Michael Johnson v. State

Opinion issued June 30, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00460-CR

———————————

Michael Wayne Johnson , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Case No. 981353

MEMORANDUM OPINION

In

2004, appellant, Michael Wayne Johnson, pleaded guilty to the felony offense of

possession with intent to deliver a controlled substance, cocaine, weighing

more than 400 grams. [1] The trial court deferred adjudication of

guilt and placed appellant on eight years’ community supervision. The State subsequently moved to adjudicate

guilt, alleging that appellant had violated the terms and conditions of his

community supervision by committing a second offense of possession with intent

to deliver cocaine. After the trial

court found the allegation true, it revoked appellant’s community supervision

and assessed punishment at twenty-five years’ confinement and a $5,000

fine. In one issue, appellant contends

that the State did not present sufficient evidence to “link” appellant to the

cocaine, and, therefore, the trial court erroneously revoked appellant’s

community supervision.

We

affirm.

Background

On

July 16, 2004, appellant pleaded guilty to possession with intent to deliver

over 400 grams of cocaine. Pursuant to

an agreed recommendation on punishment, the trial court deferred adjudication

of guilt, placed appellant on community supervision for eight years, and assessed

a $500 fine. One of the terms and

conditions of appellant’s community supervision required him to avoid

committing an offense against the laws of Texas. On February 19, 2010, the State moved to

adjudicate guilt, contending that appellant had violated the terms and conditions

of his community supervision by unlawfully possessing, with intent to deliver,

over 400 grams of cocaine.

On

February 2, 2010, Houston Police Department (“HPD”) Officer S. Glaze was on his

regular night-shift patrol in a residential area of southeast Houston when he saw

a vehicle fail to stop at a stop sign. Officer

Glaze testified that he turned on his headlights to stop the vehicle, and the

driver, later identified as Jason Perry, briefly stepped on the brakes and then

sped away down another street. Perry pulled

into a driveway just before he reached the next intersection. Officer Glaze testified that Perry

immediately left the car and started walking toward a yard separating two

houses. The passenger, whom Officer

Glaze identified as appellant, opened his door and started to climb out of the

car. Officer Glaze believed that the two

men “were going to try to either flee or do harm to [himself] and [his]

partner.” He ordered Perry to get back

into the vehicle and ordered appellant to close his door. Both men complied.

As

Officer Glaze approached the rear driver’s side of the vehicle, he smelled

“what appeared to be burning marijuana.”

He described this odor as “very pungent, very potent.” When Officer Glaze did not see any burning

marijuana in plain view inside of the vehicle, he and his partner, Officer B.

Stewart, removed Perry and appellant from the vehicle and placed them in

handcuffs. According to Officer Glaze,

Perry was “extremely nervous” and “apprehensive” about answering questions,

more so than the usual individual stopped by police officers. Perry also had a “hard time” answering basic

questions, such as “Where are you coming from?” and “Where are you on your way

to?” Officer Glaze observed that Perry

would not make eye contact with the officers and that he was trembling and

shaking. Like Perry, appellant was

unable to tell Officer Glaze where he was coming from or where he was going. [2] Officer Glaze testified that appellant also

appeared nervous and was “displaying some of the same traits” as Perry, but

Glaze also testified that appellant seemed “a little bit more calm.” Officer Glaze stated that, based on the smell

of marijuana and Perry’s and appellant’s behavior, he believed that they were

engaging in criminal activity.

During

the ensuing search of the vehicle, Officer Glaze discovered “highly pungent”

marijuana in bags in the center console of the car. Officer Glaze also discovered what appeared

to be cocaine, located in a zipped-up backpack, sitting on the rear floorboard

behind the front passenger seat. He

testified that, after he found the cocaine, appellant “[did not] want to

talk.” He agreed with the prosecutor

that if appellant had not known about the cocaine in the backpack, he would

have expected appellant to react differently upon being confronted with the

cocaine. Officer Glaze testified that,

in his experience, people who do not have knowledge of criminal activity

occurring in their presence “would be ready to basically cooperate with the

police because, from their standpoint, they have a position of innocence

they’re trying to maintain.”

