----------

           FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
                       TRIAL COURT NO. 1434087D

                                      ----------

                           MEMORANDUM OPINION1

                                      ----------

      A jury found Appellant Lawrence E. White guilty of possessing marijuana in

the amount of five pounds or less but more than four ounces, found the

enhancement paragraph true, and assessed his punishment at 20 years’

confinement in the penitentiary. Tex. Health & Safety Code Ann. § 481.121(b)(3)

(West 2010); Tex. Penal Code Ann. § 12.425(c) (West Supp. 2016). The trial


      1
          See Tex. R. App. P. 47.4.
court sentenced White accordingly. In four points, White contends that (1) the

trial court erred by failing to disclose the confidential informer’s identity; (2) the

jury charge contained egregious error; (3) the trial court erred by denying his

directed-verdict motion because the evidence was insufficient; and (4) his

punishment violated the Eighth Amendment of the United States Constitution

because it was cruel and unusual. We affirm.

                       SUFFICIENCY OF THE EVIDENCE

       White’s third point is that the trial court should have granted his motion for

a not-guilty directed verdict because, according to White, the evidence was

insufficient to support his conviction for possessing marijuana in an amount of

five pounds or less but more than four ounces. When, as here, a party presents

multiple grounds for reversal, we generally first address those points that would

afford the party the greatest relief.         Chaney v. State, 314 S.W.3d 561,

565 n.6 (Tex. App.—Amarillo 2010, pet. ref’d).        Because White’s sufficiency

challenge would provide him an acquittal if successful, we address it first. Id. at

565.

                               Standard of Review

       We apply the same standard of review to a directed-verdict motion as that

used under a sufficiency review. McDuff v. State, 939 S.W.2d 607, 613 (Tex.

Crim. App.), cert. denied, 522 U.S. 844 (1997); Havard v. State, 800 S.W.2d 195,

199 (Tex. Crim. App. 1989); Pollock v. State, 405 S.W.3d 396, 401 (Tex. App.—

Fort Worth 2013, no pet.). In our due-process review of evidentiary sufficiency to


                                          2
support a conviction, we view all the evidence in the light most favorable to the

verdict to determine whether any rational factfinder could have found the crime’s

essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex.

Crim. App. 2012); Pollock, 405 S.W.3d at 401. This standard gives full play to

the factfinder’s responsibility 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; Blackman v. State, 350 S.W.3d 588,

595 (Tex. Crim. App. 2011); Pollock, 405 S.W.3d at 401.

       The factfinder is the sole judge of the evidence’s weight and credibility.

See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise, 364 S.W.3d at

903; Pollock, 405 S.W.3d at 401.        Thus, when performing an evidentiary-

sufficiency review, we may not re-evaluate and substitute our judgment for the

factfinder’s.   Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010);

Pollock, 405 S.W.3d at 401.      Instead, we determine whether the necessary

inferences are reasonable based on the evidence’s cumulative force when

viewed in the light most favorable to the verdict. Sorrells v. State, 343 S.W.3d

152, 155 (Tex. Crim. App. 2011); Pollock, 405 S.W.3d at 401. We must presume

that the factfinder resolved any conflicting inferences in the verdict’s favor and

defer to that resolution.   Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; Wise,

364 S.W.3d at 903; Pollock, 405 S.W.3d at 401.




                                        3
      A person commits the state-jail-felony offense of marijuana possession if

he knowingly or intentionally possesses a useable quantity of the drug in an

amount between four-plus ounces and five pounds.2 See Tex. Health & Safety

Code Ann. § 481.121(b)(3); Hung Phuoc Le v. State, 479 S.W.3d 462, 467 (Tex.

App.—Houston [14th Dist.] 2015, no pet.). To prove unlawful possession, the

State must establish that the accused exercised care, control, or management

over the contraband and knew that the substance was in fact contraband.

Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005), overruled on

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

2015); Hung Phuoc Le, 479 S.W.3d at 467.

