                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                          No. 07-16-00465-CR
                                          No. 07-16-00466-CR
                                          No. 07-16-00467-CR
                                          No. 07-16-00468-CR


                          ALEXANDER ELI MARTINEZ, APPELLANT

                                                  V.

                               THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 287th District Court
                                       Bailey County, Texas
                Trial Court No. 2900, Honorable Gordon Houston Green, Presiding

                                            June 19, 2018

                                 MEMORANDUM OPINION
                     Before QUINN, C.J., and CAMPBELL and PARKER, JJ.


      Appellant, Alexander Eli Martinez, was convicted by a jury of four offenses: Count

I – possession of cocaine with intent to deliver;1 Count II – possession of

methamphetamine with intent to deliver;2 Count III – possession of marijuana;3 and Count


      1   TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d) (West 2015).
      2   Id.

      3   Id. § 481.121(a), (b)(3) (West 2017).
IV – possession of methamphetamine.4 The jury assessed his punishment for Counts I,

II and IV at five years in prison, with the sentences suspended for five years. As to Count

III, the jury assessed appellant’s punishment at two years in state jail.        Appellant

challenges the sufficiency of the evidence to prove that he possessed cocaine or

methamphetamine with the intent to deliver, as set forth in Counts I and II of his

indictment. We affirm.


                                               Background


      In September of 2014, law enforcement began an investigation into the distribution

of narcotics from appellant’s residence at 301 East Chicago in Muleshoe, Texas. On

December 4, 2014, while the home was under surveillance, a confidential informant

purchased cocaine from appellant. Later that same day, law enforcement obtained a

search warrant for the residence.


      When law enforcement arrived at the residence to serve the warrant, a Dodge Nitro

automobile was in the driveway with the reverse lights on as if the driver was preparing

to back out. The driver was later identified as Cristal Quintanilla. Her friend, Selena was

the front seat passenger. Four people occupied the back seat: Pee Wee was seated

directly behind Quintanilla, B.J. was seated in the center of the back seat, and Shayla

was seated directly behind the front passenger seat. Appellant was sitting on B.J.’s lap

in the middle of the back seat behind the center console. Officer Andrade made eye

contact with appellant and saw him “reaching down.” Officer Parks asked everyone to

get out of the vehicle and line up along a fence. As appellant got out of the vehicle, he



      4   Id. § 481.115(a), (c) (West 2017).

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“took off running.”       Officer Parks chased him and eventually stopped him after

unsuccessfully firing his taser.


       Upon being returned to the scene, appellant and his residence were searched. His

wallet contained $1,215. One of the $100 bills found in his wallet had the same serial

number as a $100 bill that law enforcement had given to a confidential informant to

purchase cocaine from appellant. In the master bedroom, a handgun was found in a

dresser drawer and a rifle was found hidden in a hole in the closet wall. Seven glass

pipes, a clear plastic baggie of methamphetamine, and two “bricks” of marijuana were

also found in the dresser. Appellant admitted that “everything in the house was his.”


       Officers searched the vehicle in the driveway and found a plastic bag that

contained several plastic baggies in the pocket on the back of the driver’s seat. The

contents of some of the baggies were field tested and found to be positive for cocaine. A

purse containing drug residue was found in the front seat. A shell-shaped compact and

a rolled dollar bill were also found. Appellant denied that the drugs found in the vehicle

belonged to him. He also denied selling or possessing cocaine.


       A few hours after the search, Quintanilla went to the sheriff’s office and spoke to

Chief Deputy Dominguez. She showed him a Snapchat video5 on her cell phone that was

posted by appellant on December 4, 2014. Dominguez made a recording of the Snapchat

video and it was played for the jury. Quintanilla identified appellant as being the person




        5 Snapchat is a mobile-focused messaging app that allows users to share “stories” of 24-hour

chronological content. Pictures, video, and messages are only available for a short time before they
become inaccessible. “Snaps” can be directed privately to selected contacts or to a semi-public “story.”
See Snapchat, Wikipedia, https://en.wikipedia.org/wiki/Snapchat (last visited June 15, 2018).


                                                   3
who appeared in the video. In the video, appellant says “Does the bitch want some pure

cocaine or not,” repeats the statement again, and talks about counting some money.


       The baggies found in the seat pocket were sent to the Texas Department of Public

Safety for testing. The results of testing showed the following: one baggie contained

18.09 grams of cocaine, one baggie contained 3.5 grams of cocaine, one baggie

contained 48.73 grams of methamphetamine, one baggie contained 1.75 grams of

methamphetamine, and two baggies were found to contain no controlled substances.