On

cross-examination, Officer Glaze acknowledged that Perry was driving a rental

car, although he did not know if Perry was the one who rented the car. [3] Officer Glaze also testified that the cocaine

was zipped up inside the backpack and, thus, was not located in plain

view. He also stated that Perry had

nearly $2,500 in cash in his pocket and that he found two prescription bottles

in Perry’s name in the backpack.

Officer

Stewart testified that after he removed appellant from the vehicle, he asked

him about the burning marijuana that the officers had smelled. Appellant “didn’t really respond,” he “just

kind of looked at [Stewart],” and he “wasn’t very verbal.” According to Officer Stewart, “[appellant]

just didn’t appear like he wanted to answer any questions.”

HPD

Narcotics Division Officer J. Scales testified that when determining if individuals

are involved in narcotics dealing or trafficking officers consider factors such

as whether the passengers give conflicting statements to basic questions and

whether they are using a rental car. Officer

Scales, who was called to the scene after Officer Glaze discovered the cocaine,

stated that appellant appeared intoxicated, smelled like marijuana, and had

red, bloodshot eyes. [4] He further testified that appellant did not

“appear surprised about what was going on” and that most people who are genuinely

unaware of the presence of drugs are “very surprised [and] argumentative” when

confronted with the drugs.

Officer

Scales testified that the backpack contained four kilos of cocaine, several

“half kilogram” packages, and individual baggies of approximately

four-and-one-half ounces of cocaine, packaged for sale. [5] He also stated that a large quantity of

cocaine has a distinctive “chemical” smell, and he was able to distinguish that

smell from the “strong” smell of marijuana inside the car.

The

trial court found the allegation in the State’s motion to adjudicate guilt

true. The court revoked appellant’s

community supervision and assessed punishment at twenty-five years’ confinement

and a $5,000 fine. After the trial court

denied appellant’s motion for new trial, this appeal followed.

Standard of Review

A

community supervision revocation proceeding is neither criminal nor civil in

nature ; rather, it is an

administrative proceeding. Cobb v. State , 851 S.W.2d 871, 873 (Tex.

Crim. App. 1993); Canseco v. State ,

199 S.W.3d 437, 438 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). At a revocation hearing, the State must prove

by a preponderance of the evidence that the defendant has violated a condition

of his community supervision. Rickels v. State , 202 S.W.3d 759 , 763–64

(Tex. Crim. App. 2006) (quoting Scamardo

v. State , 517 S.W.2d 293, 298 (Tex. Crim. App. 1974)); Canseco , 199 S.W.3d at 438 .

The State satisfies its burden if the greater weight of credible

evidence creates a reasonable belief that the defendant violated a condition of

his probation as alleged by the State. Solis v. State , 589 S.W.2d 444, 447

(Tex. Crim. App. 1979); Armstrong v.

State , 82 S.W.3d 444, 448 (Tex. App.—Austin 2002, pet. ref’d). Our review of an order adjudicating guilt and

revoking community supervision is limited to determining whether the trial

court abused its discretion in ruling that the defendant violated the terms of

his community supervision. Rickels , 202 S.W.3d at 763 (quoting Cardona v. State , 665 S.W.2d 492, 493 (Tex.

Crim. App. 1984)); Duncan v. State ,

321 S.W.3d 53 , 56–57 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). We examine the evidence in the light most

favorable to the trial court’s order. Duncan , 321 S.W.3d at 57 ; Canseco , 199 S.W.3d at 439 . As the trier of fact at a revocation

proceeding, the trial court judges the credibility of the witnesses and the

weight to be given to their testimony. Armstrong , 82 S.W.3d at 448 .

