Opinion issued April 10, 2014.




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                              NO. 01-13-00209-CR
                           ———————————
                       ELEAZAR SALAZAR, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 339th District Court
                           Harris County, Texas
                       Trial Court Case No. 1318063



                         MEMORANDUM OPINION

      A Harris County grand jury indicted Eleazar Salazar on the felony offense of

possession with intent to deliver a controlled substance, namely, cocaine weighing

at least 400 grams by aggregate weight, including adulterants and dilutants. TEX.
HEALTH & SAFETY CODE ANN. §§ 481.112(a), (f), 481.102(3)(D) (West 2010)).

Salazar moved to suppress the evidence seized at the time of his arrest, contending

that both his arrest and the seizure of evidence violated his Fourth Amendment

rights. The trial court denied the motion to suppress, and the case proceeded to

trial. The jury found Salazar guilty of the charged offense. Salazar opted to have

the trial court assess punishment; the trial court assessed a sentence of twenty-five

years’ incarceration.

      Salazar contends that the evidence is insufficient to support the jury’s

finding of guilt and that the trial court abused its discretion in admitting testimony

from law enforcement officers about the circumstances that led to his arrest.

Salazar also challenges the trial court’s denial of his motion to suppress physical

evidence, contending that the arresting officer lacked justification to initiate the

stop. We hold that sufficient evidence supports the jury’s finding and that the trial

court did not abuse its discretion in making the challenged evidentiary rulings. We

therefore affirm.

                                       Background

      One Friday afternoon in August 2011, Officer J. Fisher, a ten-year veteran of

the Houston Police Department, was patrolling near the Southwest Freeway and

Kirby Drive. He was driving on the northbound service road when he noticed a tan

Chevrolet Suburban with darkly tinted windows approximately two car lengths



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ahead of him. The Suburban approached a red light at the Greenbriar intersection

and, without stopping or signaling, made a right turn onto Greenbriar. Officer

Fisher followed the Suburban onto Greenbriar. He caught up to the Suburban

within a few blocks and turned on the patrol car’s emergency equipment. Instead

of immediately stopping, the driver of the Suburban turned onto a side street. As

the Suburban made the turn, Officer Fisher observed the driver and the front-seat

passenger and noticed that the passenger, later identified as Salazar, was moving

toward the back-seat passenger area behind the center console and the driver’s seat.

Officer Fisher recounted that Salazar’s movements

      were very abrupt, like he was moving something towards the back,
      like something—from—the—where the angle of it is, it’s very hard
      for a driver to reach back behind themselves to set something back
      there. I never saw any movement like that. All I saw was the front
      passenger movement, making movement behind him . . . [and] the car
      was shaking a whole lot, especially when [it] stopped.

      When the Suburban pulled over, Officer Fisher parked his patrol car and got

out. He noticed the Suburban was shaking back and forth; as he approached the

Suburban, he saw the passenger was continuing to make furtive movements in the

back seat area.

      Officer Fisher approached the driver-side door and asked the driver to roll

down the window. Officer Fisher noticed a black alligator-print-embossed bag on

the floor behind the front seats, unzipped and leaning near the back of the driver’s

seat against the center console. The bag was the only item in the back floorboard


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area; otherwise, the car was spotless. Sticking out of the top of the bag, Officer

Fisher saw a brick-shaped, shrink-wrapped package that contained a white

substance. Based on his experience, Officer Fisher suspected that the substance

was cocaine.

      Officer Fisher directed the driver to exit the Suburban, handcuffed him, and

seated him in the patrol car. Then, Officer Fisher returned to the Suburban,

ordered Salazar to put his hands up and exit the Suburban. Officer Fisher patted

Salazar down, handcuffed him, and placed him in the patrol car as well.

