      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-06-00264-CR



                                    Jesse Rodriguez, Appellant

                                                   v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
       NO. D-1-DC-05-205463, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Jesse Rodriguez appeals his conviction for possession of cocaine with intent to deliver

in an amount greater than four grams but less than two hundred grams. See Tex. Health & Safety

Code Ann. §§ 481.002(38), .112(a) (West 2003). After finding an enhancement charge to be true,

the trial court assessed punishment at fifteen years’ confinement. Appellant contends that the

evidence at the bench trial was legally and factually insufficient to support his conviction in that the

evidence failed to link him to the contraband. Because we conclude that the evidence was sufficient

and links appellant to the contraband, we affirm the judgment of conviction.


                                   FACTUAL BACKGROUND

                Following an investigation beginning in August 2005 that included several days

of surveillance of a residence at 5107 Savorey Lane in Austin, on October 17, 2005, Michael

Mancias, a narcotics investigator with the Texas Department of Public Safety, obtained and executed
a search warrant for the premises. Prior to the search, the officers detained appellant in the parking

lot of a local grocery store and then transported him back to the premises. During the course of

the search, officers found cocaine, marijuana, and drug paraphernalia in a chest of drawers and closet

in the master bedroom. Eleven bags of powder cocaine and one bag of crack cocaine were found

in the dresser.

                  The officers found a “sifter” for marijuana, two scales, and a surveillance monitor in

the master bedroom. Mancias testified at trial that he also found a glass pipe, of the kind used to

smoke marijuana, and a box of insulin syringes on the dresser. The officers also seized surveillance

equipment from the premises, including a monitor in the master bedroom and cameras placed outside

the house; one camera was positioned at the front door, and another was housed in plexiglass in a

birdhouse in a tree on the premises.

                  Following the search, the officers placed appellant under arrest. Tests performed on

the drugs confirmed the bags contained cocaine in an amount exceeding four grams.


                                              ANALYSIS

                  In three issues, appellant contends that the evidence is legally and factually

insufficient to support his conviction. Specifically, appellant asserts that the State failed to

affirmatively link him to the drugs found in the residence. Because appellant was arrested away

from the premises, the house was leased in another person’s name, and other persons had access to

the house, appellant urges that he was not in exclusive control of the premises, other parties had

superior links to the contraband, and the links are therefore insufficient to connect him to the




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contraband. Appellant does not dispute the weight and composition of the contraband, nor does he

challenge the search warrant.


Standard of Review

               In reviewing the legal sufficiency of the evidence to support a conviction, we view all

the evidence in the light most favorable to the verdict in order to determine whether any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319 (1979); Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006);

Hampton v. State, 165 S.W.3d 691, 693 (Tex. Crim. App. 2005). Appellant contends that a rational

jury could not have found beyond a reasonable doubt that he exercised care, custody, control, or

management over the cocaine found in the master bedroom of the residence because the State’s

circumstantial evidence failed to link him to the contraband. Appellant’s sufficiency complaint

pertains only to the element concerning whether he possessed the controlled substance, and we limit

our appellate review to that issue. Our legal sufficiency review turns on whether enough evidence

existed for any rational fact finder to find beyond a reasonable doubt that appellant had knowledge

of the presence of the contraband.

               When reviewing the factual sufficiency of the evidence to support a conviction, we

view all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414

(Tex. Crim. App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then

ask whether the evidence supporting the conviction, although legally sufficient, is nevertheless so

weak that the fact finder’s determination is clearly wrong and manifestly unjust or whether

conflicting evidence so greatly outweighs the evidence supporting the conviction that the fact

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finder’s determination is manifestly unjust. Watson, 204 S.W.3d at 414, 417; Johnson v. State, 23

S.W.3d 1, 12 (Tex. Crim. App. 2000). To reverse on grounds of factual sufficiency, we must

determine, with some objective basis in the record, that the great weight and preponderance of all

the evidence, though legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.

               In determining whether the evidence is factually insufficient to support a conviction

that is nevertheless supported by legally sufficient evidence, it is not enough that this Court “harbor

a subjective level of reasonable doubt to overturn [the] conviction.” Id. We cannot conclude that

a conviction is clearly wrong or manifestly unjust simply because we would have decided differently

than the fact finder or because we disagree with the fact finder’s resolution of a conflict in the

evidence. Id. We may not simply substitute our judgment for the fact finder’s. Johnson, 23 S.W.3d

at 13; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record clearly reveals

that a different result is appropriate, we must defer to the fact finder’s determination of the weight

to be given contradictory testimonial evidence because resolution of the conflict “often turns on an

evaluation of credibility and demeanor, and [the fact finder was] in attendance when the testimony

was delivered.” Johnson, 23 S.W.3d at 18. Thus, we must give due deference to the fact finder’s

determinations, “particularly those determinations concerning the weight and credibility of the

evidence.” Id. at 20.


