                                     NO. 07-09-00376-CR

                                IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL A

                                   SEPTEMBER 23, 2010


                                RICKY BOLTON, JR.,
                      A/K/A RICKY JUNIOR BOLTON, APPELLANT

                                              v.

                           THE STATE OF TEXAS, APPELLEE


               FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

              NO. 58,354-E; HONORABLE DOUGLAS WOODBURN, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION

       Appellant, Ricky Bolton, Jr., appeals his conviction for possession of a controlled

substance, cocaine, less than one gram. 1 Appellant was sentenced to two years in a

State Jail Facility of the Texas Department of Criminal Justice (SJF-TDCJ). Appellant

appeals the judgment of the trial court contending that the evidence was legally and

factually insufficient to sustain the jury’s verdict. We affirm.




       1
           See Tex. HEALTH & SAFETY CODE ANN. § 481.115(b) (Vernon 2010).
                          Factual and Procedural Background


      On August 13, 2008, Officer Terry Moore of the Amarillo Police Department was

dispatched to a Toot’n Totum convenience store at 1400 East Amarillo Boulevard as

part of a forgery investigation. Upon arriving at the Toot’n Totum, Moore observed a

1999 Chevrolet Lumina containing two occupants parked in the parking lot.          When

Moore pulled into the parking lot, both occupants of the Lumina appeared to duck down.

Upon obtaining information that the Lumina might have been involved in the forgery

incident, Moore and another officer, Scott Chappel, approached the Lumina in order to

interview the two occupants. Appellant was seated in the front passenger seat of the

Lumina. Chappel approached the driver, and Moore went to the front passenger side to

speak to appellant.


      As Moore approached appellant, he noticed that appellant appeared to be

nervous. When asked for identification, appellant said he did not have any. When

speaking to Moore, appellant would not make eye contact and spoke in such a low tone

that Moore had trouble understanding appellant. Moore then asked appellant to step

from the vehicle and, instead of getting out of the vehicle, appellant took his left hand

and reached back towards his back left pocket. Moore testified he thought appellant

might be going for a weapon. Appellant was ordered to show his hand, and, instead of

showing his left hand as directed, appellant reached down the right side of the seat with

his closed right hand.   As appellant made this second move with his hand, Moore

reached in through the window to grab appellant’s arm to get control of the situation.




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Appellant kept his right hand tightly closed even as Moore delivered two blows to it in an

effort to force the hand open.


       Eventually, with the assistance of another officer, Moore pulled appellant from

the vehicle. As appellant was being wrestled to the ground, he still kept his right hand

tightly closed. While the police attempted to pull appellant’s arms behind his back to

apply hand-cuffs, Moore noticed appellant make a throwing gesture with his right hand.

Moore testified that he did not see anything fly out of appellant’s hand; however, upon

gaining control of appellant, Moore peered under the vehicle toward which appellant

made the throwing gesture. Under the vehicle, Moore found a plastic baggie of crack

cocaine. After appellant had been secured, Moore checked the area around where

appellant had been seated and found a glass crack pipe stuffed between appellant’s

seat and the console. Moore testified that this was where appellant had reached with

his left hand. After the cocaine was retrieved, it was placed in the property room of the

police department until it was taken to the Department of Public Safety laboratory for

testing.


       Chappel testified that he did not see appellant make the throwing gesture.

However, Chappel also testified that he remembered that, all during the struggle to get

appellant out of the vehicle, appellant kept his right hand securely clinched. Chappel

did recall that Moore commented on appellant making a throwing motion and that the

comment was made before the cocaine was found under the vehicle.


       The jury convicted appellant and he was subsequently sentenced to serve two

years in a SJF-TDCJ. Via two issues, appellant contends that the evidence was legally

                                            3
and factually insufficient to link appellant to the contraband discovered under the

vehicle. Disagreeing with appellant, we affirm the trial court’s judgment.


                                   Standard of Review


      When an appellant challenges both legal and factual sufficiency, we are required

to conduct an analysis of the legal sufficiency of the evidence first and then, only if we

find the evidence to be legally sufficient, do we analyze the factual sufficiency of the

evidence. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996).                In

assessing the legal sufficiency of the evidence, we review all the evidence in the light

most favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. See Jackson

v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooper v. State,

214 S.W.3d 9, 13 (Tex.Crim.App. 2007). In conducting a legal sufficiency review, an

appellate court may not usurp the role of the factfinder; rather, our role on appeal is

restricted to guarding against the rare occurrence when a factfinder does not act

rationally. See Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App. 2009).

