MARY ELLEN WILCOX v. THE STATE OF TEXAS--Appeal from 36th District Court of San Patricio County

NUMBER 13-01-672-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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  MARY ELLEN WILCOX, Appellant,

v.

  THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 36th District Court

of San Patricio County, Texas.

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O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Rodriguez

Opinion by Justice Rodriguez

Appellant, Mary Ellen Wilcox, brings this appeal following a conviction for possession of a controlled substance with intent to deliver. By two points of error, Wilcox contends the trial court erred in finding the evidence legally and factually sufficient to sustain her conviction. We affirm.

I. FACTS

Trooper Alonzo D. Almaraz stopped Wilcox=s vehicle for excessive speed. Wilcox was a passenger in her vehicle and Bobby Ballard was the driver. When the trooper patted down Wilcox and Ballard, he found a glass pipe on Wilcox, which was warm and had drug residue in it. Trooper Almaraz smelled an odor of marijuana coming from the car and found a marijuana cigarette between the passenger seat and the console. He searched Wilcox=s vehicle and found methamphetamine in a cooler, which Ballard claimed to own. The trooper also found dime bags[1] containing residue, which appeared to be methamphetamine, in Wilcox=s luggage. Trooper Almaraz placed Wilcox and Ballard under arrest. At the jail, the trooper also found methamphetamine on Ballard=s person. They were subsequently indicted and convicted of possession of methamphetamine, with intent to deliver.[2]

II. LEGAL SUFFICIENCY

By her first point of error, Wilcox contends the evidence is legally insufficient to support her conviction. Specifically, Wilcox argues there is nothing in the evidence to infer she knew Ballard carried the methamphetamine, or that she had knowledge or possession of the methamphetamine.

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 that 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 she had knowledge or control over the contraband unless there are additional independent facts and circumstances that affirmatively link her 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. h.). 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 consider in determining whether evidence is sufficient to affirmatively link a defendant to contraband. See Lassaint, 2002 Tex. App. LEXIS 4292, at *5-*7.[3] Factors pertinent to this case include the facts that Wilcox was in her own vehicle and that it smelled of marijuana, that Wilcox was in possession of a pipe that was warm, and that she made incriminating statements. See id. at *7.

Additionally, hundreds of empty dime bags were found in Wilcox=s vehicle. Specifically, these dime bags were located in Wilcox=s two purses and fanny pack. Trooper Almaraz testified Wilcox told him the residue in the dime bags was @crystal meth.@ See id. at *7. Furthermore, additional dime bags holding 19.57 grams of methamphetamine were found inside a cooler located in Wilcox=s vehicle. See id. at *6. Wilcox had a scale in her fanny pack, which could be used to measure methamphetamine.

Other evidence linking Wilcox to the contraband was Trooper Almaraz=s tape recording where Ballard was heard telling Wilcox Athey found it@ and warning her not to Avolunteer anything.@ See id.

Viewing the record in the light most favorable to the verdict, we conclude that a rational fact finder could have found Wilcox guilty beyond a reasonable doubt. See Jackson, 443 U.S. at 319. We overrule point of error one.

III. FACTUAL SUFFICIENCY

By her second point of error, Wilcox contends the evidence is factually insufficient to support her 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 is 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

Wilcox had marijuana in her vehicle, dime bags which she admitted contained residue of Acrystal meth,@ and drug paraphernalia in her car and on her body. See Lassaint, 2002 Tex. App. LEXIS 4292, at *6. Based on our analysis above, after a neutral review of all the evidence, and giving appropriate deference to the verdict, we conclude that the verdict is not so against the great weight of the evidence as to be clearly wrong and unjust. See King, 29 S.W.3d at 563. We overrule point of error two.

IV. CONCLUSION

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

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 1st day of August, 2002.

[1]Dime bags is a term used for small bags, usually clear, which are designed to hold small amounts of drugs for personal use.

[2]Ballard is not a party to this appeal.

[3]The nonexclusive list of 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. h.).