Full Opinion

In the Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-26-00032-CR DIOVANNI SKYGUSTY CISNEROS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 71st District Court Harrison County, Texas Trial Court No. 25-0234X Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Justice van Cleef MEMORANDUM OPINION A Harrison County jury found Diovanni Skygusty Cisneros guilty of knowing possession of psilocin,1 in an amount of four grams or more but less than 400 grams, a second-degree felony. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.103(a)(5)(B), 481.116(d) (Supp.). After Cisneros pled true to the State’s punishment-enhancement allegation, the trial court sentenced him to fifteen years’ imprisonment. On appeal, Cisneros argues that (1) the evidence was legally insufficient to support the jury’s finding of guilt and (2) the trial court failed to consider the full range of punishment. We find that legally sufficient evidence supported the jury’s finding that Cisneros knowingly possessed psilocin and that nothing in the record before us shows that the trial judge failed to consider the full range of punishment. As a result, we affirm the trial court’s judgment. I. Legally Sufficient Evidence Supports the Jury’s Verdict of Guilt In his first point of error on appeal, Cisneros argues that the evidence was insufficient to show that he knowingly possessed a chocolate bar containing psilocin. A. Standard of Review “In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court’s judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt.” Williamson v. State, 589 S.W.3d 292, 297 1 “Psilocin is a Schedule I, Penalty Group 2 hallucinogenic substance obtained from certain mushrooms indigenous to tropical and subtropical regions of South America, Mexico, and the United States of America.” In re J.H., No. 02-24-00370-CV, 2025 WL 356497, at *1 n.2 (Tex. App.—Fort Worth Jan. 30, 2025, pet. denied) (mem. op.) (quoting Gentry v. State, No. 11-08-00325-CR, 2010 WL 2112715, at *1 n.1 (Tex. App.—Eastland May 27, 2010, pet. ref’d) (mem. op., not designated for publication)). 2 (Tex. App.—Texarkana 2019, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)). “Our rigorous [legal sufficiency] review focuses on the quality of the evidence presented.” Id. (citing Brooks, 323 S.W.3d at 917–18 (Cochran, J., concurring)). “We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury ‘to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’” Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). “In our review, we consider ‘events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act.’” Id. (quoting Hooper, 214 S.W.3d at 13). “It is not required that each fact ‘point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.’” Id. (quoting Hooper, 214 S.W.3d at 13). “Circumstantial evidence and direct evidence are equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone.” Id. (citing Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13). The jury, as “the sole judge of the credibility of the witnesses and the weight to be given their testimony[, could] ‘believe all of [the] witnesses’ testimony, portions of it, or none of it.’” Id. (second alteration in original) (quoting Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App. 2014)). “We give ‘almost complete deference to a jury’s decision when that decision is based 3 upon an evaluation of credibility.’” Id. (quoting Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008)). “Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge.” Id. at 298 (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “The ‘hypothetically correct’ jury charge is ‘one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.’” Id. (quoting Malik, 953 S.W.2d at 240). Here, the State alleged that Cisneros knowingly possessed psilocin, in an amount of four grams or more but less than 400 grams. A. The Evidence at Trial Seth Grant, a trooper with the Texas Department of Public Safety (DPS), testified that he was dispatched to the scene of a single-vehicle crash on the morning of May 8, 2025, in Harrison County. Grant said that he arrived to discover that a black Cadillac sedan had struck a tree and was abandoned by its driver. Grant began to investigate the car crash and “noticed the odor of mari[h]uana emitting from the inside [of] the vehicle.” Grant found marihuana in a “red tub” in the rear passenger seat. From the driver’s side door panel, Grant discovered a chocolate bar with a net weight of sixty grams bearing a label with the words “MAGIC TRUFFLES PSYCHEDELIC MUSHROOMS” clearly depicted on the front of the packaging, along with a picture of a mushroom clarifying its ingredients. On the back of the chocolate-bar packaging, Grant read the 4 “instructions to fully experience the effects,” which advised to consume on an empty stomach. The chocolate bar was portioned into six breakable pieces, and the instructions advised, “start off with one piece first. If no effects within one hour, then eat another one. Trend slowly and enjoy the trip.” The back of the packaging also showed that “[e]ach piece contain[ed] about 675 milligrams [of psychedelic mushrooms],” and warned the user not to consume more than “six pieces within a two-hour timeframe.” The first ingredient in the chocolate bar was “psychedelic mushrooms.” Upon opening the chocolate-bar packaging, Grant saw that approximately one- half was gone. During cross-examination, Grant admitted that, on the packaging, “there was no type of stamp that would indicate [the chocolate bar] [wa]s illegal,” but he also testified that he had never seen a legal product containing psychedelic mushrooms. Grant ran the vehicle’s license plate and discovered that it was registered to Cisneros. He also learned from the tow truck driver that Cisneros had called to get