Opinion
03-22-00075-CR
08-30-2023
Enoch David Castillo-Quiroz, Appellant v. The State of Texas, Appellee
Do Not Publish
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY NO. CR2019-329, THE HONORABLE DIB WALDRIP, JUDGE PRESIDING
Before Justices Baker, Kelly, and Smith
MEMORANDUM OPINION
CHARI L. KELLY, JUSTICE
Enoch David Castillo-Quiroz was convicted by a jury for the first-degree felony of possession with intent to deliver at least four grams but less than 200 grams of cocaine. See Tex. Health & Safety Code §§ 481.102(3)(D), 481.112(a), (d). The trial court rendered judgment accordingly and after Castillo-Quiroz pleaded true to a habitual-offender paragraph, assessed sentence at 20 years in prison. See Tex. Penal Code § 12.42(c)(1). In two appellate issues, Castillo-Quiroz maintains that the evidence was insufficient to support proof of two elements of the offense and that his trial counsel gave him ineffective assistance by failing to file and secure a hearing on a motion to suppress. We affirm.
BACKGROUND
Around 2:00 a.m. one day, Castillo-Quiroz was driving his Kia near the southbound feeder road of Interstate 35 in Comal County when Department of Public Safety Trooper Cory Holmes initiated a traffic stop for failure to signal before turning. Trooper Holmes pulled the Kia over, asked Castillo-Quiroz and the one passenger in the Kia to step out, and spoke to each of them. Neither Castillo-Quiroz nor his passenger had identifying documents with them, and Castillo-Quiroz lacked proof of insurance for the car, but he was cooperative and provided the trooper his driver's-license number. The trooper noticed that Castillo-Quiroz was speaking quickly and later described his talking as "rambling." Castillo-Quiroz appeared nervous and often offered information that the trooper wasn't asking for. The trooper also noticed what he called "meth mouth" on Castillo-Quiroz-a dirty-looking film over the top of the teeth. Trooper Holmes learned from the passenger that she was Castillo-Quiroz's girlfriend, but when the trooper asked Castillo-Quiroz who she was, he suffered a noticeable delay before answering, even though they had been dating for several months. In plain view inside the Kia were one or more butane-torch lighters and numerous personal items like suitcases and clothes-so much so that the car looked "lived-in." Trooper Holmes would later testify that this was consistent with illegal-drug users: "they keep everything in their vehicle because they are always moving everywhere" because "they are basically moving from house to house to house constantly."
Trooper Holmes asked Castillo-Quiroz for his consent to search the car, and Castillo-Quiroz agreed. But after he spoke with his girlfriend, he withdrew the consent. Castillo-Quiroz and the girlfriend were detained, and Trooper Holmes called for help from a K-9 unit. None was available in the county, so one from a nearby county answered the call, arriving at Trooper Holmes's location about 30 minutes after Castillo-Quiroz withdrew his consent. The dog conducted a free-air sniff around the outside of the car. It seemed to focus along the passenger side. Then it alerted. The officers opened the car, and the dog alerted inside as well.
After searching the car, the officers found: a blue-and-black cylinder in the back seat near the middle console, which held a bag containing 4.1 grams (plus or minus 0.03 grams) of cocaine and a separate bag containing about 0.9 grams of methamphetamine; a glass meth pipe under the passenger seat; a cut, two-inch straw in the middle console with a white, powdery substance inside; 80 plastic baggies, each about one square inch in size, strewn throughout the car; 10 butane-torch lighters towards the front of the car; a digital scale with residue on it, also towards the front of the car; hypodermic needles in a black backpack that was on the front-passenger floorboard; and a syringe in the girlfriend's purse.
The girlfriend also had methamphetamine on her person.
Castillo-Quiroz was indicted for possession of cocaine with intent to deliver. The jury found him guilty, and he now appeals.
EVIDENCE SUFFICIENCY
In his first issue, Castillo-Quiroz maintains that the evidence was insufficient to support the elements of the offense that he (1) possessed the cocaine (2) with intent to deliver it. See Tex. Health & Safety Code § 481.112(a); see also Figueroa v. State, 250 S.W.3d 490, 500 (Tex. App.-Austin 2008, pet. ref'd) (listing elements of offense). In a sufficiency review, we must consider all the evidence in the light most favorable to the State, which requires resolving any ambiguities in the evidence in the State's favor. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 634 S.W.3d 745, 748 (Tex. Crim. App. 2021); Hernandez v. State, 556 S.W.3d 308, 315 (Tex. Crim. App. 2017). And we must consider the combined and cumulative force of all admitted evidence and the reasonable inferences that can be drawn from any or all of the evidence. See Johnson v. State, 509 S.W.3d 320, 322 (Tex. Crim. App. 2017).
