Martinez, Alfredo D. v. The State of Texas--Appeal from 21st District Court of Washington County

Affirmed and Opinion filed July 28, 2005

Affirmed and Opinion filed July 28, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00374-CR

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 ALFREDO D. MARTINEZ, Appellant

V.

 THE STATE OF TEXAS, Appellee

On Appeal from the 21st District Court

 Washington County, Texas

Trial Court Cause No. 14,015

O P I N I O N

A jury found appellant, Alfredo Martinez, guilty of possession of more than four, but less than 200 grams of cocaine. Appellant pled true to two enhancement paragraphs, and the trial court assessed punishment at thirty-five years= confinement. Asserting one issue for review, appellant contends the evidence is legally insufficient to support his conviction for possession of cocaine. We affirm.

Factual Background

On May 17, 2003, Washington County Sheriff=s Deputy Jerry Maywald followed a car and its three occupants into a convenience store parking lot after the car was reported as a Asuspicious vehicle.@ Appellant=s girlfriend, Denise Thebeault, owned the car, and her son Adam was driving the car. Appellant and Denise were sitting in the back seat, with appellant sitting directly behind the driver=s seat, and Denise sitting on the right side of the car.

Maywald turned on a video camera inside his patrol car and videotaped the complete interchange with appellant, Denise and Adam. The videotape was introduced into evidence and played before the jury. The videotape shows that Maywald walked to a sidewalk directly in front of the parked car. Maywald testified he saw appellant and Denise Akind of moving stuff around@ and saw appellant Afiddling with something@ that was possibly in his lap. Appellant exited the car and talked with Maywald. Maywald obtained identification from all three of the car=s occupants, radioed the ID information to the dispatcher, and learned that there was an outstanding arrest warrant issued for appellant.

Several other officers arrived at the scene. Appellant was patted down and the officers found a hollow car antenna in his pocket. Deputies Maywald and Gomez testified that, although appellant=s antenna was not altered, antennas are commonly used as pipes to smoke crack cocaine.

The officers searched the car and found contraband and paraphernalia. In the center of the rear seat floorboard on the driver=s side, hidden underneath a pair of pants, the officers found an open glass jar containing a milky liquid. The jar=s lid was on the floorboard near the open jar. The liquid in the glass jar field-tested positive for cocaine. Maywald testified the rear seat of the car was wet, and on the videotape officers can be heard saying there was powder and residue on the backseat and liquid on the floorboard. Further, on the passenger=s side backseat floorboard, officers found a crack pipe wrapped in a paper towel on top of Denise=s purse and two syringes inside the purse, one used and one filled with liquid cocaine. Officers also found other drug paraphernalia, described later in this opinion.

The videotape shows Denise and her son each going in and out of the car at least three times after appellant exited the car, but neither of them reached over to the area where appellant had been sitting, where the glass jar containing the liquid and cocaine was found.

LEGAL SUFFICIENCY

In his sole issue, appellant contends the evidence is legally insufficient to sustain his conviction for possession of cocaine. Specifically, appellant argues the State did not establish that he knowingly or intentionally possessed the cocaine-tainted liquid in the glass jar because the evidence does not affirmatively link him to the jar.

A. Standard of Review

In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 n.12 (1979); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). In deciding whether the evidence is sufficient to link the defendant to the contraband, the trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. Poindexter, 153 S.W.3d at 406. When conducting our review, we do not re-weigh the evidence or substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).

B. Affirmative Link Analysis

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 matter he possessed was contraband. See Poindexter, 153 S.W.3d at 405;Linton v. State, 15 S.W.3d 615, 618 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). While the element of possession may be proved by direct or circumstantial evidence, such evidence 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 405B06. Thus, the evidence must Aaffirmatively link@ the defendant to the offense. See id. at 406;McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985). The thrust of appellant=s complaint is that the State did not Aaffirmatively link@ him to the cocaine. We disagree.

