                                                                             PD-0967-15
                                                            COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                          Transmitted 11/20/2015 3:55:35 PM
                                                            Accepted 11/20/2015 4:40:34 PM
                           PD-0967-15                                        ABEL ACOSTA
                                                                                     CLERK
              IN THE COURT OF CRIMINAL APPEALS
                    OF THE STATE OF TEXAS
                         AUSTIN, TEXAS
          ____________________________________
                 GENARO GALVAN ACOSTA, JR.,
                                    Appellant,
                              vs.


                     THE STATE OF TEXAS,
                                    Appellee.
          _____________________________________
PETITION FOR DISCRETIONARY REVIEW FROM THE COURT OF APPEALS
THIRTEENTH COURT OF APPEALS DISTRICT, CORPUS CHRISTI, TEXAS
                 CAUSE NUMBER 13-14-00415-CR
          ____________________________________
       APPELLEE’S PETITION FOR DISCRETIONARY REVIEW
         _____________________________________


                                          EDWARD F. SHAUGHNESSY III
                                          Attorney-at-Law
                                          206 E. Locust
                                          San Antonio, Texas 78212
                                          (210) 212-6700
                                          (210) 212-2178 (fax)
                                          SBN 18134500
                                          Shaughnessy727@gmail.com


                                          Attorney for the Appellee


     November 20, 2015




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                         TABLE OF CONTENTS

                                                         PAGE(S)

APPELLEE’S PETITION FOR DISCRETIONARY REVIEW……………………………………...iii


TABLE OF INTERESTED PARTIES………………………………………………………….…………….iv


TABLE OF AUTHORITIES………………………………………………………………………….………....v


STATEMENT REGARDING ORAL ARGUMENT………………………………………………….....vi


AUTHORITIES IN SUPPORT OF APPELLEE’S PETITION
FOR DICRETIONARY REVIEW…………………………………………………………………………......1


NATURE OF THE CASE……………………………………………………………………………………......1


PROCEDURAL HISTORY OF THE CASE…………………………………………………....…………..2


REASONS FOR REVIEW………………………………………………………………....………………......3


GROUND FOR REVIEW………………………………………………………....…………………………….4


ARGUMENT AND AUTHORITIES IN SUPPORT
OF THE GROUND FOR REVIEW…………………………...............…………………………………...4


CONCLUSION AND PRAYER……………………………………………………………………………....10


CERTIFICATE OF SERVICE………………………………………………………………………………...10


CERTIFICATE OF COMPLIANCE………………………………………………………………………....12


APPENDIX …………………………………………………………………………………………………..........13

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                                 !
                                      PD-0967-15


GENARO GALVAN ACOSTA JR.,                §                    IN THE COURT OF
             Appellant,                  §
                                         §
                                         §
vs.                                      §                    CRIMINAL APPEALS
                                         §
                                         §
                                         §
THE STATE OF TEXAS,                      §                    AUSTIN, TEXAS
             Appellee.                   §


               ________________________________________
          PETITION FOR DISCRETIONARY REVIEW OF CAUSE NUMBER
                13-14-00415-CR IN THE COURT OF APPEALS FOR
           THE THIRTEENTH COURT OF APPEALS DISTRICT OF TEXAS
                           CORPUS CHRISTI, TEXAS
          ______________________________________________

               APPELLEE’S PETITION FOR DISCRETIONARY REVIEW

      Now comes, Edward F. Shaughnessy, III, Attorney-at-Law, on behalf of the
appellee, The State of Texas, and prays that a Petition for Discretionary Review be
granted to the appellee in the above styled and numbered cause. The arguments in
support of that request are provided hereinafter and are incorporated by reference.

                                                       EDWARD F. SHAUGHNESSY III
                                                       Attorney-at-Law
                                                       206 E. Locust
                                                       San Antonio, Texas 78212
                                                       (210) 212-6700
                                                       (210) 212-2178 (fax)
                                                       SBN 18134500

                                             iii!
                                              !
                                            Shaughnessy727@gmail.com

                                            Attorney for the Appellee

                     TABLE OF INTERESTED PARTIES

Joel Johnson………………………………………………………Trial Judge
156th District Court
Live Oak County

Michelle Ochoa……………………………………………………Defendant’s Trial Counsel
331A North Washington
Beeville, Texas 78102
(361) 358-1925

James Sales………………………………………………………..State’s Trial Counsel
District Attorney’s Office
156th Judicial District
111 S. St. Mary’s No. 203
Beeville, Texas 78102

Travis Berry………………………………………………………..Defendant’s Appellate Counsel
P.O. Box 6333
Corpus Christi, Texas 78466
(361) 442-2562

Edward F. Shaughnessy………………………………………..State’s Appellate Counsel
206 E. Locust
San Antonio, Texas 78212
(210) 212-6700




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                           TABLE OF AUTHORITIES

STATE CASES

Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006)………………………………………………..9

Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005)………………..…………………..…..9

UNITED STATES CASE

Jackson v. Virginia, 443 U.S. 307 ……..………………………………………………………………………….8


RULES

Rule 66.3 (c), Tex. R. App. Proc………………………………………………………………………….………………3

Rule 66.3(e), Tex. R. App. Proc……………………………………………………………………….……………3,9!




                                       v!
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                  STATEMENT REGARDING ORAL ARGUMENT


      Counsel for the appellee would submit that in the event that this petition is

granted, oral argument would be warranted inasmuch as the issue to be resolved

by this Court is novel and worthy of oral argument on the issue presented.




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                                      PD-0967-15



GENARO GALVAN ACOSTA JR.,                §                    IN THE COURT OF

Appellant                                §


vs.                                      §                    CRIMINAL APPEALS


THE STATE OF TEXAS,                      §
                                                              AUSTIN, TEXAS,
Appellee


                   ARGUMENTS AND AUTHORITIES IN SUPPORT
            OF THE APPELLEE’S PETITION FOR DISCRETIONARY REVIEW
                       OF CAUSE NUMBER 13-14-00415-CR

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      NOW COMES, The State of Texas, appellee in the lower Court, by and through,

Edward F. Shaughnessy, III, attorney at law, and offers the following arguments and

authorities in support of The State of Texas’ request that this Court grant a Petition for

Discretionary Review in the instant case, cause number PD-0967-15.



                                NATURE OF THE CASE



      The appellant, Genaro Galvan Acosta Jr., was indicted by a Live Oak County

Grand jury for the offense of Possession of Marijuana (five to fifty pounds) in cause

number L-13-0096-CR-B. The appellant was tried before a jury in the 156th District

Court of Live Oak County and convicted of the offense as charged in the indictment. The

trial Court assessed punishment at twelve years of confinement in the Texas
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Department of Criminal Justice-Institutional Division.      The appellant subsequently

appealed the judgment of the trial Court to the Thirteenth Court of Appeals, Corpus

Christi. That court reversed the judgment of the trial court, and rendered a judgment of

acquittal in an unpublished opinion, authored by Justice Garza on July 9, 2015. This

court has granted the appellant an extension of time to file the instant petition until

September 9, 2015.



