Opinion issued December 20, 2012




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                              NO. 01-11-00904-CR
                           ———————————
                        JOE H. MARTINEZ, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 263rd District Court
                           Harris County, Texas
                       Trial Court Case No. 1289655



                         MEMORANDUM OPINION

      Appellant Joe H. Martinez was charged with possession of a controlled

substance. Following a bench trial, the court found appellant guilty and sentenced

him to 180 days’ confinement, and placed him on community supervision for two
years. In appellant’s sole issue on appeal, he contends the evidence is legally

insufficient to establish that he possessed a controlled substance. We affirm.

                                  BACKGROUND

      On December 21, 2010, Houston Police Department Officers H. Trant and

T. Parker conducted surveillance on a house known for narcotics trafficking and

gang activity. Both officers surveilled the house by driving past it in separate

unmarked patrol cars. During their surveillance, Officer Parker saw appellant, who

was driving a blue Buick, park at the house. He then observed appellant approach

the house, knock on the door, and talk to the person who answered the door.

Parker testified that he did not sit and watch appellant; rather, he drove by and

estimated that appellant spent several minutes at the house. When Parker saw

appellant approach the house, he radioed Officer Trant and gave him the

description of appellant and his vehicle. Upon notification, Trant drove to the

house and saw appellant get into his car and leave the house. Trant followed

appellant and saw him run a stop sign. Parker was parked at a nearby intersection

and also observed appellant roll through the stop sign. Parker then radioed a

marked patrol unit, Officers Martinez and Valle. He notified them about

appellant’s violation, and the unit pulled appellant over. Both Trant and Parker

continued to follow appellant until he was pulled over by the other officers. To

protect their identities, they continued to drive rather than join the stop.

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      Officers Valle and Martinez pulled over appellant. Valle testified that when

he approached the driver, he smelled alcohol coming from the car. He also saw a

cup that appeared to have beer-colored liquid. Valle asked appellant whether he

had been drinking, and appellant responded that he drank a “little bit.” Valle

testified that appellant seemed nervous and had slurred speech.        Valle asked

appellant if he could “check his car,” and appellant responded “sure.” While Valle

brought appellant back to the patrol car to check his information, Martinez

inspected the car. He searched the center console and found two small rocks of

crack cocaine, later confirmed to weigh 0.1086 grams. Both officers testified that

during the traffic stop, they saw appellant reach towards the center console area of

his car. Valle testified that he saw appellant move towards center console as Valle

was walking towards the vehicle. Martinez testified that while he was sitting in the

passenger side of the patrol car, which was parked behind appellant’s car, he saw

appellant “placing something or trying to hide something in the center console.”

      Appellant, testifying in his own behalf at trial, said that he was driving

around that day to find customers who needed lawn services. Appellant testified

that on the day of his arrest, he helped a person collect scrap metal to get it

recycled. According to appellant, he stopped by the house that the officers were

observing because he had previously worked on their yard. He testified that he

went to the door to see if they needed lawn services. However, the person who

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answered the door told him that the person he was looking for was not there, so he

left. He denied running the stop sign. Appellant agreed that he admitted to the

officers that he had been drinking. However, he denied that either officer asked for

permission to inspect his vehicle and also denied giving them permission to search

his vehicle. He also added that he was placed in the patrol car by Officer Valle.

While he was in the vehicle, appellant testified that he could see very little of what

the officer was searching for in his car because the trunk obscured his view.

       During trial, appellant’s counsel presented photos of the car taken after it

was towed by the police. The photos showed the trunk filled with garden items

such as a weed eater and a lawn mower. The defense argued that the trunk was

raised too high for any person to see into the car from behind. Both Officer

Martinez and Valle testified that while they saw gardening equipment in the back

of the car, they could not recall what type of equipment and could not confirm

whether they saw a lawn mower in the trunk. Both officers also testified that while

the trunk was partially open, it did not obscure their view of the center console area

of the car.

       According to appellant, he was unaware of any cocaine in his vehicle. He

testified that it had been two years since he cleaned his vehicle and there have been

several people who had been in his car in the past month.




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                     SUFFICIENCY OF THE EVIDENCE

      In his sole point of error, appellant argues that the evidence is legally

insufficient to support his conviction for possession of a controlled substance.