      The State may prove these elements through direct or circumstantial

evidence, but the evidence must establish that the accused’s connection with the

substance was more than merely fortuitous. See Blackman, 350 S.W.3d at 594–

95; Hung Phuoc Le, 479 S.W.3d at 467. In other words, mere presence in the

same place as the controlled substance will not support a possession finding.

See Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). But presence

or proximity, when combined with other evidence, either direct or circumstantial,

may establish possession. See id.


      2
       White’s enhancement paragraph (two prior felony convictions for robbery
by threats) raised the punishment range of the offense to a second-degree
felony. See Tex. Penal Code Ann. § 12.425(c). Second-degree felonies are
punishable by imprisonment for not more than 20 years or less than two years
and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.33 (West 2011).


                                       4
      Possession also need not be exclusive. See Hung Phuoc Le, 479 S.W.3d

at 467; Henry v. State, 409 S.W.3d 37, 42 (Tex. App.—Houston [1st Dist] 2013,

no pet.). When a defendant is not in exclusive possession of the place where the

substance is found, additional independent facts and circumstances must exist

linking him to the contraband. See Poindexter, 153 S.W.3d at 406. Texas courts

have recognized a non-exclusive list of circumstances tending to establish

affirmative links that will support an inference of possession, including:

           the defendant’s presence when a search was conducted;

           whether the contraband was in plain view;

           the defendant’s proximity to and the accessibility of the contraband;

           whether the defendant was under the influence of narcotics when
             arrested;

           whether the defendant possessed other contraband when arrested;

           whether the defendant made incriminating statements when
             arrested;

           whether the defendant attempted to flee;

           whether the defendant made furtive gestures;

           whether an odor of contraband existed;

           whether other contraband or drug paraphernalia was present;

           whether the defendant owned or had the right to possess the place
             where the drugs were found;

           whether the place where the drugs were found was enclosed;

           whether the defendant was found with large amounts of cash;



                                          5
               whether the defendant’s conduct indicated a consciousness of guilt.

See Evans, 202 S.W.3d at 162 n.12; Hung Phuoc Le, 479 S.W.3d at 467.

       It is the logical force of all direct and circumstantial evidence and not the

number of links that is dispositive. See Evans, 202 S.W.3d at 162 n.12; Hung

Phuoc Le, 479 S.W.3d at 467. A corollary principle is that the absence of various

affirmative links does not constitute evidence of innocence to be weighed against

the affirmative links that do exist. James v. State, 264 S.W.3d 215, 219 (Tex.

App.—Houston [1st Dist.] 2008, pet. ref’d); see also Williams v. State,

313 S.W.3d 393, 398 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).

                                    The Evidence

       Maegan Parker, who managed the Cedar Ridge Townhomes on Knoll

Crest Drive in Arlington, often visited the unit at 2130 Knoll Crest Drive not only

because of her job duties but also because her mother-in-law lived next door.

Parker deduced that White lived at 2130 Knoll Crest Drive with the actual lessee,

Laprecious Wheeler: she had seen him there frequently, and other tenants had

complained about him over a period of time. Other people living at 2130 Knoll

Crest Drive included Wheeler’s mother (Ewanda Smith), Wheeler’s children,

Wheeler’s uncle, and Wheeler’s younger brother (T.P.).3

       Over the Labor Day weekend in 2015, Parker saw White leave the

townhome, walk out to a vehicle in the parking lot, briefly talk to the vehicle’s

       3
           To protect this juvenile’s privacy, we use his initials. See Tex. R. App.
9.8.


                                           6
occupants, and go back into the residence. White repeated this pattern at least

six times in a single hour. (Detective Andrew Van Treeck of the Arlington Police

Department offered context for this kind of behavior, testifying that frequent, brief,

and repeated traffic at a specific location often indicated drug trafficking.) Shortly

afterward, on September 10, Parker made a complaint about White.4

      Arlington P.D. Detective Spencer Simmons testified that after investigating

a complaint about illegal narcotics activity at 2130 Knoll Crest Drive, he secured

a search warrant for that address on September 24, 2015; the targets were White

and T.P.

