                             NUMBER 13-12-00512-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

JOSE REYNA,                                                              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 Longoria
            Memorandum Opinion by Justice Benavides
       Appellant, Jose Reyna, was convicted for possession of a controlled substance, a

second-degree felony, and sentenced to ten years in the Texas Department of Criminal

Justice—Institutional Division.   See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D),

481.115(a) (West Supp. 2011). In one issue, Reyna argues that there was insufficient
evidence to support that the controlled substance was ever in his “possession.” We

affirm.

                                      I. BACKGROUND

          On February 20, 2012, Officer Robert Walker of the Corpus Christi Police

Department observed a vehicle driving without its headlights on at approximately 3:00

a.m.      Officer Walker flashed his lights and pulled the vehicle over. As he approached

the vehicle, he “observed both passenger and driver reaching towards the center

console area, leaning down, making furtive movements.” Mindful of his safety, Officer

Walker immediately called for a back-up unit because he was not sure if the occupants

were reaching for a weapon.      Officer Walker then approached the driver’s side window

and asked for identification and proof of insurance.   He used his flashlight to scan the

front and backseats for weapons. The driver, Moises Munguia, replied that his driver’s

license had been stolen but provided proof of insurance for the vehicle.     Officer Walker

also requested proof of identify from the passenger, Reyna.    Reyna presented a Texas

identification card.

          Soon, Officer Mario Olivarez, Officer Walker’s back-up, arrived.   At that point,

Officer Walker asked Munguia to step out of the vehicle. Officer Walker scanned the

driver’s side floorboard and seat again, noted nothing of concern, and escorted Munguia

back to his patrol car to run a background check.       During this time, Officer Olivarez

approached the vehicle.      He testified that Reyna, still seated in the passenger seat,

made “an odd movement like he threw something down and brought it back really quick,

to his waist area, his left hand” as soon as Officer Walker and Munguia left the vehicle.

Officer Olivarez, having reached the vehicle, then asked Reyna to open his palm to see if


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he was holding anything.     Reyna was not. Officer Olivarez then pulled Reyna out of

the vehicle, performed a pat down search on him, and escorted Reyna to his patrol car.

When Officer Olivarez returned to the vehicle, he noticed that there was cash on the

passenger seat, and a “baggie with a white powder substance” on the driver’s side

floorboard.   Officer Olivarez called Officer Walker over to the vehicle to report his

findings.   Officer Walker observed that the baggie had not been on the floorboard

earlier, when he removed the driver from the car.

       The officers called a third officer to perform a drug field test.       Once it was

confirmed that the white powder was a controlled substance, the baggie was collected,

the vehicle was impounded, and Munguia and Reyna were both taken into custody.           At

trial, Officer Olivarez testified that the total amount of cash seized from the arrest was a

little over $1,225, comprised of mainly twenty and one-hundred dollar bills.

       During his case-in-chief, Reyna called his sister, Jean Ybarra, to the stand to

testify in his defense. Ybarra stated that the vehicle and drugs were hers, and that she

wanted to take responsibility because “you don’t let nobody else go down for it” if you

personally committed the crime.     The weight of Ybarra’s testimony was limited, though,

because she stated that she was intoxicated on the night in question and “passed out”

early in the evening.   Ybarra also admitted that she had a prior history of felonies,

including theft and possession of controlled substances.

       Reyna was convicted for possession of a controlled substance, a second-degree

felony, and sentenced to ten years in the Texas Department of Criminal

Justice—Institutional Division.   This appeal followed.




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                      II. APPLICABLE LAW AND STANDARD OF REVIEW

       The Jackson v. Virginia legal-sufficiency 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, 895 (Tex. Crim. App. 2010)

(plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). We thus apply

the Jackson standard to our review and inquire whether “considering all of the evidence

in the light most favorable to the verdict, was a jury rationally justified in finding guilt

beyond a reasonable doubt” in this case.     Brooks, 323 S.W.3d at 899.      In our analysis,

we are required to “defer to the jury’s credibility and weight determinations because the

jury is the sole judge of the witnesses’ credibility and the weight given to their testimony.”

Id.; see TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979).

       “Sufficiency of the evidence should be measured by the elements of the offense

as defined by the hypothetically correct jury charge for the case.” Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997) (en banc); Trevino v. State, 228 S.W.3d 729,

736 (Tex. App.—Corpus Christi 2006, pet. ref’d).        Such a charge would be one that

accurately sets out the law, is authorized by the indictment, does not increase the State's

burden of proof or restrict the State's theories of liability, and adequately describes the

particular offense for which the defendant was tried.    Malik, 953 S.W.2d at 240.

       Here, to prove possession of a controlled substance, the State had to prove that

Reyna (1) had actual care, control, or custody of the controlled substance, and (2) was

conscious of his connection with it and knew what it was.        See TEX. HEALTH & SAFETY

CODE ANN. §§ 481.102(3)(D), 481.115(a).


