NOS. 205-03 & 206-03






Womack, J., delivered the opinion for a unanimous Court.

These cases present issues about the sufficiency of evidence to convict a person of possessing controlled substances.

The appellant was indicted for possession of more than five, but not more than fifty, pounds of marihuana, and for possession of at least four hundred grams of cocaine. The indictments were consolidated for trial. The appellant waived trial by jury. The district court found him guilty of both offenses, and sentenced him to imprisonment for five years in the marihuana case, and to imprisonment for ten years and a fine of $100 in the cocaine case.

On appeal the appellant complained that the evidence was insufficient as a matter of law and as a matter of fact. The court of appeals affirmed the judgments. (1) We granted review to decide whether the court of appeals correctly applied the test for legal sufficiency of the evidence, and whether the court of appeals confused the culpable mental state (knowledge) with the prohibited conduct (actual care, custody, or control). (2) Because the court incorrectly applied the legal sufficiency test, we need not address the second ground for review.

It is well to begin with the law's requirements to convict a person of an offense of possession. Chapter Six of the Texas Penal Code sets forth the general requirements for criminal culpability. (3) A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession. (4) Possession is a voluntary act if the possessor obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control. (5)

Not only must a person voluntarily engage in conduct; a person does not commit an offense (except for certain "strict-liability" offenses that dispense with any mental element) (6) unless he engages in the proscribed conduct with the culpable mental state that the definition of the offense requires. (7)

Where the offense is the possession of illegal drugs, the proscribed conduct is possession (8) -- which is defined as actual care, custody, control, or management (9) -- of the drugs. The culpable mental state is intent or knowledge. (10)

"A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result." (11) "A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result." (12) Knowledge is a lower degree of culpable mental state than intent. (13)

Therefore the minimum requirement for conviction of possessing an illegal drug would be proof that the person voluntarily and knowingly engaged in the conduct of possessing the drug; that is, that the person voluntarily exercised actual care, custody or control of the drug when he was aware of the nature of his conduct or that those circumstances that surrounded his conduct existed. (14)

No person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. (15) This is an essential of Fourteenth Amendment due process. (16) It follows that when a conviction was obtained in a state trial, even when no rational trier of fact could have found guilt beyond a reasonable doubt, it cannot constitutionally stand. (17) In applying the "no-rational-trier-of-fact" test on appeal, we view the evidence in the light most favorable to the State. (18)

The evidence in this case came from the arresting officer, from a stipulation, and from a co-defendant. In Austin, Highway Patrol Sergeant Vincent Luciano pulled over a vehicle that was driven by Oscar Vela and in which the appellant was a passenger. The parties stipulated that the appellant was in the right, front passenger seat and that only Vela and the appellant were in the automobile.

Vela had no identification; Luciano's testimony, that later at the police station, "Vela admitted what his real name was,"can be read to imply that he gave a false name. The appellant was identified as Arnulfo Molina. Luciano spoke with the men for about five minutes, "conduct[ing] a routine traffic stop." He observed that both men were nervous; "Molina was unable to make eye contact with me, and I noticed that Vela's hands were shaking during the interview."

Luciano could smell the odor of gasoline in the passenger compartment of the vehicle. According to the experience of Luciano, who was one of 16 "troopers" who were assigned to a narcotics section of the Department of Public Safety, gasoline odor in a passenger compartment often indicates that "the gas tank has been tampered with or it has a hole in it." In his opinion, this "[u]sually indicates there is some type of contraband or the gasoline tank has been modified to hold contraband." But he testified that it "is a definite possibility somebody spilled gasoline in the car. It would smell like gasoline." He saw no gas can or sign that gasoline had been spilled, though.

The sergeant saw that the gas gauge read "full," so he asked Vela when he had last put gas in the vehicle. Vela said it was in San Antonio. Luciano thought, "Driving from San Antonio to Austin, some gas should have been used." Vela gave consent to search the vehicle, and Luciano discovered that the gas tank had been tampered with. One could not tell this unless one looked under the vehicle, as Luciano did.

Vela and Molina complied with Luciano's request to follow him to the Austin Police Department garage, where the gas tank was removed and marijuana and cocaine were found in the gas tank. The parties stipulated that there were 10.44 usable pounds of marihuana and 428.2 grams of cocaine by aggregate weight.

Vela told the sergeant that it was "only a half," which the sergeant understood to mean "half a kilo" of cocaine. Luciano testified that during the stop, he had smelled marijuana on Vela's clothing, and that Vela had admitted to having smoked marijuana earlier that day. At the police station, he could smell it on the appellant too.

At the time of the stop, both Vela and the appellant lived in Rio Grande City. Vela testified that he had told the appellant that he planned to purchase a new car in Austin, and had asked the appellant to ride with him because he needed someone to drive the first car back home. According to Vela, he and "some friends" had purchased the contraband in "the valley" and had hidden it in the gas tank. Vela claimed that he had not told the appellant about the drugs because he did not want to give the appellant a share of the profits from a subsequent sale that he was planning to complete in Austin.

The trial court found the appellant guilty of both offenses.

The court of appeals, in its legal sufficiency review, focused its analysis on the "affirmative links" requirement: that where "the defendant is not in exclusive possession or control of the place where the drugs are found, the State must show an affirmative link between the defendant and the drugs." (19) Citing Luciano's testimony regarding the odor of gasoline, the court concluded:

It was reasonable for the trial court to infer that appellant would not have ridden in the vehicle with the odor of gasoline in the passenger compartment for fear of a leak, and that he knew the odor was a result of the alteration of the gas tank to hold and transport contraband. In light of the standards set out above, we cannot say that a rational trier of fact could not have found an affirmative link between appellant and the drugs beyond a reasonable doubt. (20)

We have some reservation about attributing such an inference to the distinguished trial judge, and characterizing it as reasonable. The court of appeals' reasoning necessarily implies that the appellant knew:

1. The odor of gasoline inside the vehicle necessarily meant there was a leak in the gas tank and was not the result of a spill in the car or residue on one's hands or clothing.