          PROCEDURAL HISTORY OF THE CASE IN THE LOWER COURT



      On July 9, 2015, the Corpus Christi Court of Appeals, in a unpublished opinion,

authored by Justice Garza, reversed the judgment of the trial court and rendered a

judgment of acquittal. That court upheld the contention, raised by the appellant, that

the evidence was legally insufficient to support the judgment of conviction. See: Acosta

v. State, (No. 13-14-00415-CR, Tex. App.-Corpus Christi, July 9, 2015) (Appendix A)

The appellee subsequently filed a Motion for Extension of Time to File a Petition for

Discretionary Review with the Court of Criminal Appeals. That motion was granted,

and the appellee was granted an extension of time to file a Petition for Discretionary

Review until September 9, 2015. This pleading is filed in compliance with this Court’s

order granting that extension of time. The appellee would submit that there exists a

single ground for review that warrants review by this Court. It is urged by the appellant

that there exist, at a minimum, two distinct reasons for reviewing the action of the Court

of Appeals for the Thirteenth Court of Appeals District.




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                                 REASONS FOR REVIEW

                                             A.

       The appellee respectfully petitions this Honorable Court to grant this Petition for

Discretionary Review pursuant to Rule 66.3 (c), Tex. R. App. Proc. which states that one

of the non-exclusive reasons for this Court to grant a petition for discretionary review is

that the Court of Appeals has decided an important question of state law in a way that

conflicts with the applicable decisions of the Court of Criminal Appeals. The appellee

would respectfully submit that the opinion of the Thirteenth Court of Appeals is in

conflict with the applicable decisions of this Court.

                                             B.

       The appellee respectfully petitions this Honorable Court to grant this Petition for

Discretionary Review pursuant to Rule 66.3(e), Tex. R. App. Proc. which states that, one

of the non-exclusive reasons for this Court to grant a discretionary review, is that the

justices of a court of appeals have disagreed on a material question of law necessary to

the court’s decision. The appellee would submit that the Justices of the Thirteenth

Court of Appeals disagreed on a material question of law necessary to the Court’s

decision.




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                             GROUND FOR REVIEW



            THE COURT OF APPEALS ERRED IN HOLDING THAT A
        REASONABLE TRIER OF FACT COULD NOT HAVE CONCLUDED
         BEYOND A REASONABLE DOUBT THAT THE APPELLANT WAS
      SHOWN BY THE EVIDENCE TO HAVE POSSESSED THE CONTRABAND
              THAT FORMED THE BASIS FOR HIS CONVICTION.




                         ARGUMENT AND AUTHORITIES
                          IN SUPPORT OF THE GROUND
                                 FOR REVIEW



                      STATEMENT OF APPLICABLE FACTS




      On November 14, 2013 the appellant was indicted by a Live Oak County

grand jury. The indictment reads in pertinent part as follow: “…the defendant on

or about the 24th day of August, 2013…did then and there intentionally or

knowingly possess a usable quantity of marihuana in an amount of 50 pounds or

less but more than five pounds.” (C.R.-5) In support of the allegations in the

indictment, the prosecution brought forth two members of the Texas Department

of Public Safety: Trooper Jose Prado and Trooper Raul Garcia.




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                            TROOPER JOSE PRADO

      Prado related that on August 24, 2013 he was patrolling on U.S. Highway

281 in Live Oak County when he had the occasion to conduct a traffic stop of a

vehicle being operated by the appellant, Genaro Acosta. (R.R.2-70) According to

Prado, the vehicle being driven by Acosta was going 88 miles per hour in a 75

miles per hour traffic zone. (R.R.2-70) Upon making contact with Acosta, Prado

observed him to be in in an extremely nervous state. Acosta was also operating

the vehicle without a valid driver’s license. (R.R.2-71, 72) When Prado inquired

of the nature of Acosta’s travel plans, he was informed that Acosta and his family

were traveling from Pharr to Fort Worth and planning on returning the same day.

(R.R.2-73) Prado determined that the vehicle being operated by Acosta did not

belong to Acosta or to his wife. (R.R.2-73) Prado related that it is common for

individuals that are transporting drugs to use a “third-party” vehicle such as the

one being operated by Acosta. In addition, the ignition key in the vehicle was the

only key on the key chain, once again a fact indicative of a “third-party” vehicle.

After making these observations Prado asked permission of the appellant to

conduct a search of the vehicle. Consent was thereafter granted by Acosta, and a

search of the vehicle ensued. (R.R.2-75)

      Found inside the vehicle were a number of items that Prado identified as

those associated with the transportation and trafficking of narcotics. Prado

described those items as the Bible, a good luck charm in the purse of the

appellant’s spouse (a “Santa Muerta” card) and some good luck herbs found in

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two places in the vehicle. (R.R.2-76, 77) After inspecting the interior of the

vehicle, Prado conducted an inspection of the exterior of the vehicle. During the

inspection of the exterior, Prado determined that the spare-tire, located beneath

the chassis of the vehicle, was not of the same size as the wheels on the vehicle.

(R.R.2- 79) Prado also related that the spare tire appeared to have recently placed

on the underside of the vehicle. (R.R.2-80) After discovering these facts, Prado

decided to inspect the interior of the spare tire. After gaining access to the

interior of the spare tire Prado discovered the marijuana that led to the arrest of

Acosta. (R.R.2-81)

      Following the arrest of the appellant, he was “Mirandized” by the troopers

and asked if he understood his rights as had been administered to him. (R.R.2-

85) At that point the appellant informed the officers (in Spanish): “I don’t want

my family to be here. If I take the fall will you let them go?” (R.R.2-85)



                            TROOPER RAUL GARCIA



      Garcia was serving as the training officer for Prado at the time of the stop,

search and arrest of the appellant. (R.R.2-122) He related to the jury that at the

outset of the contact between Prado and Acosta, the appellant appeared to be

very nervous and fidgety. The appellant was speaking almost continuously and in

a very fast fashion. Garcia was of the belief that the appellant’s behavior was

abnormal for the circumstances. (R.R.2-120) Due to the degree of nervousness

                                          6!
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displayed by Acosta, Garcia took a more active role in the ongoing investigation.

