                                 5S7-/5
                                 IN    THE
                                                                      ORIGINAL
                TEXAS    COURT   OF    CRIMINAL     APPEALS
                            AUSTIN,         TEXAS

                                                                          FILED IN
                                                                 COURT OF CRIMINAL APPEALS

                           JASON       JACKSON                           JUL 10 2015
                                      VS.
                                                                     Abel Acosta, Clerk
                           STATE      OF    TEXAS




               PETITION    FOR   DISCRETIONARY         REVIEW




                On Discretionary Review From The
              COURT OF   APPEALS      FOURTEENTH      DISTRICT
                   OF    TEXAS   ,    HOUSTON,      TEXAS
                         No.   14-14-00150-CR



            On Appeal From The 176th District Court
            Harris County, Texas Trial Cause 1333636




                                                      JASON   JACKSON,    PRO-SE
                                                      TDCJ-CID#    1940366
                                                      COFFIELD    UNIT
                                                      2661 PM 2054
                                                      TENNESSEE COLONY,TX       75884




                                                        ItiCElVED IN
                                                      ffifflOFCRIMINAL APPEALS
EVIDENTIARY HEARING REQUESTED
                                                            JUL 10 2011
                         TABLE   OF    CONTENTS

                                                                         Page

INDEX OF AUTHORITY        ...             ...          ...                ii

STATEMENT REGARDING ORAL ARGUMENT                            ...          iii

STATEMENT OF THE CASE ...        •••       •          ••*•         •••    iii

STATEMENT OF PROCEDURAL HISTORY ...                                       iii

QUESTION[S] PRESENTED FOR REVIEW         .....                     ...     1

           WHETHER THE FOURTEENTH COURT OF APPEALS ERRED IN
           FINDING THE EVIDENCE SUFFICIENT TO PROVE BEYOND
           A REASONABLE DOUBT THAT PETITIONER KNOWINGLY AND
           INTENTIONALLY POSSESSED A CONTROLLED SUBSTANCE
           WITH INTENT TO DELIVER?                                         1

           WHETHER THE JUSTICES OF THE FOURTEENTH COURT OF
           APPEALS HAVE DISAGREED ON A MATERIAL QUESTION OF
           LAW NECESSARY TO THIS COURT'S DECISION?                         1

ARGUMENT   .....                                                           2

PRAYER FOR RELIEF....                                               ... 11

APPENDIX   ...     [ OPINION: -COURT.OF.APPEALS.]..                        12




                                  -l-
                               INDEX   OF AUTHORITIES
Cases                                                                   Page
Allen v. State,249 S.W.3d'68(Tex.App.-Austin,2008,no pet.)              7,8,9
Avila v. State,15 S.W.3d 568(Tex.App.-Houston[14th Dist.]
2000 no pet.)                                                           6
Brooks v. State,323 S.W.3d 893(Tex.Crim.App.2010)                       3
Brown     v.    STATE, (911 S.W.2d       744( Tex .Crim. App. 1995')'   6
Evans v. State 202 S.W.3d 158(Tex.Crim.App.2006)                        5,6,9
Fisher v. State,887 S.W.2d 49(Tex.Crim.App.1994)(Op.on rehrg) 4
Flores v. State,100113 TXCA 14,14-12-00623-CR,Oct.1,2013)                   9
Gear v. State,340 S.W.3d 743(Tex.Crim.App.2011)                         4
Humason v. State,699 S.W.2d 922(Tex.App.-Houston!1st Dist.]
1985,aff'd, 728 S.W.2d 363(Tex.Crim.App.1987)                           6,10
Isassi v. State,330 S.W.3d 633(Tex.Crim.App.2010)                       4
Jackson v. Virginia,443 U.S. 307,99 S.Ct. 2781,61 L.Ed.2d
560(1979)                                                               4
Medina v. State,2011 WL 6013094(Tex.App.-Houston[14th Dist]
2011,pet.ref'd.)                                                        9
Oaks v. State,642 S.W.2d 174(Tex.Crim.App.1982)                         8
Olivarez v. State,171 S.W.3d 283(Tex.App.-Houston[14th Dist]
2005,no pet.)                                                           6
Poindexter v. State,153 S.W.3d 402(Tex.Crim.App.2005)                   4
U.S. v. Phillips, 496 F.2d 1395(5th Cir.1974)                           7
U.S. v. Rojas Alvarez, 451 F.3d 320(5th Cir.2006)                       7

                                       STATUTES

TEX.HEALTH     AND    SAFETY   CODE:

Art. 481.112                                                            3
TEX.PENAL      CODE

Art. 6.01                                                     ~         3
Art. 46.04                                                              3
                                        RULES

TEX.R.APP.P.:

RULE    68.4(a)                                                         i
RULE    68.4(b)                                                         ii
RULE    68.4(c), (d), (e)                                               iii
RULE    68.4(f)                                                         1
RULE    66.3(e)                                                         1



                                         -li-
          STATEMENT REGARDING ORAL ARGUMENT                         T.R.A.P. 68.4(c)

Oral argument is requested as it will aid the Court in deciding

this unique set of facts herein.

