                        NUMBER 13-12-00709-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

JAMES LOVEN BROWN,                                                      Appellant,

                                         v.

THE STATE OF TEXAS,                                                     Appellee.


                  On appeal from the 156th District Court
                       of Live Oak County, Texas.


                        MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Perkes and Longoria
              Memorandum Opinion by Justice Perkes
      Appellant James Loven Brown appeals his conviction for possession of a

controlled substance (methamphetamine between one and four grams), a third-degree

felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.102, 481.115(c) (West, Westlaw

through 2013 3d C.S.); TEX. PENAL CODE ANN. § 12.34 (West, Westlaw through 2013 3d

C.S.). Appellant pleaded not guilty. The jury found him guilty and assessed punishment
at four years’ confinement in the Texas Department of Criminal Justice, Institutional

Division. By one issue, appellant challenges the sufficiency of the evidence. We affirm.

                    I.      FACTUAL AND PROCEDURAL BACKGROUND

        Officer Samantha Bacon of the George West Police Department testified that she

pulled appellant over during a traffic stop for failure to signal a turn. Leeann Cuevas was

sitting in the passenger seat.          Officer Bacon noted that appellant appeared to be

nervous, had glossy eyes, and the vein in his neck was “pulsating.” Appellant consented

to a pat down and to a search of his vehicle. Officer Amber Ramirez, of the George West

Police Department, arrived on the scene and assisted the search.

        Officer Ramirez testified that she found an envelope between the center console

and the passenger side seat.            The envelope contained a vehicle registration, four

baggies of methamphetamine, a napkin with “residue”, and a glass pipe containing

“residue”.   1   A two and one-half inch straw with white “residue” in it was located

underneath Cuevas’s jacket on the passenger seat. In addition, a second glass pipe

was discovered in a paper sack underneath the back seat on the driver’s side. When

Officer Bacon advised appellant of his rights, appellant asked what would happen if he

“took the wrap for this.”

        Officers Bacon and Ramirez seized appellant’s and Cuevas’s phones as evidence.

Appellant consented to a search of his cell phone. A search warrant was obtained for

Cuevas’s phone.2 Text messages from appellant’s phone revealed that, just prior to


        1 The vehicle was registered to James Brown, appellant’s father.
        2  Officer Bacon identified twelve separate drug-related text messages on Cuevas’s phone that
occurred on the day before and during the arrest, indicating that she had spent her time buying drugs and
delivering them to people during that period of time.
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being stopped appellant and Cuevas were on their way to purchase “1 G” from a person

identified by Officer Bacon as Lenny Lopez.3 Further investigation of the text messages

revealed that appellant attempted to purchase narcotics from Cuevas the previous day,

that appellant had Cuevas’s pipe, and that Cuevas had appellant’s scale.4

                             II.      SUFFICIENCY OF THE EVIDENCE

        Appellant argues the evidence is legally insufficient to support his conviction.

Specifically, appellant contends the evidence is legally insufficient to show that he

“intentionally or knowingly possess[ed] a controlled substance . . . .” We disagree.

A.      Standard of Review

        “The standard for determining whether the evidence is sufficient to support a

conviction is ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original);

Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). The

fact-finder is the exclusive judge of credibility of the witnesses and of the weight to be

given to their testimony. Brooks, 323 S.W.3d at 899; Lancon v. State, 253 S.W.3d 699,



        3 Lopez texted appellant to let him know when he was coming. Approximately four minutes before
being stopped by the police, appellant texted Lopez: “Heading that way.” Officer Bacon identified “1 G”
to mean one gram of narcotics.

        4 In a separate proceeding, Leeanne Cuevas signed a “Stipulation of Evidence” in which she
admitted that she “did then and there intentionally or knowingly possess a controlled substance, namely,
methamphetamine, in an amount of one gram or more but less than four grams.” In addition, she signed
a “Plea Agreement” in which she stipulated to the facts of the offense in the indictment in exchange for the
State’s recommendation of the following: “OFFENSE: Poss. Cont. Subst. PG 1.”” Both exhibits were
admitted into evidence, without objection.
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707 (Tex. Crim. App. 2008); Linden v. State, 347 S.W.3d 819, 821 (Tex. App.—Corpus

Christi 2011, pet. ref’d). Reconciliation of conflicts in the evidence is within the fact-

finder’s exclusive province. Trevino v. State, 228 S.W.3d 729, 760 (Tex. App.—Corpus

Christi 2006, pet. ref’d). We resolve any inconsistencies in the testimony in favor of the

verdict. Brooks, 323 S.W.3d at 922.

       We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773

(Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)). Such a charge is 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.

B.     Applicable Law

       In order to be found guilty of possession of a controlled substance, the State bears

the burden of proving that: (1) the accused exercised care, control, or management over

the substance and that (2) the accused knew that the substance was contraband. TEX.

HEALTH & SAFETY CODE ANN. §§ 481.102, 481.115(c); Poindexter v. State, 153 S.W.3d

402, 405 (Tex. Crim. App. 2005). “Whether the evidence is direct or circumstantial, ‘it

must establish, to the requisite level of confidence, that the accused’s connection with the

drug was more than just fortuitous.’” Poindexter, 153 S.W.3d at 405–06 (quoting Brown

v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)). This is the so-called “affirmative

links” rule. Poindexter, 153 S.W.3d at 405–06. For the evidence to be sufficient, the


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State does not need to disprove all reasonable alternative hypotheses that are

inconsistent with guilt; rather, this Court considers only whether the inferences necessary

to establish guilt are reasonable based on the cumulative force of all the evidence when

considered in the light most favorable to the verdict. Wise v. State, 364 S.W.3d 900, 903

(Tex. Crim. App. 2012).

