                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-15-00039-CR
                            NO. 02-15-00040-CR


ALFONZO ROBINSON                                               APPELLANT

                                     V.

THE STATE OF TEXAS                                                   STATE


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         FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
                TRIAL COURT NOS. 1344698D, 1344697D

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                       MEMORANDUM OPINION1

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     In Cause No. 02-15-00040-CR, a jury convicted Appellant Alfonzo

Robinson of possession with intent to deliver between 4 and 200 grams of

methamphetamine and assessed his punishment at thirty-six years’ confinement

and a $10,000 fine. In Cause No. 02-15-00039-CR, the same jury convicted

Robinson of unlawful possession of a firearm and assessed his punishment at

     1
      See Tex. R. App. P. 47.4.
ten years’ confinement and a $10,000 fine.          In a single point, Robinson

challenges the sufficiency of the evidence to support both convictions, arguing

that the State failed to prove that he exercised actual care, custody, and control

over both the drugs and the firearm. We will affirm.

      Officer Josh Bennett was patrolling south Euless on August 23, 2013,

when around 8:00 a.m., he observed two people exit a motel room, enter a

vehicle, and drive away. He ran a check on the vehicle’s license plate, which

showed that an arrest warrant had been issued for the owner, Melinda Romero,

so he initiated a traffic stop. Romero was driving the vehicle and acknowledged

that a warrant may have been issued for her arrest. Robinson was sitting in the

front passenger seat, had a large backpack between his feet on the floorboard,

and verbally identified himself. Officer Bennett returned to his cruiser to conduct

checks on both Romero and Robinson, and while doing so, he noticed them

make what he described as furtive movements—“they would kind of lean towards

each other to the center of the car, and then they’d kind of lean back a little bit

and make continuous movements.”

      Officer Bennett had Romero exit the vehicle, and about three minutes later,

an assisting officer had Robinson exit the vehicle.      Romero consented to a

search of the vehicle, and Officer Bennett located a large bag on the floorboard

under the driver’s seat containing what was later determined to be approximately

twenty-seven grams of methamphetamine. Officer Bennett placed Romero and

Robinson under arrest and continued the search, whereupon he found a loaded


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Bersa .9 mm handgun under the driver’s seat and unused “deal” baggies, a

digital scale, a bag containing what appeared to be methamphetamine, a loaded

magazine clip that fit the .9 mm, a card that had Robinson’s name on it, and

some male grooming items inside the backpack that had been between

Robinson’s feet. Robinson later signed a property receipt acknowledging that the

backpack belonged to him. Romero had two smoking pipes and a small amount

of what appeared to be methamphetamine in her purse.2 An unidentified number

of puppies were in the back seat of the vehicle.

      At trial, Officer Bennett testified that he had been assigned to the Tarrant

County Narcotics Unit for three years and that he had experience in the field with

both drug users and drug dealers. He agreed that twenty-seven grams was “a

rather large amount of methamphetamine”—“[a] typical user amount would be

under a gram or a gram, much smaller than that”—and he opined that Robinson

was going to deliver the methamphetamine.

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979).


     The State did not request that the substances found in Romero’s purse
      2

and Robinson’s backpack be tested, but Officer Bennett opined that it was
methamphetamine.


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

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

substance and (2) that the accused knew the matter possessed was contraband.

Poindexter v. State, 153 S.W.3d 402, 405‒06 (Tex. Crim. App. 2005); see Tex.

Health & Safety Code Ann. § 481.115(a) (West 2010); Tex. Penal Code Ann.

§ 1.07(a)(39) (West Supp. 2015) (defining “Possession”).     In cases involving

unlawful possession of a firearm by a felon, we analyze the sufficiency of the

evidence under the rules adopted for determining the sufficiency of the evidence

in cases of unlawful possession of a controlled substance. Bates v. State, 155

S.W.3d 212, 216 (Tex. App.—Dallas 2004, no pet.).         Thus, the State was

required to prove, among other things, that the accused exercised actual care,

custody, or control of the firearm. Id.; see Tex. Penal Code Ann. § 46.04(a)

(West 2011).