      Working undercover, Detective Van Treeck conducted surveillance on

2130 Knoll Crest Drive the next day, September 25, while other officers prepared

to execute the search warrant. Detective Van Treeck parked his vehicle on an

empty lot from which he could watch the door to the residence’s patio area and

could see White sitting in a lawn chair about 12 feet in front of the townhouse.

From that vantage point, White had a good view of Arbrook Street’s traffic.

      Over the next several minutes, White walked from the lawn chair into the

townhouse and back again. On his last trip, he came out carrying a small child.

With the child in his arms, White walked westbound on the north side of Arbrook

Street, crossed the street, then started walking southbound. As White stood on

the south side of Arbrook Steet, he made a telephone call while holding the child.

      4
      From the context, the record suggests that Parker lodged a formal
complaint with the Arlington Police Department on that date.


                                          7
Although White was some distance away from Detective Van Treeck, White

intermittently stared at him. Because White continued to look in Detective Van

Treeck’s direction as White walked back to his residence, Detective Van Treeck

grew concerned that his presence might have compromised the operation.

      On returning to the townhome, White took the child inside and came back

out alone. Shortly after that, Detective Van Treeck saw a man walk up the drive

and approach White. They spoke briefly, and the man left.

      The man who approached White was Adam Colbert, a Tarrant County

juvenile-probation officer.    Colbert was there looking for T.P., one of his

probationers, whom Colbert had been supervising for the past three months.

Although Colbert had last visited T.P. at the Knoll Crest address on August 31,

T.P. was not there for Colbert’s multiple attempted follow-up visits. (Colbert was

unable to find T.P. at 2130 Knoll Crest Drive because after property manager

Parker had received a complaint on September 5, she had asked T.P. to leave

the property and had not seen him since then.)

      Colbert recognized White—who said T.P. was not home—as Wheeler’s

boyfriend. Colbert asked White to “let [T.P.] know that [he] came by” and to get

in touch with Colbert as soon as possible.

      After Colbert left, White began to walk around the townhome’s patio area

and returned to his chair. From Detective Van Treeck’s position, he could see

only White’s back when White turned toward the patio, which was separated from

the front lawn by a wall that stood three or four feet high.


                                          8
        A photograph of the wall with officers standing near it and behind it shows

that it was roughly bicep-level high. Another photograph shows that the wall

encloses a relatively small patio or front-porch area. A large grill and a table

within the enclosure further reduce the already limited standing space within the

area.

        As department policy required, a SWAT team served the warrant. Officers

encountered White as he sat in the lawn chair, and they detained him while other

officers searched the house and patio area.       They found marijuana in three

different places:   in the barbecue grill on the patio, in the kitchen, and in a

bedroom.

        Opening the grill’s lid, officers discovered a plastic shopping bag. Inside

that shopping bag was a clear zip-lock bag containing 224.81 grams

(7.92 ounces5) of marijuana—almost half a pound.           Detective Van Treeck

testified that depending on the quality, eight ounces of marijuana would have a

street value from $100 to as much as $1,700. In a kitchen cupboard behind a

syrup bottle and other food items, officers found a plastic baggie containing

1.11 grams of marijuana (roughly .04 ounces).         In a bedroom, the officers

uncovered another small baggie, this one containing .85 grams of marijuana,

next to a video-game controller on the floor beside the bed. A nearby canvas

bag contained documents and receipts with White’s name on them.


        5
       Investigator Nichole Newquist testified that an ounce correlates to
28.35 grams.


                                         9
      Later that day, after the officers concluded the search, Maegan Parker

returned to the townhome to secure a broken glass door. During the hour that

she was there working on the door, three or four people approached her and

asked to speak to “Head,” which Parker recognized as White’s nickname. Each

time she told them that White was not there, they “just hurried up and got in their

car and left.”

