                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION

                                          No. 04-17-00307-CR

                                          Jerry RODRIGUEZ,
                                                Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                    From the 218th Judicial District Court, Atascosa County, Texas
                                  Trial Court No. 17-01-0032-CRA
                              Honorable Stella Saxon, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: July 18, 2018

AFFIRMED

           Jerry Rodriguez appeals his conviction for possession of a controlled substance of less than

one gram. His sole issue on appeal is that there is legally insufficient evidence that he possessed

the controlled substance. Viewing the evidence in a light most favorable to the jury’s verdict, we

hold the evidence is legally sufficient and therefore affirm the trial court’s judgment.

                                             BACKGROUND

           In November 2016, Department of Public Safety trooper Matthew Ruiz stopped a car that

had an inoperable brake light. The driver of the car identified himself as Jerry Rodriguez, and it
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appeared to Trooper Ruiz that Rodriguez was nervous. When Rodriguez told Trooper Ruiz he did

not have his identification, Trooper Ruiz asked Rodriguez to exit the car. After exiting the car,

Rodriguez spontaneously told Trooper Ruiz, “I don’t have nothing. I don’t do drugs.” Rodriguez

gave Trooper Ruiz consent to search the car, and Trooper Ruiz found a baggie of

methamphetamine in the car’s center console.

       Rodriguez was arrested and thereafter indicted for possession of a controlled substance.

The case proceeded to a jury trial at which Trooper Ruiz testified. A DPS forensic scientist testified

he tested the substance in the baggie and confirmed it was methamphetamine. The trial court

admitted into evidence video recordings from cameras inside Trooper Ruiz’s car. The jury found

Rodriguez guilty and assessed punishment at one year in state jail and a fine of $10,000. The trial

court imposed the sentence, and Rodriguez timely appealed.

                                            DISCUSSION

       Rodriguez’s sole issue on appeal is there is legally insufficient evidence that he possessed

the methamphetamine found in the car. In reviewing the legal sufficiency of the evidence, we ask

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); accord Laster v. State, 275

S.W.3d 512, 517 (Tex. Crim. App. 2009). We review the evidence “in the light most favorable to

the verdict.” Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). “Our role on appeal

is restricted to guarding against the rare occurrence when a factfinder does not act rationally,” and

we must “defer to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Isassi v.

State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (quotation marks and citations omitted).

       The sole element of the offense that Rodriguez challenges on appeal is “possession.” See

TEX. HEALTH & SAFETY CODE ANN. § 481.102 (West Supp. 2017), § 481.115 (West 2017)
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(providing an offense for “possession” of a Penalty Group 1 controlled substance, such as

methamphetamine). “‘Possession’ means actual care, custody, control, or management.” Id.

§ 481.002(38) (West 2017); see Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016).

“When the contraband is not in the exclusive possession of the defendant, a fact finder may

nonetheless infer that the defendant intentionally or knowingly possessed the contraband if there

are sufficient independent facts and circumstances justifying such an inference.” Tate, 500 S.W.3d

at 413. “A defendant’s mere presence is insufficient to establish possession.” Id.

       We consider a non-exclusive list of affirmative links indicating that a defendant

intentionally or knowingly possessed contraband: (1) the defendant’s presence when a search is

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 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 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 defendant indicated a consciousness of

guilt. Id. (citing Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006)). However, the

ultimate test is “that set forth in Jackson: Based on the combined and cumulative force of the

evidence and any reasonable inferences therefrom, was a jury rationally justified in finding guilt

beyond a reasonable doubt?” Id. (citing Jackson, 443 U.S. at 318-19).

       Trooper Ruiz testified the baggie of methamphetamine was found in the car’s center

console outside of plain view. He also testified the registration Rodriguez provided during the stop
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showed the car was registered to Jose P. Rodriguez, and he was unable to determine the

relationship between Rodriguez and the individual to whom the car was registered. However,

Trooper Ruiz testified Rodriguez was in exclusive possession of the car where the drugs were

found; Rodriguez was present when the search was conducted; and the baggie of

methamphetamine was found in the car’s center console to the right of the driver’s seat. See

Avelarmunoz v. State, No. 02-15-00297-CR, 2016 WL 1163210, at *4 (Tex. App.—Fort Worth

Mar. 24, 2016, no pet.) (mem. op., not designated for publication) (holding location of drugs in

car’s center console and driver’s sole possession of car implicated driver despite no evidence that

driver owned the car). Rodriguez argues the State did not prove all of the above-listed factors, but

it was not required to do so. See Tate, 500 S.W.3d at 413.

       There is some evidence showing the car where the methamphetamine was found did not

belong to Rodriguez, and courts have cautioned against relying solely on the defendant’s exclusive

control of a car when contraband is found in the car’s compartments. See Menchaca v. State, 901

S.W.2d 640, 652 (Tex. App.—El Paso 1995, pet. ref’d). In such cases, depending upon the

circumstances, additional evidence of consciousness of guilt may support a jury’s finding of

intentional or knowing possession depending on the circumstances; whereas, the evidence might

be legally insufficient without evidence of consciousness of guilt. Compare id. (affirming

conviction with evidence of consciousness of guilt), with McCraw v. State, 117 S.W.3d 47, 56

(Tex. App.—Fort Worth 2003, pet. ref’d) (reversing conviction under similar facts when there was

only vague subjective evidence of consciousness of guilt).

       Here, Trooper Ruiz testified Rodriguez appeared nervous and avoided eye contact when

handing him the car’s registration and when talking to him. Trooper Ruiz further testified that as

Rodriguez exited the car, Rodriguez spontaneously denied having what he suggested was

contraband, and then more specifically mentioning drugs, in his possession. We hold this is
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evidence showing Rodriguez exhibited consciousness of guilt, which further linked him to the

methamphetamine found in the car’s center console. See Menchaca, 901 S.W.2d at 652 (“The jury

may have rationally inferred from this evidence that Appellant’s knowledge of the contraband was

the cause of his nervousness.”). Considering the evidence as a whole and in a light most favorable

to the jury’s verdict, we hold the jury rationally could have found beyond a reasonable doubt that

Rodriguez had actual care, control, custody, or management of the methamphetamine. See id.; see

also Tate, 500 S.W.3d at 413. We therefore hold there is legally sufficient evidence that Rodriguez

intentionally or knowingly possessed the methamphetamine found in the car.

                                          CONCLUSION

       We affirm the trial court’s judgment.

                                                 Luz Elena D. Chapa, Justice

DO NOT PUBLISH




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