The Existence of Links

               For the State to obtain a conviction for possession with intent to deliver, it was

required to prove that appellant (i) exercised care, custody, control, or management over the

controlled substance; (ii) intended to deliver the controlled substance to another; and (iii) knew that

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the substance in his possession was a controlled substance. See Tex. Health & Safety Code Ann.

§§ 481.002(38), .112(a); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); King

v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995); Roberson v. State, 80 S.W.3d 730, 734-35

(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). When the accused is not in exclusive possession

of the place where the substance is found, his knowledge of and control over the contraband cannot

be established unless there are additional independent facts and circumstances which link him to the

contraband. Poindexter, 153 S.W.3d at 406; see also Evans, 202 S.W.3d at 161-62. Whether the

State’s evidence linking a defendant to the contraband in question is direct or circumstantial, it must

establish, “to the requisite level of confidence, that the accused’s connection with the drug was more

than just fortuitous.” Poindexter, 153 S.W.3d at 405-06 (citing Brown v. State, 911 S.W.2d 744, 747

(Tex. Crim. App. 1995)). The force of these links need not be such as to exclude every other

alternative hypothesis except the defendant’s guilt. Brown, 911 S.W.2d at 748.

               Investigator Mancias testified that beginning in August 2005, he observed appellant

on several occasions exit the residence at 5107 Savorey Lane during early morning hours. Also on

these occasions, he observed a red pickup truck parked in front of the house and saw appellant depart

the residence in the truck. The red pickup truck was registered in appellant’s name. After appellant

was observed at the residence on the morning of the search, he left the residence in the red pickup.

A few minutes later, the officers observed a white van back into the driveway of the residence. The

occupants, who waited outside in the van, were later identified as Johnny Guana and Tanya de la

Santos. The white van had been observed in an earlier surveillance at the residence and was included

in the search warrant. Neither Guana nor de la Santos entered the residence before they were



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detained by the officers for the duration of the search of the residence. They appeared sleepy,

incoherent, and under the influence of some substance, “possibly a depressant-type narcotic.” In a

search of the van, the officers found a handgun and a machete. De la Santos was in possession of

a crack pipe. Guana appeared to be living in the van. Neither Guana nor de la Santos were arrested.

               Appellant was detained inside the house during the execution of the search. He

alerted Mancias that he was diabetic and needed insulin, which he kept in the refrigerator.

Prescription medicine in appellant’s name was found in the master bedroom. The officers also found

a box of insulin syringes in the closet of the master bedroom. Cocaine, marijuana, and scales were

also found in the master bedroom. A glass pipe was found on the top of the dresser.

               In the same dresser drawer as the cocaine, Mancias found several documents linking

appellant to the Savorey Lane residence. The documents included personal correspondence

addressed to appellant at the Savorey Lane residence and a photograph of appellant with a female.

Another letter dated 2003 was addressed to appellant at a different address, 506 Tillery Street. Other

papers in appellant’s name found in the drawer with the drugs included a surety bond receipt naming

the appellant and his attorney, a receipt for repair from an electronics store, and a receipt for the

purchase of tires.

               Mancias testified about the items demonstrating appellant’s distribution business,

including a box containing lists of telephone numbers, the packaging of the individually wrapped

bags of measured cocaine, scales, and cameras and monitoring equipment found in the house and

yard. Mancias testified that surveillance equipment and monitors are commonly used by drug

dealers to alert occupants to law enforcement and for protection against “drug rip-offs by other



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persons.” Mancias observed that there were three large dogs in the yard of the residence and that two

appeared to be aggressive.

               As the search was being conducted inside the house, appellant was taken outside. At

one point, a car drove up to the residence, and a man exited the vehicle and approached appellant.

They made eye contact and began to speak. When appellant raised his handcuffed arms to make the

cuffs visible, the “individual abruptly ended the conversation, got back in his car and left.”

               The residence at 5107 Savorey Lane had three bedrooms, including a master

bedroom. The leasing agent for the Savorey Lane house testified that Mary Rodriguez leased the

house beginning in 1994. She had also signed the recent lease covering the period from August 2004

through July 2005. The utilities were listed in the name of Mary Elias, who the agent identified as

the same person as Mary Rodriguez. On Mary Rodriguez’s application to rent the house, she stated

that her six children would live at the residence. The agent had seen appellant at the residence but

did not know if he lived there.