Circumstantial evidence relevant to establish an Aaffirmative link@ between an appellant and the contraband include:

(1) appellant=s presence near where the contraband was discovered;

(2) whether the contraband was in plain view;

(3) appellant=s proximity to and accessibility of the narcotic;

(4) whether appellant was under the influence of narcotics when arrested;

(5) whether appellant possessed other contraband when arrested;

(6) whether appellant made incriminating statements when arrested;

(7) whether appellant attempted to flee;

(8) whether appellant made furtive gestures;

(9) whether there was an odor of the contraband;

(10) whether other contraband or drug paraphernalia was present;

(11) whether the place where the drugs were found was enclosed; and

(12) whether appellant owned or had the right to possess the place where the drugs were found.

Chavez v. State, 769 S.W.2d 284, 288B89 (Tex. App.CHouston [1st Dist.] 1989, pet. ref=d). The links need not be so strong as to rule out every other possibility except the defendant=s guilt. Reed v. State, 158 S.W.3d 44, 47 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). Additionally, the State is not required to prove the defendant had sole possession of the contraband, only that there are affirmative links between the defendant and the drugs such that he knew of the drugs and constructively possessed them. See Poindexter, 153 S.W.3d at 412.

 1. Appellant=s Presence Near Where the Contraband was Discovered

Here, the contraband appellant was charged with possessing was discovered on the center of the rear seat floorboard on the driver=s side, directly in front of where appellant sat and in a position immediately where appellant would have placed his feet.

 2. Appellant=s Proximity To and Accessibility of the Narcotic

The contraband was within arms reach of appellant and was directly accessible to where he was sitting in the car.[1]

3. Whether Appellant Made Furtive Gestures

The jury could have inferred appellant=s movements and Afiddling@ inside the vehicle were furtive gestures.

4. Whether Other Contraband or Drug Paraphernalia was Present

The contraband and drug paraphernalia found inside the vehicle included three pipes,[2] one used syringe, one syringe loaded with liquid cocaine, prescription drugs, a plastic bottle containing 3.46 grams of liquid cocaine, baking soda, steel wool,[3] a clear tube with metal screens, a wet sponge,[4] and a plastic bag containing powder cocaine.

Officers also discovered a hollow antenna in appellant=s pocket when he was patted down. Maywald testified that the type of antenna found in appellant=s pocket is commonly used as a pipe to smoke crack cocaine.

5. Plain View and Actual Possession

Although the contraband inside the jar would not have been within appellant=s plain view while it was concealed under a pair of pants, a rational jury could have found the contraband was within appellant=s plain view shortly before the car parked in the convenience store parking lot.

Specifically, the jury could have found that, while the car was being driven on the dirt road and highway just before it turned into the parking lot, the open jar containing the liquid and cocaine could not have remained upright without somebody holding the open jar between their feet or in their hands. The jury could have believed the jar containing the liquid cocaine had recently been handled by the backseat occupants because the rear seat of the car where they sat was wet and powder and residue were all over the backseat. Additionally, the jury could have believed that when Maywald walked by the car, appellant was Afiddling@ with the glass jar and Amoving@ a pair of pants on top of it. The jury could have reasonably concluded the contraband was within appellant=s plain view and that appellant was physically holding and hiding the contraband moments before his arrest.

Based on the foregoing, we conclude there was sufficient evidence to affirmatively link appellant to the seized cocaine. A rational trier of fact could have found beyond a reasonable doubt that appellant exercised care, custody, control, and management over the contraband and that appellant knew the substance possessed was contraband. Thus, we overrule appellant=s sole issue.

CONCLUSION

Accordingly, we affirm the judgment of the trial court.

/s/ Margaret Garner Mirabal

Senior Justice

Judgment rendered and Opinion filed July 28, 2005.

Panel consists of Justices Yates, Hudson, and Mirabal.[5]

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

[1] The glass jar containing the liquid and cocaine was not tested for the presence of latent fingerprints.

[2] One of the pipes appears to have been found on appellant=s side of the backseat.

[3] Deputy Maywald testified that it is a common practice to use steel wool while smoking crack cocaine from an antenna.

[4] On the videotape of the search entered into evidence, one of the officers said a sponge is used to load a syringe.

[5] Senior Justice Margaret Garner Mirabal sitting by assignment.