RAYMOND CANCHOLA v. THE STATE OF TEXAS--Appeal from 117th District Court of Nueces County

NUMBER 13-06-040-CR

 
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

RAYMOND CANCHOLA, Appellant,

 

v.

 

THE STATE OF TEXAS, Appellee.

On appeal from the 117th District Court of Nueces County, Texas.

MEMORANDUM OPINION

 
Before Justices Hinojosa, Rodriguez, and Garza
Memorandum Opinion by Justice Garza

Appellant, Raymond Canchola, was indicted for possession of an immediate precursor, with the intent to manufacture methamphetamine (count one), see Tex. Health & Safety Code Ann. 481.124(a)(2) (Vernon Supp. 2005 ), and for possession of less than one gram of methamphetamine (count two), see Tex. Health & Safety Code Ann. 481.102(6) (Vernon Supp. 2005), 481.115(a), (b) (Vernon 2003). Appellant pleaded not guilty. A jury found appellant guilty of both offenses and sentenced him to fourteen years' imprisonment for count one, and two years' imprisonment for count two. On appeal, appellant contends the evidence is legally and factually insufficient to support his convictions. We reverse the trial court's judgment and render a judgment of acquittal as to count one, and affirm the judgment of the trial court as it relates to count two.

I. Factual Background

On April 22, 2005, appellant was stopped by a Corpus Christi Police Officer for not having motor vehicle registration and inspection stickers on the car he was driving. Appellant did not produce a driver's licence or proof of insurance. The officer gave appellant a citation and impounded the vehicle. When conducting an inventory of the items in the vehicle, officers found what they believed to be the components of a meth lab. (1) Officers then froze the scene and called the Special Services Division of the Narcotics Unit of the Corpus Christi Police Department to take over. Special Services found a substance in one of the components that tested positive for a substance that was "three quarters of the way" to becoming methamphetamine. Appellant was subsequently charged with possession of an immediate precursor, with the intent to manufacture methamphetamine and for possession of less than one gram of methamphetamine.

II. Standard of Review

When reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict 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); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). This standard is applicable in both direct and circumstantial evidence cases. Chambers v. State, 711 S.W.2d 240, 244-45 (Tex. Crim. App. 1986). We are not fact finders; our role is that of a due process safeguard, ensuring only the rationality of the trier of fact's finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).

In a factual-sufficiency review, the evidence is viewed in a neutral light, favoring neither party. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In this neutral light, we determine whether (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight of the evidence. Coleman v. State, 131 S.W.3d 303, 307 (Tex. App.-Corpus Christi 2004, pet. ref'd). A clearly wrong and unjust verdict occurs where the jury's finding "shocks the conscience" or "clearly demonstrates bias." Santellan v. State, 939 S.W.2d 155, 164-65 (Tex. Crim. App. 1997). We are authorized to disagree with the fact finder's verdict even if there is probative evidence that exists that supports the verdict. Id. at 164.

In a criminal conviction, sufficiency of the evidence is determined by the elements of the crime as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The correct charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id.

III. Offenses

A. Count I

In count one, appellant was convicted for possession of an immediate precursor, to wit: ethyl ether, with the intent to manufacture methamphetamine. See Tex. Health & Safety Code Ann. 481.124(a)(2). The elements of the offense are that (1) a person (2) with the intent to unlawfully manufacture a controlled substance (3) possesses or transports (4) an immediate precursor. See id.

On appeal, appellant argues that the evidence is legally and factually insufficient to support the jury's finding that he was in knowing possession, custody or control of an immediate precursor, with the intent to manufacture methamphetamine. The State concedes error requiring the conviction for count one be reversed and a judgment of acquittal be entered thereon.

The State points out that ethyl ether is not designated as an immediate precursor by the Director of the Texas Department of Public Safety. See Tex. Health & Safety Code Ann. 481.002(11) (Vernon Supp. 2005) (defining "director" to be the "director of the Department of Public Safety or an employee of the department designated by the director"). The State refers us to section 481.002(22) of the health and safety code which provides:

"Immediate precursor" means a substance the director finds to be and by rule designates as being:

 

(A) a principal compound commonly used or produced primarily for use in the manufacture of a controlled substance;

 

(B) a substance that is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance; and

 

(C) a substance the control of which is necessary to prevent, curtail, or limit the manufacture of a controlled substance.

