                                    NO. 07-06-0326-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL D

                                  AUGUST 25, 2008
                          ______________________________

                          JOHNNY E. MARTINEZ, APPELLANT

                                              v.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

             FROM THE 364th DISTRICT COURT OF LUBBOCK COUNTY;

           NO. 2005-409683; HON. BRADLEY S. UNDERWOOD, PRESIDING
                       _______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Appellant Johnny E. Martinez appeals his jury conviction of the offense of

possession of methamphetamine in an amount of less than one gram,1 and his resulting

sentence of twenty years imprisonment in the Institutional Division of the Texas

Department of Criminal Justice. Via two issues, appellant challenges the sufficiency of the

evidence to support his conviction and asserts the trial court erred by failing to properly



       1
         See Tex. Health & Safety Code Ann. § 481.115(b) (Vernon 2003). This offense
is a state jail felony. However, appellant’s two prior felony convictions raise it to a second
degree felony. Tex. Penal Code Ann. § 12.42(a)(2) (Vernon 2007).
instruct the jury. Finding the evidence sufficient and no error in the court’s jury instructions,

we affirm.


                                         Background


       The State’s case was presented through the testimony of the assistant manager of

a Lubbock motel, a Lubbock police officer and the State’s chemist. Appellant presented

his case through cross-examination of the State’s witnesses.2


       The assistant manager testified that on the day of appellant’s arrest he went to one

of the motel’s rooms because its occupants had not checked out at the normal noon check-

out time. On his inquiry, the occupants, a male and a female, told him they were going to

pay for another night. When no payment had been made by 2:00 p.m., police were called.


       The police officer testified he responded to the call, went to the room and spoke with

the male occupant, later identified as appellant. Appellant first gave the officer a false

name but on further questioning provided accurate identification. The officer arrested

appellant for his failure to identify himself.3 While he was being escorted to the patrol car,

appellant asked the officer to get his $21 from the bed in the motel room. The officer found

the money underneath a pillow on one of the room’s beds. He also found, lying next to the

money, a plastic bag containing a substance appearing to be methamphetamine. The




       2
        Appellant did not testify during the guilt-innocence phase at trial but did testify
during punishment.
       3
           See Tex. Penal Code Ann. § 38.02 (Vernon 2003).

                                               2
State’s chemist confirmed the substance contained methamphetamine and had a net

weight of 0.05 grams.


       The officer’s later search of the room produced a straw and two glass pipes, as well

as men’s clothing, hygiene products, and a game system. He did not locate any items that

appeared to belong to a female. At appellant’s request, the officer gave all of appellant’s

personal belongings, with the exception of the narcotics, to another individual. Appellant

was then arrested for possession of a controlled substance in addition to his failure to

identify offense.


       The defense cross-examined each of the State’s witnesses, highlighting the facts

that appellant was not in the room when the methamphetamine was found by the police

officer, the drugs were not found in plain view, and, when found, the drugs were not

accessible to him. Appellant elicited testimony indicating the hygiene products found in the

motel room were consistent with products used by both males and females. The defense

also emphasized the fact that the woman in the room with appellant was also charged with

possession of a controlled substance.


       At the close of the evidence, the jury found appellant guilty as alleged in the

indictment. After preparation of a pre-sentencing report, the court considered punishment

evidence and assessed punishment at twenty years imprisonment in the Institutional

Division of the Texas Department of Criminal Justice. This appeal followed.




                                             3
                                          Analysis


Legal and Factual Sufficiency


       In his first issue, appellant argues that the evidence was legally and factually

insufficient to prove that he actually possessed the methamphetamine for which he was

charged. In reviewing issues of legal sufficiency, an appellate court views the evidence in

the light most favorable to the verdict to determine whether, based on that evidence and

reasonable inference therefrom, a rational jury could have found each element of the

offense beyond a reasonable doubt.           Swearingen v. State, 101 S.W.3d 89, 95

(Tex.Crim.App. 2003); Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001), citing

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). If, given all

of the evidence, a rational jury would necessarily entertain a reasonable doubt of the

defendant’s guilt, due process requires that we reverse and order a judgment of acquittal.