      Once he secured Salazar and the driver in the patrol car, Officer Fisher

called the HPD Narcotics Division for help at the scene.    Officer J. Aguirre, an

eighteen-year veteran of the HPD who was assigned to the Narcotics Division,

responded to the call. Officer Aguirre conferred briefly with Officer Fisher and

spoke with Salazar and the driver. Officer Aguirre retrieved the bag containing the

brick of white powder and took it to the station. There, Officer Fisher tested the

powder and obtained a positive result for the presence of cocaine. Officer Fisher

repackaged the substance and brought it to the HPD’s narcotics lockbox for

safekeeping.

      Salazar signed a formal stipulation that the results of the HPD Crime Lab’s

analysis of the substance were that the evidence “contains cocaine, including any




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adulterants and dilutants, weighing 980.4 grams, which is at least 400 grams by

aggregate weight.”

                                    Discussion

I.    Evidentiary Sufficiency Challenge

      A.     Standard of review

      We review evidentiary sufficiency challenges under the Jackson v. Virginia

standard. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).

(“[T]he Jackson v. Virginia legal-sufficiency standard is the only standard that a

reviewing court should apply in determining whether the evidence is sufficient to

support each element of a criminal offense that the State is required to prove

beyond a reasonable doubt.”) (referring to Jackson v. Virginia, 443 U.S. 307, 99 S.

Ct. 2781, (1979)).    Under this standard, evidence is insufficient to support a

conviction if, considering all the record evidence in the light most favorable to the

verdict, no rational factfinder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071

(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

      Viewed in a light favorable to the verdict, the evidence is insufficient when

either: (1) the record contains no evidence, or merely a “modicum” of evidence,



                                         5
probative of an element of the offense; or (2) the evidence conclusively establishes

a reasonable doubt. See Laster, 275 S.W.3d at 518. This standard applies equally

to both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703

(Tex. Crim. App. 1995); Ervin v. State, 331 S.W.3d 49, 55 (Tex. App.—Houston

[1st Dist.] 2010, pet. ref’d).

       We do not weigh any evidence or evaluate the credibility of any witness, as

this is the function of the factfinder. Williams, 235 S.W.3d at 750. Instead, we

determine whether both the explicit and implicit findings of the factfinder are

rational, by viewing all the evidence admitted at trial and resolving any

inconsistencies in the evidence in favor of the verdict. Adelman v. State, 828

S.W.2d 418, 422 (Tex. Crim. App. 1992).

       B.     Possession of cocaine with intent to deliver

       A person commits the offense of possession with intent to deliver a

controlled substance if he knowingly possesses, with an intent to deliver it, a

controlled substance listed in Penalty Group One, a group that includes cocaine.

See TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(a), (f), 481.102(3)(D) (listing

cocaine in Penalty Group 1). To obtain a conviction, the State must prove that the

defendant (1) exercised care, custody, control, or management over the controlled

substance; (2) intended to deliver the controlled substance to another; and (3) knew

that the substance in his possession was a controlled substance. Id. §§481.002(38),



                                          6
481.112(a); Peña v. State, 251 S.W.3d 601, 606 (Tex. App.—Houston [1st Dist.]

2007, pet. ref’d). Possession is voluntary “if the possessor knowingly obtains or

receives the thing possessed or is aware of his control of the thing for a sufficient

time to permit him to terminate his control.” TEX. PENAL CODE ANN. § 6.01(b)

(West 2011).

      In prosecuting a defendant for possession of a controlled substance, the State

must prove that (1) the accused exercised control, management, or care over the

substance; and (2) the accused knew the substance possessed was contraband.

Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); see TEX. HEALTH &

SAFETY CODE ANN. § 481.115 (West 2010). A defendant’s presence at the location

where drugs are found is not enough to establish that the defendant had care,

custody, or control of the drugs. Evans, 202 S.W.3d at 161–62.

      Salazar contends that the evidence is insufficient to allow a reasonable jury

to find beyond a reasonable doubt that he possessed the cocaine. To prove the

element of possession, the State need not prove that the defendant had exclusive

possession; joint possession is enough to establish the defendant’s actual care,

custody, or control of the drugs. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.

