                                        NO. 07-08-0448-CR

                                  IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                           AT AMARILLO

                                              PANEL D

                                        FEBRUARY 9, 2010

                              ______________________________


                               DEWAIN JENNINGS, APPELLANT

                                                   V.

                              THE STATE OF TEXAS, APPELLEE

                           _________________________________

                 FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                     NO. B17509-0801; HONORABLE ED SELF, JUDGE

                             _______________________________


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


                                    MEMORANDUM OPINION


        Appellant, Dewain Jennings, was convicted by a jury of possession of less than one

gram of a controlled substance, to-wit: cocaine, a state jail felony; Tex. Health & Safety

Code ' 481.115(b) (Vernon 2003),1 and sentenced to confinement for two years. By two


        1
        Cocaine is a controlled substance listed in Penalty Group 1. See Tex. Health & Safety Code Ann. '
81.102(3)(D) (Vernon 2003).
issues, Appellant asserts the evidence is legally and factually insufficient to support his

conviction. We affirm.


                                           Background


       On September 18, 2007, at approximately 12:00 a.m., Officers James Christopher

Hall and Richard Reyes of the City of Plainview Police Department were dispatched to

Room 117 of the Villa Motel to investigate a complaint that two women were using drugs in

front of children.


       After arriving at the motel, they identified Room 117 and knocked on the door.

Appellant answered. He was smoking a cigar. The officers smelled the odor of burnt

marihuana and asked Appellant to step outside where he was detained and handcuffed.

Appellant informed the officers he was smoking marihuana and there was a bag of

marihuana in the room atop the refrigerator. He also indicated the room was his and gave

the hotel address as his own.


       Inside the room,2 the officers observed two women sitting on the bed. With consent,

the officers searched their purses and discovered a crack cocaine pipe in one purse. Atop

the refrigerator, the officers located a bag of marihuana. Approximately ten feet across the

room opposite the refrigerator, a microwave oven sat on a table. On top of the oven,

approximately chest high in plain view, the officers observed a white powdery substance


       2
        The room was twelve and one-half feet wide and eighteen feet long with a separate door for the
bathroom.

                                                  2
atop a playing card that was field tested and identified as cocaine.3 The officers arrested

Appellant for possession of a controlled substance and one female for possession of drug

paraphernalia.


        Kishor Bhakta, owner and manager of the Villa Motel, testified the room was

registered to AMa Inez Torres@ for September 17 and 18. He also testified he had seen

Appellant around the motel a significant amount of time.


        On the trial=s conclusion, the jury found Appellant guilty of possession of a controlled

substance, cocaine, in an amount of less than one gram and sentenced him to two years

confinement. After the trial court issued its Judgment of Conviction, Appellant filed this

appeal.


                                                Discussion


        In two issues, Appellant asserts the evidence is legally and factually insufficient to

establish he exercised actual care, control, custody or management over the cocaine.




        3
          At trial, Scott Williams, forensic scientist for the Texas Department of Public Safety Crime Laboratory
Division, identified the white, powdery substance as 0.03 grams of cocaine.


                                                       3
       I.     Standard(s) of Review


       When an appellant challenges both legal and factual sufficiency, we are required to

conduct an analysis of the legal sufficiency of the evidence first and then, only if we find the

evidence to be legally sufficient, do we analyze the factual sufficiency of the evidence.

Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). In assessing the legal

sufficiency of the evidence, we review all the evidence in the light most favorable to the

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

elements of the offense beyond a reasonable doubt.         Jackson v. Virginia, 443 U.S. 307,

99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. 2007).

       In a factual sufficiency review, we must consider all of the evidence in a neutral light

to determine whether a jury was rationally justified in finding guilt beyond a reasonable

doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In our analysis,

we must determine whether the evidence supporting the verdict is so weak or so against

the great weight and preponderance of the evidence as to render the verdict manifestly

unjust. See Steadman v. State, 280 S.W.3d 242, 246 (Tex.Crim.App. 2009). A wrong and

unjust verdict includes instances in which the jury’s findings “shocks the conscience,” or

clearly demonstrates bias. See Grotti v. State, 273 S.W.3d 273, 280 (Tex.Crim.App. 2008).

In doing a factual sufficiency review, we must be mindful that a jury has already passed on

the facts and must give due deference to the determinations of the jury. See Lancon v.

