                                    NO. 12-19-00017-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 CURVIE BRINSON,                                   §      APPEAL FROM THE 123RD
 APPELLANT

 V.                                                §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                          §      SHELBY COUNTY, TEXAS

                                    MEMORANDUM OPINION
       Curvie Brinson appeals his conviction for possession of a controlled substance. In one
issue, he complains that the evidence is insufficient to support his conviction. We affirm as
modified.


                                          BACKGROUND
       On April 14, 2016, at approximately 11:45 p.m., Center Police Department Officers James
Blackwell and Steve Thornburgh were on patrol on Shelbyville Street in Center, Texas. Officer
Blackwell observed a vehicle signal that it was going to turn into a washeteria, but it then abruptly
proceeded in a different direction. Officer Blackwell testified that he became suspicious because
the area is known for its criminal activities, especially at night, and because people engaging in
criminal activity often make furtive movements or change their direction of travel upon observing
a police vehicle. Officer Blackwell checked the vehicle’s registration, and after discovering it was
expired, pulled the vehicle over.
       Officer Blackwell contacted Appellant, the driver of the vehicle, and observed the
passenger, Ronnie Harper. Officer Blackwell discovered Appellant was driving with a suspended
license and had no proof of insurance on the vehicle. Officer Blackwell arrested Appellant for
driving with a suspended license and, during a search of his person, located a crack pipe in
Appellant’s back left pants pocket. Officer Thornburgh then searched the vehicle and located a
small amount of crack cocaine on the driver’s side floorboard.
         Appellant was arrested for possession of a controlled substance in penalty group one an
amount of less than one gram, a state jail felony. Subsequently, Appellant was indicted for the
offense and pleaded “not guilty.” The case proceeded to a jury trial, and the jury found Appellant
“guilty.” Appellant elected to have the trial court assess punishment. Prior to trial, the State filed
a notice of intent to enhance Appellant’s punishment, alleging that he previously had been
convicted of two prior sequential felonies. At punishment, the State offered proof of Appellant’s
previous convictions, and the trial court sentenced Appellant to twenty years of imprisonment. 1
This appeal followed.


                                        SUFFICIENCY OF THE EVIDENCE
         In his sole issue, Appellant complains that the evidence is insufficient to support his
conviction. Specifically, he argues that the State failed to establish that he intentionally or
knowingly possessed the drugs because (1) he was not in exclusive possession of the car the drugs
were found in, (2) he was not the registered owner of the car, and (3) the small quantity of drugs
“would have been almost invisible to the occupants of the car.”
Standard of Review
         When determining if the evidence is sufficient to sustain a conviction, the court must apply
the Jackson v. Virginia standard. See Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim.
App. 2010). This standard requires the court to determine whether, considering all the evidence
in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560
(1979); Brooks, 323 S.W.3d at 899. In order to consider the evidence in the light most favorable
to the verdict, we must defer to the jury’s credibility and weight determinations, because the jury
is the sole judge of the witnesses’ credibility and the weight to be given to their testimony. Brooks,
323 S.W.3d at 899; see Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. This standard recognizes “the

         1
           Pursuant to the penal code, if it is shown on the trial of a state jail felony that the defendant previously has
been finally convicted of two felonies other than a state jail felony, and the second previous felony conviction is for
an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant
shall be punished for a felony of the second degree. See TEX. PENAL CODE ANN. § 12.425(b) (West 2019). The
punishment range for a second degree felony is two years to twenty years of imprisonment. See id. § 12.33(a) (West
2019).


