Opinion
No. 04-17-00118-CR
07-05-2018
Roxanne Y. CHAVEZ, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CR0769
Honorable Melisa Skinner, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Irene Rios, Justice AFFIRMED
Appellant Roxanne Y. Chavez was found guilty by a Bexar County jury of possession of a controlled substance with intent to deliver and assessed punishment at ten years' confinement in the Institutional Division of the Texas Department of Criminal Justice, suspended and probated for a term of ten years. On appeal, Chavez contends (1) the evidence is insufficient to support the jury's conviction and (2) the trial court's charge was erroneous because it did not contain an instruction on inferences. We affirm the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On June 2, 2015, San Antonio police officers conducted an undercover surveillance operation investigation of Chavez. San Antonio Police Detective William Roberts observed Chavez and a passenger enter Chavez's vehicle, a green Oldsmobile Alero, with Chavez in the driver's seat. Chavez then drove away from her residence in what appeared to be somewhat of a hurry. Detective Roberts lost his surveillance of Chavez at a red light; and Detective Jesse Allen picked up the surveillance shortly thereafter.
Detective Allen saw Chavez pull into the driveway of a house and an individual with whom the undercover officer was familiar with came out to Chavez's vehicle. The individual approached the passenger side door and began talking to the occupants of the vehicle; he then reached across the passenger to Chavez and they made a "hand-to-hand exchange," a term used in drug transactions where drugs are actually exchanged between the individuals' hands. As the individual stood up, he recognized Detective Allen, who then identified himself as a police officer. The individual took off running and Chavez drove off in her vehicle.
Detective Allen stopped the individual and recovered approximately forty bags of heroin. Chavez's vehicle was stopped by a marked-patrol vehicle a couple of blocks away. Officers located $700.00 on Chavez's person and digital scales, consistent with the type used in drug transactions, in her vehicle. Chavez was charged with possession of a controlled substance with intent to distribute.
The matter was called for trial on November 2, 2016. The jury found Chavez guilty of the charged offense and assessed punishment at ten years' confinement in the Institutional Division of the Texas Department of Criminal Justice, suspended and probated for a term of ten years.
We turn first to Chavez's insufficiency argument.
SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
In reviewing the sufficiency of the evidence, "we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011); accord Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). "This standard recognizes the trier of fact's role as the sole judge of the weight and credibility of the evidence. . . ." Adames, 353 S.W.3d at 860; accord Gear, 340 S.W.3d at 746. The reviewing court must also give deference to the jury's ability "to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Id. (citing Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)).
We may not substitute our judgment for that of the jury by reevaluating the weight and credibility of the evidence. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). We defer to the jury's responsibility to fairly resolve any conflicts in the evidence, weigh the evidence, and draw reasonable inferences. See Hooper, 214 S.W.3d at 13. The jury alone decides whether to believe eyewitness testimony, and it resolves any conflicts in the evidence. See Hooper, 214 S.W.3d at 13; Young v. State, 358 S.W.3d 790, 801 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd). In conducting a sufficiency review, "[w]e do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure that the jury reached a rational decision." Young, 358 S.W.3d at 801.
B. Arguments of the Parties
Chavez contends the evidence is insufficient to support the jury's findings beyond a reasonable doubt. Specifically, Chavez contends the State failed to prove she had actual possession, care, control, or custody of the heroin.
The State counters Chavez made a hand-to-hand exchange and the individual was immediately apprehended with heroin in his hand. The heroin and packaging were indicative of intent to deliver narcotics. When Chavez was apprehended, she had a substantial amount of cash in her possession and a digital scale. The jury could reasonably infer Chavez was in possession of the heroin with the intent to deliver.
C. Possession with Intent to Deliver
To establish unlawful possession of a controlled substance with intent to deliver, the State must prove the defendant (1) exercised custody, control, management, or care over the substance, (2) intended to deliver it to another, and (3) knew the substance possessed was contraband. Parker v. State, 192 S.W.3d 801, 805 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd); see TEX. HEALTH & SAFETY CODE ANN. §§ 481.002(38), 481.112(a); Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011).
Chavez challenges the State's evidence establishing Chavez exercised custody, control, management, or care over the heroin. To prove possession, the State must show beyond a reasonable doubt that the defendant: (1) exercised control, management, or care over the substance; and (2) knew the substance was contraband. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). The evidence, whether direct or circumstantial, must establish a more than fortuitous connection between the defendant and the drugs. Id. Mere presence at the location where the drugs were found is insufficient to prove possession. Id. at 162. However, when presence or proximity is combined with other evidence, either direct or circumstantial, it may be sufficient to prove the element of possession. Id.