his car towed from the scene of the crash. Grant went to Cisneros’s residence to ask him about the crash. Grant “knocked on the door several times,” but no one answered. Noticing “some occupants moving from behind the house,” Grant walked up and identified himself as a DPS trooper and began questioning Cisneros, who made “fidgeting movements as if he was nervous.” Grant also noticed that Cisneros had “a very slight shakiness in his voice,” “kept looking around, divert[ing] eye contact with [Grant],” was “shifting his weight from foot to foot,” and was “really exaggerating with his hand motions.” According to Grant, Cisneros initially said that he did not know what had happened and claimed that he had “just got notified his car was in a crash and that was it.” Grant testified that 5 Cisneros later admitted that he was driving the vehicle and that he was the sole occupant in the vehicle during the crash. When Grant asked Cisneros if everything in the vehicle belonged to him, Grant testified that Cisneros “immediately turned away and started walking back towards his house.” Grant testified that Cisneros resisted his verbal commands and physically resisted arrest, causing Grant and another officer to “wrestle him to get his hands free in order to place him into custody.” Christopher Powell, a drug analyst with the DPS Crime Laboratory, testified “that psilocin was present in th[e] sample” taken from the chocolate bar and that the net weight of the remaining chocolate bar was 24.84 grams. After hearing the evidence, the jury found Cisneros guilty of the offense alleged in the State’s indictment. C. Analysis Cisneros argues that he “never admitted that what was inside the vehicle was his” and that he did not knowingly possess psilocin. “Possession” is defined as “actual care, custody, control, or management.” TEX. PENAL CODE ANN. § 1.07(a)(39) (Supp.). To obtain a conviction for possession of a controlled substance, the State must show that the accused not only “exercised actual care, control, or custody of the [controlled] substance” but that he was “conscious of his connection with it and” “possessed it knowingly.” Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). “[E]vidence which affirmatively links [the accused] to [the drugs] suffices for proof that he possessed it knowingly.” Id. Here, the drug-laced chocolate bar was not found in Cisneros’s 6 possession. Even so, “a fact finder may nonetheless infer that the defendant intentionally or knowingly possessed the contraband if there are sufficient independent facts and circumstances justifying such an inference.” Tate v. State, 500 S.W.3d 410, 413–14 (Tex. Crim. App. 2016). Some factors that may be legally sufficient, either alone or in combination, to circumstantially establish an accused’s “knowing possession of contraband” include: (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. Id. at 414 (quoting Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006)). It is the logical force of the links, rather than the number of links, that is dispositive. Evans, 202 S.W.3d at 162. Also, the links need not exclude every other reasonable hypothesis but the defendant’s guilt. See Tate, 500 S.W.3d at 413; Brown, 911 S.W.2d at 748. Even though the factors in the links test guide us, “ultimately the inquiry remains that set forth in Jackson: Based on the combined and cumulative force of the evidence and any reasonable inferences therefrom, was a jury rationally justified in finding guilt beyond a reasonable doubt?” Tate, 500 S.W.3d at 414 (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). Although Cisneros was not present when Grant searched his vehicle, the vehicle was registered to Cisneros, who eventually admitted that he was the sole occupant of the vehicle 7 during the crash. Even before opening the car door, Grant testified that an odor of marihuana was coming from inside the vehicle and that he located marihuana in the rear passenger seat. Grant located the chocolate bar in the driver’s side door panel, which would have been in close proximity to Cisneros while he was driving. Although nothing indicates Cisneros was under the influence of drugs by the time Grant arrived at Cisneros’s residence, the jury had learned that Cisneros abandoned his vehicle after the crash and had requested a tow-truck driver to pick up the vehicle instead of calling law enforcement for help. Grant also testified that Cisneros made furtive eye movements, and a jury could find that his nervousness and exaggerated hand motions indicated consciousness of guilt. When confronted, Cisneros initially lied to Grant but then admitted that he was driving the vehicle. When asked if everything in the vehicle belonged to him, Cisneros refused to answer and turned back to walk to his home—acts which the jury could determine indicated that Cisneros knew something illegal was in the vehicle. Finally, Cisneros verbally and physically resisted arrest. In light of the evidence, implicating link factor numbers 6, 7, 8, 9, 10, 11, 12, and 14, we find that it was within the jury’s purview to conclude that Cisneros possessed the chocolate bar located in the driver’s side door panel of his vehicle. See id. (quoting Evans, 202 S.W.3d at 162 n.12). The jury was also free to find that Cisneros knew the chocolate bar contained the controlled substance psilocin, not just from the analysis of link factors, but also because the chocolate bar was clearly labeled to contain “MAGIC . . . PSYCHEDELIC MUSHROOMS,” the packaging included instructions on how to best “enjoy the trip,” and listed “psychedelic mushrooms” as the first ingredient. 