Opinion issued June 18, 2013.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-12-00695-CR
                          ———————————
                     JOSHUA RODRIGUEZ, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 248th District Court
                          Harris County, Texas
                      Trial Court Case No. 1317337



                        MEMORANDUM OPINION

      A Harris County grand jury indicted Joshua Rodriguez with the first-degree

felony offense of possession with intent to deliver cocaine, weighing more than

four grams and less than 200 grams, enhanced by a prior felony conviction. TEX.
HEALTH & SAFETY CODE ANN. § 481.112(a), (d) (West 2010); TEX. PENAL CODE

ANN. § 12.42(c)(1) (West Supp. 2012). Rodriguez pleaded not guilty and

proceeded to trial before a jury. After hearing the evidence, the jury found

Rodriguez guilty and found the enhancement paragraph true. It assessed his

punishment at forty years’ confinement. On appeal, Rodriguez challenges the

sufficiency of the evidence to support the jury’s finding of guilt. We conclude that

the evidence is sufficient and therefore affirm.

                                    Background

      In the summer of 2011, Deputy C. Green of the Harris County Constable’s

Office belonged to a seven-member patrol squad assigned to the Spring Branch

area of Houston. In early August, Deputy Green stopped an extended-cab pickup

because of a broken tail light. The driver, Joshua Rodriguez, did not have his

driver’s license or proof of insurance. Deputy Green gave Rodriguez a verbal

warning and then let him go.

      About two weeks later, Deputy Green was patrolling again. He observed an

extended-cab pickup make multiple lane changes without signaling. He directed

the driver to the side of the road and began to walk toward the back of the truck.

Deputy Green could not see through the back window as he approached because

the truck had a camper top over the bed. When he saw Rodriguez through the




                                          2
window, Deputy Green recognized him and the truck from the stop in early

August. This time, Rodriguez had a passenger, Juan Arellano-Zepeda.

      Rodriguez again failed to produce a driver’s license. Deputy Green arrested

Rodriguez because Rodriguez had failed to heed Green’s prior warning. Deputy

Green handcuffed Rodriguez and placed him in the back seat of the patrol car.

      In the meantime, one of Green’s squad members, Deputy C. Marroquin,

arrived at the scene. He questioned Arellano-Zepeda, Rodriguez’s passenger, and

arrested him for possession of a fraudulent immigration document. While

conducting a pat-down, Deputy Marroquin discovered a small metal key holder in

Arellano-Zepeda’s pocket. The holder contained small pieces of crack cocaine.

      At the outset, Rodriguez seemed a bit nervous to Deputy Green, but he

became unusually nervous when Green began to take an inventory of the truck’s

contents. Deputy Green explained that the inventory search was part of standard

procedure. Because the officers took both the driver and the passenger into

custody, they planned to request a tow truck to remove the pickup from the scene.

      As Deputy Green began to fill out the tow slip, Rodriguez protested that he

had not given his permission for anyone to search the car. Deputy Green, a drug

recognition expert, noticed a MacDonald’s bag underneath the console between the

front seats. Inside the bag, he found a small shoebox labeled for infant-size

sneakers. On opening the shoebox, Deputy Green found an approximately seventy-

                                        3
six-gram brick of compressed white powder that field-tested positive for cocaine; a

pill bottle full of lidocaine, a substance commonly used to cut cocaine; and a razor

blade covered with tape. Deputy Green peeled the tape and found cocaine residue

on the blade. Deputy Green’s inventory search also produced a small set of digital

scales; another pill bottle full of lidocaine; and a package of 1-½-inch square,

sealable plastic bags, a type commonly used to distribute small amounts of

cocaine. Deputy Marroquin checked the inventoried items into the evidence locker.

       After securing the area, Deputy Green called for Deputy B. Adams, a K-9

unit dog handler, to conduct a supplemental search in order to confirm their

suspicion that the truck contained narcotics. The dog alerted on the front seat

console area where Deputy Green found the cocaine and again on the backseat.