                  STATEMENT OF THE CASE                    T.R.A.P.        68.4(d)

     Petitioner       was charged by indictment in cause No. 1333636 with

the     offense       of      possession       of      a    controlled substance, namely

cocaine     weighing          between      one        and    four        grams, with intent to

deliver.        The offense was allegedly committed on January 18,2012.

(Clerk's Record,10).             The indictment included one enhancement

alleging a prior felony conviction. (Id.) Petitioner filed a

motion to suppress statements made in the course of custodial

interrogation. (Id.,63). The motion was granted.(Reporter's Record

IV,7-8,39).

 Petitioner entered a plea of not guilty and a jury was empanelled.

(Id.,9).        The     jury     returned        a     verdict           of guilty.(Id.,99).

On     January        29,2014,after        a     hearing           on     punishment,the Court

found     the     enhancement,       paragraph              to     be true and sentenced him

to a term of 5 years in the Texas Department of Criminal Justice

Institutions Division.             (Clerk's Record,88)

           STATEMENT OF PROCEDURAL HISTORY                          T.R.A.P.    68.4(e)

      Petitioner        was     convicted        in        cause        1333636 with possession

of a controlled substance (cocaine)                         between one and four grams, .

with     intent        to     deliver.     On January 29,2014 after a hearing on

punishment he was sentenced to 5 years                              in      prison.   He   timely
appealed. No motion for rehearing was filed. The Fourteenth Court
of APPEALS AFFIRMED ON April 16,2015. An extension of time to file

PDR was granted until July |7th,2015 making this timely submitted.



                                               -in-
                                 QUESTION PRESENTED FOR REVIEW T.R.A.P.                  68.4(f)
WHETHER THE FOURTEENTH COURT OF APPEALS ERRED IN FINDING THE
EVIDENCE SUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT
PETITIONER KNOWINGLY AND INTENTIONALLY POSSESSED A CONTROLLED
SUBSTANCE WITH             INTENT TO DELIVER?


T.R.A.P.          66.3(e)
WHETHER THE JUSTICES OF THE FOURTEENTH COURT OF APPEALS HAVE
DISAGREED ON A MATERIAL QUESTION OF LAW NECESSARY TO THIS COURT'S
DECISION?


Statement          Of    Facts

     At     3:54        a.m.     on January 18,2012 Sheriff's deputy Herlong was

dispatched to a motel                    in     Houston,Texas          to   meet    a   caseworker
from       Children's            Protective          Services(CPS).(         RR,IV,10-12).     The

CPS        caseworker          Marcil         Patrick          had been called at 3:30 a.m.        to

investigate a tip that drugs were being sold                                from    a   motel room
where young children were present.(Id.,64,69) Herlong and Patrick

knocked           on     the     door     of the motel room and asked permission to

enter. (Id., 15) Looking into the room,Herlong saw an adult male

an        adult        female,and        two very young children.(Id.,16).According

to        Herlong        the     woman        gave       oral     consent to enter.(Id.,23-24)
 The woman(Shelly Fisher) said,"Let us put some clothes on first,"
but left the door open.(Id.,32). The man( Jackson) appeared to be
walking away from a coatrack beside the sink in an area outside
the bathroom. Herlong said the coat seemed to be moving as if
Jackson           had     just     handled           it.(ID.,17).       using      a flashlight,
Herlong           was     able     to     see        a    scale by the sink. For safety he
ordered petitioner to approach him.(ID.,18)
 Herlong detained petitioner and turned on the light in the room.
At that point he observed powder residue on the scale.(Id.,19).
In a pocket of a coat on the coatrack Herlong found a pill container
with plastic baggies holding more powder.(Id.,20). Herlong could
not say if the coat was a man's or a woman's coat; he admitted
                                                         -1-
that the drugs found in the pocket could possibly have belonged

to Shelly„Fisher.(Id.,25-27). He did not search Fisher's purse

eventhough the original call slip read "investigate Shelly Fisher

who is selling drugs                with     her       boyfriend     and has a 2-month old

and     a    2-year old in the room".(Id.,34-35). He also did not make
a     determination          if the room had been rented to Fisher.(Id.,25).

