                                   NO. 07-05-0296-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                FEBRUARY 28, 2006
                          ______________________________

                            FRANKLIN REYES, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

              FROM THE 154TH DISTRICT COURT OF LAMB COUNTY;

                     NO. 3949; HONORABLE FELIX KLEIN, JUDGE
                         _______________________________

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


                               MEMORANDUM OPINION


       Appellant, Franklin Reyes, appeals from a judgment of conviction for the offense of

possession of a controlled substance (cocaine) in an amount of four grams or more but less

than 200 grams, and sentence of 65 years confinement in the Texas Department of

Criminal Justice, Institutional Division. Overruling appellant’s issues, we affirm.


                           Procedural and Factual Background


       On May 31, 2004, at approximately 11:30 p.m., a Littlefield Police officer noticed a

car parked near a closed business. Upon investigating, the officer determined that the
vehicle was occupied by two individuals. The driver, Sylvia Martinez Flores, was unable

to produce her driver’s license. Appellant, who was in the front passenger’s seat was

asked for his identification. A check of appellant’s identification revealed an outstanding

warrant for appellant’s arrest. The investigating officer arrested appellant and performed

a pat down search incident to the arrest. During the pat down the officer found $1,134 in

cash in appellant’s front pockets. The officer asked Flores, the owner of the car, for

permission to search the car. After Flores consented to the search, the officer found two

bags of cocaine under the front passenger’s seat.


       By two issues, appellant challenges the legal and factual sufficiency of the evidence

to sustain the finding of guilt. When both legal and factual sufficiency are challenged by

an appellant, the court must conduct a legal sufficiency review first. Clewis v. State, 922

S.W.2d 126, 133 (Tex.Crim.App. 1996). One cannot be convicted of a crime unless it is

shown beyond a reasonable doubt that he committed each element of the alleged offense.

U.S. CONST. amend. XIV; TEX . CODE CRIM . PROC . ANN . art. 38.03 (Vernon Supp. 2004); TEX .

PEN . CODE ANN . § 2.01 (Vernon 2003).


                                   Standard of Review
                                     Legal Sufficiency


       A legal sufficiency review consists of reviewing the evidence in the light most

favorable to the prosecution, to determine whether 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Burden v. State, 55 S.W.3d 608,


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612 (Tex.Crim.App. 2001). This standard is the same in both direct and circumstantial

evidence cases. Burden, 55 S.W.3d at 613. We measure the sufficiency of the evidence

to sustain a conviction against the elements of the offense as defined by a hypothetically

correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). All the

evidence presented to the jury must be considered, whether properly or improperly

admitted, to assess the factual findings from the jury’s perspective. See Miles v. State, 918

S.W.2d 511, 512 (Tex.Crim.App. 1996). As an appellate court, we may not sit as a

thirteenth juror, but must uphold the jury’s verdict unless it is irrational or unsupported by

more than a “mere modicum” of evidence. See Moreno v. State, 755 S.W.2d 866, 867

(Tex.Crim.App. 1988). We resolve inconsistencies in the evidence in favor of the verdict.

Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000).


         Before determining whether the evidence is sufficient to support appellant’s

conviction, we must review the essential elements of the offense the State was required

to prove. Appellant was charged with possession of cocaine, four grams or more but less

than 200 grams, a second degree felony. TEX . HEALTH & SAFETY CODE ANN . § 481.115(d)

(Vernon 2003). To prove unlawful possession of a controlled substance, the State was

required to prove, by direct or circumstantial evidence, that the accused (1) exercised

actual care, custody, control, or management over the substance and (2) knew the matter

he possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App.

2005).     The evidence must establish the accused’s connection with the controlled

substance was more than just fortuitous. Brown v. State, 911 S.W.2d 744, 747

(Tex.Crim.App. 1995).


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                                    Factual Sufficiency


       When an appellant challenges the factual sufficiency of his conviction, the reviewing

court must ultimately determine whether, considering all the evidence in a neutral light, the

jury was rationally justified in finding defendant guilty beyond a reasonable doubt. See

Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). There are two ways in which

the evidence may be insufficient. First, when considered by itself, evidence supporting the

verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id.

Second, considering all of the evidence, both for and against the verdict, the contrary

evidence may be so strong that the beyond-a-reasonable-doubt standard could not have

been met. Id. at 484-85.


