                                  NO. 07-04-0522-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                                   AUGUST 8, 2005

                         ______________________________


                       SALVADOR ELISEO PENA, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

             FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                  NO. 48,859-A; HONORABLE HAL MINER, JUDGE

                        _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.


                              MEMORANDUM OPINION


      Pursuant to a plea of not guilty, appellant Salvador Eliseo Pena was convicted by

a jury of possession of a controlled substance, enhanced, and punishment was assessed

at 60 years confinement and a $5,000 fine. Presenting three issues, appellant asserts (1)
the evidence is legally and (2) factually insufficient to support a finding of guilt, and (3) he

was denied effective assistance of counsel. We reverse and render.


       Officer Alonzo, a 25-year veteran of law enforcement, testified that on February 9,

2004, at approximately 9:30 p.m., he was on patrol in Potter County and while on Loop 335,

he clocked a vehicle speeding and initiated a traffic stop. A female without identification

was driving the vehicle and appellant was the passenger. As is customary when someone

has no identification, Alonzo asked the female, who identified herself as Stacy Nugent, to

exit the vehicle and walk behind it to separately question appellant about her identification.

As Stacy walked away from the vehicle, Alonzo noticed some crinkled aluminum foil

containing a plastic bag with a powdery substance in plain view on the console. When

questioned about the substance, appellant responded it was for making cookies and

handed it to Alonzo. Alonzo had appellant exit the vehicle and conducted a pat-down

search. He discovered a substance in appellant’s coat pocket which appellant claimed he

had obtained from his mother to make tortillas.1


       The suspects were handcuffed and placed in the patrol car. After backup arrived,

Alonzo conducted a search of the vehicle. The only other suspicious item found was a

small package containing white powder.             Stacy and appellant were driven to the

department and arrested. The substances were tested the following morning; the contents



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        Officer Alonzo testified he was unable to test the substances at the scene because
the last methamphetamine test kit had been recently used.

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of the plastic bag wrapped in foil tested positive for 60.77 grams of methamphetamine and

the other substances tested negative for controlled substances. Although appellant had

told Alonzo the substances were baking soda and masa, that was not confirmed.


      By his first issue, appellant contends the evidence is legally insufficient to support

a finding of guilt. We agree. In conducting a legal sufficiency review, we examine the

verdict, after viewing the evidence in the light most favorable to the prosecution, to

determine whether 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, 99 S.Ct. 2781,

2789, 61 L.Ed.2d 560, 573 (1979); Burden v. State, 55 S.W.3d 608, 612-13 (Tex.Cr.App.

2001). This standard is the sam e in both direct and circumstantial evidence cases. Burden,

55 S.W.3d at 612-13. In measuring the legal sufficiency of the evidence to sustain a

conviction, we measure the elements of the offense as defined by a hypothetically correct

jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Cr.App. 1997). This is done by

considering all the evidence that was before the jury—whether proper or improper—so that

we can make an assessment from the jury's perspective. Miles v. State, 918 S.W.2d 511,

512 (Tex.Cr.App. 1996). As an appellate court, we may not sit as a thirteenth juror, but

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.Cr.App. 1988).


       Before determining whether the evidence is sufficient to support appellant’s

conviction, we must review the essential elements the State was required to prove.



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Appellant was charged with possession of methamphetamine of four grams or more but

less than 200 grams, a second degree felony. Tex. Health & Safety Code Ann. §

481.115(d) (Vernon 2003). To prove unlawful possession of a controlled substance, the

State was required to prove by direct or circumstantial evidence that the accused (1)

exercised actual care, custody, control, or management over the substance and (2) knew

the matter he possessed was contraband. Tex. Pen. Code Ann. § 1.07(a)(39) (Vernon

2003). See also Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Cr.App. 2005), citing

Joseph v. State, 897 S.W.2d 374, 376 (Tex.Cr.App. 1995). The evidence must establish

the accused’s connection with the controlled substance was more than just fortuitous.

Brown v. State, 911 S.W.2d 744, 747 (Tex.Cr.App. 1995).


       When the accused is not in exclusive possession of the place where contraband is

found or the contraband is not on the accused’s person, additional independent facts and

circumstances must affirmatively link him to the contraband. Deshong v. State, 625 S.W.2d

327, 329 (Tex.Cr.App. 1981). Affirmative links is a shorthand expression of what must be

proven to establish that the accused possessed some kind of contraband knowingly or

intentionally and is used to evaluate the sufficiency of the evidence. Brown, 911 S.W.2d

at 747. The affirmative links rule is a common sense notion designed to protect innocent

bystanders–a parent, child, spouse, roommate, or friend--from conviction based solely

upon his fortuitous proximity to someone else’s contraband. Poindexter, 153 S.W.3d at

406.




                                           4
       Affirmative links 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 narcotics when arrested; (5) whether appellant possessed other contraband

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 the contraband; (10) whether other contraband or drug

paraphernalia was present; (11) whether appellant owned or had the right to possess the

place where the drugs were found; (12) whether the place the drugs were found was

enclosed; (13) the amount of contraband found; (14) whether appellant was the driver of the

automobile in which the contraband was found; and (15) whether appellant possessed a

large amount of cash. See Taylor v. State. 106 S.W.3d 827, 832 (Tex.App.–Dallas 2003,

no pet.). See also Trejo v. State, 766 S.W.2d 381, 384 (Tex.App.-Austin 1989, no pet.). It

is the logical force of these factors, individually or combined, which determines whether the

State's evidence links appellant to the contraband. Trejo, 766 S.W.2d at 385.


