                                                                                      ACCEPTED
                                                                                    071600465CR
                                                                    SEVENTH COURT OF APPEALS
                                                                              AMARILLO, TEXAS
                                                                               6/21/2017 2:36 PM
                                                                                Vivian Long, Clerk


                NO. 07-16-00465-CR, NO. 07-16-00466-CR
                 NO. 07-16-00467-CR, 07-16-00468-CR
                                                                FILED IN
                      IN THE COURT OF APPEALS            7th COURT OF APPEALS
                                                           AMARILLO, TEXAS
          FOR THE SEVENTH SUPREME JUDICIAL            DISTRICT
                                                         6/21/2017 2:36:12 PM
                                                              VIVIAN LONG
                        AT AMARILLO, TEXAS                       CLERK


                     ALEXANDER ELI MARTINEZ,
                                     Appellant
                              VS.

                        THE STATE OF TEXAS,
                                     Appellee

                        Appeal in Cause No. 2900
                        In the 287th District Court
                         of Bailey County, Texas

                              APPELLEE’S BRIEF

                      HON. KATHRYN GURLEY
             DISTRICT ATTORNEY FOR BAILEY COUNTY
                    ATTORNEY FOR THE STATE
                              P.O. BOX 729
                           Friona, Texas 79035
                         State Bar No. 10022700
                     Telephone No. 806.250.2050
                         FAX No. 806.250.9053
                Email: districtattorney@parmercounty.net

                         JULIE GOEN PANGER
                   ATTORNEY FOR THE APPELLANT
                            619 Broadway Street
                          Lubbock, Texas 79401
                          State Bar No. 24069793
                      Telephone No. 806.712.2889
                          FAX No. 806.712.2529
                    Email: julie@thelubbocklawyer.com

Oral Argument Not Requested
                  NO. 07-16-00465-CR, NO. 07-16-00466-CR
                   NO. 07-16-00467-CR, 07-16-00468-CR

                         ALEXANDER ELI MARTINEZ,
                                         Appellant
                                  VS.

                           THE STATE OF TEXAS,
                                        Appellee


                          NAMES OF ALL PARTIES


JUDGE PRESIDING:
HON. GORDON HOUSTON GREEN
287TH Judicial District Court
300 South 1st Street, Suite 130
Muleshoe, TX 79347

APPELLANT:
Alexander Eli Martinez
TDCJ#02094168
Lychner Unit
Humble, TX 77396

ATTORNEY FOR APPELLANT                     ATTORNEY FOR APPELLANT
AT TRIAL:                                  ON APPEAL:
David Martinez                             Julie Goen Panger
1663 Broadway Street                       619 Broadway Street
Lubbock, TX 79401                          Lubbock, TX 79401

ATTORNEY FOR STATE
AT TRIAL AND ON APPEAL:
KATHRYN GURLEY
Bailey County District Attorney
P.O. Box 729
Friona, Texas 79035



                                    i
                                         TABLE OF CONTENTS

NAMES OF ALL PARTIES ......................................................................................i

TABLE OF CONTENTS ..........................................................................................ii

INDEX OF AUTHORITIES………………………………………………………iii

STATEMENT OF THE CASE…………………………………….………………2

STATEMENT OF FACTS ……………………………………….…………….....3

SUMMARY OF THE ARGUMENT……………………… ..…………………..…7

RESPONSE TO APPELLANT’S SOLE POINT OF ERROR .................................9

        I. Standard of Review ....................................................................................9

        II. Discussion. ...............................................................................................10

            (1) Affirmative Links Rule .......................................................................12

            (2) Application of Legal Sufficiency Standards to Facts of
                this case ...............................................................................................14

            (3) Conclusion ..........................................................................................18

CONCLUSION AND PRAYER .............................................................................19

CERTIFICATE OF SERVICE................................................................................20

CERTIFICATE OF COMPLIANCE.......................................................................20




                                                           ii
                                  INDEX OF AUTHORITIES

TEXAS CASE LAW                                                                                       Page

Acosta v. State, 429 S.W.3d 621 (Tex. Crim. App. 2014).........................................9

Bigby v. State, 892 S.W.2d 864 (Tex. Crim. App. 1994) ........................................16

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ........................................9

Brown v. State, 270 S.W.3d 564 (Tex. Crim. App. 2008),
cert. denied, 556 U.S.1211, 129 S.Ct. 2075, 173 L.Ed.2d 1139 (2009)..................10

