                           NUMBER 13-10-00604-CR

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


MARITA MESA,                                                             Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 28th District Court
                        of Nueces County, Texas.


                            MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Benavides and Vela
              Memorandum Opinion by Chief Justice Valdez

      Appellant, Marita Mesa, appeals from a conviction of unlawful possession of

more than one gram but less than four grams of cocaine—a third–degree felony

offense. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a) (West 2010); see also id.

§ 481.102 (West 2010). Mesa was sentenced to two years’ confinement. By one issue,

Mesa contends that the evidence was insufficient to support her conviction.

Specifically, Mesa argues that the evidence was insufficient to show that she exercised

control, custody, management, or care over the cocaine. We affirm.
                                        I.       BACKGROUND

        According to testimony at trial, Michael Lee Morin, an officer with the Robstown

Police Department, stopped Mesa on February 10, 2010, because he observed her

commit a traffic violation. Officer Morin testified that the driver’s side brake light on the

black Mustang Mesa was driving was not functioning. Officer Morin stated that although

the sun was out, he could not see inside the vehicle because of the tinted windows.

Because the driver’s side window was not operational, the door was opened during the

stop. Officer Morin testified that he immediately smelled the ―strong odor‖ of ―freshly

burnt‖ marihuana emanating from inside Mesa’s vehicle. According to Officer Morin,

Mesa denied smoking marihuana and blamed the odor on her brother.                            Mesa told

Officer Morin that she did not possess a driver’s license, but she properly identified

herself.

        Officer Morin asked Mesa to exit the vehicle and searched the vehicle. Officer

Morin testified that he observed ―clear baggies in the back seat‖ in ―plain sight.‖1 Officer

Morin described the baggies in the back seat as clear sandwich baggies with some of

them having ―cut corners‖ and stated that the baggies were ―all over the place.‖

According to Officer Morin, he became suspicious because ―well, that usually indicates

that because of the smell of the burnt mari[h]uana, usually a lot of times people carry

the mari[h]uana in a clear baggie.            So right away I assumed there might be more

mari[h]uana in the vehicle.‖ Officer Morin explained that in cases where clear plastic

baggies with ―cut corners‖ are found ―that a lot of times they will use—they will put the

mari[h]uana in the corners, seal it off, cut them off, and sell them that way.‖ When

asked whether cocaine is packaged that way, Officer Morin replied, ―Definitely.‖
        1
          On cross-examination, Officer Morin clarified that the baggies were on the floor of the backseat
of the vehicle behind both the driver’s and passenger’s seats.


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        Officer Morin also saw ―a clear little plastic baggie sticking out of the center

console, slash arm rest, I guess.‖2 Officer Morin clarified that the center console was

located ―in between the driver and the passenger seat‖ and that it had a ―lid that closes.‖

Officer Morin continued searching the vehicle and opened the center console. Officer

Morin stated, ―As soon as I opened [the console], I found like, I think it was five baggies

of [a] white powder[y] substance, believed to be cocaine,‖ which were all ―single

packaged.‖ When asked if the substance was packaged in a manner that ―could be

easily sold on the streets?‖, Officer Morin responded, ―Yes.‖ Officer Morin believed,

based on his experience, that each of the baggies of cocaine would be sold for twenty

dollars.3

        According to Officer Morin, Mesa told him that she was not aware of the baggies

of cocaine and ―put the blame on her brother.‖ Officer Morin testified that Mesa said

that her brother had recently used the vehicle, but Mesa did not state that anybody else

had used the vehicle. Officer Morin said, ―I just asked her, you know, how did it get

there. And I’m trying to recall, I believe she said that they had been moving prior to that,

and maybe her brother—you know, he had used the car and moved as well. So, you

know, if it belonged to anybody, it belonged to the brother.‖

        On cross-examination, Officer Morin stated that: (1) Mesa did not attempt to

evade him; (2) Mesa did not provide a fictitious name; (3) Mesa did not appear to be

under the influence of any substance; (4) the area where he stopped Mesa was not a

suspicious area; (5) he did not observe Mesa make any furtive gestures; and (5) there

        2
           On re-direct examination, the State asked if the console was within the reach of the person
driving the vehicle, and Officer Morin replied, ―Yes.‖
        3
         Officer Morin later testified that a test revealed that the substance was in fact cocaine. Also,
Mesa stipulated in State’s exhibit 3, admitted into evidence, that the substance that was found in the
vehicle was cocaine with a net weight of 1.31 grams.


