Luis Flores Saucedo v. State of Texas--Appeal from County Court of Gaines County

Opinion filed August 2, 2007

In The

Eleventh Court of Appeals

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   No. 11-06-00022-CR

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  LUIS FLORES SAUCEDO, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the County Court

Gaines County, Texas

Trial Court Cause No. 14,842

O P I N I O N

The trial court convicted Luis Flores Saucedo of the Class A misdemeanor offense of possession of less than twenty-eight grams of the controlled substance, hydrocodone. See Tex. Health & Safety Code Ann. ' 481.117(a), (b) (Vernon 2003). The trial court assessed punishment at one year in the Gaines County Jail and a fine of $4,000. In a single issue on appeal, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. Because the evidence is legally insufficient to support appellant=s conviction, we reverse the judgment and render a judgment of acquittal.

Standards of Review

In order to determine if the evidence is legally sufficient, we must review all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. In a bench trial, the trial court, as the trier of fact, is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995).

In cases involving unlawful possession of a controlled substance, the State must prove that the accused exercised control, management, or care over the substance and that the accused knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). When the accused is not shown to have had exclusive possession of the place where the contraband was found, the evidence must affirmatively link the accused to the contraband. Pollan v. State, 612 S.W.2d 594 (Tex. Crim. App. 1981). The Court of Criminal Appeals has recently stated that the legal issue with respect to such Alinks@ is Awhether there was evidence of circumstances, in addition to mere presence, that would adequately justify the conclusion that the defendant knowingly possessed the substance.@ Evans v. State, 202 S.W.3d 158, 161-62 n.9 (Tex. Crim. App. 2006).

Several factors may help to establish an affirmative link between the accused and the contraband, including, among others, the following: (1) whether the contraband was in plain view; (2) whether the contraband was conveniently accessible to the accused; (3) whether the accused was the owner of the place where the contraband was found; (4) whether the accused was the driver of the vehicle in which the contraband was found; (5) whether the contraband was found on the side of the vehicle where the accused was sitting; (6) whether the place where the contraband was found was enclosed; (7) whether the odor of the drug found was present in the vehicle; (8) whether paraphernalia for use of the contraband was in view or found on the accused; (9) whether conduct of the accused indicated a consciousness of guilt; (10) whether the accused had a special connection to the contraband; (11) whether the occupants of the vehicle gave conflicting statements about relevant matters; (12) whether the physical condition of the accused indicated recent consumption of the contraband found in the vehicle; (13) whether affirmative statements by the accused connected the accused to the contraband; (14) whether traces of the contraband were found; (15) whether a large sum of money was found on the accused; and (16) the amount of contraband found. See Robinson v. State, 174 S.W.3d 320, 325-26 (Tex. App.CHouston [1st Dist.] 2005, pet. ref=d). No set formula exists to dictate a finding of affirmative links sufficient to support an inference of knowing possession of contraband. Taylorv. State, 106 S.W.3d 827, 831 (Tex. App.C Dallas 2003, no pet.). The number of factors present is not as important as the logical force or the degree to which the factors, alone or in combination, tend to affirmatively link the accused to the contraband. Bates v. State, 155 S.W.3d 212, 216-17 (Tex. App.CDallas 2004, no pet.); Hurtado v. State, 881 S.W.2d 738, 743 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d); Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.CAustin 1991, pet. ref=d).

Evidence at Trial

The State called only one witness, Seminole Police Officer Theodore Wadzeck. Appellant neither testified nor called any witnesses. The following is a summary of Officer Wadzeck=s testimony.

On September 8, 2005, at about 11:15 a.m., Officer Wadzeck observed a 1991 Chevrolet pickup with an expired registration sticker. Based on this observation, Officer Wadzeck initiated a traffic stop of the pickup. At the time of the stop, appellant was driving the pickup, and appellant=s brother, Ricardo Saucedo, was a passenger in the pickup. Officer Wadzeck determined that appellant was the owner of the pickup.

Based on Officer Wadzeck=s knowledge that Ricardo was a known user of narcotics and was known to associate with people who used narcotics, Officer Wadzeck wanted to question appellant Ato get a feel for him.@ At Officer Wadzeck=s request, appellant exited the vehicle for questioning. Appellant did not appear to be under the influence of drugs and answered all of Officer Wadzeck=s questions. However, because suspicions arose in Officer Wadzeck=s mind during his conversation with appellant, Officer Wadzeck requested appellant=s consent to search the pickup. Appellant verbally consented to the search, and Officer Wadzeck conducted a search of the pickup. During the search, Officer Wadzeck found a sandwich bag containing six pills in a console area located at the bottom of the passenger side door. The pills were pinkish in color, and each of the pills was labeled AWatson 502.@ The pills were not in a prescription bottle, and the sandwich bag containing the pills was not marked or labeled in any way. Officer Wadzeck did not know what the pills were. Officer Wadzeck believed that appellant probably could not have seen the sandwich bag in the passenger side compartment from where appellant was sitting in the driver=s seat. Appellant would have had to have reached over Ricardo to get the bag. Officer Wadzeck asked appellant and Ricardo if they knew anything about the pills or why the pills were in the pickup. Appellant and Ricardo told Officer Wadzeck that they did not know anything about the pills or how the pills got in the pickup. They claimed that the pills may have belonged to their niece. Officer Wadzeck did not find any other contraband during the search.

With the help of the Poison Control Center, Officer Wadzeck determined that the pills contained hydrocodone and acetaminophen. Because appellant and Ricardo both denied knowledge of the pills and because Officer Wadzeck believed that appellant and Ricardo both had custody and control of the pills, Officer Wadzeck arrested both of them for possession of hydrocodone. Officer Wadzeck believed that appellant had custody and control of the pills because appellant owned the pickup and was driving the pickup at the time of the stop. Officer Wadzeck believed that Ricardo had custody and control of the pills because Officer Wadzeck found the pills Aright next@ to where Ricardo had been sitting in the passenger seat. The State introduced the pills into evidence, and appellant stipulated that the pills contained hydrocodone with an aggregate weight, including any adulterants and dilutants, of less than twenty-eight grams. The State also introduced into evidence a videotape of the stop.

Analysis

The evidence showed that appellant was the owner and the driver of the pickup where the hydrocodone pills were found. These facts potentially linked appellant to the pills. However, there was no other evidence linking appellant to the pills. The pills were not found on the side of the vehicle where appellant was sitting. Rather, Officer Wadzeck found the pills in the console area at the bottom of the passenger side door. He found the pills Aright next@ to where Ricardo had been sitting. Appellant could not get to the pills without reaching over Ricardo. As such, the pills were not conveniently accessible to appellant. The pills were not in plain view. Officer Wadzeck testified that appellant probably could not have seen the sandwich bag from where he was sitting. Appellant was cooperative and did not appear to be under the influence of any drugs. Appellant did not make any statements connecting himself to the pills, and appellant and Ricardo did not make any conflicting statements about the pills. There was no evidence that appellant engaged in any conduct indicating a consciousness of guilt, that appellant made any furtive gestures in an attempt to hide the pills, or that appellant ever reached over toward the passenger side of the pickup.

After reviewing all of the evidence, we hold that the evidence is legally insufficient to support appellant=s conviction. Although appellant was the owner and the driver of the pickup, no other evidence linked him to the pills. Therefore, the circumstances do not justify the trial court=s conclusion that appellant exercised control, management, or care over the pills or that appellant knowingly possessed the pills. We sustain appellant=s issue.

This Court=s Ruling

We reverse the trial court=s judgment and render a judgment of acquittal.

TERRY McCALL

JUSTICE

August 2, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.