IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0967-15

GENARO GALVAN ACOSTA, JR., Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE THIRTEENTH COURT OF APPEALS

LIVE OAK COUNTY

KEASLER, J., delivered the opinion of the Court in which KELLER, P.J., and

HERVEY, RICHARDSON, YEARY, and NEWELL, JJ., joined. JOHNSON, J., filed a

concurring opinion in which ALCALA, J., joined. MEYERS, J., filed a dissenting

opinion.

O P I N I O N

A jury convicted Genaro Acosta, Jr. of possession of fifty pounds or less but more

than five pounds of marihuana and sentenced him to twelve years’ imprisonment. The

Thirteenth Court of Appeals held that there was insufficient evidence to support the

verdict and rendered a judgment of acquittal. Because the cumulative evidence supports

the verdict, we reverse the court of appeals’ judgment and reinstate the conviction.
ACOSTA—2

I.

Acosta was driving in Live Oak County when Officers Jose Prado and Raul Garcia

pulled him over for speeding. During the stop, Acosta was unusually nervous and

talkative. When the officers had him step out of the car, Acosta began to fidget.

According to Officer Garcia, Acosta’s behavior was abnormal. When Acosta and his

wife were questioned separately, they gave inconsistent answers to basic questions like

who owned the car, why they were traveling, and how long they would be gone.

Additionally, the officers suspected Acosta of drug trafficking based on the

following circumstances. First, the car belonged to a third party. Second, the car key was

the only one on the key ring. Third, Acosta was carrying $300, a large amount

considering he and his wife were both unemployed. According to the officers, these

circumstances were consistent with drug trafficking.

With Acosta’s consent, the officers searched the car. Under the visor and in the

trunk, they found an herb that is generally carried for good luck. A Santa Muerte charm,

often carried by drug traffickers, was found in Mrs. Acosta’s purse. The spare tire, which

sat under the car, had oil on it and was unusually clean. Oil acts as a lubricant and primes

the tire so it will slip on to the rim. Based on the oil and the cleanliness, Officer Prado

determined that the spare tire had recently been placed on the rim. Officer Garcia
ACOSTA—3

testified that there were tooling marks under the spare tire, which indicated that the tire

had recently been lowered. The officers cut open the spare tire and found 24.48 pounds

of marihuana.

The officers confronted Acosta about the drugs. Acosta responded to the officers

in Spanish, and his statement was translated twice, first by Officer Prado and then by an

interpreter, Enrique Ramirez. According to Officer Prado, Acosta said “If I take the fall

will you let [my family] go.” Interpreter Ramirez translated the statement as “I’ll give

myself up if you don’t arrest my family.”

A jury convicted Acosta of possession of fifty pounds or less but more than five

pounds of marihuana. On appeal, the court of appeals held that there was insufficient

evidence to prove Acosta exercised control, management, or care over the marihuana,

reversed the conviction, and rendered an acquittal. The court determined that the

1

evidence established Acosta was driving the car, but because the car was borrowed,

affirmative links were required. The court then discussed missing evidence that, in its

2

view, would have served as affirmative links.

3

We granted the State’s petition for discretionary review to evaluate the court of

Acosta v. State, No. 13-14-00415-CR, 2015 WL 4235132, *1 (Tex.

1

App.—Corpus Christi Feb. 24, 2016) (not designated for publication).

Id. at *4.

2

Id. at *5.

3
ACOSTA—4

appeals’ sufficiency analysis.

II.

In a sufficiency analysis, all evidence is reviewed in the light most favorable to the

verdict. Any conflicting inferences are resolved in favor of the verdict. If a reasonable

4 5

jury could find the defendant guilty based on the evidence, then we must affirm the

verdict. To support Acosta’s conviction, the evidence must show that (1) he exercised

6

control, management, or care over the marihuana and (2) he knew it was contraband.

7

The court of appeals correctly identified the standard of review, but misapplied it

in two ways. First, the court performed a “divide and conquer” analysis. We have

8 9

rejected the “divide and conquer” analysis in legal sufficiency questions, and determined

that the correct analysis considers whether the evidence as a whole supported the

verdict. Second, the court focused on evidence that was missing but, in its view, could

10

Jackson v. Virginia, 443 U.S. 307, 319 (1979).

4

Id.

5

Id.

6

Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005).

7

Acosta, 2015 WL 4235132, at *3.

8

Id. at *5-6.

9

Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011).

10
ACOSTA—5

have provided affirmative links. The focus of a sufficiency analysis is whether the

11

evidence present in the record, and reasonable inferences drawn from it, can support the

verdict, and does not consider missing evidence.

12

The car where the drugs were found was borrowed. Acosta did not have exclusive

possession of it. But there are affirmative links that support the verdict. The record

shows the following circumstances: (1) Acosta was acting unusually nervous and jittery;

(2) he would not stop talking; (3) he and his wife gave inconsistent answers when

interviewed separately; (4) he made an arguably incriminating statement; (5) his key ring

had only one key; (6) the car was borrowed; (7) although unemployed, he was carrying

$300; (8) a Santa Muerte charm was in his wife’s purse; (9) herbs used for good luck

were found in the car; (10) the spare tire was unusually clean; (11) the spare tire’s

lubrication indicated it had recently been placed on the rim; and (12) the tooling under the

tire indicated it had recently been lowered.

We hold that the cumulative weight of the evidence, along with all reasonable

inferences a jury could draw, sufficiently establishes affirmative links that support the

verdict. The above circumstances show Acosta exhibiting suspicious conduct and several

indications of drug trafficking. Further, the cleanliness of the tire, the oil on the tire, the

Acosta, 2015 WL 4235132, at *5.

11

Jackson, 443 U.S. at 318-19.

12
ACOSTA—6

tooling under the tire, and the presence of good luck herbs, which alone might be

innocent conduct, together with the other evidence create a reasonable inference of drug

trafficking and knowing possession of marihuana. Based on the above circumstances and

resolving all conflicting inferences in favor of the verdict, there is sufficient evidence to

convict Acosta of possession of fifty pounds or less but more than five pounds of

marihuana.

III.

We reverse the court of appeals and reinstate the conviction.

DELIVERED: November 23, 2016

DO NOT PUBLISH