He related that he conducted interviews of the appellant and his spouse to

determine whether their respective versions of their trip were consistent. They

were not, and Garcia believed that to be an indication of drug trafficking. (R.R.2-

127) Garcia elaborated on the significance of the “Santa Muerta” charm found in

the purse of the appellant’s wife. He described it as a charm carried by drug

traffickers to ensure a safe journey. (R.R.2-128) He also related that the tire that

contained the marijuana was malfunctioning in terms of balance, which was a

sign that there was something contained within the tire. (R.R.2-131)



                        DISPOSITION IN THE COURT BELOW

      Following the conviction and the attendant sentence of twelve years of

confinement in the Texas Department of Criminal Justice-Institutional Division the

appellant appealed his conviction to the Court of Appeals for the Thirteenth District of

Texas. He pursued a single allegation of error on direct appeal: that the evidence was

legally insufficient to demonstrate that he intentionally or knowingly possessed the

marijuana found in the spare tire of the vehicle that he found to be driving on the date

alleged in the indictment. The Court below sustained the appellant’s allegation that the

evidence was legally insufficient and order that the judgment reflect an acquittal. The

Court reasoned that:

                    “The only probative evidence that we find in the record
                    tending to establish an affirmative link between Acosta
                    and the contraband are the undisputed facts that (1) he
                    was found in the same car as the contraband, and (2) he
                    offered to accept responsibility if the officers would let

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                                             !
                     his family go. There was no direct evidence establishing
                     Acosta’s knowledge of the contraband in the vehicle—for
                     example there were no fingerprints collected from the
                     bundles, the spare tire, or the tool used to access the tire—
                     and there was no direct or circumstantial evidence establishing
                     that Acosta was present when the drugs were loaded in the
                     car. Moreover, police did not interview or even investigate
                     the identity of the registered owner of the vehicle. And, it is
                     undisputed that, although Acosta appeared nervous during
                     the traffic stop, he answered the officers’ questions and
                     cooperated with them fully”. Acosta v. State, at slip op.
                     pg. 15.

       The Court concluded that a reasonable trier of fact could not have concluded

beyond a reasonable doubt that Acosta’s possession of the marihuana “more than just

fortuitous”. They court went on to state that the even when the evidence was viewed in

the light most favorable to the verdict, the evidence demonstrated nothing more mere

suspicion or a mere probability that the appellant exercised care, custody, control or

management of the contraband found in the vehicle. Acosta v. State, at slip op. pg. 17.

       It is significant to note that the opinion of the Court below was not unanimous on

the sole question presented by the appellant. In a dissent Justice Perkes wrote:

                     “Each piece of evidence is not dispositive by itself. However,
                     when weighing the cumulative effect of the evidence, I believe
                     that the jury could have reasonably found, based on the
                     circumstantial evidence coupled with the reasonable inferences
                     from it, that appellant exercised sufficient care, custody, control
                     or management over the marijuana.”
                     Acosta v. State, dissent op. pg. 3.

       The appellee would respectfully that then holding of the Thirteenth Court of

Appeals is in conflict with the applicable opinions of this Court on the question of how to

address and decide an allegation that the prosecution had failed to satisfy the

requirements of Jackson v. Virginia, 443 U.S. 307 (979) regarding the issue of what

constitutes “possession” in a prosecution for possession of a controlled substance. The


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controlling opinions of this Court on this issue were relied upon by the prosecution in

the appeal to the Thirteenth Court of Appeals. Those holdings are Evans v. State, 202

S.W.3d 158 (Tex. Crim. App. 2006) and Poindexter v. State, 153 S.W.3d 402(Tex. Crim.

App. 2005). It is the appellee’s position that the holding of the Thirteenth Court of

Appeals is in irreconcilable conflict with this Court’s holdings in Evans and Poindexter.

The distinctions that the Court below sought to draw between the facts in the instant

case and the facts supporting the holdings in Evans and Poindexter are not so

substantial as to warrant the conclusion reached by the lower Court; that no reasonable

trier of fact could have concluded, based upon what the State did present in terms of

evidence linking the appellant to the contraband, that the appellant “possessed” the

contraband in question.

         Consequently the opinion of the Court below is in conflict with the applicable

decisions of this Court and a review of that holding is warranted. See: Rule 66.3(c),

supra.

         As noted above, the opinion of the Court below was not unanimous. Justice

Perkes dissented to the holding of the Court on the grounds that the holding of the

majority failed to properly account for this Court’s holding in Evans v. State, supra.

The dissenting opinion accurately reflects what the appellee would submit constitutes a

proper resolution of the appellant’s contention that the evidence was legally insufficient

to support the conviction.

         As a consequence, the justices in the court below have disagreed upon a material

question of law necessary to a disposition of the case. Review by this Court is therefore

warranted. See: Rule 66.3 (e), supra.



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                           CONCLUSION AND PRAYER


      It is respectfully requested, by the appellee, that a Petition for Discretionary

Review to the Thirteenth Court of Appeals be granted and that the case be briefed on the

merits of the appellee’s ground for review, with argument to follow.


                                                  Respectfully submitted,



                                                  /s/ Edward F. Shaughnessy, III
                                                  EDWARD F. SHAUGHNESSY, III
                                                  Attorney at Law
                                                  206 E. Locust
                                                  San Antonio, Texas 78212
                                                  (210) 212-6700
                                                  (210) 212-2178 (fax)
                                                  SBN 18134500
                                                  Shaughnessy727@gmail.com

                                                  Attorney for the appellee




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                           CERTIFICATE OF SERVICE

      I, Edward F. Shaughnessy, III., certify that a copy of the foregoing petition was

mailed to Travis Berry, attorney for the appellant, at P.O. Box 6333, Corpus Christi,

Texas, 78466 on this the _8__ day of September, 2015.


/s/ Edward F. Shaughnessy, III

Edward F. Shaughnessy, III




                           CERTIFICATE OF SERVICE

      I, Edward F. Shaughnessy, III certify that a copy of the foregoing petition was

mailed to Lisa McMinn, State Prosecuting Attorney, P.O. Box 13046, Austin, Texas

78711, on this the _8__ day of September, 2015.


/s/ Edward F. Shaughnessy, III

Edward F. Shaughnessy, III.




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                          CERTIFICATE OF COMPLIANCE

      I, Edward F. Shaughnessy, III hereby certify that the instant pleading is

composed of 2825 words, exclusive of the attached appendix.


/s/ Edward F. Shaughnessy, III

Edward F. Shaughnessy, III




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APPENDIX




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                           NUMBER 13-14-00415-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

GENARO GALVAN ACOSTA JR.,                                                 Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 156th District Court
                        of Live Oak County, Texas.


                        MEMORANDUM OPINION
               Before Justices Garza, Benavides and Perkes
                 Memorandum Opinion by Justice Garza

      Appellant, Genaro Galvan Acosta Jr., was convicted of possession of fifty pounds

or less but more than five pounds of marihuana, a third-degree felony. See TEX. HEALTH

& SAFETY CODE ANN. § 481.121(a), (b)(4) (West, Westlaw through Ch. 46, 2015 R.S.).

