ROEL FLORES v. THE STATE OF TEXAS--Appeal from 105th District Court of Nueces County

NUMBER 13-01-569-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

ROEL FLORES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court

of Nueces County, Texas.

O P I N I O N

Before Justices Hinojosa, Rodriguez, and Kennedy[1]

Opinion by Justice Kennedy

Appellant was indicted in two counts for possession of heroin and possession of cocaine, each in the amount of less than one gram. See Tex. Health & Safety Code Ann. ' 481.115(b) (Vernon Supp. 2002). The heroin and cocaine were shown to be mixed and contained in a syringe in the pocket of a shirt hanging in a closet.

Appellant waived a jury and the case was tried before the court, which found him guilty on each count and assessed punishment at confinement for two years for each count, the sentences to run concurrently.

In his single point of error, appellant alleges insufficiency of the evidence to affirmatively link him to the contraband seized as the result of the execution of a search and arrest warrant. The affidavit for the warrant named two individuals other than appellant and Aall other parties presently unknown to affiant.@ We affirm.

The warrant was executed by City of Robstown police officers who entered the premises designated and found therein appellant and his wife, his sister, and his child. All but the child were handcuffed and a search of the premises ensued. The apartment was leased to appellant=s wife.

One of the officers searched a closet and found a man=s shirt with a syringe containing the mixture of heroin and cocaine in a pocket. Appellant was the only occupant of the premises who was arrested.

The testimony of one of the arresting officers is that when asked about the contraband, appellant stated it was his. Appellant testified that he told this to the officer because he did not want his wife and sister taken to jail and his son taken to Child Protective Services. The officer also testified that he asked appellant if there was anything else in the apartment, and appellant replied that there was a syringe and a Acooker@ in the kitchen. The officer further testified that appellant stated that everything was his.

The trial judge heard the testimony of both the officer and appellant and found appellant guilty. We defer to the factfinder=s determination of the credibility of the witnesses and the weight to be given their testimony, and to its resolutions of conflicts in the evidence. Scott v. State, 914 S.W.2d 628, 629 (Tex. App.BTexarkana 1995, no pet.); see Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc) (the fact finder is the sole judge of the weight and credibility given to witness testimony).

It is not clear whether appellant=s issue raises factual insufficiency or legal insufficiency of the evidence in this appeal. In the interest of justice, we interpret appellant=s brief as challenging both the legal and factual sufficiency of the evidence to support his conviction.

In reviewing legal insufficiency, we look at all of the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); Johnson, 23 S.W.3d at 7.

In reviewing factual insufficiency, we look at all of the evidence in a neutral light, and will reverse only if the evidence supporting guilt is so obviously weak as to render the conviction clearly wrong and manifestly unjust, or if that evidence, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez, 67 S.W.3d at 236 (citing Johnson, 23 S.W.3d at 7). Although a reviewing court has, in a factual sufficiency review, some authority to disregard evidence that supports the verdict, it must be appropriately deferential so as to avoid substituting its own judgment for that of the fact finder. Id. (citing Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000)).

The evidence is neither legally nor factually insufficient to prove that the contraband belonged to appellant. We overrule the single point of error and AFFIRM the judgment of the trial court.

NOAH KENNEDY

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 22nd day of August, 2002.

[1]Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. '74.003 (Vernon 1998).