Opinion issued August 21, 2014




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-13-00488-CR
                            ———————————
                    BRYAN KEITH BURRELL, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                   On Appeal from the 232nd District Court
                           Harris County, Texas
                       Trial Court Case No. 1320468


                                    OPINION

      Appellant Bryan Keith Burrell was charged with felony possession of more

than 400 grams of cocaine, with the intent to deliver. The jury found Burrell guilty

and assessed his punishment at 40 years in prison. In his sole point of error on
appeal, Burrell contends that the evidence is legally insufficient to support his

conviction. We affirm.

                                     Background

       On September 17, 2011, Houston Police Department Officer A. Baker

observed an illegally-parked vehicle on Barberry Street. Officer Baker testified at

trial that Malcom Scott was sitting in the driver’s seat and Burrell was sitting in the

passenger seat. After Baker observed an apparent hand-to-hand drug transaction

with a man standing outside the vehicle, he and his partner approached the vehicle

and noticed the odor of marijuana.

       Officer Baker placed Burrell and Scott in the back seat of his patrol car and

turned on the car’s audio recorder. Officer Baker asked Burrell where he lived and

Burrell responded that his address was 4119 Barberry, apartment number 201.

Officer Baker then searched the suspects’ car but found no drugs. After the search

but while still at the scene, Officer Baker listened to the audio recording of the

conversation that Burrell and Scott had in the patrol car while officers searched

their car.

       Officer Baker testified that, during part of the recording, Burrell and Scott

were “discussing narcotics activity and discussing the fact that suspect Scott had

dropped off narcotics at suspect Burrell’s apartment earlier in the day.” The audio




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recording, which was played for the jury, confirmed Officer Baker’s conclusion.1

Officer Baker testified that, soon after being placed in the patrol car, Scott stated

that they did not have anything, which referred to not having contraband on them.

Scott said, “I’m glad I dropped that off to you cuz,” and Burrell said, “Uh-huh,”

and gave a “grunt in the affirmative.” Scott stated that he left the drugs with

Burrell’s girlfriend, Tawanna Robinson, and that she should not let anyone in the

house, or they would get caught. The men also discussed “chopping it up,” which

refers to taking a large quantity of narcotics and breaking it into smaller units for

sale.

        Based on the statements in the recording, Officer Baker asked Sergeant J.

Crawford to go to Burrell’s apartment. Officer Baker remained at the scene and

continued recording the conversation between Scott and Burrell.

        Sergeant Crawford testified that when he arrived at the apartment, he spoke

with Robinson and told Robinson that he believed that there were narcotics in the

apartment. Robinson signed a consent-to-search form, and Sergeant Crawford

asked Robinson if she knew of any narcotics in the apartment. According to

Sergeant Crawford, Robinson led Sergeant Crawford to the back bedroom and told

him “the only thing they brought me was back here.” Once in the bedroom,

1
        Portions of the audio recording, State’s Exhibits 1A and 1B, were played for the
        jury during Officer Baker’s testimony. The State repeatedly paused the audio
        recording to question Officer Baker about the statements that the jury heard in the
        previous clip.

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Robinson showed him and then opened a closed green and brown bag, without him

asking her to open it. He testified that he “observed the cocaine laying on top of

some clothes inside the bag,”2 and that it was approximately 500 grams of cocaine,

which had a street value of $50,000.

      Officer Baker testified that Burrell reacted to Sergeant Crawford’s return

arrival to the scene with the bag.       Officer Baker testified that the recording

captured Burrell saying, “look at this, look at this,” and Scott said that somebody

snitched on them.     Officer Baker testified that Scott and Burrell made these

statements while the cocaine was still inside the closed bag and no one could see

the contents from outside the bag.

      After Sergeant Crawford’s return with the bag, Scott became agitated and

did most of the talking, while Burrell remained calmer and talked less. But Officer

Baker testified that the recording captured Scott saying that he “should have taken

it to Ashley’s house like he’s been doing,” and Burrell responded, “yea, you

should.”   While Burrell and Scott were discussing who might have snitched,

Burrell asked Scott whether anyone saw Scott take it in to the apartment.