 

Tex. Health & Safety Code Ann. 481.002(22) (Vernon Supp. 2005). The State acknowledges that "ethyl ether is not designated as an immediate precursor on the list promulgated by the director, nor were any of the substances on that list tied to ethyl ether in the evidence presented at trial." See 37 Tex. Admin. Code 13.116 (2006) (Immediate Precursor List). Accordingly, the State agrees that appellant's conviction for count one should be reversed and acquittal entered thereon. We agree. Therefore, we will sustain appellant's issues as they relate to count one, reverse appellant's conviction for possession of ethyl ether as an immediate precursor, with the intent to manufacture methamphetamineand render a judgment of acquittal as to count one.

B. Count 2

In count two, appellant was convicted of possession of methamphetamine. See Tex. Health & Safety Code Ann. 481.102(6), 481.115(a), (b). A person commits an offense if he knowingly or intentionally possesses methamphetamine in the amount of less than one gram. See id. 481.102(6), 481.115(a), (b). To support a conviction for possession of less than one gram of methamphetamine, the State must prove two evidentiary requirements: first, the accused exercised control, management, or care over the substance; and second, that he had knowledge that the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005) (citing Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995); Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988)).

When a defendant is not in exclusive possession of the place where the controlled substance is found, the State must prove additional independent facts and circumstances that affirmatively link the defendant to the contraband in such a way that it can be concluded that the defendant had knowledge of the contraband and exercised control over it. Poindexter, 153 S.W.3d at 406; Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). Affirmative links may be proved with circumstantial evidence, but if the proof only amounts to "a strong suspicion or even a probability," it will not suffice. Jenkins v. State, 76 S.W.3d 709, 712 (Tex. App.-Corpus Christi 2002, pet. ref'd). Affirmative links are established when the evidence, direct or indirect, establishes "that the accused's connection with the drug was more than just fortuitous." Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). Evidence that affirmatively links a defendant to contraband suffices for proof that the defendant possessed it knowingly and exercised care, control, and management over it. See Brown, 911 S.W.2d at 747; see also Jenkins, 76 S.W.3d at 712.

Courts have identified a number of factors that may help to show an affirmative link to controlled substances. See, e.g., Poindexter, 153 S.W.3d at 406; Jenkins, 76 S.W.3d at 712-13; Lassaint v. State, 79 S.W.3d 736, 740 (Tex. App.-Corpus Christi 2002, no pet.);Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). The following is a non-exclusive list of factors that have been found to affirmatively link a defendant to contraband: (1) whether the contraband was in plain view or recovered from an enclosed place; (2) the accused was the owner of the premises or had the right to possess the place where the contraband was found, or the owner or driver of the automobile in which the contraband was found; (3) the accused was found with a large amount of cash; (4) the contraband was conveniently accessible to the accused, or found on the same side of the vehicle as the accused was sitting; (5) the contraband was found in close proximity to the accused; (6) a strong residual odor of the contraband was present;

(7) the accused possessed other contraband when arrested; (8) paraphernalia to use the contraband was in view, or found on the accused; (9) the physical condition of the accused indicated recent consumption of the contraband in question; (10) conduct by the accused indicated a consciousness of guilt; (11) the accused attempted to flee; (12) the accused made furtive gestures; (13) the accused had a special connection to the contraband; (14) the occupants of the premises gave conflicting statements about relevant matters; (15) the accused made incriminating statements connecting himself to the contraband; (16) the quantity of the contraband; and (17) the accused was observed in a suspicious area under suspicious circumstances. See Poindexter, 153 S.W.3d at 406; Jenkins, 76 S.W.3d at 712-13; Lassaint, 79 S.W.3d at 740; Gilbert, 874 S.W.2d at 298. It is not the number of factors present that is important, but, rather, the "logical force" that they create to prove that the defendant knowingly possessed the controlled substance. Jenkins, 76 S.W.3d at 713 (citations omitted). The defendant's actions toward the contraband or the police may be considered an affirmative link. Payne v. State, 480 S.W.2d 732, 734 (Tex. Crim. App. 1972); Granados v. State, 843 S.W.2d 736, 740 (Tex. App.-Corpus Christi 1992, no pet.).

