                                 NO. 07-09-0369-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                 AUGUST 3, 2010
                         ______________________________

                              SHAUN HEATH BROOKS,

                                                            Appellant

                                           v.

                               THE STATE OF TEXAS,

                                                      Appellee
                         _______________________________

              FROM THE 251st DISTRICT COURT OF RANDALL COUNTY;

                    NO. 20486-C; HON. ANA ESTEVEZ, PRESIDING
                         _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

          Shaun Heath Brooks appeals his conviction for possessing a controlled

substance. His six issues involve the sufficiency of the evidence establishing his guilt

and the trial court’s decision to include a parties’ charge in its jury instructions. We

affirm.
       Background

       Amarillo Police Department narcotics agents were conducting surveillance on a

known drug house. While officers were watching the house, a green Cadillac left the

location. Appellant sat in the back seat of the vehicle, behind the driver. Officers in

unmarked cars followed the Cadillac until it committed a traffic violation. Then, they

directed a motorcycle officer (Hill) to stop the vehicle.     Hill complied, obtained the

driver’s identification, and walked to another officer’s squad car to run a check for

outstanding arrest warrants.

       While checking the driver’s information, Hill was advised by the undercover

officers that he needed appellant to step out of the car and obtain identification

information. Upon returning to the Cadillac, Hill asked appellant to step out of the car.

As appellant did so, he made “a motion with his left hand . . . a throwing motion with his

left hand back inside the car,” according to Hill. The latter also saw “an object fly out of

[appellant’s] left hand and it flipped in the air and landed on the back seat.” Because

this led Hill to believe that appellant was trying to conceal something, the officer

grasped appellant, placed him against the car, and handcuffed him. The officer then

looked inside the car for the object appellant tossed but could not immediately find it.

       Hill questioned the driver about the item. Appellant’s colleague stated that she

did not know what he was talking about. The officer then directed her to exit the car and

began searching the back seat. Upon doing so, he discovered a “small, about one inch

size square blue plastic baggie with a crystal powdery type substance in it” lying

“between the two little pieces of the seat in the crack.” The packet, according to Hill,

was the object he observed appellant tossing.



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      After being arrested, appellant informed Hill that the female driving the car had

“tossed” the packet to him. The jury found appellant guilty of possessing the controlled

substance found in the packet.

      Issues One and Two – Links to the Drugs

      In his first two issues, appellant contends that the evidence is insufficient to link

him to the contraband found in the car. We disagree and overrule the issues.

      The standards of review for legal and factual sufficiency are found in Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and Watson v. State, 204

S.W.3d 404 (Tex. Crim. App. 2006). We refer the parties to those cases.

      Next, one may not be convicted of possessing a controlled substance unless he

exercised actual care, control, or custody of it and knew the matter was contraband.

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

courts have divined numerous factors useful in determining whether such a nexus and

such knowledge existed.      Though not an exclusive list, it includes such things as

whether 1) the accused was present when the search was conducted, 2) the

contraband was plainly visible to those present, 3) the drugs were near the defendant,

4) the defendant was under the influence of the substance found, 5) the defendant

possessed other contraband or drug paraphernalia when arrested, 6) the defendant

made any incriminating statements, 7) the defendant attempted to flee, 8) the defendant

made any furtive gestures, 9) the contraband emitted a recognizable odor at the time,

10) other contraband or drug paraphernalia was present, 11) the defendant had the

right to exclusive or joint possession of the locale at which the drugs were found, 12) the

place where the drugs were found was enclosed, 13) the accused attempted to conceal



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the contraband, and 14) the accused was familiar with the type of contraband involved.

Kyte v. State, 944 S.W.2d 29, 31 (Tex. App.–Texarkana 1997, no pet.); Hurtado v.

