Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-17-00307-CR
Jerry RODRIGUEZ, Appellant
v.
The STATE of Texas, Appellee
From the 218th Judicial District Court, Atascosa County, Texas Trial Court No. 17-01-0032-CRA Honorable Stella Saxon, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice
Delivered and Filed: July 18, 2018
AFFIRMED
Jerry Rodriguez appeals his conviction for possession of a controlled substance of less than
one gram. His sole issue on appeal is that there is legally insufficient evidence that he possessed
the controlled substance. Viewing the evidence in a light most favorable to the jury’s verdict, we
hold the evidence is legally sufficient and therefore affirm the trial court’s judgment.
BACKGROUND
In November 2016, Department of Public Safety trooper Matthew Ruiz stopped a car that
had an inoperable brake light. The driver of the car identified himself as Jerry Rodriguez, and it 04-17-00307-CR
appeared to Trooper Ruiz that Rodriguez was nervous. When Rodriguez told Trooper Ruiz he did
not have his identification, Trooper Ruiz asked Rodriguez to exit the car. After exiting the car,
Rodriguez spontaneously told Trooper Ruiz, “I don’t have nothing. I don’t do drugs.” Rodriguez
gave Trooper Ruiz consent to search the car, and Trooper Ruiz found a baggie of
methamphetamine in the car’s center console.
Rodriguez was arrested and thereafter indicted for possession of a controlled substance.
The case proceeded to a jury trial at which Trooper Ruiz testified. A DPS forensic scientist testified
he tested the substance in the baggie and confirmed it was methamphetamine. The trial court
admitted into evidence video recordings from cameras inside Trooper Ruiz’s car. The jury found
Rodriguez guilty and assessed punishment at one year in state jail and a fine of $10,000. The trial
court imposed the sentence, and Rodriguez timely appealed.
DISCUSSION
Rodriguez’s sole issue on appeal is there is legally insufficient evidence that he possessed
the methamphetamine found in the car. In reviewing the legal sufficiency of the evidence, we ask
whether “any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); accord Laster v. State, 275
S.W.3d 512, 517 (Tex. Crim. App. 2009). We review the evidence “in the light most favorable to
the verdict.” Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). “Our role on appeal
is restricted to guarding against the rare occurrence when a factfinder does not act rationally,” and
we must “defer to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Isassi v.
State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (quotation marks and citations omitted).
The sole element of the offense that Rodriguez challenges on appeal is “possession.” See
TEX. HEALTH & SAFETY CODE ANN. § 481.102 (West Supp. 2017), § 481.115 (West 2017) -2- 04-17-00307-CR
(providing an offense for “possession” of a Penalty Group 1 controlled substance, such as
methamphetamine). “‘Possession’ means actual care, custody, control, or management.” Id.
§ 481.002(38) (West 2017); see Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016).
“When the contraband is not in the exclusive possession of the defendant, a fact finder may
nonetheless infer that the defendant intentionally or knowingly possessed the contraband if there
are sufficient independent facts and circumstances justifying such an inference.” Tate, 500 S.W.3d
at 413. “A defendant’s mere presence is insufficient to establish possession.” Id.
We consider a non-exclusive list of affirmative links indicating that a defendant
intentionally or knowingly possessed contraband: (1) the defendant’s presence when a search is
conducted; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and the
accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when
arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6)
whether the defendant made 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 contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the
defendant owned or had the right to possess the place where the drugs were found; (12) whether
the place where the drugs were found was enclosed; (13) whether the defendant was found with a
large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of
guilt. Id. (citing Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006)). However, the
ultimate test is “that set forth in Jackson: Based on the combined and cumulative force of the
evidence and any reasonable inferences therefrom, was a jury rationally justified in finding guilt
beyond a reasonable doubt?” Id. (citing Jackson, 443 U.S. at 318-19).