    Deputy      Alan      Whitlock         who     was    dispatched to the motel after
Herlong and the CPS caseworker had already arrived, found on the
counter       by    the      sink a scale with plastic baggies(Id.,44,45-46)
which field tested positive for cocaine. (Id.,47). Fisher and
petitioner         were      both       arrested         and the children were placed in
CPS     custody.(Id.,)            Fisher         was     taken    into custody on a felony
warrant       but      was    not       charged        with     possession of the drugs in

the room.(Id., 59,61). While the room was rented in Fisher's name

,(Id.,59) Whitlock could not say if the coat was a man's or a woman's
(Id.,60) and Whitlock did not test the scale or baggies for prints
and took no picture of the coat.(Id., 53-55).

ARGUMENT


    Where a defendant is not in exclusive control of the place where

drugs        are    found,        the    State         must     show sufficient affirmative
links between the defendant and the contraband to meet its burden

of     proof.       Mere     presence        by        itself     is insufficient to prove
possession.

     Being     present       in     a room rented by Shelly Fisher where police
received a tip that she was selling drugs from the motel is not
sufficient to constitute an affirmative link to petitioner and the
contraband. Petitioner was seen near a coatrack where drugs were

later discovered in a coat hanging there is also conjecture at


                                                   -2-
best.       It    is    a gross miscarriage of justice where mere presence

alone without more tends to establish the State's case.

LEGAL SUFFICIENCY REVIEW STANDARD

 The offense of possession of a controlled substance with intent

to deliver        is defined as follows:

                 TEX.HEALTH AND SAFETY CODE 481.112

                 (a) a person commits an offense if the person
                 knowingly manufactures, delivers, or possesses
                 with intent to deliver a controlled substance
                 listed in Penalty group 1.

                 TEX.PENAL CODE 6.01

                 (b) Possession is a voluntary act if the possessor
                 knowingly obtains or receives the thing possessed
                 or is aware of       or in control of the thing for a
                 sufficient time to permit him to terminate his
                 control.

 Petitioner moved for an instructed verdict                     on   the   ground that

the evidence did not establish sufficient affirmative links to

prove possession beyond a reasonable doubt. The motion was denied.
(RR,IV,84).            Petitioner    did    not       contest the State's witnesses'
testimony         that     Shelly    Fisher consented to their entry into the
motel       room.(Id.,15,32).         Hence the issue on appeal is the narrow

one of whether the evidence was sufficient to prove he                       knowingly
obtained or received the cocaine or was aware that he had control
of    the        cocaine for a sufficient time to permit him to terminate
control while having the intent to deliver the same.

     This    Court        has   overruled      previous     line of cases affording
factual sufficiency review and                    stated     that    Legal-sufficiency
review       is     the     only    standard      a    reviewing Court need apply.
Brooks v. State,323 S.W.3d 893,912(Tex.Crim.App.2010).

                                             -3-
Therefore the trial court's ruling on petitioner's instructed

verdict motion       should            be    reviewed      by      looking at   the relevant

evidence in the light most favorable to the verdict and determining

whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v.

Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

Gear v. State,340 S.W.3d 743,746(Tex.Crim.App-2011). Deference

must    be   given        to    the         finder of fact's judgment of the weight

and credibility of the evidence. Isassi v. STATE,330 S.W.3d 633,

638 (Tex.Crim.App.2010)

                  TEST FOR AFFIRMATIVE                LINKS   TO   CONTRABAND

 A legal sufficiency analysis begins by examining the indictment

as incorporated in the court's charge to the jury. Fisher v. State
887     S.W.2d    49,53(Tex.Crim.App.1994)(Op.on                      rehearing).     In    the

present      case,       the     trial,       court    charged the jury on possession
in relevant part as follows:

             "Possession" means actual care,                    custody,   control,    or
             management.         ...
                Possession is a voluntary act if the possessor
             knowingly obtains or receives the thing possessed or
             is aware of his control of the thing for a sufficient
             time to permit him to terminate his control.(CR,79-80)
 To     prove     unlawful        possession          of   a controlled substance, the
State     must     show        that     the defendant 1) exercised care, custody

or     management over the substance; and 2) knew that the substance
was contraband. Poindexter v. State,153 S.W.3d 402,405(Tex.Crim.