      In a factual sufficiency review, we must consider all of the evidence in a neutral

light to determine whether a jury was rationally justified in finding guilt beyond a

reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006).

In our analysis, we must determine whether the evidence supporting the verdict is so

weak or so against the great weight and preponderance of the evidence as to render

the verdict manifestly unjust.      See Steadman v. State, 280 S.W.3d 242, 246

(Tex.Crim.App. 2009). A wrong and unjust verdict includes instances in which the jury’s

                                            4
finding “shocks the conscience[]” or clearly demonstrates bias. See Grotti v. State, 273

S.W.3d 273, 280 (Tex.Crim.App. 2008). In a factual sufficiency review, we must be

mindful that a jury has already passed on the facts and must give due deference to the

determinations of the jury.       See Lancon v. State, 253 S.W.3d 699, 704-05

(Tex.Crim.App. 2008). If our decision is to set aside the verdict of the jury, our opinion

should clearly explain how the evidence supporting the verdict is too weak on its own or

how the contradicting evidence so greatly outweighs the evidence in support of the

verdict. See id. at 705. Conversely, if our decision is to uphold a verdict, we are

required to consider the most important evidence that the appellant claims undermines

the jury's verdict and explain why that evidence does not have the persuasive force the

appellant believes is sufficient to overturn the verdict. See Sims v. State, 99 S.W.3d

600, 603 (Tex.Crim.App. 2003).

      In a sufficiency of the evidence review, the essential elements of the offense are

those of a hypothetically correct jury charge for the offense in question (i.e., one that

accurately sets out the law and adequately describes the offense for which the appellant

was tried without increasing the State’s burden of proof or restricting the State’s theory

of criminal responsibility). See Hooper, 214 S.W.3d at 14; Malik v. State, 953 S.W.2d

234, 240 (Tex.Crim.App. 1997).

      In our review, we consider both direct and circumstantial evidence and all

reasonable inferences that may be drawn from that evidence. See Hooper, 214 S.W.3d

at 13. Circumstantial evidence alone is sufficient to establish the guilt of the accused,

and the standard of review as to the sufficiency of the evidence is the same for both


                                            5
direct and circumstantial evidence cases. See id. Each fact need not point directly and

independently to the guilt of the accused, so long as the cumulative force of all the

evidence, when coupled with reasonable inferences to be drawn from that evidence, is

sufficient to support the conviction. See id.


                          Possession of a Controlled Substance


       A conviction for possession of cocaine is supported only when the defendant

Aknowingly or intentionally possesses@ the drug.       TEX. HEALTH & SAFETY CODE

ANN. § 481.115(a) (Vernon 2010). Proof of possession requires evidence the accused

exercised Aactual care, custody, control, or management@ over the substance. See id. §

481.002(38) (Vernon 2010). Thus, the State must prove the accused (1) Aexercised

care, custody, control, or management over the [contraband]@ and (2) knew that the

substance Apossessed@ was contraband. See Martin v. State, 753 S.W.2d 384, 387

(Tex.Crim.App. 1988).


       When the accused is not in exclusive control of the place where the contraband

is found, the State must establish care, custody, control, or management by linking the

accused to the substance through additional facts and circumstances. See Evans v.

State, 202 S.W.3d 158, 161-62 (Tex.Crim.App. 2006); Poindexter v. State, 153 S.W.3d

402, 406 (Tex.Crim.App. 2005).           Whether the State=s evidence is direct or

circumstantial, its evidence of links must establish, Ato 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 (citing Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.

1995)); Park v. State, 8 S.W.3d 351, 353 (Tex.App.BAmarillo 1999, no pet.).
                                                6
        The many factors by which an accused may, under the unique circumstances of

each case, be sufficiently Alinked@ 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 the accessibility of the contraband; (4) whether the

defendant was under the influence of contraband 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, 202

S.W.3d at 162 n.12; See Triplett v. State, 292 S.W.3d 205, 208 (Tex.App.BAmarillo

2009, pet. ref’d.) (listing numerous factors). These factors, however, are simply that:

factors which may circumstantially establish the sufficiency of evidence offered to prove

a knowing Apossession.@ See Evans, 202 S.W.3d at 162 n.12 (explaining that factors

Aare not a litmus test@). It is not the number of links that is dispositive, but rather the

logical force of all the evidence. See id. at 162.