Trooper Ruiz testified the baggie of methamphetamine was found in the car’s center
console outside of plain view. He also testified the registration Rodriguez provided during the stop -3- 04-17-00307-CR
showed the car was registered to Jose P. Rodriguez, and he was unable to determine the
relationship between Rodriguez and the individual to whom the car was registered. However,
Trooper Ruiz testified Rodriguez was in exclusive possession of the car where the drugs were
found; Rodriguez was present when the search was conducted; and the baggie of
methamphetamine was found in the car’s center console to the right of the driver’s seat. See
Avelarmunoz v. State, No. 02-15-00297-CR, 2016 WL 1163210, at *4 (Tex. App.—Fort Worth
Mar. 24, 2016, no pet.) (mem. op., not designated for publication) (holding location of drugs in
car’s center console and driver’s sole possession of car implicated driver despite no evidence that
driver owned the car). Rodriguez argues the State did not prove all of the above-listed factors, but
it was not required to do so. See Tate, 500 S.W.3d at 413.
There is some evidence showing the car where the methamphetamine was found did not
belong to Rodriguez, and courts have cautioned against relying solely on the defendant’s exclusive
control of a car when contraband is found in the car’s compartments. See Menchaca v. State, 901
S.W.2d 640, 652 (Tex. App.—El Paso 1995, pet. ref’d). In such cases, depending upon the
circumstances, additional evidence of consciousness of guilt may support a jury’s finding of
intentional or knowing possession depending on the circumstances; whereas, the evidence might
be legally insufficient without evidence of consciousness of guilt. Compare id. (affirming
conviction with evidence of consciousness of guilt), with McCraw v.
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-17-00307-CR
Jerry RODRIGUEZ, Appellant
v.
The STATE of Texas, Appellee
From the 218th Judicial District Court, Atascosa County, Texas Trial Court No. 17-01-0032-CRA Honorable Stella Saxon, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice
Delivered and Filed: July 18, 2018
AFFIRMED
Jerry Rodriguez appeals his conviction for possession of a controlled substance of less than
one gram. His sole issue on appeal is that there is legally insufficient evidence that he possessed
the controlled substance. Viewing the evidence in a light most favorable to the jury’s verdict, we
hold the evidence is legally sufficient and therefore affirm the trial court’s judgment.
BACKGROUND
In November 2016, Department of Public Safety trooper Matthew Ruiz stopped a car that
had an inoperable brake light. The driver of the car identified himself as Jerry Rodriguez, and it 04-17-00307-CR
appeared to Trooper Ruiz that Rodriguez was nervous. When Rodriguez told Trooper Ruiz he did
not have his identification, Trooper Ruiz asked Rodriguez to exit the car. After exiting the car,
Rodriguez spontaneously told Trooper Ruiz, “I don’t have nothing. I don’t do drugs.” Rodriguez
gave Trooper Ruiz consent to search the car, and Trooper Ruiz found a baggie of
methamphetamine in the car’s center console.
Rodriguez was arrested and thereafter indicted for possession of a controlled substance.
The case proceeded to a jury trial at which Trooper Ruiz testified. A DPS forensic scientist testified
he tested the substance in the baggie and confirmed it was methamphetamine. The trial court
admitted into evidence video recordings from cameras inside Trooper Ruiz’s car. The jury found
Rodriguez guilty and assessed punishment at one year in state jail and a fine of $10,000. The trial
court imposed the sentence, and Rodriguez timely appealed.
DISCUSSION
Rodriguez’s sole issue on appeal is there is legally insufficient evidence that he possessed
the methamphetamine found in the car. In reviewing the legal sufficiency of the evidence, we ask
whether “any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); accord Laster v. State, 275
S.W.3d 512, 517 (Tex. Crim. App. 2009). We review the evidence “in the light most favorable to
the verdict.” Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). “Our role on appeal
is restricted to guarding against the rare occurrence when a factfinder does not act rationally,” and
we must “defer to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Isassi v.
State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (quotation marks and citations omitted).
The sole element of the offense that Rodriguez challenges on appeal is “possession.” See
TEX. HEALTH & SAFETY CODE ANN. § 481.102 (West Supp. 2017), § 481.115 (West 2017) -2- 04-17-00307-CR
(providing an offense for “possession” of a Penalty Group 1 controlled substance, such as
methamphetamine). “‘Possession’ means actual care, custody, control, or management.” Id.