               Mary Elias testified on appellant’s behalf that she had been married to the appellant

for twelve years and that he would stay with her “off and on,” but that he had girlfriends. He kept

his medications and some clothes at the house and Elias would wash his clothes “and put them up.”

When he stayed at the house, he would stay in the master bedroom with her. But she testified,

appellant did not live at the house. Elias was not aware of any drugs and did not know where they

came from. Elias testified that Guana and de la Santos had spent some time in her bedroom on a date

she could not recall.




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               Appellant’s sister testified that Mary Elias and appellant were married but that he

lived at her house on Tillery Street and that he received mail at that address. She acknowledged that

appellant sometimes spent time and sometimes spent the night at the Savorey Lane house.

               Johnny Guana testified that he was on probation for possession of cocaine in Caldwell

County. Although the white van belonged to him, it was not in his name. He would drive the van

to 5107 Savorey Lane, because “[he] was handyman for the people who lived there.” He testified

that he worked for appellant’s company. Guana also testified that he would sometimes stay at the

house, but that he spent the night in his van. He acknowledged that he had been in the house with

de la Santos, but denied that they had been in the master bedroom. He knew appellant to live at the

residence and that is where Guana reported for work and received his job assignments from

appellant. Guana had never met with appellant at the Tillery address. Guana acknowledged that he

and de la Santos had been under the influence of drugs on the day of the search.

               The State introduced other evidence linking appellant to the Savorey Lane house over

a ten-year period of time. A detective with the Austin Police Department testified that he

encountered appellant at the Savorey Lane residence in the course of his duties on October 31, 1995.

Appellant was in the house with another male individual who did not reside at the house. On another

occasion, on the morning of December 17, 2005, a police officer was dispatched to 5107 Savorey

Lane in response to a call that appellant’s red pickup truck, which was parked in front of the house,

had been damaged by two men. In response to the officer’s questions for the offense report,

appellant reported his address as 5107 Savorey Lane. He told the officers the men had been driving




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by his home for at least a month, including on one occasion when appellant was stringing Christmas

lights on his house.

               We conclude that the logical force from the totality of the links, including the

proximity of documents and medicine belonging to the appellant to the contraband and the other

drug paraphernalia in the master bedroom, is sufficient for a rational fact finder to link appellant to

the contraband in the bedroom. A rational fact finder could have found the element of possession

beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19; Swearingen v. State, 101 S.W.3d 89,

95 (Tex. Crim. App. 2003).

               As to factual sufficiency, the fact finder reasonably could have found that the

packaged cocaine located near items belonging to appellant in the master bedroom along with the

scales and surveillance equipment in the same room link him to the contraband. Appellant’s

contention that other people were in the home and had access to the premises does not necessarily

lead to the conclusion that appellant did not exercise care, custody, control, or management over the

cocaine found in the bedroom of the residence. At most, this evidence suggests that appellant may

not have had exclusive control or possession of the contraband. See Cedano v. State, 24 S.W.3d 406,

412 (Tex. App.—Houston [1st Dist.] 2000, no pet.). Possession of a controlled substance, however,

need not be exclusive to constitute a violation of the law. Martin v. State, 753 S.W.2d 384, 387

(Tex. Crim. App. 1988).

               The record in this case contains ample evidence to link appellant to the residence and

the contraband found in the residence. The court observed that even a defense witness referred to

the Savorey Lane address as appellant’s “place” on one occasion. The relative probative value of



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all the above evidence, including the credibility of the witnesses, was assessed by the trial judge in

reaching his verdict. When the trial judge found appellant guilty, he expressed his view that the

evidence was probative and sufficient to support his finding. The trial judge recounted the evidence

upon which he relied, including:


        the cameras and the way the cameras were placed, the way they were connected, the
        monitors or monitor of the cameras, the items found in the master bedroom and the
        dresser drawer, including personal papers, drugs, scales in the closet, together with
        the insulin box, the many contacts people had with the defendant at that address over
        the years, including surveillance as recent as that morning, [and] all the other
        contacts.


                We cannot reweigh the evidence. See Watson, 204 S.W.3d at 417. We conclude that

a rational fact finder could have found beyond a reasonable doubt that the evidence linked appellant

to the contraband. We also conclude that the verdict is not so against the great weight and

preponderance of the evidence as to be manifestly unjust, and proof of guilt is not so weak as to

undermine confidence in the fact finder’s determination. We therefore hold that the evidence was

legally and factually sufficient.


                                         CONCLUSION

                We overrule appellant’s issues and affirm the judgment of conviction.




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                                          __________________________________________

                                          Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: May 8, 2007

Do Not Publish




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