NO. 07-09-0232-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C MARCH 31, 2010

__________________ ____________ ELI CASTRO, Appellant

v. THE STATE OF TEXAS Appellee

__________________ _____________ FROM THE 108TH DISTRICT COURT OF POTTER COUNTY; NO. 57,898-E; HON. DOUGLAS WOODBURN, PRESIDING

__________________ _____________ Memorandum Opinion

__________________ _____________ Before QUINN, C.J., and HANCOCK, and PIRTLE, JJ. Appellant, Eli Castro, appeals his c onviction for possessing a controlled substance with the intent to deliver. His two issues encompass the legal and factual sufficiency of the evidence. We affirm. Background Officer Callahan with the Amarillo Poli ce Department test ified that he had received a tip from a confidential info rmant regarding someone who would have approximately three-quarters of an ounce of me thamphetamine on him. The person at2 issue was appellant, and the office r was told by the informant that appellant would be in a particular area driving a blue “2001 Mercur y Grand Marquis.” The information was relayed to Officer Lavery, who proceeded to the location and found the vehicle parked by a curb. Lavery watched as appellant, who was alone, began to drive away in it. As he did so, appellant committed two traffic viol ations. This resulted in Officer Lavery initiating a traffic stop. Lavery discovered that appell ant’s driver’s license had expired. Furthermore, the address on it was incorrect. Eventually, appel lant consented to the search of the vehicle. By that time, another officer had arrived at the scene a nd participated in the search. Under the driver’s seat was found a “green coin purse” containing a metal spoon, a set of digital scales, “two plasti c baggies of methamphetam ine, one baggy of marijuana, [and] several other pl astic baggies.” According to various testifying officers, the plastic bags were of a type “commonl y used to package narcotics” and the amount of methamphetamine found (16. 96 grams) indicated a “dealer amount” as opposed to a quantum for personal use. During trial, the defense call ed appellant’s mother to test ify. She stated that the vehicle and coin purse were hers, that th e purse did not contain scales, baggies, or drugs in it the last time she used it, and t hat other people (in additi on to appellant) had permission to use the car. Issues One and Two – Suffi ciency of the Evidence Appellant contends that t he evidence is both legally and factually insufficient to support his conviction. Purportedly, the State failed to prove that he knowingly possessed or exercised contro l over the methamphetamine. We overrule the issues.3 The standards by which we review t he sufficiency of the evidence are well established. We refer the parties to Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and Watson v. State , 204 S.W.3d 404 (Tex.Crim.App. 2006) for their explanation. Next, to convict appellant of possessing met hamphetamine with intent to deliver, the State had to prove that 1) appe llant, 2) intentional ly and knowingly, 3) possessed, 4) methamphetamine of four grams or more but less than 200 grams, and 5) with the intent to deliver. T EX

. H EALTH & S AFETY C ODE A NN

. § 481.112(a) & (d) (Vernon Supp. 2009). Irrespecti ve of whether the evidence being proffered to establish these elements was direct or ci rcumstantial, it had to illustrat e, "to the requisite level of confidence, that [appellant ’s] . . . connection with the drug was more than just fortuitous." Brown v. State , 911 S.W.2d 744, 747 (Tex Crim. App. 1995). Furthermore, his mere presence at the site where drugs were found, without more, is insufficient to establish actual care, custody, or control of the contraband. See Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). In addressing this topic, the courts have developed numerous factors deemed useful in determining whether the accused' s link to the contraband was more than mere fortuity. Though not exclusive, they nevertheless include such things as whether 1) the accused was present when t he search was conducted, 2) the contraband was plainly visible by those present, 3) the drugs were near the defendant, 4) the defendant was under the influence of the substance f ound, 5) the defendant possessed other contraband or drug paraphernalia when arrested, 6) the defendant made any incriminating statements, 7) the defendant attempted to fl ee, 8) the defendant made furtive gestures, 9) the contraband emitted a recognizable odor at the time, 10) other contraband or drug paraphernalia was presen t, 11) the defendant had the right to4 exclusive or joint possession of the locale at which the drugs were found, 12) the place where the drugs were found was enclosed, 13) the accused attempted to conceal the contraband, and 14) the accused was fam iliar with the type of contraband. Kyte v. State , 944 S.W.2d 29, 31 (Tex. App.

– Texarkana 1997, no pet.); Hurtado v. State , 881 S.W.2d 738, 743 n.1 (Tex. App.

– Houston [1st Dist.] 1994, pet. ref'd). Furthermore, the number of factors established is not as important as the d egree to which they tend to affirmatively link the defendant to the contraband. Wallace v. State , 932 S.W.2d 519, 524 (Tex. App.

– Tyler 1995, pet. ref'd). In other words, if evidence satisfying less than all the aforementioned indicia is produced, conviction may still be permitted if the evidence establishes, beyond reasonable doubt, appellant's knowing link to the drugs. In the case at bar, the jury was told of 1) a tip from a confidential informant, 2) the informant disclosing that appellant would be possessi ng the methamphetamine in question, 3) the informant knowing this because he was engaged in “some sort of transaction with appellant,” 4) the informant directing the police to a particular area and car in which appellant could be found, 5) appel lant being discovered in the area and car described, 6) no one else bein g in the vehicle, 7) the drugs and drug paraphernalia being found under the seat on which appellant sat, and 8) the coincidence between the quantum of methamphetamine described by the informant and the amount found under appellant. This data constituted some ev idence from which a rational jury could conclude, beyond reasonable doubt, that appel lant intentionally and knowingly exercised control over t he narcotics and paraphernalia. That appellant’s mother owned the car, gave several people permission to use it, and owned the coin purse are circumstances that the jury could have weighed in making its decision. However, they do not negate the substance of the informant’s5 information or its accuracy. Nor do they s uggest that someone other than appellant had placed the drugs in the purse or car or that appellant did not possess the drugs. Indeed, appellant’s mother denied having those items in the purse when she last used it. So, we cannot say, given the entire re cord, that the verdict was either clearly erroneous or manifestly unjust. Concluding that the evidence was and is both legally and factually sufficient to support the verdict, we affirm t he judgment of the trial court.

Brian Quinn Chief Justice
Do not publish.