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007)...............................10, 16

Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006)............................12, 13, 14

Hooper v. State, 214 S.W. 3d 9 (Tex. Crim. App. 2007) ..........................................9

Jackson v. Virginia, 443 U.S. 307 (1979) ...........................................................9, 10

King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000)..............................................9

Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) .......................................10

Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005) ................................12

Whittington v. State, 580 S.W.2d 845 (Tex. Crim. App. 1989)
cert. denied, 494 U.S. 1039 (1990)..........................................................................16

Wise v. State, 364 S.W.3d 900 (Tex. Crim. App. 2012)..........................................10

Wyatt v. State, 23 S.W.3d 18 (Tex. Crim. App. 2000) ............................................10


TEXAS RULES AND STATUTES

TEX. HEALTH & SAFETY CODE ANN. §481.112(a), (d) ............................................11




                                                     iii
                   NO. 07-16-00465-CR, NO. 07-16-00466-CR
                    NO. 07-16-00467-CR, 07-16-00468-CR

                         IN THE COURT OF APPEALS
            FOR THE SEVENTH SUPREME JUDICIAL DISTRICT
                            AT AMARILLO, TEXAS


                        ALEXANDER ELI MARTINEZ,
                                        Appellant
                                 VS.

                            THE STATE OF TEXAS,
                                         Appellee


                         STATE'S APPELLATE BRIEF

__________________________________________________________________

      The State does not request oral argument.


TO THE HONORABLE COURT OF APPEALS:

      COMES NOW THE STATE OF TEXAS, Appellee in Cause No. 2900 of

the 287th Judicial District Court of Bailey County, Texas, and respectfully submits

this brief in response to the brief filed by the Appellant appealing his convictions

in Cause Number 2900 in the 287th Judicial District Court, and in support thereof,

would respectfully show as follows:




                                         1
                         STATEMENT OF THE CASE

      In an indictment filed on October 7, 2015, the Grand Jury for the 287th

Judicial District Court of Bailey County, Texas, indicted the Appellant, Alexander

Eli Martinez, on four counts:

            Count I – Possession with Intent to Deliver a Controlled Substance,
            namely cocaine, in an amount of four grams or more but less than 200
            grams

            Count II – Possession with Intent to Deliver a Controlled Substance,
            namely methamphetamine, in an amount of four grams or more but
            less than 200 grams

            Count III – Possession of Marijuana, in an amount of five pounds or
            less but more than four ounces

            Count IV – Possession of a Controlled Substance, namely
            methamphetamine, in an amount of one gram or more but less than
            four grams.

            (CR 5-6)

      A jury trial was held beginning September 27, 2016, where Martinez

pleaded “not guilty” before the jury. (RR vol. 2, pg. 10-11). On September 28,

2016, the jury found Martinez “guilty” on all four counts. (RR vol. 5, pg. 42). On

Counts I, II, and IV, the jury assessed punishment at five years confinement in the

Institutional Division of the Texas Department of Criminal Justice and

recommended that the imposition of sentence be suspended. In Count III, the jury

assessed punishment at two years confinement in the State Jail Division of the

Texas Department of Criminal Justice. This sentence was imposed. The district

                                        2
court certified Martinez’ right to appeal. (CR pp. 44-45) (RR vol. 5 pg. 48).

Appellant timely filed a notice of appeal. (CR pg. 69).



                           STATEMENT OF FACTS

      An investigation into the distribution of narcotics from 301 East Chicago,

Muleshoe, Texas, began in September of 2014. (RR vol. 3 pg 35). The residence

had been placed under surveillance, and a confidential informant was utilized. (RR

vol. 3 pp. 35, 83). It was determined that Alexander “Taz” Martinez and his wife

resided at that address. (RR vol. 3 pp. 35-36). Based upon the information

obtained during the surveillance, which included witnessing a confidential

informant making purchases of cocaine from the Appellant, Officer Murillo

believed he had probable cause to obtain a search warrant. (RR vol. 6 pg. 6).

Judge Redwine issued the search warrant, and the warrant was executed on

December 4, 2014, at the residence located at 301 East Chicago in Muleshoe,

Texas. (RR vol. 3 pp. 36-39; RR vol. 6 pg. 6).

      Cristal Quintanilla and Selena had been at the Appellant’s residence prior to

the arrival of the police in a Dodge Nitro registered to “Dakota”. (RR vol. 3 pp.

