Hernandez v. State

Full title: RAFAEL GONZALES HERNANDEZ, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Oct 2, 2003

No. 05-02-00769-CR (Tex. App. Oct. 2, 2003)

Opinion

No. 05-02-00769-CR

Opinion issued October 2, 2003. DO NOT PUBLISH. Tex.R.App.P. 47

On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-22343-JR. AFFIRMED as modified

Before Chief Justice THOMAS AND Justices JAMES and O'NEILL.

OPINION

Opinion By Justice JAMES.

Rafael Gonzales Hernandez appeals his conviction for possession with intent to deliver cocaine, a controlled substance. A jury found him guilty and made an affirmative finding that appellant used a deadly weapon in connection with the offense or knew a deadly weapon would be used. The jury assessed punishment at confinement for fifteen years. In four points of error, appellant contends: (1) the evidence was factually insufficient to show he possessed cocaine; (2) the evidence was legally insufficient to show he possessed cocaine or a deadly weapon; and (3) a detective improperly testified about appellant's post-arrest silence. We affirm the trial court's judgment as modified.

Background

Eloy Garcia worked as an informant for the Department of Public Safety and the Dallas Police Department. He met a gentleman named Willie and inquired about buying a large amount of cocaine. Willie introduced Garcia to Jaime Reyes. Garcia met with Reyes who negotiated a price for six kilograms of cocaine. The first planned transaction did not occur, and Reyes and Garcia exchanged telephone numbers. Garcia called Reyes the following Friday, and they planned for Reyes to arrange for Garcia to purchase two kilograms of cocaine. Reyes called Garcia the next Wednesday and they agreed to meet at a Denny's parking lot to conduct the transaction on May 17. On May 17, 2001, appellant drove his Ford truck to a Denny's parking lot. Two other men accompanied appellant as passengers in the truck. Upon arriving at the Denny's, Reyes approached the truck, accompanied by Garcia, and Reyes asked the driver, appellant, if he had "the stuff." Appellant replied "yes" and asked Garcia to get inside the truck. Garcia declined. The passenger in the back of the truck put a shoe box on the center console, and appellant handed the box to Reyes. Reyes and Garcia got into Garcia's car, and Garcia viewed the contents of the box. It contained approximately two kilograms of cocaine. Garcia, who was wearing a listening device transmitting an audio signal to nearby police officers, gave the predetermined signals to the detectives. The detectives moved in and arrested Reyes, appellant, and appellant's two passengers. Garcia was also arrested. While arresting the front seat passenger of the truck, detectives found a semi-automatic handgun with a laser sight, loaded, with the hammer cocked and without the safety engaged. Although the conversations were all in Spanish, Detective Frank Saldivar was bilingual and testified at the trial. However, Saldivar had been unable to hear the conversations between Reyes, appellant, and Garcia when they were standing at the truck window. Garcia is a private informant who has worked for various law enforcement agencies in California and Texas since 1979. Garcia testified as to the events that took place between Reyes, appellant, and himself. According to Garcia, appellant was the person in charge of the deal. Appellant testified. According to him, he was at work when his boss, Reyes, called and told him to pick up a friend of Reyes's. Appellant complied, and the friend got into appellant's truck with another man, directing appellant to the Denny's parking lot. Appellant said he was handed the shoe box to give to Reyes, but he did not know what the box contained. Appellant further testified he did not know the gun was in his truck.

Legal and Factual Sufficiency Standard of Review

Appellant's first three points of error involve the legal and factual sufficiency of the evidence. When reviewing the legal sufficiency of the evidence, this Court must examine 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. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). In making this determination, the reviewing court considers all the evidence admitted, including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998). In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The reviewing court must be appropriately deferential to avoid substituting its judgment for the fact finder's, and any evaluation should not substantially intrude on the fact finder's role as the sole judge of the weight and credibility given to witness testimony. See id. at 7; Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996).

