                                 NO. 07-08-0447-CR

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                      PANEL B

                                 JUNE 10, 2009
                        ______________________________

                               FILLIP E. MONTOYA,

                                                           Appellant

                                          v.

                              THE STATE OF TEXAS,

                                                           Appellee

                       ________________________________

           FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2007-416,209; HON. CECIL G. PURYEAR, PRESIDING
                      _______________________________

                             Memorandum Opinion
                       _______________________________


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

      Fillip E. Montoya appeals his conviction for possessing a controlled substance

(cocaine) in a drug free zone. He contends that the evidence is legally and factually

insufficient to show he intentionally and knowingly possessed the substance. We affirm

the judgment.
      Law

      The standards by which we review legal and factual sufficiency challenges are

well established and can be found in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,

61 L.Ed.2d 560 (1979), Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006), and

their progeny. Next, to prove the charge against appellant, the State was required to

demonstrate that he knowingly exercised care, custody or control over a controlled

substance. Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005).

      When the accused does not have sole possession of the locale where the drugs

are found, we look to various indicia to see if he is linked to them. Evans v. State, 202

S.W.3d 158, 161-62 (Tex. Crim. App. 2006). Those indicia consist of 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

uttered any incriminating statements, 7) the defendant attempted to flee or undertook

acts indicating a consciousness of guilt, 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 where the drugs were found, 12) the place where the drugs

were found was enclosed, 13) the amount of contraband discovered was large, and 14)

the accused was familiar or had experience with drugs. Valle v. State, 223 S.W.3d 538,

541 (Tex. App.–Amarillo 2006, pet. dism’d). Moreover, the number of indicia present is
not as important as the degree to which they tend to link the defendant to the

contraband. Wallace v. State, 932 S.W.2d 519, 524 (Tex. App.–Tyler 1995, pet. ref’d).

      Application of Law

       Appellant argues that even though he was the sole person in the vehicle at the

time he was stopped, the car had been rented by his father and driven by his various

siblings and nephews at different times. Thus, the State failed to prove that he was the

one who dropped the cocaine rock onto the floor of the vehicle where it was discovered

by a police officer. We disagree.

      The record before us reveals the following: 1) appellant was observed driving

into a motel parking lot that is known as a location for drug dealers at 3:50 a.m., 2)

within a minute or two, he left the parking lot, 3) when the officer activated his

emergency lights, appellant immediately turned his vehicle away from the officer and

headed southbound on a northbound lane of traffic, 4) appellant did not stop though the

officer’s presence was readily noticeable, 5) appellant was the only person in the

vehicle, 6) when the officer opened the driver’s door after receiving consent to search,

he immediately observed a white rock substance which he believed to be cocaine, 7)

the white rock was located on the floor between the driver’s seat and the door frame, 8)

the rock (which happened to be cocaine) was in a location that not only could be seen

by but also was accessible to the vehicle’s driver, 9) persons often buy narcotics such

as the cocaine found here in an unpackaged state, 10) persons who possess narcotics

do not generally leave them lying around, and 11) the rock substance appeared fresh


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because it had not yet begun to crumble or dissolve. Given what could be viewed as

appellant’s attempt to evade detention, the criminal history surrounding the motel from

which appellant left, the time of night, appellant’s length of stay at the motel, and the

other evidence mentioned above, a rational jury could logically infer, beyond a

reasonable doubt, not only that appellant knew the contraband was there but also that

he knowingly exercised care, custody, or control over it.

       Appellant’s father did testify that he had rented the vehicle and that he allowed

his five sons, adult grandchildren, and friends to drive it. However, he did not know who

had driven the vehicle the day appellant was detained in it. While this information

suggests that others had access to and drove the car, without more, this falls short of

being some evidence tending to illustrate that anyone else had actually driven it

immediately before appellant did. Nor can one reasonably infer from it, without more,

that any of the other relatives or friends who had the opportunity to drive the car left the

cocaine in it. Consequently, we do not find this or any other evidence of record of such

persuasiveness as to undermine our confidence in the verdict.

       Because both the verdict and judgment had the support of legally and factually

sufficient evidence, we overrule appellant’s issues and affirm the judgment.



                                                 Brian Quinn
                                                 Chief Justice

Do not publish.



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