      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-04-00267-CR



                                 Armando Martinez, Appellant

                                                 v.

                                  The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
        NO. 2-03-0813, HONORABLE BRENDA P. KENNEDY, JUDGE PRESIDING



                            MEMORANDUM OPINION


               The trial court convicted Armando Martinez of possession of less than one gram of

cocaine. Tex. Health & Safety Code Ann. § 481.115(a) (West 2003). Martinez received a four-year

suspended sentence with probation. He now challenges the legal and factual sufficiency of the

evidence to sustain his conviction. Because the evidence is both legally and factually sufficient, we

overrule his points of error and affirm the judgment of conviction.


                                         BACKGROUND

               One night while assigned to the DWI task force of the Austin Police Department,

Officer Andrew Motz was dispatched to respond to a disturbance involving a gun. He followed a
vehicle matching the dispatcher’s description until he observed that it was being driven recklessly,

at which point he stopped the vehicle.

               Martinez was driving the vehicle and there were two passengers. Since the original

report had been of a disturbance involving a gun, Motz ordered Martinez and the passengers to exit

the vehicle and lie down on the ground. Once back up arrived, the three men were handcuffed and

the vehicle was searched. The police found numerous containers of alcohol and a rifle.

               Martinez smelled of alcohol, so Motz asked him to perform a series of field sobriety

tests to determine whether he had been driving while intoxicated. Because Martinez struggled to

maintain his balance during the “walk and turn” test, Motz informed him that he was allowed to

remove his boots. After Martinez removed his boots, he stepped forward with his left foot. When

he moved his foot there was a small bag of white powder left where his foot had been prior to taking

his first step. Motz testified that the sidewalk was well lit and had been clear of debris before

Martinez removed his boots. Motz also testified that the other two passengers of the car were sitting

five to ten feet away and were still handcuffed. Motz placed Martinez under arrest for DWI and

possession of a controlled substance.

               Martinez pleaded not guilty to possession of less than one gram of a controlled

substance. He waived his right to a jury trial. The defense stipulated to the fact that the bag

contained cocaine. The court found Martinez guilty and assessed punishment at two years in a state

jail. His sentence was suspended, and he received four years of probation including 150 hours of

community service. Martinez now challenges the legal and factual sufficiency of the evidence.



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                                           DISCUSSION

Legal Sufficiency

               When reviewing the legal sufficiency of the evidence, we look at all the evidence in

the light most favorable to the verdict to determine whether a rational finder of fact could have found

the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

318-19 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995).

               It is an offense to knowingly or intentionally manufacture, deliver, or possess cocaine.

Tex. Health & Safety Code Ann. § 481.115(a) (West 2003). To establish that the evidence is

sufficient to support a conviction for possession of a controlled substance, the State must prove that:

(1) the defendant exercised actual care, control, and management over the contraband, and (2) he

knew that the object was contraband. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995);

Hall v. State, 86 S.W.3d 235, 240 (Tex. App.—Austin 2002, pet. ref’d).

               Possession means more than being where the action is; it requires dominion and

control over the contraband allegedly possessed. Poindexter v. State, 115 S.W.3d 295, 298 (Tex.

App.—Corpus Christi 2003, pet. filed). When the contraband is not in the exclusive possession of

the accused, additional facts and circumstances must link him to it. Id. at 298-299. However, the

State is no longer required to disprove every “outstanding reasonable hypothesis” except for the

defendant’s guilt. Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995). The State’s burden

is to show that the defendant’s connection with the contraband was more than merely fortuitous. Id.

at 747.




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               Martinez contends that he was not in possession of the bag of cocaine because there

is legally insufficient evidence affirmatively linking him to the contraband. He analogizes his case

to Tatum v. State, 836 S.W.2d 323, 325 (Tex. App.—Austin 1992, pet. ref’d), where the conviction

was reversed because “the State presented no evidence linking Tatum to the cocaine itself other than

his proximity to a syringe when he was arrested.” However, in that case the defendant was arrested

as he fled from an abandoned house known to be a “shooting gallery” for heroin users. Id. at 325-26.

Stray syringes were not unusual and the syringe in question was a full six feet away from the

defendant. Id. at 324. Furthermore, Tatum was decided prior to Geesa v. State in which the court

of criminal appeals abandoned the “outstanding reasonable hypothesis” standard. 820 S.W.2d 154,

160-61 (Tex. Crim. App. 1991). Therefore, in Tatum this Court was obliged to reverse when the

State “failed to offer evidence disproving every other reasonable hypothesis except that of the guilt

of the accused, and proof amounting only to a strong suspicion or mere probability is insufficient.”

Id. at 327 (quoting Waldon v. State, 579 S.W.2d 499, 502 (Tex. Crim. App. 1979)).

               This case is distinguishable because the cocaine was not discovered in an area known

for drug traffic and use. Martinez argues that because his passengers were also sitting on the

sidewalk near where the cocaine was discovered, he was not sufficiently linked to the contraband;

however, the passengers were several feet away and handcuffed. According to Motz, the sidewalk

was clear during the field sobriety tests before Martinez removed his boots. The cocaine appeared

in the exact spot where his foot had been before taking his first step after removing his boots.

               By offering evidence that suggested the cocaine had been stored in Martinez’s boots,

the State established the requisite link between Martinez and the bag of cocaine. Because we find

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that viewing the evidence in the light most favorable to the verdict, 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, 318-19 (1979), we overrule Martinez’s first point of error.


Factual Sufficiency

                In reviewing a claim for factual sufficiency of the evidence, we must view the

evidence in a neutral light, but we can only set aside the verdict only if the proof of guilt is too weak

or the contrary evidence is too strong to support a finding of guilt beyond a reasonable doubt.

Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004).

                Martinez argues that the evidence is factually insufficient to sustain his conviction

because Motz did not see him holding or disposing of the cocaine. However, there are other ways

to establish links between a defendant accused of possessing a controlled substance and the

contraband in question. If Martinez stored the cocaine in his boot then Motz would not have seen

Martinez holding it. Although Motz did not see Martinez deliberately dispose of the cocaine it did

appear from under his foot after he removed his boots. Whether he forgot that it was there or

intended to leave it in the boot while he attempted the field sobriety test barefoot is immaterial.

While Motz did not see Martinez holding or disposing of the cocaine, the State offered other

sufficient evidence to link him to it. Because the verdict is not “so contrary to the overwhelming

weight of the evidence as to be clearly wrong and unjust,” Clewis, 820 S.W.2d at 160-61 (Tex.

Crim. App. 1991), we overrule Martinez’s second point of error.




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                                       CONCLUSION

              Having found the evidence both legally and factually sufficient, we affirm the

judgment of conviction.




                                           Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: November 18, 2004

Do Not Publish




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