App.2005).        This     may        be established by direct or circumstantial
evidence, but the evidence must show that the defendant's connection

to the controlled substance is more than fortuitous. Id. at 405

-406. Mere presence at a location where drugs are found is not


                                                -4-
sufficient to prove that a defendant exercised care, custody, or

control. Evans v. State,202 S.W.3d 158,162(Tex,Crim.App.2006).

Affirmative            links      between the defendant and the contraband must

be    shown       to      prevent           convicting a bystander whose proximity to

the    drugs        may      be    the        result of happenstance. Id.,at 161-162.

 In the present case, the drugs were found in a motel room

rented     by       Shelly        Fisher.(RR           IV,59).     The     original call slip

dispatching            the     deputies to the motel indicated that drugs were

being sold by Shelly Fisher in the motel room with her boyfriend
and children.(Id.,34). The powder cocaine was found in the pocket

of a coat which the deputies could not identify as a man's or a

woman's.(Id.,             26-27,60).              Petitioner     was     present    in   the room

with Fisher and her children,                        but the State's witnesses did not

see     petitioner            actually            holding,     touching,     or doing anything
with the cocaine.              (Id.,        17).

      The first witness on the scene, Deputy Herlong,                              simply assumed

petitioner was connected to the drugs; Herlong thought that since
the     coat      appeared             to    be     moving, petitioner must have been in
contact with the coat. (Id.,20). But Herlong did,not see petitioner

do     anything         with       the       coat     and could not even say if the coat
belonged to him or Fisher.(Id., 26-27, 60). The coat was hanging
on     a   rack        next       to        the bathroom and it is possible petitioner

could have brushed by the coat on his way to or from the bathroom
or the sink. Herlong's testimony about the coat was uncontradicted;
however,        a      factfinder             is    not   bound    to accept uncontradicted
testimony,, much less any inferences that purportedly flow from it.
Evans,     202 S.W.3d at 162.

 Where, as here, the accused is not in exclusive control of the place


                                                      -5-
where the evidence is found,               it cannot be presumed that he or

she had knowledge or control of the contraband.                    Brown v. State

911        S.W.2d     744,747(Tex.Crim.App.1995).          Additional     independent

facts        and     circumstances      must    be shown to link the evidence       to

the accused.          Avila v. State,15 S.W.3d 568,673(Tex.App.-Houston

[14th Dist.]2000,no pet.).                 "Possession     means   more    than   just

being        where     the     action    is.   It    involves dominion and control

over the thing allegedly possessed. Affirmative links may be shown

by circumstantial evidence, but strong suspicion or even probability

will not suffice." Humason v. State,699 S.W.2d 922,923(Tex.App.-

Houston[lst Dist.]1985,aff'd, 728 S.W.2d 363(Tex.Crim.App.1987).

      To     evaluate        whether    such affirmative links have been shown,

the        Court     has     set out an extensive list of      factors as follows:

  l)was the defendant present when the search was conducted;
  2)was the contraband in plain view;
  3)was the defendant near accessible contraband;
  4)was the defendant under the influence of drugs when arrested;
  5)did the defendant possess other drugs when arrested;
  6)did the defendant make incriminating statements;
  7)did the defendant attempt to flee;
  8)did the defendant make furtive gestures;
  9)was there an odor of contraband;
 10)were other drugs or paraphenalia present;
 ll)did the defendant have the right to possess the place where the
       drugs were found;
 12)was the place where the drugs were found enclosed;
 13)was the defendant found with a large amount of- cash;
 14)did the defendant's conduct indicate a consciousness of guilt.
Olivarez v. State, 171 S.W.3d 283,291(Tex.App.-Houston[14th Dist.]

2005,no pet.); Evans,202 S.W.3d at 162,n. 10.




                                               -6-
                      COURT    OF    APPEALS    ERRED    IN    FINDING
                SUFFICIENT         AFFIRMATIVE       LINKS    IN   THIS   CASE


  Applying      the    above        factors     to the facts of the present case

the Court of Appeals erred. Petitioner was present when the search

was conducted. The drugs were not in plain view/but in the pocket

of a coat hanging on a coatrack. Petitioner was near the coat,

according to the State's witness,                but the drugs in the pocket were

not immediately accessible. There'was no evidence that petitioner

was     under   the     influence       of drugs at the time.              He possessed no

other narcotics.       There was no evidence admitted as to incriminating

statements by petitioner. He made no attempt to flee and made no

furtive     gestures.        There     was no evidence of odor of contraband.