      According to Officer Baker, Scott and Burrell also discussed the explanation

they would give the officers. Scott told Burrell that they needed to stick to the



2
      Sergeant Crawford testified that he did not take the clothes from the bag and could
      not determine whose clothes they were.

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“script” and tell the officers that it “wasn’t found in our house.”          Burrell

responded, “yea[h].”

      Officer Baker further testified that Scott told Burrell that Burrell should not

have given Officer Baker his home address. Scott asked Burrell whether items in

the apartment would allow police to tie Burrell to the cocaine, and Burrell

mentioned that the apartment contained some of Burrell’s “paperwork.”

      After the State rested, Robinson and her son, Rantrell Jones, testified on

behalf of Burrell. Robinson testified that Jones, who was seven years old at the

time, opened the door for the police the night of the incident. According to

Robinson, Sergeant Crawford told her that Scott had left a bag in the apartment,

and she told him there was no bag, but Jones then said that Scott had come by with

a bag earlier that day when she was not home. Jones also testified that Scott had

come to the apartment with the bag earlier that evening, when Burrell and

Robinson were not home.

      According to Robinson and Jones, Jones showed Sergeant Crawford that

Scott placed the bag in the back bedroom. Robinson testified that she was unaware

the bag was in the apartment and gave the officers permission to search the bag

because it did not belong to her. Robinson also testified that the clothes in the bag

did not belong to Burrell. Robinson further testified that she, her children, and




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Burrell lived in the apartment, but that only she and her five children were named

on the lease.

                           Sufficiency of the Evidence

      In his sole point of error, Burrell contends that the evidence was legally

insufficient to support his conviction. Specifically, Burrell argues that a rational

juror could not have found that he exercised care, control, or management of the

cocaine.

A.    Standard of Review

      Evidence is insufficient to support a conviction if, considering all record

evidence in the light most favorable to the verdict, a factfinder could not have

rationally found that each essential element of the charged offense was proven

beyond a reasonable doubt. Gonzalez v. State, 337 S.W.3d 473, 478 (Tex. App.—

Houston [1st Dist.] 2011, pet. ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 319,

99 S. Ct. 2781, 2789 (1979)).

      Evidence is insufficient under this standard in four circumstances: (1) the

record contains no evidence probative of an element of the offense; (2) the record

contains a mere “modicum” of evidence probative of an element of the offense;

(3) the evidence conclusively establishes a reasonable doubt; and (4) the acts

alleged do not constitute the criminal offense charged. Gonzalez, 337 S.W.3d at

479. If an appellate court concludes that the evidence is insufficient under this



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standard, it must reverse the judgment and enter an order of acquittal. Gonzalez,

337 S.W.3d at 479 (citing Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 2218

(1982)).

      We determine whether the necessary inferences are reasonable based upon

the combined and cumulative force of all the evidence viewed in the light most

favorable to the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007)).

When the record supports conflicting inferences, we presume that the factfinder

resolved the conflicts in favor of the verdict and defer to that resolution. Jackson,

443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. We likewise defer

to the factfinder’s evaluation of the credibility of the evidence and the weight to

give the evidence. Gonzalez, 337 S.W.3d at 479 (citing Williams v. State, 235

S.W.3d 742, 750 (Tex. Crim. App. 2007)).          The reviewing court must also

“consider all evidence which the jury was permitted, whether rightly or wrongly, to

consider.” Thomas v. State, 753 S.W.2d 688, 695 (Tex. Crim. App. 1988) (en

banc) (emphasis omitted). If a portion of this evidence was erroneously admitted,

the accused may complain on appeal of such error, and a new trial should be

ordered if the error is reversible. Id.




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B.    Applicable Law

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

prove beyond a reasonable doubt that the defendant exercised control,

management, or care over the substance and that he knew the matter possessed was

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

Regardless of whether the evidence is direct or circumstantial, it must establish that

a defendant’s connection to the contraband was more than fortuitous. Id. at 405–

06. This “affirmative links rule is designed to protect the innocent bystander from

conviction based solely upon his fortuitous proximity to someone else’s drugs.”