State, 253 S.W.3d 699, 704-05 (Tex.Crim.App. 2008). If our decision is to set aside the

verdict of the jury, our opinion should clearly explain how the evidence supporting the




                                               4
verdict is too weak on its own or how the contradicting evidence so greatly outweighs the

evidence in support of the verdict. See id. Conversely, if our decision is to uphold a

verdict, we are required to consider the most important evidence that the appellant claims

undermines the jury's verdict and explain why that evidence does not have the persuasive

force the appellant believes is sufficient to overturn the verdict. See Sims v. State, 99

S.W.3d 600, 603 (Tex.Crim.App. 2003).

       In a sufficiency of the evidence review, the essential elements of the offense are

those of a hypothetically correct jury charge for the offense in question (i.e., one that

accurately sets out the law and adequately describes the offense for which the appellant

was tried without increasing the state’s burden of proof or restricting the state’s theory of

criminal responsibility.) Hooper, 214 S.W.3d at 14; Malik v. State, 953 S.W.2d 234, 240

(Tex.Crim.App. 1997).

       In our review, we consider both direct and circumstantial evidence and all

reasonable inferences that may be drawn from that evidence. Hooper, 214 S.W.3d at 13.

Circumstantial evidence alone is sufficient to establish the guilt of the accused and the

standard of review as to the sufficiency of the evidence is the same for both direct and

circumstantial evidence cases. Id. Each fact need not point directly and independently to

the guilt of the accused, so long as the cumulative force of all the evidence, when coupled

with reasonable inferences to be drawn from that evidence, is sufficient to support the

conviction. Evans v. State, 202 S.W.3d 158, 166 (Tex.Crim.App. 2006).




                                             5
       II.       Possession of a Controlled Substance


       A conviction for possession of cocaine is supported only when the defendant

Aknowingly or intentionally possesses@ the drug. See Tex. Health & Safety Code Ann.

481.115(a) (Vernon 2003). Proof of possession requires evidence the accused exercised

Aactual care, custody, control, or management@ over the substance. See Tex. Health &

Safety Code Ann. 481.002(38) (Vernon 2003). Thus, the State must prove the accused (1)

Aexercised care, custody, control, or management over the [contraband]@ and (2) knew that

the substance Apossessed@ was contraband.4 Martin v. State, 753 S.W.2d 384, 386

(Tex.Crim.App. 1988).


       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. See Evans v. State,

202 S.W.3d 158, 161-62 (Tex.Crim.App. 2006); Poindexter v. State, 153 S.W.3d 402, 406

(Tex.Crim.App. 2005).         Whether the State=s evidence is direct or circumstantial, its

evidence of links must establish, Ato the requisite level of confidence, that the accused=s

connection with the drug was more than just fortuitous.@ Poindexter, 153 S.W.3d at 405-60

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

351, 353 (Tex.App.BAmarillo 1999, no pet.).




       4
           Appellant does not contend he was unaware the white substance was cocaine.




                                                   6
       The many factors by which an accused may, under the unique circumstances of

each case, be sufficiently Alinked@ 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.BAmarillo 2009, pet. ref’d.) (numerous factors listed).

These factors, however, are simply that Bfactors which may circumstantially establish the

sufficiency of evidence offered to prove a knowing Apossession.@ Evans, 202 S.W.3d at

162 n.12 (AThey are not a litmus test.@). It is not the number of links that is dispositive, but

rather the logical force of all the evidence. Id. at 162.




                                               7
        III.       Legal Sufficiency


               Appellant correctly states that mere presence at a location where drugs are found

is insufficient by itself to establish actual care, custody, or control of the drugs. Evans, 202

S.W.3d at 162. However, presence, proximity, and plain view, when combined with other

evidence, either direct or circumstantial, may well be sufficient to establish Apossession@

beyond a reasonable doubt. Id.


        Here, the State has produced evidence of the presence of at least eight of the

fourteen factors cited in Evans. Appellant answered the officers= knock at the door;5 he

asserted the room was his and gave the address of the Villa Motel as his own during

booking;6 he was using marihuana and was under its influence when arrested;7 he was

present when the search was conducted;8 the cocaine and bag of marihuana were in plain




        5
        That the accused answers the door to the hotel room is evidence of control. Watson v. State, 861
S.W.2d 410, 415-16 (Tex.App.BBeaumont 1993, pet. ref=d).
        6
          Whether the accused Aowned or had the right to possess where drugs were found@ is also a factor
linking the accused to the contraband. Beall v. State, 237 S.W.3d 841, 850 (Tex.App.BFort Worth 2007, no
pet.).
        7
          The presence and/or use of other contraband are affirmative links from which to infer knowledge and
control. See Peters v. State, 93 S.W.3d 347, 356 (Tex.App.BHouston [14th Dist.] 2002, pet. ref=d) (presence of
shotgun and marihuana admissible to prove appellant=s knowledge and control over cocaine). See also Hyett
v. State, 58 S.W.3d 826, 830 (Tex.App.BHouston [14th Dist.] 2001, pet. ref=d) (listing presence of other
contraband as Aaffirmative link@ from which to infer knowledge and control); Levario v. State, 964 S.W.2d 290,
295 (Tex.App.BEl Paso 1997, no pet.) (considering presence of marihuana in sufficiency review).

