Affirmed and Memorandum Opinion filed July 12, 2016.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-15-00539-CR

                  GREGORY CHARLES HURST, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 56th District Court
                          Galveston County, Texas
                      Trial Court Cause No. 14CR1316

                 MEMORANDUM                       OPINION


      Appellant Gregory Charles Hurst was convicted of possessing more than
four grams but less than 200 grams of cocaine with intent to deliver. Tex. Health
& Safety Code Ann. § 481.112 (West 2010).             At trial, the jury found two
enhancement paragraphs to be true and sentenced appellant to confinement in the
Institutional Division of the Texas Department of Criminal Justice for fifty years.

      In a single issue, appellant contends the evidence is legally insufficient for a
rational juror to conclude beyond a reasonable doubt that he possessed cocaine
with intent to deliver.       Specifically, appellant challenges the element of
possession—i.e., whether he exercised care, custody, control, or management over
the cocaine. We hold the evidence of possession is legally sufficient and therefore
affirm the trial court’s judgment.

                                     BACKGROUND

      In March 2014, the Texas City Police Department was informed that drugs
were being sold out of Apartment 711 at Heritage 9th Avenue Apartment
Complex. Soon after receiving the tip, Officer Rhone began investigating the
apartment. For approximately one month, Officer Rhone conducted early morning
surveillance of the apartment two to three times per week for thirty to forty-five
minutes each time. On one occasion, he saw appellant leave the apartment.

      Officer Rhone also used a confidential informant to conduct a controlled buy
from the apartment.      Based on his training and experience, Officer Rhone
determined that the substance sold to the confidential informant was cocaine. With
this information, Officer Rhone obtained a search warrant for the apartment.

      On the afternoon of April 24, 2014, Officer Rhone and Officer Crumpley
conducted further surveillance of the apartment before executing the search
warrant.   Officer Crumpley observed a consistent flow of people enter the
apartment for short periods of time.         On seven or eight occasions, Officer
Crumpley saw appellant leave the apartment, approach the passenger side of a car,
briefly talk to the driver, and return to the apartment. Officer Crumpley did not see
appellant with drugs or money, but testified that appellant’s behavior was
consistent with that of a drug dealer.

      Officer Rhone testified that he observed at least three people enter the


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apartment for short periods of time. On five occasions within one hour, Officer
Rhone observed appellant leave the apartment, approach a waiting car, reach inside
the car, and return to the apartment. According to Officer Rhone, the visitors to
the apartment and appellant’s interactions with the cars both indicated drug-related
activity.

       Officer Rhone also observed appellant walk to a nearby shopping center
twice that day. The first time, appellant wore a red shirt and white shorts, but on
the second trip he had changed into a black shirt and gray shorts. Appellant was
arrested on his second trip. Officers searched appellant and recovered $452.68, but
did not find drugs or a key to the apartment.

       Due to safety concerns, officers made a forced entry into the apartment,
which was empty. The dead bolt on the front door of the apartment was not
locked, and officers found a door key in the apartment during the search.

       While searching the bedroom of the apartment, officers found cocaine in the
lower drawer of a dresser and also on top of the dresser, hidden in a male cologne
box and jewelry box. The cocaine was stored in multiple plastic baggies in a
manner that, according to Officer Rhone and Officer Bjerke, was consistent with
drug distribution. Officers found $1,445 in the same bedroom dresser, along with
appellant’s birth certificate and social security card. A digital scale was also found
in a kitchen drawer, which Officer Rhone testified was commonly used by cocaine
distributors.

       Appellant’s girlfriend, Dejon Thomas, was the sole leaseholder of the
apartment and paid rent in person. Thomas listed appellant as her boyfriend and
emergency contact on lease documents. Appellant signed several lease-related
documents with Thomas, but was never listed as an official resident. Elizabeth
Dvorak, the property manager of the apartments, testified that Thomas had been
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living with her mother for the past two months and was not currently occupying
the apartment.

      Dvorak considered appellant the sole occupant of the apartment. Heginio
Rodriguez, the maintenance supervisor at the apartments, also considered appellant
to be living at the apartment between July 2013 and April 2014. Rodriguez
testified that he saw appellant’s car parked in front of the apartment every day.

      Officer Rhone testified that, during the search, a red shirt and white shorts
consistent with appellant’s earlier outfit were found in the bedroom, laying on top
of the bed. The white shorts had a dry cleaning tag attached and had cash in both
pockets. Officers found $331 in the right pocket and $178 in the left pocket. A
dry cleaning receipt with appellant’s name on it was found in the apartment,
though the tag number did not match the receipt.