Crim. App. 1987); Hubert v. State, 312 S.W.3d 687, 691–92 (Tex. App.—Houston

[1st Dist.] 2009, pet. ref’d). For either joint or sole possession, however, the State

must prove that a link exists between the defendant and the drugs. Id.



                                          7
      When a defendant does not exclusively possess the drug, then additional,

independent facts and circumstances must link the defendant to the contraband in a

way that one reasonably can conclude that he had knowledge of the contraband and

exercised control over it. Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—

Houston [1st Dist.] 2002, pet. ref’d). Among the links that may support a jury’s

finding of knowing possession are: (1) the defendant’s presence during the search;

(2) whether the substance was in plain view; (3) the defendant’s proximity to and

the accessibility of the substance; (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 substance was found; (12) whether the place where the substance was

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. Not all of these factors must be proved; the

logical force of all of the evidence, rather than the number of links, is dispositive to




                                           8
show possession. Id. at 162; James v. State, 264 S.W.3d 215, 219 (Tex. App.—

Houston [1st Dist.] 2008, pet. ref’d).

      C.     Analysis

      According to Salazar, the evidence affirmatively linking him to the cocaine

in the Suburban is insufficient to support his conviction. The record shows that

Officer Fisher noticed that Salazar, who was sitting in the front passenger seat, was

moving in the direction of the passenger area on the floorboard behind the center

console near the driver’s seat, and that Salazar’s movements were vigorous enough

to make the whole vehicle shake. Officer Fisher did not see the driver making any

movement toward the back. After Officer Fisher turned on his emergency lights,

he noticed the Suburban was shaking “a whole lot” as it traveled down the street

and that the shaking became even more pronounced when it stopped. Officer

Fisher characterized Salazar’s movements as furtive, and he recounted that Salazar

continued to make the movements as Officer Fisher walked up to the Suburban.

      Officer Fisher explained that Salazar’s movements were “kind of a red flag”

for him because, in his experience, that kind of movement in a car usually occurs

when people are trying to hide narcotics or retrieve or hide a weapon. Officer

Fisher approached the driver’s side of the Suburban and had the driver roll down

the window so that the light would give him a better view inside the vehicle. He

noticed the bag of cocaine in plain view behind the driver’s seat, leaning against



                                         9
the back of center console—the same location toward which Salazar appeared to

have been directing his movements and within Salazar’s reach. Officer Fisher also

testified that the bag was positioned in such a way that it would be “very hard for a

driver to reach back behind themselves to set something back there. I never saw

any movement like that.”

      Salazar notes the absence of evidence showing the existence of some of the

affirmative-links factors, specifically, that Salazar made no incriminating

statement, he did not act in a way that indicated a consciousness of guilt, he was

not under the influence of narcotics when arrested, and he did not have a large

amount of cash with him at the time. Nor does the record contain any evidence

that the Suburban smelled of cocaine or that Salazar’s fingerprints appeared on the

black bag.

      In assessing whether the evidence shows joint possession, the absence of

some of the factors is not evidence of innocence that weighs against the factors that

are present. See Evans, 202 S.W.3d at 162. The cocaine was in plain view and

accessible to Salazar. It was in an area inside the car toward which Salazar had

been making repeated, vigorous movements. See Davis v. State, 855 S.W.2d 855,

857 (Tex. App.—Eastland 1993, no pet.) (holding that defendant’s furtive gestures

specifically “going towards the bottom of the passenger’s seat” linked defendant to




                                         10
contraband). We hold that the logical force of this evidence supports the jury’s

finding that Salazar knowingly possessed the cocaine.

II.   Challenges to Evidentiary Rulings during Trial

      Salazar contends that the trial court erred in admitting Officer Fisher’s

testimony that Salazar jointly possessed the cocaine and in admitting Officer

Fisher’s testimony explaining how he believed the bag of cocaine became

positioned behind the driver’s seat.

