Andrew George Robinson v. State ( 2000 )

NUMBER 13-00-092-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

ANDREW GEORGE ROBINSON

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 103rd District Court of Cameron County, Texas.

____________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Rodriguez

Opinion by Justice Dorsey

Andrew George Robinson appeals his conviction for possession of marihuana. He contends that the evidence offered by the State is legally and factually insufficient to show that he knowingly possessed the marihuana.

The State's evidence showed that appellant arrived at the Harlingen bus station on a bus from McAllen. The luggage from the bus was loaded onto a cart. Only three bags were on the cart. The manager of the bus station and a border patrol agent saw appellant take a duffel bag off of the cart and try to walk away with it. The manager told him to put it back on the cart, which he did. A drug dog sniffed the three bags on the cart and alerted to the bag which appellant had picked up.

The border patrol agent asked appellant if that was his bag, and he denied it. Appellant also insisted, when confronted, that the agent "did not" see him pick up the bag. The manager specifically remembered telling appellant to put the bag back on the cart earlier. Appellant then contended that he mistakenly thought that the bag was his. It was later determined that none of the other bags from the bus belonged to appellant. Because the bag was locked the border patrol agent forced it open and found thirty-four pounds of marihuana in the bag.

When reviewing the legal sufficiency of the evidence we apply the test set forth in Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). When reviewing the factual sufficiency of the evidence we apply the test set forth in Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). When an accused is charged with possession of a controlled substance the State must prove the defendant exercised actual care, custody, control, or management over the contraband and knew the matter he possessed was contraband. Grant v. State, 989 S.W.2d 428, 433 (Tex. App.--Houston [14th Dist.] 1999, no pet.). To prove knowing possession the State must present evidence that affirmatively links the defendant to the controlled substance. Id.

In this case two persons offered testimony which affirmatively linked appellant to the marihuana in that they saw him pick up the bag and walk away with it. The circumstantial evidence indicates that the bag was appellant's in that no other bag belonged to him, yet he impliedly admitted that he had a bag by saying that he mistook that bag for his.

We hold that any rational trier of fact could have found beyond a reasonable doubt that appellant knowingly possessed the marihuana. We also hold that the judgment was not so contrary to the overwhelming weight of the evidence that it was clearly wrong and unjust. We overrule the issues.

We AFFIRM the judgment.

J. BONNER DORSEY, Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 7th day of December, 2000.