State, 881 S.W.2d 738, 743 n.1 (Tex. App.–Houston [1st Dist.] 1994, pet. ref'd). The

number of factors present is not as important as the degree to which they tend to link

the defendant to the contraband. Wallace v. State, 932 S.W.2d 519, 524 (Tex. App.–

Tyler 1995, pet. ref'd). Thus, it is the logical force of the circumstantial evidence, not the

number of links, that supports a jury's verdict. Evans v. State, 202 S.W.3d 158, 166

(Tex. Crim. App. 2006).

       Appearing of record is evidence that 1) appellant was present in the car where

the drugs were found, 2) appellant admitted to having received a blue packet tossed to

him by the car’s driver, 3) the blue packet contained methamphetamine, 4) appellant

tossed the same packet into the back seat when he was asked to get out of the car, 5)

the location of the object once it was retrieved was in close proximity to where appellant

had sat, 6) the place where the drugs were found was enclosed, 7) like contraband was

found in a purse sitting by the front seat passenger who happened to be appellant’s

sister, and 8) the group had just left a locale from which drugs were sold. These facts

are sufficient to link appellant to the drugs and provide some evidence upon which a

juror could rationally conclude, beyond reasonable doubt, that he exercised care,

custody, or control over them.

       We recognize that appellant offered an alternative theory for the jury's

consideration. Yet, the jury was not required to believe that, see Evans v. State, 202

S.W.3d at 166, and we cannot say that its rejection of the theory undermines our

confidence in the verdict. We further note that even if the drugs belonged to the driver



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and she tossed them to appellant that does not ipso facto insulate him from possessing

them. It is quite possible for multiple people to exercise care, custody and control over

the same contraband. Moreover, we have been cited to nothing that suggests that an

accused must exercise such care, custody, and control for a certain period of time

before he becomes culpable of possessing them. The moments it takes to receive

drugs from one person and pass them to another or receive them and immediately

attempt to hide them may be all that it takes depending on the accused’s knowledge

and mens rea. In any case, the record fails to support the allegations that appellant’s

verdict lacked the support of legally and factually sufficient evidence.

       Issues Three and Four – Party Theory

       Through his third and fourth issues, appellant contends that the evidence was

insufficient to show he acted as a party to the offense of possessing controlled

substances. We again disagree and overrule the issues.

       Since there exists sufficient evidence to hold him culpable as the primary actor, it

matters not whether like evidence illustrates that appellant was a party to another’s

effort at possessing contraband. See Miles v. State, 07-02-0108-CR, 2003 Tex. App.

LEXIS 1668, at *10-11 (Tex. App.–Amarillo February 24, 2003, pet. ref’d) (not designated

for publication) (holding that when different theories, i.e. commission of a crime as the

primary actor or as a party, are submitted to the jury, a general verdict is sufficient if the

evidence supports one of the theories submitted); Barnes v. State, 62 S.W.3d 288, 299

(Tex. App.–Austin 2001, pet. ref’d) (holding the same).




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       Issues Five and Six - Charge on the Law of Parties

       In his final two issues, appellant argues that the trial court erred in overruling his

objection to submitting a parties’ charge to the jury. This is allegedly so because no

evidence warranted the submission. We overrule these issues as well.

       In reaching our decision, we find guidance in Brown v. State, 716 S.W.2d 939

(Tex. Crim. App. 1986) and Reyes v. State, 910 S.W.2d 585 (Tex. App.–Amarillo 1995,

pet. ref’d). Both hold that any error in charging the jury on the law of parties is harmless

“if the evidence clearly supports appellant’s guilt as a primary actor.” Brown v. State,

716 S.W.2d at 946; Reyes v. State, 910 S.W.2d at 593. Having previously determined

that the evidence was legally and factually sufficient to sustain appellant’s conviction as

the primary actor, we find that appellant suffered no harm when the trial court included

the party instruction in its jury charge, assuming arguendo that the act was erroneous.

       Accordingly, the judgment of the trial court is affirmed.



                                                  Brian Quinn
                                                  Chief Justice



Do not publish.




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