# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION
N o. 04

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- CR Jerry RODRIGUEZ , Appellant

v. The STATE of Texas, Appellee From the 218th Judicial District Court, Atascosa County, Texas Trial Court No. 17

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- 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.
B ACKGROUND In November 2016, Department of Public Safety trooper Matthew Ruiz stopped a car that had an inoperable brake light. T he driver of the car identified himself as Jerry Rodriguez, and it04

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- 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 metha mphetamine. 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 R odriguez timely appealed.
D ISCUSSION 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, 31 9 (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 f act 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 elemen t of the offense that Rodriguez challenges on appeal is “possession.” See
T EX
. H EALTH & S AFETY C ODE A NN
. § 481.102 (West Supp. 2017), § 481.115 (West 2017)04

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- (providing an offense for “possession” of a Penalty Group 1 controlled substance, such as methamphet amine). “‘ 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)

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“ 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 insuff icient t o 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 i n plai n 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 d efendant 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 presen t; (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 con duct 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 stop04

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- 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. H owever, 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 dri ver’s seat. See Avelarmunoz v. State , No. 02

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- 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 t he 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 met hamphetamine 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 (T ex. 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 w hen 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 a s 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 is04

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- evidence showing Rodriguez exhibited consciousness of guilt, which further l inked 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 fr om 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. C ONCLUSION We affirm the trial court’s judgment. Luz Elena D. Chapa, Justice
DO NOT PUBLISH