        8
            See Isham v. State, 258 S.W.3d 244, 248 (Tex.App.BEastland 2008, pet. ref=d).




                                                      8
view, easily accessible and in close proximity;9 the drugs were recovered from an enclosed

spaceBa small hotel room;10 and the room smelled of burnt marihuana.11


        Although no direct evidence shows Appellant exercised care, control, and/or

management over the cocaine found in the motel room, the State presented sufficient

circumstantial evidence to allow a reasonable jury to rationally infer and find beyond a

reasonable doubt that Appellant possessed the cocaine. See Park, 8 S.W.3d at 353-54

(upholding conviction on evidence that accused controlled hotel room, drugs were in plain

view and accessible to accused, room smelt of burnt marihuana, accused and guest were

only two persons in the room); Levario, 964 S.W.2d at 295 (upholding conviction on

evidence of accused inhabiting the room, his proximity to the drug, the accessibility of the

drug to the accused, and the drug=s visibility). Therefore, we find the evidence legally

sufficient to support the conviction. Appellant=s first issue is overruled.


        IV.       Factual Sufficiency


        The evidence relevant to Appellant=s guilt was essentially uncontradicted. Disputing

the inferences to be drawn from the facts, Appellant argues the facts demonstrated he was

merely in the motel room and not using cocaine. In support, he asserts: (1) one of the


        9
         Whether contraband Awas conveniently accessible to the accused@ is a factor in linking the accused
to the contraband. Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App. 1981).
        10
          See Barrett v. State, No. 03-06-00102-CR, 2007 WL 1790709, at *5 (Tex.App.BAustin 2007, no pet.)
(not designated for publication); Trevino v. State, No. 13-02-00223-CR, 2004 WL 169232, at *3
(Tex.App.BCorpus Christi, no pet.) (not designated for publication).
        11
             See Park, 8 S.W.3d at 354.




                                                    9
females was linked to the cocaine because she was carrying a crack cocaine pipe in her

purse; (2) the motel room was registered in another person=s name; (3) officers did not

observe Appellant close to the cocaine; (3) Appellant appeared surprised when the officers

discovered cocaine in the room; (4) Appellant had no drug paraphernalia on his person;

and (5) only traces of cocaine were found in the room.12 On the other hand, Officer Reyes

and DPS=s Williams testified at trial that the type of cocaine found in the motel room was

typically taken through the nose or injectedBnot smoked in a pipe. In addition, although the

room was registered to another person, Bhakta, the motel=s owner/manager, had noticed

Appellant at the motel a significant amount of time.


        We are not free to weigh the evidence merely because a different result may be

more reasonable. Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996). To the

extent there was any contradictory evidence, we note that the jury, as the trier of fact, is the

sole judge of the credibility of witnesses and the weight to be given to testimony. See

Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996); Sharp v. State, 707 S.W.2d

611, 614 (Tex.Crim.App. 1986). Considering the above evidence in a neutral light, the

evidence cited by Appellant does not demonstrate the proof of guilt was so weak as to

undermine confidence in the jury=s determinations or greatly outweighed contrary proof.

        12
           Appellant also points to the absence of evidence of some of the links to support his assertion that
the cocaine was not in his actual care, custody, control, or management. True, there was no evidence of
conflicting statements by the persons in the motel room, affirmative statements about the cocaine, the
presence of a large sum of money, an odor of cocaine, and the cocaine was not hidden within the room. The
absence of some links evidence, is not, however, evidence of an appellant=s innocence to be weighed against
other evidence tending to link him with the contraband. Hernandez v. State, 538 S.W.2d 127, 131
(Tex.Crim.App. 1976). Rather, the issue is whether there is sufficient evidence linking Appellant to the
contraband to support the reasonable inference that he was knowingly in possession of the cocaine. Id.




                                                     10
Thus, we hold the evidence was factually sufficient to support Appellant=s conviction. His

second issue is overruled.


                                      Conclusion


      The trial court’s judgment is affirmed.



                                                 Patrick A. Pirtle
                                                      Justice

Do not publish.




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