126-127). They picked up two friends there, namely Shayla and “Pee Wee”, aka

Zedrick. Id. As they were leaving the residence, Cristal saw the police headed in

the direction of Appellant’s house, so she turned around and went back to



                                         3
Appellant’s house to tell them they had seen “the cops”. (RR vol. 3 pg. 130).

Cristal remembered people running everywhere, and that Appellant and B.J. got

into her vehicle. (RR vol. 3 pp. 131-132). Cristal testified about where each

person was seated and indicated each person’s place on a diagram. Selena was in

the front passenger seat. Pee Wee was seated directly behind her. B.J. was seated

in the center of the back seat, and Shayla was seated directly behind the front seat

passenger. Appellant was sitting on B.J.’s lap, in the center of the back seat. (RR

vol. 3 pp. 132-133; RR vol. 6 pg. 28).

      When law enforcement arrived at the residence, the black Dodge Nitro was

seen in the carport with the reverse lights on as if the driver was about to back out.

(RR vol. 3 pp. 20, 39, 133-134). Six people were inside the vehicle – four in the

back and two in the front.      (RR vol. 3 pg. 20).      Appellant was one of the

individuals in the back seat of the vehicle, seated in the middle behind the center

console. (RR vol. 3 pp. 20 - 21, 25, 112, 118). Officer Andrade made eye contact

with Appellant and saw him “reaching down”. (RR vol. 3 pg. 118). Officer Parks

asked everyone to get out of the vehicle, had them line up against a fence, and

began getting names and dates of birth from the individuals. (RR vol. 3 pp. 20-21).

While this was taking place, Appellant “took off running”. (RR vol. 3 pg. 21).

Officer Parks ordered him to stop three times, and when Appellant failed to stop,

Officer Parks unholstered his Taser. Appellant was chased approximately fifty



                                          4
yards in the street, and then Officer Parks fired the Taser at Appellant. Officer

Parks missed his target. (RR vol. 3 pp. 23, 113-14). However, after the Taser was

deployed, Appellant laid down in the street and was placed in handcuffs. (RR vol.

3 pp. 23-24).

      Appellant was taken inside his residence, where he was searched. His wallet

(containing cash) and his cell phone were taken. (RR vol. 3 pg. 42). The wallet

was later found to contain $1,215.00. (RR vol. 3 pg. 55). One of the $100 bills

found in Appellant’s wallet was shown to have the same serial number as a $100

bill that law enforcement had previously given to a confidential informant to

purchase cocaine from Appellant. (RR vol. 3 pp. 60-61; RR vol. 6 pp. 16-17).

      The residence was searched. In the master bedroom, a handgun was found

in a dresser drawer and a rifle was found hidden in a hole in the closet wall. (RR

vol. 3 pp. 43-44; RR vol. 6 pp. 7, 9, 10). Seven glass pipes, a clear plastic baggie

of methamphetamine, and two “bricks” of marijuana were also found in the

dresser. (RR vol. 3 pg. 44, 74; RR vol. 6 pg. 8, 11, 12, 18,19, 21, 22). After being

read the Miranda warnings, Appellant admitted that everything in the house was

his. (RR vol. 3 pp. 41-42, 50, 53-54, 77-78, 155).

      The black Dodge Nitro that was stopped in the driveway of the residence

was searched. Chief Deputy Dominguez found a plastic bag that contained several

other plastic baggies in the pocket located on the back of the driver’s seat. (RR



                                         5
vol. 3 pg. 92; RR vol. 6 pp. 23-24). The contents of some of the baggies were field

tested and were found to be positive for cocaine. (RR vol. 3 pg. 93).

      The baggies were sent to the Texas Department of Public Safety Crime

Laboratory for analysis. The results of testing showed the contents of each of the

six baggies. One baggie contained 18.09 grams of cocaine, two baggies were

found to contain no controlled substances, one baggie contained 3.5 grams of

cocaine, one baggie contained 1.75 grams of methamphetamine, and one baggie

contained 48.73 grams of methamphetamine. (RR vol. 3 pp. 69, 74-75; RR vol. 6

pg. 22). Chief Geske testified that these quantities of methamphetamine and of

cocaine would indicate that someone was selling those drugs. (RR vol. 3 pg. 152).

