Kimberly Diane Jimenez v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00310-CR

Kimberly Diane Jimenez,

Appellant

v.

The State of Texas,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2004-86-C

MEMORANDUM Opinion

Kimberly Diane Jimenez was charged and convicted of the felony offence of possession of a controlled substance. Because we find the evidence legally and factually sufficient to uphold the jury s conviction, we affirm.

Background

In the early morning hours of October 2003, Officer Dale Cummings observed a vehicle parked in the southwest corner of the Hampton Inn parking lot in the city of Lacy-Lakeview, north of Waco. As Cummings approached the vehicle, Jimenez got out of the car and began walking toward the officer. Jimenez gave Cummings a false name, but later revealed her true name. She did not have any identification. She told Cummings that she was from Palestine and was waiting for a friend. Upon further questioning, Jimenez stated that she left Palestine three days earlier en route to Hillsboro, became lost, and ultimately arrived at the Hampton Inn parking lot. Cummings later testified that Palestine is approximately an hour and forty-five minutes away from the Waco area. Cummings asked to search her car, and Jimenez agreed. In the driver s seat under a blanket, Cummings found a plastic baggie with a white powdery substance inside that was later identified as 0.02 grams of methamphetamine. Cummings also found a brown case that contained six syringes. Another syringe was found in Jimenez s purse. Jimenez was arrested for the felony offense of possession of a controlled substance. At trial, Cummings testified that Jimenez was extremely fidgety, her hands were shaking and her feet were constantly moving. He described her as unable to stand still. Officer Jonathan Estes, another officer at the scene, testified that Jimenez was exhibiting leg and arm movements, mouth movements and uncontrollable body movements. He attributed this behavior to the influence of narcotics. He also testified that there were needle marks on Jimenez s arms. A jury found Jimenez guilty and she was sentenced to two years confinement.

On appeal, Jimenez argues in two issues that the evidence is legally and factually insufficient to support the verdict.

Analysis

The Evidence is Legally and Factually Sufficient to Support the Verdict.

In Jimenez s first and second issues, she argues that the evidence is legally and factually insufficient to support the verdict.

In a legal sufficiency review, we view all of the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 3d 560 (1979)). We resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

In conducting a factual sufficiency review, we consider[ ] all of the evidence in a neutral light and determine whether the factfinder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).

[T]here are two ways in which the evidence may be [factually] insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met.

Id. at 484-85.

Jimenez was accused of intentionally or knowingly possessing a controlled substance. Tex. Health & Safety Code Ann. 481.115(a) (Vernon 2003). A person possesses a substance when he exercises actual care, custody, control, or management over the substance. Tex. Pen. Code Ann. 1.07(a)(39) (Vernon Supp. 2005). Therefore, the state is required to prove that the accused (1) exercised care, control, and management over the contraband and (2) knew that the substance possessed was contraband. Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981); Guy v. State, 160 S.W.3d 606, 612 (Tex. App. Fort Worth 2005, pet. ref d); Hall v. State, 86 S.W.3d 235, 240 (Tex. App. Austin 2002, pet. ref d).

Jimenez was not the owner of the car in which the methamphetamine was found. When an accused is not in exclusive possession of the place where the substance is found, there must be additional independent facts and circumstances that affirmatively link the accused to the controlled substance, otherwise it cannot be proven that the accused had knowledge and control over the contraband. Deshong, 625 S.W.2d at 329; Guy, 160 S.W.3d at 612; Hunter v. State, 92 S.W.3d 596, 600 (Tex. App. Waco 2002, pet. ref d). Courts have considered several factors that may help to establish an affirmative link, including whether: (1) the contraband was in plain view; (2) the contraband was conveniently accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the accused was the driver of the automobile in which the contraband was found; (5) the contraband was found on the side of the car where the accused was sitting; (6) the place where the contraband was found was enclosed; (7) the odor of the drug found was present in the vehicle; (8) paraphernalia for use of the contraband was in view of or found on the accused; (9) conduct by the accused indicated a consciousness of guilt; (10) the accused had a special connection to the contraband; (11) occupants of the vehicle gave conflicting statements about relevant matters; (12) the physical condition of the accused indicated recent consumption of the same type of contraband found in the vehicle; (13) affirmative statements by the accused connect the accused to the contraband; (14) traces of the contraband were found; (15) a large sum of money was found on the accused; and (16) the amount of contraband found. Guy, 160 S.W.3d at 612-13; Robinson v. State, No. 01-04-591-CR, 2005 Tex. App. LEXIS 5889, *8-10 (Tex. App. Houston [1st Dist.] July 28, 2005, no pet.); Bates v. State, 155 S.W.3d 212, 216-17 (Tex. App. Dallas 2004, no pet.).

While Jimenez was not the owner of the car, she was the sole occupant of the car, stated that she was the driver of the car, and was seen sitting in the driver s seat where the contraband was found. The place that the contraband was found was enclosed, under a blanket in the driver s seat, and was within Jimenez s reach. Drug paraphernalia was found within reach of Jimenez and was also found in her purse. Needle marks were seen on Jimenez s arms. Jimenez gave conflicting statements concerning her name and why she was in the parking lot. Two officers testified that Jimenez s physical condition indicated that she may have been under the influence of narcotics. We find this evidence sufficient to establish an affirmative link between Jimenez and the contraband. Guy, 160 S.W.3d at 612-13; see Bates, 155 S.W.3d at 217 (finding an affirmative link between the contraband and the defendant even though the defendant was not the owner of the car, when the defendant was the driver and sole occupant of the vehicle and the contraband was found in close proximity under the front passengers seat). Accordingly, we find the evidence legally and factually sufficient to support the jury s verdict. See Zuniga, 144 S.W.3d 484-85. We overrule Jimenez s first and second issues.

Conclusion

Having overruled all of Jimenez s issues, we affirm the judgment of the trial court.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed December 14, 2005

Do not publish

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