The Texas Court of Criminal Appeals adopted a nonexclusive list of "possible" factors that may link a defendant to contraband and establish knowing 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.; accord Wingfield v. State, 197 S.W.3d 922, 927 (Tex. App.—Dallas 2006, no pet.).
These factors are "not a litmus test[,]" but are "simply some factors which may circumstantially establish the legal sufficiency of the evidence to prove a knowing 'possession.'" Evans, 202 S.W.3d at 162 n.12; see also Allen v. State, 249 S.W.3d 680, 692 n.13 (Tex. App.—Austin 2008, no pet.) (explaining the affirmative-link doctrine "is a judicially devised standard to aid appellate courts in determining the legal sufficiency of the evidence in knowing possession of contraband cases" but is not "a litmus test"). An appellate court examines each case on an individual basis, Roberson v. State, 80 S.W.3d 730, 736 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd), remaining cognizant that it is "not the number of links that is dispositive, but . . . the logical force of all of the evidence, direct and circumstantial." Evans, 202 S.W.3d at 162; Hebert v. State, 489 S.W.3d 15, 19 (Tex. App.—Houston [14th Dist.] 2016, no pet.). But, "[t]he absence of various affirmative links does not constitute evidence of innocence to be weighed against the affirmative links present." James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd); accord Jones v. State, 466 S.W.3d 252, 260 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd).
D. Evidence Related to Chavez's Possession
1. San Antonio Police Officer Oscar Flores
San Antonio Police Office Oscar Flores testified that on June 2, 2015, he was assigned to assist some plain clothes detectives requesting assistance with an investigation. Officer Flores testified he was in uniform and in a marked patrol vehicle. When Officer Flores and his partner, Officer Torres, were notified by Detective Jesse Allen that "a vehicle got away," they already had the vehicle's description. The officers saw the vehicle shortly thereafter and initiated a stop based on Detective Allen's report that the vehicle "fled from him."
Both occupants of the vehicle were detained. Officer Flores identified Chavez as the driver of the vehicle. Officer Flores authenticated the video recording taken from the dash cam of the patrol vehicle and the video was published to the jury.
2. San Antonio Police Detective William Roberts
San Antonio Police Detective William Roberts testified that on June 2, 2015, he was assisting in the investigation of Roxanne Chavez. At the time, Detective Roberts was conducting surveillance and working in an undercover capacity. Detective Roberts testified that he saw Chavez leave her residence, enter the driver's side of her vehicle, which was parked directly in front of her house, and a passenger entered the passenger side of the vehicle.
Detective Roberts also testified the vehicle pulled away and Chavez drove "pretty fast. . . . It looked like she was trying to get somewhere pretty quick and she had crossed the double yellow line several times like she was trying to pass some cars." Detective Roberts testified that after he "lost" Chavez at a red light, he contacted Detective Allen who immediately headed toward the location to which the officers suspected Chavez was headed. Shortly thereafter, Detective Allen notified Detective Roberts that he had located Chavez's vehicle.
3. San Antonio Police Detective Jesse Allen
Detective Allen testified that on June 2, 2015, he was contacted by Detective Roberts to assist in an investigation. Detective Allen testified that shortly after Detective Roberts contacted him, he observed the green Alero pull up to the location at which the officer anticipated Chavez was headed. A male individual was standing outside of the house. Detective Allen testified that he drove "past the green vehicle . . . [w]hen I turned around, I saw the individual walk out to the green vehicle." Detective Allen testified he recognized and was familiar with the individual who walked out of the residence.
Detective Allen testified that as the individual approached the vehicle, "he kind of leaned up against the passenger side." As he was "leaning into the vehicle and [was] talking to the people inside," Detective Allen exited his vehicle and "[g]ot close to the [green Alero]."
And [the individual] leaned inside, he leaned toward the driver, and they made what I would consider a hand-to-hand exchange and then he withdrew from the window. [The individual] kind of saw me, and it looked like he mentioned something to the driver, and he started trying to make his way back towards the house.Detective Allen was emphatic that the exchange occurred between the individual and driver, and that he could see the individual's arm "crossing over the passenger." When asked to explain what the term "hand to hand transaction" meant, Detective Allen explained as follows:
Hand-to-hand transaction is a term we use when people are, like, making a drug deal or they are exchanging something, their hands actually meet and they have something within their hands and then they exchange whatever is in their hands. That's what we call a hand-to-hand transaction.Detective Allen testified that he identified himself as a police officer and the individual took off running. As Detective Allen chased the individual, the green car also took off. He requested one of the marked units initiate a stop of the green vehicle. Detective Allen testified that one of the marked patrol units arrived as the green car was leaving; the "car made a quick right-hand turn. And then it was stopped a couple of streets, or a couple of blocks down from there."
