Affirmed in Part, Reversed and Acquitted in Part, and Opinion filed May 12,
2015.




                                      In The

                    Fourteenth Court of Appeals

                              NOS. 14-14-00006-CR
                                   14-14-00007-CR

                    BERNARDO TORRES, JR., Appellant
                                        V.

                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 232nd District Court
                             Harris County, Texas
                   Trial Court Cause No. 1377519 & 1377520

                                 OPINION


      Challenging the legal sufficiency of the evidence supporting the jury’s
findings that he exercised care, custody, or control of methamphetamines and that
he acquired or exercised control over a stolen firearm found in his house, appellant
Bernardo Torres, Jr., appeals his convictions for possession of a controlled
substance and theft. We affirm the trial court’s judgment as to the possession
conviction and reverse the trial court’s judgment and render a judgment of
acquittal as to the theft conviction.

                                        Background

       In an attempt to execute an arrest warrant for a female fugitive, police
officers approached appellant’s father Torres, Sr. outside his home. Officer Duron
showed him a mugshot of the person the officers were seeking to arrest. Torres,
Sr., said he did not know if the fugitive was inside but consented to a search of the
house.1 The officers entered through the back door into the kitchen and discovered
in the kitchen, among other things, marijuana and marijuana paraphernalia, boxes
of sandwich and freezer bags, a loaded rifle magazine, a revolver, two scales with
methamphetamine residue, and a plastic bag containing methamphetamine.

       In the living room, a man was asleep on the couch. Appellant’s wallet,
containing several expired school identification cards, was on a table in the living
room along with a box of ammunition; two pistols, one of which had been reported
stolen; more marijuana; and a Tupperware container containing 45.81 grams of
methamphetamine. In one bedroom, officers discovered appellant’s brother asleep
on the bed. They also discovered rifles and rifle magazines in that bedroom. In the
other bedroom, appellant was sleeping on one bed, and another man was sleeping
on another bed. In that bedroom, officers discovered, among other things,
marijuana paraphernalia, rifle magazines, and ammunition. The fugitive was not
present.

       Appellant had $2,225 in his pocket in various denominations. He told Duron
that he received the money in payment from remodeling jobs over a nine-month
period. A second officer put the money on appellant’s bed. A K-9 unit
       1
         There were two houses on the property, both owned by Torres, Sr. He resided at the
house in the back of the property but consented to a search of the front house.

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subsequently arrived, and its dog alerted to the odor of narcotics on the cash.

      Appellant was indicted separately for possession with intent to deliver
methamphetamine weighing more than four but less than 200 grams and for theft
of a firearm. The cases were tried together. The jury found appellant guilty of both
charges and assessed punishment for possession at 25 years in prison and
punishment for theft at six months in the state jail.

                                      Discussion

      In two appeals, appellant challenges the legal sufficiency of the evidence in
support of his conviction for possession of a controlled substance on the basis that
there is insufficient evidence of affirmative links showing that appellant exercised
care, custody, or control of the controlled substance and his conviction for theft on
the basis that there is insufficient evidence that he acquired or otherwise exercised
control over the stolen weapon. We address each issue in turn.

      When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict and determine, based on that evidence and
any reasonable inferences therefrom, whether a rational jury could have found the
elements of the offense beyond a reasonable doubt. See Gear v. State, 340 S.W.3d
743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19
(1979)). In making this review, we consider all evidence in the record, whether it
was admissible or inadmissible. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim.
App. 2013). We also consider both direct and circumstantial evidence, as well as
any reasonable inferences that may be drawn from the evidence. See Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

      Although we consider everything presented at trial, we do not reevaluate the
weight and credibility of the evidence or substitute our judgment for that of the


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factfinder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Because the jury is the sole judge of the credibility of witnesses and of the weight
given to their testimony, any conflicts or inconsistencies in the evidence are
resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.
Crim. App. 2000).