Sufficiency of Evidence of Possession

Appellant

contends, in his sole issue, that the State failed to present sufficient

evidence that he possessed the cocaine found in the vehicle, and, thus, the

trial court abused its discretion when it revoked his community supervision.

To prove unlawful possession of a

controlled substance, the State must demonstrate that (1) the defendant

exercised care, custody, control, or management over the substance; and (2) the

defendant knew the matter possessed was contraband. See

Tex. Health & Safety Code Ann.

§ 481.002(38) (Vernon 2010); Poindexter

v. State , 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). The evidence, either direct or

circumstantial, “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 rule is designed “to protect the

innocent bystander from conviction based solely upon his fortuitous proximity

to someone else’s drugs.” Id. at 406. Thus, when the defendant “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)); see also Evans v. State , 202 S.W.3d 158,

162 (Tex. Crim. App. 2006) (“Mere presence at the location where drugs are

found is thus insufficient, by itself, to establish actual care, custody, or

control of those drugs.”); Armstrong ,

82 S.W.3d at 449 (“More than the defendant’s mere presence near the drugs is

required, especially when several people are present or in possession of the

place where the drugs are found.”). “The

mere fact that a person other than the accused might have joint possession of

the premises does not require the State to prove that the defendant had sole possession of the contraband, only

that there are affirmative links between the defendant and the drugs such that

he, too, knew of the drugs and constructively possessed them.” Poindexter ,

153 S.W.3d at 412 (emphasis in original); Cole

v. State , 194 S.W.3d 538, 548 (Tex. App.—Houston [1st Dist.] 2006, pet.

ref’d) (“The State need not prove exclusive possession of the contraband for

conviction.”) (citing Roberson v. State ,

80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d)).

The

State need not “exclude every reasonable hypothesis other than the defendant’s

guilt, but it must show facts and circumstances that, viewed in the totality of

the circumstances, indicate the defendant’s knowledge and control over the

drugs.” Armstrong , 82 S.W.3d at 449 .

Texas courts have identified a non-exclusive list of possible

“affirmative links”:

(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 was 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. Additional link

factors include a defendant’s “lack of surprise or concern” during an

investigation and the amount of contraband discovered. See

Fields v. State , 932 S.W.2d 97, 104 (Tex. App.—Tyler 1996, pet. ref’d)

(holding defendant’s “unnatural equanimity and lack of concern” is a link

factor); Bethancourt-Rosales v. State ,

50 S.W.3d 650 , 655–56 (Tex. App.—Waco 2001, pet. ref’d) (same); Robinson v. State , 174 S.W.3d 320 , 328–29

(Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (considering amount of

contraband). The Court of Criminal

Appeals cautioned that these factors are “not a litmus test,” but are “simply

some factors which may circumstantially establish the legal sufficiency of the

evidence to prove a knowing ‘possession.’”

Evans , 202 S.W.3d at 162 n.12. It is not the number of links that is

dispositive, but rather the logical force of all of the evidence, direct and

circumstantial. Id. at 162 .

We

examine each case on its own facts. Robinson , 174 S.W.3d at 326 (citing Hurtado v. State , 881 S.W.2d 738, 743

(Tex. App.—Houston [1st Dist.] 1994, pet. ref’d)). A factor tending to establish sufficiency in

one particular set of facts may be of little value in another set of facts. Id. We need not consider affirmative link factors

that are absent from the evidence. Batiste v. State , 217 S.W.3d 74, 80

(Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Hurtado , 881 S.W.2d at 745 ); see

also Satchell v. State , 321 S.W.3d 127, 134 (Tex. App.—Houston [1st Dist.]

2010, pet. ref’d) (“The absence of various links does not constitute evidence

of innocence to be weighed against the links present.”).

