                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00244-CR

RODERICK DESHUN CRENSHAW,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                            From the 85th District Court
                                Brazos County, Texas
                          Trial Court No. 10-00182-CRF-85


                           MEMORANDUM OPINION


       A jury found Appellant Roderick Crenshaw guilty of possession of a controlled

substance, namely, cocaine, in an amount of one gram or more but less than four grams,

and the trial court assessed his punishment at ten years’ confinement. This appeal

ensued. We will affirm.

       Officer Crystal O’Rear of the Bryan Police Department testified that on October

25, 2009, at about 3:10 a.m., she observed a vehicle with its doors open on the side of the

street in front of a house. O’Rear stopped her patrol car behind the vehicle, and as she
got out, she saw someone kneeling into the driver’s side area of the car. O’Rear initially

thought it might be a car burglary.

       O’Rear walked to the driver’s side of the vehicle where she could see a man

kneeling. She also observed someone in the passenger seat of the car. O’Rear said,

“Hey, what’s going on,” and the man who was kneeling got out of the car and started

acting “fidgety,” meaning that he was walking around, putting his hands into his

pockets, and avoiding eye contact. This concerned her because, in the past, those acting

“fidgety” have either taken off running or tried to hide something. The man who had

been kneeling identified himself as Crenshaw, and the man in the passenger seat of the

car identified himself as Wesley Moore. Crenshaw said that the car belonged to his

aunt and that they were working on the vehicle. In O’Rear’s opinion, there was not

enough light for them to be working on the vehicle.

       O’Rear was by herself, without backup, so she attempted to take control of the

situation by asking both men to sit on the ground near one another. O’Rear noticed that

when Crenshaw went toward the yard, he made a quick backward pitching motion

with his arm, and she heard a thud. O’Rear immediately thought that something had

been thrown, and she described the thud as a metallic clank-type sound. O’Rear also

said that, out of the corner of her eye, she had seen a blue-colored object fall to the

ground when Crenshaw made the pitching motion. She never saw Moore do anything

that appeared to be a tossing motion or anything that would lead her to believe that he

discarded anything in her presence.




Crenshaw v. State                                                                   Page 2
       At that point, O’Rear called for a second unit to come and assist her. Crenshaw

sat down but continued to act fidgety. He mentioned several times that he wanted to

go in the house and use the restroom, but O’Rear refused to allow him to do that for

safety reasons. Officer Jeremy Elmore then arrived to assist O’Rear, and Crenshaw was

taken into custody and put in the back of the patrol car.

       The in-car video of the encounter was admitted into evidence, but O’Rear

explained that she did not start the recording until after she saw the object being

thrown. The video only shows everything that transpired after that.

       Henry Amen, a forensic scientist for the Texas Department of Public Safety crime

lab in Austin, testified that the crack rocks found by O’Rear after Crenshaw was in

custody contained cocaine and weighed 1.13 grams.

       In his first issue, Crenshaw contends that the evidence is “legally insufficient” to

support his conviction.     Specifically, Crenshaw argues that the evidence failed to

“affirmatively link” him with the cocaine.

       The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

              In determining whether the evidence is legally sufficient to support
       a conviction, a reviewing court must consider all of the evidence in the
       light most favorable to the verdict and determine whether, based on that
       evidence and reasonable inferences therefrom, a rational fact finder 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). This "familiar standard gives full play to the
       responsibility of the trier of fact fairly to resolve conflicts in the testimony,
       to weigh the evidence, and to draw reasonable inferences from basic facts
       to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
       directly and independently to the guilt of the appellant, as long as the

Crenshaw v. State                                                                          Page 3
          cumulative force of all the incriminating circumstances is sufficient to
          support the conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert. denied, 132 S.Ct. 2712

(2012).

          The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson, 443 U.S. 307 at 326.