      I.     Legally Sufficient Evidence of Possession of Controlled Substance

      To prove appellant committed this offense, the State was required to show
beyond a reasonable doubt that appellant knowingly possessed with intent to
deliver methamphetamine in the amount of four grams or more but less than 200
grams. See Tex. Health & Safety Code §§ 481.102(6), 481.112(a), (d). In that
connection, the State was required to establish that appellant exercised control,
management, or care over the controlled substance and knew it was contraband.
Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). Appellant’s
connection to the contraband must be more than fortuitous. Evans v. State, 202
S.W.3d 158, 161–62 (Tex. Crim. App. 2006). Mere presence in the same place as
the controlled substance is insufficient to justify a finding of possession. Id. at 162.

      Presence or proximity, when combined with other evidence, either direct or
circumstantial, may establish possession. Id. When a defendant does not have
exclusive possession of the place where the contraband was found, the reviewing
court must examine the record to determine if there are additional independent
facts that “affirmatively link” the defendant to the contraband. See Poindexter, 153
S.W.3d at 406. The requirement of “affirmative links” is aimed at protecting
innocent bystanders from conviction based solely on their proximity to someone
else’s contraband. Id.

      The following nonexclusive list of factors has been recognized as tending to
establish affirmative links: (1) the defendant’s presence when a search is
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conducted; (2) whether the contraband was in plain view; (3) the defendant’s
proximity to and the accessibility of the contraband; (4) whether the defendant was
under the influence of narcotics when arrested; (5) whether the defendant
possessed other 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 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.
See Evans, 202 S.W.3d at 162 n.12; Black v. State, 411 S.W.3d 25, 29 (Tex.
App.—Houston [14th Dist.] 2013, no pet.). It is “not the number of links that is
dispositive, but rather the logical force of all of the evidence, direct and
circumstantial.” Evans, 202 S.W.3d at 162. We conclude that the following
affirmative link factors weigh in favor of the jury’s possession finding.

      Appellant’s Presence during the Search. Appellant was present in the
home during the search, albeit in another room away from where the contraband
was located. This factor weighs only slightly in the State’s favor, given the fact
that presence in the same place as the controlled substance alone does not justify a
finding of possession. See id.

      Contraband in Plain View. Officers found methamphetamine in three
places, in a plastic bag near the refrigerator, in the form of white powder on scales
on the kitchen table, and in a clear Tupperware container on a living room table.
All three specimens were in plain view in the house. However, appellant argues
that the items were not in his plain view because he was in another room during the

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search and the items were not “obviously contraband.”

      Whether the contraband was in plain view is judged from the perspective of
someone placed in the defendant’s position. Allen v. State, 249 S.W.3d 680, 695
(Tex. App.—Austin 2008, no pet.); see also Hill v. State, 755 S.W.2d 197, 201
(Tex. App.—Houston [14th Dist.] 1988, writ ref’d) (noting that contraband must
be in plain view of accused). But that does not mean the contraband must be in
defendant’s view at the exact moment it is discovered. See Wright v. State, 401
S.W.3d 813, 820 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (holding
contraband located “in plain view in the home and readily accessible to appellant”
supported finding that “when appellant was inside the home, he possessed the
[contraband]”). The key is whether the accused would have had occasion to see the
contraband. See Allen, 249 S.W.3d at 695-96 (holding cocaine on platter on top
back of refrigerator was not in plain view of appellant who was on a couch in
another room when officer entered apartment despite evidence that officer was
taller than appellant and could have seen it).

      Here, the methamphetamine was located in three obvious places in the
house. Notably, appellant’s wallet was on the living room table near where some of
the contraband was found. The jury reasonably could have inferred that appellant
had had the opportunity to see the contraband, despite the fact that he was in the
bedroom when officers entered the house. See Hill, 755 S.W.2d at 201 (holding
that when appellant was found in his bedroom and “there were small bags of
individually wrapped crack cocaine rocks located on numerous counters and coffee
tables throughout [his] apartment” as well as in his bedroom, the jury could infer
that appellant knew of the existence of the cocaine).