      Cristal Quintanilla came to the Sheriff’s office shortly after the search was

done at Appellant’s home, and she spoke with Chief Deputy Dominguez. (RR vol.

3 pp. 137, 157). Cristal testified about a Snapchat video that she had on her cell

phone. Cristal explained that Snapchat allows you take videos or photographs that

are a few seconds long and that you can send them to your friends. (RR vol. 3 pg.

137). Until recently, the videos and pictures were not able to be “saved” and they

“go away” after 24 hours has passed. (RR vol. 3 pp. 137, 141). Cristal testified

about a Snapchat from Appellant that had been posted on December 4, 2014. She

showed Deputy Dominguez the video and allowed him to make a recording of it.

(RR vol. 3 pp. 138-139). The Snapchat video was played for the jury, and Cristal



                                         6
identified Appellant as being the person who appeared in the video. (RR vol. 3 pg.

141). In the short video, Appellant clearly says “Does the b**** want some pure

cocaine or not”, repeats that statement again, and talks about counting some

money. (RR vol. 3 pp. 140-141; RR vol. 6 pg. 31).

      The jury found Appellant guilty on all four counts as alleged in the

indictment. (RR vol. 4 pg. 42; CR pp. 32, 34, 37, 38). Appellant was sentenced

on Counts I, II, and IV to five years in the Institutional Division of the Texas

Department of Criminal Justice, with those sentences suspended for five years, and

sentenced on Count III to two years confinement in the State Jail Division of the

Texas Department of Criminal Justice. (RR vol. 4 pg. 42; CR pp.61-68).

                       SUMMARY OF THE ARGUMENT

      Appellant contends that the evidence is insufficient to support his conviction

in Counts I and II of the indictment, alleging the evidence was insufficient to prove

that Appellant possessed cocaine or methamphetamine. (Appellant’s Brief, pg. vi).

Specifically, Appellant argues the State failed to prove beyond a reasonable doubt

that the cocaine and methamphetamine were in Appellant’s custody, care, control,

or management in light of the multiple individuals who had access to the drugs.

(Appellant’s Brief, pg. 4).

      Sufficient evidence supports the Appellant’s convictions on Count I and

Count II of the indictment. The evidence at trial showed numerous affirmative



                                         7
links between the Appellant and the controlled substances, which establish

Appellant’s possession of the controlled substances. The State established, to the

requisite level of confidence, that the Appellant’s connection to the controlled

substances was more than just fortuitous, and a rational juror could have found that

the Appellant possessed the controlled substances.

      Appellant argued at trial and now argues in this appeal that he did not

possess the methamphetamine and cocaine found in the vehicle. In this case, the

jury was the finder of fact, and as such, was the sole judge of the credibility of the

witnesses and the weight to be given their testimony. At trial, the jury heard all of

the evidence, including a video wherein Appellant denied the drugs found in the

car were his. They heard the cross-examination of the law enforcement officers

and witnesses presented at trial. The evidence, when viewed in the light most

favorable to the verdict, demonstrates that a rational trier of fact could have found

the State proved, beyond a reasonable doubt, the element that Appellant

challenges, to wit: that Appellant possessed methamphetamine and that Appellant

possessed cocaine with the intent to deliver.        Accordingly, the Court should

overrule Appellant’s sole point of error.




                                            8
         RESPONSE TO APPELLANT’S SOLE POINT OF ERROR

                                 Standard of Review

      The standard of review for a sufficiency analysis is whether, after viewing

the evidence in the light most favorable to the prosecution, 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); Brooks v. State, 323 S.W.3d 893,

902 (Tex. Crim. App. 2010). The standard gives “full play to the responsibility of

the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence,

and to draw reasonable inferences from basic facts to ultimate facts.” Jackson at

319, 99 S.Ct. at 2789.

      Evidence can be legally sufficient for a conviction even if it is entirely

circumstantial. King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000). The

same standard of review is used for both circumstantial and direct evidence cases.

Hooper v. State, 214 S.W. 3d 9, 13 (Tex. Crim. App. 2007). It is not necessary

that every fact point directly and independently to the defendant’s guilt; it is

enough if the conclusion is warranted by the combined and cumulative force of all

the incriminating circumstances. Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim.