Further, direct and circumstantial evidence are treated equally:              "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." Hooper, 214 S.W.3d at

13. Finally, it is well established that the factfinder is entitled to judge the credibility of

witnesses and can choose to believe all, some, or none of the testimony presented by the

parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

          The State was required to prove beyond a reasonable doubt that the accused

intentionally or knowingly possessed cocaine in an amount of one gram or more but

less than four grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (c) (West

2010).     To do so, the State had to establish:        (1) the accused exercised control,

management, or care over the substance, and (2) the accused knew the matter possessed

was contraband.       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


Crenshaw v. State                                                                        Page 4
of confidence, that the accused’s connection with the drug was more than just

fortuitous. . . .” Id. at 405-06 (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim.

App. 1995)). Previously, this was referred to as the “affirmative links” rule. See id. at

406. However, the Court of Criminal Appeals has cautioned against use of the term

“affirmative links” as suggesting “an independent test of legal sufficiency” and has

chosen instead to use only the term “‘link’ so that it is clear that evidence of drug

possession is judged by the same standard as all other evidence.” Evans v. State, 202

S.W.3d 158, 162 n.9 (Tex. Crim. App. 2006).

       The rule is designed to protect the innocent bystander from conviction based

solely upon his fortuitous proximity to someone else’s drugs. Poindexter, 153 S.W.3d at

406. The rule simply restates the commonsense notion that a person, such as a father,

son, spouse, roommate, or friend, may jointly possess property like a house but not

necessarily jointly possess the contraband found in that house. Id. Thus, “[w]hen the

accused is not in exclusive possession of the place where the substance is found, it

cannot be concluded that the accused had knowledge of and control over the

contraband unless there are additional independent facts and circumstances which

affirmatively link the accused to the contraband.” Id. (quoting Deshong v. State, 625

S.W.2d 327, 329 (Tex. Crim. App. 1981)).

       Some circumstances that may link a defendant to the controlled substance are:

(1) the defendant’s presence when the search was executed; (2) the contraband was in

plain view; (3) the proximity to and accessibility of the contraband; (4) the defendant

was under the influence of contraband; (5) the defendant’s possession of other

Crenshaw v. State                                                                  Page 5
contraband when arrested; (6) incriminating statements by the defendant when

arrested; (7) attempted flight by the defendant; (8) furtive gestures by the defendant; (9)

there was an odor of the contraband; (10) the presence of other contraband or drug

paraphernalia not included in the charge; (11) the defendant’s ownership or right of

possession of the place where the controlled substance was found; (12) the drugs were

found in an enclosed place; (13) there was a significant amount of drugs; and (14) the

defendant possessed weapons or large amounts of cash. Stubblefield v. State, 79 S.W.3d

171, 174 (Tex. App.—Texarkana 2002, pet. ref’d); see also Olivarez v. State, 171 S.W.3d

283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.); Lassaint v. State, 79 S.W.3d 736,

740-41 (Tex. App.—Corpus Christi 2002, no pet.); De La Garza v. State, 898 S.W.2d 376,

379 (Tex. App.—San Antonio 1995, no pet.). The number of links present is not as

important as the degree to which they tend to link the defendant to the controlled

substance. Stubblefield, 79 S.W.3d at 174; Williams v. State, 906 S.W.2d 58, 65 (Tex.

App.—Tyler 1995, pet. ref’d).

       In Crenshaw’s argument, he notes the absence of several of the above

circumstances, which then leads him to the conclusion that the evidence failed to link

him with the cocaine.     For example, Crenshaw states that the area was not in his

exclusive possession or control; he did not attempt to flee the scene or evade arrest; he

did not try to give a false name or date of birth; the contraband was not in plain view; no

tests were done to verify that he had handled the “mysterious blue box”; he did not

make any incriminating statements when he was arrested; he did not live at the location

and it was not an enclosed space; he was not found with a large amount of cash; and he

Crenshaw v. State                                                                    Page 6
did not indicate a consciousness of guilt. But the absence of some of the circumstances

is not evidence of innocence that must be weighed against the circumstances that are

present. Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App. 1976). The issue is

whether there is sufficient evidence linking Crenshaw to the cocaine to support the

reasonable inference that he was intentionally and knowingly in possession of the

cocaine. See id.