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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,
99 S. Ct. at 2789; see also Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). The
fact finder is entitled to judge the credibility of the 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); see also Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). When
conflicting evidence is presented, we must resolve those conflicts in favor of the verdict and defer
to the fact finder’s resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. We may not substitute
our own judgment for that of the fact finder. See id., 443 U.S. at 319, 99 S. Ct. at 2789; Thornton
v. State, 425 S.W.3d 289, 303 (Tex. Crim. App. 2014); King v. State, 29 S.W.3d 556, 562 (Tex.
Crim. App. 2000). Circumstantial evidence is as probative as direct evidence in establishing the
guilt of an actor and can be alone sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007).
Applicable Law
        A person commits the offense of possession of a controlled substance when he knowingly
or intentionally possesses a controlled substance.         TEX. HEALTH     AND   SAFETY CODE ANN.
§ 481.115(a) (West 2017). To establish possession, the State must prove that the accused (1)
exercised actual care, custody, control, or management over the substance; and (2) was conscious
of his connection with it and knew what it was. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim.
App. 2006); Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); see also TEX. HEALTH
AND SAFETY CODE ANN.       § 481.002 (38) (West 2017). Possession need not be exclusive, but can
be exercised jointly with other individuals. See Wilkes v. State, 572 S.W.2d 538, 539 (Tex. Crim.
App. [Panel Op.] 1978). Whether the theory of prosecution is sole or joint possession, the evidence
must link the accused to the contraband in such a manner and to such an extent that a reasonable
inference may arise that the accused knew of the contraband’s existence and of its whereabouts.
Hernandez v. State, 538 S.W.2d 127, 130 (Tex. Crim. App. 1976). Joint possession cannot be
established by a defendant’s mere presence alone. Wilkes, 572 S.W.2d at 539. Evidence which
links the accused to the contraband suffices for proof that he knowingly possessed the substance.
Brown, 911 S.W.2d at 747. The evidence may be direct or circumstantial, but must establish the
accused’s connection with the substance was more than just fortuitous. Id. However, the evidence
need not exclude every other outstanding reasonable hypothesis except the defendant’s guilt. Id.



                                                   3
There is no set formula of facts necessary to support an inference of knowing possession. Hyett
v. State, 58 S.W.3d 826, 830 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). The focus is not
on the number of facts linking the accused to the drugs, but on the logical force they have in
establishing the offense. Evans, 202 S.W.3d at 162.
Analysis
       Appellant argues “that because of the minute amount of cocaine found on the floor mat of
the vehicle he was driving that the State has failed to establish an affirmative link between him
and the contraband sufficient to carry its burden of proving each and every element of the case
beyond a reasonable doubt.” However, in the same paragraph of his brief, Appellant acknowledges
that he had a crack pipe on his person and the crack cocaine was found in the driver’s side
floorboard area, where Appellant, as the driver, had been sitting. Additionally, copper scrubbing
sponges, which Officer Blackwell testified are commonly used by crack cocaine users to pack
crack pipes, were found in the vehicle.
       Appellant supports his argument with admissions made by the arresting officers.
Specifically, he cites to a portion of the record where he alleges that Officer Blackwell testified
that the fact that the vehicle was registered to Appellant’s daughter “would make her the crack-
user and not [Appellant].” A review of the record reveals that the pertinent testimony was recorded
as follows:


               Q. Okay. So you don’t remember if you gave him a ticket for no insurance or no citation?
               A. No, sir. I do not.
               Q. You don’t remember if you gave him a citation for invalid registration, correct?
               A. I do not.
               Q. Okay. But you did testify that you did run the license -- the registration, correct?
               A. Yes, sir.
               Q. And wasn’t that, the registration, under somebody else’s name?
               A. I don’t remember who the registration came back to, to be honest.
               Q. Okay. But it was not under Mr. Brinson’s name, was it?
               A. I don’t recall. But I have -- in briefing and reviewing it, I don’t think it was.
               Q. Okay. That it was likely not in Mr. Brinson’s name?
               A. Correct.
               Q. So assuming that, then the vehicle was not --was not Mr. Brinson’s, correct?
               A. In just reviewing the video just now, it seemed Mr. Brinson said it was his daughter’s
               vehicle.
               Q. Correct.
               A. Which would make her a crack user instead of him, if that’s correct.
               Q. Okay.
               A. Because I know where you’re going with that.
               Q. All right. So, I mean, in that situation, then it’s believable that Mr. Brinson had no
               knowledge of the substance, correct?
               A. It’s not believable to me, sir.



                                                      4
               Q. Okay. But the vehicle is not registered to Mr. Brinson.
               A. Correct.
               Q. You heard the video state that it was registered to his daughter, correct?
               A. Correct.


Viewing Officer Blackwell’s testimony in its entirety, it is apparent that he believed Appellant
knowingly possessed the crack cocaine found in the vehicle. Appellant also quotes a portion of
Officer Thornburgh’s testimony that “anyone could have put the drugs in the car.” The relevant
portions of Officer Thornburgh’s testimony are as follows:


               Q: So do you have any idea how long that so-called illegal substance was actually
               in the vehicle?
               A: No, sir.
               Q. Do you know whose substance it actually was?
               A. It was Mr. Brinson’s.
               Q. Okay. Do you know who actually put it in the vehicle?
               A. No, sir.
               Q. Okay. So it is possible that somebody else actually put the substance in the
               vehicle, correct?
               A. Correct.