After finding an enhancement paragraph true, the trial court sentenced him to twelve

years’  imprisonment.    See TEX. PENAL CODE ANN. § 12.42(a) (West, Westlaw through Ch.
46, 2015 R.S.). By a single issue on appeal, Acosta argues that the evidence adduced

at trial was insufficient to support the conviction. Because we agree, we reverse and

render judgment of acquittal.

                                                    I. BACKGROUND

        Texas  Department  of  Public  Safety  (“DPS”)  troopers Jose Prado and Raul Garcia

stopped  Acosta’s  vehicle  for  speeding  on  U.S. Highway 281 in Live Oak County on August

24, 2013. Garcia stated that, about three months prior to the stop, he had seen Acosta

driving the same vehicle in Live Oak County. When Prado approached the vehicle, he

observed that there were passengers inside not wearing seat belts. Prado stated that

Acosta was acting “nervous,   just constant—continuous talking.”      According to Prado,

when Acosta stepped out of the car, he was “[e]xtremely nervous, jittery, shaking his

hands, fishing for things in his pocket like loose change, doing some weird things with his

hands to elaborate, scratching or messing with   this   area.”1 Garcia also testified that

Acosta appeared  “nervous”  and  “fidgety,”  “couldn’t  control  his  speaking,” and  “could  not  

look  me  straight  in  the  eye  and  tell  me  there  is  nothing  wrong  with  his  car.” Acosta told

Prado he was   coming   from   Pharr   and   heading   to   Fort  Worth   to   take   one   of   the   car’s  

occupants,  a  child,  “to  go  see  his  parents  before  the  new  school  year  started, and they

had intentions of coming right back.” Prado  testified  that  the  car  “stood  out  because  most  

cars  aren’t  that  clean.”    Additionally,  the  ignition  key  was  not  attached  to  any  other keys,

which the officers found unusual.

        According to Prado’s records, the car Acosta was driving was not registered to

him, but rather to  a  “Ms.  Guerrero  out  of  Pharr.” Prado  stated:    “[W]hen we asked Acosta


        1   The  record  does  not  reflect  what  “area”  Prado  was  referring  to  in  his  testimony.

                                                              2
what relation he had with her it was inconsistent to what the wife told us.”2 When the

prosecutor   asked   Garcia   whether   “the   answers   were   consistent   or   inconsistent   about  

duration  of  stay,  purpose,  those  sorts  of  things,”  Garcia  replied:    “They  were  inconsistent.”    

Both officers stated that drug traffickers often use vehicles belonging to a third party.

        Acosta gave consent to search the vehicle.                  The   search   revealed   “religious  

artifacts”  including a  Bible  and  “good  luck  charms” depicting  the  “Santa  Muerte,”  which,  

according to the officers, are commonly carried by drug traffickers. The search also

revealed  “two  plant-like items”  or  “herbs”  which  Prado  stated  are used  for  “good  luck.”

Additionally, Acosta was in possession of around $300 in cash.

        Using a tool which was found in a compartment in the rear of the car next to some

of the  “herbs,” the officers removed a spare tire that was stored in a well underneath the

floorboard. Garcia stated that, as soon as the tire dropped from where it was secured,  “it  

went  to  the  right,”  indicating  that  it  was  “loaded  with  something  that’s  not  supposed  to  be  

there.”    According to Prado, the spare tire was a different size than the tires which were

actually mounted on the car, and the rim on the spare tire was made for a later model of

car than the one Acosta was driving. After cutting open the spare tire, the officers

discovered seven   “rectangular   bundles”   wrapped   in   “some   type   of   clear   paper.”      The  

bundles were later confirmed to contain 24.48 pounds of marihuana. Prado testified that

he could not detect any odor of marihuana during the time it  was  “sealed  in  the  tire.”

        Several photographs were identified by Prado and entered into evidence. One

photograph depicted “the lubricant of the oil that was used to prime the tire to get it back

on there once they stuffed it with the narcotics or whatever . . . .” According to Prado, it


        2 Neither officer testified as to what, exactly, Acosta and his wife told them about the registered
owner of the vehicle.

                                                     3
was  “still  wet,”  which  indicated  that “it was recently done.” Another photograph depicted

“how  clean  the  tire  itself  is.”    Prado testified: “Normally we have our spare tires under our

cars. And you can wash your car all day, but how often do we go under there and clean

the spare tire? We  just  don’t do it. So to see one as clean as this is a big indicator.” A

third  photograph  depicted  “tooling”  on  the  bolt  which had secured the spare tire in place;

Prado  stated  that  this  indicated  that  the  spare  tire  had  “been  recently  lowered.” Prado

stated that it is not unusual for people who are carrying drugs to give consent to a search

of their car.

        Prado stated that, after discovering the contraband, he placed Acosta under arrest

and read him his Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (1966). Prado

testified:

        We told him we found narcotics in the vehicle. He said, You found drugs in
        the vehicle, as if he was in shock or surprised. And then after we read him
        his rights he made the comment,  and  it’s hard to interpret on the video, but
        it says, I  don’t want my family to be here. If I take the fall will you let them
        go? He said it in Spanish.

        And then right after he makes another statement saying  that  he  didn’t know
        about the drugs, why is his family here, we   didn’t know about the drugs.
        Why are you holding us?

Prado stated that the passengers in the car—Acosta’s  wife  and  two  children, one of which

was a minor—were handcuffed and detained briefly but were released at the scene. A

video   recording   of   the   traffic   stop   from   Acosta’s   patrol unit was entered into evidence

without objection.3

        On cross-examination, Prado conceded that he had been a DPS trooper for less

than two months at the time of the events in question. He acknowledged that it is


        3 A certified court translator later testified, having reviewed the video recording of the traffic stop,

that Acosta told the officers:    “I’ll  give  myself  up  if  you  don’t  arrest  my  family.”

                                                       4
“ordinary”  for a driver who has been stopped by police to become nervous. He agreed

that  it  is  “not  unusual”  for  a person, when lending their car, to lend only the ignition key

and not any other house keys.           The officers never   located   or   interviewed   the   car’s  

registered owner, nor did they do any investigation of the case following  Acosta’s  arrest.

Prado conceded that Acosta has a disabled son, that Acosta may have received a

disability check for his son, and that this might explain why Acosta had $300 in cash on

his person. Prado   agreed   that   Acosta   was   “very   cooperative”   during the traffic stop.

Prado further acknowledged that the spare tire measured sixteen inches and the tires on

the car measured seventeen inches; and he agreed that it is not unusual for a spare tire

to be smaller than the tires on the car.