      As to whether these items were “obviously contraband,” they were
discovered on scales, in plastic bags, and in close proximity to weapons,

                                          6
ammunition, marijuana, and marijuana paraphernalia. The jury could infer from
this evidence that appellant knew they were contraband. See Wright, 401 S.W.3d at
820 (holding jury could infer that appellant knew marijuana was contraband when
plants were growing in his home and drug paraphernalia was present).

      Appellant’s Proximity to and Accessibility of the Contraband. Appellant
argues that he was not in close proximity to the drugs because he was in another
room. However, the house was small: officer testimony established it was “roughly
half the size” of the courtroom where the case was tried. Thus, the contraband was
in close proximity to the appellant. Moreover, it was conveniently accessible to
appellant on the kitchen and living room tables and on the kitchen floor. See
Gregory v. State, 159 S.W.3d 254, 260 (Tex. App.—Beaumont 2005, pet. ref’d).

      Other Contraband and Drug Paraphernalia in the Home. In the
appellant’s bedroom, officers discovered a marijuana grinder along with rifle
magazines and ammunition. Several guns were discovered in the house, one of
which was stolen. Marijuana was discovered in the kitchen and living room. The
following drug paraphernalia was also present: plastic baggies, two scales with
methamphetamine residue, and a used marijuana “bomb,” among other things.

      Appellant’s Right to Possess Home. Appellant’s school identification
cards, which were in his wallet on the living room table, and Texas driver’s license
all listed the address of the home where appellant was found as his residence, and
appellant received mail at the home. The jury could infer from this evidence that
appellant had the right of possession to the home. See Wright, 401 S.W.3d at 819.

      Contraband in Enclosed Place. Appellant asserts the contraband was not
enclosed because it was “not found in a backpack, duffle bag or footlocker or any
other enclosed space or container under [a]ppellant’s control.” However, the
contraband was enclosed, as it was found in the residence, a location not generally
                                         7
accessible to the public. See Gregory, 159 S.W.3d at 260 (holding contraband was
enclosed because it “was located inside the residence, an area not generally
accessible to the public”). This factor also supports an inference of possession.

       Appellant Found with Large Quantity of Cash. Appellant argues that the
amount of cash found in his pocket, totaling $2,225, was not a large amount, had
been saved from remodeling jobs, and was in large denominations, indicating it
was not “drug money.” The amount of cash must be viewed in conjunction with
the surrounding circumstances to determine whether it is a large quantity. See
Evans, 202 S.W.3d at 165 (concluding appellant’s possession of $160 combined
with evidence that appellant did not have a job and appellant was sitting near
contraband “does have some slight probative value in connecting appellant to the
actual care or custody of the drugs”). Here, appellant was found with a relatively
large amount of cash in his pocket, and much of the cash was made up of twenty-
dollar bills. The jury, as the factfinder and ultimate judge of credibility, was
entitled to disbelieve appellant’s explanation as to how he acquired the money. The
evidence has some probative value supporting an inference that appellant obtained
the money in conjunction with distributing drugs.2 See id.3

       Appellant finally argues that the affirmative links factors weigh in his favor
“[g]iven the large number of people living [in the house].” But “control over
contraband need not be exclusive[—it] can be jointly exercised by more than one

       2
          The State also argues that because the officer’s dog alerted to the presence of narcotics
on the cash, that is also evidence that appellant possessed the contraband. Assuming without
deciding that this evidence had probative value when the dog’s alert did not indicate what type of
narcotics was on the money and the State presented no evidence regarding whether money in
general may have the presence of narcotics, we conclude regardless that there was other legally
sufficient evidence supporting the jury’s possession finding.
       3
         See also Young v. State, No. 14-10-00406-CR, 2011 WL 3556934, at *2-3 (Tex. App.—
Houston [14th Dist.] Aug. 11, 2011, no pet.) (mem. op.) (concluding large wad of bills totaling
$1,352 found on appellant supported jury’s finding that appellant possessed cocaine).

