                                      NUMBER 13-08-012-CR

                                    COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


ALBERT JAMES III,                                                                                 Appellant,

                                                       v.

THE STATE OF TEXAS,                                                                                Appellee.


                      On appeal from the 252nd District Court of
                             Jefferson County, Texas.


                                MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Yañez and Garza
               Memorandum Opinion by Justice Yañez

       A jury found appellant, Albert James III, guilty of possession of a controlled

substance (codeine), a third-degree felony.1 The trial court sentenced appellant to ten

years’ imprisonment in the Texas Department of Criminal Justice–Institutional Division. By

two issues, appellant contends that: (1) the evidence is legally insufficient to support his


       1
           See T EX . H EALTH & S AFETY C OD E A N N . §§ 481.105(1), 481.118(c) (Vernon 2010).
conviction; and (2) the trial court erred in denying his motion for instructed verdict. The trial

court certified appellant’s right to appeal, and this appeal followed.2 We affirm.

                                                I. BACKGROUND

        At trial, Officer Jered Dupree of the Beaumont Police Department testified that on

January 10, 2005, he received a dispatch call regarding a reckless driver.                                Upon

approaching the reported location, Officer Dupree observed the reported vehicle changing

lanes in a reckless manner without using a turn signal. Officer Dupree stopped the

vehicle.3 Upon approaching the vehicle, Officer Dupree observed what appeared to be

marihuana on the pickup’s console between the driver and the passenger. Officer Dupree

removed appellant from the vehicle, handcuffed him, and placed him in the officer’s patrol

car. Next, Officer Dupree searched the passenger, and upon finding drugs, placed him in

the patrol car. Then, Officer Dupree conducted an inventory search of the vehicle. In the

driver’s seat, directly where appellant was sitting, Officer Dupree found a reddish

“prescription-looking” bottle containing what was later determined to be cough syrup

containing codeine. Officer Dupree took appellant and the passenger to the police

department for booking.

                            II. STANDARD OF REVIEW AND APPLICABLE LAW

        By his first issue, appellant challenges the legal sufficiency of the evidence to

support his conviction. By his second issue, appellant contends that the trial court erred

in denying his motion for an instructed verdict. Because a motion for an instructed verdict




        2
          This appeal was transferred to this Court from the Ninth Court of Appeals pursuant to a docket-
equalization order issued by the Texas Suprem e Court. See T EX . G O V ’T C OD E A N N . § 73.001 (Vernon 2005).

        3
            The officer identified appellant as the driver of the vehicle.

                                                         2
is a challenge to the legal sufficiency of the evidence, we address these issues together.4

        In conducting a legal sufficiency review, an appellate court must ask whether “‘any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt’— not whether ‘it believes that the evidence at the trial established guilt

beyond a reasonable doubt.’”5 A jury’s verdict will be upheld “unless a rational factfinder

must have had reasonable doubt as to any essential element.”6 We do not reevaluate the

weight and credibility of the evidence, and we do not substitute our own judgment for that

of the trier of fact.7 We resolve any inconsistencies in the evidence in favor of the

judgment.8

        A person commits an offense if the person knowingly or intentionally possesses a

controlled substance in Penalty Group 4, unless the person obtained the substance

pursuant to a valid prescription.9 To prove possession of a controlled substance, the State

must show that the accused: (1) intentionally or knowingly exercised control, management,



        4
         See Lemoine v. State, 85 S.W .3d 385, 387 (Tex. App.–Corpus Christi 2002, pet. ref’d) (citing
Madden v. State, 799 S.W .2d 683, 686 (Tex. Crim . App. 1990)). In his m otion for instructed verdict, appellant
argued that the State failed to prove that he possessed codeine as listed in Penalty Group 4. See T EX . H EALTH
& S AFETY C OD E A N N . § 481.105(1) (Vernon 2010).

        5
         Laster v. State, 275 S.W .3d 512, 517 (Tex. Crim . App. 2009) (quoting Jackson v. Virginia, 443 U.S.
307, 318-19 (1979)).

        6
            Id. at 518.

        7
         King v. State, 29 S.W .3d 556, 562 (Tex. Crim . App. 2000) (en banc); Beckham v. State, 29 S.W .3d
148, 151 (Tex. App.–Houston [14th Dist.] 2000, pet. ref’d).

        8
            Curry v. State, 30 S.W .3d 394, 406 (Tex. Crim . App. 2000).

        9
          See T EX . H EALTH & S AFETY C OD E A N N . § 481.118(a) (Vernon 2010). Section 481.105 of the Texas
Health and Safety Code, in relevant part, defines a Penalty G roup 4 controlled substance as a substance
containing “not m ore than 200 m illigram s of codeine per 100 m illiliters or per 100 gram s” and “one or m ore
nonnarcotic active m edicinal ingredients in sufficient proportion to confer on the com pound, m ixture, or
preparation valuable m edicinal qualities other than those possessed by the narcotic drug alone[.]” Id. §
481.105(1) (Vernon 2010).

