COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

CECI L I A ORTI Z , Appellant,

v. THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-09-00185- CR

Appea l from Criminal District Court No. 1 of El Paso County , Texas (TC # 20080D01636)

O P I N I O N Cecilia Ort i z wa s ch ar g ed by indictment with one count of poss ession of m arijuana , more than five pounds and less than fifty pounds. A jury found Appellant g uilty and the parties rea ched

an ag ree ment reg arding punishment. The trial court assessed punishment at five y ear s’ confine ment in the Texas Depa

rtment of Criminal J ustic e - I n stitut ional Division, suspended that confine ment, and place d Appellant on community supervision for five y ear s. For the rea sons that follow, we aff irm. F ACTUAL BACK GR OUND Customs and Bor der Protection Offic er Serg io Martinez was on duty working the g rave y ard shift on J anuar

y 8, 2008. His duties included inspecting incoming tr aff ic from Mex ico t o proce ss the vehicles and passe n gers. At around 6:25 a.m., a bluish-gr een 1999 For d F- 150 pickup truck caug ht his attention. Appellant was driving and her two minor children we re pa sseng ers. Martinez asked Appellant whether was bring ing any thing back from Mexi co and Appellant said she was not. Martinez then asked i f Ap p el l an t owned the truck. Appellant told him that it belong ed to her brother, Fr ancisc o Ortiz. He had boug ht it about a month ear lier in J uare z, Mexi co, but she had be en driving it for about a week. Martinez next asked for t he vehicle reg istration andAppellant hande d him a Mexi can ve hicle re g istration listing the owner as L uis G ay tan. Appellant did not know who Gay

tan was. M a r ti n e z o b serve d that as Appellant drove up for inspection, she was holding her leg al permit resident a lien car d in her rig ht hand and her hand was visi bly shaking

. She also had watery ey es. Martinez believed Appellant exhibi ted signs of nervousne ss. He descr ibed how Ap pellant’s left hand held onto the steering whee l with a “death g rip” and he could see her knuckles turning white. He inspected t h e g as tank, the bed of the vehicle, and the spare tire. The spare was mounted underne ath the truck and it was extremely clea n compar ed to the rest of the underc arr iag e which had dried mud, dry dirt, and dust. Martinez also no t i ce d fresh tar wher e the rim met the tire. He explained that the purpose of the tar w as to seal the sc ent of drug s. After the prima

r y in s p ection, Martinez called Offic er Her bert Monahan for assistance

. When asked to step out of t he vehic l e, Appellant did not display any rea ction or say any thing. Once the truck moved to seconda

ry inspection, a K-9 office r an d h i s d o g i nspecte d it. Martinez eventua lly lowere d the spare tire from the truck and sliced it open. I t contained thirty bundles of what appea red
to be marijuana

. The bundles wer e remove d and a field test of the g ree n leaf y substance resulted in a positive test for mar ijuana. Offic er Monahan testified that Offic er Martinez called him for assistance around 6:25 a.m. Monahan rec alled having a conver sation with Appellant. W h en h e asked Appellant about the purpose of her t ri p t o Mexi co, she responde d that she had been visiti ng rela tives overnig ht. She claimed that the tr

uck belong ed to he r brother, Fr ancisc o Ortiz. When the reg istration show ed the

name of L uis Gay

tan, Monahan asked Ap p ell ant, “I f y our brother had owned it for a month, how come it’s not in his na

me? ” Appellant responde d, “Well, I g uess he hasn’t had the time to chang e it.” Monahan observe d that Appellant was very nervous and her whole body was visibly shaking

.Acc ording to Monahan, Appellant also had a forc ed smile. When Monahan escor ted Appellant and her c hildren to the hea d house, she did not say a wor d. J ose L uis Rivera, a detec tive with metro narc otics in the Sheriff’ s Depa rtment, testified that he has worke d underc over f or ten y ear s neg otiating deals for marijuana , coca ine, and other drug s. Rivera testified that depending on the quality , the price of marijuana in El Paso is betwee n $230 and $280 per pound. The price for s t o ri n g m ar i juana can be from $10 to $20 a day depending on the
amount. The price for transporting a small load of marijuana acr oss the bridg e can be $500. I t can also be $50 a pound for larg er loads. Rivera identified Appellant’s role in this case as the transporte r. T y

pically , the motive of a transporte r is to make money . Although the transporte r ty pically does not load the vehicle, the transporte r is usually awa re of what the vehicle contains. I n Rivera’ s experience , the g rea se or tar used betwee n the tire and the rim is to throw off any dog s that might ale rt to the odor of ma rijuana. Appellant testified in her own defe nse. I n 2008, she was living and working in El Paso. She owned a 2001 Dodg e Stratus which neede d repa irs. She took it to a shop in J uare z wher e it rema ined for two wee ks. During that time, Appellant borrowe d her brother’ s car . The night befor e her arr est, Appellant stay ed in J uare z at her mother’ s house. When she crossed t he Ysleta Port of Entry , she

was on her w ay

to drop the childre n off a t school. She denied ha ving w ater y ey es or shaky hands. She also denied know ing tha t there w as marijuana in her ve hicle. SUF F ICIENCY OF THE E VIDENCE I n her sole issue for revie w, Appellant complains that the evidenc e is leg ally insufficient to sustain her c onviction for possession of mar ijuana. Standard of Review I n revie wi n g t h e l eg al sufficie ncy of evidenc e, we consider all evidenc e in the light mostfavor able to the verdic t and deter mine whether any rational trier of fac t co uld have found the essential elements of the cr i m e b ey ond a rea sonable doubt. Jack son v. Virginia , 443 U.S. 307, 318-19, 99 S.Ct