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was nothing unusual about Mesa’s conduct or appearance. Officer Morin testified that

he did not find any weapons, razors, crack pipes, or rolling papers in the vehicle, and

Mesa did not have a large amount of cash.

       Mesa’s mother, Margarita Mesa, testified that on the day of Mesa’s arrest, Mesa

was living with Margarita and they were in the process of moving to a new residence.

Margarita owned the Mustang Mesa was driving on the day of her arrest. According to

Margarita, her other daughter, Maggie May De Los Santos, also used the Mustang to go

to the store. However, Margarita testified that De Los Santos did not use the Mustang

that day. Margarita stated that her husband could not use the vehicle because he is in

a wheelchair and that her son, ―Raul [Mesa] III,‖ was not using the vehicle during that

time period.4 According to Margarita, Raul III was not at her house on the day that

Mesa was arrested.

       Margarita testified that she called Raul III asking if he could arrange for some

help moving to her new address. According to Margarita, Raul III told her he was

sending some men on the ―B bus‖ to help with the move and that Margarita needed to

pick the men up at the HEB in Robstown. Margarita explained that she hired three men

from ―the ministry‖ in Corpus Christi, Texas.5 The men rode the bus to Robstown, and

then she picked them up at an HEB. Margarita stated that she did not know the men;

however, she claimed that she loaned the Mustang to the men so that they could assist

with the move. Margarita used the vehicle a few times that day, and she did not smell

marihuana in it. Margarita testified that she did not know about the cocaine found in the


       4
        Margarita stated that she had two sons—Mark Mesa and ―Raul [Mesa] III.‖ However, Mark is
deceased.
       5
         Margarita testified that Raul III lived in Corpus at the time.   Margarita, Mesa, Margarita’s
husband, and ―Little Rudy,‖ Mesa’s son, lived together in Robstown.


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vehicle and that the baggies of cocaine did not belong to her. On cross-examination,

Margarita claimed that she observed the men who were helping her move make

frequent trips to the bathroom in pairs.

       On re-direct examination, Margarita stated that only one of the men drove the

vehicle, but she did not ask him if he had a driver’s license. Margarita acknowledged

that she had been ―charged with her husband on a drug case.‖ The charges against

Margarita were dismissed; however, her husband was convicted of possession of

heroin. Margarita acknowledged that she was shown a document showing that her son,

Raul III, had also been convicted of possession of marihuana; however, Margarita

claimed that she was unaware of Raul III’s conviction.

       The trial court found Mesa guilty of unlawful possession of more than one gram

but less than four grams of cocaine.               See TEX. HEALTH & SAFETY CODE ANN. §

481.115(a).      The trial court sentenced Mesa to two years probation.                  This appeal

followed.

                       II.     STANDARD OF REVIEW AND APPLICABLE LAW

       The court of criminal appeals has held that there is ―no meaningful distinction

between the Jackson v. Virginia legal sufficiency standard and the Clewis factual-

sufficiency standard‖ and that the Jackson standard ―is the only standard that a

reviewing court should apply in determining whether the evidence is sufficient to support

each element of a criminal offense that the State is required to prove beyond a

reasonable doubt.‖ Brooks v. State, 323 S.W.3d 893, 902–03, 912 (Tex. Crim. App.

