Opinion issued March 15, 2018




                                        In The

                                Court of Appeals
                                       For The

                           First District of Texas
                              ————————————
                                NO. 01-17-00218-CR
                             ———————————
              LISANDRO BELTRAN DE LA TORRE, Appellant
                                          V.
                        THE STATE OF TEXAS, Appellee


                     On Appeal from the 25th District Court
                            Colorado County, Texas
                        Trial Court Case No. CR-16-082


                                    OPINION

      A jury convicted Lisandro Beltran de la Torre of possession of a controlled

substance, cocaine, in an amount of less than one gram. The trial court sentenced

him to two years’ confinement in the state jail, probated for three years. Beltran de

la Torre appeals, contending that (1) the evidence is legally insufficient to prove that
he possessed the cocaine discovered in plain view on the center console of his car;

(2) the trial court erred in refusing to instruct the jury that “mere presence” is

insufficient to demonstrate possession; and (3) the trial court erred in instructing the

jury that more than one person can be found to have possessed a controlled substance

at the same time. We conclude that legally sufficient evidence supports the verdict,

and the trial court did not err in instructing the jury. Accordingly, we affirm.

                                  BACKGROUND

      One mid-morning in February 2016, Columbus Police Department Officer A.

Axel was dispatched to the local office of the Texas Department of Public Safety

parking lot in Columbus, Texas. He was there to investigate a report that people

were drinking alcoholic beverages in the parking lot.          Sergeant J. Lara also

responded to the dispatch. Lara and Axel arrived about the same time. Lara

identified a black BMW sedan as the subject of the report. Lara approached the

sedan and spoke with its occupants.

      Beltran de la Torre was sitting behind the wheel of the sedan. Two woman

also sat in the sedan, one in the front passenger seat and another in the backseat

behind her. Lara ran the license plate and determined that the car was registered to

Beltran de la Torre. Looking inside the car, Lara noticed a small plastic bag on top

of the car’s center console. The bag contained a powdery substance that he believed

was cocaine or methamphetamine.


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      Lara ordered Beltran de la Torre to exit the car, and then asked Axel to walk

Beltran de la Torre to the rear of the car and detain him. Axel handcuffed Beltran

de la Torre and returned to assist Lara. On his return, Axel also observed the bag on

the console, as well as some beer cans in the back seat.

      Beltran de la Torre smelled of alcohol. His eyes were “bloodshot red” with

“extremely dilated” pupils. Based on his training and experience, Lara explained

that jittery behavior, constant movement, talkativeness, red eyes, and dilated pupils

can be signs of narcotics use. Lara concluded that Beltran de la Torre was under the

influence of something, either narcotics, or alcohol, or both. Lara conceded that he

is not certified as a drug recognition expert and that he could not say with certainty

whether Beltran de la Torre had used a narcotic. Lara also agreed that Beltran de la

Torre was calm, and red eyes alone do not indicate anything in particular. He

testified, however, that dilated pupils are not an indication of alcohol intoxication.

      Axel also testified that Beltran de la Torre’s pupils were “severely dilated.”

Beltran de la Torre’s eyes were glossy and he looked like he “hadn’t slept in a long

while, for at least a day or so.” His eyes “were kind of sunk in, like, when a person

hasn’t been able to sleep.” Axel testified that he had training and experience

recognizing when people are under the influence of drugs or narcotics. He said that

people under their influence exhibit a wide array of behaviors. They may be fidgety,

or overly talkative, assertive, aggressive, or drowsy, depending on the substance.


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With narcotics, Axel stated that a person’s pupils may be enlarged and somewhat

glossy. Axel opined that Beltran de la Torre’s dilated pupils were an indication that

he may have ingested cocaine, but enlarged pupils are not always due to cocaine use.

He agreed that Beltran de la Torre was “laid back,” “calm,” and did not exhibit the

fidgety, overly talkative, or aggressive behaviors that one would associate with a

stimulant like cocaine. Axel conceded that he was not a drug recognition expert.

         Lara and Axel’s field-test of the powdery substance yielded a positive result

for cocaine. The powder was later analyzed in a laboratory and found to contain less

than a gram of cocaine.

         Lara and Axel testified about an unidentified man in the vicinity of the sedan.

The man denied being associated with Beltran de la Torre and the two women.

Neither Lara nor Axel detained the man. Axel’s body camera footage showed that

Axel initially asked the man to sit down nearby, but the man subsequently left the

scene.

         Axel testified that the female passenger in the front seat also had dilated pupils

and “puffy,” “sunken in” eyes. The rear passenger likewise had dilated pupils and

was “very fidgety.”

