NUMBER 13-24-00015-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

 

JOSE CRUZ TUNAL, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

ON APPEAL FROM THE 451ST DISTRICT COURT

OF KENDALL COUNTY, TEXAS

 

MEMORANDUM OPINION

Before Justices Benavides, Longoria, and Silva

Memorandum Opinion by Justice Benavides

A jury convicted appellant Jose Cruz Tunal of possession with intent to deliver a 

controlled substance in penalty group one weighing more than four and less than 200 

grams, a first-degree felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d). The trial 

court sentenced Tunal to forty years’ imprisonment. By a single issue, Tunal argues that 

the evidence was insufficient to support his conviction. We affirm.
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I. BACKGROUND1

Justin Granado, an investigator with the Kendall County Sheriff’s Office, and 

Dalton Mitschke, a police officer with the Lower Colorado River Authority, both testified 

that they happened upon a stalled vehicle while traveling along I-10 on November 2, 2021.

According to Investigator Granado, the vehicle “appeared to be broken down” and “was 

partially in the slow lane.” Investigator Granado conducted a brief search of the vehicle 

and its immediate surroundings but “couldn’t find anybody” associated with the vehicle.

Since “it was high-traffic times,” and Investigator Granado felt he “couldn’t leave [the 

vehicle] there, . . . [he] called for a tow truck.”

As Officer Mitschke “was walking around the vehicle,” he “notice[d] a baggie on 

the center console containing a crystal-like substance.” Investigator Granado also 

“noticed a plastic bag with a large quantity of a crystallized substance on the center 

console armrest.” Officer Mitschke then observed a “red and black backpack in the 

driver’s seat,” inside of which was an “ID card, some clothing, [and] a small digital scale.” 

The “ID card” had Tunal’s name on it and “[t]here was a fine residue of . . . a crystal-like 

substance on top of the scale.” From Officer Mitschke’s experience, scales like the one 

found in this case are “usually used to weigh out and to pack individual baggies of 

paraphernalia, like drug paraphernalia.” Investigator Granado observed that there was 

also a “bag of clear plastic baggies that are commonly used to distribute narcotics.” Also 

located inside the vehicle were a pill bottle and articles of mail belonging to other 

1 This appeal was transferred to this Court from the Fourth Court of Appeals in San Antonio by 

order of the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (granting the supreme court the 

authority to transfer cases from one court of appeals to another at any time that there is “good cause” for 

the transfer).
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individuals. Photos of the exterior and interior of the abandoned vehicle, as well as some 

of its isolated contents, were admitted into evidence.

While on the scene, Investigator Granado conducted a “field test” of the substance 

on the surface of the digital scale using a “methamphetamine test kit,” which yielded a 

positive result for methamphetamine. Dispatch for the City of Boerne then advised Officer 

Mitschke and Investigator Granado that a man was “walking eastbound around the 533 

mile marker . . . close to the highway.” Officer Mitschke and Investigator Granado then

traveled eastbound and located Tunal “approximately two and a half, [to] three miles” from 

the abandoned vehicle. Officer Mitschke testified that it was uncommon to see someone 

walking “in that area and . . . at that time of the day.”

Tunal was speaking on the phone when the officers initially approached him, and 

Investigator Granado overheard Tunal saying, “[Y]eah, they’re here. I know, boss,” or

“something to that effect.” Officer Mitschke explained that Tunal “was sweat 

drenched . . . [and] kind of talking frantically.” Tunal identified himself to the officers and 

explained that “he was dropped off by a friend.” Officer Mitschke found this suspicious 

since the officers had found Tunal’s identification in the abandoned vehicle. After Tunal 

was asked about this inconsistency, “he said he was driving the vehicle and that it ran out 

of gas.” Tunal also “said he was borrowing the backpack” found in the abandoned vehicle

but that the items found inside it were his. In other words, “[h]e didn’t claim ownership of 

the actual backpack, just what was in it.” Tunal was subsequently arrested and 

transported to jail in Officer Mitschke’s patrol car. Video footage from the cabin of Officer 

Mitschke’s patrol car was admitted into evidence. In the footage, Tunal frequently curses
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in both English and Spanish, and states at one point, “Should’ve just stayed in the 

[expletives] . . . . I should’ve never asked for that [expletives] car. . . . All ‘cause I wanted 

to take a shot.”

Oscar Cazares, a forensic scientist with the Texas Department of Public Safety, 

testified that he tested the contents of the large plastic bag that Officer Mitschke and 

Investigator Granado discovered in the abandoned vehicle. According to Cazares, the 

results indicated that the bag contained 27.56 grams of methamphetamine.

The jury found Tunal guilty, and the trial court sentenced Tunal as described 

above. This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

By his sole issue, Tunal argues the evidence was insufficient to show that he 

possessed the methamphetamine and intended to deliver it.

A. Standard of Review & Applicable Law

“The sufficiency of the evidence is measured by comparing the evidence produced 

at trial to ‘the essential elements of the offense as defined by the hypothetically correct 

jury charge.’” Curlee v. State, 620 S.W.3d 767, 778 (Tex. Crim. App. 2021) (quoting Malik 

v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “A hypothetically correct jury 

charge ‘accurately sets out the law, is authorized by the indictment, does not 

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s 

theories of liability, and adequately describes the particular offense for which the 

defendant was tried.’” Id. (quoting Malik, 953 S.W.2d at 240). In reviewing the sufficiency 

of the evidence, we consider all the evidence presented in the light most favorable to the 
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verdict to determine whether the trial court was justified in finding guilt beyond a 

reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality 

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

Here, the State was required to prove that Tunal knowingly possessed with intent 

to deliver a controlled substance listed in penalty group one, which includes 

methamphetamine. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.112(a), (e); 

Espino-Cruz v. State, 586 S.W.3d 538, 543 (Tex. App.—Houston [14th Dist.] 2019, pet. 

ref’d).

B. Possession

To establish possession, “the State must prove that the defendant’s connection 

with the controlled substance is more than just fortuitous.” Medina v. State, 565 S.W.3d 

868, 873 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d). “Mere presence at the 

location where drugs are found is . . . insufficient, by itself, to establish actual care, 

custody, or control of those drugs.” Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 

2006). Rather, the State must show “that the defendant (1) exercised ‘actual care, 

custody, control, or management’ over the substance and (2) knew the substance was 

contraband.’” Espino-Cruz, 586 S.W.3d at 543 (first citing TEX. HEALTH & SAFETY CODE 

ANN. § 481.002(38) (defining “possession”); then citing Blackman v. State, 350 S.W.3d 

588, 594 (Tex. Crim. App. 2011); and then citing Evans, 202 S.W.3d at 161). Additionally, 

“possession need not be exclusive,” so long as there are affirmative links between the 

defendant and the drug. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 

1985).
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A defendant must “be affirmatively linked with the drugs he allegedly possessed, 

but this link need no[t] . . . be so strong that it excludes every other outstanding 

reasonable hypothesis except the defendant’s guilt.” Brown v. State, 911 S.W.2d 744, 

748 (Tex. Crim. App. 1995). Some of the factors which may circumstantially establish the 

legal sufficiency of the evidence to prove a knowing possession include:

(1) the defendant’s presence when a search is conducted;

(2) whether the contraband was in plain 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 defendant 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 present;

(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 conduct of the defendant indicated a consciousness of 

guilt.

Tate v. State, 500 S.W.3d 410, 414 (Tex. Crim. App. 2016) (citing Evans, 202 S.W.3d at 
7

162 n.12). It is not the number of links that is dispositive, but the combined logical force 

of all the evidence, direct and circumstantial. Evans, 202 S.W.3d at 162. “Although these 

factors can help guide a court’s analysis, ultimately the inquiry remains 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?” Tate, 500 S.W.3d at 414 (citing Jackson, 443 U.S. at 318–19).

When the officers initially searched the abandoned vehicle, they discovered the 

large plastic bag of methamphetamine in plain view. See id. Tunal was not present when 

the search was conducted, and, in fact, was about “two and a half, [to] three miles” away 

from the search. But there is no requirement that a defendant be caught in the act, so to 

speak, of possession for the State to prove that he exercised actual care, custody, control, 

or management over the controlled substance. See Rodriguez v. State, 888 S.W.2d 211, 

213, 215 (Tex. App.—Corpus Christi–Edinburg 1994, no pet.) (concluding that the 

evidence was sufficient to establish appellant knowingly possessed a controlled 

substance where appellant’s boot prints were found leading to and from bundles of 

marijuana). The defendant’s proximity to the controlled substance is but one factor among 

many that we consider. See Tate, 500 S.W.3d at 414.

When Tunal was stopped, Investigator Granado overheard Tunal saying, “[Y]eah, 

they’re here. I know, boss,” or “something to that effect.” Tunal initially indicated to the 

officers that he was dropped off by a friend. However, after being confronted with the fact 

that his identification was found in the abandoned vehicle, he acknowledged that he had 

been driving it and that it ran out of gas. That Tunal originally sought to distance himself 
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from the abandoned vehicle by claiming someone else dropped him off on the side of a 

busy highway indicates an awareness that being linked to the vehicle could also link him 

to its illegal contents and is thus a circumstance affirmatively indicating his guilt. See 

Santiesteban-Pileta v. State, 421 S.W.3d 9, 14 (Tex. App.—Waco 2013, pet. ref’d) (“[A]n 

implausible story by the defendant can provide circumstantial evidence indicating guilty 

knowledge of the controlled substance.”). He also later admitted that the contents of the 

backpack—which included a digital scale topped with a residue of methamphetamine—

were his. See Tate, 500 S.W.3d at 414. After he was placed under arrest, Tunal also 

implicated himself, stating, “Should’ve just stayed in the [expletives] . . . . I should’ve 

never asked for that [expletives] car. . . . All ‘cause I wanted to take a shot.” See id.

Tunal points to the articles of mail addressed to another person, the pill bottle that 

was prescribed to another individual, and the fact that the vehicle was registered to 

another individual. However, Investigator Granado and Officer Mitschke testified that they 

found no other individuals in the proximity of the vehicle. Further, there was no evidence 

presented that those individuals were ever in the vehicle on the evening in question.

Given the combined and cumulative force of the evidence and any reasonable 

inferences therefrom, we conclude that the evidence was sufficient to support the jury’s 

finding that Tunal knowingly possessed the methamphetamine. See id.

C. Intent to Deliver

“Intent to deliver may be proved by circumstantial evidence, including evidence 

regarding a defendant’s possession of the drugs.” Mack v. State, 859 S.W.2d 526, 528 

(Tex. App.—Houston [1st Dist.] 1993, no pet.). Factors that may be considered when 
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determining whether the evidence showed an intent to deliver include:

(1) the nature of the location at which the defendant was arrested;

(2) the quantity of controlled substance in the defendant’s possession;

(3) the manner of packaging;

(4) the presence of drug paraphernalia (for either drug use or sale);

(5) the defendant’s possession of large amounts of cash; and

(6) the defendant’s status as a drug user.

Williams v. State, 902 S.W.2d 505, 507 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d); 

see also Hardaway v. State, No. 13-15-00507-CR, 2017 WL 3431827, at *2 n.3 (Tex. 

App.—Corpus Christi–Edinburg Aug. 10, 2017, pet. ref’d) (mem. op., not designated for 

publication).

Much of the same evidence that shows Tunal knowingly possessed the 

methamphetamine also shows that he intended to deliver the narcotic. Investigator 

Granado testified that with that quantity of methamphetamine, “what they can do is they 

take that large quantity, and they’ll break it down into smaller quantities, and they sell 

that.” Tunal acknowledged that the digital scale that tested positive for methamphetamine

was his. Small plastic bags that Investigator Granado testified “are commonly used to 

distribute narcotics” were also discovered in the abandoned vehicle. This evidence 

suffices to prove not only that Tunal possessed the methamphetamine, but that he also 

intended to distribute it. See Poindexter v. State, 153 S.W.3d 402, 412 (Tex. Crim. App. 

2005), abrogated on other grounds by Robinson v. State, 466 S.W.3d 166, 173 n.32 (Tex. 

Crim. App. 2015); see also Allen v. State, No. 13-13-00188-CR, 2014 WL 4402135, at *6 
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(Tex. App.—Corpus Christi–Edinburg Sept. 4, 2014, no pet.) (mem. op., not designated 

for publication) (concluding that the evidence was sufficient to show an intent to deliver 

where, “in addition to the methamphetamines,” the evidence seized from appellant’s 

possession included “baggies, a digital scale, and other drugs”).

Tunal argues that “[a]lthough some facts might suggest [an] intent to 

deliver[,] . . . this Court in reviewing the sufficiency of the evidence must examine all the 

evidence in the record and not just the evidence that supports the verdict.” But an 

important aspect of our legal sufficiency review is that we review all the evidence “in the 

light most favorable to the verdict.” Adames v. State, 353 S.W.3d 854, 862 (Tex. Crim. 

App. 2011); see Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Having done 

so, we conclude that the evidence was sufficient to establish that Tunal knowingly 

possessed methamphetamine with the intent to deliver.

We overrule Tunal’s sole issue on appeal.

III. CONCLUSION

We affirm the trial court’s judgment.

GINA M. BENAVIDES

Justice

Do not publish.

TEX. R. APP. P. 47.2(b). 

Delivered and filed on the

5th day of July, 2024.