                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

  TIMOTHY OLIVER BROWN,                           §
                                                                  No. 08-19-00073-CR
                    Appellant,                    §
                                                                     Appeal from the
  v.                                              §
                                                                   109th District Court
                                                  §
  THE STATE OF TEXAS,                                            of Crane County, Texas
                                                  §
                    Appellee.                                          (TC# 1817)
                                                  §

                                          OPINION

       A jury convicted Timothy Oliver Brown of possession of a controlled substance in penalty

group 1, acquitted him of the charged offense of assault on a public servant, and pursuant to

Brown’s request for inclusion of a lesser-included offense to the assault, convicted him of the

lesser-included offense of resisting arrest, search, or transportation. The jury assessed his

punishment at 2 years’ confinement and a $10,000 fine on the possession-of-a-controlled-

substance conviction and at 365 days’ confinement and a $4,000 fine on the resisting-arrest

conviction. The trial court sentenced Brown in accordance with the jury’s verdicts.

       Under the above-styled appellate cause number, Brown asserts a single issue on appeal

challenging the legal sufficiency of the evidence to sustain his conviction for possession of a

controlled substance only on the basis that the State failed to prove the requisite mens rea for his
offense – i.e., that his possession of a controlled substance was intentional or knowing. We affirm.1

                                             BACKGROUND

        On July 17, 2017, Lieutenant Aaron Jenkins of the Crane Police Department conducted a

traffic stop of a truck, in which Brown was the front passenger, due to the malfunctioning lights

on a trailer being pulled behind it. Once Lieutenant Jenkins identified the driver and ran the

vehicle’s information through a database, a dispatcher informed Lieutenant Jenkins that the trailer

was reported stolen. Meanwhile, Deputy Cesar Quiroga of the Crane County Sheriff’s Office

arrived to assist.

        Deputy Quiroga asked Brown to exit the passenger seat, but Brown refused. Brown’s

demeanor then became aggressive, “altered in manner,” and noncompliant. When Deputy Quiroga

placed a handcuff on one of Brown’s wrists, Brown pulled his arms away, and shortly afterwards,

Brown headbutted Deputy Quiroga by swinging around when Deputy Quiroga tried to conduct a

pat-down. Eventually, Lieutenant Jenkins helped quell Brown’s resistance and helped bring Brown

to the front of a patrol unit so that Deputy Quiroga could perform a full pat-down search.

        During the pat-down, the officers found a necklace around Brown’s neck that contained a

“pill pocket” compartment with 0.06 grams of methamphetamine inside. Although it was a hot

July day, Brown wore multiple layers of clothing, and wore a necklace nestled between layers of

his shirts. Brown also had a knife in his shorts. At trial, Lieutenant Jenkins testified that, based on

his training and experience, wearing multiple layers of clothing was a tactic used to conceal items.

In addition, when the officers discovered Brown’s necklace, Brown first said that he “got that from



1
  This is a companion case to Cause No. 08-19-00074-CR (TC# 1818) in which Brown appeals from his conviction
for resisting arrest, search, or transportation. We issue a separate opinion for each case.

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somebody,” subsequently claimed to have “found it,” and finally said he “found it when they were

riding around.”

                                            DISCUSSION

        In one issue, Brown challenges the legal sufficiency of the evidence to sustain his

conviction for possession of a controlled substance. He narrows his challenge to contending only

that there was no evidence he intentionally or knowingly possessed the methamphetamine found

in the compartment of the necklace he was wearing around his neck.

        1.      Standard of Review

        In assessing the legal sufficiency of the evidence to support a criminal conviction, we

consider all the evidence in the light most favorable to the verdict and determine whether, based

on that evidence and reasonable inferences therefrom, a rational juror could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-

19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The jury is the sole judge

of the credibility of witness testimony and the weight to assign that testimony, and the jury may

believe all, some, or none of any witness’s testimony. Metcalf v. State, 597 S.W.3d 847, 855 (Tex.

Crim. App. 2020). The reviewing Court must give deference to the responsibility of the trier of

fact to fairly resolve conflicts in testimony, to weigh evidence, and to draw reasonable inferences

from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13. Each fact need not point directly and

independently to the guilt of the defendant, as long as the cumulative force of all the incriminating

circumstances is sufficient to support the conviction. Id. Circumstantial evidence is as probative

as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt. Id.


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       2.       Applicable Law

       For Brown’s charge of possession of a substance in penalty group 1, the State was required

to prove the following elements: (1) the defendant; (2) knowingly or intentionally; (3) possessed;

(4) methamphetamine; (5) in an amount, by aggregate weight, including any adulterants or

dilutants, less than one gram. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b) (defining

the state-jail felony offense of possession of a controlled substance in penalty group 1); TEX.