Appellant

contends that he was not in close proximity to the backpack containing the

cocaine because the backpack was located on the rear floorboard behind the

passenger seat, and, as the front-seat passenger, he “did not have easy access

to it.” Convenient access to the

contraband is a factor that may link the accused to contraband found in a

vehicle. See Robinson , 174 S.W.3d at 326 (citing Deshong , 625 S.W.2d at 329 and Hawkins

v. State , 89 S.W.3d 674, 677 (Tex. App.—Houston [1st Dist.] 2002, pet.

ref’d)). “Conveniently accessible” means

that the contraband is “within the close vicinity of the accused and easily

accessible while in the vehicle so as to suggest that the accused had knowledge

of the contraband and exercised control over it.” Id. In Robinson ,

we held that the contraband, which was located in a factory compartment in the

back wall of the truck and accessible only by folding down the rear seat of the

truck, was “within the vicinity of and easily accessible to” the defendant, who

was the front-seat passenger. Id. at 326–27; see also Medina v. State , 242 S.W.3d 573 , 576–77 (Tex. App.—Waco

2007, no pet.) (holding contraband found under hood of vehicle was in close

proximity to defendant, who was asleep in back seat).

Appellant

cites the Fort Worth Court of Appeals’ decision in Tucker v. State , 183 S.W.3d 501 (Tex. App.—Fort Worth 2005, no

pet.), for the proposition that items in the back seat are not accessible to

front seat passengers. Tucker is factually

distinguishable. In Tucker , the defendant, who had been sitting in the back seat,

placed a plastic baggie containing cocaine in between the rear seats. Id.

at 510 . The Fort Worth court, in

affirming the defendant’s conviction, noted that this particular baggie could

not have been reached by either the driver or the front seat passenger. Id. Here, in contrast, the cocaine was found

inside a backpack located on the rear floorboard, directly behind the seat in

which appellant was sitting. [6] This backpack was within appellant’s

reach. We conclude that the location of

the cocaine relative to appellant inside the vehicle suggests that appellant

had knowledge of and exercised control over the contraband. See

Robinson , 174 S.W.3d at 327 ; see also

Garcia v. State , 218 S.W.3d 756, 763 (Tex. App.—Houston [1st Dist.] 2007,

no pet.) (listing as affirmative link factor whether contraband was found on

same side of vehicle as where accused was sitting).

The

State contends that appellant’s behavior during the stop indicates a

“consciousness of guilt” because appellant was nervous, was “reticent to answer

even basic questions,” and could not tell Officer Glaze where he had come from

and where he was going. “Excessive

nervous behavior and unsettled demeanor may be examples of consciousness of

guilt.” Lassaint v. State , 79 S.W.3d 736, 744 (Tex. App.—Corpus Christi

2002, no pet.); see also Hurtado , 881

S.W.2d at 743 (considering defendant’s nervousness and “unusual conduct” of

frequently looking toward area where contraband found as affirmative links).

Officer

Glaze testified that Perry was “extremely nervous” and apprehensive about

answering questions, more so than the usual person when stopped by police

officers. He also testified that

appellant was nervous as well, although he was “a little bit more calm” than

Perry. Officer Glaze stated that

appellant was “probably” able to answer questions better than Perry, but he

noted that both Perry and appellant were unable to tell him where they were

coming from or where they were going. He

testified that this behavior was “highly unusual” because most people, when

stopped by an officer, are able to provide this kind of basic information with

“almost no hesitation.” When asked how

appellant responded to his questions, Officer Stewart testified:

He actually didn’t really

respond. He just kind of looked at

me. But he wasn’t — he just

wasn’t very verbal. He was just kind of

looking around. . . . [H]e just didn’t appear like he

wanted to answer any questions.

Thus, the State presented evidence that appellant

was nervous, uncooperative, and unable to answer basic questions about his

activities and destination, which, according to Officer Glaze, was “highly

unusual.” We conclude that appellant’s

nervous and unusual behavior upon being stopped and questioned by the officers

demonstrates a consciousness of guilt, which establishes another link between

appellant and the cocaine. [7] See

Evans , 202 S.W.3d at 162 n.12 (listing whether defendant’s conduct

indicates a consciousness of guilt as affirmative link factor); Hurtado , 881 S.W.2d at 743 (considering

defendant’s nervous and “unusual conduct” of frequently glancing at location of

contraband as linking factors).