. 27 8 1 , 2788-89, 61 L .Ed.2d 560 (1979). We look at “eve nts occur ring befor e, during and afte r the commission of the offe nse and may rely on actions of the defe ndant which show

an understanding and common desig n to do the prohibited act.” Hooper v. State , 214 S.W .3d 9, 13 (Tex.Crim.App. 2007), quoting Cordova v. State , 698 S.W .2d 107, 111 (Tex.Crim.App. 1985). We must acc ount for “the responsibility of the trier of fac t t o fa i rl y resolve conflicts in testimony , to weig h the evidenc e, and to draw rea sonable infere nces from basic fac ts to ultimate fac ts.” Hooper , 214 S.W .3d at 13, quoting Jackson , 443 U.S. at 318-19, 99 S.Ct. 2181. Possession To prove possession of marij u a n a , th e St a te mu st nece ssarily prove that the acc used exercised

car e, control, and manag ement over th e m ar i j u an a, and that he knew he was in possession of the
contra band. Martin v. State , 753 S.W .2d 384, 386 (Te x. Cr im.App. 1988). Possession involves more than s imply being wher e the action is ; it require s ex er ci s e o f d o minion and control over the thing alleg edly possessed. McG oldrick v. State , 682 S.W .2d 573, 578 (Tex.Crim.App. 1985). Evidence
must aff irmatively link the acc used to the contra band by evidenc e indicating knowledg e and control. Menc haca v. State , 901 S.W .2d 640, 651 (Tex.App--El Paso 1995, pet. ref ’d), citing W

aldon v. State , 579 S.W .2d 499, 501 (Tex.Crim.App. 1979). The burden of establishing aff irmative links rests upon t h e State. Menc haca , 901 S.W .2d at 651, citing Damron v. State , 570 S.W .2d 933, 93 5 (Tex.Crim.App. 1978). Proof of knowledg e is an infere nce draw n by t h e j u ry from all circ umstances. Dillon v. Stat e , 574 S.W .2d 92, 94 (Tex.Crim.Ap p . 1978). Knowledg e may arise from the conduct of and rema rks by the acc used or from circ umstances surrounding the acts eng ag ed in by the ac cused. Sharpe v. State , 881 S.W .2d 487 (Tex.App.--El Paso 1994, no pet.)

.An aff irmative link, which may be shown by either direc t or circ umstantial evidenc e, “must establish, to the requisite level of confide nce, that the acc used’s connec tion with the drug was more than just fortuitous.” Brown v. State , 911 S.W .2d 744, 747 (Tex.Crim.App. 1995). Fa ctors that may aff irmatively link the acc used to contra band include whether : (1) the contra band was in plain view

or rec overe d from an enclose d place ; (2) the acc used wa s the owner of the premises or the place wher e the contra

band was found; (3 ) t h e ac cused was found with a larg e amount of cash; (4) the
contra band was convenie ntly acc essible to t h e ac cu s ed; (5) the contra band was found in close proxi mity to the acc used; (6) a strong residual odor of the contra band was prese nt; ( 7) the acc used possessed other contra

band when arr ested; (8) para pherna lia to use the contra band was in vie w, or found on the acc used; (9) the phy sical condition of the acc used indicated rec ent consumption of the
contra b an d in question; (10) conduct by the acc used indicated a consciousness of g uilt; (11) the

acc used att em p t ed t o flee ; (12) the acc used made furtive g estures; (13) the acc used had a specia l

connec tion to the contra

band; (14) the occupa

nts of the premises g ave conflicting statements about rele vant matters; (15) the acc used made incr iminating statements connec ting himself to the
contra band; (16) the quantity of the contra band; and (17) the acc used was observe d in a suspicious

are a under suspicious circ umstances. Lassaint v. State , 79 S.W .3d 736, 740-41 (Tex.App.--Corpus Christi 2002, no pet.). Any list of aff irmative links is non-exclusive. C a s t el l ano v. State , 810 S.W .2d 800, 805 (Tex.App.--Austin 1991, no pet.). The logic al forc e the fac tors play in establishing the elements of the offe nse is more important than the number of fac tor s i n v o l v ed. See Jones v. State , 963 S.W .2d 826, 830 (Tex.App.--Te x arka na 1998, pet. r ef’ d). Analysis The State established aff irmative l inks showing that Appellant’s connec tion with the marijuana was more than just fortuitous. She was the driver of the truck attempting t o cr o s s theYsleta Port of Entry from Mex ico and she had been driving the vehicle f or at lea st five day s. The office rs testified that Appe llant was extremely nervous, visibly

shaking , and had water

y ey es. She also appe are d to ha

ve a “dea th g rip” on the steer ing w heel a nd a for ced smile. Appe llant ga ve the office rs incorre ct information reg arding the owner ship of the vehicle. Offic er Martinez testified that the spare tire containing the marijuana was clea ner than the underc arr iag e of the truck and had been in place “not m ore than a day or t wo.” Be cause Appellant testi fied that she had possession of t he

car for the previous wee k, the jury could have inferr ed that the marijuana was loaded in the spare tire during that time. The jury was also fre e to disbelieve Appellant’s contra dicting testimony that she did not display any signs of nervousne ss or that her be havior did not sug g ested a consciousness of g uilt. Finding the evidence to be lega lly sufficie nt, we overrule Appellant’s sol e point and affirm the judg ment of the trial c ourt. Aug ust 31, 2010 ANN CRAWFORD McCL URE, J ustice Be fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)