Officer Thornburgh testified that he believed the crack cocaine belonged to Appellant, despite his
admission that he, of course, did not know with certainty who put the crack cocaine in the vehicle.
Appellant also argues that the officers’ failure to collect the crack pipe found in Appellant’s pocket
and the copper sponges found in the car somehow diminishes the evidentiary value of these items.
However, Officer Blackwell explained that it was the Center Police Department’s standard practice
to discard the pipe and copper sponges because he was not charging Appellant with the less serious
misdemeanor offense of possession of drug paraphernalia. According to Officer Blackwell, the
Department finds drug paraphernalia so frequently that it discards the items after thirty days. Thus,
Officer Blackwell saw no reason to collect the pipe or sponges.
       Appellant further argues that the .01 grams of crack cocaine found is so small that it would
be difficult for anyone in the vehicle to notice its presence. In support of his argument, Appellant
points out that Officer Thornburgh had to closely inspect the area and use a flashlight to locate the
drugs. Appellant argues that the small amount of drugs found, in addition to Appellant’s not being
the sole occupant of the vehicle and his not being its registered owner, renders the evidence
insufficient to support his conviction. We disagree.




                                                       5
       Logically, Officer Thornburgh would need to use a flashlight and closely inspect the area,
because it was dark outside, and he presumably had no idea where the drugs, if any, might be
located in the vehicle. Further, while .01 grams is undoubtedly a small amount of crack cocaine,
we reiterate that the evidence need not exclude every other outstanding reasonable hypothesis
except the defendant’s guilt. See Brown, 911 S.W.2d at 747. Officer Blackwell testified that he
has worked on narcotics cases since 1997, and he frequently has observed individuals who have
crushed crack cocaine rocks into their floor mats when they come into contact with the police.
Further, there is no set formula of facts necessary to support an inference of knowing possession
and our focus must be on the logical force of the facts that establish the offense. Hyett, 58 S.W.3d
at 830; Evans, 202 S.W.3d at 162. Here, Appellant was observed at night driving a vehicle in a
high crime area. When Officers noticed Appellant, he abruptly changed directions. After arresting
Appellant for driving with a suspended license, officers located a crack pipe in his pocket.
Subsequently, officers found crack cocaine in the floorboard of the driver’s seat of the vehicle, in
addition to copper sponges commonly used to smoke crack cocaine. These facts link Appellant to
the crack cocaine found in the floorboard of the vehicle. See Willis v. State, 192 S.W.3d 585, 593
(Tex. App.—Tyler 2006, no pet.) (discussing non exclusive list of factors that may be considered
when evaluating links).
       Appellant’s argument essentially urges us to hold that the evidence exclude every
reasonable hypothesis except his guilt, which the law does not require. See Brown, 911 S.W.2d
at 747. The isolated facts to which Appellant refers were presented to the jury, and resolved in
favor of his guilt. Brooks, 323 S.W.3d at 899; see Jackson, 443 U.S. at 319, 99 S. Ct. at 2789,
2793. The logical force of all of the evidence presented to the jury supports its verdict that
Appellant knowingly possessed crack cocaine. Evans, 202 S.W.3d at 162. Viewing the evidence
in the light most favorable to the verdict, we conclude that the jury was rationally justified in
finding, beyond a reasonable doubt, that Appellant committed the offense of possession of a
controlled substance. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. Therefore, we hold that
the evidence is sufficient to support Appellant’s conviction. Appellant’s sole issue is overruled.