                                             7
                                         Analysis


        Appellant contends that a lack of links to the contraband makes the evidence

legally and factually insufficient. This is so, according to appellant, because no one

testified that they saw appellant actually throw the baggie of cocaine later found

beneath the car. Appellant’s theory of the case continues that, since Moore only saw a

throwing motion, there is no link between appellant and the later found baggie.


Links


        The record before the Court contains the following facts that link appellant to the

contraband in question: 1) appellant’s conduct indicated a consciousness of guilt in that

he: a) slid down and tried to duck down in his seat when the police arrived at the

location of the forgery, b) appeared nervous when Moore approached him, c) would not

make eye contact with Moore, d) replied to questions in such a low voice that Moore

had difficulty hearing him, and e) refused to exit the vehicle when ordered; 2) appellant

made a furtive gesture with his left hand; 3) appellant had his right fist closed and

refused to open it; 4) the closed fist was the hand with which appellant made the

throwing gesture; 5) the cocaine was found at a location which was in line with the

throwing gesture made by appellant; and 6) the glass crack pipe was found between the

seat appellant occupied and the console. See id. at 162.


Legal Sufficiency


        When the links that tie appellant to the contraband are examined, we are left with

a significant amount of testimony connecting appellant to the cocaine. Remembering
                                             8
that circumstantial evidence is as probative of the links required as is direct evidence,

we conclude that the links recited above are sufficient to legally connect appellant to the

contraband. See Hooper, 214 S.W.3d at 13. Finally, we must be mindful that it is not

the number of links that are important but the logical force of the links in question that is

important. Evans, 202 S.W.3d at 162. Because we find there are sufficient links to

connect appellant to the cocaine, the jury was acting as a rational factfinder when it

found appellant guilty beyond a reasonable doubt. Jackson, 443 U.S. at 319; Hooper,

214 S.W.3d at 13. Appellant’s first issue is overruled.


Factual Sufficiency


       The same links that tie appellant to the cocaine in a legal sufficiency review are

present when the evidence is viewed in a neutral light, as we must do when reviewing

factual sufficiency issues. Watson, 204 S.W.3d at 415. Further, nothing about the

jury’s finding “shocks the conscience” or clearly demonstrates bias. See Grotti, 273

S.W.3d at 280. Neither is the evidence so weak as to render the verdict manifestly

unjust. See Steadman, 280 S.W.3d at 246. Simply stated, from appellant’s first contact

with Moore, he sensed that appellant was trying to hide something. Appellant’s actions

in refusing to show his hands and then keeping the right hand in a closed fist were

indications that appellant had contraband. When we add to this the throwing motion

and finding the cocaine directly in line with where the throwing motion indicated, we

have factually sufficient evidence to connect appellant with the cocaine. Finally, finding

the glass crack pipe stuffed down between the seat and the console where Moore



                                             9
observed appellant place his left hand further ties appellant to the cocaine. All of this

evidence serves as links to tie appellant to the cocaine. See Evans, 202 S.W.3d at 162.


      Appellant posits that since there were other people in the parking lot that the

evidence was insufficient to connect appellant to the contraband. See Sims, 99 S.W.3d

at 603. The essence of appellant’s argument is that someone else could have placed

the cocaine on the ground under the car. When each officer was questioned about this,

they all had basically the same response: none of them had ever seen anyone simply

place drugs on the ground and walk away from the drugs. The jury heard all of this

testimony and chose to believe that appellant tossed the drugs under the car. See

Lancon, 253 S.W.3d at 704-05. We cannot say that the jury’s decision was irrational

when it found appellant guilty beyond a reasonable doubt. See Watson, 204 S.W.3d at

417. Accordingly, appellant’s second issue is overruled.


                                       Conclusion


      Having overruled appellant’s issues, the judgment of the trial court is affirmed.




                                                       Mackey K. Hancock
                                                            Justice



Do not publish.




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