App. 2014). If the evidence supports conflicting inferences, a reviewing court

should “presume the factfinder resolved the conflicts in favor of the prosecution,”

because the factfinder “exclusively determines the weight and credibility of


                                          9
evidence.” Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012, quoting

Jackson, supra at 319-26). The State need not have disproved all reasonable

alternative hypotheses inconsistent with a defendant‘s guilt; rather, the verdict

should be affirmed if “the inferences necessary to establish guilt are reasonable

based upon the cumulative force of all the evidence when considered in the light

most favorable to the verdict.” (Wise, supra at 903).

      The jury as fact finder is the sole judge of the weight and credibility of the

evidence presented, and is free to believe or disbelieve any testimony. Brown v.

State, 270 S.W.3d 564,568 (Tex. Crim. App. 2008), cert. denied, 556 U.S.1211,

129 S.Ct. 2075, 173 L.Ed.2d 1139 (2009); Wyatt v. State, 23 S.W.3d 18, 30 (Tex.

Crim. App. 2000). The presumption is that the jury resolved conflicting inferences

in favor of the verdict, and a reviewing court should defer to that determination.

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). So long as the

verdict is supported by a reasonable inference, it is within the jury’s province to

choose which inference is most reasonable. Laster v. State, 275 S.W.3d 512, 523-

24 (Tex. Crim. App. 2009).

                                    Discussion

      Appellant appeals only two of the four counts wherein he was convicted by a

jury. In the two counts the subject of this appeal, Appellant was charged with and

convicted of two counts of the offense of possession of a controlled substance,



                                         10
Penalty Group 1, with intent to deliver, in an amount of four grams or more but

less than 200 grams. The indictment alleged that Appellant:


      Count I: on or about the 4th day of December, 2014, did then and there
      knowingly possess with intent to deliver, a controlled substance, namely,
      cocaine, in an amount of four grams or more but less than 200 grams.

      Count II: on or about the 4th day of December, 2014, did then and there
      knowingly possess with intent to deliver, a controlled substance, namely,
      methamphetamine, in an amount of four grams or more but less than 200
      grams.
      (CR pg. 5-6)(RR vol. 3 pg. 10-11).

The elements of the offense—as pled—are that (1) a person (2) knowingly (3)

possesses (4) with intent to deliver (5) a controlled substance listed in Penalty

Group 1 (6) in an amount of between four grams or more but less than 200 grams.

See TEX. HEALTH & SAFETY CODE ANN. §481.112(a), (d).

      Appellant’s sufficiency challenges focus on whether the evidence is

sufficient to show that any rational trier of fact could have found beyond a

reasonable doubt that Appellant knowingly possessed cocaine or that Appellant

knowing possessed methamphetamine, with the intent to deliver, in amounts

between four and 200 grams. In particular, he makes the same argument that was

made at trial, to wit: that the evidence was insufficient to connect the Appellant to

the drugs found in the vehicle. As such, the State was required to prove that (1)

Appellant exercised control, management, or care over the 21.59 grams of cocaine

and the 50.48 grams of methamphetamine.           Whether by direct evidence or

                                         11
circumstantial evidence, the State was also required to establish “to the requisite

level of confidence, that the accused’s connection with the drug was more than just

fortuitous. This is the “affirmative links” rule. Poindexter v. State, 153 S.W.3d

402, 405-06 (Tex. Crim. App. 2005).

      The “affirmative links” rule is designed to protect the innocent bystander

from conviction merely because of his fortuitous proximity to someone else’s

drugs. Mere presence at the location where drugs are found is thus insufficient, by

itself, to establish actual care, custody, or control of those drugs.     However,

presence or proximity, when combined with other evidence, either direct or

circumstantial (e.g., ‘links’), may well be sufficient to establish that element

beyond a reasonable doubt.” Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim.

App. 2006).

      The Evans court gave a non-exclusive list of possible “affirmative links” that

Texas courts have recognized as sufficient, either singly or in combination, to

establish a person’s possession of 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;




                                        12
      (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.

      Evans, 202 S.W.3d at 162, n. 12. The Evans court noted, however, that the

factors noted in the footnote are simply factors which may circumstantially

establish the possession element of the offense and are not a litmus test. Id. The

Evans court also noted that it is not the number of links that is dispositive, but

rather the logical force of all the evidence, both direct and circumstantial. Id.

Whether the possession element is met should be judged by the same standard as

all other evidence since the “affirmative links” rule is not an independent test of

legal sufficiency. Id. at 161, n. 9.