                                                       3
or care over the substance; and (2) knew that the substance was contraband.10 However,

“[w]hen an accused is not in exclusive possession and control of the place where

contraband is found, it cannot be concluded he had knowledge or control over the

contraband unless there are additional independent facts and circumstances that

affirmatively link him to the contraband.”11 A link between the accused and the contraband

may be established by the following nonexclusive list of factors: (1) the contraband was

in plain view; (2) the accused owned the premises or had the right to possess the place

where the contraband was found; (3) the accused had a large amount of cash when found;

(4) the accused's access to the contraband; (5) the accused's close proximity to the

contraband; (6) there was a strong residual odor of the contraband; (7) the accused

possessed other contraband when arrested; (8) paraphernalia to use the contraband was

present on the accused or in plain view; (9) the accused was under the influence of

narcotics when arrested; (10) the accused's conduct indicated a consciousness of guilt;

(11) the accused attempted to escape or flee; (12) the accused made furtive gestures; (13)

the accused had a special connection to the contraband; (14) conflicting statements about

relevant matters were made by the occupants of the place where the contraband was

found; (15) the accused made incriminating statements connecting himself to the

contraband; (16) the quantity of the contraband; and (17) the accused was observed in a

suspicious area under suspicious circumstances.12 The sufficiency of links is not based



        10
             Lopez v. State, 267 S.W .3d 85, 91 (Tex. App.–Corpus Christi 2008, no pet.).

        11
             Lassaint v. State, 79 S.W .3d 736, 740 (Tex. App.–Corpus Christi 2002, no pet.).

        12
           Lopez, 267 S.W .3d at 92; see Nelson v. State, No. 09-08-503-CR, 2009 Tex. App. LEXIS 6759,
at **5-6 (Tex. App.–Beaum ont Aug. 26, 2009, no pet.) (m em . op.) (not designated for publication) (listing
factors).

                                                       4
on the number of factors established, but on the logical force of all the circumstantial and

direct evidence.13

                                           III. DISCUSSION

        In his challenge to the legal sufficiency of the evidence supporting his conviction,

appellant specifically contends that he was not in exclusive possession of the premises in

which the codeine was found. In addition, appellant contends that the State did not prove

that the codeine allegedly possessed by appellant belonged to Penalty Group 4. We find

both of appellant’s arguments to be without merit.

        Appellant argues that because Officer Dupree did not find the codeine until after

appellant and his passenger were removed from the vehicle, “[i]t is reasonable to deduce

that the passenger placed the controlled substance where Dupree located it.” Officer

Dupree testified that he found the bottle of codeine “[d]irectly underneath” where appellant

had been sitting in the vehicle. On cross-examination, Officer Dupree admitted that he did

not notice the bottle of codeine when he first removed appellant, but also testified, on re-

direct examination, that based on where the bottle was found, he assumed appellant was

sitting on it. Thus, the only factors reflected by the evidence are that appellant: (1) was

driving the vehicle; and (2) was in close proximity to the codeine.

        With respect to appellant’s claim that the State failed to prove the specific penalty

group alleged in the indictment, the State presented the testimony of Emily Escaville, a

forensic analyst with the Jefferson County Regional Crime Laboratory. Escaville explained

the process by which she analyzed the codeine and testified that, based on the level of



        13
          Evans v. State, 202 S.W .3d 158, 162 (Tex. Crim . App. 2006); Lopez, 267 S.W .3d at 92; Lassaint,
79 S.W .3d at 741.

                                                    5
codeine in the substance, it belonged in Penalty Group 4.14

       Construing the evidence in the light most favorable to the verdict,15 we conclude that

the jury could have found: (1) a link between the codeine and appellant; and (2) that

appellant intentionally or knowingly exercised control, management, or care over the

codeine and knew that the substance was contraband.16 We also find that, based on

Escaville’s testimony, a rational jury could have found that the codeine belonged in Penalty

Group 4.17 Therefore, the evidence was legally sufficient to support appellant’s conviction.

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




Do not publish.
TEX . R. APP. P. 47.2(b).
Delivered and filed the
19th day of August, 2010




       14
            See T EX . H EALTH & S AFETY C OD E A N N . § 481.105(1) (Vernon 2010).

       15
            See Jackson, 443 U.S. at 319.

       16
            See Lopez, 267 S.W .3d at 91.

       17
            See T EX . H EALTH & S AFETY C OD E A N N . § 481.105(1) (Vernon 2010).

                                                        6