                                     Applicable Law


       When the accused is not in exclusive possession of the place where contraband is

found or the contraband is not on the accused’s person, additional independent facts and

circumstances must affirmatively link him to the contraband. See Deshong v. State, 625

S.W.2d. 327, 329 (Tex.Crim.App. 1981). Affirmative links is a shorthand expression of

what must be proven to establish that the accused possessed some kind of contraband

knowingly or intentionally and is used to evaluate the sufficiency of the evidence. See

Brown, 911 S.W.2d at 747. The affirmative links rule is a common sense notation designed

to protect innocent bystanders–a parent, child, spouse, roommate, or friend–from

conviction based solely upon his fortuitous proximity to someone else’s contraband. See

Poindexter, 153 S.W.3d at 406.


                                             4
       Affirmative links may include, but are not limited to: (1) appellant’s presence when

the contraband was found; (2) whether the contraband was in plain view; (3) appellant’s

proximity to and accessibility of the contraband; (4) whether appellant was under the

influence of narcotics when arrested; (5) whether appellant possessed other contraband

when arrested; (6) whether appellant made incriminating statements when arrested; (7)

whether appellant attempted to flee; (8) whether appellant made furtive gestures; (9)

whether there was an odor of the contraband present; (10) whether other contraband or

drug paraphernalia was present; (11) whether appellant owned or had the right to possess

the place where the drugs were found; (12) whether the place the drugs were found was

enclosed; (13) the amount of contraband found; (14) whether appellant was the driver of

the automobile in which the contraband was found; and (15) whether appellant possessed

a large amount of cash. See Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.–Dallas 2003,

no pet.); see also Trejo v. State, 766 S.W.2d 381, 384-85 (Tex.App.–Austin 1989, no pet.).

It is not the number of factors present that is important, but the logical force of these

factors, individually or collectively, which determines whether the State’s evidence links

appellant to the contraband. See Gilbert v. State, 874 S.W.2d 290, 298 (Tex.App.–Houston

[1st Dist.] 1994, pet. ref’d).


                                         Analysis


       Appellant was neither the owner nor the driver of the vehicle in which the contraband

was found. He was merely a passenger, therefore, he was not in exclusive possession of

the contraband. Thus, the State was required to present evidence, direct or circumstantial,

linking appellant to the contraband to establish appellant was guilty of possession.

                                             5
       The record evidences that the contraband was located beneath the passenger’s

seat, where appellant was seated.     Appellant had two wallets on his person, yet when

appellant was patted down, he had $1,134 in bills stuffed in his front pants pockets. During

the search of the vehicle, appellant continuously stated that the car was not his. The

amount of contraband was large and packaged for dealing.


       Appellant asserts that the lack of paraphernalia, furtive gestures, attempts to flee,

incriminating statements, or other contraband on appellant’s person defeat the State’s

attempt to establish affirmative links.1 However, such an analysis focuses on the number

rather than the logical force of the factors present. See Gilbert, 874 S.W.2d at 298. The

State showed that the appellant was present, in close proximity to the contraband, there

was a large amount of contraband packaged for dealing and appellant had a large amount

of cash stuffed in his front pockets. When all of the evidence is reviewed in the light most

favorable to the verdict, we cannot say that a rational jury could not have found each

element of the offense proven beyond a reasonable doubt. Jackson, 443 U.S. at 319.

Accordingly, we overrule appellant’s issue on legal insufficiency of the evidence.


       In considering the evidence referred to above for factual sufficiency, we must also

consider the impact of Flores’s testimony. Flores testified that when she told appellant she

would give him a ride but did not want any drugs in the vehicle, appellant removed two

small baggies of cocaine from his pocket and laid them on the table. Prior to the car ride


       1
          Appellant contends that the affirmative links shown by the State do not exclude
every other reasonable hypothesis except for the guilt of the accused. However, that test
for a circumstantial evidence case was disavowed by the Texas Court of Criminal Appeals
in Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App. 1991).

                                             6
she had observed a number of people coming and going quickly from the residence where

she met appellant, some of whom she knew to use drugs. Finally, after the arrest of

appellant, Flores readily agreed to allow the officers to search her vehicle. The jury heard

Flores’s testimony and was in a position to judge the credibility of the witness. We are not

allowed to substitute our judgment for that of the jury. See Clewis, 922 S.W.2d at 135.

When the evidence is reviewed in a neutral light, we cannot say that the evidence is so

weak that the jury’s verdict was clearly wrong and unjust, nor is the contrary evidence so

strong that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144

S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Accordingly, appellant’s contention regarding

the factual insufficiency of the evidence is also overruled.


       Inasmuch as we have overruled the contentions of appellant, we affirm the trial

court’s judgment.




                                                 Mackey K. Hancock
                                                     Justice


Do not publish.




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