Opinion
No. 13-03-521-CR
Memorandum Opinion delivered and filed August 12, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 24th District Court of Jackson County, Texas.
Before Justices YAÑEZ, RODRIGUEZ, and GARZA.
MEMORANDUM OPINION
Appellant, Brandon Bree, was convicted of possessing cocaine with intent to deliver and was sentenced to imprisonment for thirty years. By a single issue, appellant challenges his conviction based on the legal sufficiency of the evidence. We affirm appellant's conviction because he has not demonstrated that the evidence is legally insufficient. Evidentiary sufficiency is measured against the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). Such a charge would accurately set out the law, would be authorized by the indictment, and would not unnecessarily increase the State's burden of proof. Id. The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). In evaluating a legal sufficiency challenge, the evidence is examined in the light most favorable to the verdict. Id. Appellant claims that the evidence is legally insufficient to support his conviction because he did not exercise actual care, control, and management over the cocaine. In support of this contention, appellant's brief lists thirteen evidentiary factors tending to show that he did not have possession of the cocaine. The record purportedly substantiates these factors. In making his argument, however, appellant has neglected to explain how the State's evidence — when examined in the light most favorable to verdict — fails to show that he exercised actual care, control, and management over the cocaine. Appellant's brief only lists the evidence tending to show that he did not have possession; it does not explain how the State's evidence is legally insufficient. After reviewing the record, we conclude that the evidence is sufficient. Evidence that affirmatively links a defendant to contraband suffices for proof that the defendant possessed it knowingly and exercised care, control, and management over it. See Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995); see also Jenkins v. State, 76 S.W.3d 709, 712 (Tex. App.-Corpus Christi 2002, pet. ref'd) ("The evidence must affirmatively link the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband's existence and that he exercised control over it."). In the light most favorable to the verdict, the record shows the following affirmative links between appellant and the cocaine: the police found marihuana and cocaine in an automobile occupied by two individuals, one of which was appellant; the vehicle's other occupant told the police that there was marihuana in the vehicle; the amount of drugs found by the officers was substantial; marihuana and cocaine were found in different places in the vehicle; the cocaine was not hidden — it was in two clear plastic bags that were visible in two different places in the vehicle; appellant was in close proximity to the bags of cocaine and had access to them; the inside of the automobile smelled like burned marihuana; and before the police discovered the cocaine, appellant made gestures indicating that he was attempting to hide something in the same area where the bags of cocaine were later discovered. Based on these facts, a rational trier of fact could have found beyond a reasonable doubt that appellant possessed the cocaine. Although appellant has identified other facts in the record that support the opposite conclusion, a legal sufficiency challenge such as this does not call for the reviewing court to balance the evidence for and against guilt. Such a review would be proper in a challenge to the factual sufficiency of the evidence. Cf. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000) ("[In a factual sufficiency issue,] the court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact."). In a legal sufficiency review, the court is to examine the record in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense — as defined by the hypothetically correct jury charge for the case — beyond a reasonable doubt. We have already identified evidence that would support such a finding. Appellant's issue is therefore overruled. The judgment of the trial court is affirmed.
To establish possession of a controlled substance, the State must prove two evidentiary requirements: first, the defendant exercised actual care, control and management over the contraband; and second, that he had knowledge that the substance in his possession was contraband King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995).