Swearingen, 101 S.W.3d at 95, citing Narvaiz v. State, 840 S.W.2d 415, 423

(Tex.Crim.App. 1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993).

Circumstantial evidence is as probative as direct evidence in establishing guilt, and

circumstantial evidence alone can be sufficient to do so. Hooper v. State, 214 S.W.3d 9

(Tex.Crim.App. 2007), citing Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004).


       A factual sufficiency review of the evidence is “barely distinguishable” from the legal

sufficiency review under Jackson v. Virginia. Marshall v. State, 210 S.W.3d 618, 625

(Tex.Crim.App. 2006). A factual sufficiency review considers whether the evidence

supporting guilt, though legally sufficient, is so weak that the jury’s verdict seems clearly


                                              4
wrong and manifestly unjust, or evidence contrary to the verdict is such that the jury’s

verdict is against the great weight and preponderance of the evidence. Id.; Watson v.

State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006); Johnson v. State, 23 S.W.3d 1, 11

(Tex.Crim.App. 2000). In a factual sufficiency review, we again consider all the evidence,

but now in a neutral light. Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 414.

Although an appellate court’s authority to review factual sufficiency permits the court to

disagree with the fact finder’s determinations, even to a limited degree those concerning

the weight and credibility of the evidence, the appellate court must accord them due

deference. Marshall, 210 S.W.3d at 625; Johnson, 23 S.W.3d at 9. When there is a

conflict in the evidence, to find it factually insufficient we must first be able to say, with

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

evidence contradicts the jury’s verdict. Watson, 204 S.W.3d at 417.


                                         Application


       The State was required to prove beyond reasonable doubt that appellant

intentionally or knowingly possessed methamphetamine in an amount less than one gram.

Tex. Health & Safety Code Ann. § 481.115(b) (Vernon 2003).


       To establish possession, the State must prove two elements: (1) that the accused

exercised care, control, or management over the contraband, and (2) that the accused

knew the matter possessed was contraband.4 Poindexter v. State, 153 S.W.3d 402, 405



       4
         Appellant does not challenge the second element. Accordingly, we will not
address it here.

                                              5
(Tex.Crim.App. 2005). Possession may be established through circumstantial evidence

and while mere presence is insufficient to support a conviction, it is an applicable

circumstance. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App. 1985). The

State is not required to prove that the accused had exclusive possession of the

contraband. Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App. 1981). When more

than one person exercises control over the place where the substance is found, however,

some independent link must exist between the accused and the contraband to permit the

inference he had knowledge of and control over it. Evans v. State, 202 S.W.3d 158, 161-

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


        A “link” generates a reasonable inference that the defendant knew of the

contraband's existence and exercised control over it. Brown v. State, 911 S.W.2d 744, 747

(Tex.Crim.App. 1995). The State's evidence need not exclude every reasonable hypothesis

other than the defendant's guilt, but it must show facts and circumstances that, when

viewed in the totality of the circumstances, indicate the defendant's knowledge of and

control over the drugs and demonstrate that the defendant's connection with the drugs was

more than fortuitous. Id.


      Among the potential links between a defendant and contraband are: (1) the

defendant's presence when the search was conducted; (2) whether the contraband was

in plain view; (3) the defendant's proximity to and the accessibility of the narcotic; (4)

whether the defendant was under the influence of narcotics when arrested; (5) whether the

defendant possessed other contraband or narcotics when arrested; (6) whether the



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

attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was

an odor of the contraband; (10) whether other contraband or drug paraphernalia were

present; (11) whether the defendant owned or had the right to possess the place where the

drugs were found; (12) whether the place where the drugs were found was enclosed; (13)

whether the defendant was found with a large amount of cash; and (14) whether the

conduct of the accused indicated a consciousness of guilt. Evans, 202 S.W.3d at 162

n.12, citing Olivarez v. State, 171 S.W.3d 283, 291 (Tex.App.–Houston [14th Dist.] 2005,

no pet.). The number of factors present is not as important as the logical force the factors

have in establishing the elements of the offense. Evans, 202 S.W.3d at 166; Gilbert v.

State, 874 S.W.2d 290, 298 (Tex.App.–Houston [1st Dist.] 1994, pet. ref’d).