       Prado  agreed  with  defense  counsel  that  Acosta  was  carrying  an  “invalid  license”  

and  had  “a  lot  of  outstanding  tickets”  at the time of the traffic stop. Prado further agreed

that he could have arrested Acosta merely because  of  the  “invalid  license,” and that this

may explain why Acosta appeared nervous. He  agreed  that  Acosta  “never  completely  

claimed  responsibility  or  knowledge”  of  the  marihuana  in  his  vehicle.

       On re-direct  examination,  Prado  clarified  that,  prior  to  the  search  of  Acosta’s  car,  

Acosta  was  given  “written  warnings  for  the  traffic  offenses”  and  Acosta  then was permitted

to drive his own vehicle to  the  sheriff’s  office, which is where the search took place. Prado

stated:

       [B]efore we found the marihuana we could see [Acosta] from the parking lot
       [and] we saw him and his family pacing back and forth in the lobby, which
       is odd because if it was because of his license he had no reason to be
       scared or nervous at that point because he had already been issued the
       citation,  meaning  he  wouldn’t go to jail for that. And he got a warning for
       the seat belt and a citation for the speed. So he was—at that point for those
       traffic violations he was not going to jail for that.

       Acosta was convicted and this appeal followed.
                                                  5
                          II. STANDARD OF REVIEW AND APPLICABLE LAW

        Acosta argues that the evidence was insufficient to show that he had knowledge

of the marihuana which was found hidden in the spare tire of the car he was driving. In

reviewing the sufficiency of evidence supporting a conviction, we consider 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 crime beyond a reasonable doubt. Hacker

v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); see Brooks v. State, 323 S.W.3d

893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307,

319  (1979)).    We  give  deference  to  “the  responsibility  of  the  trier of fact to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from

basic  facts  to  ultimate  facts.”    Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)

(citing Jackson, 443 U.S. at 318–19). When the record of historical facts supports

conflicting inferences, we must presume that the trier of fact resolved any such conflicts

in favor of the prosecution, and we must defer to that resolution. Padilla v. State, 326

S.W.3d 195, 200 (Tex. Crim. App. 2010).

        Sufficiency is measured by the elements of the offense as defined by a

hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). Such a charge is 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. A hypothetically correct jury charge in this case would

state that Acosta is guilty if he knowingly or intentionally possessed a usable quantity of

marihuana in an amount of fifty pounds or less but more than five pounds. See TEX.



                                                     6
HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(4). A person acts intentionally with respect

to the nature of his conduct when it is his conscious objective or desire to engage in the

conduct. TEX. PENAL CODE ANN. § 6.03(a) (West, Westlaw through Ch. 46, 2015 R.S.). A

person acts knowingly with respect to the nature of his conduct or to circumstances

surrounding his conduct when he is aware of the nature of his conduct or that the

circumstances exist. Id. § 6.03(b). “Possession” means “actual care, custody, control, or

management.” TEX. HEALTH & SAFETY CODE ANN. § 481.002(38) (West, Westlaw through

Ch. 46, 2015 R.S.).

       To prove unlawful possession of a controlled substance, the State must prove that:

(1) the accused exercised control, management, or care over the substance; and (2) the

accused knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d

402, 405–06 (Tex. Crim. App. 2005). However, when the accused is not in exclusive

possession of the place where the substance is found, “it cannot be concluded that the

accused had knowledge of and control over the contraband unless there are additional

independent facts and circumstances which affirmatively link the accused to the

contraband.”    Id. Under this rule, mere presence at the location where drugs are found

is insufficient, by itself, to establish actual care, custody, or control. Evans v. State, 202

S.W.3d 158, 161–62 (Tex. Crim. App. 2006). But presence or proximity, when combined

with other direct or circumstantial evidence of  “affirmative  links”  between  the  accused  and  

the contraband, “may well be sufficient to establish that element beyond a reasonable

doubt.” Id.

       Some factors which may be considered in the  “affirmative  links” analysis include:

(1) the accused’s presence when a search is conducted; (2) whether the contraband was



                                                7
in plain view or recovered from an enclosed area; (3) the accused’s proximity to and the

accessibility of the narcotic; (4) whether the accused was under the influence of narcotics

when arrested; (5) whether the accused possessed other contraband or narcotics when

arrested; (6) whether the accused made incriminating statements when arrested; (7)

whether the accused attempted to flee; (8) whether the accused made furtive gestures;

(9) whether there was an odor of contraband; (10) whether other contraband or drug

paraphernalia were present; (11) whether the accused owned or had the right to possess

the place where the drugs were found; (12) whether the accused was found with a large

amount of cash; (13) whether the conduct of the accused indicated a consciousness of

guilt; (14) whether the accused had a special connection to the contraband; and (15)

whether the accused was observed in a suspicious area under suspicious circumstances.

See id. at 162 n.12; Lassaint v. State, 79 S.W.3d 736, 740–41 (Tex. App.—Corpus Christi

2002, no pet.).

       It is “not the number of links that is dispositive, but rather the logical force of all of

the evidence, direct and circumstantial.” Evans, 202 S.W.3d at 162. “While  affirmative  

links may be proved by circumstantial evidence, proof amounting to a strong suspicion or

even  a  probability  will  not  suffice.”     Jenkins v. State, 76 S.W.3d 709, 713 (Tex. App.—

Corpus  Christi  2002,  pet.  ref’d).

                                         III. DISCUSSION

       The evidence at trial established conclusively that Acosta was driving the vehicle

which contained the marihuana and that he was not the registered owner of the vehicle.

Acosta   argues   that   “[t]he fact that [he] was driving this vehicle does not automatically

mean  he  owns  the  vehicle  or  any  of  its  contents.”    That  is true, but the fact that he was



                                                 8
driving the vehicle, combined with other evidence of  “affirmative  links,” may potentially

give rise to a reasonable inference that he knew what was inside the spare tire. See

Evans, 202 S.W.3d at 161–62. The question is whether that other evidence establishes,

“to the requisite level of confidence, that [his] connection with the drug was more than just

fortuitous.”    Poindexter, 153 S.W.3d at 405–06.

         Here, the officers testified to the following facts: (1) Acosta drove the same vehicle

in Live Oak County about three months before the traffic stop at issue 4; (2) he appeared

nervous   and   “fidgety”   and   “couldn’t   control   his   speaking”   during   the   traffic   stop;;   (3)   he

could not look Garcia in the eye when Garcia asked if there was anything illegal in the

car; (4) his statement regarding his relationship with the vehicle’s  registered owner, as

well as his answers regarding the “duration  of  stay,  purpose,  those  sorts  of  things,”  were

inconsistent with the answers given by his wife; (5) the   vehicle   contained   “religious  

artifacts”  and  “herbs”  which are commonly carried by drug traffickers; (6) Acosta and his

family  were  “pacing  back  and  forth”  in  the  lobby  of  the  sheriff’s  office  while  the  officers  

searched the car; and (7) after the contraband was found, Acosta asked the officers

whether they would let his family go if he were to accept responsibility.