       The factors by which an accused may, under unique circumstances of each case,

be sufficiently “linked” to the contraband include: (1) the defendant’s presence when a

search is conducted; (2) whether the contraband is in plain view; (3) the defendant’s

proximity to and accessibility to the contraband; (4) whether the defendant exhibited signs

of being under the influence of narcotics when arrested; (5) whether the defendant

possessed other contraband or narcotics when arrested; (6) whether the defendant made

incriminating statements when arrested; (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 were present; (11)

whether the defendant owned or had the right to possess the place where the drugs were

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 a consciousness of guilt. Evans v. State, 202 S.W.3d 158, 162

(Tex. Crim. App. 2006); Lopez v. State, 267 S.W.3d 85, 92 (Tex. App.—Corpus Christi

2008, no pet.). It is not the number of links that is dispositive, but rather the logical force

of all the evidence, direct and circumstantial.      Evans, 202 S.W.3d at 161. It is not

necessary that every fact directly and independently point to the defendant’s guilt, but it


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is enough if the conclusion is warranted by the combined and cumulative force of all

incriminating circumstances. Lopez, 267 S.W.3d at 95. Although parties may disagree

about the logical inferences that flow from undisputed facts, “[w]here there are two

permissible views of the evidence, the fact-finder’s choice between them cannot be

clearly erroneous.” Evans, 202 S.W.3d at 163 (quoting Anderson v. City of Bessemer,

470 U.S. 564, 574 (1985)).

       Appellant was also charged under the law of parties, which makes a person

criminally responsible for an offense committed by the conduct of another if he acts with

intent to promote or assist the commission of the offense. TEX. PENAL CODE ANN. § 7.02

(a)(2) (West, Westlaw through 2013 3d C.S.); Casanova v. State, 383 S.W.3d 530, 534–

35 (Tex. Crim. App. 2012). While mere presence at the scene, or even flight, is not

enough to sustain a conviction, it is a circumstance tending to prove guilt which, with other

facts, may be sufficient to show that the accused was a participant. McAfee v. State,

204 S.W.3d 868, 879 (Tex. App.—Corpus Christi 2006, pet. ref’d); Vargas v. State, 883

S.W.2d 256, 263 (Tex. App.—Corpus Christi 1994, pet. ref’d).

                                     III.   DISCUSSION

       Viewing all evidence in the light most favorable to the verdict, we hold that there is

sufficient evidence from which a rational trier of fact could find beyond a reasonable doubt

that appellant was sufficiently “linked” to the contraband, and that appellant was guilty of

the offense of possession of methamphetamine. See Casanova, 383 S.W.3d at 534–

35; Poindexter, 153 S.W.3d at 405–06. Several of the above listed factors were present

during the search and arrest. See Evans, 202 S.W.3d at 162; Lopez, 267 S.W.3d at 92.


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Appellant’s physical appearance at the time he was stopped showed that he had glossy

eyes, that a vein in his neck was “pulsating,” and that he appeared nervous.          The

narcotics, a napkin and pipe with “residue”, and the auto registration were all in an

envelope in the car he was driving; appellant was within a close proximity of the envelope;

another pipe and a straw with “residue” were located inside appellant’s car; text messages

taken from appellant’s and Cuevas’s phones indicated that appellant tried to acquire

narcotics from Cuevas on the day before the stop and that they shared drug

paraphernalia; and appellant made an incriminating statement at the time of his arrest.

From this evidence, a rational trier of fact could find beyond a reasonable doubt that

appellant exercised care, control, and management over the methamphetamine. See

Poindexter, 153 S.W.3d at 409–12 (finding defendant owned premises, based on a utility

bill, where narcotics were found, that narcotics were easily accessible to defendant, and

that contraband could only be recovered by occupant of premises were relevant in finding

defendant possessed narcotics); Lopez, 267 S.W.3d at 96–97 (considering relevant that

appellant owned the vehicle where narcotics were found, made incriminating statements

at arrest, and was at the scene during the search).

      In addition, we hold the evidence is sufficient to establish that appellant is also

guilty under the law or parties. See Casanova, 383 S.W.3d at 534–35. Specifically, the

evidence shows that Cuevas intentionally or knowingly possessed methamphetamine

and that appellant, acting with intent to promote or assist the commission of the offense,

solicited, encouraged, directed, aided, or attempted to aid Cuevas to commit the offense.

See Vargas, 883 S.W.2d at 263 (holding that facts showing defendant helped conceal


                                            7
narcotics and was cooperative with primary actors were relevant in finding defendant to

be a party of the possession of narcotics); see also Stroman v. State, 69 S.W.3d 325,

330–31 (Tex. App.—Texarkana 2002, pet. ref’d) (determining that facts showing the

defendant was within close proximity to narcotics, narcotics were hidden among his

things, and that he was aware of primary actor’s occupation as a narcotics dealer were

relevant in finding defendant guilty as a party to possession). Most notably, numerous

texts messages from appellant’s and Cuevas’s phones further showed knowledge of the

drug-related activities on the day before and up to the time of arrest. The evidence was

therefore legally sufficient to establish that appellant was not an unknowing participant to

the happenings of the day.

       We overrule appellant’s sole issue on appeal.

                               IV.    CONCLUSION

       We affirm the trial court’s judgment.

                                                    GREGORY T. PERKES
                                                    Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
3rd day of July, 2014.




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