Chief Geske testified that these quantities of methamphetamine and cocaine would

indicate that someone was selling those drugs.


       At trial, Quintanilla testified that she borrowed the Dodge Nitro from Dakota

Pitcock.   The evening of December 4, Quintanilla and Selena went to appellant’s

residence and picked up Shayla and Pee Wee. As they were driving away, Quintanilla

saw the police headed in the direction of appellant’s house so she turned around and

returned to appellant’s house to tell them they had seen “the cops.” B.J. and appellant

got in the vehicle right before law enforcement arrived. Quintanilla admitted that the

purse, compact, and rolled dollar bill found in the vehicle belonged to her. She did not

see appellant put any drugs in the vehicle. She acknowledged that all the people in the

vehicle that night were drug users. She also told the jury that Pitcock, the owner of the

vehicle, was a drug user.


       The jury found appellant guilty on all four counts.      Appellant challenges the

sufficiency of the evidence to support his convictions of possession with intent to deliver

cocaine and methamphetamine.



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                                      Standard of Review


       In assessing the sufficiency of the evidence, we review all 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, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323

S.W.3d 893, 912 (Tex. Crim. App. 2010). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a factfinder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no higher

standard of appellate review than the standard mandated by Jackson.”                  Id. When

reviewing all of the evidence under the Jackson standard of review, the ultimate question

is whether the jury’s finding of guilt was a rational finding.         See id. at 906-07 n.26

(discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d 404, 448-

50 (Tex. Crim. App. 2006), as outlining the proper application of a single evidentiary

standard of review). “[T]he reviewing court is required to defer to the jury’s credibility and

weight determinations because the jury is the sole judge of the witnesses’ credibility and

the weight to be given their testimony.” Id. at 899.


                                        Applicable Law


       To support the challenged verdicts, the State was required to prove that appellant

knowingly possessed with intent to deliver cocaine and methamphetamine. See TEX.

HEALTH & SAFETY CODE ANN. § 481.112(a). To prove possession, the State was required

to show that appellant (1) exercised “actual care, custody, control, or management” of the

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substance, and (2) knew the matter possessed was contraband. Poindexter v. State, 153

S.W.3d 402, 405-06 (Tex. Crim. App. 2005); see TEX. PENAL CODE ANN. § 1.07(a)(39)

(West Supp. 2017).


       When the accused does not have exclusive possession of the controlled substance

or the locale where the controlled substance was found, it cannot be concluded or

presumed that the accused had possession over the contraband unless there are

additional independent facts or circumstances that tend to connect or link the accused to

the knowing possession of the contraband. Poindexter, 153 S.W.3d at 406; Evans v.

State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006). Mere presence of a defendant

at the scene of an offense does not make one a party to joint possession. Herndon v.

State, 787 S.W.2d 408, 410 (Tex. Crim. App. 1990) (citing Rhyne v. State, 620 S.W.2d

599, 601 (Tex. Crim. App. 1981)). While some links, including presence, may show

knowledge of illegal activities, presence alone does not furnish the connection necessary

to establish that a defendant knowingly possessed the contraband. Herndon, 787 S.W.2d

at 410. Regardless of whether the evidence is direct or circumstantial, in addition to mere

presence, the State’s case must establish some link between the defendant and the

controlled substance which is more than fortuitous. Evans, 202 S.W.3d at 161-62. The

“links rule” is designed to protect the innocent bystander—a relative, friend, spouse,

roommate, or even a stranger to the actual possessor—from conviction based solely upon

his fortuitous proximity to someone else’s illegal activities. Id.


       There are numerous nonexclusive factors that have been recognized as

contributing to an evaluation of whether an accused “possesses” or is linked to the

contraband. See Triplett v. State, 292 S.W.3d 205, 208 (Tex. App.—Amarillo 2009, pet.


                                              6
ref’d).6 Those links include, but are not limited to: (1) the defendant’s presence when a

search is conducted; (2) whether the contraband is in plain view; (3) the defendant’s

proximity to and accessibility of the contraband; (4) whether the defendant was under the

influence of contraband when arrested; (5) whether the defendant possessed other

contraband or narcotics when arrested; (6) whether the defendant made any incriminating

statements when arrested; (7) whether the defendant attempted to flee; (8) whether the

defendant made any 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. Evans, 202 S.W.3d. at 162 n.12; see Triplett, 292

S.W.3d at 208-09; Figueroa v. State, 250 S.W.3d 490, 500-01 (Tex. App.—Austin 2008,

pet. ref’d) (citing Brown v. State, 911 S.W.2d 744, 745 (Tex. Crim. App. 1995)).