         Applying these facts to the factors enumerated above, we observe that most of the

factors are not present in this case. In particular, the evidence established that: (1) the

marihuana was not in plain view; (2) it was not readily accessible to Acosta; (3) Acosta



         4  On appeal, Acosta states that his trial counsel “should have objected to this testimony” because
the  officer  was  “without any knowledge of the purpose of the previous trip, identification of Appellant as the
same driver was never authenticated, and this testimony directly implied that Appellant made prior drug
trafficking trips . . . .”    However, Acosta does not argue, implicitly or explicitly, that his trial counsel afforded
constitutionally ineffective assistance. In any event, in a sufficiency analysis we must consider all evidence
actually admitted at trial, including erroneously admitted evidence. See Moff v. State, 131 S.W.3d 485
(Tex. Crim. App. 2004).

                                                          9
did not appear to be under the influence of drugs; (4) he did not possess other contraband

or narcotics; (5) he did not attempt to flee; (6) he did not make furtive gestures; (7) there

was no detectable odor of contraband; (8) there was no other contraband or

paraphernalia present; (9) Acosta did not own the vehicle in which the contraband was

found and there was no evidence that he had the right to possess the vehicle; (10) Acosta

was not in possession of a large amount of cash5; and (11) he was not found in a

suspicious area or under suspicious circumstances. See Evans, 202 S.W.3d at 162 n.12;

Lassaint, 79 S.W.3d at 740–41. Nevertheless, the absence of various links does not

constitute evidence of innocence to be weighed against the links present. Hernandez v.

State, 538 S.W.2d 127, 131 (Tex. Crim. App. 1976); James v. State, 264 S.W.3d 215,

219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).

         The only factors as to which the State presented evidence were: (1) that Acosta’s

“conduct indicated a consciousness of guilt”; (2) that he “made  incriminating  statements  

when arrested”;;  and  (3)  that  he  had  a  “special  connection”  to  the  contraband. See Evans,

202 S.W.3d at 162 n.12; Lassaint, 79 S.W.3d at 740–41. We will discuss each of these

three factors in turn.

A.       Conduct Indicating Consciousness of Guilt

         We first address whether Acosta’s  conduct indicated a consciousness of guilt. We

observed in Lassaint v. State that, while   “[e]xcessive   nervous   behavior   and   unsettled  




         5  Prado testified that Acosta was in possession of about $300 at the time of the traffic stop.
However,  he  also  testified  that  it  would  cost  “well  over  [$]300”  to  pay  for  fuel  for  Acosta’s  round-trip journey.
We do not believe $300 is so large an amount of cash as to be probative regarding whether Acosta knew
of the contraband. Cf., e.g., Henry v. State, 409 S.W.3d 37, 43 (Tex. App.—Houston [1st Dist.] 2013, no
pet.) (finding $7,000  to  be  “a  large  amount  of  cash” in an affirmative links analysis); Cisneros v. State, 290
S.W.3d 457, 461 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (finding  $2,243  to  be  “a  large  amount  of  
cash” in an affirmative links analysis).

                                                              10
demeanor  may  be  examples  of  consciousness  of  guilt,”  nervousness “is a tenuous link to

the contraband because most people are somewhat nervous when confronted by a police

officer.”    79 S.W.3d at 743. Here, the officers testified that Acosta was nervous during

the traffic stop, but that he answered their questions and was “very  cooperative.” Acosta’s

nervousness may be explained by the fact that he was just stopped by police with an

invalid license, unbuckled passengers, and “a  lot  of  outstanding  tickets.”    Prado  stated  

that, after Acosta had been cited for the invalid license and warned for the seat belt

violation,  “he  had  no  reason  to  be  scared  or  nervous”  but  was  still  “pacing  back  and  forth  

in the lobby.”    But we do not believe that “pacing back and forth” in the lobby of a police

station while   waiting   for   one’s   car   to   be   searched for contraband constitutes furtive or

suspicious behavior.

        Prado also testified that Acosta gave different answers to his questions than did

Acosta’s  wife. But there was no evidence as to whether the answers given by Acosta

were true. In Lassaint, we noted that “[t]he conflicting or untruthful statements of others

cannot serve as an affirmative link when the accused made truthful statements.”    Id. at

745. Here, because there was no evidence as  to  whether  Acosta’s  answers  were  truthful,  

the fact that  his  answers  conflicted  with  his  wife’s  answers cannot serve to affirmatively

link him to the drugs. See id.

B.      Incriminating Statement

        Second, we  address  Acosta’s  allegedly  incriminating  statement.    After the officers

told Acosta they found drugs in the vehicle, Acosta said:    “I  don’t  want  my  family  to  be  

here.    If  I  take  the  fall  will  you  let  them  go?”    His statement was alternately translated as:

“I’ll  give  myself  up  if  you  don’t  arrest  my  family.” This statement was not a direct admission



                                                    11
of guilt—in fact, according to Prado, at around the same time as Acosta made the

statement, Acosta acted  “as  if  he  was  in  shock  or  surprised”  that  the  officers  found  drugs  

in the car, and he repeatedly denied knowing the drugs were there. Nevertheless, the

fact that Acosta offered to take responsibility in exchange for the release of his family

does weigh in favor of finding an affirmative link between him and the contraband.

C.       Special Connection to Contraband

         Finally, we consider whether the   “religious   artifacts”   and   “herbs”   found   in   the  

vehicle may establish  a  “special  connection”  between  Acosta  and  the contraband. See

Lassaint, 79 S.W.3d at 741.6 Prado stated  that  he  saw  a  “Bible  on  the  dashboard”  and  

“good  luck  charms  inside  [Acosta’s]  wife’s  purse.”    He stated  that  the  “herbs”  were  found  

“on  the  sun  visor  and  near  the  compartment  where  the  tools to lower [the tire containing]

the  drugs  were  located.” According to Prado, the  “Santa  Muerte”  is  “supposed  to  bring  

good  luck  and  faith  and  guidance  to  people”  and   is “worshipped”  by  human  smugglers  

and drug traffickers.

         First,  we  note  that  neither  officer  testified  that  the  “herbs”  found in the vehicle are

typically used by drug traffickers or are indicative of criminal activity. Instead, Prado

opined  that  they  are  used  for  “good  luck”  and  Garcia  testified  that  they  were  “put  there  for  

a  purpose”  but  did  not  elaborate  on  what  that  purpose  was.    The presence of  the  “herbs”  

in the vehicle, therefore, cannot affirmatively link Acosta to the contraband based on the

evidence adduced at trial.