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person.” Wright, 401 S.W.3d at 820.

       Viewing the evidence in the light most favorable to the verdict, we hold that
the evidence of links between appellant and the methamphetamine was legally
sufficient to support the jury’s verdict that he possessed it. We affirm the trial
court’s judgment as to appellant’s conviction for possession of methamphetamine.

       II.       Legally Insufficient Evidence of Theft

       To prove appellant committed theft, the State was required to prove beyond
a reasonable doubt that appellant “unlawfully appropriate[d] property with intent to
deprive the owner of property.”4 Tex. Penal Code § 31.03(a). An appropriation of
property is unlawful if it is without the owner’s effective consent. Id. § 31.03(b)(1).
“Appropriate” means “to acquire or otherwise exercise control over property other
than real property.” Id. § 31.01(4)(B). The Penal Code does not provide a
definition for the phrase “exercise control.”

       Appellant argues no evidence supports the jury’s finding that he acquired or
exercised control over the stolen gun other than the fact that his wallet was on the
table next to it. The parties agree that a defendant’s unexplained possession of
recently stolen property permits an inference that appellant stole the property.
Rollerson v. State, 227 S.W.3d 718, 725 (Tex. Crim. App. 2007). The State does
not argue the inference applies here, but urges us to conclude that evidence of
appellant’s possession of the gun supports every element required to prove theft. 5
Appellant argues that even if he possessed the gun, the State was required to

       4
           The indictment identifies the owner, who did not testify during trial.
       5
          The State urges us to adopt an affirmative links test such as the one used in possession
cases to determine whether appellant exercised control of the gun, because “control” is one of
four ways in which possession is defined. See Tex. Penal Code § 1.07(a)(39) (defining
“possession” as “actual care, custody, control, or management”). We decline to do so under the
facts of this case.

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present additional evidence connecting appellant to the theft. We agree.

       Evidence of possession alone is not legally sufficient evidence of theft. See
Sutherlin v. State, 682 S.W.2d 546, 549 (Tex. Crim. App. 1984); see also Marbles
v. State, 874 S.W.2d 225, 227 (Tex. App.—Houston [1st Dist.] 1994, no pet.).
Possession must be accompanied by “other facts connecting the defendant with the
unlawful taking of the property,” such as that the possession of stolen property was
“recent, personal, unexplained, and involved a distinct and conscious assertion of
right to the property.” Marbles, 874 S.W.2d at 227-28; see also Sutherlin, 682
S.W.2d at 549. Moreover, joint control of the premises where stolen property is
stored without further evidence that the defendant asserted a right to the property
or was aware the property was stolen is insufficient evidence of theft. Marbles, 874
S.W.2d at 228 (citing McKnight v. State, 399 S.W.2d 552, 555 (Tex. Crim. App.
1966)). Assuming without deciding that appellant possessed the gun, the State
presented no evidence of when—or under what circumstances—appellant acquired
it.6

       Viewing the evidence in the light most favorable to the verdict, we hold that
the jury’s theft verdict is not supported by legally sufficient evidence. We reverse
appellant’s theft conviction, and render judgment of acquittal as to that conviction.

                                         Conclusion

       Concluding that legally sufficient evidence supports the jury’s verdict
against appellant for possession of methamphetamine, we affirm the trial court’s
judgment as to that conviction. Concluding that legally sufficient evidence does
not support the jury’s verdict against appellant for theft, we reverse the trial court’s

       6
         The State argues that it presented evidence that appellant intended to deprive the owner
of the gun and did so without the owner’s consent. But the only evidence the State relies on to
support these arguments is that the owner reported the gun stolen and appellant possessed it.

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judgment and render judgment of acquittal as to that conviction.




                                      /s/    Martha Hill Jamison
                                             Justice



Panel consists of Justices Busby, Brown, and Jamison.
Publish — TEX. R. APP. P. 47.2(b).




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