Knowing and Intentional Possession

In his first two points of error, appellant complains of the sufficiency of the evidence supporting his cocaine conviction. Appellant argues the evidence was insufficient to prove he intentionally and knowingly possessed the cocaine. Appellant does not raise any question about the intent to deliver portion of his conviction. To obtain appellant's conviction, the State was required to prove appellant intentionally or knowingly possessed the cocaine. Possession entails more than merely being in the presence of contraband; it requires the exercise of care, control, and management over the contraband. See Johnson v. State, 829 S.W.2d 836, 837 (Tex.App.-Dallas 1992, no pet.). Several persons may exercise joint possession over contraband. See Dade v. State, 956 S.W.2d 75, 78 (Tex.App.-Tyler 1997, pet. ref'd). When the accused is not in exclusive control or possession of the place where the contraband is found, the accused must be affirmatively linked to the contraband. See id. at 78. In other words, there must be independent facts and circumstances linking the accused to the contraband in such a manner that a reasonable inference may arise that the accused knew of its existence and exercised control over it. See Ortiz v. State, 999 S.W.2d 600, 603 (Tex.App.-Houston [14th Dist.] 1999, no pet.). No set formula of facts requires a finding of an affirmative link, as each case is fact specific. See Porter v. State, 873 S.W.2d 729, 732 (Tex.App.-Dallas 1994, pet. ref'd). There is, however, a nonexclusive list of possible affirmative links: (1) whether the defendant was present when the drugs were found; (2) whether the drugs were in plain view; (3) the defendant's proximity to and the accessibility of the drugs; (4) whether the defendant was under the influence of drugs when arrested; (5) whether the defendant possessed other contraband; (6) whether the defendant made any 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 drugs; (10) whether the defendant owned or had the right to possess the place where the drugs were found; (11) whether the place the drugs were found was enclosed; (12) the amount of drugs found; (13) whether the defendant possessed weapons; and (14) whether the defendant possessed a large amount of cash. See id. The key is the logical force of the factors which, alone or in combination, tend to affirmatively link the defendant to the drugs. See Gilbert v. State, 874 S.W.2d 290, 298 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). When viewed in the light most favorable to the verdict, the evidence reveals appellant was present when the drugs were found and was the driver of the truck that transported the cocaine. See Jackson, 443 U.S. at 319; Young, 14 S.W.3d at 753. With the cocaine in his truck, appellant was in close proximity to and had accessibility to the drugs. Furthermore, appellant owned the truck from which the informant and Reyes obtained the cocaine, and the cab of the truck was an enclosed area. The large amount of cocaine also serves as a factor linking appellant to the cocaine. Finally, Garcia testified appellant stated "yes" when asked if they had "the stuff." We conclude the evidence is legally sufficient to affirmatively link appellant to the drugs and to support appellant's conviction. We overrule appellant's first point of error. When viewed in a neutral light, the evidence of appellant's guilt is not so obviously weak as to undermine confidence in the verdict, nor is it greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 11. Although appellant testified he did not know the box contained cocaine, Garcia testified appellant was in charge and stated they had "the stuff." The jury was authorized to resolve the disputed issues of fact against appellant. Giving great deference to the jury's resolution, we conclude there is factually sufficient evidence to support appellant's conviction. See id. at 7. We overrule appellant's second point of error.

Deadly Weapon

In his third point of error, appellant contends the evidence was legally insufficient to show he possessed a deadly weapon or to support the finding of a deadly weapon. Appellant cites Patterson v. State, 769 S.W.2d 938 (Tex.Crim.App. 1989), in support of his argument. Appellant notes the court in Patterson affirmed the court of appeals's holding that "a rational trier of fact could find that appellant `used' the firearm during the commission of the felony offense of possessing the contraband, in a sense that the firearm protected and facilitated appellant's care, custody, and management of the contraband." Patterson, 769 S.W.2d at 942 (quoting Patterson v. State, 723 S.W.2d 308, 315 (Tex.App.-Austin 1987), aff'd 769 S.W.2d 938 (Tex.Crim.App. 1989) (highlighting the readiness of the weapon)). Appellant, however, does not distinguish the present case from Patterson, and we see no distinction that would lead to a conclusion of legally insufficient evidence. A defendant "exhibits" a deadly weapon if the defendant consciously displays the weapon during the commission of the offense. Id. at 941. On the other hand, a defendant "uses" a deadly weapon if the evidence shows the defendant employed the weapon in any manner, including mere possession, if the possession facilitates the associated felony. Id. A deadly weapon facilitates possession of contraband if the defendant uses the weapon to protect and manage his contraband. Id. at 942. An affirmative finding of using or exhibiting a deadly weapon may be entered as to a defendant who is a party to an offense when that defendant knew that a deadly weapon would be used or exhibited. Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2003). A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003). The jury was free to find appellant guilty as a party to the offense. The charge for the possession offense instructed the jury that "[a]ll persons are parties to an offense who are guilty of acting together in the commission of the offense." The charge also provided for finding appellant guilty if the jury found appellant acted "with intent to promote or assist the commission of the offense" or if he "solicited, encouraged, directed, aided or attempted to aid" others to intentionally or knowingly possess the cocaine. Furthermore, the charge regarding the special issue allowed for the jury to answer affirmatively if it found appellant "used or exhibited a deadly weapon or was a party to the offense and knew a deadly weapon would be used or exhibited." A loaded, fully cocked handgun without the safety engaged was found in the front passenger seat of appellant's truck. Detective Anthony Gipson of the narcotics division of the Dallas Police Department testified that in a drug deal involving a substantial amount of cocaine-over one kilogram-other people are brought to the transaction to help make sure "things go like they're supposed to" and the other people involved are aware of what is taking place. He also testified that it is not uncommon, in a drug deal of the size in the present case, for those persons involved in the transaction to bring a firearm to the deal over concern of safety for the drugs or the large amount of money involved. As stated above appellant possessed the cocaine and was therefore a party to the offense and Garcia testified appellant was in charge of the deal. A rational fact finder could infer appellant used the firearm-himself or as a party-to protect the cocaine they were transporting and the possession of the firearm facilitated the care, custody, and management of the cocaine. See Patterson, 769 S.W.2d at 942. When viewed in the light most favorable to the verdict, the evidence reveals appellant used or exhibited a deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited. See Jackson, 443 U.S. at 319; Young, 14 S.W.3d at 753. Accordingly, we conclude the evidence is legally sufficient to support the jury's finding, and we overrule appellant's third point of error. In review of appellant's point of error, we note that the trial court's judgment does not contain the affirmative finding of use or exhibition of a deadly weapon. However, after orally pronouncing sentence, on the request of the State the court stated, in open court, that "the jury found that a deadly weapon was used or displayed in connection with the offense." The code of criminal procedure requires that upon an affirmative finding that a deadly weapon was used or exhibited, the court shall enter the finding in its judgment. Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2). The trial court has no discretion to do otherwise. We have the power to modify incorrect judgments when we have the necessary information to do so. See Tex.R.App.P. 43.2(b); French v. State, 830 S.W.2d 607, 608 (Tex.Crim.App. 1992); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd) (en banc). Furthermore, this authority is not dependent upon the request of any party, nor does it turn on the question of whether a party has or has not objected in the trial court. Asberry, 813 S.W.2d at 529-30; Edwards v. State, 21 S.W.3d 625, 626 n. 1 (Tex.App.-Waco 2000, no pet.). Accordingly, we modify the trial court's judgment to reflect the affirmative finding of appellant's use or exhibition of a deadly weapon in connection with the offense.

