                                         In The
                                    Court of Appeals
                           Seventh District of Texas at Amarillo

                                           No. 07-18-00239-CR


                              ALFRED SEPULBEDA, JR., APPELLANT

                                                    V.

                                 THE STATE OF TEXAS, APPELLEE

                               On Appeal from the 286th District Court
                                        Hockley County, Texas
                      Trial Court No. 18-02-9301, Honorable Pat Phelan, Presiding

                                         November 25, 2019

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


          Appellant, Alfred Sepulbeda, Jr., was convicted by a jury of possession of

methamphetamine with intent to deliver.1 The jury assessed his punishment at thirty-five

years in prison. Appellant challenges the sufficiency of the evidence to prove that he

possessed methamphetamine with the intent to deliver, as set forth in the indictment. We

affirm.




          1   TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (West 2017).
                                              Background


       In the fall of 2016, law enforcement in Hockley County began an investigation into

the distribution of methamphetamine from appellant’s residence at 407 Avenue L in

Levelland, Texas. On October 26, 2016, while the home was under surveillance, a

confidential informant entered the residence to purchase methamphetamine.                               The

informant gave the money to Jonathan Garza and waited in the living room. A short time

later, Garza and appellant returned to the living room with methamphetamine. Garza

handed the methamphetamine to the informant. Appellant’s roommate, Adam Martinez,

was also present when the methamphetamine was purchased. It is undisputed that

appellant was not seen handling the money or the methamphetamine involved in the

controlled buy. Later that same day, law enforcement obtained a search warrant for the

residence.


       During the search of the residence, a plastic bag containing a white powdery

substance was found on the living room table. The contents of the bag were field tested

and found to be positive for methamphetamine. Officers found four plastic bags of

suspected methamphetamine2 inside an iPhone box on the kitchen table. The words

“three and a half” and “seven” were written on the baggies indicating that they were

broken up for sale.3 A scale was found near the cell phone box. Assorted mail addressed

to appellant was discovered “all throughout the house,” as well as appellant’s wallet.

Three $20 bills found in appellant’s wallet had the same serial numbers as the $20 bills




       2 The four plastic bags of suspected methamphetamine weighed 19.3 grams, including

packaging.

       3   Three and a half grams is an eighth of an ounce, and seven grams is a quarter of an ounce.

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that law enforcement had given to the confidential informant to                    purchase

methamphetamine from appellant.


       The four baggies found on the kitchen table were sent to the Texas Department of

Public Safety for testing. The results of testing showed the baggies contained 17.48

grams of methamphetamine.


       The jury found appellant guilty.      Appellant challenges the sufficiency of the

evidence to support his conviction for possession with intent to deliver methamphetamine.


                                    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 are 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. 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


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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 verdict, the State was required to prove that appellant

knowingly possessed methamphetamine with intent to deliver. 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 substance,

and (2) knew the matter possessed was contraband. TEX. PENAL CODE ANN. § 1.07(a)(39)

(West Supp. 2019); Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005).

A person commits a possession offense only if he voluntarily possesses the prohibited

item. TEX. PENAL CODE ANN. § 6.01(a) (West 2011). “Possession is a voluntary act if the

possessor knowingly obtains or receives the thing possessed or is aware of his control of

the thing for a sufficient time to permit him to terminate his control.” James v. State, 264

S.W.3d 215, 218 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).


       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. Evans v. State, 202 S.W.3d 158, 161-62

(Tex. Crim. App. 2006); Poindexter, 153 S.W.3d at 406. 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

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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. Id. 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.

ref’d).4 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)



        4  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. Sanchez v. State, No. 07-08-00356-CR,
2010 Tex. App. LEXIS 8596, at *12-13 (Tex. App.—Amarillo Oct. 27, 2010, pet. ref’d) (mem. op., not
designated for publication) (citing 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).

                                                     5
whether other contraband or drug paraphernalia was 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).


       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

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


       The focus of appellant’s sufficiency challenge is whether he possessed the

methamphetamine with the intent to deliver. Although appellant was not in exclusive

possession of the place where the methamphetamine was found, the evidence sufficiently

links appellant to the possession and distribution of methamphetamine. Appellant was

present when the search warrant was executed at the residence where he lived. The day

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before his house was searched, appellant observed a sale of methamphetamine in his

living room. Additionally, appellant’s wallet contained three marked $20 bills used by the

confidential informant to purchase methamphetamine at appellant’s residence. Law

enforcement also found a scale on the kitchen table near four baggies of

methamphetamine. The four baggies had markings indicating that the drugs had been

portioned for sale. The quantity of drugs found on the kitchen table, 17.48 grams, is more

consistent with delivery than personal use, and a surveillance camera mounted on the

outside of the residence is commonly associated with persons in the business of selling

drugs.


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

between appellant and the methamphetamine found in the residence to determine the

evidence is sufficient to support his conviction for possession of methamphetamine with

the 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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