                                   NO. 07-06-0450-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                  APRIL 7, 2008
                         ______________________________

                      JESSE MCKANE GONZALES, APPELLANT

                                            V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

                  FROM THE COUNTY COURT OF HALE COUNTY;

              NO. 2006C-380; HONORABLE DWAIN DODSON, JUDGE
                      _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Appellant, Jesse McKane Gonzales, was convicted by a jury of possession of

marijuana of two ounces or less in a drug free zone. The jury assessed his punishment

at confinement in the county jail for 180 days and a fine of $500, with the jail time being

suspended and appellant placed on probation for a period of one year. Through four

issues, appellant challenges his conviction. We reverse and enter an acquittal.
                                    Factual Background


       On April 25, 2006, Plainview police officers received an anonymous call reporting

suspected drug activity taking place at a park at 12th Street and Travis. The first officer to

arrive on the scene, Officer Jaramillo, testified observing five individuals seated around a

picnic table. Three were seated on the picnic table bench facing west, away from the

officer and the street where she parked, and two were across the table facing east, directly

toward the street where the officer parked. The only person to react to the officer’s arrival

was Michael Salas, one of the individuals facing east. Salas got up from the north end of

the picnic table and moved to the south end where he was seated across from appellant.

When Jaramillo walked up to the picnic table, she observed a baggie of marijuana on the

ground behind appellant. She further observed two baggies by Salas and a set of

electronic scales underneath the picnic table between appellant and Salas.


       Officer Ramero Sanchez was the second officer on the scene. He arrived after

Jaramillo had begun getting the names of those present. Sanchez also observed the

marijuana and the scales. After a check for warrants had been run, it was learned that two

of the individuals present, Rebecca Diaz and Josh Wolvenik, had outstanding warrants and

they were arrested.     Appellant and Michael Salas were arrested for possession of

marijuana. David Diaz, the person seated next to appellant at the picnic table, was allowed

to leave. As Jaramillo was placing the individuals in the car, she was informed by Diaz,

Wolvenik and appellant that the marijuana belonged to Salas.




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       After hearing the evidence the jury returned a verdict of guilty to the charge of

possession of marijuana. Appellant raises four issues, however, due to our decision we

will address only appellant’s challenge to the legal sufficiency of the evidence.


                                    Standard of Review


       Appellant couched his first issue in terms of the trial court committing error by

overruling his motion for directed verdict. A challenge to the trial court’s denial of a motion

for directed verdict will be viewed by the appellate court as a challenge to the legal

sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996).

In assessing the legal sufficiency of the evidence, we review all the evidence in the light

most favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133

S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency review, an

appellate court may not sit as a thirteenth juror, but rather must uphold the jury’s verdict

unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno

v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988).


       To convict a citizen of possession of a controlled substance, the State must prove

that appellant exercised 1) actual care, custody, control, or managment over the

substance; and 2) the accused knew the matter possessed was contraband. TEX . HEALTH

& SAFETY CODE ANN . § 481.002(38) (Vernon Supp. 2006); Poindexter v. State, 153 S.W.3d

402, 405 (Tex.Crim.App. 2005). Further, the evidence must establish that appellant’s


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connection with the contraband was more than fortuitous. Brown v. State, 911 S.W.2d

744, 747 (Tex.Crim.App. 1995). When, as in the case before the court, the appellant is not

in exclusive possession of the place where contraband is found, additional independent

fact and circumstances must be shown that link the appellant to the contraband.

Poindexter, 153 S.W.3d at 406. These independent facts that connect the appellant to the

contraband may be direct evidence or of a circumstantial evidentiary nature. Id. at 403.


       A number of different types of “links” have been identified by the Texas appellate

courts. They may include, but are not limited to: 1) appellant’s presence when the

contraband was found; 2) whether the contraband was in plain view; 3) appellant’s

proximity to and the accessibility of the contraband; 4) whether appellant was under the

influence of contraband when arrested; 5) whether appellant possessed other contraband

or drug paraphernalia when arrested; 6) whether appellant made incriminating statements

when arrested; 7) whether appellant attempted to flee; 8) whether appellant made furtive

gestures; 9) whether there was an odor of contraband; 10) whether appellant owned or had

the right to possess the place where the contraband was found; 11) the amount of

contraband found; or 12) whether appellant possessed a large amount of cash. Taylor v.

State, 106 S.W.3d 827, 832 (Tex.App.–Dallas 2003, no pet.). Finally, it is the logical force

of these links and not the number of links which determine whether the State’s evidence

links appellant to the contraband. Id.




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                                        Analysis


      In this case there are three links that seem to connect appellant to the contraband.1

First, the marijuana was in plain view. Second, appellant was within a foot to a foot and

a half of the contraband; therefore, it was easily accessible.         Third, other drug

paraphernalia was found at the scene. However, we must be mindful that it is the logical

force of the links and not the number of links that determines the connection of appellant

to the contraband. Id. The record reflects that appellant’s back was to the contraband the

entire time and the State produced no evidence indicating appellant had any knowledge

of the contraband behind him. The record shows that appellant made no furtive gestures

when the police arrived. There is no evidence of when appellant arrived at the scene,

whether it was before or after Salas arrived. Salas was the only person at the scene that

reacted to the presence of the police. Further, the record reflects that the paraphernalia

was under the table equally between appellant and Salas. There is no evidence in the

record regarding whether appellant could see the scales in question from his seat. Again,

there is no evidence that appellant was aware of the existence of the scales. The logical

force behind the contraband being in plain view loses some of its force because there is

nothing in the record to indicate appellant’s awareness of the contraband. Upon review,

the conclusion that can be drawn from the links shown in the record is that appellant was

present at a place where contraband was found. However, mere presence alone is not

sufficient to support a conviction for possession of contraband. Poindexter, 153 S.W.3d


      1
        The State contends there are four links, however, under the facts of this case, as
revealed by the record, we have determined that close proximity and easy access are one
and the same.

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at 405. Accordingly, we find that the evidence is legally insufficient to prove the element

of possession.


                                        Conclusion


       Having found that the evidence was legally insufficient, we reverse the judgment of

the trial court and enter a judgment of acquittal.




                                                     Mackey K. Hancock
                                                          Justice




Do not publish.




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