                                        13
            Application of Legal Sufficiency Standard to Facts of Case

      The Evans court framed an “affirmative links” sufficiency challenge as

“whether there is evidence of circumstances, in addition to mere presence, that

would adequately justify the conclusion that the defendant knowingly possessed

the substance.” Id. at 161, n. 9. The evidence presented at Appellant’s trial was

sufficient to link him to the methamphetamine and the cocaine found in the pocket

behind the driver’s seat.

      The first affirmative link is that the Appellant was present when the search

was conducted. The Appellant resided at the address of the search, and he was on

the premises, inside the vehicle located in his driveway, when the search warrant

was executed. (RR vol. 3 pp. 21, 40, 112, 118).

      The next link between Appellant, the methamphetamine, and the cocaine

found in the vehicle is Appellant’s proximity to that contraband. Appellant was

seated in the lap of another person in the center of the back seat. (RR vol. 3

pp.112, 132; RR vol. 6 pg. 28). Appellant was seated within arm’s reach of the

pocket where the contraband was found. Appellant argues that there were at least

five people in the vehicle similarly situated to Appellant. (Appellant’s Brief pg. 9).

The five others in the vehicle, however, were not similarly situated to the

Appellant. Four of the individuals found in the vehicle– Cristal, Selena, Shayla

and Pee Wee – had previously left Appellant’s residence, but when they saw the



                                         14
police headed that direction, they returned to Appellant’s residence to warn people

there that the police were coming. (RR vol. 3 pg. 130). If anyone in the car had

knowledge of the substantial quantity of drugs in the vehicle at that time, it would

not be rational that they would return to the scene with the drugs in light of the

expected presence of law enforcement. Upon the vehicle’s arrival at Appellant’s

residence, Appellant and B.J. jumped in the car and were seated in the middle seat

behind the driver, with Appellant seated on B.J.’s lap. (RR vol. 3 pp. 131-132).

This arrangement would likely preclude the person to Appellant’s right (Shayla)

and the person Appellant was sitting on (B.J.) from being able to reach the pocket

to place the drugs there. The two people seated in the front seat (Cristal and

Selena) could not easily reach the pocket behind the driver’s seat. There were only

two persons, therefore, namely the Appellant and the person seated to his left (Pee

Wee), who had access to the pocket. Pee Wee is one of the passengers who was in

the car when it returned to the Appellant’s residence. If he had placed the drugs in

the pocket, it would not be likely that he would return to Appellant’s residence

with the contraband, knowing the police were headed that way.            There are,

however additional links to connect the Appellant with the contraband found in the

pocket of the vehicle.

      Another strong link between Appellant and the methamphetamine and

cocaine within the pocket is the fact Appellant made furtive gestures. Appellant



                                        15
was seen “reaching down” behind the driver’s seat as the officers arrived at the

scene. Officer Andrade described looking right at Appellant as he was making

those movements. (RR vol. 3 pg. 118).

      Appellant’s flight from the scene, leading to a foot chase and law

enforcement’s deployment of a Taser, also links Appellant to the contraband.

Appellant ignored commands to stop and only ceased running when he heard the

taser deploy. (RR vol. 3 pg. 23). Appellant ran before any contraband was found

in the vehicle, and he was the only person who fled from the vehicle where the

contraband was located. Thus, the fact that Appellant fled the scene before the

vehicle had even been searched indicated he knew there was contraband in the

vehicle. Appellant’s flight from the scene indicates a consciousness of guilt and is

a circumstance from which an inference of guilt may be drawn. Bigby v. State, 892

S.W.2d 864, 883 (Tex. Crim. App. 1994); Whittington v. State, 580 S.W.2d 845,

846-847 (Tex. Crim. App. 1989), cert. denied, 494 U.S. 1039 (1990); Clayton v.

State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007).

      Other affirmative links include Appellant’s incriminating statements made

when arrested.      Appellant admitted to possessing the 1.63 grams of

methamphetamine and the 1.98 pounds of marijuana that were found inside his

residence. (RR vol. 3 pg. 50; RR vol. 6 pg. 14). The amount of these drugs,

especially the marijuana, is more consistent with delivery than personal use.



                                        16
Multiple glass pipes commonly used for smoking methamphetamine were present

in Appellant’s home, which Appellant also admitted were his. Additionally, a

handgun and a rifle were found concealed in the Appellant’s bedroom. (RR vol. 3

pg. 44). These items link the Appellant to the business of selling narcotics.