      Two medication bottles labeled with appellant’s name were found in the
apartment, one of which listed an address different from that of the apartment.
Male items including shaving cream, shoes, and clothing were found in the
bedroom closet and bathroom. A backpack containing a paycheck stub addressed
to appellant was found in the bedroom closet.

      Appellant was charged with possession of a controlled substance with intent
to deliver. A jury convicted him, found two enhancement paragraphs to be true,
and sentenced appellant to fifty years confinement. This appeal followed.

                                     ANALYSIS

      In his sole issue on appeal, appellant challenges the sufficiency of the
evidence establishing the first element of the charged offense: unlawful possession
of a controlled substance. Appellant argues that the State failed show sufficient
links between him and the cocaine from which a reasonable jury could conclude he

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had knowledge and possession. We therefore examine whether there is legally
sufficient evidence for a rational fact finder to conclude beyond a reasonable doubt
that appellant knowingly possessed a controlled substance.

I.    Standard of review and applicable law
      We review the sufficiency of the evidence in the light most favorable to the
verdict and determine whether a rational fact finder could have found that each
essential element of the charged offense was proven beyond a reasonable doubt.
Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).

      A person commits the first-degree felony offense of possession of a
controlled substance with intent to deliver if he knowingly possesses a controlled
substance, such as cocaine, in an amount between four and 200 grams with intent
to deliver. Tex. Health & Safety Code Ann. § 481.112 (West 2010). “Possession”
is defined as “actual care, custody, control, or management.” Tex. Penal Code
Ann. § 1.07(a)(39) (West Supp. 2015). Therefore, to prove unlawful possession of
a controlled substance, the State must establish that the accused (1) exercised care,
control, or management over the contraband, and (2) knew the substance was
contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005);
Moreno v. State, 195 S.W.3d 321, 325 (Tex. App.—Houston [14th Dist.] 2006,
pet. ref’d).   The element of possession may be proven through direct or
circumstantial evidence, although the evidence must establish that the accused’s
connection with the substance was more than fortuitous. Poindexter, 153 S.W.3d
at 405–06.

      When the accused is not in exclusive possession of the place where the
contraband is found, the State must show additional facts and circumstances that
affirmatively link the accused to the contraband. See Olivarez v. State, 171 S.W.3d

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283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.). An affirmative link
generates a reasonable inference that the accused knew of the contraband’s
existence and exercised control over it. Id.

      Courts have identified the following factors that may affirmatively link the
accused to a controlled substance: (1) the accused’s presence when a search is
conducted; (2) whether the contraband was in plain view; (3) the accused’s
proximity to and the accessibility of the narcotic; (4) whether the accused was
under the influence of narcotics when arrested; (5) whether the accused possessed
other contraband or narcotics when arrested; (6) whether the accused made
incriminating statements when arrested; (7) whether the accused attempted to flee;
(8) whether the accused made furtive gestures; (9) whether there was an odor of
contraband; (10) whether other contraband or drug paraphernalia were present;
(11) whether the accused owned or had the right to possess the place where the
narcotics were found; (12) whether the place where the narcotics were found was
enclosed; (13) whether the accused was found with a large amount of cash; and
(14) whether the conduct of the accused indicated a consciousness of guilt. Evans
v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006). Additionally, a large
quantity of contraband may be a factor affirmatively linking appellant to the
contraband. See Olivarez, 171 S.W.3d at 292.

      No set formula of facts is required to find an affirmative link that supports
an inference of knowing possession; whether such an inference is reasonable is
determined by the totality of the circumstances. Hyett v. State, 58 S.W.3d 826, 830
(Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). The number of factors present
is not as important as the combined logical force of the factors in proving that the
accused knowingly possessed the controlled substance. Roberson v. State, 80
S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

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II.   There is legally sufficient evidence that appellant possessed the cocaine.
      Having reviewed the record in light of these standards, we conclude that
appellant’s status as the occupant of the apartment, as well as other independent
facts, affirmatively link appellant to the cocaine such that the jury could reasonably
infer he had knowledge of the cocaine and exercised control over it.

      Appellant argues that the State failed to prove beyond a reasonable doubt
that he possessed cocaine. He points to the following facts that, according to
appellant, show he did not exercise care, custody, control, or management over the
contraband: (1) he was not the lessee of the apartment; (2) he was not arrested in
the apartment and did not possess a key to the apartment; (3) he was not present at
the apartment when it was searched; and (4) other people were seen entering and
leaving the apartment that day. Appellant argues that the evidence establishes
nothing more than “mere association” with apartment 711, which is insufficient to
show the essential element of possession. See Hernandez v. State, 517 S.W.2d
782, 783 (Tex. Crim. App. 1975). Appellant also argues that the personal items
discovered in the apartment fail to connect him to the cocaine, which was
concealed in the bedroom. We disagree.