A.    Standard of Review

      An appellate court reviews legal and factual sufficiency challenges using the

same standard of review. See Griego v. State, 337 S.W.3d 902, 902 (Tex. Crim.

App. 2011). “Under this standard, evidence is insufficient to support a conviction

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

factfinder could not have rationally found that each essential element of the

charged offense was proven beyond a reasonable doubt.” Gonzalez v. State, 337

S.W.3d 473, 478 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)). Evidence is

insufficient under this standard in four circumstances: (1) the record contains no

evidence probative of an element of the offense; (2) the record contains a mere

“modicum” of evidence probative of an element of the offense; (3) the evidence

conclusively establishes a reasonable doubt; and (4) the acts alleged do not

constitute the criminal offense charged. Gonzalez, 337 S.W.3d at 479; see Jackson,

443 U.S. at 314, 318, 320, 99 S. Ct. at 2786, 2789. If an appellate court finds the

evidence insufficient under this standard, it must reverse the judgment and enter an

order of acquittal. Gonzalez, 337 S.W.3d at 479.


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      An appellate court “determine[s] whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence

viewed in the light most favorable to the verdict.” Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17

(Tex. Crim. App. 2007)). When the record supports conflicting inferences, an

appellate court presumes that the factfinder resolved the conflicts in favor of the

verdict and defers to that resolution. Id. (citing Jackson, 443 U.S. at 326, 99 S. Ct.

at 2793). “An appellate court likewise defers to the factfinder’s evaluation of the

credibility of the evidence and weight to give the evidence.” Gonzalez, 337 S.W.3d

at 479. In viewing the record, a court treats direct and circumstantial evidence

equally: circumstantial evidence can be as probative as direct evidence, and

“circumstantial evidence alone can be sufficient to establish guilt.” Clayton, 235

S.W.3d at 778 (quoting Hooper, 214 S.W.3d at 13).

B.    Applicable Law

      To prove unlawful 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 matter possessed was contraband.” Evans

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

SAFETY CODE ANN. § 481.002(38) (Vernon 2010) (“‘Possession’ means actual

care, custody, control, or management.”).


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      Possession need not be exclusive. See Evans, 202 S.W.3d at 162 n.12. When

the accused is not in exclusive possession of the place where the controlled

substance is found, then additional, independent facts and circumstances must

affirmatively link the accused to the substance in such a way that it can reasonably

be concluded that the accused possessed the substance and had knowledge of it.

Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005); Kibble v. State,

340 S.W.3d 14, 18 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). In other

words, whether direct or circumstantial, the evidence “must establish, to the

requisite level of confidence, that the accused’s connection with the [contraband]

was more than just fortuitous.” Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim.

App. 1995).

      Several factors may help to establish an affirmative link between the accused

and the contraband, including (1) the defendant’s presence when a search is

conducted; (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

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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; rather, it is the cumulative

logical force the factors have in proving possession that we must consider. See

James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet.

ref’d). Additionally, absence of some of the factors is not evidence of innocence

that must be weighed against the factors that are present. Id. Rather, they are used

to assess the sufficiency of the evidence linking the defendant to knowing

possession of contraband. See, e.g., Roberson v. State, 80 S.W.3d 730, 735–36

(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d); Allen v. State, 249 S.W.3d 680,

694 n.13 (Tex. App.—Austin 2008, no pet.) (explaining that presence or absence

of factors “aid appellate courts in determining the legal sufficiency of the evidence

in knowing possession of contraband cases”).

C.    Parties’ Arguments

      Appellant contends that the evidence is legally insufficient to support his

conviction for possession of a controlled substance. First, he argues that there is

insufficient evidence to link him to the “crack house” because there was “no


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testimony that any kind of transaction was observed at the house,” and a quantity

of “two small rocks” of crack cocaine is too little to indicate that a “deal” occurred.

Appellant also contends that (1) there was no evidence that he had a criminal

record; (2) there was lack of other contraband in the vehicle; (3) there was no

evidence of any odor of crack cocaine; (4) the officers could not see any furtive

gestures by appellant because the trunk obscured their view; and (5) appellant

indicated a clear conscience when he allowed them to inspect the car.

