Cruz Tijerina v. The State of Texas--Appeal from 364th District Court of Lubbock County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 7th District Court of Appeals » 2007 » Cruz Tijerina v. The State of Texas--Appeal from 364th District Court of Lubbock County

State: Texas

Court: Texas Northern District Court

Docket No: 07-05-00369-CR

Case Date: 06/05/2007

Plaintiff: RENE RIVERA

Defendant: THE STATE OF TEXAS--Appeal from 148th District Court of Nueces County

Preview:RENE RIVERA v. THE STATE OF TEXAS--Appeal
from 148th District Court of Nueces County
NUMBER 13-01-108-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTIBEDINBURG
RENE RIVERA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 148th District Court
of Nueces County, Texas.
O P I N I O N
Before Chief Justice Valdez and Justices Hinojosa and Rodriguez
Opinion by Chief Justice Valdez
Appellant, Rene Rivera, was indicted for possession of cocaine in an amount less than one gram. The trial court found
appellant guilty and assessed punishment at a probated two-year term of confinement, plus a $500.00 fine. Through
two points of error appellant challenges the legal and factual sufficiency of his conviction. We affirm.
Facts
Robstown Police Officer Champion testified that at around 2:00 a.m. on January 22, 2000, he initiated a traffic stop
after he noticed Rivera driving down the center of the road. Officer Champion then asked Rivera for his license and to
step to the back of the car. Upon getting out of the vehicle Rivera appeared to be intoxicated. Officer Champion then
initiated a Horizontal Gaze Nystagmus (HGN) test which Rivera failed. As a part of that test, Officer Champion
noticed that Rivera displayed vertical nystagmus which indicates either narcotics or an Aoutrageous amount of
alcohol.@ While Officer Champion was with Rivera, Officer Garcia arrived. Officer Garcia walked around the
driver=s side of the car and made contact with the two passengers. Officer Garcia then saw a plastic baggy containing
a powdery substance in the panel of the driver=s side door. Officer Garcia further testified that another officer, Officer
Brown, showed up at the scene but did so after Rivera had been arrested.
At trial, DPS chemist Donald Thain testified that the white powder seized from Rivera weighed .24 grams and
contained cocaine. Robstown officers Flores and Cabello testified that they field-tested the seized bag before sending it
to Department of Public Safety and that their measurements revealed .5 grams as an approximate weight. Regarding
the car that Rivera was driving, Estella Rivera, appellant=s mother, testified that the vehicle was hers and that she
loaned it to her son so he could go pick up some food. Angel Garza and Chris Mendez testified that they were
passengers in the car when Rivera was stopped. Both denied ownership or knowledge of the cocaine found in the car.
Legal Sufficiency
file:///C|/Users/Peter/Desktop/opinions/PSDs2/11949.html[8/20/2013 9:21:49 PM]