Other     paraphernalia,           i.e.,the     scale and baggies, were present,

but there was no evidence that he owned the coat or had a key to

the motel room. Petitioner was not shown to be in possession of a

large amount of cash, and did nothing to indicate a consciousness

of guilt.

 The above factors for the most part do not establish the affirmative

links needed to prove possession beyond a reasonable doubt. The only

factors     that      tend    to     connect petitioner to the contraband are

that he was present in the motel room; he was seen near the coat

where the drugs were found; and drug paraphernalia such as scales

and baggies were visible in his proximity. But mere proximity to
contraband       is    not    sufficient        to     prove the element of knowing

possession. U.S. v. Phillips,496 F.2d 1395,1397(5th Cir.1974).
  Further,      where contraband is in a hidden place , the State must

show that the defendant was aware of the place and its contents.

Allen v. State,249 S.W.3d 680,693(Tex.App.-Austin,2008,no pet.);

U.S. v. Rojas Alvarez,451 F.2d 320,334(5th Cir.2006).

                                               -7-
 In the instant case the State offered no evidence that petitioner

was aware of the drugs in the coat pocket other than Deputy Herlong's

supposition that 1) the coat was moving because petitioner had done

something with the coat; and 2) that if petitioner had done something

with the coat,        he must have known what was in.the pocket.       Herlong did

not say he saw petitioner touch the coat or reach for the pocket.

Herlong       could       offer    nothing   more conclusive than speculation.

 Further,       the presence of the scale and baggies in plain view should

not be determinative. The original call for service indicated that

Shelly       Fisher       was selling drugs with her boyfriend and children

in the motel room.           (RR ,IV,34 ). However,    a defendant does not become

a party to joint possession of contraband even if he or she has

knowledge of an offense being committed by another. Allen,249 S.W.3d

at 698; Oaks v. State,642 S.W.2d 174,177(Tex.Crim.App.1982). Evidence

that     merely tends to show a defendant has knowledge that cocaine

is present is not of itself sufficient to prove the requisite mental

state for exercise of care, custody, and control. Allen,248 S.W.3d

at    703.

 In Allen the police observed drug transactions by a male suspect at

an Austin apartment and obtained a search warrant. When they executed

the     warrant,      they        found a female present in the apartment with

marijuana in plain view. They located cocaine out of view in kitchen

cabinets and charged the female suspect with possession of cocaine.

The     court      held     these facts to be insufficient to affirmatively

link her with the cocaine.              248 S.W.3d at 684-686,704. Just as in

Allen ,       in    the     present case the original reason for the police

to     arrive at the scene was the alleged behavior of someone other

than petitioner. And as in Allen, petitioner's physical proximity

                                             -8-
to   the   contraband     led     to    his     being charged with posssession.

Hence the logic of Allen suggests that the evidence of presence

in proximity to contraband was not sufficient to prove petitioner's

guilt.

 It must be conceded that         in   Flores v.    State,   100113 TXCA 14,   14-12-

00623-CR, Oct.1,2013)      this Court explicitly declined to follow Allen

and another case reaching a similar result, Medina v. State, 2011

WL 6013094(Tex.App.-Houston[1st Dist.]2011,pet,ref'd). However, the

facts of Flores distinguish it from the present case.                In Flores    the

defendant was observed making a number of hand-to-hand transactions
     i


earlier on the day of his arrest. The defendant was then seen to

enter the premises with a key. Once inside,he met other individuals

at   the   door    and   engaged       in a further apparent drug transfer.

When he was arrested,      he was found to be in possession of $600 and

a medallion of a type favored by drug traffickers. Taken together

these facts in Flores, generate that degree of 'logical force'that

Cochran,J.,pointed to in Evans as sufficient to prove care, custody^

and control.      202 S.W.3d at    166.   But none of these are present in

the instant case. Without them, the 'logical force' to ©rove posses s

-ion is lacking.

                     LOGICAL    FORCE   LACKING ALONG WITH
               UNIFORMITY OF COURT OF APPEALS DECISIONS .

 The "Logical Force" discussed by Honorable Cochran,J. of the Court
in Evans is surely lacking here along with the uniformity of decisions
rendered in similar situations by both the First and Fourteenth Courts

of Appeals. Specifically, the Fourteenth Court of Appeals has failed
to   apprehend a material question in this whole equation; Shelly
Fisher was the subject of the investigation.(RR IV,59) The room was
hers. Herlong's conjecture is the 'sole' thread that ties this case.