      A.     Standard of review

      We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A

trial court abuses its discretion only if its decision is “so clearly wrong as to lie

outside the zone within which reasonable people might disagree.” Taylor v. State,

268 S.W.3d 571, 579 (Tex. Crim. App. 2008). A trial court does not abuse its

discretion if some evidence supports its decision. Osbourn v. State, 92 S.W.3d

531, 538 (Tex. Crim. App. 2002). We uphold a trial court’s evidentiary ruling if it

was correct on any theory of law applicable to the case. Id.; see De La Paz v.

State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).




                                         11
      B.     Analysis

      Salazar objected to Officer Fisher’s agreement that Salazar could be “in

‘joint possession’” of the cocaine recovered at the scene, arguing that it stated a

legal conclusion. The State elicited the testimony by asking whether, in Officer

Fisher’s opinion as a narcotics officer with nineteen years’ experience in law

enforcement, the driver and Salazar could be in joint possession of the narcotics

under the circumstances of the case.      The State adduced this testimony after

Salazar elicited testimony that the driver had also been charged with possession.

      Texas law recognizes that police officers may testify concerning knowledge

acquired through experience. See TEX. R. EVID. 702, 602; Barnes v. State, 248

S.W.3d 217, 223 (Tex. App.—Houston [1st Dist.] 2007, pet. struck); see also

Osbourn, 92 S.W.3d at 537 (holding that “a witness who is familiar with the odor

of marihuana smoke through past experiences can testify as a lay witness that he or

she was able to recognize the odor”); Reece v. State, 878 S.W.2d 320, 325 (Tex.

App.—Houston [1st Dist.] 1994, no pet.) (holding that police officers may testify,

based on their training and experience, that a defendant’s actions were consistent

with selling narcotics).

      Further, an officer’s opinion testimony is not infirm merely because it

embraces an issue of fact to be decided by the trier of fact. TEX. R. EVID. 704;

Bryant v. State, 340 S.W.3d 1, 11 (Tex. App.—Houston [1st Dist.] 2010, pet.



                                         12
ref’d); Reece, 878 S.W.2d at 325. Officer Fisher’s testimony was rationally based

on the circumstances he perceived in the course of arresting Salazar and

investigating the case—that given the plain view of the large amount of cocaine

and its location, it was possible that more than one person possessed it. We hold

that the trial court did not abuse its discretion in admitting Officer Fisher’s

testimony on this issue.

      Salazar also objected to Officer Fisher’s testimony about his belief that the

passenger side occupant placed the purse containing the cocaine into the back seat

area of the Suburban, because it was located directly behind the driver’s seat, as

speculation.   “Speculation is mere theorizing or guessing about the possible

meanings of facts and evidence presented.” Hooper v. State, 214 S.W.3d 9, 16

(Tex. Crim. App. 2007).     Officer Fisher did not guess about the meaning of

Salazar’s movements in the car; he based his testimony on his rational observation

of the events, viewed through the lens of his law-enforcement experience. He

noted that front seat occupants often place objects behind the seat next to them,

rather than directly behind their own seat. He also noted that he had observed the

passenger reaching toward that area of the car. We hold that the trial court did not

abuse its discretion in overruling Salazar’s objection to that testimony. See Reece,

878 S.W.2d at 325.




                                        13
III.   Denial of Motion to Suppress

       Lastly, Salazar challenges the trial court’s suppression ruling on the basis

that Officer Fisher lacked a reasonable suspicion to pull the Suburban over and

detain the driver for a traffic violation.

       A.     Standard of review

       We evaluate a trial court’s ruling on a motion to suppress under a bifurcated

standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).

The trial judge is the sole trier of fact and judge of the weight and credibility of the

evidence and testimony. Weide v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App.