Appellant asserts that the evidence affirmatively linking him to the methamphetamine is legally and factually insufficient to support his conviction because he did not exercise actual care, control, and management over the methamphetamine.

In the light most favorable to the verdict, the record shows the following affirmative links between appellant and the methamphetamine: appellant was the driver of the vehicle in which the contraband was found; appellant appeared uneasy beyond the officer's usual experience when stopping people; some syringes, coffee filters, tubing, and spoons were found in a brown suitcase with a carrying strap; a coffee filter containing a brown powder substance tested positive for methamphetamine; a coffee filter containing red residue also tested positive for methamphetamine; appellant's sister connected appellant to the bag in which the methamphetamine was found (2); when told the vehicle was going to be impounded, appellant blurted out two or three times, "she's not involved;" appellant told Officer Beach that he was a meth user and had bought $100 of methamphetamine from Doug James the previous evening; appellant stated he "sort of" knew what was in the containers or in the canister; and appellant also told Officer Beach that there were syringes under the driver's seat. Based on these facts, a rational trier of fact could have found beyond a reasonable doubt that appellant possessed methamphetamine. Accordingly, we hold that the evidence is legally sufficient to support appellant's conviction for possession.

Appellant also contends that the evidence is factually insufficient to establish an affirmative link between him and the methamphetamine recovered from inside the vehicle. In support of his argument, appellant argues that the following affirmative links are not present in this case: (1) appellant was not the owner of the vehicle, he was only test-driving it; (2) the methamphetamine was found in a closed bag in the trunk of the vehicle; (3) appellant did not have convenient access to the methamphetamine; (4) appellant was not under the influence of drugs when arrested; (5) appellant did not possess other contraband; (6) appellant did not make incriminating statements; (7) appellant did not attempt to flee; (8) appellant did not make furtive gestures; (9) there was no odor of drugs in or around the vehicle; (10) the amount of drugs found was insignificant-it was not "finished" methamphetamine; (11) appellant did not possess weapons; (12) no traces of methamphetamine were found other than in the bag that did not belong to appellant; (13) no money was found on appellant's person; (14) appellant did not give inconsistent statements about where he was going; and (15) appellant was not stopped in a suspicious location.

Although appellant points out that specific affirmative links were not present, we note that it is not the number of affirmative links that matter, but the "logical force" they collectively create. See Jenkins, 76 S.W.3d at 713; see also Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd). In weighing the factors that establish affirmative links, each case is decided on its own facts. State v. Derrow, 981 S.W.2d 776, 779 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd). A factor that is of little or no value in one case may be the turning point for another case. See Nhem v. State, 129 S.W.3d 696, 699 (Tex. App.-Houston [1st Dist.] 2004, no pet.). It is the sole province of the jurors to resolve inconsistencies in testimony and draw reasonable inferences based on the evidence before them. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc) (citing Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). We conclude that it was reasonable for the jury to find that appellant knew of the methamphetamine in the car and exercised control, management, or care over it. We conclude that the verdict is not so against the great weight and preponderance of the evidence as to be manifestly unjust, and that proof of guilt is not so weak as to undermine confidence in the jury's determination. Appellant's issues as related to count two are overruled.

We reverse the trial court's judgment and render a judgment of acquittal as to count one, and affirm the judgment of the trial court as it relates to count two.

_______________________

DORI CONTRERAS GARZA,

Justice

 

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 17th day of August, 2006.

1. Officers found funnels, tubing, oxygen masks, heavy-duty chemical safety gloves, and plastic containers with unknown liquid.

2. Specifically, appellant's sister testified that appellant placed a duffel bag into the vehicle. She testified that she did not know whether the bag was black or blue, but then stated that "[i]t was like the brown one," referring to State's exhibit #2 which was the bag in which the meth-filled filter was found.