Opinion issued January 7, 2014.




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-12-01084-CR
                           ———————————
                    DEMETRIUS WILLIAMS, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 179th District Court
                           Harris County, Texas
                       Trial Court Case No. 1308742


                         MEMORANDUM OPINION

      Appellant Demetrius Williams was convicted by a jury of possession of

between four and two-hundred grams of a controlled substance with intent to

deliver. The trial court found him to be a habitual offender and sentenced him to
thirty years in prison. In his sole appellate issue, Williams claims that the evidence

was legally insufficient to show that he possessed the contraband. We affirm.

                                    Background

      Officers James Crawford and Clifton Holloway of the Houston Police

Department were patrolling an area of the city known for narcotics activity in their

marked police cruiser. As they drove with their windows open, they noticed a Jeep

Cherokee in the opposite lane, parked facing the wrong direction. The officers

detected the strong chemical odor of PCP as they passed.

      The windows of the Jeep were down and two women were seated in the

backseat. Williams was standing by the rear passenger side door and another man,

named Castor, was standing by the driver’s side door. Williams was leaning into

the Jeep and speaking with one of the women.

      The officers turned their car around and parked behind the Jeep. As they

approached, Williams handed a small bottle to the woman on his side of the Jeep,

who deposited it in the rear compartment of the vehicle. Castor dropped a cigarette

to the ground that, upon later examination, proved to be a “wet” cigarette that had

been dipped in PCP. He also placed in the driver’s-side door a bottle containing 0.2

grams of crack cocaine.

      The officers detained both men. While they were busy with this task, one of

the ladies jumped to the front seat and tried to drive away, but she was stopped by


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the officers. Upon further inspection of the car, the officers located the bottle that

Williams had passed to the woman. Testing showed that it contained 10.1 grams of

PCP, including diluents and adulterants.

      Williams was indicted for possession of between four and two-hundred

grams of PCP with intent to deliver. He pleaded not guilty and was convicted by a

jury. The judge found that he had twice before been convicted of felonies and

sentenced him to thirty years in prison as a habitual offender. This appeal followed.

                                      Analysis

      In his sole appellate issue, Williams argues that the evidence at his trial was

legally insufficient to support the possession element of the offense. He contends

that “[t]he affirmative links connecting [him] to the recovered narcotics are highly

tenuous and the majority of factors which are used to establish an affirmative link

indicate no connection between [him] and any narcotics.”

      When hearing a challenge to the legal sufficiency of evidence to support a

conviction, an appellate court must decide “whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); accord Brooks v. State,

323 S.W.3d 893, 899 (Tex. Crim. App. 2010). In reviewing the evidence, an

appellate court must defer to the jury’s determinations as to credibility and the


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weight to be afforded different pieces of evidence. Brooks, 323 S.W.3d at 899

(citing Jackson, 443 U.S. at 319, 326, 99 S. Ct. at 2789, 2793).

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

prove that the accused (1) exercised care, custody, control, or management over the

contraband, (2) was conscious of his connection with it, and (3) knew what it was.”

Utomi v. State, 243 S.W.3d 75, 78 (Tex. App.—Houston [1st Dist.] 2007, pet.

ref’d) (citing TEX. HEALTH & SAFETY CODE ANN. §§ 481.002(38), .112(a) (West

2010)). So as to protect the innocent bystander, mere presence at a place where

drugs are found is insufficient to establish guilt. Evans v. State, 202 S.W.3d 158,

161–62 (Tex. Crim. App. 2006). The evidence “must establish that the defendant’s

connection with the drug was more than fortuitous.” Id. at 161. Accordingly, there

must be evidence of additional affirmative links—further evidence tending to

prove that the defendant exercised actual care, custody, or control of the

contraband—before a conviction is proper. See id. at 162. Although the courts have

enumerated factors that tie a defendant to contraband found in his presence, the

number of links is not dispositive but rather “the logical force of all of the

evidence, direct and circumstantial.” Id. at 162 & n.12.

      Williams correctly observes that many of the possible affirmative links

between a defendant and contraband often recognized by courts are absent in his

case: he did not own the Jeep in which the PCP was found; he was not the driver of


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the Jeep; he possessed no drug paraphernalia; and there is no evidence that he was

under the influence of the drug or uncooperative with the police. See id. at 162

n.12. This argument, however, is inadequate to establish that the evidence that was

presented was insufficient to support the conviction. Even if the majority of

canonical affirmative links is missing in a given case, the logical force of the

evidence adduced in the particular case may nevertheless support the conclusion

that the defendant had actual care, custody, or control of contraband. See id. at 162.

      In this case, the strongest piece of evidence tending to show that Williams

had actual control of the PCP was the testimony of Officer Holloway, who

personally observed Williams handing the bottle containing PCP to the woman in

the car. Though the Evans court did not list physically holding contraband in one’s

hands as an affirmative link, see id. at 162 n.12, it is plainly evidence tending to

prove that Williams’s connection with the PCP was more than fortuitous. See Guy

v. State, 160 S.W.3d 606, 613 (Tex. App.—Fort Worth 2005, pet. ref’d) (finding

that evidence was factually sufficient when, inter alia, officer saw defendant drop

baggie of cocaine from his hands); Robles v. State, 104 S.W.3d 649, 651–52 (Tex.

App.—Houston [1st Dist.] 2003, no pet.) (finding sufficient affirmative links

when, inter alia, officers saw defendant holding a baseball cap, containing bags of

cocaine, which he threw on the floor); Ennis v. State, 71 S.W.3d 804, 810 (Tex.

App.—Texarkana 2002, no pet.) (deeming evidence sufficient when item later


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recovered resembled weapon officers saw in defendant’s hands). Moreover,

handing the bottle to the woman in the backseat, who subsequently tossed it in the

Jeep’s rear compartment, is evidence of attempted concealment. See Evans, 202

S.W.3d at 162 n.12 (cataloging furtive gestures as an affirmative link); Nelson v.

State, 881 S.W.2d 97, 100 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d)

(holding defendant possessed contraband when, inter alia, he secreted narcotics in

his mouth).

      Williams further argues that his case should be compared with Jenkins v.

State, 76 S.W.3d 709 (Tex. App.—Corpus Christi 2002, pet. ref’d), and a like

result reached. Jenkins was a passenger in a car in which a large quantity of

marijuana, a sizable amount of cocaine, and two guns were discovered. 76 S.W.3d

at 714–15. The court found the evidence insufficient to convict him of possessing

the narcotics. Id. at 719. Among other considerations, the court noted that while his

companion had a marijuana pipe in his luggage, Jenkins did not. Id. at 717.

Relating his case to Jenkins, Williams emphasizes that he did not have any

cigarettes, wet or otherwise, in his possession, while his companion Castor did.

      We conclude, however, that Jenkins is distinguishable from the present case.

Most significantly, the defendant in Jenkins was not seen physically holding the

discovered contraband. See id. Even though Williams did not have cigarettes and

his companion did, the evidence described above that Williams was holding the


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bottle of PCP and attempted to conceal it by handing it to the woman in the Jeep

establishes sufficient affirmative links to show that he had care, custody, or control

of the contraband. See Guy, 160 S.W.3d at 613; Robles, 104 S.W.3d at 651; Ennis,

71 S.W.3d at 810. Williams’s point of error is overruled.

                                    Conclusion

      We affirm the judgment of the trial court.




                                               Michael Massengale
                                               Justice

Panel consists of Justices Keyes, Higley, and Massengale.

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




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