Detective's Testimony

In his fourth point of error, appellant argues Detective Saldivar commented on appellant's post-arrest silence. Appellant appears to contend the court's instruction to disregard was insufficient to cure any error, seeming also to complain the trial court erroneously overruled his motion for mistrial. Appellant argues the comment was harmful due to the context of the statement referencing appellant's silence with the silence-or lack thereof-of others arrested with appellant. During the State's direct examination of Detective Saldivar, the following exchange occurred:

[PROSECUTOR]: At the conclusion of the arrest on May 17th where the defendants Rafael Hernandez, Villalobos, Romero and Reyes were arrested, what happened at that point with regards to the defendants? Where did they go?

[DET. SALDIVAR]: Once they were taken into custody, we then transported them to the DPS Garland narcotics office where all the paperwork was filled out to be able to book them into the Dallas County jail. Once that was done, of course, at that time, they were also Mirandized. The only one that cooperated and gave a statement is going to be Mr. Reyes. None of the other ones cooperated or gave a statement.

[DEF. COUNSEL]: We object, Judge, to any comment about cooperation as a violation of Fifth Amendment Rights.

[COURT]: I'll sustain.

[DEF. COUNSEL]: Ask the jury to be instructed to disregard that.

[COURT]: Ladies and Gentlemen, you will disregard the last statements of the witness.

[DEF. COUNSEL]: Move for mistrial, Judge.

[COURT]: I'll overrule.

The facts before us show that the prosecutor, in his direct examination of the detective, asked the witness what happened with the defendants when they were arrested. Detective Saldivar, unprompted as to whether appellant provided a statement, testified that only one defendant provided a statement. After sustaining appellant's objection, the court instructed the jury to disregard the statement. Assuming for purposes of our analysis that error occurred, we conclude the court's instruction cured it. Harm flowing from a comment on the accused's post-arrest silence can be cured by an effective instruction to disregard, unless the pertinent facts suggest the impossibility of withdrawing the impression produced on the jurors' minds. See Waldo v. State, 746 S.W.2d 750, 754 (Tex.Crim.App. 1988). In making the determination of whether an instruction cured the error, we are guided by the following factors: the persistence of the State, the flagrancy of the comment, the particular instruction, the weight of the evidence, and the severity of the punishment. Fletcher v. State, 852 S.W.2d 271, 275 (Tex.App.-Dallas 1993, pet. ref'd). In the present case, the prosecutor's question did not intentionally elicit the information that appellant refused to provide a statement; rather, it was a general question concerning where the defendants went after arrest. The question was asked once and was not repeated. The court's instruction was clear, explicitly telling the jury to disregard the statement. Evidence of appellant's guilt weighs heavily against him. Finally, appellant received the lowest possible punishment out of the range of punishment for his offense. See Tex. Health Safety Code Ann. § 481.112(f) (Vernon Supp. 2003). Given these circumstances and the efficacy of the court's instruction, we conclude the combined facts do not suggest the impossibility of withdrawing the impression produced on the jurors' minds. See Waldo, 746 S.W.2d at 754; Fletcher, 852 S.W.2d at 275. Accordingly we overrule appellant's fourth point of error. As modified, we affirm the trial court's judgment.