Opinion issued December 30, 2014




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-14-00003-CR
                            ———————————
                  LUIS FELIPE SILVA-AGUILAR, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee



                    On Appeal from the 262nd District Court
                            Harris County, Texas
                        Trial Court Case No. 1374877



                        MEMORANDUM OPINION

      Luis Felipe Silva-Aguilar was charged by indictment with the first-degree

felony offense of possession with intent to deliver a controlled substance, namely,



                                        1
heroin, weighing at least 400 grams.1 The jury found appellant guilty and the trial

court assessed punishment at twenty-three years’ confinement and a $1,000 fine. In

his sole point of error, appellant contends that the evidence is legally insufficient to

support the jury’s finding that he exercised care, control, or management of the

premises where the controlled substance was discovered. We affirm.

                                     Background

      On December 18, 2012, in the course of a narcotics investigation, Houston

Police Department Officer Jason Dunn was conducting surveillance on a residence

located at 11130 Bentley when he observed appellant drive from the residence to

another residence located at 3907 Sandy Meadow Lane and move furniture into the

second residence. Over the next few weeks, Dunn continued to conduct surveillance

on the Sandy Meadow residence during which he periodically observed appellant and

a woman entering and leaving the home.

      On January 23, 2013, Dunn saw appellant leave the Sandy Meadows residence

in a white Ford Escape. He followed appellant to a feed store and observed appellant

leave the store with a yellow bucket of MSM, which Dunn and the State’s forensic

chemist testified is a common cutting agent for methamphetamine. After appellant

failed to signal a left-hand turn, Dunn radioed Officer Susanna Salazar2 who stopped


1
       See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) & (f) (West 2010).
2
      Salazar was known by her maiden name, Sealy, at the time of the events in question.
                                            2
appellant’s vehicle for the traffic violation. When appellant was unable to produce

any identification or proof of insurance, Salazar arrested him. When Dunn arrived at

the scene, Salazar translated Dunn’s questions for appellant into Spanish and

appellant’s responses into English for Dunn. Salazar asked for appellant’s consent to

search his residence. Appellant consented and Salazar drove him to the Sandy

Meadow residence that appellant said was his. Once outside, appellant signed a

written consent form authorizing the officers’ search.

        As Dunn and Salazar, now joined by two other officers, began the search, an

 unidentified woman who claimed that she lived there walked in and out of the

 home. The search yielded two baggies of methamphetamine in a black bag, $3,845

 in a men’s jacket, and 34.8 grams of methamphetamine and several bricks of heroin

 weighing more than four hundred grams inside the garage attic of the residence.

                                     Discussion

      Appellant’s point of error contends that the evidence was insufficient to prove

beyond a reasonable doubt that he possessed a controlled substance with intent to

deliver. Specifically, he argues that the evidence to show that he exercised care,

control, or management of the premises where the heroin was discovered was legally

insufficient.

    A. Standard of Review



                                          3
      We review evidentiary sufficiency challenges under the Jackson v. Virginia

standard. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Under

this standard, we review the evidence in the light most favorable to the verdict, and

ask whether any rational fact-finder could have found that each essential element of

the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex.

Crim. App. 2009). Our review includes both direct and circumstantial evidence, as

well as any reasonable inferences that may be drawn therefrom. See Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The jury is the sole judge of the

credibility of witnesses and the weight to give that testimony, and our role on appeal

is simply to ensure that the evidence supports the jury’s verdict. Montgomery v.

State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). The jury may reasonably infer

facts from the evidence presented, credit the witnesses it chooses, disbelieve any or

all of the evidence or testimony proffered, and weigh the evidence as it sees fit. See

Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Inconsistencies in the

evidence are resolved in favor of the verdict. See Curry v. State, 30 S.W.3d 394, 406

(Tex. Crim. App. 2000).

    B. Applicable Law

      To prove unlawful possession of a controlled substance, the State must prove

that the accused (1) exercised control, management, or care over the substance, and

                                          4
(2) 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, however, need not be exclusive. Poindexter v. State, 153 S.W.3d 402,

406 (Tex. Crim. App. 2005). When the accused is not in exclusive possession of the

place where the controlled substance is found, then additional, independent facts and

circumstances must affirmatively link the accused to the substance in such a way that

it can reasonably be concluded that the accused possessed the substance and had

knowledge of it. Kibble v. State, 340 S.W.3d 14, 18 (Tex. App.—Houston [1st Dist.]

2010, pet. ref’d). In other words, whether direct or circumstantial, the evidence

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

with the [contraband] was more than just fortuitous.” Brown v. State, 911 S.W.2d

744, 747 (Tex. Crim. App. 1995).

