Victor Reynosa v. The State of Texas--Appeal from 81st Judicial District Court of Atascosa County

MEMORANDUM OPINION

No. 04-05-00897-CR

Victor Rangel REYNOSA,

Appellant

v.

The STATE of Texas ,

Appellee

From the 81st Judicial District Court, Atascosa County, Texas

Trial Court No. 03-07-0161-CRA

Honorable Stella Saxon , Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone , Justice

Sarah B. Duncan , Justice

Delivered and Filed: October 18, 2006

AFFIRMED

Victor Rangel Reynosa appeals his conviction for possession of a controlled substance asserting that the evidence is legally insufficient to affirmatively link him to the controlled substance. We affirm the trial court's judgment.

Background

Officer Matthew Dear was dispatched to assist Corporal Ramirez in a traffic stop. Upon arriving at the scene, Corporal Ramirez asked Officer Dear to re-identify the two passengers in the vehicle and to ask them where they were coming from and where they were going because the story given by the driver, Victor Ramos, was sketchy. Officer Dear identified the front seat passenger as Mario Sarabia and the rear seat passenger as Reynosa. Both appeared to be nervous. Ramos gave consent to search the vehicle, and Sarabia and Reynosa were removed from the vehicle and searched for weapons. Based on an item found during the search of Reynosa, he was placed in handcuffs. Officer Dear saw track marks on Reynosa's arms, and Reynosa stated that he had just shot up that morning. During the search of the vehicle, Officer Dear observed that the bottom of the rear seat and the back of the rear seat were ajar. When Officer Dear picked up the seat, he discovered a bag of heroin.

Sarabia and Reynosa were taken into custody and placed in the rear seat of Officer Dear's patrol vehicle. While seated in the patrol vehicle, the audio recorder in Officer Dear's vehicle recorded a conversation between Sarabia and Reynosa. Reynosa initially told Sarabia to have Ramos take the rap and for Sarabia to back him up because it was his first offense. Reynosa then told Sarabia to take the rap himself, and Reynosa would back him up. Reynosa said he could not take the rap because he had been in trouble five times, and he would get up to ninety-nine years. Reynosa said that he had forgotten to throw out the "shovel" and stated that he told Sarabia to grab it so Sarabia could break it and toss it outside before they were stopped. Reynosa said he wanted Ramos to get on the expressway rather than pulling over so the heroin could have been thrown outside the car.

Corporal Santos Ramirez stopped the vehicle Ramos was driving when he disregarded a stop sign. While Corporal Ramirez was questioning Ramos, the other two passengers remained in the vehicle. Corporal Ramirez could see some movement but could not "really tell what they were doing." Corporate Ramirez recovered a "wad" of money from Reynosa when he was patted down for weapons. Corporal Ramirez also heard Officer Dear ask Reynosa about the needle track marks on his arm, and heard Reynosa respond that he had shot up that morning.

Standard of Review

In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict in order to determine whether any 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 (1979); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004). When conducting a legal sufficiency review, we may not reevaluate the weight and credibility of the evidence or substitute our judgment for that of the jury. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

Discussion

To prove unlawful possession of a controlled substance, the State must prove that: (1) the accused exercised control, management, or care over the substance; and (2) the accused knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). Whether this evidence is direct or circumstantial, it must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous. Id. at 405-06. This is the whole of the so-called "affirmative links rule," which is designed "to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else's drugs." Id. at 406.

The affirmative links rule provides that when the accused 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. In determining whether sufficient affirmative links exist, we examine such factors as: (1) the defendant's presence when the drugs were found; (2) whether the contraband was in plain view; (3) the defendant's proximity to and the accessibility of the drugs; (4) whether the defendant was under the influence of drugs when arrested; (5) whether the defendant possessed other contraband or drug paraphernalia 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 the defendant owned or had the right to possess the place where the drugs were found; (11) whether the place where the drugs were found was enclosed; (12) whether the defendant was found with a large amount of cash; and (13) whether the conduct of the defendant indicated a consciousness of guilt. Wingfield v. State, 197 S.W.3d 922, 297-28 (Tex. App.--Dallas 2006, no pet.). The number of factors present is not as important as the logical force the factors have in establishing the elements of the offense. Id.

In this case, several of the factors support the trial court's finding that Reynosa possessed the heroin. Reynosa was present when the search was conducted. While not in plain view, the location of the heroin was readily noticeable. The heroin was in close proximity to and accessible by Reynosa. The place where the heroin was found was enclosed. Although Reynosa may not have been under the influence when he was arrested, he admitted that he had shot up that morning and had obvious track marks on his arms. Reynosa made incriminating statements during his conversation with Sarabia, including expressing knowledge that the heroin was in the car and concern that Ramos had not proceeded to the expressway where the heroin could have been thrown out the window. Reynosa was the exclusive passenger in the back seat, and a "wad" of cash was recovered from him. Reynosa's nervous manner and failure to maintain eye contact were some indication that he was conscious of his guilt as were the statements made during his conversation with Sarabia. Accordingly, the evidence is legally sufficient to support his conviction.

Conclusion

The trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH