Rene Rivera v. State

NUMBER 13-01-108-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI B EDINBURG RENE RIVERA, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 148th District Court of Nueces County, Texas. O P I N I O N Before Chief Justice Valdez and Justices Hinojosa and Rodriguez Opinion by Chief Justice Valdez Appellant, Rene Rivera, was indicted for possession of cocaine in an amount less than one gram. The trial court found appellant guilty and assessed punishment at a probated two-year term of confinement, plus a $500.00 fine. Through two points of error appellant challenges the legal and factual sufficiency of his conviction. We affirm. Facts Robstown Police Officer Champion testified that at around 2:00 a.m. on January 22, 2000, he initiated a traffic stop after he noticed Rivera driving down the center of the road. Officer Champion then asked Rivera for his license and to step to the back of the car. Upon getting out of the vehicle Rivera appeared to be intoxicated. Officer Champion then initiated a Horizontal Gaze Nystagmus (HGN) test which Rivera failed. As a part of that test, Officer Champion noticed that Rivera displayed vertical nystagmus which indicates either narcotics or an Aoutrageous amount of alcohol.@ While Officer Champion was with Rivera, Officer Garcia arrived. Officer Garcia walked around the driver=s side of the car and made contact with the two passengers. Officer Garcia then saw a plastic baggy containing a powdery substance in the panel of the driver=s side door. Officer Garcia further testified that another officer, Officer Brown, showed up at the scene but did so after Rivera had been arrested. At trial, DPS chemist Donald Thain testified that the white powder seized from Rivera weighed .24 grams and contained cocaine. Robstown officers Flores and Cabello testified that they field-tested the seized bag before sending it to Department of Public Safety and that their measurements revealed .5 grams as an approximate weight. Regarding the car that Rivera was driving, Estella Rivera, appellant=s mother, testified that the vehicle was hers and that she loaned it to her son so he could go pick up some food. Angel Garza and Chris Mendez testified that they were passengers in the car when Rivera was stopped. Both denied ownership or knowledge of the cocaine found in the car. Legal Sufficiency By his first issue on appeal, Rivera challenges the legal sufficiency of the evidence to show that he was guilty of possession of cocaine. Specifically he argues that the record indicates that Aeither of the two other occupants could have placed the contraband in the location in which it was found, at the time that it was found.@ When reviewing the legal sufficiency of the evidence against appellant, we view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997); Borrego v. State, 966 S.W.2d 786, 789 (Tex. App.BHouston [1st Dist.] 1998, no pet.). The issue is whether any rational trier of fact could find the crime's essential elements beyond a reasonable doubt. Jackson, 443 U.S. at 319; McDuff, 939 S.W.2d at 614; Borrego, 966 S.W.2d at 789. If there is evidence that establishes guilt beyond a reasonable doubt, and if the fact finder believes the evidence, we will not reverse the judgment for insufficient evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988); Borrego, 966 S.W.2d at 789. To convict a person of unlawful possession of a controlled substance the State must prove 1) that the person exercised care, control, custody or management over the contraband, and 2) that the person knew the matter was contraband. Herndon v. State, 787 S.W.2d 408, 409-10 (Tex. Crim. App. 1990); Rodriguez v. State, 888 S.W.2d 211, 214-15 (Tex. App.BCorpus Christi 1994, no pet.). When an accused does not have exclusive possession of the place where the contraband is found, the State must show additional facts and circumstances which affirmatively link the accused to the contraband. Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986); Rodriguez, 888 S.W.2d at 215. The affirmative link between the accused and the contraband must be in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband=s existence and exercised control over it. Cude, 716 S.W.2d at 47; Rodriguez, 888 S.W.2d at 215. Affirmative links may be established by facts and circumstances such as Awhether the contraband was in open or plain view, and whether it was in close proximity to the accused.@ See Linton v. State, 15 S.W.3d 615, 619 (Tex. App.BHouston [14th Dist.] 2000, pet. ref=d). Other relevant factors include: whether the defendant was under the influence of the contraband; the defendant=s access to the contraband; and the location of the contraband, either in the trunk of the vehicle or in the passenger compartment. See Johnson v. State, 625 S.W.2d 330, 330 (Tex. Crim. App. 1981). In the present case, evidence was introduced at trial to link Rivera to the cocaine. Evidence showed Rivera=s proximity to the cocaine, the fact that the substance was in plain view, and that Rivera=s failure of the HGN test indicated Aa presence of narcotics or . . . an outrageous amount of alcohol.@ Rivera=s mother also testified as to her control of the vehicle shortly before loaning it to her son and that it did not contain cocaine at that time. Rivera testified that he picked up his two friends, went straight to the Whataburger and came straight back before being stopped. In addition, both of Rivera=s friends denied that the cocaine was theirs. As such, we find that the evidence presented at trial shows affirmative links to such an extent that a reasonable inference may arise that the accused knew of the contraband=s existence and exercised control over it. Cude, 716 S.W.2d at 47. Accordingly, the evidence is legally sufficient to support Rivera=s conviction for possession of cocaine. Appellant=s first issue on appeal is overruled. Factual Sufficiency Rivera argues in his second issue on appeal that the evidence presented at trial was factually insufficient to support the verdict. In reviewing the factual sufficiency of the evidence, we must view all the evidence without the prism of Ain the light most favorable to the verdict@ and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Reed v. State, 991 S.W.2d 354, 358 (Tex. App.BCorpus Christi 1999, pet. ref=d). A court of appeals may not reverse a fact finder=s decision simply because it disagrees with the result; the appellate court must defer to such findings, and may find the evidence factually insufficient only where necessary to prevent manifest injustice. See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Reed, 991 S.W.2d at 358. We do not, however, judge the credibility of witnesses in determining factual sufficiency. Nolasco v. State, 970 S.W.2d 194, 196 (Tex. App.BDallas 1998, no pet.). Rather, we defer to the fact finder=s findings so as to avoid substituting our judgment. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). That a different verdict would be more reasonable is, therefore, insufficient to justify reversal. Medina v. State, 7 S.W.3d 633, 637 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1102 (2000). Appellant argues the evidence introduced was factually insufficient because Ano one ever saw the appellant close to the contraband.@ He further argues that in a similar search situation any Areasonable crook@ would Ahide the dope.@ This analysis fails to address the key concern in a factual sufficiency challenge, which asks whether the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 129. Upon review of the evidence we find that the evidence supports the judgment. At trial, evidence was introduced which included: 1) officer testimony that Rivera was driving erratically; 2) Rivera=s failure of the HGN test; 3) the discovery of the cocaine in the side panel of the driver=s side door; 4) testimony from Rivera=s mother that shortly before she loaned the car to her son there was no cocaine in the vehicle; and 5) the testimony from the two passengers in the vehicle with Rivera that the cocaine was not theirs. Based on the record in this case, we find the evidence is factually sufficient to support the conviction. Appellant=s final issue for appeal is overruled. We affirm. ROGELIO VALDEZ Chief Justice Do Not Publish. Tex. R. App. P. 47.3(b). Opinion delivered and filed this 2nd day of May, 2002.