         Beltran de la Torre testified in his own defense. He denied that the bag of

cocaine was his. He did not know that any cocaine was present in the car. He also

denied drinking beer in the parking lot. He conceded that the car was registered in


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his name, but he countered that there were four people in his car that day, including

the man who had walked away. But on the day he was arrested, Beltran de la Torre

did not mention to Lara or Axel that the other man was one of the car’s occupants.

                                   DISCUSSION

I.    Legal Sufficiency

      Beltran de la Torre contends that the evidence is insufficient to find him guilty

of possession of a controlled substance given that there were multiple occupants in

the car. The cocaine was not found on his person, he argues, and thus the jury’s

finding is impermissibly speculative because the evidence fails to link him to the

cocaine.

      A.     Standard of review and applicable law

      In a review for legal sufficiency, we view all of the evidence in the light most

favorable to the verdict and determine whether a rational factfinder could have found

the essential elements of the crime beyond a reasonable doubt. Gear v. State, 340

S.W.3d 743, 746 (Tex. Crim. App. 2011) (relying on Jackson v. Virginia, 443 U.S.

307, 318–19, 99 S. Ct. 2781, 2788–89 (1979)). We must not re-evaluate the weight

or credibility of the testimony; rather, we defer to the jury’s resolution of conflicts

in the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

      To obtain a conviction for unlawful possession of cocaine, the State must

prove beyond a reasonable doubt that the defendant (1) exercised actual care,


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custody, control, or management over the cocaine, and (2) knew it was cocaine. TEX.

HEALTH & SAFETY CODE §§ 481.102(3)(D), 481.115(a); Poindexter v. State, 153

S.W.3d 402, 405 (Tex. Crim. App. 2005), abrogated on other grounds by Robinson

v. State, 466 S.W.3d 166, 173 n.32 (Tex. Crim. App. 2015). Possession of the drug

need not be exclusive—evidence that shows the defendant jointly possessed the drug

with another can suffice. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim.

App. 1985); Woodard v. State, 355 S.W.3d 102, 110 (Tex. App.—Houston [1st

Dist.] 2011, no pet.).

      Whether direct or circumstantial, the evidence must establish that the

defendant’s connection with the drug was more than just fortuitous. Poindexter, 153

S.W.3d at 405–06; Wiley v. State, 388 S.W.3d 807, 813 (Tex. App.—Houston [1st

Dist.] 2013, pet. ref’d). This is the “affirmative links” rule. Poindexter, 153 S.W.3d

at 406 (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)). This

rule is designed to protect an innocent bystander from conviction based solely upon

his mere presence in the vicinity of someone else’s drugs. Id. It recognizes that a

defendant who is not in exclusive possession of the place where the controlled

substance was found may not have knowledge of and control over the drugs; in such

cases, additional independent facts and circumstances beyond mere presence must

link him to the drugs. Tate v. State, 500 S.W.3d 410, 413–14 (Tex. Crim. App. 2016)




                                          6
(citing Poindexter, 153 S.W.3d at 406, and Deshong v. State, 625 S.W.2d 327, 329

(Tex. Crim. App. 1981)).

      The Texas Court of Criminal Appeals has instructed that evidence of one or

more of following links may provide the logical force that demonstrates possession

and not mere presence:

      (1) the defendant’s presence when a search is conducted;
      (2) whether the drugs were in plain view;
      (3) the defendant’s proximity to and the accessibility of the drugs;
      (4) whether the defendant was under the influence of drugs when arrested;
      (5) whether the defendant possessed other drugs or contraband when
          arrested;
      (6) whether the 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 drugs;
      (10) whether drug paraphernalia or other contraband 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 defendant’s conduct indicated a consciousness of guilt.

Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006); Burrell v. State,

445 S.W.3d 761, 765 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). The State

need not prove all of these links. See James v. State, 264 S.W.3d 215, 219 (Tex.


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App.—Houston [1st Dist.] 2008, pet. ref’d). Further, the absence of some links is

not evidence of innocence that weighs against those links that are present. Id. (citing

Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App. 1976)). It is not the

number of links that is dispositive, but the cumulative weight of the evidence. Evans,

202 S.W.3d at 162; James, 264 S.W.3d at 219. Though this framework guides an

appellate court in analyzing the evidence, the dispositive inquiry remains the one set

forth in Jackson—whether the combined and cumulative force of the evidence and

any permissible inferences permit a jury to rationally find the defendant guilty of the

offense beyond a reasonable doubt. Tate, 500 S.W.3d at 414.