                                          -9-
All contents ,in the room,              absent some substantive (credible) proof

belonged to Fisher.(RR IV,59) Did the State get two for the price

of one? Fisher was wanted on a felony warrant,which she went to jail

for. Did the State, in turn,              ignore her involvement here and give

petitioner this possession with intent to deliver case? If lady

Justice      is     truly     blind     then it's Fisher's case,absent proof to
the contrary-

  Conventional            wisdom and facts which are not in dispute suggest

that the State gave petitioner this case because it could.                   A "CI"

made   a     call       identifying Fisher as selling drugs from the room.

(RR,   IV,        34)   (2) the room was rented to her.          (3) the coat could

not be identified as to gender was found with drugs inside.(RR IV

26-27,60) (4) a scale and baggies suggesting intent to deliver

was also found.           The 'sole'    link which went uncontroverted was Herlong's

conjecture that Jackson seemed to be walking away from the coatrack.

Any affirmative links must 'necessarily' inculpate Shelly Fisher.

The Fourteenth Court of Appeals failed to give proper weight to

Fisher's involvement here.               Their decision in      this case conflicts

with another Court of Appeals on the same issue. T.R.A.P. 66.3(a)
The First Court of Appeals has held: "Possession means more than

just being where the action is.              It involves dominion and control

over   the        thing     allegedly     possessed.       Affirmative links may be

circumstantial evidence, but strong suspicion or even, probability

will not suffice." Humason v.              STATe, 699 S.W.2d 922,923(Tex.App.-

Houston[lst         Dist.]1985,aff'd,728          S.W.2d     363(Tex.Crim.App.1987)
Herlong's assertion that Jackson 'seemed' to be walking away from
the coatrack. And the coat 'seemed'to be moving,                   are not affirmative

statements which should be given credibility in a court of law.


                                           -10-
Herlong's assertions should be analyzed in the light of Humason

and this Court's previous precedent. Even when viewed in the light

most    favorable      to the verdict,     this 'conjecture'          fails to prove

knowing      and    intentional     possession        beyond a reasonable doubt.

This    Court      should   grant   Petition for discretionary review,and

appoint counsel for briefing and oral arguments.

                               PRAYER    FOR    RELIEF


 WHEREFORE,PREMISES CONSIDERED, petitioner respectfully prays for

the relief requested.

                                          Respectfully submitted,
                                                              ~k
                                                   mBV-J^fcks on # 19403 66
                                          Coffield Unit
                                          2661 FM 2054
                                          Tennessee Colony,Tx 75884



                             CERTIFICATE       OF   SERVICE

 I, Jason B. Jackson hereby certify that a true and correct copy
of     the   foregoing      Petition     for discretionary review was mailed
postage prepaid to the Clerk of the Court of Criminal Appeals of
Texas to P.O. Box 12308,.Capitol Station, Austin,Texas 78711.
Executed on this *-~          day of <^3 ^ *V               2015      "^S!^ J^.
                                               f                   ^-TgTgn^tu^e >T

                               UNSWORN    DECLARATION

I,Jason B. Jackson being currently incarcerated at the Coffield
Unit located in Anderson County, Texas declare under penalty of
perjury that the foregoing is true according to myJoeliefL
Executed on this <L^          day of C J^-\\\               2015




                                          •11-
APPENDIX




  -12-
Affirmed and Memorandum Opinion filed April 16, 2015.




                                      In The


                    jfitmrtztntty Court of Appeals

                              NO. 14-14-00150-CR


                       JASON B. JACKSON, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 176th District Court
                              Harris County, Texas
                         Trial Court Cause No. 1333636


                 MEMORANDUM                      OPINION



      Appellant Jason B. Jackson was convicted of possession with intent to
deliver more than one but less than four grams of cocaine, a second-degree felony.
See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.112(a), (c) (West
2010). Appellant presents one issue for review: whether the evidence is legally
sufficient to show that appellant possessed the cocaine. We affirm.
                     Facts and Procedural Background


      On January 18, 2012, the Texas Department of Family and Protective
Services (DFPS) received a tip that Shelley Fisher was with her children at a motel,
selling drugs with her boyfriend. Patrick Marcil, a DFPS caseworker, was assigned
to investigate. Marcil requested assistance from law enforcement. Deputy Brandon
Herlong of the Harris County Constable's Office, Precinct Five, responded.

      Herlong met Marcil in the parking lot outside the motel. The two knocked
on the door to room 208. Fisher gave them permission to enter. The room was
dark. Herlong used his flashlight to scan the room. Herlong and Marcil saw Fisher,
appellant, and two young children in the room.