      Multiple, independent facts affirmatively link appellant to the cocaine. The
evidence showed that appellant had the right to possess and exercise control over
the apartment. The property manager and maintenance supervisor testified that
appellant lived in the apartment. See Edwards v. State, 813 S.W.2d 572, 578 (Tex.
App.—Dallas 1991, pet. ref’d) (evidence was sufficient to connect defendants to
apartment when the apartment manager told police that defendants lived there).
Male clothes and shoes were found in the bedroom and closet. See Evans, 202
S.W.3d at 164 (noting male clothing found in the bedroom was evidence of
defendant’s right of possession). The lessee listed appellant as her boyfriend on

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lease documents, and appellant signed application documents for the apartment
with her, which further supports an inference that appellant had a right of
possession. See Burrell v. State, 445 S.W.3d 761, 765–66 (Tex. App.—Houston
[1st Dist.] 2014, pet. ref’d) (holding defendant had a right to possess apartment
even though his girlfriend was the lessee).

       Officers testified that appellant was seen going in and out of the apartment
multiple times on the day of the search. See Hutchinson v. State, 424 S.W.3d 164,
169 (Tex. App.—Texarkana 2014) (holding defendant’s ability to go in and out of
another’s residence without knocking was affirmative link). Though appellant did
not possess a key to the apartment when he was arrested, the jury could have
concluded based on the evidence that the front door was unlocked and therefore
appellant did not need a key to re-enter the apartment.1 Appellant’s paycheck stub,
medication, and mail were also found in the apartment. See Jackson v. State, No.
14-15-00244-CR, 2016 WL 2605784, at *4 (Tex. App.—Houston [14th Dist.] May
5, 2016, no. pet.) (holding that mail addressed to appellant and paperwork with
appellant’s name found in enclosed garage showed appellant’s access). From such
evidence, a rational trier of fact could infer that appellant possessed and maintained
control of the apartment and therefore knew of its contents.

       The record also supports an inference that the cocaine was accessible to
appellant.    Appellant’s personal items, such as his birth certificate and social
security card, were found in the same dresser as the cocaine. See Hubert v. State,
312 S.W.3d 687, 688 (Tex. App.–Houston [1st Dist.] 2009, pet. ref’d) (holding
defendant’s personal documents found on the same shelf as the drugs constituted
1
  See One Thousand Six Hundred Four Dollars & Nine Cents ($1,604.09) In U.S. Currency v.
State, 484 S.W.3d 475, 481 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (“If circumstantial
evidence will support more than one reasonable inference, it is for a jury to decide which is more
reasonable, subject only to review by the trial court and the court of appeals to assure that such
evidence is factually sufficient.”).

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strong affirmative link).

      In addition to the cocaine, officers recovered drug paraphernalia in the
apartment. A digital scale was located in a kitchen drawer, and Officer Rhone
testified that such scales were commonly used for drug trafficking. The cocaine
was found packaged inside plastic baggies, which Officer Rhone and Officer
Bjerke testified was consistent with drug trafficking. Appellant also possessed
$452.68 when he was arrested. In the bedroom, officers found approximately $500
in white shorts, which were consistent with those appellant had been seen wearing
earlier in the day, and $1445 hidden in the dresser, in which appellant’s personal
documents were found. In the context of other affirmative links and the additional
cash found in the apartment, appellant was found with a large amount of cash. See
Evans, 202 S.W.3d at 16 (holding that $160 was a significant amount of money
when viewed in conjunction with surrounding circumstances).

      Among other facts the jury may have found relevant under the totality of the
circumstances are appellant’s numerous interactions with cars in front of the
apartment and the intensity of foot traffic in and out of the apartment. Officer
Rhone and Officer Crumpley testified that both of these facts indicate drug
distribution. A reasonable jury could have concluded that this evidence supported
appellant’s knowledge and possession of the cocaine.

      The evidence in this case as a whole supports a reasonable inference that
appellant exercised control, management, or care over the cocaine. Therefore, we
hold the evidence is legally sufficient to support appellant’s conviction.    We
overrule his sole issue.




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                                  CONCLUSION

      Having overruled appellant’s sole issue, we affirm the trial court’s judgment.




                                      /s/    J. Brett Busby
                                             Justice



Panel consists of Justices Christopher, McCally, and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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