                                   NO. 12-18-00359-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

 ANWAR LAMON HOLMES,                               §       APPEAL FROM THE 115TH
 APPELLANT

 V.                                                §       JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                          §       UPSHUR COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Anwar Lamon Holmes appeals his conviction for possession of a controlled substance. In
a single issue, Appellant asserts the evidence is insufficient to support his conviction. We affirm.


                                           BACKGROUND
       On July 2, 2017, Appellant was driving on Highway 259 in Upshur County when he threw
a beer can out of his window. The can hit another vehicle and cracked the windshield. The driver
called 911, and the Department of Public Safety (DPS) responded. Trooper Jonathan Anderson
initiated a traffic stop. He began to suspect that Appellant was intoxicated and requested backup.
After Trooper Sandy Taylor arrived, he found a clear plastic bag directly behind Appellant’s front
passenger tire. Appellant was arrested for both driving while intoxicated and possession of a
controlled substance. It was later determined that the bag contained 16.4 grams of cocaine.
       Appellant was charged by indictment with possession of four or more but less than 200
grams of cocaine, with intent to deliver. The indictment also contained an enhancement paragraph
reflecting a Harris County conviction for assault on a public servant. Prior to trial, the State filed
a Notice of Enhancement alleging a Harris County conviction for possession of a controlled
substance and a Cass County conviction for delivery of a controlled substance. Ultimately, the
jury found Appellant “guilty” of the lesser included offense of possession of four or more but less
than 200 grams of cocaine. Appellant pleaded “true” to all three enhancement allegations, and the
jury assessed his punishment at imprisonment for eighty years. This appeal followed.


                                 SUFFICIENCY OF THE EVIDENCE
       In his sole issue, Appellant contends the evidence is insufficient to support his conviction.
Specifically, he challenges the sufficiency of the evidence to connect him to possession of the
recovered cocaine.
Standard of Review and Applicable Law
       In Texas, the Jackson v. Virginia legal sufficiency standard is the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to support each
element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks
v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional
minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal
conviction. See Jackson v. Virginia, 443 U.S. 307, 316–17, 99 S. Ct. 2781, 2786–87, 61 L. Ed.
2d 560 (1979). The standard for reviewing a legal sufficiency challenge is whether any rational
trier of fact could have found the essential elements of the offense beyond a reasonable
doubt. See id., 443 U.S. at 319, 99 S. Ct. at 2789. The evidence is examined in the light most
favorable to the verdict. Id. A successful legal sufficiency challenge will result in rendition of an
acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2217–
18, 72 L. Ed. 2d 652 (1982). This familiar standard gives full play to the responsibility of the trier
of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
       Under this standard, we may not sit as a thirteenth juror and substitute our judgment for
that of the factfinder by reevaluating the weight and credibility of the evidence. See Dewberry v.
State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Brooks, 323 S.W.3d at 899. Instead,
we defer to the factfinder’s resolution of conflicting evidence unless the resolution is not
rational. See Brooks, 323 S.W.3d at 899–900. When the record supports conflicting inferences,
we presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer
to that determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Direct and
circumstantial evidence are treated equally. Id. Circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient



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to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The duty of a
reviewing court is to ensure that the evidence presented actually supports a conclusion that the
defendant committed the crime charged. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.
App. 2007).
       The sufficiency of the evidence is measured against the elements of the offense as defined
by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would include one that “accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict
the State’s theories of liability, and adequately describes the particular offense for which the
defendant was tried.” Id.
Applicable Law
       To satisfy the elements of manufacture or delivery of a controlled substance as alleged in
the indictment, the State was required to prove that Appellant knowingly possessed with intent to
deliver four or more but less than 200 grams of cocaine. See TEX. HEALTH & SAFETY CODE
ANN. § 481.112(a), (c) (West 2017).
       To prove unlawful possession of a controlled substance, the state must prove that the
accused (1) exercised care, control, or management over the contraband and (2) knew the matter
was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). This
evidence, whether direct or circumstantial, must establish to the requisite level of confidence that
the defendant’s connection with the substance was more than merely fortuitous. Id. at 405-06.
The defendant’s mere presence at a place where the substance is possessed by others does not
render him a joint possessor of the substance or party to the offense. Martin v. State, 753 S.W.2d
384, 387 (Tex. Crim. App. 1988). However, presence or proximity when combined with other
evidence can establish possession. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006).
       A nonexclusive list of factors relevant to possession—or “affirmative links”—includes (1)
the defendant’s presence during the search, (2) whether the contraband was in plain view, (3) the
contraband’s proximity and accessibility to the defendant, (4) whether the defendant was under
the influence of narcotics, (5) whether the defendant possessed other contraband, (6) whether the
defendant made incriminating statements, (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 was present, (11) whether the defendant owned or had the



                                                 3
right to possess the place where the contraband was 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 consciousness of guilt. Id. at 162
n.12. Possession is established not by a certain number of these links but by the logical force of
all the evidence. Id. at 162.
Analysis
       Appellant alleges that the possession evidence against him is insufficient because the
testimony connecting him to the cocaine is speculative. He further argues that no evidence other
than his presence near the cocaine links him to the drugs and that this evidence is insufficient to
support the jury’s finding of guilt.
       The evidence at trial included the video of the stop from Trooper Anderson’s patrol car.
The video was played for the jury during trial, and the jury requested to view it during
deliberations. The video reflects nothing lying on the ground behind Appellant’s tire at the
beginning of the traffic stop. Trooper Anderson made his initial contact with Appellant by
speaking with him through the passenger side window. After that initial encounter, no one spends
time on the passenger side of Appellant’s vehicle. When Trooper Anderson left to speak with the
other driver, Appellant moves around in his vehicle and then quickly opens and shuts the driver’s
side door. After Trooper Taylor arrives, he walks past the passenger side and sees a bag on the
ground behind Appellant’s passenger front tire. He moves it out with his foot and then shows it to
Trooper Anderson.
       Trooper Taylor testified that he recovered the bag from the rear side of the passenger front
tire. He further stated that the bag was in line with the tire pattern on Appellant’s vehicle. In his
opinion, if the bag had been on the ground when Appellant pulled over, it would have been
“smashed” by the vehicle instead of the “round form it was in.” Trooper Anderson also testified
that the bag was not crushed or damaged and did not appear to have been run over by a vehicle.
       Accordingly, Appellant was present when the contraband was found, the patrol video
shows nothing on the ground at the time of the stop, Appellant is seen moving around inside the
vehicle just before quickly opening and closing the driver’s side door, and the contraband was
subsequently found directly behind Appellant’s front passenger’s side tire in a condition that did
not reflect it had been driven over by a vehicle. The logical force of the evidence establishes that
Appellant exercised care, control, or management over the contraband and knew the matter was



                                                 4
contraband. See Poindexter, 153 S.W.3d at 405; Evans, 202 S.W.3d at 162. Viewing the evidence
in the light most favorable to the verdict, we conclude that the jury was rationally justified in
finding, beyond a reasonable doubt, that Appellant committed the offense of possession of a
controlled substance. See Poindexter, 153 S.W.3d at 405. Because the evidence is sufficient to
show that Appellant possessed the cocaine, we overrule Appellant’s sole issue.


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

                                                                 BRIAN HOYLE
                                                                    Justice

Opinion delivered April 30, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             APRIL 30, 2019


                                         NO. 12-18-00359-CR


                                   ANWAR LAMON HOLMES,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                Appeal from the 115th District Court
                            of Upshur County, Texas (Tr.Ct.No. 17852)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