      Herlong observed appellant walking away from a clothes rack in the
bathroom area of the room. There was a coat hanging on the rack. The coat was
moving.

      Herlong searched the coat and found a plastic pill container. Inside the pill
container, Herlong discovered a clear plastic baggy containing a white powdery
substance. The contents of the baggy tested positive for cocaine and weighed 2.524
grams.


      The room contained items normally associated with the narcotics trade. A
digital scale was on the counter next to the sink. Herlong saw a white powdery
substance on the scale. Marcil observed small Ziploc-style baggies on the counter.

      Appellant was indicted for knowing possession with intent to deliver cocaine
weighing more than one gram and less than four grams. The case was tried to a
jury. Appellant did not put on any evidence. After the guilt-innocence phase,
appellant moved for an instructed verdict, which was denied. The jury convicted
appellant of the charged offense. The trial court subsequently sentenced appellant
to five years in the Institutional Division of the Texas Department of Criminal
Justice. This appeal followed.

      In his sole issue on appeal, appellant challenges the sufficiency of the
evidence to support the jury's verdict. Appellant argues that because the evidence
does not link him to the cocaine, the State did not prove the possession element of
the charged offense.

                               Standard of Review


      When evaluating the legal sufficiency of the evidence, we "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."
Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). We defer to the
factfinder's (1) resolution of conflicts in testimony; (2) evaluation of the credibility
and weight of the evidence; and (3) responsibility to draw reasonable inferences
from basic facts to ultimate facts. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim.
App. 2010). This standard applies equally to circumstantial and direct evidence.
Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009). In reviewing
cases based on circumstantial evidence, we need not find that the State's evidence
negated every reasonable hypothesis other than the defendant's guilt. See Geesa v.
State, 820 S.W.2d 154, 160-61 (Tex. Crim. App. 1991), overruled on other
grounds, Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). Our role
"is restricted to guarding against the rare occurrence when a factfinder does not act
rationally." Laster, 275 S.W.3d at 517. Accordingly, we will uphold the verdict
unless a rational factfinder must have had a reasonable doubt as to any essential
element. Id. at 518.
                                   Applicable Law


      A person commits a second-degree felony offense if he knowingly possesses
with intent to deliver over one but less than four grams of cocaine. Tex. Health &
Safety Code Ann. §§ 481.102(3)(D), 481.112(a), (c). When an accused is charged
with unlawful possession of a controlled substance, the State must prove: (1) the
defendant exercised actual care, custody, control, or management over the
contraband and (2) the accused knew the object he possessed was contraband.
Flores v. State, 440 S.W.3d 180, 188 (Tex. App.—Houston [14th Dist.] 2013),
judgment vacated on other grounds, All S.W.3d 399 (Tex. Crim. App. 2014); see
Tex. Penal Code Ann. § 1.07(a)(39) (West Supp. 2014). Possession can be
established with direct or circumstantial evidence. Poindexter v. State, 153 S.W.3d

402, 405-06 (Tex. Crim. App. 2005). The evidence must establish, to the requisite
level of confidence, that the accused's connection with the drugs was more than
just fortuitous. Id. at 406. This is the so-called "affirmative links" rule. Id.

      When, as here, the accused is not in exclusive possession of the place where
the contraband is found, the record must contain additional facts and circumstances
linking the defendant to the contraband. Flores, 440 S.W.3d at 188. We must
consider the totality of the circumstances when determining whether the defendant
is linked to the contraband. Id. Mere presence at the scene where contraband is
found does not establish possession. Id. However, presence or proximity might be
sufficient to    establish possession when         combined with other direct      or
circumstantial evidence—i.e., "links." Id. We have established a nonexhaustive list
of potential links that, individually or in combination, might establish the
defendant's possession of contraband:

       (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 narcotic;
      (4) whether the defendant was 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.
Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no
pet.). "The number of linking factors present is not as important as the 'logical
force' they create to prove the crime was committed." Id. The absence of various
links does not constitute evidence of innocence to be weighed against the links
present. Flores, 440 S.W.3d at 189.

                                      Analysis


      The thrust of appellant's argument is that, under these factors, the State did
not link him to the cocaine. We disagree.

      Factor (1) favors a link because appellant was present when the police
arrived and searched the motel room. See Watson v. State, 861 S.W.2d 410, 415-
16 (Tex. App.—Beaumont 1993, pet. ref d).
      Factor (2) does not link appellant to the cocaine because the cocaine was
hidden in a coat pocket. See Flores, 440 S.W.3d at 189.