                                    Discussion

      White argues that no drugs were found on him or within his reach.

Although true that no drugs were discovered actually on White, nearly eight

ounces of marijuana were found in the patio grill close to where White was

sitting. No one other than White was seen on or near the patio. See Evans,

202 S.W.3d at 162 n.12 (stating that a defendant’s proximity and accessibility to

drugs were factors potentially establishing an affirmative link).

      The fact that the residence was home to other adults and children is

similarly not determinative because a defendant’s possession need not be

exclusive. See Hung Phuoc Le, 479 S.W.3d at 467. Furthermore, none of the

other adults or children were seen on the patio near the grill containing the

concealed marijuana, and none of the other adults or children were seen

shuttling back and forth between the residence, the patio, and vehicles in the

parking lot as White was.

      And although T.P.’s alleged possession of marijuana also formed a basis

for the search warrant, the evidence at trial was that after Parker asked T.P. to


                                         10
leave, she had not seen him at the property since September 5. In addition,

Colbert’s attempts to visit T.P. later in September and, specifically, on September

25, 2015, failed, thus further undercutting any suggestion that the marijuana

might have belonged to T.P. rather than White.

       White also suggests that we find it significant that he was not inside the

townhouse when the officers conducted the search. But the officers found the

vast majority of the marijuana on the patio, which was precisely where Detective

Van Treeck had seen White. Additionally, Parker testified that she thought White

lived there, and other evidence supported Parker’s belief. The officers found

documents with White’s name on them in the bedroom—a room in which the

officers found more marijuana. They found a third bit of marijuana hidden away

in a common area—a kitchen cabinet.               See Evans, 202 S.W.3d at

162 n.12 (stating that whether a defendant owned or had the right to possess the

place where the drugs were found was a factor potentially establishing an

affirmative link).

       White maintains, too, that no evidence showed how the marijuana got into

the grill or that he had any control over the grill. Although no direct evidence

showed who put the marijuana into the grill, testimony at trial placed a street

value on it of as much as $1,700. The jury could reasonably conclude that

whoever put it there would not leave it unattended. White was the only person in

a position to watch the grill. And because the grill was behind a partial wall, the

jury could have reasonably concluded that White could have accessed the grill


                                        11
without being seen. Indeed, Detective Van Treeck testified that White moved

around the patio area without Detective Van Treeck’s being able to tell what

White was doing because of the wall.

      Viewing the evidence in the light most favorable to the verdict, the State

introduced sufficient evidence linking White to the contraband found at the

townhouse. Viewed in the light most favorable to the verdict, the combined and

cumulative force of all the evidence, and the reasonable inferences that can be

drawn from it, also established that White exercised care, custody, and control

over at least four ounces of the contraband found there. See McDaniel v. State,

No. 05-15-00638-CR, 2016 WL 4260980, at *3 (Tex. App.—Dallas Aug. 11,

2016, pet. ref’d) (mem. op., not designated for publication) (affirmative links

sufficient where (1) defendant lived in apartment “off-and-on” for approximately

six weeks, sold marijuana out of the apartment, and controlled access to the

apartment, and (2) officers found $500 in a coat pocket and smaller bags of

marijuana in a clothes hamper in a bedroom). Any rational factfinder could have

found the essential elements of the crime beyond a reasonable doubt.             See

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.

      We overrule White’s third point.

                          CONFIDENTIAL INFORMER

      In White’s first point, he argues that the trial court erred by not ordering the

State to disclose a material witness—the confidential informer. In the alternative,




                                         12
White asserts that the trial court erred by not conducting an in-camera hearing

under Texas Rule of Evidence 508. Tex. R. Evid. 508.