2007). Accordingly, we defer to the trial court’s determinations of historical fact if

the record supports them. Ford, 158 S.W.3d at 493. We review de novo the trial

court's application of the law to those facts. Id. “[T]he prevailing party is entitled

to ‘the strongest legitimate view of the evidence and all reasonable inferences that

may be drawn from that evidence.’” State v. Castleberry, 332 S.W.3d 460, 465

(Tex. Crim. App. 2011) (quoting State v. Garcia-Cantu, 253 S.W.3d 236, 241

(Tex. Crim. App. 2008)). A trial court’s ruling will be sustained if it is “reasonably

supported by the record and correct on any theory of law applicable to the case.”

Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003) (citing Willover v.

State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002)).




                                             14
       Salazar contends the State did not adduce sufficient evidence to prove that

the driver of the Suburban violated any traffic law and, as a result, the State did not

have a right to detain Salazar. It is well-settled that a traffic violation committed in

an officer’s presence authorizes an initial stop. See Stoker, 170 S.W.3d at 812.

The State is not required to show that the driver actually committed a traffic

offense, but only that the officer reasonably believed a violation was in progress.

Ford, 158 S.W.3d at 492; Fernandez v. State, 306 S.W.3d 354, 357 (Tex. App.—

Fort Worth 2010, no pet.).

       The Texas Transportation Code provides that a person commits a traffic

violation if the person does not signal when intending to turn or change lanes. TEX.

TRANSP. CODE ANN. § 545.104(a) (West 2011).               Unlike some other traffic

violations, such as the prohibition against following a vehicle too closely, failing to

use a turn signal does not involve a subjective determination. See Castro, 227

S.W.3d at 742 (comparing facts before it to those in Ford). Thus, the trial court

need not be presented with a detailed account of the officer’s observations to

decide whether the officer’s belief that a traffic violation occurred was objectively

reasonable as they relate to offenses involving a failure to signal. Id.

       Salazar complains that Officer Fisher’s testimony that the Suburban “did not

use its turn signal” does not support the trial court’s finding that the Suburban’s

driver failed to signal a right turn.



                                          15
      In Castro, the Court held that “in cases involving offenses such as failure to

signal a lane change, a court can determine whether an officer’s determination that

a driver committed a traffic violation was objectively reasonable without being

presented with a detailed account of the officer’s observations.” 227 S.W.3d at

742 (rejecting court of appeals’ conclusion that evidence was insufficient to

determine whether driver was required to have electric turn-signal lamps or if he

was permitted to use hand and concluding that it was not unreasonable for trial

court to assume that “vehicle” and “signal” had their most common meaning, and

that vehicle in question was one that had electric turn-signal lamps that driver

failed to use); Benjamin v. State, No. 01–10–0066–CR, 2011 WL 123512, at *5–6

(Tex. App.—Houston [1st Dist.] Mar. 31, 2011, pet. ref’d) (mem. op., not

designated for publication) (following Castro).

      The circumstances in this case likewise support the trial court’s finding that

a traffic violation justified the stop. First, the trial court, as the judge of the facts,

did not view Officer Fisher’s testimony as referring solely to the failure to use the

car’s turn signal, but to a failure to signal at all. In explaining the circumstances

leading to the stop, Officer Fisher recounted twice that “he failed to use a turn

signal.” We understand this statement to refer to the driver’s inaction, whether by

hand signal or by the car’s turn signal. We hold that the trial court did not err in




                                           16
denying Salazar’s motion to suppress on the basis of lack of reasonable suspicion

that the driver had committed a traffic violation.

                                     Conclusion

      We hold that sufficient evidence supports Salazar’s conviction. We further

hold that the trial court did not err in overruling Salazar’s objections to Officer

Fisher’s testimony or in denying Salazar’s motion to suppress. We therefore

affirm the judgment of the trial court.



                                               Jane Bland
                                               Justice

Panel consists of Justices Keyes, Bland, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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