Similarly,

we may also consider a defendant’s “unnatural equanimity and lack of concern

throughout the temporary detention and the subsequent investigation” as an

affirmative link factor. Fields , 932 S.W.2d at 104 ; see also Bethancourt-Rosales , 50 S.W.3d at

655 (“[L]ack of surprise or concern during a temporary detention and

investigation can suggest knowledge of the presence of contraband.”). Here, Officer Scales testified that, after

the other officers discovered the contraband, appellant did not “appear to be

surprised about what was going on.” He

further agreed that, in his experience, this behavior is not consistent with

that of someone who was genuinely unaware of the presence of contraband,

because individuals in that circumstance are generally “[v]ery surprised [and]

argumentative” when contraband is discovered.

According to Officer Scales, appellant did not demonstrate the behavior

of one unaware of the contraband. Cf. Armstrong , 82 S.W.3d at 449–50

(“[Officer] Childs testified that when he discovered the drugs, Armstrong

‘immediately asked how that got into her bag,’ a statement

that . . . could indicate she was unaware of the presence

of the drugs.”). We therefore conclude

that appellant’s lack of surprise at the discovery of contraband is another

factor linking appellant to the cocaine.

We

also consider the amount of contraband found in the presence of the defendant. Robinson ,

174 S.W.3d at 328 . “The power of this

factor generally increases as the amount of contraband found increases. This factor, therefore, is more effective at

establishing an affirmative link when large quantities of contraband are

involved.” Id. at 328–29 (citing Roberson ,

80 S.W.3d at 740 ); see also Allen v.

State , 249 S.W.3d 680, 698 (Tex. App.—Austin 2008, no pet.) (“Where a large

quantity of contraband is involved, the factor is more effective in

establishing the requisite link. It may

strengthen the inference that the accused was aware of the cocaine.”). In Robinson ,

we observed that two kilos of cocaine found in a compartment in the trunk “were

neither an ‘insignificant amount of cocaine,’ nor an amount small enough to be

concealed on one’s person.” 174 S.W.3d

at 329 (quoting Roberson , 80 S.W.3d

at 740 ). We concluded that because that

quantity of cocaine was “too much for mere personal use,” the amount was

“strongly indicative of an affirmative link between [the cocaine] and

[Robinson.]” Id.

Similarly,

here, HPD officers recovered a total of 4,733 grams, or 4.7 kilos, of cocaine

from the backpack. This amount of

cocaine far exceeds amounts generally intended for personal use. See id. We therefore conclude that the amount of

cocaine found in the backpack is “strongly indicative” of an affirmative link

between appellant and the cocaine. Id.

Furthermore,

“[t]he odor of contraband in a vehicle is an accepted factor which may

affirmatively link an accused to seized contraband.” Id.

at 327 (citing Hurtado , 881 S.W.2d at

743 n.1); see also Evans , 202 S.W.3d

at 162 n.12 (listing whether there was an odor of contraband as affirmative

link). Here, all three officers

testified that they smelled a strong odor of burning marijuana emanating from

the vehicle. Officer Scales, the

narcotics officer, testified that, in addition to the odor of marijuana, he

also detected the distinct chemical odor of cocaine. He agreed with the prosecutor that the

“strong” smell of marijuana did not “overpower” the smell of cocaine and that

“[one] could distinguish from both of them.”

We thus conclude that the odor of the cocaine is an additional link

between appellant and the contraband.

An additional affirmative link is whether other contraband is

also present. See Evans , 202 S.W.3d at 162 n.12; Batiste , 217 S.W.3d at 81 .