      Mere presence alone is insufficient to establish possession. Oaks v. State,

642 S.W.2d 174, 177 (Tex. Crim. App. 1982). However, when the contraband is

not found on the accused’s person or is not in the exclusive possession of the

accused, independent facts and circumstances may link the accused to the

contraband such that it may be justifiably concluded that the accused knowingly

possessed the contraband. Evans v. State, 202 S.W.3d 158, 161‒62 (Tex. Crim.

App. 2006).    Relevant factors connecting the defendant to possession of an

illegal substance include (1) the defendant’s presence when a search is

conducted; (2) whether the contraband was in plain view; (3) the defendant’s


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proximity to and the accessibility of the narcotic; (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 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. Id. at 162 n.12; Olivarez v. State,

171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.). These

factors are non-exclusive, and it is not the number of links but the “logical force”

of all the evidence that supports a finding of guilt. Olivarez, 171 S.W.3d at 291–

92.

      The logical force of the evidence viewed in the light most favorable to the

verdict sufficiently connects Robinson to both the twenty-seven grams of

methamphetamine and the firearm found under the driver’s seat. See Evans,

202 S.W.3d at 161‒62. Specifically, Robinson was in the vehicle in which the

drugs and the firearm were found and made furtive gestures when Officer

Bennett returned to his cruiser to check Romero’s and Robinson’s identifications.

Both Robinson and Romero had access to where the drugs and the firearm were


                                         5
located, but the positioning of the transmission tunnel behind the center console

made it easier for Robinson to reach behind and under the driver’s seat.

Robinson had a digital scale, unused baggies, a loaded magazine that matched

the firearm, a small amount of what appeared to be methamphetamine, and

some kind of identification card in his backpack.          The paraphernalia in

Robinson’s possession was consistent with what a drug dealer would possess.3

See Luckett v. State, No. 02-10-00487-CR, 2011 WL 3795251, at *4 (Tex.

App.—Fort Worth Aug. 29, 2011, pet. ref’d) (mem. op., not designated for

publication) (reasoning similarly).

      Robinson points out that he did not own the vehicle, but that fact would not

prevent him from exercising possession of the drugs and the firearm.          See

Tucker v. State, 183 S.W.3d 501, 509‒12 (Tex. App.—Fort Worth 2005, no pet.)

(addressing similar argument).        Robinson argues that the furtive movements

made during the stop could have been him and Romero attempting to control the

puppies in the back seat, but as the State responds, that inference contradicts

the standard of review, which requires us to view the evidence and inferences in

the light most favorable to the verdict. See Jackson, 443 U.S. at 319, 99 S. Ct. at

2789. Similarly, Robinson appears to suggest that the narcotics and the firearm

could have belonged to an unidentified male who, after Robinson’s arrest, went

to the same hotel room that Romero and Robinson were in before they were

      3
      Romero had two smoking pipes and a small amount of what appeared to
be methamphetamine in her purse—contraband that was consistent with what a
user would possess.

                                           6
arrested, but the jury considered that evidence and impliedly rejected it. When

performing an evidentiary sufficiency review, we may not re-evaluate the weight

and credibility of the evidence and substitute our judgment for that of the

factfinder. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App.

2012).   Rather, we must presume that the factfinder resolved any conflicting

inferences in favor of the verdict and defer to that resolution. Id.

      The evidence is sufficient to support Robinson’s convictions for possession

with intent to deliver between 4 and 200 grams of methamphetamine and

unlawful possession of a firearm. See Jackson, 443 U.S. at 319, 99 S. Ct. at

2789. We overrule his sole point and affirm the trial court’s judgments.




                                                     /s/ Bill Meier
                                                     BILL MEIER
                                                     JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 12, 2016




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