Abel Flores Rabago v. State

• Court: Court of Appeals of Texas
• Decided: April 26, 2001
• Docket: 13-00-00177-CR
• Status: Published

Opinion

NUMBER 13-00-177-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

ABEL FLORES RABAGO

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 194th District Court of Dallas County, Texas.

___________________________________________________________________

O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Rodriguez

Opinion by Justice Dorsey

A jury convicted appellant, Abel Flores Rabago, of possession with intent to deliver methamphetamine and assessed punishment at twenty-five years in prison. We modify the trial court's judgment and affirm it as modified.

On May 21, 1999, Officer Warren was on patrol when he saw appellant driving a car over the speed limit. Warren tried to stop him, but appellant accelerated. He gave chase, and appellant stopped briefly to let someone out of the car. This person was not apprehended. Warren, along with Officers Jones and Ell, chased appellant until he hit a mailbox and stopped. Appellant ran from the car, but was apprehended a short distance from the scene. Officer Jones searched the car and found an open duffle bag "in the immediate area behind the seats." He could not remember if the bag was on the rear seat or in the floorboard area, but his testimony was that the bag was accessible from either the front passenger seat or the driver's seat. Jones searched the bag and found a loaded handgun. Officer Ell did a more thorough search of the bag and found appellant's passport inside the bag's side pocket. He also found a rolled up cardboard milk container, which contained a foil-wrapped ball. He unwrapped the foil and found a plastic baggie containing a tan-colored powder. The investigation showed that the car was not registered to appellant.

Forensic analysis of the contraband showed that it contained 5.8 grams of methamphetamine. The total weight of the powder in the baggie was thirty-five grams.

Officer Pryor, who had worked ten years in the narcotics division of the Dallas Police Department, testified that a dosage of methamphetamine is approximately one-quarter of a gram. The street value for one gram is approximately $100. His testimony was that a person who had thirty-five grams of methamphetamine in a bag without having the drug divided into quarter-gram containers indicated that the person was a mid-level dealer. He testified that the thirty-five grams of methamphetamine, which included the adulterants and dilutants, could be cut to seventy grams of methamphetamine with a $7,000 street value.

Appellant did not testify and did not call any witnesses to testify.

I. Factual Sufficiency

By issue one appellant challenges the factual sufficiency of the evidence to prove that he possessed the methamphetamine. He argues that there are insufficient affirmative links to show that he possessed the contraband with intent to deliver, because the passenger, who had fled from the car, had as much access to the contraband as he did.

When reviewing the factual sufficiency of the evidence we apply the test set forth in Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). In order for the State to meet its burden and establish that the evidence was sufficient to support a verdict of guilt it must meet two evidentiary requirements: first the State must prove that appellant exercised actual care, control, and management over the contraband; and second that appellant had knowledge that the substance in his possession was contraband. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). Evidence which affirmatively links the defendant to the controlled substance will suffice to prove that he possessed it knowingly. McGoldrick v. State, 682 S.W.2d 573, 578-79 (Tex. Crim. App. 1985).

In determining whether the evidence links the defendant to the drugs we have considered the following factors: (1) the defendant's proximity to and the accessibility of the narcotic; (2) whether the defendant attempted to flee; (3) whether defendant owned or had the right to possess the place where the drugs were found; and (4) whether the place the drugs were found was enclosed. Villarreal v. State, 865 S.W.2d 501, 503-04 (Tex. App.--Corpus Christi 1993, pet. ref'd). The State need not show the accused's possession to be exclusive; evidence which shows that the accused jointly possessed the contraband with others is sufficient. Vargas v. State, 883 S.W.2d 256, 262 (Tex. App.--Corpus Christi 1994, pet. ref'd).

The evidence showed that appellant was driving the car in which the duffle bag was found. The fact that he fled from the police and abandoned the car and fled on foot is evidence that he knowingly possessed the methamphetamine. See Villarreal, 865 S.W.2d at 503-04. Further the fact that his passport was found in the same bag in which the methamphetamine was found, in particular, suggests that the duffel bag belonged to him. The evidence showed that the bag was easily accessible to him. Finally the fact that appellant was found with a substantial quantity of methamphetamine--having a street value of some $7,000--would further indicate that it was unlikely appellant was in possession of such a valuable item without being aware of it.

A rational jury could reasonably infer from the circumstances that appellant's actions showed that he knew of the methamphetamine and that he exercised care, control, and management of the contraband with the intent to deliver it. We hold that the verdict is not so against the great weight of the evidence that it is clearly unjust. We conclude that factually sufficient evidence supports the verdict. We overrule the first issue.

II. The Judgment

By issue two appellant asks this Court to reform or amend the judgment because it incorrectly states that he was convicted of possessing heroin with intent to deliver. Appellant's indictment was amended to show that he was indicted for possession with intent to deliver methamphetamine. We have authority to modify a trial court's judgment to correct the trial court's error. Tex. R. App. P. 43.2(b). We modify the judgment to show that appellant was convicted of unlawful possession with intent to deliver a controlled substance; to-wit: methamphetamine. We sustain the second issue.

We MODIFY the judgment, and as modified, we AFFIRM.

______________________________

J. BONNER DORSEY,

Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 26th day of April, 2001.