We presume that the jury resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports their verdict. See Jackson, 443 U.S. at 318; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). The jury is the sole judge of the weight and credibility of the evidence and could have believed some, all, or none of any given witness's testimony. See Tex. Code Crim. Proc. art. 36.13; Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018); Schneider v. State, 440 S.W.3d 839, 841 (Tex. App.-Austin 2013, pet. ref'd). We must defer to the jury on all these determinations. See Zuniga, 551 S.W.3d at 733; Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016); Schneider, 440 S.W.3d at 841. If any rational juror could have drawn the necessary inferences to support proof of an element, then the State has carried its burden on that element. See Brooks, 634 S.W.3d at 748.
For Castillo-Quiroz's offense, "possession" means actual care, custody, control, or management. See Tex. Health & Safety Code § 481.002(38). For possession of illegal drugs, a defendant may jointly possess the drugs with another-possession need not be exclusive. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985). When the defendant is not in exclusive possession and control of the place where the illegal drugs are found, the State to carry its burden to prove the defendant's possession must adduce evidence of "additional independent facts and circumstances connecting or linking the accused to the knowing possession of" the drugs. Allen v. State, 249 S.W.3d 680, 690-91 (Tex. App.-Austin 2008, no pet.). "Mere presence at the location where drugs are found is thus 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). "However, presence or proximity, when combined with other evidence, either direct or circumstantial (e.g., 'links'), may well be sufficient to establish that element beyond a reasonable doubt." Id. Evidence of circumstances from the following, non-exhaustive list of "links" may establish proof of possession: (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. It is not the number of links present that is dispositive but the logical force of all the evidence, direct and circumstantial. Id. at 162. The absence of links does not constitute evidence of innocence to be weighed against the links present. James v. State, 264 S.W.3d 215, 219 (Tex. App.-Houston [1st Dist.] 2008, pet. ref'd).
The following evidence allowed any rational juror to conclude that Castillo-Quiroz possessed the cocaine. He admitted while detained after the traffic stop that everything in the car, including what the officers found, belonged to him. After he and his girlfriend were put into the trooper's vehicle to wait, he was aware of what was inside the car and told his girlfriend that everything in the car was his. He admitted at trial that everything in the car was his, including the drugs and paraphernalia found. The cocaine and some of the methamphetamine were found in the sealed cylinder in separate bags. The officers' testimony showed that everything found in the car-not only cocaine and methamphetamine but also the digital scale, the meth pipe, the many baggies, and the butane-torch lighters-correlated with both drug use and drug distribution. The amount of methamphetamine found corresponded to about 30 pipes' worth, and the shape of the pipe meshed well with using a butane-torch lighter to heat that specific kind of pipe. Some of the butane torches were in plain view. Castillo-Quiroz admitted at trial that the meth pipe was his. The car was Castillo-Quiroz's as well, and it looked "lived-in," as if everything they owned was in there, including suitcases and clothes. Castillo-Quiroz in fact did not have a stable place to live at the time, neither of them had steady income, but they jointly had a drug habit costing roughly $30 a day. The officers' testimony explained how constant moving house-to-house correlates with illegal-drug users. Moreover, Castillo-Quiroz's description at trial of the circumstances of his withdrawal of consent to search the car supported an inference that it was he and not his girlfriend who had the power to grant or deny permission to search the car. Finally, Castillo-Quiroz admitted at trial that a story he told the officers after the traffic stop-that he was an undercover operative for the Austin Police Department-was untrue. All this evidence supports rational inferences on at least links 1, 3, 5, 6, 10, 11, 12, and 14.
The conversation between the two while in the trooper's car was recorded.
Castillo-Quiroz's arguments on appeal are that evidence of many of the other numbered links was not present and that his testimony explained why he was not really possessing the cocaine found in the car. But the logical force of all the evidence and all the rational inferences it supports allowed a rational jury to find possession here, and not all the links need be present. Plus, the jury had a right to disbelieve every word that Castillo-Quiroz uttered that wasn't an admission of guilt, so it simply does not matter to this evidence-sufficiency review what else he might have testified to. The evidence rationally supported finding possession.
As for intent to deliver, we rely on all the evidence recounted above plus the following evidence. The evidence showed that despite their admitted income problems, Castillo-Quiroz and his girlfriend were still supporting an expensive drug habit. And during their conversation in the trooper's car, the girlfriend referred to her business of selling drugs and discussed conducting that business while Castillo-Quiroz was with her. She also said that she makes more money when he is not around than she does when he is around. He agreed at trial that based on all that was found in the car, it's reasonable to assume that he was selling drugs. And he said that not all of the drugs found were for his and his girlfriend's personal use but were for some other purpose and that they generally didn't need to have a large amount of cocaine for themselves unless it was for selling. We conclude that the evidence was sufficient to support the intent-to-deliver element. Castillo-Quiroz's arguments under this element are like those he raised under the first, and they are similarly unavailing. We overrule his first issue.
