NUMBER 13-99-520-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
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DAVID EDWARD POSIVAL,
Appellant,v.
THE STATE OF TEXAS, Appellee.
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Before Chief Justice Seerden and Justices Dorsey and Yañez
Opinion by Justice YañezAppellant, David Edward Posival, was indicted for the offense of possession of less than one (1) gram of amphetamine, a controlled substance listed in penalty group two. See Tex. Health & Safety Code §§ 481.103(a)(3), 481.116(a),(b) (Vernon Supp. 2000). A jury found him guilty and assessed punishment at four hundred fifty-five (455) days in a state jail facility and a $10,000 fine. By a sole point of error, appellant asserts that the evidence is insufficient to support his conviction because there is no evidence affirmatively linking him to the methamphetamine and no evidence corroborating any such affirmative link. We affirm.
Facts
On September 14, 1998 Trooper Almarez was patrolling a northbound section of highway I-37 near Mathis, Texas, when he noticed a truck, driven by appellant, drive off the FM 3377 bridge onto the grassy embankment on the west side of the highway and then onto the interstate. Alamarez stopped the truck; appellant exited the vehicle and approached the trooper. Alamarez testified he smelled an odor of burnt marijuana emanating from the truck. Alamarez conducted a brief pat-down search of appellant's clothing and asked about his direction of travel and destination. Appellant stated that he and some friends had been smoking marijuana inside the truck. He also gave verbal consent to a search of the truck.
During the search of the truck, Alamarez found a white gardening glove with a small calibre handgun on the seat under a black briefcase. Appellant stated he did not possess a license to carry a concealed handgun. Appellant was then arrested for unlawful possession of a weapon. Alamarez continued to search the truck and found a small amount of marijuana in a plastic sandwich bag found inside the briefcase. He also found a small quantity of amphetamine, discovered inside a small canister on top of a wooden toolbox, which was located, in turn, on the truck's floorboard, easily within appellant's view and reach.
Analysis
By his sole point of error, appellant asserts that the evidence is insufficient to support his conviction because there was no evidence affirmatively linking him to the canister containing the amphetamine and no corroboration of any affirmative link.
The United States Supreme Court set the standard for reviewing legal sufficiency of the evidence in Jackson v. Virginia, 443 U.S. 307 (1979); Dewberry v. State, 4 S.W.3rd 735, 740 (Tex. Crim. App. 1999). In reviewing a legal sufficiency question, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim. App. 1989) (reaffirming Jackson standard of review). This Court must evaluate all of the evidence, both direct and circumstantial, whether admissible or inadmissible. Dewberry, 4 S.W.3d at 740; see Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim. App. 1998). When reviewing the evidence, our role is not to become a thirteenth juror. We may not re-evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the fact-finder. Dewberry, 4 S.W.3d at 740. Whether the evidence fails to exclude every outstanding reasonable hypothesis other than guilt is not a measure of the legal sufficiency of the evidence. Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991) (rejecting the reasonable hypothesis construct as a measure of legal sufficiency).
The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Mosley, 983 S.W.2d at 254; Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). Reconciliation of conflicts in the evidence is also within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986).
A defendant charged with knowingly and intentionally possessing drugs must be affirmatively linked with the drugs he allegedly possessed. Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim.App. 1995). Factors to be considered when evaluating affirmative links include: 1) the defendant's presence when the search was executed; 2) whether the contraband was in plain view; 3) the defendant's proximity to and the accessibility of the contraband; 4) whether the defendant was under the influence of a controlled substance when arrested; 5) whether the defendant possessed other contraband when arrested; 6) whether the defendant made any 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 the contraband; 10) whether other contraband or drug paraphernalia was present; 11) whether the defendant owned or had the right to possess the place where the drugs were found; and 12) whether the place the drugs were found was enclosed. Green v. State, 892 S.W.2d 220, 222-23 (Tex. App.--Texarkana 1995, pet. ref'd). Other factors, such as whether or not the appellant was the driver of the vehicle in which the contraband was found, whether paraphernalia to use the contraband was in view of the appellant, and whether the conduct of the appellant indicated a consciousness of guilt are also considered. Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd).
Appellant was the driver and sole occupant of the truck stopped by Almarez. Appellant admitted to the possession and recent use of marijuana in the truck. Appellant verbally consented to a search of the truck. The canister containing the amphetamine was found on top of a homemade wooden tool box located on the center floorboard "hump" of the truck, and was accessible to appellant. A search of the truck resulted in the discovery of marijuana, drug paraphernalia, and a handgun. This was sufficient evidence from which a rational trier of fact could have found beyond a reasonable doubt that appellant was affirmatively linked to the amphetamine. We therefore hold that the evidence is sufficient to show that appellant possessed the amphetamine as charged in the indictment. We overrule the point of error.
We AFFIRM the judgment of the trial court.
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LINDA REYNA YAÑEZ
Justice
Do not publish.
Tex. R. App. P. 47.3.
Opinion delivered and filed this
the 31st day of August, 2000.