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       “When a defendant is not in exclusive possession of the place where the

controlled substance is found, the State must prove additional independent facts and

circumstances that affirmatively link the defendant to the contraband in such a way that it

can be concluded that the defendant had knowledge of the contraband and exercised

control over it.”   Nhem v. State, 129 S.W.3d 696, 699 (Tex. App.—Houston [1st Dist.]

2004, no pet.). Here, because the drugs were not found in Reyna’s actual possession,

we look to the “affirmative links” doctrine to determine whether there were sufficient

connections linking Reyna to the drugs.    See Lassaint v. State, 79 S.W.3d 736, 740–41

(Tex. App.—Corpus Christi 2002, no pet.).           We consider the following list of

nonexclusive factors in determining whether an accused is linked to the contraband

involved in the case.   Id. The factors include whether:

       1.      The contraband was in plain view or recovered from an enclosed
               place;

       2.      The accused was the owner of the premises or had the right to
               possess the place where the contraband was found, or was the
               owner or driver of the automobile in which the contraband was
               found;

       3.      The accused was found with a large amount of cash;

       4.      The contraband was conveniently accessible to the accused, or
               found on the same side of the vehicle as the accused was sitting;

       5.      The contraband was found in close proximity to the accused;

       6.      A strong residual odor of the contraband was present;

       7.      The accused possessed other contraband when arrested;

       8.      Paraphernalia to use the contraband was in view, or found on the
               accused;

       9.      The physical condition of the accused indicated recent consumption
               of the contraband in question;

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       10.    Conduct by the accused 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.    The occupants of the premises gave conflicting statements about
              relevant matters;

       15.    The accused made incriminating statements connecting himself to
              the contraband;

       16.    The quantity of the contraband;

       17.    The accused was observed in a suspicious area under suspicious
              circumstances;

       18.    The defendant’s familiarity or previous experience with drugs; and

       19.    Any forensic evidence that connects the defendant to the
              contraband or its container.

Id.; see Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006); Olivarez v. State,

171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.). “It is not the

number of affirmative links present that is important, but rather the ‘logical force’ that they

create to prove that the defendant committed the crime.”       Nhem, 129 S.W.3d at 699.

                                        III. ANALYSIS

       Reyna, in his sole issue, argues that there was legally insufficient evidence to

establish that the baggie of cocaine found in the vehicle was in his possession.           He

asserts that there were “no fingerprints on the [baggie], no drugs found on his person,

[and] no drug paraphernalia in the vehicle.” He also complains that he did not own the

vehicle, was not under the influence of narcotics when he was arrested, and that the

drugs were not found where he was sitting.

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         However, the “logical force” of the evidence shows that the jury was rationally

justified in finding that Reyna possessed the baggie of cocaine beyond a reasonable

doubt.    Nhem, 129 S.W.3d at 699; Brooks, 323 S.W.3d at 899. First, Officer Walker

“observed both passenger and driver reaching towards the center console area, leaning

down, making furtive movements.”       See Lassaint, 79 S.W.3d at 740–41 (noting that

“furtive gestures” can be indicative of possession). Second, Reyna was found with a

large amount of cash.         Id.   Third, the cocaine was found under “suspicious

circumstances” because it was visible on the driver’s side floorboard only after the driver,

Munguia, was escorted from the vehicle by Officer Walker.          Id.    A reasonable jury

could conclude that Reyna threw the baggie over to the driver’s side when Munguia left,

especially after Officer Olivarez testified that he saw Reyna’s left hand make “an odd

movement like he threw something down and brought it back really quick, to his waist

area . . . .” Given these independent facts and circumstances, we conclude that there

are enough affirmative links to establish Reyna’s possession of the drugs in question.

Nhem, 129 S.W.3d at 699;

         Reyna, however, urges us to consider his sister’s testimony to prove that the

drugs were in her possession and not his. In this situation, we must defer to the jury

and their apparent decision to disregard all of Ybarra’s testimony.      “The jury is the sole

judge of the witnesses’ credibility and the weight given to their testimony.”       See TEX.

CODE CRIM. PROC. ANN. art. 38.04.       Here, it is possible that the jury elected not to

believe Ybarra because she was trying to save her brother from possible time in prison.

The jury also could have disregarded her testimony because, by her own admission, she

was so intoxicated on the night of the incident that she “passed out.”


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       Considering all of the evidence in the light most favorable to the verdict, we hold

that the jury was rationally justified in finding beyond a reasonable doubt that Reyna

“possessed” the baggie of cocaine in question.            Brooks, 323 S.W.3d at 899.

Accordingly, we overrule his sole issue.

                                     IV. CONCLUSION

       Having overruled appellant’s issue, we affirm the judgment of the trial court.




                                                        __________________________
                                                        GINA M. BENAVIDES,
                                                        Justice

Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
18th day of April, 2013.




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