NO. 07-09-0232-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 31, 2010
______________________________
ELI CASTRO,
Appellant
v.
THE STATE OF TEXAS
Appellee
_______________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 57,898-E; HON. DOUGLAS WOODBURN, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and HANCOCK, and PIRTLE, JJ.
Appellant, Eli Castro, appeals his conviction for possessing a controlled
substance with the intent to deliver. His two issues encompass the legal and factual
sufficiency of the evidence. We affirm.
Background
Officer Callahan with the Amarillo Police Department testified that he had
received a tip from a confidential informant regarding someone who would have
approximately three-quarters of an ounce of methamphetamine on him. The person at
issue was appellant, and the officer was told by the informant that appellant would be in
a particular area driving a blue “2001 Mercury Grand Marquis.” The information was
relayed to Officer Lavery, who proceeded to the location and found the vehicle parked
by a curb. Lavery watched as appellant, who was alone, began to drive away in it. As
he did so, appellant committed two traffic violations. This resulted in Officer Lavery
initiating a traffic stop.
Lavery discovered that appellant’s driver’s license had expired. Furthermore, the
address on it was incorrect. Eventually, appellant consented to the search of the
vehicle. By that time, another officer had arrived at the scene and participated in the
search. Under the driver’s seat was found a “green coin purse” containing a metal
spoon, a set of digital scales, “two plastic baggies of methamphetamine, one baggy of
marijuana, [and] several other plastic baggies.” According to various testifying officers,
the plastic bags were of a type “commonly used to package narcotics” and the amount
of methamphetamine found (16.96 grams) indicated a “dealer amount” as opposed to a
quantum for personal use.
During trial, the defense called appellant’s mother to testify. She stated that the
vehicle and coin purse were hers, that the purse did not contain scales, baggies, or
drugs in it the last time she used it, and that other people (in addition to appellant) had
permission to use the car.
Issues One and Two – Sufficiency of the Evidence
Appellant contends that the evidence is both legally and factually insufficient to
support his conviction. Purportedly, the State failed to prove that he knowingly
possessed or exercised control over the methamphetamine. We overrule the issues.
2
The standards by which we review the sufficiency of the evidence are well
established. We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,
61 L.Ed.2d 560 (1979) and Watson v. State, 204 S.W.3d 404 (Tex.Crim.App. 2006) for
their explanation. Next, to convict appellant of possessing methamphetamine with
intent to deliver, the State had to prove that 1) appellant, 2) intentionally and knowingly,
3) possessed, 4) methamphetamine of four grams or more but less than 200 grams,
and 5) with the intent to deliver. TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) & (d)
(Vernon Supp. 2009). Irrespective of whether the evidence being proffered to establish
these elements was direct or circumstantial, it had to illustrate, "to the requisite level of
confidence, that [appellant’s] . . . connection with the drug was more than just
fortuitous." Brown v. State, 911 S.W.2d 744, 747 (Tex Crim. App. 1995). Furthermore,
his mere presence at the site where drugs were found, without more, is insufficient to
establish actual care, custody, or control of the contraband. See Martin v. State, 753
S.W.2d 384, 387 (Tex. Crim. App. 1988).
In addressing this topic, the courts have developed numerous factors deemed
useful in determining whether the accused's link to the contraband was more than mere
fortuity. Though not exclusive, they nevertheless include such things as whether 1) the
accused was present when the search was conducted, 2) the contraband was plainly
visible by those present, 3) the drugs were near the defendant, 4) the defendant was
under the influence of the substance found, 5) the defendant possessed other
contraband or drug paraphernalia when arrested, 6) the defendant made any
incriminating statements, 7) the defendant attempted to flee, 8) the defendant made
furtive gestures, 9) the contraband emitted a recognizable odor at the time, 10) other
contraband or drug paraphernalia was present, 11) the defendant had the right to
3
exclusive or joint possession of the locale at which the drugs were found, 12) the place
where the drugs were found was enclosed, 13) the accused attempted to conceal the
contraband, and 14) the accused was familiar with the type of contraband. Kyte v.
State, 944 S.W.2d 29, 31 (Tex. App.–Texarkana 1997, no pet.); Hurtado v. State, 881
S.W.2d 738, 743 n.1 (Tex. App.–Houston [1st Dist.] 1994, pet. ref'd). Furthermore, the
number of factors established is not as important as the degree to which they tend to
affirmatively link the defendant to the contraband. Wallace v. State, 932 S.W.2d 519,
524 (Tex. App.–Tyler 1995, pet. ref'd). In other words, if evidence satisfying less than
all the aforementioned indicia is produced, conviction may still be permitted if the
evidence establishes, beyond reasonable doubt, appellant's knowing link to the drugs.
In the case at bar, the jury was told of 1) a tip from a confidential informant, 2) the
informant disclosing that appellant would be possessing the methamphetamine in
question, 3) the informant knowing this because he was engaged in “some sort of
transaction with appellant,” 4) the informant directing the police to a particular area and
car in which appellant could be found, 5) appellant being discovered in the area and car
described, 6) no one else being in the vehicle, 7) the drugs and drug paraphernalia
being found under the seat on which appellant sat, and 8) the coincidence between the
quantum of methamphetamine described by the informant and the amount found under
appellant. This data constituted some evidence from which a rational jury could
conclude, beyond reasonable doubt, that appellant intentionally and knowingly
exercised control over the narcotics and paraphernalia.
That appellant’s mother owned the car, gave several people permission to use it,
and owned the coin purse are circumstances that the jury could have weighed in
making its decision. However, they do not negate the substance of the informant’s
4
information or its accuracy. Nor do they suggest that someone other than appellant had
placed the drugs in the purse or car or that appellant did not possess the drugs.
Indeed, appellant’s mother denied having those items in the purse when she last used
it. So, we cannot say, given the entire record, that the verdict was either clearly
erroneous or manifestly unjust.
Concluding that the evidence was and is both legally and factually sufficient to
support the verdict, we affirm the judgment of the trial court.
Brian Quinn
Chief Justice
Do not publish.
5