      B.     Analysis

      Several circumstances link Beltran de la Torre to the cocaine. He was present

when officers searched the car. The car was registered in his name. As its owner

and driver, he exercised ultimate control over the car and its contents. See Deshong,

625 S.W.2d at 329 (defendant was driver and evidence strongly suggested defendant

owned car); Powell v. State, 112 S.W.3d 642, 645–46 (Tex. App.—Houston [1st

Dist.] 2003, pet. ref’d) (defendant was driver).

      The cocaine sat in plain view in the enclosed space of the car on its center

console. See Deshong, 625 S.W.2d at 328–29 (car was an enclosed space and

marijuana was in plain view once officer opened car door); Robinson v. State, 174

S.W.3d 320, 327 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (truck was


                                          8
enclosed space). The center console was conveniently accessible to Beltran de la

Torre from his location in the driver’s seat. See Deshong, 625 S.W.2d at 329

(marijuana found on driver’s side floorboard conveniently accessible to driver); Lair

v. State, 265 S.W.3d 580, 586 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d)

(ecstasy/MDMA in center console was conveniently accessible to driver).

      Both Sergeant Lara and Officer Axel testified that Beltran de la Torre

exhibited signs of narcotic use, namely, dilated pupils. See Edwards v. State, 178

S.W.3d 139, 144 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (bloodshot eyes

and slurred speech indicated intoxication, which was affirmative link to

phencyclidine found in truck). Together, the combined and cumulative force of this

evidence would allow rational jurors to conclude beyond a reasonable doubt that

Beltran de la Torre intentionally and knowingly possessed the cocaine. See Tate,

500 S.W.3d at 416–18.

      Beltran de la Torre argues that he was not driving under the influence of drugs

and thus drug intoxication should not be credited as a link. He reasons that he

exhibited no signs of drug ingestion other than dilated pupils and that dilated pupils

alone are not enough. Signs of cocaine use, however, when combined with the

presence of the drug in the car and Beltran de la Torre’s proximity to it, can

demonstrate sufficient logical force to allow a rational jury to find knowing




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possession of the cocaine. See Ouellette v. State, 353 S.W.3d 868, 870 (Tex. Crim.

App. 2011).

      Beltran de la Torre contends that the presence of other passengers in the car

vitiates the legal sufficiency of the evidence. Because the cocaine was within arm’s

reach of the other occupants, he argues, none of the affirmative links in this case

suffice to show that the cocaine belonged to him or jointly belonged to him and one

or more of the other occupants. The Court of Criminal Appeals has rejected Beltran

de la Torre’s position. In Tate, the Court upheld a driver’s conviction for possession

of methamphetamine, found in plain view in his car, despite the presence of two

other occupants. 500 S.W.3d at 411–13. It was undisputed in that case that the drugs

were within reach of the driver and the front-seat passenger, and there was

conflicting testimony as to whether they were accessible to the passenger in the back

seat. Id. at 412, 414. The court of appeals reversed the driver’s conviction, holding

that his proximity to the drugs alone was not sufficient evidence of possession, given

the proximity of the other occupants. Id. at 414.

      The Court of Criminal Appeals reversed, explaining that, in reviewing the

evidence for legal sufficiency, “the logical force of all of the admitted evidence must

be considered in the light most favorable to the conviction, meaning that all

reasonable inferences from the evidence must be resolved in favor of the jury’s guilty

verdict.” Id. at 417. The defendant owned and was driving the car in which the


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drugs were found, the drugs and a syringe were in plain view, and they were

conveniently accessible to the defendant. Id. The Court held that, considered

together, the affirmative links and the logical inferences one could draw from them

permitted the jury to find the defendant guilty of possession, notwithstanding the

defendant’s denial that the drugs were his. Id. at 417–18.

      The evidence established a number of affirmative links to the cocaine, from

which a rational jury could conclude that Beltran de la Torre knowingly possessed

it. We therefore hold that legally sufficient evidence supported the jury’s finding of

knowing possession.

II.   Jury Charge Issues

      Beltran de la Torre raises two challenges to the trial court’s jury instructions.

First, he contends that the trial court erred in refusing to instruct the jury that his

“mere presence” at the scene was insufficient to find him guilty of knowing

possession. Second, he contends that the trial court erred in instructing the jury about

joint possession. The trial court instructed: “Two or more people can possess the

same controlled substance at the same time.” He argues that this reference to joint

possession was an improper comment on the weight of the evidence.