                                   JUDGMENT MODIFICATION
       In reviewing the record, we found several errors in the judgment. As previously discussed,
Appellant was charged with possession of a controlled substance in penalty group one in an amount



                                                 6
less than one gram, a state jail felony. TEX. HEALTH AND SAFETY CODE ANN. § 481.115(b). In
compliance with the code of criminal procedure, the prior convictions alleged by the State to
enhance Appellant’s punishment range to a second degree felony were not presented to the jury
prior to Appellant’s trial on guilt. See TEX. CODE CRIM. PROC. ANN. § 36.01 (a)(1) (West 2007).
A review of the record, including the court’s charge and the jury’s “guilty” verdict, shows that the
jury found Appellant “guilty” of state jail felony possession of a controlled substance.
       The written judgment in this case states that Appellant was convicted of a second degree
felony offense. This is incorrect. Section 12.425 did not increase the degree of Appellant’s state
jail felony offense of possession of a controlled substance, but rather increased only the punishment
level that applied to the primary state jail felony offense. See TEX. PENAL CODE ANN. § 12.425(b);
see also Henderson v. State, No. 07-17-00099-CR, 2018 WL 2470648, at *5 (Tex. App.—
Amarillo June 1, 2018, pet. ref’d) (mem. op., not designated for publication).
       As previously discussed, Appellant elected to have the trial court assess punishment. The
written judgment does not reflect that the court made a finding with respect to the enhancement
allegations. At Appellant’s punishment hearing, the court did not orally read the enhancements,
nor did the court ask Appellant to enter a plea of “true” or “not true” to the allegations. Thereafter,
the State offered certified copies of judgments showing that Appellant has been finally convicted
of two felonies other than a state jail felony, and the second previous felony conviction is for an
offense that occurred subsequent to the first previous conviction having become final, elevating
his punishment range to that of a second degree felony of two to twenty years of imprisonment.
See TEX. PENAL CODE ANN. §§ 12.33(a); 12.425(b). Appellant did not object to the admission of
the judgments, and the court admitted them into evidence. At the conclusion of the punishment
hearing, the trial court sentenced Appellant to twenty years of imprisonment. While the trial court
did not orally pronounce on the record that it found the State’s enhancement allegations to be
“true,” it is implied that the trial court found them so, as the court sentenced Appellant within in
the enhanced range of punishment. See Garner v. State, 858 S.W.2d 656, 659 (Tex. App.—Fort
Worth 1993, pet. ref’d); see also Morrow v. State, No. 06-10-00125-CR, 2011 WL 882839, at *4
(Tex. App.—Texarkana Mar. 15, 2011, no pet.) (mem. op., not designated for publication). When
the trial court alone assesses a defendant’s punishment, the court is not required to read the
enhancement allegations or the findings to the defendant. Garner, 858 S.W.2d at 659 (citing Reed
v. State, 500 S.W.2d 497, 499 (Tex. Crim. App. 1973)); Seeker v. State, 186 S.W.3d 36, 39 (Tex.



                                                  7
App.—Houston [1st Dist.] 2005, pet. ref’d). Nevertheless, it is certainly better practice for the
trial court to make an oral pronouncement regarding its findings on punishment enhancement
allegations. Garner, 858 S.W.2d at 659. But a trial court does not err when it overlooks making
that pronouncement, especially when the issue of sentencing is submitted to the court rather than
a jury. Id. (citing Reed, 500 S.W.2d at 499); Seeker, 186 S.W.3d at 39.
         We have the authority to make the record speak the truth when we have the necessary data
and information. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d).
Thus, we reform the trial court’s written judgment to reflect that Appellant was convicted of a state
jail felony enhanced to a second degree punishment, and we further reform the judgment to reflect
that the court found the enhancement allegations to be “true.”


                                                  DISPOSITION
         We have overruled Appellant’s sole issue. Having found clerical errors in the trial court’s
written judgment, we modify the judgment to reflect that Appellant was convicted of a state jail
felony enhanced to a second degree punishment, and further modify the judgment to reflect that
the trial court found the enhancement allegations to be “true.” Having modified the trial court’s
judgment, we affirm the judgment as modified.
                                                                 GREG NEELEY
                                                                    Justice

Opinion delivered October 31, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




                                                          8
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          OCTOBER 31, 2019


                                         NO. 12-19-00017-CR


                                        CURVIE BRINSON,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 123rd District Court
                         of Shelby County, Texas (Tr.Ct.No. 17CR20,250)

                       THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein, and the same being inspected, it is the opinion of the Court that the judgment of the
trial court below should be modified and, as modified, affirmed.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be modified to reflect that CURVIE BRINSON was convicted of a state jail
felony enhanced to a second degree punishment, and that the trial court found the enhancement
allegations to be “true”; and as modified, the trial court’s judgment is affirmed; and that this
decision be certified to the trial court below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