In Batiste , an officer

testified that he smelled burning marijuana “immediately” as he approached the

vehicle, and another officer testified that Batiste smelled like burnt

marijuana. 217 S.W.3d at 81 . Officers discovered, in addition to

methamphetamine, which was the charged offense, a bottle of Xanax, eight

“blunts,” [8]

and eighty grams of marijuana. Id.

We concluded that “the profusion of contraband found in the vehicle

increases the probability that Batiste was aware of its presence.” Id. Here, all three officers testified regarding

the strong smell of burning marijuana present both inside and outside of the

vehicle. Officer Scales testified that

appellant smelled like marijuana. Officers

discovered marijuana in the center console of the vehicle. As in Batiste ,

we conclude that the additional contraband in the vehicle “increases the

probability” that appellant was aware of its presence. Id.

When determining whether a defendant

who was not in exclusive possession of the place where the contraband was found

possessed the contraband, we consider the totality of the circumstances. See

Bethancourt-Rosales , 50 S.W.3d at 656 .

Here, appellant was a passenger in a car rented by Perry that contained

nearly five kilos of cocaine. The

cocaine was located in an enclosed space, a backpack, in close proximity to and

easily accessible by appellant, who was sitting directly in front of where the

backpack was located on the rear floorboard.

Both men were nervous, uncooperative, and unable to answer basic

questions regarding where they were coming from and where they were going,

which, according to Officer Glaze, was “highly unusual.” Appellant did not “appear to be surprised” by

the discovery of contraband. Officers

discovered nearly five kilos of cocaine, a quantity that far exceeds amounts

generally intended for personal use, and Officer Scales testified that he could

smell the distinct odor of cocaine beyond the “strong” smell of marijuana also

present. Officers also discovered

marijuana inside the center console of the car.

Appellant

contends that the facts in this case are “closely related” to those in Armstrong , in which the Austin Court of

Appeals held that the State failed to present sufficient evidence of

possession, and, thus, that the trial court abused its discretion in revoking

Armstrong’s probation. 82 S.W.3d at

449–50. We disagree.

In Armstrong , Armstrong, who was driving,

was involved in a car accident. Id. at 446 . The investigating officer, Childs, who was

not the first officer on the scene, noticed that Armstrong’s sister-in-law,

Felicia, was holding a bag, and one of the deputies informed him that Armstrong

“was more interested in locating this purple bag . . . than

worrying about [her] children” who were also involved in the accident. Id. Later, at the emergency room, Childs observed

Felicia constantly standing or sitting near Armstrong and still holding the

bag. Id. Felicia gave her consent to search the bag,

which she said contained clothes, and Childs discovered a paper sack containing

cocaine amongst the children’s clothes. Id.

Armstrong immediately asked “how that got in her bag.” Id.

In

determining whether the State presented sufficient evidence of possession, the Austin

court noted that Childs did not see Armstrong hold the bag, he did not see her

make any furtive gestures toward the bag, he did not find any other contraband

on or near her, the contraband had no odor, and Armstrong did not appear to be

under the influence of any illicit drugs.

Id. at 449 . Childs also did not testify regarding the

amount of time between the accident, when police officers first arrived at the

scene, and when he arrived at the scene, nor did he testify regarding how much

time elapsed between Armstrong’s arriving at the hospital and Childs’ arriving

and searching the bag. Id.

The State presented no evidence regarding whether Armstrong and Felicia

rode in the same ambulance, whether Felicia did anything while Armstrong was

treated at the scene, or whether anyone else had access to the bag. Id.

at 450 . Furthermore, upon discovering

the cocaine, Armstrong immediately asked how that got into her bag, which

“could indicate that she was unaware of the presence of the drugs.” Id.

at 449–50. The Austin court concluded

that the affirmative links were “too weak to support the district court’s

finding that Armstrong violated her probation by intentionally and knowingly

possessing the drugs found in the purple bag.”

Id. at 450 .