      The State responds that appellant’s financial situation would explain the

small amount of drugs. Second, it argues that “prior criminal history is not a

recognized relevant factor in determining an individual’s guilt.” Third, appellant’s

“consent to search does not automatically bond with innocent behavior.” It argues

that appellant “could have believed that the cocaine was sufficiently hidden inside

his messy vehicle” or appellant “could have felt a compulsion to consent.”

      In addition, the State asserts that it met its burden of demonstrating that

appellant knowingly exercised control, management, or care over the crack

cocaine. It argues that (1) “appellant was in possession and control of the vehicle

and the sole occupant of the vehicle when he was stopped by the police;” (2)

appellant’s “nervous behavior during the traffic stop indicated a consciousness of

guilt;” (3) appellant “reached his hands toward the center console when the officers




                                          9
activated their lights;” and (4) “the crack cocaine rocks were recovered from the

area where officers observed appellant reaching during the traffic stop.”

D.    Analysis

      We agree with the State that the evidence is sufficient to demonstrate that

appellant possessed cocaine.

      First, appellant was the sole occupant of the vehicle in which the cocaine

was found. See Hyett v. State, 58 S.W.3d 826, 830–31 (Tex. App.—Houston [14th

Dist.] 2001, pet. ref’d) (appellant’s sole occupancy of vehicle in which cocaine was

found affirmatively linked him to cocaine). Second, appellant had convenient

access to the center console where the drugs were discovered. See Robinson v.

State, 174 S.W.3d 320, 326 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d)

(recognizing that the term “conveniently accessible” means that contraband is

within close vicinity of accused and easily accessible while in vehicle so as to

suggest accused had knowledge of contraband and exercised control over it). Both

officers testified that they saw appellant, while sitting in the driver’s seat, reach for

the center console shortly after they pulled him over. See Valentine v. State, 01-06-

00522-CR, 2007 WL 3246384, at *3 (Tex. App.—Houston [1st Dist.] Nov. 1,

2007, no pet.) (mem. op., not designated for publication) (affirming possession

conviction after concluding that defendant had easy access to the center console

where crack cocaine was found because the officer, sitting in the same seat, was


                                           10
able to reach that location); Coonradt v. State, 846 S.W.2d 874, 876 (Tex. App.—

Houston [14th Dist.] 1992, pet. ref’d) (affirming possession conviction where

defendant was driver of vehicle, crack cocaine pipe was found lying in plain view

between passenger and driver, and duffel bag containing marihuana and cocaine

was in car); Robinson, 174 S.W.3d at 326 (affirming possession conviction where

cocaine was discovered in a factory compartment located in the back wall of the

truck, which could be seen and accessed only by folding down the truck’s back

seat).

         Furthermore, furtive gestures toward the center console could also indicate a

consciousness of guilt that affirmatively links appellant to the cocaine. Appellant

contends that the officers could not have seen appellant reach for the center

console because his trunk obstructed the view of the back window. The officers,

however, testified that lawn equipment in the trunk did not obstruct their view of

the back window.         Ultimately, appellant’s testimony merely contradicts the

officers’ testimony and is a conflict for the fact finder to resolve. See Wyatt v.

State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000).

         Appellant also argues that the amount of crack cocaine was too small to

indicate that he bought it from the drug house. The amount of contraband can be,

but is not always, a factor in determining if an affirmative link exists. See Allen,

249 S.W.3d at 698–99 (noting that “[t]he question is whether the amount of

                                           11
cocaine discovered should be factored into the determination of any link between

appellant and the cocaine under the circumstances,” and concluding that “the factor

of a large quantity of contraband [was] of little or no value in linking appellant to

the cocaine” under the circumstances presented); Roberson, 80 S.W.3d at 740

(concluding that 24 grams of cocaine found in vehicle near seat where passenger

was sitting, while “not an insignificant amount,” was insufficient to link driver to

possession of that cocaine, in part because “it was still small enough to be

concealed on someone’s person”). Quantity aside, sufficient links allowed the trial

court as fact-finder to conclude that appellant possessed the cocaine.

      We overrule appellant’s sole point of error.

                                  CONCLUSION

      We affirm the judgment of the trial court.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish.

TEX. R. APP. P. 47.2(b).



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