      Factor (3) favors a link. Appellant was seen in close proximity to the coat
containing the cocaine and was observed moving away from the coat. The deputy
saw the coat moving as appellant moved away from it towards the bathroom. The
jury reasonably could have inferred that appellant was in close proximity to and
could access the cocaine. See Poindexter, 153 S.W.3d at 409 n.24 (noting that link
can be established when contraband is hidden in a place tied to the accused);
Flores, A40 S.W3d at 189.

      Factors (4), (5), (6), (7), and (8) do not link appellant to the cocaine. The
record does not show at the time of arrest that he was under the influence of any
drugs; possessed other contraband or narcotics; made incriminating statements;
attempted to flee; or made furtive gestures.

      Factor (9) does not link appellant to the cocaine because the record does not
indicate whether the contraband in this case had an odor.

      Factor (10) favors a link. See Flores, 440 S.W.3d at 190. Herlong and Marcil
saw in plain view a scale and baggies on the counter next to the sink. According to
Herlong and Marcil, these items are normally associated with the narcotics trade.
Additionally, Herlong observed a white powdery substance on the scale that he
believed was either cocaine or methamphetamine.

      Appellant contends factor (11) does not favor a link because he was merely a
guest in a hotel room visiting his girlfriend. The evidence indicates, however, that
Fisher and appellant were sharing the motel room. When Herlong and Marcil
arrived, appellant and Fisher were not fully dressed. Fisher was wearing only a t-
shirt, and appellant was wearing only boxer shorts. The children were sleeping.
The call received by DFPS indicated both Fisher and appellant were in the motel
room together selling drugs. The jury rationally could have inferred from
appellant's and Fisher's shared occupancy and state of undress at the time of
Herlong's and Marcil's early-morning entry that appellant had at least a right of
possession with regard to the motel room. This factor favors a link.1 See id.
(finding that indicators of possession support the inference of a right of
possession); Watson, 861 S.W.2d at 415-16 (finding affirmative links to defendant
even though defendant was not the registered occupant of motel room).

       Factor (12), like factor (2), does not link appellant to the cocaine because the
cocaine was found in an enclosed space, a coat pocket.

       Factors (13) and (14) do not link appellant to the cocaine. The record
contains no evidence that appellant had a large amount of money or that
appellant's conduct indicated a consciousness of guilt.

       In sum, upon entering the motel room shared by appellant and Fisher,
Deputy Herlong observed appellant walking away from a jacket hanging on the
motel-room clothes rack in the bathroom. The jacket was moving. When Deputy
Herlong searched the jacket, he found a pill bottle containing a plastic baggy. The
plastic baggy contained a white powdery substance that later tested positive for
cocaine. Herlong and Marcil saw drug paraphernalia, a scale and plastic baggies,
on the counter in plain view. From these facts, a juror rationally could have
concluded that appellant had recently manipulated the moving jacket. A juror
could have determined that appellant hid the pill bottle containing cocaine in the
jacket pocket when Marcil and Herlong arrived. Therefore, a juror rationally could
have concluded beyond a reasonable doubt that appellant exercised the requisite

        Although appellant asserts that the room was registered to Fisher, the record contains no
evidence establishing the identity of the person renting the room.

                                               7
care, custody, control, or management over the contraband and, based on the
presence of other drug paraphernalia and appellant's attempt to conceal the pill
bottle from Marcil and Herlong, that appellant knew the substance possessed was
contraband.

                                         Conclusion

       Viewing the evidence in the light most favorable to the verdict, we hold that
the evidence of links between appellant and the cocaine was legally sufficient to
support the jury's verdict that he possessed the cocaine. We affirm the trial court's
judgment.


                                             /s/       Marc W. Brown
                                                       Justice



Panel consists of Justices Jamison, Busby, and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).




       2This case is distinguishable from Allen v. State, 249 S.W.3d 680 (Tex. App.—Austin
2008, no pet.). There, the evidence only established that the defendant was present in an
apartment in which she did not reside when cocaine was found secreted throughout the house—
in a plastic bag buried in a closed dog food bag; under the kitchen sink; in a kitchen cabinet; and
on a platter on top of a refrigerator. Id. at 694-99. The Austin Court of Appeals held that this
evidence was legally insufficient to support a conviction for cocaine possession. Id. at 704. Here,
in contrast, the evidence indicates that appellant was sharing possession of the motel room with
Fisher; the cocaine was found in the pocket of a moving jacket in close proximity to appellant;
the cocaine was immediately apparent when Herlong opened the pill bottle; and drug
paraphernalia was seen in plain sight.

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