                                 NO. 12-13-00387-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

WILBER MEDINA,                                  §      APPEAL FROM THE 241ST
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      SMITH COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Wilber Medina appeals his conviction for possession of a controlled substance,
methamphetamine. In one issue, he contends that the evidence is legally insufficient to establish
that he possessed the methamphetamine. We affirm.


                                         BACKGROUND
       Appellant was charged by indictment for intentionally or knowingly possessing a
controlled substance, namely methamphetamine, in an amount of less than one gram, a state jail
felony. Appellant pleaded “not guilty,” and the matter proceeded to a jury trial. Glen Davenport,
an officer with the Department of Public Safety, testified that on the morning of July 26, 2013,
he pulled over a vehicle traveling fifty-seven miles per hour in a forty-five mile per hour zone.
Alex Bates was the owner and driver of the vehicle, Robert Davenport (no relation to Officer
Davenport) was the front seat passenger, and Appellant was the back seat passenger, seated
behind Bates. Officer Davenport smelled the odor of burnt marijuana as he approached the
vehicle. After safely removing the three occupants, Officer Davenport began searching the
vehicle.
       During the search, Officer Davenport noticed that Appellant was “profusely sweating.”
Appellant then fell on the ground, shaking and convulsing. Officer Davenport summoned an
ambulance, and Appellant was taken to the emergency room of East Texas Medical Center
(ETMC). Meanwhile, Officer Davenport continued searching the vehicle and discovered a gold
pouch with two bags containing methamphetamine and marijuana. He also found three glass
pipes used to ingest methamphetamine. Officer Davenport testified that he found the gold pouch
under the driver’s seat of the vehicle. The substances found in the gold pouch contained 0.15
grams of methamphetamine and .09 ounces of marijuana. Toxicology tests showed that
Appellant tested positive for methamphetamine and marijuana.
       The jury found Appellant guilty of possession of a controlled substance,
methamphetamine, and sentenced him to two years of confinement in a state jail facility and a
$10,000.00 fine. This appeal followed.


                                SUFFICIENCY OF THE EVIDENCE
       In his sole issue on appeal, Appellant argues that there is insufficient evidence
corroborating the accomplice witness’s testimony. He also contends that, even considering the
accomplice witness’s testimony, the evidence is legally insufficient to establish the element of
possession.
Standard of Review
       In determining whether the evidence is legally sufficient to support a conviction, a
reviewing court must consider all of the evidence in the light most favorable to the verdict and
determine whether, based on that evidence and reasonable inferences therefrom, a rational fact
finder could have found the essential elements of the crime beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Lucio v. State,
351 S.W.3d 878, 894 (Tex. Crim. App. 2011). This “familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443
U.S. at 319, 99 S.Ct. at 2789. “Each fact need not point directly and independently to the guilt of
the appellant, as long as the cumulative force of all of the incriminating circumstances is
sufficient to support the conviction.” Lucio, 351 S.W.3d at 894 (quoting Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007)). Therefore, if any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt, we must affirm. Wright v. State,
401 S.W.3d 813, 818 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d.). Any inconsistencies



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in the evidence are resolved in favor of the verdict. Medina v. State, 242 S.W.3d 573, 575 (Tex.
App.—Waco 2007, no pet.).
Elements of the Offense
       A person commits an offense if he knowingly or intentionally possesses
methamphetamine in the amount of less than one gram. See TEX. HEALTH & SAFETY CODE ANN.
§§ 481.102(6), 481.115(a), (b) (West 2010). To prove unlawful possession of a controlled
substance, the state must prove beyond a reasonable doubt that the defendant exercised control,
management, or care over the substance and that he knew the matter possessed was contraband.
See Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). Regardless of whether
the evidence is direct or circumstantial, it must establish that a defendant’s connection to the
contraband was more than “just fortuitous.” Id. at 405-06. This rule is designed to protect the
innocent bystander from conviction based solely upon his fortuitous proximity to someone else’s
drugs. Id. at 406.
       Mere presence at the location where contraband is found is insufficient, by itself, to
establish actual care, custody, or control. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App.
2006). But presence or proximity, when combined with other evidence, either direct or
circumstantial (e.g., “links”), may well be sufficient to establish that element beyond a
reasonable doubt. Id. Although not an exhaustive list, Texas courts have recognized the
following links:


      (1)    the defendant’s presence when a search is conducted;
      (2)    whether the contraband was in plain view;
      (3)    the defendant’s proximity to and the accessibility of the narcotic;
      (4)    whether the defendant was under the influence of narcotics when arrested;
      (5)    whether the defendant possessed other contraband or narcotics when arrested;
      (6)    whether the defendant made incriminating statements when arrested;
      (7)    whether the defendant attempted to flee;
      (8)    whether the defendant made furtive gestures;
      (9)    whether there was an odor of contraband;
      (10)   whether other contraband or drug paraphernalia were present;
      (11)   whether the defendant owned or had the right to possess the place where the drugs were
             found;
      (12)   whether the place where the drugs were found was enclosed;
      (13)   whether the defendant was found with a large amount of cash; and
      (14)   whether the conduct of the defendant indicated a consciousness of guilt.




