

NO.
 07-09-0232-CR
                                                             
                                                   IN
THE COURT OF APPEALS
 
                                       FOR THE
SEVENTH DISTRICT OF TEXAS
 
                                                                 AT
AMARILLO
 
                                                                     PANEL
C
 
                                                              MARCH
31, 2010
                                            ______________________________
 
                                                                 ELI 
CASTRO, 
 
                                                                                                            Appellant
 
                                                                             v.
 
                                                         THE STATE OF TEXAS 
 
                                                                                                            Appellee
                                           _______________________________
 
                       FROM THE 108TH DISTRICT
COURT OF POTTER COUNTY;
 
                         NO. 57,898-E; HON.
DOUGLAS WOODBURN, PRESIDING
                                           _______________________________
 
Memorandum
Opinion
_______________________________
 
Before
QUINN, C.J., and HANCOCK, and PIRTLE, JJ.
            Appellant, Eli Castro, appeals his
conviction for possessing a controlled substance with the intent to
deliver.  His two issues encompass the
legal and factual sufficiency of the evidence. 
We affirm.
Background
            Officer Callahan with the Amarillo
Police Department testified that he had received a tip from a confidential
informant regarding someone who would have approximately three-quarters of an
ounce of methamphetamine on him.  The
person at issue was appellant, and the officer was told by the informant that appellant
would be in a particular area driving a blue “2001 Mercury Grand Marquis.”  The information was relayed to Officer Lavery, who proceeded to the location and found the vehicle
parked by a curb.  Lavery
watched as appellant, who was alone, began to drive away in it.  As he did so, appellant committed two traffic
violations.  This resulted in Officer Lavery initiating a traffic stop.  
            Lavery
discovered that appellant’s driver’s license had expired.  Furthermore, the address on it was
incorrect.  Eventually, appellant
consented to the search of the vehicle. 
By that time, another officer had arrived at the scene and participated
in the search.  Under the driver’s seat
was found a “green coin purse” containing a metal spoon, a set of digital
scales, “two plastic baggies of methamphetamine, one baggy of marijuana, [and] several
other plastic baggies.”  According to
various testifying officers, the plastic bags were of a type “commonly used to
package narcotics” and the amount of methamphetamine found (16.96 grams)
indicated a “dealer amount” as opposed to a quantum for personal use.  
            During trial, the defense called appellant’s
mother to testify.  She stated that the
vehicle and coin purse were hers, that the purse did not contain scales,
baggies, or drugs in it the last time she used it, and that other people (in
addition to appellant) had permission to use the car.  
Issues One and Two – Sufficiency of the
Evidence
            Appellant contends that the evidence
is both legally and factually insufficient to support his conviction.
Purportedly, the State failed to prove that he knowingly possessed or exercised
control over the methamphetamine.  We
overrule the issues.
The
standards by which we review the sufficiency of the evidence are well established.  We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979) and Watson v.
State, 204 S.W.3d 404 (Tex.Crim.App. 2006) for
their explanation.  Next, to convict
appellant of possessing methamphetamine with intent to deliver, the State had
to prove that 1) appellant, 2) intentionally and knowingly, 3) possessed, 4)
methamphetamine of four grams or more but less than 200 grams, and 5) with the
intent to deliver.   Tex.
Health & Safety Code Ann. §
481.112(a) & (d) (Vernon Supp. 2009).   Irrespective of whether the evidence being
proffered to establish these elements was direct or circumstantial, it had to
illustrate, "to the requisite level of confidence, that [appellant’s] . . .
connection with the drug was more than just fortuitous."  Brown v. State, 911 S.W.2d 744, 747 (Tex Crim. App. 1995).   Furthermore, his mere presence at the site
where drugs were found, without more, is insufficient to establish actual care,
custody, or control of the contraband.  See Martin v. State, 753
S.W.2d 384, 387 (Tex. Crim. App. 1988). 
In
addressing this topic, the courts have developed numerous factors deemed useful
in determining whether the accused's link to the
contraband was more than mere fortuity.  Though
not exclusive, they nevertheless include such things as whether 1) the accused
was present when the search was conducted, 2) the contraband was plainly
visible by those present, 3) the drugs were near the defendant, 4) the
defendant was under the influence of the substance found, 5) the defendant
possessed other contraband or drug paraphernalia when arrested, 6) the
defendant made any incriminating statements, 7) the defendant attempted to
flee, 8) the defendant made furtive gestures, 9) the contraband emitted a
recognizable odor at the time, 10) other contraband or drug paraphernalia was
present, 11) the defendant had the right to exclusive or joint possession of
the locale at which the drugs were found, 12) the place where the drugs were
found was enclosed, 13) the accused attempted to conceal the contraband, and
14) the accused was familiar with the type of contraband.  Kyte v. State, 944 S.W.2d 29, 31 (Tex. App.–Texarkana 1997, no pet.);
Hurtado v. State, 881 S.W.2d 738, 743 n.1 (Tex.
App.–Houston [1st
Dist.] 1994, pet. ref'd).  Furthermore, the number of factors
established is not as important as the degree to which they tend to
affirmatively link the defendant to the contraband.  Wallace v. State, 932 S.W.2d 519, 524 (Tex. App.–Tyler 1995, pet. ref'd).  In
other words, if evidence satisfying less than all the aforementioned indicia is
produced, conviction may still be permitted if the evidence establishes, beyond
reasonable doubt, appellant's knowing link to the drugs.
In the case at bar, the jury was told of 1) a tip from a confidential
informant, 2) the informant disclosing that appellant would be possessing the
methamphetamine in question, 3) the informant knowing this because he was
engaged in “some sort of transaction with appellant,” 4) the informant directing
the police to a particular area and car in which appellant could be found, 5)
appellant being discovered in the area and car described, 6) no one else being
in the vehicle, 7) the drugs and drug paraphernalia being found under the seat
on which appellant sat, and 8) the coincidence between the quantum of
methamphetamine described by the informant and the amount found under
appellant.  This data constituted some
evidence from which a rational jury could conclude, beyond reasonable doubt,
that appellant intentionally and knowingly exercised control over the narcotics
and paraphernalia.  
That appellant’s mother owned the car,
gave several people permission to use it, and owned the coin purse
are circumstances that the jury could have weighed in making its decision.  However, they do not negate the substance of
the informant’s information or its accuracy. 
Nor do they suggest that someone other than appellant had placed the
drugs in the purse or car or that appellant did not possess the drugs.  Indeed, appellant’s mother denied having
those items in the purse when she last used it. 
So, we cannot say, given the entire record, that the verdict was either clearly
erroneous or manifestly unjust.  
Concluding that the evidence was and is both
legally and factually sufficient to support the verdict, we affirm the judgment
of the trial court.
 
Brian
Quinn
                                                                        Chief
Justice
 
Do
not publish.
            
 