2. A leak in the gas tank necessarily meant that someone had tampered with or altered it in some way.

3. This tampering or alteration was done to allow for the storage of contraband in the tank.

4. Therefore, a vehicle that smells of gasoline in the passenger compartment must contain contraband.

Although those with experience like that of Sergeant Luciano's may know some of these premises, there was no evidence that the appellant did. It might be questioned whether anyone would hold to all of the premises; Luciano certainly did not.

It is more important that the inferential knowledge on which the court of appeals relied does not support the conclusion that the evidence was legally sufficient. This is because the knowledge that is inferred does not satisfy the requisite culpable mental state for the offenses of which the appellant was convicted.

At most, the evidence cited by the court of appeals proves that the appellant knew that the drugs were present in the vehicle, not that he was aware that he exercised care, custody, control, or management of them. The appellant's knowledge of the mere presence of the drugs is insufficient to establish the requisite mental state -- knowledge of his possession of those drugs. The court of appeals erred in its holding on this issue.

Furthermore, we believe the evidence is also insufficient to prove that the appellant possessed the illegal drugs. We disagree with the court of appeals' conclusion that there were sufficient affirmative links between the appellant and the contraband. The court said:

Affirmative links between a defendant and the contraband may include: the defendant's presence when the drugs are found; whether the drugs or other contraband were in plain view; the defendant's proximity to and the accessibility of the drugs; whether the defendant was under the influence of drugs when the drugs were found; whether the defendant possessed other contraband or drugs paraphernalia; whether the defendant made incriminating statements or furtive gestures or tried to flee; whether there was any noticeable drug odor; whether the defendant had the right to possess the place where the drugs were found; and whether that place was enclosed. (21)

In this case, the contraband was not found in plain view and the appellant, as a passenger in the car, did not have easy access to the drugs in the gas tank. There is no evidence that the appellant possessed other drugs or drug paraphernalia, that he had a right to possess the vehicle, or that he made any incriminating statements. The record shows the appellant's presence in the car where the drugs were found and his nervousness during the traffic stop. These facts alone do not affirmatively link the appellant to the drugs, and they are insufficient to prove his actual care, custody, control, or management of the drugs beyond a reasonable doubt.

Because the evidence was insufficient to prove the required knowledge and conduct, the judgments of the court of appeals are reversed, and the cases are remanded to the district court with instructions to enter judgments of acquittal.

En Banc.

Delivered October 1, 2003.

Do Not Publish.

1. Molina v. State, 2002 Tex. App. LEXIS 6320 (Tex. App. -- Austin, Nos. 03-02-00122-CR & 03-02-00123-CR, August 30, 2002) (not designated for publication).

2. See "Questions for Review," Petition, at 3.

3. Although the offenses of possessing illegal drugs are defined in the Health and Safety Code, not the Penal Code, the general principles of criminal responsibility in Chapter 6 of the Penal Code apply because of Section 1.03(b) of the Penal Code: "The Provisions of Titles 1, 2, and 3 apply to offenses defined by other laws, unless the statute defining the offense provides otherwise; ." Chapter 6 is in Title 2 of the Penal Code.

4. Tex. Penal Code 6.01(a).

5. Id., 6.01(b).

6. See id., 6.02(b).

7. "Except as provided in Subsection (b), a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires." Id., 6.02(a).

8. "[A] person commits an offense if the person knowingly or intentionally possesses a controlled substance ." Tex. Health & Safety Code 481.115(a). "[A] person commits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana." Tex. Health & Safety Code 481.121(a).

9. Id., 481.002(38).

10. See note 8, supra.

11. Tex. Penal Code 6.03(a).

12. Id., 6.03(b).

13. "Culpable mental states are classified according to relative degrees, from highest to lowest, as follows:

"(1) intentional;

"(2) knowing;

"(3) reckless;

"(4) criminal negligence." Id., 6.02(d).

14. "[U]nder our law, an accused must not only have exercised actual care, control, or custody of the substance, but must also have been conscious of his connection with it and have known what it was." Brown v. State, 911 S.W.2d 744, 747 (Tex. Cr. App. 1995).

15. Tex. Code Crim. Proc. art. 38.03.

16. Jackson v. Virginia, 443 U.S. 307, 317-18 (1979) (citing In re Winship, 397 U.S. 358 (1970)).

17. Ibid.; Griffin v. State, 614 S.W.2d 155, 159 (Tex. Cr. App. 1981).

18. E.g., Dunn v. State, 819 S.W.2d 510, 513 (Tex. Cr. App. 1991).

19. Molina, 2002 Tex. App. LEXIS 6320 at *4-5 (citations omitted).

20. Id. at *6 (emphasis added).

21. Molina, 2002 Tex. App. LEXIS 6320 at *5 (citing Hyett v. State, 58 S.W.2d 826, 830 (Tex. App. - Houston [14th Dist.] 2001, no pet.); Martinets v. State, 884 S.W.2d 185, 188 (Tex. App. - Austin 1994, no pet.); Villarreal v. State, 865 S.W2d 501, 503-04 (Tex. App. - Corpus Christi 1993)).