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)).
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(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
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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
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“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 onehalf 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
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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
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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
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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.
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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.
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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
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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).
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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
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