      Links that may circumstantially establish the sufficiency of the evidence to

prove knowing possession include (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 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

                                         5
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, we must consider the

cumulative logical force the factors have in proving possession. See James v. State,

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

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

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

sufficiency of the evidence linking the defendant to knowing possession of

contraband. See 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[s] appellate courts in

determining the legal sufficiency of the evidence in knowing possession of

contraband cases”).   Because there was evidence presented of the unidentified

woman who told officers that she lived in the house coming and going during the

search, we examine whether there are sufficient affirmative links between appellant

and the cash and drugs. See Poindexter, 153 S.W.3d at 406.

                                         6
       C. Analysis

      The record reflects that although appellant was not present when the search

was conducted, appellant was the last person Dunn observed occupying the house

before the officers commenced their search. See Haggerty v. State, 429 S.W.3d 1, 7

(Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (noting evidence showing

defendant was last person to leave home before search supported affirmative link

between defendant and contraband). Although Dunn interrupted his surveillance to

follow appellant to the feed store, no other evidence suggests that anyone else entered

the house during his absence. Further, although the unidentified woman entered the

house after the search had begun, the jury could have reasonably inferred that the

house, as the officers found it when they began their search, would have been in the

same condition as it was when appellant left before going to the feed store. See id.

      In the course of his investigation, Dunn saw appellant move furniture into the

Sandy Meadow house, and over the next few weeks, saw appellant and the

unidentified woman enter and leave the residence periodically. Appellant consented

to the search at the time of the traffic stop and was driven straight to the Sandy

Meadows house which he claimed was his. Outside the house, appellant again

provided his consent to search, this time in writing. A rational inference from these

facts (appellant’s oral and written consent to the search, along with Dunn witnessing

                                          7
appellant moving furniture into the residence as well as entering and leaving the

home over several weeks) is that appellant had a right to possession of the

home. See id.

       The record also reflects that several bricks of heroin (as well as a portion of the

methamphetamine), were found inside the residence’s closed garage attic that was

accessible only by a ladder. See Triplett v. State, 292 S.W.3d 205, 210 (Tex. App.—

Amarillo 2009, pet. ref’d) (concluding that garage in which contraband was found

could be considered enclosed space and provided link connecting defendant to

contraband); see also Williams v. State, 01-09-00257-CR, 01-09-00258-CR, 2010

WL 2991097, at *6 (Tex. App.—Houston [1st Dist.] July 29, 2010, pet. ref’d) (mem.

op., not designated for publication) (finding garage in which contraband was found

was enclosed space and linked defendant to contraband).                The baggies of

methamphetamine, as well, were found in a bedroom closet, typically accessible only

to a resident.

       Officers also discovered $3,845 in a men’s jacket in the bedroom closet.

Although the unidentified woman told officers that she lived in the house, a

reasonable inference was that the large amount of cash found in a men’s jacket in the

bedroom closet of appellant’s residence belonged to appellant. See Ex parte Stowe,

744 S.W.2d 615, 618 (Tex. App.—Houston [1st Dist.] 1987, no pet.) (finding

affirmative link established when contraband found in male defendant’s closet

                                            8
containing men’s clothing). Finally, although not one of the enumerated factors, we

note that Dunn observed appellant loading a large bucket of MSM into his car that

was subsequently discovered during the traffic stop. Dunn and the State’s forensic

chemist testified that MSM is known as a common cutting agent for

methamphetamine, one of the illegal substances found in the bedroom closet and the

garage attic of appellant’s residence.

      As noted above, it is not the number of links that is dispositive, but rather, the

logical force of all of the evidence, both direct and circumstantial. Evans, 202

S.W.2d at 162; Nhem v. State, 129 S.W.3d 696, 699–700 (Tex. App.— Houston [1st

Dist.] 2004, no pet.) (finding links consisting of defendant’s personal belongings

found in same room as controlled substance and controlled substance found on

defendant’s person were sufficient to affirm where defendant was arrested

outside of house and defendant was not in exclusive possession of house). Viewing

the evidence in the light most favorable to the verdict, we conclude that a rational

trier of fact could have found the essential elements of the offense, including

the element of possession, beyond a reasonable doubt. Accordingly, we overrule

appellant’s sole point of error.

                                         Conclusion

      We affirm the trial court’s judgment.



                                             9
                                             Jim Sharp
                                             Justice

Panel consists of Justices Higley, Bland, and Sharp.

Do not publish. TEX. R. APP. P. 47.2(b).




                                        10