      A.     Standard of review and applicable law

      A trial court must give the jury a written charge that sets forth the law

applicable to the case. TEX. CODE CRIM. PROC. art. 36.14. The charge must include


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statutory defenses, affirmative defenses, and justifications raised by the evidence.

Walters v. State, 247 S.W.3d 204, 208–09 (Tex. Crim. App. 2007). A trial court

should not instruct the jury, however, on defensive theories that are not expressly

included as statutory defenses in the Penal Code but instead negate an element of the

offense. Id. at 209.

      In reviewing jury-charge issues, our threshold inquiry is whether error exists.

See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Tottenham v. State,

285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).

      B.     Because it is not a statutory defense to possession, the trial court
             was not required to submit a “mere presence” instruction.

      The trial court instructed the jury that, to find Beltran de la Torre guilty, it had

to find beyond a reasonable doubt that he intentionally and knowingly possessed

cocaine in an amount of less than a gram. His requested “mere presence” instruction

is not a statutory defense included in the Penal Code. Rather, this defensive theory

negated elements of the charged offense—intentional and knowing possession of the

drugs. Because “mere presence” negates the element of control and is not expressly

a statutory defense, we hold that the trial court did not err in refusing to give it. See

Walters, 247 S.W.3d at 208–09; Lara v. State, 400 S.W.3d 199, 200 (Tex. App.—

Beaumont 2013, no pet.).




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      C.     The trial court acted within its discretion in instructing the jury
             about joint possession.

      The applicable statute defines “possession” as “actual care, custody, control,

or management.” TEX. HEALTH & SAFETY CODE § 481.002(38). Because the statute

does not include language about joint possession, Beltran de la Torre contends that

the trial court improperly commented on the weight of the evidence by adding that

“[t]wo or more people can possess the same controlled substance at the same time.”

      Statutory definitions that affect the meaning of the elements of an offense are

“law applicable to the case” and must be included in the charge. Arteaga v. State,

521 S.W.3d 329, 334 (Tex. Crim. App. 2017). But a trial court must also tailor a

jury charge to the facts presented at trial. Burnett v. State, __ S.W.3d __, 2017 WL

4158919, at *5 (Tex. Crim. App. Sept. 20, 2017).

      The statutory definition of “possession”—“actual care, custody, control, or

management”—has particular legal significance. It is not an expression of ordinary

speech. See Christian v. State, 686 S.W.2d 930, 932 (Tex. Crim. App. 1985) (stating

that identical definition of “possession” in Penal Code is technical in meaning). The

statutory definition does not address “joint possession.” Both “possession” and

“joint possession,” however, have established legal meanings that differ from

everyday usage; thus, jurors should not be left to their own devices to decide whether

“possession” includes “joint possession” when the facts at trial raise the question.

See Celis v. State, 416 S.W.3d 419, 433 (Tex. Crim. App. 2013) (trial courts may
                                         13
define statutorily undefined words and phrases that have established legal definitions

or that have acquired technical meanings that differ from their meanings in common

parlance). Otherwise, jurors would be free to define “possession”—an essential

element of the offense—in a manner that is inconsistent with its legal meaning. See

Medford v. State, 13 S.W.3d 769, 771–72 (Tex. Crim. App. 2000) (proper to define

“arrest” for jury despite lack of statutory definition because it has acquired technical

meaning “and it would be inappropriate if jurors arbitrarily applied their personal

definitions of arrest”).

      For this reason, the Committee on Texas Criminal Pattern Jury Charges

recommends that when the evidence raises the possibility of joint possession, the

definition of “possession” should be supplemented to include the instruction that the

trial court included in this case. See Comm. on Pattern Jury Charges, State Bar of

Tex., Texas Criminal Pattern Jury Charges: Intoxication, Controlled Substances &

Public Order Offenses PJC 41.6 (2016).          As support for the instruction, the

Committee relies on Brooks v. State, 529 S.W.2d 535 (Tex. Crim. App. 1975). In

Brooks, the Court of Criminal Appeals noted that the trial court instructed the jury

on joint possession under facts similar to those present in this case, without

disapproving of the instruction.      Because the legal meaning of “possession”

conforms to the instruction that the trial court gave the jury and addresses an issue

raised by the evidence, the trial court’s instruction was not an improper comment on


                                          14
the weight of the evidence. Accordingly, we hold that the trial court did not err in

instructing the jury about joint possession.

                                    CONCLUSION

      We affirm the judgment of the trial court.




                                               Jane Bland
                                               Justice

Panel consists of Justices Bland, Lloyd, and Caughey.

Publish. TEX. R. APP. P. 47.2(b).




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