         We  do  not  believe  the  officers’  testimony  regarding  Acosta’s  keychain  is  probative  as  to  a  “special  
         6

connection”  between  Acosta  and  the  contraband.    The  officers  testified  that  the  key  to  the  vehicle  Acosta  
was driving was on a keychain with no other keys, and that this was unusual. However, there was no
testimony that this was indicative of criminal activity. Moreover, the keychain—as depicted in the
photograph entered into evidence—appears to have at least one other key attached to it.

                                                            12
        We next address  the  “religious  artifacts.”    Texas appellate courts have considered

the significance of objects depicting Santa Muerte in other cases. In Cantu v. State, the

court considered the fact that appellant carried a Santa Muerte statue as a factor in favor

of finding that police had reasonable suspicion to detain the appellant. No. 04-13-00207-

CR, 2014 WL 4230068, at *4 (Tex. App.—San Antonio Aug. 27, 2014, no pet.) (mem. op.,

not designated for publication) (noting  that   the  testifying   officer   “learned   in   his   criminal  

interdiction training that people involved in the drug trade sometimes carry such an item

with them because they believe it will protect them and their drug loads”). In Flores v.

State, the Fourteenth Court of Appeals noted that “Santa Muerte is known as the patron

saint of narcotics traffickers”   but   did   not   explicitly   consider   the fact that appellant

possessed a Santa Muerte medallion and shrine in concluding that the evidence

supported   “affirmative   links.” 440 S.W.3d 180, 186 (Tex. App.—Houston [14th Dist.]

2013), vacated on other grounds, 427 S.W.3d 399 (Tex. Crim. App. 2014). In Batiste v.

State, the Texas Court of Criminal Appeals found that the trial court did not abuse its

discretion by overruling   the   appellant’s   objection   to   punishment phase evidence of a

Santa Muerte necklace that appellant was wearing when he was arrested. No. AP-

76,600, 2013 WL 2424134, at *6 (Tex. Crim. App. June 5, 2013) (not designated for

publication).    There, the testifying officer explained that, “in   the   criminal   world,   it’s

worn . . . to keep the police away and hope your criminal endeavor goes okay.” Id. at *4.

The officer conceded, however, that “non-criminals”  may “also have items that might have

Santa  Muerte  on  them”  and  that  “[n]ot  everybody  wearing  a  Santa  Muerte  is  a  criminal.”

Id. at *4 n.5. The Court found that the testimony was relevant as to   appellant’s gang

membership, which in turn was relevant to future dangerousness, and therefore the



                                                    13
evidence was admissible at the punishment phase. Id. at *5. In Mireles v. State, the

Dallas court found that it was not error to deny a mistrial when the State presented

evidence at the punishment stage that the defendant worships Santa Muerte and that

followers of Santa Muerte commit violent acts. No. 05-12-00040-CR, 2013 WL 226190,

at *11 (Tex. App.—Dallas Jan. 18, 2013, no pet.) (not designated for publication) (noting

that the trial court instructed the jury to disregard the remark and appellant did not rebut

the presumption that the jury followed the instruction). Finally, in Medina v. State, the

First Court of Appeals found   insufficient   evidence   to   support   “affirmative   links”   even  

though a bag containing crack cocaine was found on top of a Santa Muerte shrine in

appellant’s house. No. 01-10-01134-CR, 2011 WL 6013094, at *5 (Tex. App.—Houston

[1st  Dist.]  Dec.  1,  2011,  pet.  ref’d) (not designated for publication) (noting that “appellant

was not present at her house when the drugs were found, and there was no evidence

about how long she had been absent from the house”). The State has not directed us to

any case, and we find none, where evidence of an object depicting the Santa Muerte has

been explicitly held  to  establish  an  “affirmative  link”  between  the  owner  of the object and

the contraband.

       Under  the  circumstances  of  this  case,  we  find  that  the  officers’  testimony  regarding  

the Santa Muerte, even viewed in the light most favorable to the prosecution, could not

affirmatively link Acosta to the drugs. The rules of evidence provide that opinion testimony

by  lay  witnesses  must  be  “rationally  based  on  the  witness’s  perception,” see TEX. R. EVID.

701(a), but the officers did not testify as to any perceptions which undergirded their

opinion that the presence of Santa Muerte is indicative of criminal activity. Although

defense counsel did not object to this testimony, conclusory statements are generally not



                                                  14
probative evidence. See Swearingen v. State, 303 S.W.3d 728, 733 (Tex. Crim. App.

2010) (holding  that  a  witness’s  “conclusory  statement”  that  “individuals  deposit  their  DNA  

on  objects  that  they  touch”  was  not  “concrete  evidence  that  biological  material  existed  on  

the  evidence  sought  to  be  tested”). Moreover, even  if  Acosta’s  testimony  regarding  the  

tendencies of drug traffickers may generally be considered probative, there was no

evidence, direct or circumstantial, that  Acosta  was  aware  that  the  Santa  Muerte  “good  

luck  charms”  were  in  his  wife’s  purse.

D.      Analysis

        The only probative evidence that we find in the record tending to establish an

affirmative link between Acosta and the contraband are the undisputed facts that: (1) he

was found in the same car as the contraband, and (2) he offered to accept responsibility

if the officers would let his family go. There was no  direct  evidence  establishing  Acosta’s  

knowledge of the contraband in his vehicle—for example, there were no fingerprints

collected from the bundles, the spare tire, or the tool used to access the tire—and there

was no direct or circumstantial evidence establishing that Acosta was present when the

drugs were loaded in the car. Moreover, police did not interview or even investigate the

identity of the registered owner of the vehicle. And, it is undisputed that, although Acosta

appeared nervous during the   traffic   stop,   he   answered   the   officers’   questions   and  

cooperated with them fully.

        We believe this case is analogous to Jenkins v. State, in which we held there was

insufficient evidence of intentional or knowing possession of drugs. See 76 S.W.3d at

719. There, an officer observed a car crossing a lane marker and initiated a traffic stop.

Id. at   714.      Jenkins,   who   was   in   the   front   passenger’s   seat,   began   “moving   around,  



                                                     15
shuffling  inside  the  car”  and  another  passenger  in  the  back  seat  “popped  up.” Id. The

driver exited the vehicle immediately, which the officer found to be uncommon, and gave

information regarding his criminal history which differed from police records. Id. Jenkins,

meanwhile,  appeared  “more  nervous  than  normal”  and,  when  the  officer asked him to exit

the  vehicle,  he  “backed  toward  [the  officer]  as  if  to  be  handcuffed,”  which  the  officer  found  

unusual. Id. Jenkins  gave  “unsure  and  evasive”  answers  to  the  officer’s  questions.    Id.