8 When viewing the evidence in the light most favorable to the jury’s verdict, we find that legally sufficient evidence supported its finding of guilt. Consequently, we overrule Cisneros’s first point of error. II. Nothing Shows That the Trial Court Failed to Consider the Full Range of Punishment Before trial, the State filed a notice stating that Cisneros had previously been convicted of burglary of a building and burglary of a habitation, and had pending cases for aggravated assault with a deadly weapon and possession of a penalty group 1 substance in different counties. On the eve of trial, Cisneros determined that he wished for the trial judge to assess punishment instead of the jury. That was because there was no written-sworn motion stating that Cisneros had not previously been convicted of a felony. See TEX. CODE CRIM. PROC. ANN. art. 42A.055(b). The trial judge admonished Cisneros about the second-degree punishment range and stated that “[t]he Court would have the possibility, if it saw fit, possibly to grant probation, but that [he] would need to understand, [there] may be a slim chance if [he had] a criminal history.” After Cisneros indicated his understanding, trial on guilt/innocence followed. After the jury’s verdict was announced, the trial judge scheduled a punishment hearing so he could review the presentence investigation report (PSI) after stating, “[a]t this time, sir, because you are not probation eligible potentially as I understand it, I’m going to revoke your bond.”2 At the punishment hearing, Cisneros stipulated to the prior felony conviction for burglary of a habitation after confirming that would elevate his punishment range to that of a first-degree 2 Cisneros does not clarify whether he sought deferred adjudication community supervision or regular community supervision. After a finding of guilt, Cisneros was no longer eligible for deferred adjudication community supervision. 9 felony. As a result, the trial judge said “[five] to [ninety-nine] years or life in the penitentiary and a fine not to exceed $10,000[.00]” was the applicable punishment range. No witnesses were presented by either the State or Cisneros, but the trial court reviewed the PSI, which indicated that Cisneros “had a daily problem with alcohol and drugs for a long time.” According to the PSI, Cisneros admitted to consuming cocaine before his trial even though he had taken “some type of drug course on line [sic].” The State noted that, after the trial on guilt/innocence, Cisneros had “pick[ed] up another manufacturing and delivery [charge].” Cisneros’s trial counsel argued, “I understand probation is not an option to this Court at this time. I understand that.” After argument, the trial judge noted that, in addition to Cisneros’s prior conviction, Cisneros had “in the last. . . period of [seventeen] months[,]. . . committed or [was] alleged to have committed five felonies and five misdemeanors,” including one where Cisneros “shot an individual.” The trial judge was concerned because Cisneros was “caught with drugs. . . in three different counties,” suggesting that he was “carrying dope with [him] or moving it through.” After weighing the evidence in the PSI, which showed Cisneros had five different allegations of “either running from or fighting with the police,” the trial court sentenced him to fifteen years’ imprisonment. On appeal, Cisneros argues that “the trial court revoked [Cisneros’s] bond as it had concluded—not from the evidence presented to the jury—that [Cisneros] was ‘potentially’ not probation eligible.” However, the record shows that the trial court revoked Cisneros’s bond 10 because the jury had found him guilty of the offense and that Cisneros had “bond[ed] out” three times before trial. Cisneros’s complaint about the trial court’s sentence is raised for the first time on appeal. However, no objection is required to preserve an issue that the trial court arbitrarily refused to consider the full range of punishment. See Grado v. State, 445 S.W.3d 736, 741 (Tex. Crim. App. 2014) (finding that the issue invokes a Marin3 category-two right). “A court’s arbitrary refusal to consider the entire range of punishment constitutes a denial of due process.” Id. at 739. Even so, “[a]bsent a clear showing of bias, a trial court’s actions will be presumed to have been correct.” Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006); see Roman v. State, 145 S.W.3d 316, 319 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d) (Unless there is “a clear showing to the contrary, this [C]ourt will presume that the trial court was neutral and detached.”). Here, nothing demonstrates that the trial court arbitrarily failed to consider the full range of punishment or was biased, and Cisneros makes no argument suggesting why he should have been considered for community supervision.4 The record shows that the trial court heard argument from both parties as to the appropriate punishment and reviewed Cisneros’s PSI. The trial court fully explained the reasons for its punishment, which included the acts Cisneros had recently committed within seventeen months before trial, as well as ample evidence showing that 3 See Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993). 4 Cisneros does not argue that he was eligible for community supervision, and it appears that his trial counsel agreed that he was not. See TEX. CODE CRIM. PROC. ANN. art. 42A.053(c). 11 Cisneros could not remain drug-free. The trial court’s comments did not indicate bias or that it had predetermined the sentence or failed to consider the full range of punishment. Because the record does not support Cisneros’s contention that the trial court showed bias by failing to consider the full range of punishment, we overrule his second point of error on appeal. See Brumit, 206 S.W.3d at 645. III. Conclusion We affirm the trial court’s judgment. Charles van Cleef Justice Date Submitted: October 7, 2026 Date Decided: October 8, 2026 Do Not Publish 12