HEALTH & SAFETY CODE ANN. § 481.102(6) (designating methamphetamine as a substance in

penalty group 1). Here, the only element at issue is whether Brown “knowingly or intentionally”

possessed the methamphetamine.

       By its nature, a culpable mental state must generally be inferred from the circumstances.

Nisbett v. State, 552 S.W.3d 244, 267 (Tex. Crim. App. 2018). We cannot read an accused’s mind,

and absent a confession, we must infer his mental state from his acts, words, and conduct. Id.

Inconsistencies in a defendant’s story can provide evidentiary support for a conviction. Id. at 266.

And so too can acts showing a defendant’s consciousness of guilt. See Evans v. State, 202 S.W.3d

158, 162 n.12 (Tex. Crim. App. 2006); Castaneda v. State, No. 08-10-00050-CR, 2011 WL

4490960, at *5 (Tex. App. – El Paso Sep. 28, 2011, pet. ref’d) (not designated for publication).

       Furthermore, this Court has previously held, in no uncertain terms, “[w]hen contraband is

found on an accused’s person, or in personal items such [as] a purse, the jury might also infer the

accused knowingly possessed the contraband found there.” Solis v. State, No. 08-18-00101-CR,

2019 WL 3940961, at *4 (Tex. App. – El Paso Aug. 21, 2019, no pet.) (not designated for

publication).

       3.       Application


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       As this Court has previously held, the fact that Brown wore the necklace containing

methamphetamine is alone sufficient to prove he knowingly possessed the contraband found

inside. See Solis, 2019 WL 3940961, at *4; see also Banks v. State, No. 11-17-00281-CR, 2019

WL 3727550, at *2 (Tex. App. – Eastland Aug. 8, 2019, no pet.) (mem. op., not designated for

publication) (holding that the jury could have rationally inferred that the defendant knowingly

possessed the cocaine found in his pocket where: (1) the cocaine was visible to the naked eye; (2)

the cocaine weighed 2.08 grams; and (3) when a detective removed the container with the cocaine

from the defendant’s pocket, the defendant made eye contact with her). However, this case presents

additional circumstances from which a jury could infer Brown’s knowledge and intent to possess

the methamphetamine.

       First, Brown’s conduct in wearing multiple layers of clothing on a hot July day, combined

with Lieutenant Jenkins’ testimony on the significance of this conduct, provided support for an

inference that Brown had the requisite culpable mental state. See Nisbett, 552 S.W.3d at 267.

Second, Brown’s inconsistent explanations for how he acquired the necklace – he initially claimed

that he “got that from somebody” and subsequently claimed to have “found it” – also provided

support for the jury to infer a culpable mental state. See id. at 266. Finally, Brown’s aggressive,

non-compliant resistance to Deputy Quiroga’s attempt to remove him from the vehicle and pat him

down also supported such an inference. See Evans, 202 S.W.3d at 162 n.12; Castaneda, 2011 WL

4490960, at *5; see also, e.g., Panus v. State, No. 03-17-00719-CR, 2018 WL 4140851, at *4 (Tex.

App. – Austin Aug. 30, 2018, pet. ref’d) (mem. op., not designated for publication); Ridings v.

State, No. 04-16-00370-CR, 2017 WL 603636, at *3 (Tex. App. – San Antonio Feb. 15, 2017, pet.

ref’d) (mem. op., not designated for publication) (cases holding that a defendant’s aggressive


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behavior during an arrest or resistance to an arrest shows a consciousness of guilt).

       In his brief, Brown generally points to the lack of certain affirmative links between him

and the contraband, such as the lack of any directly incriminating statements made by him when

he was arrested, the lack of any showing that he was under the influence of narcotics, and the lack

of any other drugs found in the vehicle. However, these arguments all relate to the formerly so-

called “affirmative links” concept that is applicable only in instances where the contraband is not

found on the accused’s person or when the accused does not exclusively possess a container where

the contraband is found. See Saunders v. State, No. 13-18-00589-CR, 2020 WL 3479261, at *2

(Tex. App. – Corpus Christi June 25, 2020, no pet.) (mem. op., not designated for publication);

Utomi v. State, 243 S.W.3d 75, 79 (Tex. App. – Houston [1st Dist.] 2007, pet. ref’d). By contrast,

Brown exercised exclusive possession and control of the necklace, and the concept is therefore

inapplicable here.

       For the above reasons, we hold that the evidence was legally sufficient to prove Brown

knowingly or intentionally possessed a controlled substance. Accordingly, we overrule his issue

presented for review.

                                           CONCLUSION

       The trial court’s judgment is affirmed.


                                              GINA M. PALAFOX, Justice
August 19, 2020

Before Alley, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)




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