       Here, appellant emphasizes evidence that he contends shows he was not in control

of the room or the contraband. Evidence showed that the motel room was rented by a

female and that a female occupant was found in the room with appellant. Evidence

showed also that the female admitted to smoking drugs using one of the glass pipes earlier

in the day and an officer testified some of the items in the room could have belonged to a

female.


       The jury also could have credited evidence, however, showing appellant’s control

over the motel room. Both occupants were in the room when the assistant manager

contacted them and when police arrived. Appellant, not the female occupant, talked with

the assistant manager about the room. Male, not female, clothing was in the room.

Appellant, not the female, claimed ownership of the personal effects in the room. It was

                                             7
appellant, not the female occupant, who told the officer he had not been able to get money

from friends to pay for the room. Nonetheless, we agree with appellant that the evidence

of shared control over the motel room requires the presence of additional independent

facts and circumstances linking him to the methamphetamine found in the room.

Poindexter, 153 S.W.3d at 406.


       The jury could reasonably have found such facts and circumstances, beginning with

the location of the bag of methamphetamine next to appellant’s $21. Appellant’s argument

on appeal suggests that the female occupant placed the drugs next to his money while he

was out of the room, but he can point to no direct evidence to support that theory, and the

circumstantial evidence gives rise to an equally reasonable inference that both the money

and the drugs belonged to appellant. See Hooper, 214 S.W.3d at 16 (an inference is a

conclusion reached by considering other facts and deducing a logical consequence from

them); Brown, 911 S.W.2d at 747. Especially when combined with appellant’s apparent

ownership of the clothing and personal effects in the room, the location of the

methamphetamine with his money provides evidence his connection with the drugs was

not merely fortuitous.


       The female occupant’s admission she smoked methamphetamine does not diminish

the strength of the inference of appellant’s knowing control of the drugs. Recall two pipes

with residue were found in the room. If anything, the evidence of methamphetamine

smoking in the room makes it less likely appellant was unaware of the drug’s presence.




                                            8
        Viewing the evidence in the light most favorable to the verdict, we find a rational trier

of fact could have found, beyond a reasonable doubt, that appellant knowingly exercised

care, control or management over the methamphetamine. Thus, we find the evidence

legally sufficient to support the jury’s conviction of appellant.


       We find the evidence factually sufficient as well. Considering the entire record, we

conclude the proof of appellant's guilt is neither so obviously weak as to undermine

confidence in the jury's determination, nor such that it is greatly outweighed by contrary

proof. We overrule appellant’s first issue.


       Court’s Charge to Jury


       In his second issue, appellant contends that the trial court erred in failing to properly

instruct the jury of the State’s requirement to affirmatively link appellant to the

methamphetamine. As both parties acknowledge, the trial court must give the jury “a written

charge distinctly setting forth the law applicable to the case; not expressing any opinion as

to the weight of the evidence, not summing up the testimony, discussing the facts or using

any argument in his charge calculated to arouse the sympathy or excite the passions of the

jury.” Tex. Code. Crim. Proc. Ann. art. 36.14 (Vernon 2007).


       In his argument in support of this issue, appellant notes the jury charge did not

include instructions regarding affirmative links or the fact that mere presence at the crime

scene was insufficient to prove possession. Appellant’s argument calls for the type of

instruction courts have found improper. See Deener v. State, 214 S.W.3d 522, 529-30

(Tex.App.– Dallas 2006, pet. ref’d) (holding instructing jury on affirmative links rule improper

                                                9
because rule is only a shorthand expression for evaluating sufficiency of the evidence);

Davila v. State, 749 S.W.2d 611, 614 (Tex.App.–Corpus Christi 1988, pet. ref’d) (declining

to hold instruction requiring evidence to “affirmatively link” appellant to heroin was

necessary).5 The trial court did not err by failing to include such an instruction here. We

overrule appellant’s second issue.


      Finding no error, we affirm the judgment of the trial court.




                                                 James T. Campbell
                                                      Justice


Do not publish.




       5
        See also Parker v. State, 713 S.W.2d 386, 389-90 (Tex.App.–Corpus Christi 1986,
no pet.) (finding no error in refusal of instruction on “mere presence”).

                                            10