2010) (plurality op.). Accordingly, we review Mesa’s claims of evidentiary sufficiency

under ―a rigorous and proper application‖ of the Jackson standard of review.6 Id. at


       6
           Mesa argues in her brief that the evidence was factually insufficient to support the verdict;

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906–07, 912. Moreover, we do not refer separately to legal or factual sufficiency and

will only analyze Mesa’s issues under the Jackson standard. See id. at 895.

       Under the Jackson standard, ―the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, 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 (1979); see Brooks, 323 S.W.3d at 898–99 (explaining that

in the Jackson standard we consider ―all of the evidence in the light most favorable to

the verdict,‖ and determine whether the jury was rationally justified in finding guilt

beyond a reasonable doubt). ―[T]he fact[-]finder's role as weigher of the evidence is

preserved through a legal conclusion that upon judicial review all of the evidence is to

be considered in the light most favorable to the prosecution.‖ Jackson, 443 U.S. at 319

(emphasis in original); see also TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979)

(―The jury, in all cases is the exclusive judge of facts proved and the weight to be given

to the testimony . . . .‖); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000)

(―The jury is the exclusive judge of the credibility of witnesses and of the weight to be

given testimony, and it is also the exclusive province of the jury to reconcile conflicts in

the evidence.‖).

       We measure the legal sufficiency of the evidence by the elements of the offense

as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,

314 (Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)).         A person commits the offense of possession of a

controlled substance if the person knowingly or intentionally possesses cocaine. TEX.


however, due to the court of criminal appeals disposition in Brooks, we need not conduct a factual
sufficiency review of the evidence. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)
(plurality op.).


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HEALTH & SAFETY CODE ANN. § 481.115(a); see id. § 481.102.          ―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.‖ Poindexter v. State, 153 S.W.3d 402, 405

(Tex. Crim. App. 2005); see TEX. HEALTH & SAFETY CODE ANN. § 481.115(a).

      However, ―[w]hen an accused is not in exclusive possession and control of the

place where contraband is found, it cannot be concluded he had knowledge or control

over the contraband unless there are additional independent facts and circumstances

that affirmatively link him to the contraband.‖ Lassaint v. State, 79 S.W.3d 736, 740

(Tex. App.—Corpus Christi 2002, no pet.).       A link between the accused and the

contraband may be established by the following nonexclusive list of factors: (1) the

contraband was in plain view; (2) the accused owned the premises or had the right to

possess the place where the contraband was found; (3) the accused had a large

amount of cash when found; (4) the contraband was conveniently accessible to the

accused; (5) the accused’s close proximity to the contraband; (6) there was a strong

residual odor of the contraband; (7) the accused possessed other contraband when

arrested; (8) paraphernalia to use the contraband was present on the accused or in

plain view; (9) the accused was under the influence of narcotics when arrested; (10) the

accused’s conduct indicated a consciousness of guilt; (11) the accused attempted to

escape or flee; (12) the accused made furtive gestures; (13) the accused had a special

connection to the contraband; (14) conflicting statements about relevant matters were

made by the occupants; (15) the accused made incriminating statements connecting

himself to the contraband; (16) the quantity of the contraband; and (17) the accused

was observed in a suspicious area under suspicious circumstances. Lopez v. State,


                                           7
267 S.W.3d 85, 92 (Tex. App.—Corpus Christi 2008, no pet.). The sufficiency of links is

not based on the number of factors established, but on the logical force of all the

circumstantial and direct evidence. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim.

App. 2006); Lopez, 267 S.W.3d at 92; Lassaint, 79 S.W.3d at 741.

      Other factors linking an accused to the contraband in the context of an

automobile stop include that the accused was the driver of the vehicle in which the

contraband was found, and that the contraband was found on the same side of the car

seat as the accused was sitting. Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim.