The

Austin court, in reversing the trial court’s revocation of Armstrong’s

community supervision, held that the only evidence linking Armstrong to the

cocaine was “(1) an unidentified deputy’s statement to Childs alleging that

before Childs arrived on the scene Armstrong ‘was more interested in locating

this purple bag . . . than worrying about the children,’ and

(2) Armstrong’s statement at the hospital that the bag was hers.” Id.

at 449 . In contrast, as we have already

discussed, even though appellant was a passenger in Perry’s rental car, several

factors link him to the cocaine found by the officers in this case. The nexus between appellant and the cocaine

discovered here is stronger than the nexus between Armstrong and the cocaine

found in her bag. See id. at 449–50.

We

thus conclude that the State met its burden of proving by a preponderance of

the evidence that appellant unlawfully possessed cocaine. We therefore hold that the trial court did

not abuse its discretion in finding the allegation in the motion to adjudicate

guilt true and in revoking appellant’s community supervision. [9]

We

overrule appellant’s sole issue.

Conclusion

We

affirm the judgment of the trial court.

Evelyn

V. Keyes

Justice

Panel

consists of Chief Justice Radack and Justices Keyes and Higley.

Do

Not Publish. Tex. R. App. P. 47.2( b).

[1] Tex.

Health & Safety Code Ann. § 481.112(f) (Vernon 2010).

[2]

Officer Glaze testified that

this behavior was “highly unusual,” because, in most traffic stops, individuals

are able to answer these basic questions with no hesitation.

[3]

Appellant attached the rental

car records, demonstrating that Perry had rented the car, to his motion for new

trial.

[4]

The trial court later admitted

hair follicle test results revealing that appellant had tested negative for the

presence of any controlled substances.

[5]

HPD Criminalist Myra Cuevas

testified that the contraband seized from the vehicle tested positive for 4,733

grams of cocaine.

[6]

We further note that whether the

contraband was found inside an enclosed space is another factor that courts

have identified as establishing an affirmative link. See

Evans v. State , 202 S.W.3d 158 , 162 n.12 (Tex. Crim. App. 2006); Robinson v. State , 174 S.W.3d 320, 327

(Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). Both the car itself and the zipped backpack

containing the cocaine are enclosed spaces.

See Robinson , 174 S.W.3d at

327 . Thus, the fact that the cocaine was

discovered in an enclosed space is another link between appellant and the

contraband.

[7]

Appellant argues that his

“suspicious” and nervous behavior is consistent with being nervous due to his

community supervision status. Although

the evidence may support conflicting inferences, “we presume that the trier of

fact resolved any such conflict in favor of the prosecution.” Howard

v. State , 972 S.W.2d 121, 124 (Tex. App.—Austin 1998, no pet.) (citing Turro v. State , 867 S.W.2d 43, 47 (Tex.

Crim. App. 1993)).

[8]

A “blunt” is an altered cigar

containing marijuana. See Batiste v. State , 217 S.W.3d 74, 78

(Tex. App.—Houston [1st Dist.] 2006, no pet.).

[9]

Appellant argues that the

evidence affirmatively links Perry ,

not appellant, to the cocaine because Officer Glaze discovered prescription

bottles in Perry’s name in the backpack with the cocaine, Perry was carrying a

large amount of cash, Perry was “extremely nervous” and more apprehensive than

appellant, and Perry, as the renter of the vehicle, had sole control and the

right of exclusive possession of the vehicle.

We note that that State need not prove that the defendant had sole

possession over the contraband; rather, someone other than the defendant may

have joint possession as long as the State establishes links demonstrating that

the defendant knew of and constructively possessed the contraband. See

Poindexter v. State , 153 S.W.3d 402, 412 (Tex. Crim. App. 2005); Cole v. State , 194 S.W.3d 538, 548 (Tex.

App.—Houston [1st Dist.] 2006, pet. ref’d) (“The State need not prove exclusive

possession of the contraband for conviction.”) (citing Roberson v. State , 80 S.W.3d 730, 735 (Tex. App.—Houston [1st

Dist.] 2002, pet. ref’d)).