The back seat passenger, who was the owner of the car, consented to a search, which

revealed a loaded handgun underneath the front passenger seat. Id. After the officer

opened  the  trunk,  he  “recognized  the  odor  of  marihuana”  and  discovered  seven  bundles  

of marihuana. Id. at 715. Later, the back seat  of  the  car  was  removed,  revealing  “an  

envelope,   a   box   of   sandwich   baggies,   rubber   gloves,   $1,978   in   cash,”   and   a   box  

containing cocaine. Id. A black duffel bag belonging to the driver, which was found in

the  back  passenger  seat,  contained  “baggies  used for  weighing  and  packaging  drugs.”    

Id.

        We  held  that  all  of  this  evidence  was  insufficient  to  “link  appellant  to  the  contraband  

in such a manner and to such an extent that a reasonable inference may arise that the

accused  knew  of  the  contraband’s  existence  and  that  he  exercised  control  over  it.”    Id. at

719.    We  held  that  Jenkins’s  movements  in  the  car  were  not  furtive  because  there  was  

“nothing  suspicious”  about  the  surrounding circumstances. Id. at  718  (noting  that  “[m]ere  

movement by an occupant in a vehicle being stopped by a law enforcement officer, not

coupled with reliable information nor suspicious circumstances, does not give rise to

probable   cause   to   search   of   the   vehicle”).      We   acknowledged   that   there   was   a   large  

amount of cash in the car, but because   two   other   people   “had   personal   property  



                                                      16
connected   either   with   drug   paraphernalia   or   the   marihuana”—i.e., the driver and back

seat passenger—the  probative  force  of  this  evidence  was  “decrease[d].”    Id. Further, the

officer’s  testimony  that  “those  who transported large amounts of drugs tended to travel

with  weapons”  did  not  link  Jenkins  to  the  contraband  because  the  officer  “conceded  that  

it was possible for a person sitting in the front passenger seat to not know a firearm was

underneath,”   and   there   were no fingerprints linking Jenkins to the gun. Id. Finally,

although there were three pairs of shoes found in the trunk where the marihuana was

found,  there  was  no  evidence  of  Jenkins’s  shoe  size  or  that  the  shoes  belonged  to  him,  

“much  less  that  [he]  placed  them  there  at  a  time  when  the  marihuana  was  present.”    Id.

       Here, as in Jenkins, there were multiple adults other than the appellant in the car

when the contraband was found, and the State offered minimal evidence tending to

establish that the appellant was more responsible than the other occupants for the

presence of the contraband. We therefore find that, based on all of the evidence adduced

at trial, a reasonable trier of fact could not have concluded beyond a reasonable doubt

that   Acosta’s   possession   of   the   marihuana   was   “more   than   just   fortuitous.”      See

Poindexter, 153 S.W.3d at 405–06. Instead, even when viewed in the light most favorable

to the verdict, the evidence supported no more than a mere suspicion—or at most, a bare

probability—that Acosta had   “actual   care,   custody,   control,   or   management”   of the

marihuana found in the vehicle he was driving. See TEX. HEALTH & SAFETY CODE ANN.

§ 481.002(38); Jenkins, 76 S.W.3d at 713. Accordingly, the evidence was insufficient to

support  the  conviction,  and  we  sustain  Acosta’s  issue  on  appeal.




                                                  17
                                        IV. CONCLUSION

       We  reverse  the  trial  court’s  judgment  and  render  judgment  of  acquittal.


                                                     DORI CONTRERAS GARZA,
                                                     Justice


Dissenting Opinion by
Justice Gregory T. Perkes


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
9th day of July, 2015.




                                                18
                              NUMBER 13-14-00415-CR

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


GENARO GALVAN ACOSTA JR.,                                                       Appellant,

                                              v.

THE STATE OF TEXAS,                                                             Appellee.


                       On appeal from the 156th District Court
                             of Nueces County, Texas.


                   DISSENTING MEMORANDUM OPINION

                Before Justices Garza, Benavides, and Perkes
             Dissenting Memorandum Opinion by Justice Perkes
        I dissent from the  majority’s  holding because I believe the evidence is sufficient to

support  appellant’s  conviction.     

        Each case must be examined on its own facts. Hurtado v. State, 881 S.W.2d 738,

743 (Tex. App.—Houston [1st Dist.]  1994,  pet  ref’d);;  Whitworth v. State, 808 S.W.2d 566,
569 (Tex. App.—Austin  1991,  pet.  ref’d).      The  logical  effect  of  the  cumulative  evidence  

is more important than tallying factors. As  the  majority   notes,   “it   is  not   the   number  of  

links that is dispositive, but rather the logical force of all of the evidence, direct and

circumstantial.”      Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). The

Texas Court of Criminal Appeals cautions us against reviewing these facts or links in

isolation. Id. at 164. Furthermore, we may not substitute our own weighing of the

evidence and alternative-explanation exercises for those of the jury. Id. With that in

mind, I turn to the evidence.

         The evidence admitted against appellant consists of: 1) approximately 25 pounds

of marijuana found in the spare tire of the car; 2) appellant was the driver of the car at the

time of the arrest and had been earlier observed driving the car; 3) appellant appeared

nervous during the stop and subsequent search; 4)  appellant’s  incriminating  statement

made after the discovery of the marihuana; and 5) appellant possessed $300 but was

unemployed.1

         The fact that appellant was the driver of the car that was later found to contain

marijuana is suspicious. See Roberson v. State, 80 S.W.3d 730, 742 (Tex. App.—

Houston [1st Dist.] 2002, pet.  ref’d);;  Martinets v. State, 884 S.W.2d 185, 188 (Tex. App.—

Austin 1994, no pet.). This, combined with other evidence, can be sufficient to uphold

possession convictions. See Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App.

1976). The other evidence was that Officer Prado saw appellant driving the same car



         1
           I  agree  with  the  majority  that  the  “Santa  Muerte”  religious  paraphernalia  is  not  an  “affirmative  link”  
connecting appellant to the drugs. Even if such material did constitute evidence of drug smuggling, officers
located  the  “Santa Muerte”  artifact  in  appellant’s  wife’s  purse.
                                                               2
three months prior, inferring that appellant had a right to possess the car. This is the

second link. Appellant continued to exhibit nervous behavior by pacing back and forth

in the police station—the third, albeit weak, link. After officers discovered the marijuana

in the car, appellant stated he would accept responsibility if his family were released—

the strong fourth link. While  appellant’s  possession  of  the  $300  is  not by itself unusual,

when combined with his unemployment, the money does have probative value in

connecting appellant to the drugs. This is the fifth link.

        Each piece of evidence is not dispositive by itself. However, when weighing the

cumulative effect of the evidence, I believe that the jury could have reasonably found,

based on the circumstantial evidence coupled with the reasonable inferences from it, that

appellant exercised sufficient care, custody, control, or management over the marijuana.

Appellant’s  issue  sole should be overruled.

       I would affirm the conviction.



                                                       GREGORY T. PERKES
                                                       Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
9th day of July, 2015.




                                                3