Id. at 406 (internal quotation marks omitted). Thus, “[w]hen the accused is not in

exclusive possession of the place where the substance is found, it cannot be

concluded that the accused had knowledge of and control over the contraband

unless there are additional independent facts and circumstances which

affirmatively link the accused to the contraband.” Deshong v. State, 625 S.W.2d

327, 329 (Tex. Crim. App. [Panel Op.] 1981) (citing Wiersing v. State, 571 S.W.2d

188, 190 (Tex. Crim. App. 1978)).

      Though not an exhaustive list, the Court of Criminal Appeals has recognized

the following affirmative links:

      (1) the defendant’s presence when a search is conducted; (2) whether
      the contraband was in plain view; (3) the defendant’s proximity to and
      the accessibility of the narcotics; (4) whether the defendant was under
      the influence of narcotics when arrested; (5) whether the defendant


                                          8
      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 v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006); see also Gilbert

v. State, 874 S.W.2d 290, 298 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). It

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

evidence, both direct and circumstantial. Evans, 202 S.W.3d at 162. Therefore,

each case must be examined according to its own facts on a case-by-case basis.

Roberson v. State, 80 S.W.3d 730, 736 (Tex. App.—Houston [1st Dist.] 2002, pet.

ref’d). A factor that contributes to sufficiency in one situation may be of little

value under a different set of facts. Id.

C.    Analysis

      Burrell contends that the evidence showed only that Scott left the bag

containing cocaine at the apartment, and that there was no evidence that he “aided

Scott or was aware of the presence of drugs in the apartment, let alone that he

exercised actual care, custody and control of the contraband.” Burrell argues that

Scott “did almost all of the talking” on the audio recording and that there “are no




                                            9
statements of Burrell on the recording which indicate that he knew anything of

Scott bringing and leaving drugs in the apartment.”

      We conclude sufficient evidence connects Burrell with the cocaine. First,

the undisputed evidence showed that, although he was not a named lessee, Burrell

lived in and had the right to possess the apartment in which the cocaine was found.

Burrell told Officer Baker that he lived there, and Robinson testified as much. See

Ellerbee v. State, 631 S.W.2d 480, 483 (Tex. Crim. App. [Panel Op.] 1981)

(evidence showed affirmative link between appellant and controlled substance

where appellant lived in apartment three months despite not having signed lease

and appellant’s daughter was lessee); Edwards v. State, 813 S.W.2d 572, 576–78

(Tex. App.—Dallas 1991, pet. ref’d) (defendant and apartment manager’s

statements that defendant lived in apartment where drugs were found demonstrated

defendant’s control over apartment, even though no documents, personal effects, or

keys were found and evidence showed that defendant’s twin brother also lived in

apartment).

      Second, Burrell’s recorded statements are incriminating and his conduct

during the recording evidences a consciousness of guilt. Soon after they were

placed in the patrol car, Scott said, “I’m glad I dropped that off to you cuz,” and

Burrell responded affirmatively by saying, “Uh-huh.” Similarly, after Sergeant




                                        10
Crawford returned to the scene with the bag, Scott stated that he should have taken

the contraband to Ashley’s house, and Burrell agreed, saying “yea[h], you should.”

      The evidence also shows that Burrell recognized the bag and reacted when

Sergeant Crawford returned to the scene with the closed bag containing the

cocaine. Burrell said, “look at this, look at this” when he saw the closed bag

containing the cocaine, and Scott said that somebody snitched on them.

      The evidence further shows that Burrell was concerned about being

connected to the apartment where the cocaine was found. After Sergeant Crawford

returned, Scott stated that hopefully they would not be connected to the apartment

because it was not in Burrell’s name, and he asked Burrell whether there was

anything with Burrell’s name on it to connect them to the cocaine.         Burrell

responded that there was “paperwork” connecting him to the apartment. The audio

recording also captured Scott directing Burrell to tell the officers that the

contraband was not theirs—and Burrell did not interrupt or disagree with Scott’s

suggestion.