       It is undisputed that appellant was neither the owner nor driver of the vehicle; he was

merely a passenger.      Thus, without appellant being in exclusive possession of the

substance, the State was required to present independent facts linking him to it. As the

State points out, the plastic bag wrapped in foil containing methamphetamine was in plain

view on the console and was in close proximity to appellant. However, during cross-




                                              5
examination, Officer Alonzo, the State’s only witness, negated any link between appellant

and the methamphetamine by testifying as follows:


       C      appellant was not under the influence of a controlled substance;
       C      appellant confirmed Stacy’s identity and did not give a conflicting
              statement;
       C      appellant was cooperative and not nervous when questioned;
       C      appellant willingly handed him the plastic bag on the console when
              asked;
       C      nothing suspicious was found on the passenger’s side of the vehicle
              and no other contraband or paraphernalia was found in the vehicle or
              on appellant’s person;
       C      appellant did not attempt to hide the contraband;
       C      there was no attempt to flee nor any furtive gestures;
       C      appellant complied when asked to exit the vehicle and submit to a pat-
              down search; and
       C      the smaller package found during the search of the vehicle and the
              contents found in appellant’s coat pocket both tested negative.


Alonzo was also asked whether any attempt was made to lift fingerprints from the plastic

bags or foil to which he responded, “usually I don’t take fingerprints.”


       More compelling evidence supporting appellant’s lack of knowledge that the plastic

bag on the console contained methamphetamine came from Alonzo. He testified regarding

a reference appellant made to the substances being fake. When cross-examined about

State’s Exhibit 3, which tested negative, Alonzo testified:




                                             6
       Q. Well, even after he was at the office, he still told you when you asked him
       what State’s Exhibit Number 3 was, he still told you it was fake stuff. Is that
       correct?
       A. He told me it was – all of this was fake stuff. That they were going to sell
       it to – and excuse my language to dumb fucks. It’s all fake shit.
       Q. And --
       A. But he had pointed at all of this [referring to the three State Exhibits] stuff.


       On redirect examination, the State attempted to show that appellant intended to

“step on” the methamphetamine, which means mixing in other substances such as sugar,

salt flour, and aspirin to increase profits. Once again, however, Alonzo explained that

appellant was referring to all the items and powder as “fake stuff.” On recross examination,

Alonzo clarified that appellant did not distinguish between fake stuff and methamphetamine,

but referred to all the substances being fake.


       After the State rested, the defense called Stacy to the stand. She chose to remain

silent. The only item introduced by the defense and admitted into evidence was a copy of

a judgment of conviction for Stacy Nugent for possession of a controlled substance that

occurred on February 9, 2004.


       Although the State theorized that appellant’s possession of “fake stuff” was for

diluting controlled substances for increased profits, the evidence demonstrates appellant

believed all the substances in the vehicle and in his coat pocket were “fake stuff” he

intended to sell to “dumb fucks.” The State asserts in its brief that “appellant lied about the

purpose of the substance (it was for making cookies),” and “appellant admitted exercising


                                               7
control over the substance when he stated he intended to sell it to ‘dumb fucks;’” however,

the State does not reference any authority criminalizing lying or possessing “fake stuff.”2


       Alonzo’s testimony negates any knowledge by appellant that the plastic bag found

on the console contained methamphetamine. Further, the State failed to prove appellant

exercised care, custody, control, or management over the methamphetamine or that his

connection to it was more than just fortuitous. Appellant’s status as a passenger in the

vehicle driven by Stacy, coupled with his insistence that all the substances were “fake stuff”

is not sufficient evidence to suggest he had knowledge that the powder in the plastic bag

was methamphetamine.         See generally Roberson v. State, 80 S.W.3d 730, 742

(Tex.App.–Houston [1st Dist.] 2002, pet. ref’d) (reversing and rendering a judgment of

acquittal because the evidence was legally insufficient to provide the required affirmative

link between appellant and the cocaine). Viewing the evidence under Jackson, we find it

does not create the logical force necessary to allow a rational jury to conclude beyond a

reasonable doubt that appellant had knowledge of the methamphetamine. Issue one is

sustained. Our disposition of this issue pretermits consideration of issues two and three.




       2
         We are cognizant that it is an offense to intend to deliver or deliver a simulated
controlled substance. See Tex. Health & Safety Code Ann. § 482.002(a) (Vernon 2003).
See generally Rodriguez v. State, 879 S.W.2d 283 (Tex.App.–Houston [14th Dist.] 1994,
pet. ref’d) (reversing a conviction for delivery of a controlled substance because the
defendant should have been charged with delivery of a simulated controlled substance for
selling flour he expressly represented as cocaine). Appellant was not charged with intent
to deliver, only possession.

                                              8
      Accordingly, the judgment of the trial court is reversed and a judgment of acquittal

is hereby rendered.


                                        Don H. Reavis
                                          Justice

Do not publish.




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