      In White’s “Motion to Reveal Confidential Informant,” he sought the identity

of the confidential informer “whose actions were the basis of the search warrant

leading to [White’s] arrest,” adding that “[White] was arrested upon the execution

of a search warrant, and the supporting affidavit for the warrant was based upon

the alleged actions of an unnamed Confidential Informant.” He claimed that he

“need[ed] to know the identity of the Confidential Informant so as to determine

the accuracy and/or legality of the search warrant.” At the pretrial hearing, where

the motion was discussed but not resolved, the following occurred:

      THE COURT: I have a motion to reveal the confidential informant.
      Is that an evidentiary motion?

      [DEFENSE COUNSEL]: Your Honor, that’s kind of, I guess, in
      conjunction with the motion to suppress.

      THE COURT: Okay.

      [DEFENSE COUNSEL]: We need the confidential informant to
      make sure he’s a reliable confidential informant, etcetera, that he
      was not operating under any threat or promise of leniency. That’s
      what that motion really goes to.

             However, the arrest warrant affidavit in this case, Your Honor,
      cites the confidential informant as being one that has been used
      before. It’s silent as to exactly how the confidential informant was
      selected in this case, who he was, or anything else, or why he was
      used, why this particular one was used.

      THE COURT: Okay.

      [DEFENSE COUNSEL]: The search warrant is also silent as to what
      kind of history other than he’s been reliable in the past.



                                        13
       Texas Rule of Evidence 508 preserves an informer’s anonymity except

under three narrow circumstances. One of these three exceptions—and the one

on which White based his motion—authorizes the trial court to require disclosure

of a confidential informer’s identity if:

                 (i) information from an informer is relied on to establish the
                 legality of the means by which evidence was obtained; and

                 (ii) the court is not satisfied that the information was
                 received from an informer reasonably believed to be
                 reliable or credible.

Tex. R. Evid. 508(c)(3)(A)(i), (ii).

       In his appellate brief, however, White abandons rule 508(c)(3) and adds

new arguments based on rule 508(c)(1) (creating an exception if the informer is a

witness) and on rule 508(c)(2) (creating an exception if the trial court finds a

reasonable probability that the informer can “give testimony necessary to a fair

determination of guilt or innocence”). That is, to the extent that Parker was the

confidential informer, White now contends that rule 508(c)(1) applies, and to the

extent the confidential informer was a material witness, White also now contends

that rule 508(c)(2) and its mechanism for in-camera review under rule

508(c)(2)(C) applies.

       The complaint made on appeal must comport with the complaint made in

the trial court or the alleged error is forfeited. See Lugo v. State, 299 S.W.3d

445, 450 (Tex. App.—Fort Worth 2009, pet. ref’d). Because White’s complaint




                                            14
on appeal does not comport with his complaint at trial, we hold that his purported

error was not preserved.

      We overrule White’s first point.

                                CHARGE ERROR

      In point two, White argues that the “trial court reversibly erred by

erroneously instructing the jury on the law of the case, not limiting their verdict,

and thereby allowed a non-unanimous jury verdict.” White contends here that

the evidence was not limited to a single offense because each of the three units

of marijuana could have been separately charged, because each unit could have

been attributed to different persons, and because each offense could have been

committed on a separate date. White contends that each of the three potential

offenses should have been submitted separately in order to ensure unanimity.

We disagree.

      The charge provided:

      Now, if you find from the evidence beyond a reasonable doubt that
      on or about the 25th day of September, 2015, in Tarrant County,
      Texas, the Defendant, Lawrence E. White, did intentionally or
      knowingly possess a usable quantity of marihuana of five pounds or
      less but more than four ounces, then you will find the Defendant
      guilty of the offense of possession of marihuana of five pounds or
      less but more than four ounces.

            Unless you so find beyond a reasonable doubt, or if you have
      a reasonable doubt thereof, or if you are unable to agree, you will
      next consider whether the Defendant is guilty of the offense of
      Possession of a usable quantity of Marijuana of less than two
      ounces.




                                         15
            If you find from the evidence beyond a reasonable doubt that
      on or about the 25th day of September, 2015, in Tarrant County,
      Texas, the Defendant, Lawrence E. White, did intentionally or
      knowingly possess a usable quantity of marihuana of less than two
      ounces, then you will find the Defendant guilty of the offense of
      possession of a usable quantity of marihuana of less than two
      ounces.

