Opinion
No. 04-06-00077-CR
Delivered and Filed: January 9, 2008. DO NOT PUBLISH.
Appeal From the 274th Judicial District Court, Guadalupe County, Texas, Trial Court No. 05-0068-CR, Honorable B.B. Schraub, Judge Presiding. AFFIRMED.
The Honorable Gary L. Steel presided over the trial. The Honorable B.B. Schraub signed the judgment.
Sitting: ALMA L. LÓPEZ, Chief Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.
MEMORANDUM OPINION
Fidel Enrique Tijerina was convicted in a bench trial of possession of a controlled substance. On appeal, Tijerina contends the evidence is legally insufficient to establish that he exercised care, custody and control over the contraband. We affirm the trial court's judgment. In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). To prove unlawful possession of a controlled substance, the State must prove that the accused exercised control, management, or care over the substance. Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005). Whether the evidence is direct or circumstantial, it must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous. Id. at 406. This is the whole of the so-called "affirmative links rule." Id. The "affirmative links rule" is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else's drugs. Id. This rule simply restates the common-sense notion that a person — such as a father, son, spouse, roommate, or friend — may jointly possess property like a house but not necessarily jointly possess the contraband found in that house. Id. Thus, when the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Id. Officer John Batey stopped a Ford Mustang for speeding at 2:30 a.m. When Officer Batey asked the female driver for proof of insurance, Tijerina, who was in the passenger seat, stated that the Mustang was newly purchased and they did not have the updated insurance card. Officer Batey conducted a routine inspection of the front of the Mustang, checking the registration, inspection sticker, front license plate, and any possible frontal damage from a recent accident. Officer Batey did not see anything on the ground and used his flashlight during his inspection. Officer Batey asked the driver to exit and step to the rear of the Mustang. From the driver's side window, Officer Batey asked Tijerina if any guns, knives, drugs or hand grenades were in the vehicle. Tijerina stated that he had a concealed handgun license, and his gun was underneath the front passenger seat. Officer Batey walked around the front of the Mustang to the passenger side. Officer Batey again did not see anything on the ground at the front of the vehicle. Officer Batey asked Tijerina to exit the vehicle so he could locate the gun and ensure it was unloaded for officer safety. While Officer Batey was checking for the gun, Tijerina walked over and spoke with the driver. Tijerina asked Officer Batey if he could turn off the Mustang. After he turned off the vehicle, Tijerina began to approach Officer Batey and the driver, and Officer Batey told Tijerina to remain outside the vehicle, adjacent to the passenger side door while he spoke with the driver and indicated with his flashlight where Tijerina needed to stand. While Officer Batey was speaking with the driver, Tijerina, who was smoking, went to the front of the Mustang and sat on the front of the vehicle. Officer Batey issued the driver a warning, and the Mustang drove away. As Officer Batey was getting into his vehicle, he saw a plastic bag on the ground about 12 to 15 inches from the edge of the roadway. Officer Batey retrieved the bag which he recognized as containing cocaine. Officer Batey then stopped the Mustang a second time and arrested Tijerina. In addition to Officer Batey's testimony, a videotape of the stop was played for the court. The evidence contains the following affirmative links: (1) the plastic bag containing the cocaine was absent when Officer Batey observed the front of the Mustang on two occasions; (2) Tijerina was the only person who went to the front of the Mustang except Officer Batey; (3) Tijerina did not stay in the location Officer Batey instructed; and (4) the cocaine was discovered as soon as the Mustang drove away. This evidence is sufficient to establish that Tijerina exercised care and control over the cocaine. The trial court's judgment is affirmed.