By his first issue on appeal, Rivera challenges the legal sufficiency of the evidence to show that he was guilty of
possession of cocaine. Specifically he argues that the record indicates that Aeither of the two other occupants could
have placed the contraband in the location in which it was found, at the time that it was found.@
When reviewing the legal sufficiency of the evidence against appellant, we view the evidence in the light most
favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); McDuff v. State, 939 S.W.2d 607, 614
(Tex. Crim. App. 1997); Borrego v. State, 966 S.W.2d 786, 789 (Tex. App.BHouston [1st Dist.] 1998, no pet.). The
issue is whether any rational trier of fact could find the crime's essential elements beyond a reasonable doubt. Jackson,
443 U.S. at 319; McDuff, 939 S.W.2d at 614; Borrego, 966 S.W.2d at 789. If there is evidence that establishes guilt
beyond a reasonable doubt, and if the fact finder believes the evidence, we will not reverse the judgment for
insufficient evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988); Borrego, 966 S.W.2d at 789.
To convict a person of unlawful possession of a controlled substance the State must prove 1) that the person exercised
care, control, custody or management over the contraband, and 2) that the person knew the matter was contraband.
Herndon v. State, 787 S.W.2d 408, 409-10 (Tex. Crim. App. 1990); Rodriguez v. State, 888 S.W.2d 211, 214-15 (Tex.
App.BCorpus Christi 1994, no pet.).
When an accused does not have exclusive possession of the place where the contraband is found, the State must show
additional facts and circumstances which affirmatively link the accused to the contraband. Cudev. State, 716 S.W.2d
46, 47 (Tex. Crim. App. 1986); Rodriguez, 888 S.W.2d at 215. The affirmative link between the accused and the
contraband must be 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 exercised control over it. Cude, 716 S.W.2d at 47; Rodriguez, 888 S.W.2d at
215. Affirmative links may be established by facts and circumstances such as Awhether the contraband was in open or
plain view, and whether it was in close proximity to the accused.@ See Linton v. State, 15 S.W.3d 615, 619 (Tex.
App.BHouston [14th Dist.] 2000, pet. ref=d). Other relevant factors include: whether the defendant was under the
influence of the contraband; the defendant=s access to the contraband; and the location of the contraband, either in the
trunk of the vehicle or in the passenger compartment. See Johnson v. State, 625 S.W.2d 330, 330 (Tex. Crim. App.
1981).
In the present case, evidence was introduced at trial to link Rivera to the cocaine. Evidence showed Rivera=s proximity
to the cocaine, the fact that the substance was in plain view, and that Rivera=s failure of the HGN test indicated Aa
presence of narcotics or . . . an outrageous amount of alcohol.@ Rivera=s mother also testified as to her control of the
vehicle shortly before loaning it to her son and that it did not contain cocaine at that time. Rivera testified that he
picked up his two friends, went straight to the Whataburger and came straight back before being stopped. In addition,
both of Rivera=s friends denied that the cocaine was theirs.
As such, we find that the evidence presented at trial shows affirmative links to such an extent that a reasonable
inference may arise that the accused knew of the contraband=s existence and exercised control over it. Cude, 716
S.W.2d at 47. Accordingly, the evidence is legally sufficient to support Rivera=s conviction for possession of cocaine.
Appellant=s first issue on appeal is overruled.
Factual Sufficiency
Rivera argues in his second issue on appeal that the evidence presented at trial was factually insufficient to support the
verdict.
In reviewing the factual sufficiency of the evidence, we must view all the evidence without the prism of Ain the light
file:///C|/Users/Peter/Desktop/opinions/PSDs2/11949.html[8/20/2013 9:21:49 PM]

most favorable to the verdict@ and set aside the verdict only if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Reed v.
State, 991 S.W.2d 354, 358 (Tex. App.BCorpus Christi 1999, pet. ref=d). A court of appeals may not reverse a fact
finder=s decision simply because it disagrees with the result; the appellate court must defer to such findings, and may
find the evidence factually insufficient only where necessary to prevent manifest injustice. See Cain v. State, 958
S.W.2d 404, 407 (Tex. Crim. App. 1997); Reed, 991 S.W.2d at 358. We do not, however, judge the credibility of
witnesses in determining factual sufficiency. Nolascov. State, 970 S.W.2d 194, 196 (Tex. App.BDallas 1998, no pet.).
Rather, we defer to the fact finder=s findings so as to avoid substituting our judgment. Johnson v. State, 23 S.W.3d 1, 7
(Tex. Crim. App. 2000). That a different verdict would be more reasonable is, therefore, insufficient to justify reversal.
Medina v. State, 7 S.W.3d 633, 637 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1102 (2000).
Appellant argues the evidence introduced was factually insufficient because Ano one ever saw the appellant close to
the contraband.@ He further argues that in a similar search situation any Areasonable crook@ would Ahide the
dope.@
This analysis fails to address the key concern in a factual sufficiency challenge, which asks whether the verdict is so
contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 129.
Upon review of the evidence we find that the evidence supports the judgment. At trial, evidence was introduced which
included: 1) officer testimony that Rivera was driving erratically; 2) Rivera=s failure of the HGN test; 3) the discovery
of the cocaine in the side panel of the driver=s side door; 4) testimony from Rivera=s mother that shortly before she
loaned the car to her son there was no cocaine in the vehicle; and 5) the testimony from the two passengers in the
vehicle with Rivera that the cocaine was not theirs.
Based on the record in this case, we find the evidence is factually sufficient to support the conviction.
Appellant=s final issue for appeal is overruled. We affirm.
ROGELIO VALDEZ
Chief Justice
Do Not Publish.
Tex. R. App. P. 47.3(b).
Opinion delivered and filed
this 2nd day of May, 2002.
file:///C|/Users/Peter/Desktop/opinions/PSDs2/11949.html[8/20/2013 9:21:49 PM]

Download 11949.pdf