Detective Allen apprehended the individual who was on foot. "And when I was taking him into custody, he threw like a plastic baggie into the front yard of [a residence]." Detective Allen recovered the plastic bag, which contained forty small baggies, with a total weight of approximately thirty-four grams of heroin. Detective Allen opined that, in his experience, the amount of baggies found was "more common with, you know, someone that's actually going to sell the product and not use it."
When Chavez was arrested, the officers located $700.00 in cash on her person, and a digital scale, consistent with the type Detective Allen explained was used to weigh out drugs, was located in the green Alero. After Detective Allen's testimony, Detective Roberts was recalled. He testified the baggies collected in evidence by Detective Allen, depending on the quality of the heroin, were worth approximately $600.00 or $700.00.
E. Analysis
The jury, as factfinder, is the sole judge of the witnesses' credibility and the weight to be given to their testimony. Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014) (citing Jackson, 443 U.S. at 319). The jury may choose to believe all, some, or none of the witnesses at trial. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). If the record reflects conflicting inferences, we presume that the jury resolved any conflict in favor of the verdict, "even if that resolution is not explicitly within the record." Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015); Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014).
Chavez was clearly in control of the vehicle. The officer witnessed a hand-to-hand transaction; Chavez had a large amount of cash on her person; Chavez made furtive gestures and attempted to flee when Detective Allen identified himself as a police officer, "like [she] was attempting to conceal or hide something." See Wiley v. State, 388 S.W.3d 807, 811 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (concluding that evidence of a defendant's conducting hand-to-hand transactions characteristic of drug transactions can provide link between defendant and recovered drugs, even when the drugs not found in defendant's exclusive possession). Although she was not present when the narcotics were located, the officer testified he saw the drug transaction immediately before Chavez left the scene. Even though narcotics were not in plain sight, the officer testified he witnessed Chavez discussing something with the individual prior to the exchange of the narcotics and that Chavez handed the narcotics to the individual in Detective Allen's view.
Here, the jury could have reasonably inferred that it was not accidental that the undercover officers knew where Chavez was traveling that day, that the officer watched her make a hand-to-hand exchange, and that the money on Chavez's person was the approximate dollar amount Detective Roberts testified to which the heroin was valued. The jury could have also concluded Chavez's actions displayed consciousness of guilt. When Detective Allen identified himself as a police officer, Chavez fled the scene. As the factfinder, the jury was free to draw reasonable inferences and make reasonable deductions from the evidence and testimony presented. See Hooper, 214 S.W.3d at 13.
When viewed in the light most favorable to the verdict, a reasonable jury could have concluded the heroin belonged to Chavez. See Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (concluding jury may infer knowledge from defendant's acts, words, or conduct); Gant v. State, 278 S.W.3d 836, 839 (Tex. App.—Houston [14th Dist.] 2009, no pet.) ("A jury can infer knowledge from all the circumstances, including the acts, conduct, and remarks of the accused and the surrounding circumstances."). Accordingly, we overrule Chavez's first issue on appeal.
We turn next to Chavez's assertion the trial court's charge did not contain a proper instruction on "inferences."
JURY CHARGE ERROR
In her second issue on appeal, Chavez contends the trial court's charge is erroneous in that it failed to adequately provide the jury an opportunity to find Chavez not guilty of possession with intent to deliver because the jury instruction did not contain a proper instruction on "inferences," and as such the jury's verdict was reached in violation of Due Process afforded by the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and article I, section 10 of the Texas Constitution. See U.S. CONST. amend. V, VI, XIV; TEX. CONST. art. I, § 10.
An appellant's brief must contain a "clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(i); see also Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (concluding appellate issue forfeited on appeal if brief fails to present adequate supporting arguments and authorities). Chavez does not provide a clear argument for the specific "inferences" instruction the trial court failed to provide or any authority that such instruction was warranted or required. See Lucio v. State, 353 S.W.3d 873, 877-78 (Tex. Crim. App. 2011) (holding that "sole reference to [an] assertion in the argument section of [an appellant's] brief that was "unaccompanied by any other argument or authorities" supported conclusion the argument was inadequately briefed, and court of appeals thus properly declined to consider the argument).
Chavez failed to meet her burden to adequately raise an appellate issue—to present an argument and authorities as required by statute; we, therefore, conclude she waived appellate review and we overrule her final issue on appeal. See TEX. R. APP. P. 38.1(i).
Patricia O. Alvarez, Justice DO NOT PUBLISH