        These factors, however, are simply that—factors which may or may not

circumstantially establish the sufficiency of evidence offered to prove the knowing

“possession” of a controlled substance. Evans, 202 S.W.3d at 162 n.12 (These factors

“are not a litmus test.”). Furthermore, there is no set formula that an appellate court can

use to determine if there are sufficient links to support an inference of knowing possession

of drugs. Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.—Dallas 2003, no pet.). Each


        6 The Court of Criminal Appeals has recognized that the term “affirmative” adds nothing to the plain

meaning of “link” and now uses only the word “link” to evaluate evidence of possession. Evans, 202 S.W.3d
at 161 n.9. A link is a fact or circumstance which generates a reasonable inference that the defendant
knew of the contraband’s existence and exercised control over it. Lair v. State, 265 S.W.3d 580, 600 (Tex.
App.—Houston [1st Dist.] 2008, pet. ref’d). The evidence demonstrating such links may be direct or
circumstantial. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).

                                                     7
case must be examined according to its own facts on a case-by-case basis. Roberson v.

State, 80 S.W.3d 730, 736 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). The number

of links is not as important as the combined logical force of all the evidence tending to link

the accused to the contraband. Evans, 202 S.W.3d at 162, 166.


                                             Analysis


       Appellant asserts that the evidence is insufficient to support his conviction in

Counts I and II of the indictment, contending the evidence was insufficient to prove that

he possessed the cocaine and methamphetamine found in the vehicle. Specifically,

appellant argues that the State failed to prove beyond a reasonable doubt that the cocaine

and methamphetamine found in the pocket behind the driver’s seat were in appellant’s

custody, care, control, or management in light of the multiple individuals who had access

to the drugs.7


       Here, the State offered substantial circumstantial evidence that appellant

possessed the drugs hidden in the seat pocket. That is, appellant was in the back seat

of the vehicle when the search warrant was executed and the contraband was found in

close proximity to where appellant was seated; appellant was seated in the lap of another

person in the back seat, within arm’s reach of the seat pocket where the drugs were

found; appellant made furtive gestures—“reaching down” behind the driver’s seat as

witnessed by Officer Andrade when he arrived to secure the vehicle.




        7 Appellant does not contest his conviction on Count IV—possession of methamphetamine—but

he does challenge the possession element of Count II—possession of methamphetamine with intent to
deliver. A review of the record reveals that Count IV only includes the methamphetamine found in the
house, while Count II must include the methamphetamine found in the vehicle.

                                                 8
        Appellant’s attempt to flee from law enforcement and ignoring directives to stop is

a fact from which the jury could have inferred a consciousness of guilt. Appellant ran

before any contraband was found in the vehicle, and he was the only person who fled

from the vehicle where the contraband was located. The fact that appellant fled the scene

before the vehicle had even been searched indicates he knew there was contraband in

the vehicle.


        Other evidence from which the jury could have linked appellant to the cocaine and

methamphetamine found in the car was the other contraband and drug paraphernalia

found in his residence.            When appellant was arrested, he made incriminating

statements—admitting to possessing the methamphetamine (1.63 grams) and the bricks

of marijuana (1.98 pounds) found inside his residence. He also admitted that multiple

glass pipes belonged to him. This quantity of drugs, especially the marijuana, is more

consistent with delivery than personal use. Further, a handgun and a rifle were found

concealed in appellant’s bedroom. These firearms also link appellant to the business of

selling drugs.8


        Another link connecting appellant to the contraband was his possession of $1,250,

in small denomination bills, indicative of street-level drug transactions, and a marked $100

bill used by a confidential informant to purchase cocaine from appellant.


        Finally, appellant was identified in the Snapchat video asking if “the bitch want[s]

pure cocaine” and talking about counting his money. The evidence established that this

video was posted close in time to the execution of the search warrant. The large amounts


        8While we note this evidence of appellant’s intent to deliver the controlled substances, appellant’s
sole appellate issue relates only to his possession of the drugs found in the vehicle.

                                                     9
of cocaine and methamphetamine found in the car were consistent with delivery as

opposed to personal use. The Snapchat video links appellant to the possession and

selling of these substances.


       Based on the totality of the evidence presented, we find sufficient links exist

between appellant and the cocaine and methamphetamine found in the vehicle to

determine the evidence is sufficient to support his conviction for possession of these

drugs with intent to deliver.


                                       Conclusion


       We overrule appellant’s sole issue and affirm the trial court’s judgment.




                                                       Judy C. Parker
                                                          Justice

Do not publish.




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