COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-329-CR
NO. 2-07-330-CR
PETER VILLARREAL APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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A jury convicted Appellant Peter Villarreal of unlawful possession of a
firearm by a felon 2 and possession of four grams or more but less than two
hundred grams of methamphetamine and cocaine with intent to deliver.3 The
1
… See Tex. R. App. P. 47.4.
2
… See Tex. Penal Code Ann. § 46.04(a) (Vernon 2003).
3
… See Tex. Health & Safety Code Ann. §§ 481.102, 481.112(d)
(Vernon 2003).
jury assessed his punishment at twenty years’ confinement in the firearm case
and forty years’ confinement in the drug case. The trial court sentenced him
accordingly and ordered that the sentences be served concurrently. In his sole
point, Appellant challenges the factual sufficiency of the evidence in each case.
Because we hold that the evidence is factually sufficient to support the jury’s
verdicts, we affirm the trial court’s judgments.
On December 2, 2005, Officer Tucker saw Appellant, who was driving
a black Ford Mustang, run a red light in what testimony described as a high
crime area. Officer Tucker pulled Appellant’s car over, discovered an
outstanding warrant for his arrest, and asked dispatch to send an assist officer.
Officer Tucker placed Appellant under arrest and asked Appellant’s
passenger to step out of the car. When Officer Cox arrived, Appellant was in
the backseat of Officer Tucker’s patrol car. Officer Tucker performed an
inventory search of Appellant’s car and found a Dallas Cowboy’s toboggan or
ski cap between the driver’s seat and the center console. Inside the cap,
Officer Tucker found methamphetamine and cocaine, individually packaged.
Officer Tucker continued to search the car and found $644 in cash, and, in the
trunk, a Ruger pistol. The hammer was cocked and ready to fire. There were
ten live rounds of ammunition in the gun.
2
Appellant contends that the evidence is factually insufficient to establish
that he exercised the requisite level of care, custody, and control over the drugs
and the gun to prove that he knowingly possessed them. He does not
otherwise challenge the evidence. Appellant relies on the evidence that he had
recently purchased the vehicle and that he was not in exclusive possession of
either the drugs or the gun as well as the absence of evidence of his
fingerprints on the gun and the baggies of drugs. He also posits that the cash
could have reasonably been the proceeds of his paycheck, since the arrest
occurred on a Friday afternoon.
As the Texas Court of Criminal Appeals has held,
To prove unlawful possession of a controlled substance, the State
must prove that: (1) the accused exercised control, management,
or care over the substance; and (2) the accused knew the matter
possessed was contraband. Whether this evidence is direct or
circumstantial, “it must establish, to the requisite level of
confidence, that the accused’s connection with the drug was more
than just fortuitous. This is the whole of the so-called ‘affirmative
links’ rule.” 4
The affirmative links doctrine also applies to the possession of firearms.5
4
… Poindexter v. State, 153 S.W.3d 402, 405–06 (Tex. Crim. App.
2005) (citations omitted).
5
… Bates v. State, 155 S.W.3d 212, 216–17 (Tex. App.—Dallas 2004,
no pet.).
3
Further, as the State points out, in proving possession, when the accused
is not in exclusive possession of the location where the contraband is found,
the State must establish “additional independent facts and circumstances” that
“link” the accused in such a manner that it can be concluded that the accused
had knowledge of the contraband and exercised control over the contraband.6
Appellant points to two circumstances to suggest that he may not have
had knowledge of the presence of either the drugs or the firearm: he had
recently purchased the car and there was a passenger. The record reflects that
Appellant told Officer Cox that he had recently purchased the car, and the State
introduced a certified copy of the vehicle registration showing that Appellant
was the owner of the car. Additionally, Appellant was driving the car, and the
passenger was a fourteen-year-old girl.
The drugs were packaged for sale and concealed in a toboggan or ski cap
located between the center console and the driver’s seat. The gun was in the
trunk, cocked, loaded with ten rounds, and ready to fire; there was no
suggestion that it was hidden. Additionally, $644 in cash was found in the car.
The evidence shows that the ski cap was clearly visible to the officers, which
is some evidence that it was visible to Appellant.
6
… Poindexter, 153 S.W.3d at 406; see also Naquin v. State, 607
S.W.2d 583, 586 (Tex. Crim. App. 1980).
4
The evidence that Appellant intentionally or knowingly possessed the
drugs includes the evidence that Appellant owned the car, he was driving the
car, the cap containing the drugs was between the driver’s seat and the center
console and was clearly visible, the cap was in an area of the car over which
Appellant had immediate control as the driver, the methamphetamine and
cocaine were individually packaged inside the cap, and $644 in cash was found
in the car. There is no evidence that anyone else had had recent possession of
the car.
Commander Herschel Tebay of the Tarrant County Organized Crime Unit
testified that drug dealers often carry pistols and will carry significant amounts
of cash if they have sold drugs recently. He testified that it was not unusual
for a drug dealer to have a firearm in the trunk. Given the amount of cash and
the individual packaging of the methamphetamine and cocaine, the jury could
have logically concluded that Appellant was dealing drugs and that, as Tebay
testified, it would not be unusual for him to have a firearm in the trunk.
Appellant points to the absence of evidence of his fingerprints on the gun
and drugs. Again, the evidence shows that the drugs, packaged for sale, were
in a ski cap near the driver, Appellant, there was no indication that the gun was
hidden, and it was cocked, loaded, and ready to fire. There is no evidence that
anyone else had recently driven the car, and there is evidence that drug dealers
5
often carry a firearm.
Viewing all the evidence presented to the jury in a neutral light, favoring
neither party,7 we hold that the evidence is factually sufficient to support the
verdicts. We therefore overrule Appellant’s sole point and affirm the trial
court’s judgments.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 12, 2009
7
… See Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008);
Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006).
6