Cedillo v. State, No. 02-07-360-CR (Tex. App. 12/18/2008), 02-07-360-CR.

Decision Date18 December 2008
Docket NumberNo. 02-07-360-CR.,02-07-360-CR.
PartiesANTHONY RYAN CEDILLO, Appellant, v. THE STATE OF TEXAS, State.
CourtTexas Court of Appeals

Appeal from Criminal District Court No. 2 of Tarrant County.

Panel: DAUPHINOT, WALKER, and McCOY, JJ.

MEMORANDUM OPINION1

BOB McCOY, Justice.

I. Introduction

In six points, Appellant Anthony Ryan Cedillo appeals his conviction for possession of a controlled substance of four grams or more, but less than two hundred grams, of methamphetamine. We affirm.

II. Factual and Procedural History

Cedillo was the front passenger in a car that was stopped by gang unit officers for a traffic violation. Officers Guitterrez and Kimball had followed the car because it came from a "known gang house," and when the officers activated their vehicle's red and blue lights, they saw the driver and Cedillo make rapid movements and lean forward inside the car. As Officer Guitterrez approached the car, he heard a "thud" on the floorboard and tapped the window for the driver to open the door. When the driver did not respond, Officer Guitterrez opened the driver's door and saw a chrome pistol on the floorboard.

Officer Kimball removed Cedillo from the car and discovered he had a silver Foley knife clipped to his jacket pocket. During a safety sweep of the front passenger area of the car, Officer Kimball found two bags containing what was later determined to be 54.99 grams of methamphetamine "shoved" between the front passenger seat and the center console, beside where Cedillo's left leg had been.

Officer Kimball arrested Cedillo for possession of a controlled substance. During a search incident to the arrest, Officer Kimball found in Cedillo's rear pocket a black leather pouch containing a digital scale of the type used for weighing narcotics, empty Ziploc bags of the type commonly used for packaging narcotics, and a red straw of the type commonly used to move the drug methamphetamine from one baggie to another.

At trial, Cedillo moved to suppress all the evidence found in the car, arguing that the officers illegally stopped the car. The trial court found that the officers had probable cause to stop the car based on a traffic violation and denied the motion to suppress. The jury found Cedillo guilty as charged, sentenced him to sixty years in prison, and assessed a $3,500 fine. This appeal followed.

III. Legal and Factual Sufficiency

In Cedillo's first and second points, he asserts that the evidence is legally and factually insufficient to sustain his conviction for possession of a controlled substance.

A. Standard of Review

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the prosecution in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Instead, we "determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We must presume that the factfinder resolved any conflicting inferences in favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.

The sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Bowden v. State, 166 S.W.3d 466, 470 (Tex. App.-Fort Worth 2005, pet. ref'd). Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001); Malik, 953 S.W.2d at 240. The law as authorized by the indictment means the statutory elements of the charged offense as modified by the charging instrument. See Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).

When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the factfinder's determination is clearly wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the evidence supporting the conviction that the factfinder's determination is manifestly unjust. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground, we must determine, with some objective basis in the record, that the great weight and preponderance of all the evidence, though legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.

In determining whether the evidence is factually insufficient to support a conviction that is nevertheless supported by legally sufficient evidence, it is not enough that this court "harbor a subjective level of reasonable doubt to overturn [the] conviction." Id. We cannot conclude that a conviction is clearly wrong or manifestly unjust simply because we would have decided differently than the jury or because we disagree with the jury's resolution of a conflict in the evidence. Id. We may not simply substitute our judgment for the factfinder's. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record clearly reveals that a different result is appropriate, we must defer to the jury's determination of the weight to be given contradictory testimonial evidence because resolution of the conflict "often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered." Johnson, 23 S.W.3d at 8. Thus, we must give due deference to the factfinder's determinations, "particularly those determinations concerning the weight and credibility of the evidence." Id. at 9.

B. Analysis

Cedillo claims that the record does not establish that he had actual or constructive possession of any controlled substance. Possession involves the exercise of control, management, or care over the controlled substances. See Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). Standing alone, Cedillo's presence at the location of the drugs is insufficient to establish this element. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). However, when combined with other evidence, presence or proximity may be sufficient to establish the requisite proof of that element. Id. This other evidence, or "affirmative links," are weighed not necessarily by the number of them, but by the "logical force" when taken together. Id. at 161-62. The links, which are not a litmus test, 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. Id. at 162 n.12.

The State's evidence consisted of the following:

• Cedillo was the front passenger in a car stopped by officers for a traffic violation after it left a known gang house.

• Cedillo and the driver began making rapid movements and leaning forward inside the car after officers pulled over the car and activated their vehicle's red and blue lights.

• When Officer Guitterrez approached the car, he heard a "thud" to the floorboard.

• The officer tapped on the window for the driver to open the door, but the driver did not comply.

• Cedillo and the driver continued moving around inside the car, so Officer Guitterrez opened the driver's door.

• The officer saw a small chrome pistol on the floor board when the driver began exiting the car.

• Cedillo had a silver Foley knife clipped to his jacket pocket when Officer Kimball removed him from the car.

• Officer Kimball found two bags containing what was later determined to be 54.99 grams of methamphetamine "shoved" between the front...

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