                                   NO. 12-09-00249-CR

                         IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                        TYLER, TEXAS

DERRICK ROSS,                                §              APPEAL FROM THE THIRD
APPELLANT

V.                                           §              JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                     §              ANDERSON COUNTY, TEXAS


                                    MEMORANDUM OPINION
       Derrick Ross appeals his conviction for possession of a prohibited item while incarcerated in
a correctional facility, for which he was sentenced to imprisonment for sixty years. In one issue,
Appellant argues that the evidence is factually insufficient to support his conviction. We affirm.


                                           BACKGROUND
       Appellant, an inmate, was charged by indictment with possession of a prohibited item, a
cellular telephone, while incarcerated in a correctional facility. Appellant pleaded “not guilty,” and
the matter proceeded to a jury trial.
       At trial, the evidence indicated that Lieutenant Tonia Brown, a correctional officer with the
Texas Department of Criminal Justice (“TDCJ”), was assigned to work at the Trustee Camp at the
Coffield Unit in Anderson County, Texas. While on duty, Brown observed Appellant walking to
the camp area and noticed something unusual or “squirrely” about his gait and demeanor. As a
result, Brown sought to conduct a search of Appellant and ordered him to stop. Appellant fled, and
Brown and Officer Keith Steele pursued him. During her pursuit of Appellant, Brown observed
Appellant throwing an unidentified object onto the roof of the “C” dormitory. Steele, who had
fallen behind in the pursuit, did not observe Appellant throwing anything. Parole Officer Doug
Smith was at the nearby firing range and observed an offender running along the side of the “C”
dormitory, at which point he made a “big overhand throwing motion.”                             Appellant ultimately
stopped running and was restrained by Brown.
         Thereafter, Smith informed officers investigating the scene that Appellant had made a
throwing motion toward the roof. Sergeant Norris Knox later conducted a search of the entire roof
of the “C” dormitory. As a result of his search, Knox recovered a cellular telephone concealed
inside a gray, state issued sock. The general area of the roof from which Knox recovered the
cellular telephone is in close proximity to the general area from which, according to Brown’s
testimony, Appellant threw the unidentified object onto the roof.
         Following the presentation of evidence, the matter was submitted to the jury. Ultimately,
the jury found Appellant “guilty” as charged and assessed his punishment at imprisonment for sixty
years. The trial court sentenced Appellant accordingly, and this appeal followed.


                                            EVIDENTIARY SUFFICIENCY
         In his sole issue, Appellant argues that the evidence is factually insufficient to support the
trial court’s judgment. Specifically, Appellant contends that the evidence is factually insufficient to
support that he possessed the cellular telephone at issue.
         We initially note that the court of criminal appeals has recently held that there is “no
meaningful distinction between the Jackson v. Virginia1 legal sufficiency standard and the Clewis
factual sufficiency standard and that “the Jackson v. Virginia 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.” See
Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *8, 14 (Tex. Crim. App. Oct. 6, 2010).
Consequently, the court of criminal appeals overruled the factual sufficiency standard of review as
set forth in Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996) and its progeny. See id.2
         Legal sufficiency is the constitutional minimum required by the Due Process Clause of the


         1
             443 U.S. 307, 315B16, 99 S. Ct. 2781, 2786B87, 61 L. Ed. 2d 560 (1979).
         2
          Appellant did not have the benefit of the court of criminal appeals’ opinion in Brooks at the time he
submitted his brief on the issue of factual sufficiency. We construe Appellant’s issue liberally in the interest of justice
and review it under the Jackson standard. See, e.g., White v. State, 50 S.W.3d 31, 40 (Tex. App.–Waco 2001, pet.
ref’d).
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Fourteenth Amendment to sustain a criminal conviction. See Jackson, 443 U.S. at 315–16, 99 S.
Ct. at 2786–87; see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.– San Antonio 1999, pet.
ref=d). 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 Jackson,
443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim.
App. 1993). The evidence is examined in the light most favorable to the verdict. See Jackson, 443
U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. 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).
        The sufficiency of the evidence is measured against 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
is tried.” Id.
        In the case at hand, to support Appellant’s conviction for possession of contraband, the State
was required to prove, among other things, that Appellant exercised control, management, or care
over the cellular telephone. See, e.g., Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App.
2005). The State must establish, to the requisite level of confidence, that the accused=s connection
with the contraband was more than just fortuitous. See id. at 406. When the accused is not in
exclusive possession of the place where the contraband is found, we cannot conclude that he had
knowledge of and control over the contraband unless there are additional independent facts and
circumstances which link the accused to the contraband. Poindexter, 153 S.W.3d at 406. Links
that may circumstantially establish the sufficiency of the evidence to prove that a defendant had
knowing “possession” of contraband include the following: (1) the defendant’s presence when a
search is conducted; (2) whether the contraband was in plain view; (3) the defendant's proximity to
and the accessibility of the contraband; (4) whether the defendant possessed other contraband when
arrested; (5) whether the defendant made incriminating statements when arrested; (6) whether the
defendant attempted to flee; (7) whether the defendant made furtive gestures; (8) whether other
contraband was present; (9) whether the defendant owned or had the right to possess the place

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where the contraband was found; (10) whether the place where the contraband was found was
enclosed; and (11) whether the conduct of the defendant indicated a consciousness of guilt. See
Evans, 202 S.W.3d at 162 n.12; see also Floyd, 494 S.W.2d 828, 830 (Tex. Crim. App. 1973) (fact
that contraband was found in same location that officer saw appellant throw baggie probative that
two items were the same). It is not the number of links that is dispositive, but rather the logical
force of all of the evidence, both direct and circumstantial. See Evans, 202 S.W.3d at 162 n.12.
Ultimately, the question of whether the evidence is sufficient to link the appellant to the contraband
must be answered on a case by case basis. See Whitworth v. State, 808 S.W.2d 566, 569 (Tex.
App.–Austin 1991, pet. ref=d).
       In the instant case, Appellant was observed walking with an unusual gait and demeanor.
Appellant fled when Brown sought to search him. Appellant was seen making a throwing motion
by two witnesses on the ground in the general area near where the cellular phone was located on the
roof of “C” dormitory. Appellant surrendered to the pursuing officers almost immediately after he
was seen making this throwing motion.
       On the other hand, there was testimony supporting that possession of contraband is common
among the two to three hundred offenders residing at the trustee camp. Appellant was searched
when he entered the camp. The roof was not in plain view from the place where Appellant was
seen throwing an unidentified object, and there was no forensic evidence demonstrating that
Appellant possessed the phone. Moreover, Appellant contends that Knox “stopped searching for
evidence as soon as he found the sock containing a cellular telephone.”
       Considering the aforementioned evidence, we note that Knox testified that he searched the
“entire” roof. Neither party elicited testimony from Knox that the sock containing a cellular
telephone was the only item he found. However, given Knox’s testimony concerning the extent of
his rooftop search, the jury could reasonably infer that Knox did not find any other items on the roof
during his search. Furthermore, although there was evidence that Appellant was searched upon his
entry into the camp, there was also evidence that offenders are known to conceal items in their body
cavities and that no cavity search was performed on Appellant.
       Having examined the aforementioned evidence in the light most favorable to the verdict, we
conclude that the jury could have determined beyond a reasonable doubt that Appellant exercised
control, management, or care over the cellular telephone at issue. Therefore, we hold that the

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evidence is sufficient under the Jackson v. Virginia standard to support the trial court’s judgment.
Appellant=s sole issue is overruled.


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


                                                                    SAM GRIFFITH
                                                                       Justice




Opinion delivered October 27, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (DO NOT PUBLISH)

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