Deputy Marroquin searched the backseat again and found a small, zebra-print

makeup bag that they had not found in the initial inspection. He pulled open the

zipper to reveal small plastic bags, emblazoned with a Batman logo, which

contained crack cocaine. The makeup bag also contained small blue carisoprodol

pills (a narcotic prescribed as a muscle relaxant), marijuana, and coffee grounds,

which narcotics traffickers commonly use in an attempt to throw off the dog’s

positive alert.

       Deputy C. Davis arrived at the scene and assisted Deputy Marroquin in

questioning Rodriguez. Rodriguez repeated his protest that he hadn’t given

                                         4
permission to search the truck. He told Deputy Marroquin that the truck belonged

to his sister. After Rodriguez received his Miranda warnings, he denied knowing

anything about the drugs and said that they did not belong to him.

                        Sufficiency of Possession Evidence

I.    Standard of Review

      We review both legal and factual sufficiency challenges under the same

standard of review. Brooks v. State, 323 S.W.3d 893, 912–13, 924–28 (Tex. Crim.

App. 2010). Under this standard, evidence is insufficient to support a conviction if,

considering all the record evidence in the light most favorable to the verdict, no

rational fact-finder could have found each essential element of the charged offense

proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99

S. Ct. 2781, 2789 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.

2009). In applying the Jackson standard, we remain cognizant that “it is the

responsibility of the jury—not the court—to decide what conclusions should be

drawn from evidence admitted at trial.” Coleman v. Johnson, 132 S. Ct. 2060, 2064

(2012) (quoting Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (per curiam). We

therefore defer to the jury’s authority to resolve conflicts in the testimony, to weigh

the evidence, and to draw reasonable inferences from basic facts to ultimate facts,

and we presume that the jury resolved any conflicts in the evidence in favor of the

verdict, provided that the resolution is rational. See Jackson, 443 U.S. at 318–19,

                                          5
326, 99 S. Ct. at 2788–89, 2793; Clayton v. State, 235 S.W.3d 772, 778 (Tex.

Crim. App. 2007). An appellate court determines whether the jury’s necessary

inferences are reasonable based upon the combined and cumulative force of all the

evidence, when viewed in the light most favorable to the verdict. See Clayton, 235

S.W.3d at 778 (citing Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App.

2007)). In viewing the record, direct and circumstantial evidence are treated

equally; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt. Id. (citing Hooper, 214 S.W.3d at 13).

II.   Possession of Cocaine with Intent to Deliver

      A person commits the offense of possession with intent to deliver a

controlled substance if he knowingly possesses, with an intent to deliver it, a

controlled substance listed in Penalty Group One, a group that includes cocaine.

See TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(a), (f), 481.102(3)(D) (West

2010) (listing cocaine in Penalty Group 1). To obtain a conviction, the State must

prove that the defendant (1) exercised care, custody, control, or management over

the controlled substance; (2) intended to deliver the controlled substance to

another; and (3) knew that the substance in his possession was a controlled

substance. Id. §§ 481.002(38), 481.112(a); Peña v. State, 251 S.W.3d 601, 606

(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Possession is voluntary “if the

                                          6
possessor knowingly obtains or receives the thing possessed or is aware of his

control of the thing for a sufficient time to permit him to terminate his control.”

TEX. PENAL CODE ANN. § 6.01(b) (West 2011).