            Unless you so find beyond a reasonable doubt, or if you have
      a reasonable doubt thereof, you will acquit the Defendant of the
      offense of Possession of a usable quantity of Marijuana of less than
      two ounces and say by your verdict “Not Guilty.”

             ....

             Any verdict you render must be unanimous.

      The State has prosecutorial discretion when deciding what crime to

charge. See Gregg v. Georgia, 428 U.S. 153, 199, 96 S. Ct. 2909, 2937 (1976)

(plurality op.); Greeley v. State, No. 03-98-00007-CR, 2000 WL 689769, at

*11 (Tex. App.—Austin May 31, 2000, pet. ref’d) (not designated for publication).

In exercising its discretion here, the State elected to charge White with

possessing all three units collectively on the date of the search.

      The State also had the discretion to submit the charged offense and the

lesser-included offense. See Grey v. State, 298 S.W.3d 644, 650–51 (Tex. Crim.

App. 2009). The State left it to the jury to sort out whether White possessed

more than four ounces or less than two. If the jury found that White possessed

the marijuana found in the grill, that amount alone crossed the four-ounce

threshold, and whether White possessed the marijuana in the kitchen and the

bedroom then became moot. But if the jury found that White did not possess the



                                         16
marijuana in the grill but did possess the marijuana in either the kitchen or the

bedroom (or in both places), White was still guilty of the lesser-included offense.

As White correctly notes in his brief, the jury could have viewed the three units of

marijuana differently.   Regardless of which way the jury went, however, the

charge required unanimity on the charged offense (more than four ounces), on

the lesser-included offense (less than two ounces), or on a verdict of not guilty.

      We overrule White’s second point.

                     CRUEL AND UNUSUAL PUNISHMENT

      In White’s fourth point, he contends that his 20-year sentence constitutes

cruel and unusual punishment. U.S. Const. amend. VIII. White notes that the

maximum punishment for possessing one ounce of marijuana is six months in a

county jail. See Tex. Health & Safety Code Ann. § 481.121(b)(1) (West 2000);

Tex. Penal Code Ann. § 12.22 (West 2011). White essentially argues that for the

eight or so ounces he possessed, his punishment should have been closer to

four years’ incarceration than the twenty years the jury assessed.

      To complain on appeal that a sentence violates the United States or Texas

Constitution, a defendant must have objected on those grounds when sentenced

was imposed. See Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013);

Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref’d);

Acosta v. State, 160 S.W.3d 204, 211 (Tex. App.—Fort Worth 2005, no pet.); see

also Lewis v. State, No. 02-15-00450-CR, 2016 WL 1393466, at *1 (Tex. App.—

Fort Worth April 7, 2016, pet. ref’d) (mem. op., not designated for publication).


                                         17
Here, White did not object during the punishment hearing, when sentence was

imposed, or in a motion for new trial. Error, if any, has thus not been properly

preserved. See Burt, 396 S.W.3d at 577; Kim, 283 S.W.3d at 475; Acosta,

160 S.W.3d at 211; see also Lewis, 2016 WL 1393466, at *1.

      Further, even if we were to reach the merits, punishment imposed within

the statutory limits, as here, is generally not subject to challenge for

excessiveness. See Kim, 283 S.W.3d at 475. Subject only to a very limited,

“exceedingly rare,” and somewhat amorphous Eighth Amendment gross-

disproportionality review, a punishment falling within the legislatively prescribed

range and based on the sentencer’s informed normative judgment is

unassailable on appeal. Id. at 475–76.

      We overrule White’s fourth point.

                                 CONCLUSION

      Having overruled each of White’s points, we affirm the trial court’s

judgment.



                                                   /s/ Elizabeth Kerr
                                                   ELIZABETH KERR
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and KERR, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 23, 2017



                                          18