      As Burrell correctly notes, it was Scott who did most of the talking on the

recording—Scott said that he left the contraband at the apartment, that someone

snitched on them, and that they needed to stick to their story—but Burrell

affirmatively agreed with some of Scott’s statements, and, under the

circumstances, Burrell’s silence also can be construed as evidence of Burrell’s



                                        11
guilt. See TEX. R. EVID. 801(e)(2)(B) (statement is not hearsay if offered against a

party and is statement of which he has “manifested [his] adoption or belief in its

truth”); Tucker v. State, 771 S.W.2d 523, 535–36 (Tex. Crim. App. 1988) (finding

adoptive admissions by defendant in recorded conversation where defendant did

not contradict incriminating statements); Flores v. State, 84 S.W.3d 675, 685 (Tex.

App.—Houston [1st Dist.] 2002, pet. ref’d) (appellant’s failure to deny previous

extraneous theft mentioned by another person, during a taped conversation, or

denying that he knew to what other referred, was evidence of guilt of extraneous

theft).

          Burrell also contends that the judgment must be reversed because evidence

of many of the affirmative links is absent in this case. But the “number of factors

present is not as important as the logical force the factors have in establishing the

elements of the offense.” Gilbert, 874 S.W.2d at 298 (citing Whitworth v. State,

808 S.W.2d 566, 569 (Tex. App.—Austin 1991, pet. ref’d)); see Lair v. State, 265

S.W.3d 580, 588 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (evidence was

sufficient to support conviction where nine links were not present because

“possible links that do not exist . . . do not negate the links that are present”); Gant

v. State, 116 S.W.3d 124, 132–33 (Tex. App.—Tyler 2003, pet. ref’d) (holding

sufficient evidence to support jury’s verdict and noting that number of links

present is not as important as degree to which they tend to link defendant to



                                          12
controlled substance where appellant argued that seven links were not present); see

also Satchell v. State, 321 S.W.3d 127, 134 (Tex. App.—Houston [1st Dist.] 2010,

pet. ref’d) (“The absence of various links does not constitute evidence of innocence

to be weighed against the links present.”).

      Considering all of the evidence in the light most favorable to the verdict, we

conclude that sufficient affirmative links connect Burrell to the cocaine and that a

rational trier of fact could have found beyond a reasonable doubt that Burrell

exercised care, custody, or control over the cocaine knowing that it was

contraband. See Evans, 202 S.W.3d at 166 (“amply sufficient evidence connecting

appellant to the actual care, custody, control or management of the cocaine” when

viewing circumstantial evidence “in combination and its sum total”); Ferguson v.

State, 313 S.W.3d 419, 426 (Tex. App.—Houston [1st Dist.] 2009, no pet.)

(concluding patrol car’s video played at trial and officer’s testimony about

appellant’s behavior in video were evidence of consciousness of guilt);

Stubblefield v. State, 79 S.W.3d 171, 174 (Tex. App.—Texarkana 2002, pet. ref’d)

(affirmative links sufficient to support jury’s finding that appellant possessed

contraband where appellant was present at time of search but there was no

evidence of contraband found on appellant’s person, appellant was not under the

influence of a controlled substance, did not attempt to flee, and did not make

incriminating statements during the search, and although appellant was not lessor,



                                         13
possessor of house testified appellant had been living in house at least two or three

weeks before the search); cf. Roberson v. State, 80 S.W.3d 730, 741–42 (Tex.

App.—Houston [1st Dist.] 2002, pet. ref’d) (evidence insufficient to support

conviction where appellant was driver of car containing two passengers, cocaine

was found near where appellant’s cousin had been sitting, no evidence of odor in

car, appellant was not under influence of drugs and did not have contraband or

money on his person or near driver’s seat, appellant was cooperative and made no

furtive gestures, and appellant and two passengers made no statements connecting

appellant to cocaine).

      We overrule Burrell’s sole point of error.

                                     Conclusion

      We affirm the judgment of the trial court.


                                              Rebeca Huddle
                                              Justice

Panel consists of Justices Keyes, Sharp, and Huddle.
Publish — TEX. R. APP. P. 47.2(b).




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