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Id. at 162 n.12. It is not the number of links that is dispositive, but rather, the logical force of the
evidence, both direct and circumstantial. Id.
Corroboration Requirement
          The legislature has determined that a fact finder should exercise caution when
considering the testimony of an accomplice because “accomplices often have incentives to lie,
such as to avoid punishment or shift blame to another person.” Smith v. State, 332 S.W.3d 425,
439 (Tex. Crim. App. 2011) (quoting Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App.
1998)).     Thus, a conviction cannot be had upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the accused with the offense committed. TEX.
CODE CRIM. PROC. ANN. art. 38.14 (West 2005). Further, the corroboration is not sufficient if it
merely shows the commission of the offense. Id. An accomplice is a person who participates in
the offense before, during, or after its commission with the requisite mental state. Smith, 332
S.W.3d at 439. To be considered an accomplice witness, the witness’s participation with the
defendant must have involved some affirmative act that promotes the commission of the offense
with which the defendant is charged. Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App.
2007).
          To determine whether an accomplice’s testimony is sufficiently corroborated, we
eliminate all of the accomplice testimony from consideration and then examine the remaining
portions of the record to see if there is any evidence that tends to connect the accused with the
commission of the crime. Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007);
Sexton v. State, 51 S.W.3d 604, 611 (Tex. App.—Tyler 2000, pet. ref’d). The corroborating
evidence need not be sufficient by itself to establish guilt beyond a reasonable doubt, or directly
link the appellant to the crime. Castillo, 221 S.W.3d at 691. There must simply be some
nonaccomplice evidence that tends to connect the appellant to the commission of the offense
alleged in the indictment. Id.
Testimony of Accomplice
          Alex Bates, the driver and owner of the vehicle in which Appellant was traveling at the
time of the stop, was an accomplice because he was indicted for the same offense as Appellant.
Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex. Crim. App. 1991). He admitted that he pleaded
guilty to the offense of possession of a controlled substance, methamphetamine, and was
sentenced to five years of deferred adjudication community supervision. Bates testified that the



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gold pouch containing the methamphetamine found in his vehicle by Officer Davenport was
Appellant’s. He said that until Officer Davenport discovered the gold pouch and showed it to
him, he had never seen it before and had no idea what was inside the pouch. However, Bates
admitted that the “pink” bag inside the gold pouch was his. He said that the “yellow” bag in the
gold pouch was Appellant’s and that he had given Appellant the “pink” bag.
Nonaccomplice Testimony
       Officer Davenport testified that he searched Bates’s vehicle because he smelled the odor
of burnt marijuana as he approached it.      He stated that Appellant had to be taken to the
emergency room because he was “profusely sweating,” and then fell on the ground, shaking and
convulsing.      Officer Davenport discovered a gold pouch with two bags containing
methamphetamine and marijuana, and three glass pipes used to ingest methamphetamine. He
found the gold pouch under the driver’s seat of the vehicle. In his opinion, the contraband was
closer to the back seat than the front seat, and would have been easily accessible by Appellant in
the back seat.
       Howard Ng, M.D., an emergency room physician at ETMC, testified that he treated
Appellant for the suspected ingestion of an unknown substance. Appellant’s behavior indicated
that he might have been under the influence of an intoxicating substance. Appellant told Dr. Ng
that he had taken only one dose of the substance that was causing his medical difficulties. Jeff
Norton, a nurse in the emergency room at ETMC, testified that a toxicology test was performed
on Appellant. The toxicology report showed that Appellant tested positive for methamphetamine
and marijuana. Chance Cline, a Department of Public Safety forensic chemist, testified that the
substances found in Bates’s vehicle contained 0.15 grams of methamphetamine and .09 ounces
of marijuana.
Analysis
       After eliminating Bates’s accomplice witness testimony from our consideration, we
conclude that the nonaccomplice testimony of Officer Davenport, the nurse and physician at
ETMC, and the DPS forensic chemist tends to connect Appellant to the offense sufficiently to
corroborate Bates’s testimony that Appellant had possession of the methamphetamine found
inside the vehicle. See Castillo, 221 S.W.3d at 691.




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         Regarding the sufficiency of the evidence, Appellant concedes that his positive drug test,
his behavior at the scene, and the odor of burnt marijuana are factors tending to substantiate a
finding of possession. However, he contends that these links are minimal. We disagree.
         The evidence shows that Appellant was present when Officer Davenport began searching
the vehicle. As the passenger in the back seat of Bates’s vehicle, he was closer to the contraband
discovered in the vehicle, and it was more accessible to him than to the vehicle’s two front-seat
passengers. In addition to the contraband, Officer Davenport found three glass pipes used to
ingest methamphetamine, which corresponds to the number of occupants in the vehicle. Further,
toxicology tests indicated that he had ingested methamphetamine and marijuana at the time the
vehicle was stopped. Therefore, viewing the evidence in the light most favorable to the jury’s
verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that
Appellant knowingly and intentionally possessed the methamphetamine in the vehicle. See
Poindexter, 153 S.W.3d at 405-06; Evans, 202 S.W.3d at 162 n.12. Consequently, the evidence
is legally sufficient to support the jury’s verdict.
         We overrule Appellant’s sole issue on appeal.


                                                    DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.

                                                                  JAMES T. WORTHEN
                                                                     Chief Justice

Opinion delivered July 31, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                              JULY 31, 2014


                                          NO. 12-13-00387-CR


                                        WILBER MEDINA,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                 Appeal from the 241st District Court
                         of Smith County, Texas (Tr.Ct.No. 241-1175-13)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