      Another link connecting the Appellant to the contraband is his possession of

a large amount of cash, primarily in the smaller denominations of $5.00, $10.00

and $20.00. Of the cash found in Appellant’s wallet, which was on his person at

the time of detention, one bill was a $100 bill that had been previously used by a

confidential informant to purchase cocaine from Appellant. (RR vol. 3 pg. 42, 55,

60; RR vol. 6 pg. 16).

      Finally, Appellant made an incriminating statement that was recorded and

shared with his friends via Snapchat. In that video, Appellant is asking if anyone

wants pure cocaine and talks about counting his money. (RR vol. 6 pg. 31). The

Snapchat video was only visible to Appellant’s friends for a twenty-four hour

period, which meant the video was posted very close in time to the time the search

warrant was executed.      Large quantities of methamphetamine and cocaine –

amounts consistent with delivery rather than personal use amounts - were found in

the car, indicating that the person who possessed them was in fact a seller of

narcotics. The Snapchat video affirmatively links Appellant to the possession of

and the selling of those substances.



                                         17
      At trial, Appellant argued that there was no evidence whatsoever produced

that showed possession. (RR vol. 4 pg. 31). The jury, however, resolved the

conflicting inferences in favor of the verdict and convicted Appellant of Counts I

and II.

                                   Conclusion

      The evidence is sufficient to show that Appellant knowingly possessed

methamphetamine and that Appellant knowingly possessed cocaine, with the intent

to deliver. The links described above clearly connect the Appellant to the cocaine

and to the methamphetamine found in the vehicle in close proximity to Appellant.

While Appellant argues there was no more than a fortuitous link between

Appellant and the drugs found and that the circumstantial evidence used to convict

Appellant was applicable to the other individuals in the vehicle, the evidence does

not support that conclusion. Appellant alone fled from the vehicle. Appellant

alone possessed other methamphetamine and a substantial amount of marijuana.

Appellant had a substantial amount of cash in his possession, and he alone

possessed a $100 bill connecting him to a previous cocaine sale. Appellant was in

close proximity to the location where the drugs were found. Appellant professed

his possession of pure cocaine in the Snapchat video. These are all factors that

specifically connect only the Appellant, and no other, to the drugs in the vehicle.

The verdict is supported by a reasonable inference, and it is within the jury’s



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province to choose which inference is most reasonable. The presumption is that

the jury resolved conflicting inferences in favor of the verdict, and a reviewing

court should defer to that determination.

                         CONCLUSION AND PRAYER

      The evidence in this case is sufficient to show the possession element of the

offenses charged. When the evidence is examined in the light most favorable to

the verdict, a rational trier of fact could have found beyond a reasonable doubt that

the Appellant possessed methamphetamine and that the Appellant possessed

cocaine, with intent to deliver. WHEREFORE, PREMISES CONSIDERED, the

Appellee prays that this Honorable Court overrule Appellant’s point of error, and

that Appellant's convictions and sentences be upheld and the appeal dismissed.

                                       Respectfully Submitted,

                                       By: /s/Kathryn H. Gurley
                                       Kathryn H. Gurley
                                       287th Judicial District Attorney
                                       State Bar No. 10022700
                                       P.O. Box 729
                                       Friona, Texas 79035
                                       Tel.: (806) 250-2050
                                       FAX: (806) 250-9053
                                       Email: districtattorney@parmercounty.net




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                          CERTIFICATE OF SERVICE

      This is to certify that a copy of the above-entitled and numbered brief has

been served on Julie Goen Panger, counsel for Appellant as to this appeal, by email

to julie@thelubbocklawyer.com, on this the 21st day of June, 2017.

                                              /s/Kathryn H. Gurley
                                              Kathryn H. Gurley
                                              Attorney for Appellee




                       CERTIFICATE OF COMPLIANCE

Pursuant to TEX. R. APP. P. 9.4(i)(3), I further certify that, relying on the word

count of the computer program used to prepare the foregoing State’s Response, this

document contains 3,982 words, inclusive of all portions required by TEX. R.

APP. P. 9.4(i)(1) to be included in calculation of length of the document.


                                                    Kathryn H. Gurley
                                                    287th Judicial District Attorney
                                                    State Bar No. 10022700

                                                    By: /s/ Kathryn H. Gurley
                                                        Kathryn H. Gurley




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