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 conviction 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 Police Department testified that he had 

received a tip from a confidential informant regarding someone who would have 

approximately three-quarters of an ounce of methamphetamine on him. The person at 
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issue was appellant, and the officer was told by the informant that appellant would be in 

a particular area driving a blue “2001 Mercury 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 violations. This resulted in Officer Lavery 

initiating a traffic stop. 

 Lavery discovered that appellant’s driver’s license had expired. Furthermore, the 

address on it was incorrect. Eventually, appellant consented to the search of the 

vehicle. By that time, another officer had arrived at the scene and 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 plastic baggies of methamphetamine, one baggy of 

marijuana, [and] several other plastic baggies.” According to various testifying officers, 

the plastic bags were of a type “commonly 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 called appellant’s mother to testify. She stated that the 

vehicle and coin purse were hers, that the purse did not contain scales, baggies, or 

drugs in it the last time she used it, and that other people (in addition to appellant) had 

permission to use the car. 

Issues One and Two – Sufficiency of the Evidence 

 Appellant contends that the evidence is both legally and factually insufficient to 

support his conviction. Purportedly, the State failed to prove that he knowingly 

possessed or exercised control over the methamphetamine. We overrule the issues. 
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The standards by which we review the 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 methamphetamine with 

intent to deliver, the State had to prove that 1) appellant, 2) intentionally and knowingly, 

3) possessed, 4) methamphetamine of four grams or more but less than 200 grams, 

and 5) with the intent to deliver. TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) & (d) 

(Vernon Supp. 2009). Irrespective of whether the evidence being proffered to establish 

these elements was direct or circumstantial, it had to illustrate, "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 the 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 found, 5) the defendant possessed other 

contraband or drug paraphernalia when arrested, 6) the defendant made any 

incriminating statements, 7) the defendant attempted to flee, 8) the defendant made 

furtive gestures, 9) the contraband emitted a recognizable odor at the time, 10) other 

contraband or drug paraphernalia was present, 11) the defendant had the right to 
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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 familiar 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 degree 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 possessing 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) appellant being discovered in the area and car 

described, 6) no one else being 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 evidence from which a rational jury could 

conclude, beyond reasonable doubt, that appellant intentionally and knowingly 

exercised control over the 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’s 
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information or its accuracy. Nor do they suggest 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 record, 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 the judgment of the trial court. 

Brian Quinn 

 Chief Justice 

Do not publish.