Alejandro Villarreal v. The State of Texas--Appeal from 229th Judicial District Court of Duval County

MEMORANDUM OPINION
No. 04-02-00242-CR
Alejandro VILLARREAL,
Appellant
v.
The STATE of Texas,
Appellee
From the 229th Judicial District Court, Duval County, Texas
Trial Court No. 01-CR-35
Honorable Alex W. Gabert, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: April 9, 2003

AFFIRMED

Alejandro Villarreal was convicted of possession of cocaine and sentenced to thirty-five years in prison. He appeals, contending the evidence is legally insufficient to establish the requisite affirmative links between him and the cocaine. We disagree and affirm the trial court's judgment.

On the morning of November 10, 2000, JoAnn Villarreal told the police that her father, Alejandro Villarreal, was doing and selling illegal drugs from their home and using her younger siblings to package and distribute drugs to customers. On this information, Officer Romeo Ramirez presented an affidavit and received a search warrant for the Villarreal premises. The search warrant was executed around 6:30 p.m.. In the search of Villarreal's residence, police discovered a small medicine bottle labeled "Inositol," a known drug cutting agent, and clear plastic bag corners and ties, a well-known means of packaging cocaine and heroin. However, the police did not find any drugs or large quantities of money.

Alejandro Villarreal was not present when the search warrant was executed; according to JoAnn, he and his friend, Rolando Carrillo, had gone to Corpus Christi in Carrillo's truck to purchase more drugs. Around 7:30 p.m., Carrillo and Villarreal returned; Carrillo was driving. At first, Villarreal got out of the truck. Then, noticing the officers, he immediately got back in and attempted to leave. However, Officer Ramirez approached the truck and ordered the men to exit the truck. Ramirez smelled the odor of marihuana emanating from the vehicle and, with his flashlight, could see marihuana residue on the dash and floorboards of the vehicle. When the officers searched the vehicle, they found thirty-five grams of cocaine in a closed center console on the interior roof of the truck above the rear view mirror. Both men denied knowledge of the cocaine; Carrillo said it must have been left by a person to whom he had loaned his truck.

The State was required to prove that Villarreal knew he possessed the cocaine and exercised actual care, custody, and control over it. See Tex. Health & Safety Code Ann. 481.002(38), 481.115 (Vernon Supp. 2002); Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). If Villarreal did not have exclusive control of the cocaine, the State was required to prove additional affirmative links between it and Villarreal. Brown, 911 S.W.2d at 747 (Tex. Crim. App. 1995);Martin v. State, 753 S.W.2d 384, 386 (Tex. Crim. App. 1988). The affirmative links must raise a reasonable inference that Villarreal knew of and controlled the contraband; mere presence is insufficient to demonstrate possession. Brown, 911 S.W.2d at 747. Factors that have been considered in establishing affirmative links include: (1) presence when the search is executed; (2) contraband in plain view; (3) proximity to and accessibility of the contraband; (4) being under the influence of contraband when arrested; (5) possession or presence of other contraband (6) incriminating statements; (7) attempted flight; (8) furtive gestures; (9) odor of the contraband; (10) right to possession of the place where contraband was found; and (12) drugs found in an enclosed space. See Hall v. State, 86 S.W.3d 235, 241 (Tex. App.-Austin 2002, pet. ref'd); Rischer v. State, 85 S.W.3d 839, 843 (Tex. App.-Waco 2002, no pet.) . However, there is no set formula necessitating a finding of an affirmative link; affirmative links are established by the totality of the circumstances. Rischer, 85 S.W.3d at 843.

Villarreal contends the only proven affirmative link is his mere presence, as a passenger, in the truck. We disagree. The State provided numerous factors to affirmatively link Villarreal to the cocaine found in the truck. Before Villarreal's arrival, drug paraphernalia had been discovered in his residence. Upon arriving and noticing the police, Villarreal attempted to remove himself from the scene. Villarreal was seated in the truck when officers smelled and found marijuana residue on the dashboard of the truck in plain view, which led to the search and discovery of the cocaine. Villarreal's daughter testified that the two men were returning from purchasing drugs in Corpus Christi. The cocaine was accessible to both the driver and passenger and was discovered in an enclosed space.

Viewing this evidence in the light most favorable to the verdict, we hold a rational trier of fact could have found sufficient affirmative links to support the essential elements of control and knowledge beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). We therefore affirm the trial court's judgment.

Sarah B. Duncan, Justice

Do not publish