App. 1981) (finding that a factor linking the accused to the contraband included that the

accused was the driver of the vehicle).                  Furthermore, ―[c]onvenient access to the

contraband is an accepted factor that may affirmatively link an accused to contraband

found in a vehicle.‖ Robinson v. State, 174 S.W.3d 320, 326 (Tex. App.—Houston [1st

Dist.] 2005, pet. ref’d) (citing Deshong, 625 S.W.2d at 329; Hawkins v. State, 89 S.W.3d

674, 677 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d)). Contraband is conveniently

accessible to an accused when it is ―within the close vicinity of the accused and easily

accessible while in the vehicle so as to suggest that the accused had knowledge of the

contraband and exercised control over it.‖ Id. (citing Rhyne v. State, 620 S.W.2d 599,

601 (Tex. Crim. App. 1981); Deshong, 625 S.W.2d at 329).

                                          III.     DISCUSSION

      By her only issue, Mesa contends that the evidence is insufficient to support her

conviction.7 In this case, Mesa was the sole occupant of the vehicle and in exclusive

possession of it when the cocaine was found; this linked Mesa to the cocaine in a

significant manner. See Hyett v. State, 58 S.W.3d 826, 831–32 (Tex. App.—Houston

      7
          Mesa does not challenge the initial stop and the search of her vehicle.


                                                     8
[14th Dist.] 2001, pet. ref’d) (concluding that the evidence was sufficient to show

knowing possession where defendant was sole occupant of the car that he controlled

but did not own and cocaine was found in plain view and in close proximity to

defendant); see also Smith v. State, No. 01-10-00400-CR, 2011 Tex. App. LEXIS 3282,

at *11–12 (Tex. App.—Houston [1st Dist.] Feb. 24, 2011, no pet.) (finding fact that the

accused was the sole occupant of the vehicle where contraband was found as a

significant link to contraband); Harmond v. State, 960 S.W.2d 404, 406 (Tex. App.—

Houston [1st Dist.] 1998, no pet.) (holding evidence was legally sufficient to support

defendant’s conviction for possession of cocaine when evidence showed that defendant

was sole occupant and driver of the car in which a makeshift crack pipe containing

cocaine was found in plain view on floorboard between front bucket seats). Mesa was

the driver of the vehicle. See Deshong, 625 S.W.2d at 329. Mesa was at the location

when Officer Morin conducted the search and found the cocaine. The contraband was

found in close proximity to Mesa, and the contraband was conveniently accessible to

her. See Lopez, 267 S.W.3d at 92; Robinson, 174 S.W.3d at 326. In plain view, there

were plastic baggies cut in a manner used for packaging drugs strewn throughout the

floor of the backseat of the vehicle. See Lopez, 267 S.W.3d at 92. A plastic baggie

was visibly sticking out of the driver’s side console where Officer Morin found the

cocaine. See id. Mesa claimed that the cocaine belonged to her brother; however,

Margarita testified that Mesa’s brother had not driven the vehicle or been to the home

on that date. Based on this evidence, the fact-finder may have believed that Mesa lied

to Officer Morin thus, indicating knowledge of the illegal nature of the substance found

in the vehicle and a clear indication of Mesa’s consciousness of guilt. See id.




                                            9
       Viewing the evidence in the light most favorable to the prosecution, we conclude

that a rational fact-finder could have found beyond a reasonable doubt that Mesa

exercised actual care, custody, control, or management of the cocaine, and that she

was conscious of her connection with it and knew what it was. See Jackson, 443 U.S.

at 319; see also Brooks, 323 S.W.3d at 898–99. Although Mesa claims that there are

many factors missing, which would have linked her to the contraband, those missing

factors do not abrogate the logical force of the affirmative links which are present in this

case. See Evans, 202 S.W.3d at 162; Lopez, 267 S.W.3d at 92; Lassaint, 79 S.W.3d at

741.   Accordingly, we conclude that the evidence was legally sufficient to support

Mesa’s conviction. We overrule Mesa’s sole issue.

                                    IV.    CONCLUSION

       We affirm the trial court’s judgment.

                                                        _____________________
                                                        ROGELIO VALDEZ
                                                        Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
20th day of October, 2011.




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