
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-04-00267-CR


Armando Martinez, Appellant

v.

The State of Texas, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
NO. 2-03-0813, HONORABLE BRENDA P. KENNEDY, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N


	The trial court convicted Armando Martinez of possession of less than one gram of
cocaine.  Tex. Health & Safety Code Ann. § 481.115(a) (West 2003).  Martinez received a four-year
suspended sentence with probation.  He now challenges the legal and factual sufficiency of the
evidence to sustain his conviction.  Because the evidence is both legally and factually sufficient, we
overrule his points of error and affirm the judgment of conviction. 

BACKGROUND

	One night while assigned to the DWI task force of the Austin Police Department,
Officer Andrew Motz was dispatched to respond to a disturbance involving a gun.  He followed a
vehicle matching the dispatcher's description until he observed that it was being driven recklessly,
at which point he stopped the vehicle.
	Martinez was driving the vehicle and there were two passengers.  Since the original
report had been of a disturbance involving a gun, Motz ordered Martinez and the passengers to exit
the vehicle and lie down on the ground.  Once back up arrived, the three men were handcuffed and
the vehicle was searched.  The police found numerous containers of alcohol and a rifle.
	Martinez smelled of alcohol, so Motz asked him to perform a series of field sobriety
tests to determine whether he had been driving while intoxicated.  Because Martinez struggled to
maintain his balance during the "walk and turn" test, Motz informed him that he was allowed to
remove his boots.  After Martinez removed his boots, he stepped forward with his left foot.  When
he moved his foot there was a small bag of white powder left where his foot had been prior to taking
his first step.  Motz testified that the sidewalk was well lit and had been clear of debris before
Martinez removed his boots.  Motz also testified that the other two passengers of the car were sitting
five to ten feet away and were still handcuffed.  Motz placed Martinez under arrest for DWI and
possession of a controlled substance.
	Martinez pleaded not guilty to possession of less than one gram of a controlled
substance.  He waived his right to a jury trial.  The defense stipulated to the fact that the bag
contained cocaine.  The court found Martinez guilty and assessed punishment at two years in a state
jail.  His sentence was suspended, and he received four years of probation including 150 hours of
community service.  Martinez now challenges the legal and factual sufficiency of the evidence.

DISCUSSION

Legal Sufficiency
 When reviewing the legal sufficiency of the evidence, we look at all the evidence in
the light most favorable to the verdict to determine whether a rational finder of fact could have found
the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307,
318-19 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995).
	It is an offense to knowingly or intentionally manufacture, deliver, or possess cocaine. 
Tex. Health & Safety Code Ann. § 481.115(a) (West 2003).  To establish that the evidence is
sufficient to support a conviction for possession of a controlled substance, the State must prove that:
(1) the defendant exercised actual care, control, and management over the contraband, and (2) he
knew that the object was contraband.  King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995);
Hall v. State, 86 S.W.3d 235, 240 (Tex. App.--Austin 2002, pet. ref'd).
	Possession means more than being where the action is; it requires dominion and
control over the contraband allegedly possessed.  Poindexter v. State, 115 S.W.3d 295, 298 (Tex. 
App.--Corpus Christi 2003, pet. filed).  When the contraband is not in the exclusive possession of
the accused, additional facts and circumstances must link him to it.  Id. at 298-299.  However, the
State is no longer required to disprove every "outstanding reasonable hypothesis" except for the
defendant's guilt.  Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995).  The State's burden
is to show that the defendant's connection with the contraband was more than merely fortuitous.  Id. 
at 747.
	Martinez contends that he was not in possession of the bag of cocaine because there
is legally insufficient evidence affirmatively linking him to the contraband.  He analogizes his case
to Tatum v. State, 836 S.W.2d 323, 325 (Tex. App.--Austin 1992, pet. ref'd), where the conviction
was reversed because "the State presented no evidence linking Tatum to the cocaine itself other than
his proximity to a syringe when he was arrested."  However, in that case the defendant was arrested
as he fled from an abandoned house known to be a "shooting gallery" for heroin users.  Id. at 325-26. 
Stray syringes were not unusual and the syringe in question was a full six feet away from the
defendant.  Id. at 324.  Furthermore, Tatum was decided prior to Geesa v. State in which the court
of criminal appeals abandoned the "outstanding reasonable hypothesis" standard.  820 S.W.2d 154,
160-61 (Tex. Crim. App. 1991).  Therefore, in Tatum this Court was obliged to reverse when the
State "failed to offer evidence disproving every other reasonable hypothesis except that of the guilt
of the accused, and proof amounting only to a strong suspicion or mere probability is insufficient." 
Id. at 327 (quoting Waldon v. State, 579 S.W.2d 499, 502 (Tex. Crim. App. 1979)).
	This case is distinguishable because the cocaine was not discovered in an area known
for drug traffic and use.  Martinez argues that because his passengers were also sitting on the
sidewalk near where the cocaine was discovered, he was not sufficiently linked to the contraband;
however, the passengers were several feet away and handcuffed.  According to Motz, the sidewalk
was clear during the field sobriety tests before Martinez removed his boots.  The cocaine appeared
in the exact spot where his foot had been before taking his first step after removing his boots.
	By offering evidence that suggested the cocaine had been stored in Martinez's boots,
the State established the requisite link between Martinez and the bag of cocaine.  Because we find
that viewing the evidence in the light most favorable to the verdict, 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, 318-19 (1979), we overrule Martinez's first point of error.

Factual Sufficiency
	In reviewing a claim for factual sufficiency of the evidence, we must view the
evidence in a neutral light, but we can only set aside the verdict only if the proof of guilt is too weak
or the contrary evidence is too strong to support a finding of guilt beyond a reasonable doubt. 
Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004).
	Martinez argues that the evidence is factually insufficient to sustain his conviction
because Motz did not see him holding or disposing of the cocaine.  However, there are other ways
to establish links between a defendant accused of possessing a controlled substance and the
contraband in question.  If Martinez stored the cocaine in his boot then Motz would not have seen
Martinez holding it.  Although Motz did not see Martinez deliberately dispose of the cocaine it did
appear from under his foot after he removed his boots.  Whether he forgot that it was there or
intended to leave it in the boot while he attempted the field sobriety test barefoot is immaterial. 
While Motz did not see Martinez holding or disposing of the cocaine, the State offered other
sufficient evidence to link him to it.  Because the verdict is not "so contrary to the overwhelming
weight of the evidence as to be clearly wrong and unjust," Clewis, 820 S.W.2d at 160-61 (Tex. 
Crim. App. 1991), we overrule Martinez's second point of error.

CONCLUSION

	Having found the evidence both legally and factually sufficient, we affirm the
judgment of conviction.


 
					Bea Ann Smith, Justice
Before Chief Justice Law, Justices B. A. Smith and Puryear
Affirmed
Filed:   November 18, 2004
Do Not Publish