       Here, O’Rear testified that when she first approached Crenshaw and the car,

Crenshaw started acting “fidgety.” When Crenshaw went toward the yard, he then

made a quick backward pitching motion with his arm. O’Rear heard a thud and

immediately thought that something had been thrown. O’Rear also saw a blue-colored

object fall to the ground. O’Rear never saw Moore do anything that would lead her to

believe that he discarded anything in her presence.

       Once Crenshaw was in custody, O’Rear immediately went and looked to see

what Crenshaw had thrown. She found a white box with an open blue lid and what she

believed to be three crack rocks beside the box. The blue color of the lid was consistent

with the blue color that she had seen out of the corner of her eye earlier. She also found

two more crack rocks in the street by the curb, not far from the other three crack rocks,

and a crack pipe in the grass.      O’Rear stated that the white box was capable of

containing the crack rocks that she found, and where she found the crack rocks was

consistent with the rocks having come out of the box after it had fallen to the ground.

No actual analysis was done of the white box and blue lid to determine whether it had

held crack cocaine. When asked what led her to believe that the container and the crack

Crenshaw v. State                                                                   Page 7
rocks had not been sitting there all night, O’Rear replied that the grass was very dewy

that morning, yet the box and the crack rocks were dry and clean.

        O’Rear also testified she believed Crenshaw may have been intoxicated because

his eyes were “squinty” and he had a dazed appearance.                        O’Rear admitted that

Crenshaw could have just been tired at that hour of the morning; however, she noted

that being in handcuffs is not comfortable, yet Crenshaw was “able to practically fall

asleep in the backseat of the patrol car.” Furthermore, on the in-car video, Crenshaw

said “lock me up” while O’Rear was searching and finding crack rocks.

        Viewing the evidence in the light most favorable to the verdict, we conclude that

a rational fact finder could have found beyond a reasonable doubt that Crenshaw

intentionally and knowingly possessed cocaine in an amount one gram or more but less

than four grams.1 The evidence is thus sufficient to support Crenshaw’s conviction, and

we overrule his first issue.

        In his second issue, Crenshaw contends that the evidence is factually insufficient

to support his conviction. The Court of Criminal Appeals has overruled Clewis v. State,

922 S.W.2d 126 (Tex. Crim. App. 1996), and factual-sufficiency review. See Brooks v.

State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.); see also Lucio, 351

S.W.3d at 895; Griego v. State, 337 S.W.3d 902, 903 (Tex. Crim. App. 2011). The court


        1 Crenshaw argues otherwise by stating that Evans v. State, 185 S.W.3d 30 (Tex. App.—San
Antonio 2005), rev’d, 202 S.W.3d 158 (Tex. Crim. App. 2006), is instructive. Id. at 37 (holding that court
did not know whether appellant was “innocent bystander” when evidence failed to link appellant to
cocaine other than by his presence and its proximity). But the Court of Criminal Appeals reversed the
court of appeals decision in Evans, concluding that “the circumstantial evidence, when viewed in
combination and its sum total, constituted amply sufficient evidence connecting appellant to the actual
care, custody, control or management of the cocaine in front of him.” Evans v. State, 202 S.W.3d 158, 166
(Tex. Crim. App. 2006).

Crenshaw v. State                                                                                  Page 8
held that the Jackson v. Virginia legal-sufficiency standard is the only standard a

reviewing court should apply in determining the sufficiency of the evidence. Brooks,

323 S.W.3d at 895. We just concluded in Crenshaw’s first issue that the evidence is

sufficient under the Jackson v. Virginia standard; thus, we overrule Crenshaw’s second

issue.

         Having overruled both of Crenshaw’s issues, we affirm the trial court’s

judgment.



                                               REX D. DAVIS
                                               Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 25, 2012
Do not publish
[CR25]




Crenshaw v. State                                                               Page 9