INEFFECTIVE ASSISTANCE
In his second issue, Castillo-Quiroz maintains that his trial counsel gave him ineffective assistance because counsel did not file and secure a hearing on any motion to suppress. Success on an ineffective-assistance issue depends on showing the presence of two prongs, and under the first, when the record lacks the subject attorney's explanation for the strategies employed, a reviewing court cannot sustain an ineffective-assistance issue unless the attorney's allegedly deficient performance was so outrageous that no competent attorney would have engaged in it. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Yet an attorney's failure to file a motion to suppress is not per se deficient performance. Wert v. State, 383 S.W.3d 747, 753 (Tex. App.-Houston [14th Dist.] 2012, no pet.) (citing Kimmelman v. Morrison, 477 U.S. 365, 384 (1986)). Castillo-Quiroz must show by a preponderance of the evidence that such a motion to suppress would have been granted. See Jackson v. State, 973 S.W.2d 954, 956-57 (Tex. Crim. App. 1998); Wert, 383 S.W.3d at 753. To do so, he needed to produce evidence to defeat the presumption of proper law-enforcement conduct. Jackson, 973 S.W.2d at 957. That there may be questions about the validity of the search is not enough. Id.
Castillo-Quiroz argues that the search of his car was unreasonable because Trooper Holmes unnecessarily prolonged it by requesting a K-9 unit and because he unnecessarily prolonged it again by waiting for a K-9 unit to arrive from another county after learning that there was none available in Comal County. An investigatory detention must be reasonably related in scope to the circumstances that justified law-enforcement interference in the first place, and an officer must act to confirm or dispel the officer's suspicions quickly. Matthews v. State, 431 S.W.3d 596, 603 (Tex. Crim. App. 2014). During a valid traffic stop and detention, as this one undisputedly was at its inception, if the officer develops reasonable suspicion that the detainee is engaged in criminal activity, prolonged or continued detention is justified. See Haas v. State, 172 S.W.3d 42, 52 (Tex. App.-Waco 2005, pet. ref'd). One reasonable method of confirming or dispelling the reasonable suspicion that a vehicle contains drugs is what was used here-to have a trained drug dog perform an "open air" search by walking around the car. See Matthews, 431 S.W.3d at 603. If the dog alerts, the presence of drugs is confirmed, and police may make a warrantless search. Id.
Castillo-Quiroz also argues that the frisk and search of his person were unreasonable, but any motion to suppress based on that issue would have been futile because there was no evidence supporting the conviction found on his person, as opposed to what was found in the car. See Wert v. State, 383 S.W.3d 747, 753 (Tex. App.-Houston [14th Dist.] 2012, no pet.) (under ineffective-assistance analysis, counsel has no obligation to file futile motions).
Castillo-Quiroz's position is that when he withdrew his consent for a search of the car, the detention had to then end. Trooper Holmes had by that point reasonable suspicion that illegal drugs could be in the car sufficient to support calling for the help of a K-9 unit. For example, by that point, Trooper Holmes was aware of one or more butane-torch lighters in plain view in the car, Castillo-Quiroz's "meth mouth," his erratic behavior and nervousness shown when rambling and offering lots of information not asked for by the trooper, his seeming to forget his relationship to his girlfriend, and his quick withdrawal of consent to search. See United States v. Weaver, 966 F.2d 391, 396 (8th Cir. 1992) (extraordinary nervousness helped support reasonable suspicion to prolong detention and seize bags); State v. Martinez, 638 S.W.3d 740, 754 (Tex. App.-Eastland 2021, no pet.) (quick withdrawal of consent to search helped support reasonable suspicion to wait for K-9 unit); Willis v. State, 192 S.W.3d 585, 591-92 (Tex. App.-Tyler 2006, pet. ref'd) (nervousness, driving along known drug corridor, and refusing consent to search all helped support reasonable suspicion to wait for K-9 unit); Haas, 172 S.W.3d at 54 & n.8 (defendant's volunteering a lot of information, implausible story, and nervousness all helped support reasonable suspicion to wait for K-9 unit). From the moment that Castillo-Quiroz withdrew consent to search to when the K-9 unit arrived was about 30 minutes. But detentions even as long as 75 or 90 minutes to wait on a K-9 unit to arrive have been held to be not unreasonable per se. See Strauss v. State, 121 S.W.3d 486, 492 (Tex. App.-Amarillo 2003, pet. ref'd); Josey v. State, 981 S.W.2d 831, 840-41 (Tex. App.-Houston [14th Dist.] 1998, pet. ref'd). Without more, we conclude that Castillo-Quiroz has not produced evidence to overcome the presumption of proper law-enforcement conduct, so he has failed to show the necessary deficient performance under the first prong of an ineffective-assistance claim. We overrule his second issue.
CONCLUSION
We affirm the trial court's judgment.