      When a defendant does not exclusively possess the drug, then additional,

independent facts and circumstances must link the defendant to the contraband in a

way that one reasonably can conclude that he had knowledge of the contraband and

exercised control over it. Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—

Houston [1st Dist.] 2002, pet. ref’d). Among the links that may support a jury’s

finding of knowing possession are: (1) the defendant’s presence during the search;

(2) whether the substance was in plain view; (3) the defendant’s proximity to and

the accessibility of the substance; (4) whether the defendant was under the

influence of narcotics when arrested; (5) whether the defendant possessed other

contraband or narcotics when arrested; (6) whether the defendant made

incriminating statements when arrested; (7) whether the defendant attempted to

flee; (8) whether the defendant made furtive gestures; (9) whether there was an

odor of contraband; (10) whether other contraband or drug paraphernalia were

present; (11) whether the defendant owned or had the right to possess the place

where the substance was found; (12) whether the place where the substance was

found was enclosed; (13) whether the defendant was found with a large amount of




                                        7
cash; and (14) whether the conduct of the defendant indicated a consciousness of

guilt. Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006).

       Not all of these factors must be proved; rather, we review the cumulative

logical force these factors have in proving possession. See James v. State, 264

S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). The absence of

some of the factors is not evidence of innocence that weighs against the factors that

are present. Id.

III.   Analysis

       Rodriguez’s status as the driver of the truck constitutes an affirmative link

between Rodriguez and his possession and control of the truck’s contents. See

Powell v. State, 112 S.W.3d 642, 644–45 (Tex. App.—Houston 2003, pet ref’d);

Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.—Houston 1994, pet. ref’d); see

also James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008,

pet ref’d) (identifying that fact that defendant is driver of car may affirmatively

link defendant to car’s contents); Fields v. State, 932 S.W.2d 97, 104 (Tex. App.—

Tyler 1996, pet. ref’d) (considering both that defendant’s girlfriend had rented car

and that defendant had had possession of car for several days before stop as factors

in affirmative link analysis). Rodriguez admitted that he had possession and

control of truck. He testified that his sister loaned it to him and that he had been

driving it for two weeks when Officer Green stopped him the second time.

                                         8
Rodriguez’s possession of and control over the truck affirmatively links him to its

contents.

      A large amount of contraband, coupled with other drug paraphernalia,

supports a finding of possession. Driver v. State, 358 S.W.3d 270, 275 (Tex.

App.—Houston [1st Dist.] 2011, pet. ref’d) (presence of contraband and other drug

paraphernalia are factors supporting existence of affirmative link); see Villegas v.

State, 871 S.W.2d 894, 896–97 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d)

(noting that the larger the amount of contraband, the stronger the link).

      The bag with the largest amount of cocaine was stashed under the front

center console. While obscured from view, the bag was easily accessible to

Rodriguez and constitutes another factor linking the cocaine to Rodriguez. See

Cuong Quoc Ly v. State, 273 S.W.3d 778, 780, 782 (Tex. App.—Houston [14th

Dist.] 2008, pet, ref’d) (considering that cocaine was accessible to appellant

because it was located under cup holders in center console next to the driver’s

seat). The State adduced evidence that Rodriguez had a young daughter, and police

found the drugs in an infant shoebox. Finally, Rodriguez’s “unusually nervous”

state, viewed together with his repeated protestation of the officers’ inventory

search, supports a reasonable inference that Rodriguez was conscious that the

vehicle contained contraband.




                                          9
      Rodriguez testified at trial, and denied that he knew about the drugs in the

pickup. He noted that, although, he had a criminal record, none of his past offenses

were drug related. As the fact-finder, the jury was entitled to reject Rodriguez’s

testimony as not credible. See Clayton v. State, 235 S.W.3d 772, 779 (Tex. Crim.

App. 2007).

      We hold that the cumulative logical force of the evidence adduced at trial,

considered in a light most favorable to the verdict, provide legally sufficient

support for the jury’s verdict.

                                   Conclusion

      We affirm the judgment of the trial court. Counsel for Rodriguez’s motion to

withdraw as counsel and substitute the Harris County Public Defender’s office as

counsel, as approved by the trial court, is GRANTED. It is ORDERED that the

Harris County Public Defender’s Office be substituted in as attorney of record.




                                                Jane Bland
                                                Justice

Panel consists of Justices Jennings, Bland, and Massengale.

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




                                           10
