MARCELO ALVAREZ, JR. v. THE STATE OF TEXAS--Appeal from 107th District Court of Cameron County

NUMBER 13-01-371-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

  MARCELO ALVAREZ, JR., Appellant,

v.

  THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 107th District Court

of Cameron County, Texas.

__________________________________________________________________

O P I N I O N

Before Justices Dorsey, Hinojosa, and Rodriguez

Opinion by Justice Rodriguez

Appellant, Marcelo Alvarez, Jr., brings this appeal following his conviction for possession of cocaine. By two points of error, Alvarez contends the jury erred in finding the evidence legally and factually sufficient to sustain his conviction. We affirm.

I. FACTS

Officer Rene Garza stopped Alvarez for reckless driving. Garza arrested Alvarez and drove him directly to jail in his patrol car. During the booking process, Garza recovered a substantial amount of money from Alvarez, which he believed was used in the purchase or sale of cocaine.[1] Garza testified Alvarez was in a hurry to pay his fine and leave the jail. When Garza returned to his patrol car, he discovered two small bags of cocaine where Alvarez had been sitting. A jury found Alvarez guilty of possession of cocaine, sentenced him to two years in the penitentiary, and assessed a $5,000 fine.

II. LEGAL SUFFICIENCY

By his first point of error, Alvarez contends the evidence is legally insufficient to support his conviction. Specifically, Alvarez argues there is nothing in the evidence to infer he intentionally or knowingly possessed cocaine, or that he knew the substance was cocaine.

A. Standard of Review

In reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Blankenship v. State, 780 S.W.2d 198, 206-07 (Tex. Crim. App. 1988).

B. Analysis

To prove intentional or knowing possession of a controlled substance beyond a reasonable doubt, the State must show that a defendant exercised actual care, control and management over the contraband, and he had knowledge the substance in his possession was contraband. See King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). When an accused is not in exclusive possession and control of the place where the contraband is found, it cannot be concluded he had knowledge or control over the contraband unless there are additional independent facts and circumstances that affirmatively link him to the contraband. Lassaint v. State, No. 13-01-587-CR, 2002 Tex. App. LEXIS 4292, at *4 (Corpus Christi June 13, 2002, no pet.). Similarly, when contraband is not found on the accused=s person or it is not in the exclusive possession of the accused, additional facts and circumstances must link the accused to the contraband. Menchaca v. State, 901 S.W.2d 640, 651 (Tex. App.BEl Paso 1995, pet. ref=d). Ultimately, the question of whether the evidence is sufficient to affirmatively link the accused to the contraband must be answered on a case by case basis. Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.BAustin 1991, pet. ref=d).

This Court has listed numerous factors to determine if evidence is sufficient to affirmatively link a defendant to contraband. See Lassaint, 2002 Tex. App. LEXIS 4292, at *5-*7.[2] Factors pertinent to this case include the facts that Alvarez was found with a large amount of cash, the cocaine was found in close proximity to where he was sitting in the patrol car, and he was in a hurry to leave the jail before Garza discovered the cocaine. See id. at *6. Garza also testified he checked under the seats of his patrol car before starting his shift and nothing was there; Alvarez was the only person he arrested that day. See Garcia v. State, 871 S.W.2d 769, 770 (Tex. App.B Corpus Christi 1994, pet. ref=d). Viewing the record in the light most favorable to the verdict, we conclude that a rational fact finder could have found Alvarez guilty beyond a reasonable doubt. See Jackson, 443 U.S. at 319. Alvarez=s first point of error is overruled.

III. FACTUAL SUFFICIENCY

By his second point of error, Alvarez contends the evidence is factually insufficient to support his conviction.

A. Standard of Review

In applying a factual sufficiency review, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). However, we are not free to reweigh the evidence and set aside a jury verdict merely because a different result is more reasonable. See id. This Court will set aside a verdict only if it so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Santellan v. State, 939 S.W.2d 155, 164-65 (1997).

B. Analysis

Based on the facts and our above analysis, and after a neutral review of all the evidence and giving appropriate deference to the verdict, we conclude the verdict is not against the great weight of the evidence to be clearly wrong and unjust. See King, 29 S.W.3d at 563. Alvarez=s second point of error is overruled.

IV. CONCLUSION

We hold the evidence is both legally and factually sufficient to support the conviction of Alvarez. Accordingly, we affirm the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 29th day of August, 2002.

[1]Alvarez had $500, mostly in $20 bills. Officer Garza testified that it is common to buy and sell cocaine in amounts of $20.

[2]The nonexclusive list of the factors is as follows:

1) if contraband is in plain view or recovered from enclosed place; 2) accused was owner of premises or had a right to possess the place where contraband found, was owner or driver of automobile where contraband found; 3) accused found with large amount of cash; 4) contraband was conveniently accessible to accused; 5) contraband found in close proximity to accused; 6) odor of contraband present; 7) accused possessed contraband when arrested; 8) drug paraphernalia in plain view or on accused; 9) physical condition of accused indicated under influence of contraband; 10) conduct by accused indicated a consciousness of guilt; 11) accused attempted to escape or flee; 12) accused made furtive gestures; 13); accused had special connection to contraband; 14) occupants of premises gave conflicting statements about relevant matters; 15) accused made incriminating statements to connect himself to contraband; 16) quantity of contraband; and, 17) accused observed in suspicious area under suspicious circumstances.

Lassaint v. State, No. 13-01-587-CR, 2002 Tex. App. LEXIS 4292, at *5-*7 (Corpus Christi June 13, 2002, no pet.).