§ 481.002(38) (West 2017); see Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016).
“When the contraband is not in the exclusive possession of the defendant, a fact finder may
nonetheless infer that the defendant intentionally or knowingly possessed the contraband if there
are sufficient independent facts and circumstances justifying such an inference.” Tate, 500 S.W.3d
at 413. “A defendant’s mere presence is insufficient to establish possession.” Id.
We consider a non-exclusive list of affirmative links indicating that a defendant
intentionally or knowingly possessed contraband: (1) the defendant’s presence when a search is
conducted; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and the
accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when
arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6)
whether the defendant made 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 contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the
defendant owned or had the right to possess the place where the drugs were found; (12) whether
the place where the drugs were found was enclosed; (13) whether the defendant was found with a
large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of
guilt. Id. (citing Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006)). However, the
ultimate test is “that set forth in Jackson: Based on the combined and cumulative force of the
evidence and any reasonable inferences therefrom, was a jury rationally justified in finding guilt
beyond a reasonable doubt?” Id. (citing Jackson, 443 U.S. at 318-19).
Trooper Ruiz testified the baggie of methamphetamine was found in the car’s center
console outside of plain view. He also testified the registration Rodriguez provided during the stop -3- 04-17-00307-CR
showed the car was registered to Jose P. Rodriguez, and he was unable to determine the
relationship between Rodriguez and the individual to whom the car was registered. However,
Trooper Ruiz testified Rodriguez was in exclusive possession of the car where the drugs were
found; Rodriguez was present when the search was conducted; and the baggie of
methamphetamine was found in the car’s center console to the right of the driver’s seat. See
Avelarmunoz v. State, No. 02-15-00297-CR, 2016 WL 1163210, at *4 (Tex. App.—Fort Worth
Mar. 24, 2016, no pet.) (mem. op., not designated for publication) (holding location of drugs in
car’s center console and driver’s sole possession of car implicated driver despite no evidence that
driver owned the car). Rodriguez argues the State did not prove all of the above-listed factors, but
it was not required to do so. See Tate, 500 S.W.3d at 413.
There is some evidence showing the car where the methamphetamine was found did not
belong to Rodriguez, and courts have cautioned against relying solely on the defendant’s exclusive
control of a car when contraband is found in the car’s compartments. See Menchaca v. State, 901
S.W.2d 640, 652 (Tex. App.—El Paso 1995, pet. ref’d). In such cases, depending upon the
circumstances, additional evidence of consciousness of guilt may support a jury’s finding of
intentional or knowing possession depending on the circumstances; whereas, the evidence might
be legally insufficient without evidence of consciousness of guilt. Compare id. (affirming
conviction with evidence of consciousness of guilt), with McCraw v. State, 117 S.W.3d 47, 56
(Tex. App.—Fort Worth 2003, pet. ref’d) (reversing conviction under similar facts when there was
only vague subjective evidence of consciousness of guilt).
Here, Trooper Ruiz testified Rodriguez appeared nervous and avoided eye contact when
handing him the car’s registration and when talking to him. Trooper Ruiz further testified that as
Rodriguez exited the car, Rodriguez spontaneously denied having what he suggested was
contraband, and then more specifically mentioning drugs, in his possession. We hold this is -4- 04-17-00307-CR
evidence showing Rodriguez exhibited consciousness of guilt, which further linked him to the
methamphetamine found in the car’s center console. See Menchaca, 901 S.W.2d at 652 (“The jury
may have rationally inferred from this evidence that Appellant’s knowledge of the contraband was
the cause of his nervousness.”). Considering the evidence as a whole and in a light most favorable
to the jury’s verdict, we hold the jury rationally could have found beyond a reasonable doubt that
Rodriguez had actual care, control, custody, or management of the methamphetamine. See id.; see
also Tate, 500 S.W.3d at 413. We therefore hold there is legally sufficient evidence that Rodriguez
intentionally or knowingly possessed the methamphetamine found in the car.
CONCLUSION
We affirm the trial court’s judgment.
Luz Elena D. Chapa, Justice
DO NOT PUBLISH
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