Opinion
No. 05-03-01293-CR.
Opinion issued March 9, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-02410-LB. Affirmed.
Before Justices WHITTINGTON, WRIGHT, and LANG.
OPINION
Jose Lupian Bautista appeals his conviction for possession with intent to deliver more than 400 grams of methamphetamine. See Tex. Health Safety Code Ann. §§ 481.102(6), 481.112(f) (Vernon 2003 Supp. 2004). After the jury found him guilty, the trial judge assessed punishment at fifteen years' confinement. In four issues, appellant contends the evidence is legally and factually insufficient to support his conviction. Specifically, appellant claims the evidence does not show he, acting individually or as a party, had possession of or delivered the drugs in question. We affirm. When reviewing challenges to the legal sufficiency of the evidence, we apply well known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001), cert. denied, 537 U.S. 1195 (2003). To support a conviction for possession with intent to deliver more than 400 grams of methamphetamine, the State must prove the accused (i) exercised actual care, custody, control, or management over the contraband; and (ii) knew the matter was contraband. See Tex. Health Safety Code Ann. §§ 481.102(6), 481.112(f); Taylor v. State, 106 S.W.3d 827, 830 (Tex. App.-Dallas 2003, no pet.) (citing Guiton v. State, 742 S.W.2d 5, 8 (Tex.Crim.App. 1987)); Cedano v. State, 24 S.W.3d 406, 411 (Tex. App.-Houston [1st Dist.] 2000, no pet.). Although "deliver" means to transfer to another, it also includes" offering to sell a controlled substance, counterfeit substance, or drug paraphernalia." Tex. Health Safety Code Ann. § 481.002(8). Thus, the "offense is complete when, by words or deed, a person knowingly or intentionally offers to sell what he states is a controlled substance." Stewart v. State, 718 S.W.2d 286, 288 (Tex.Crim.App. 1986). The State need not show that the accused exercised exclusive control, but when he does not have exclusive control, the State must show additional affirmative links between the accused and the contraband. Brown v. State, 911 S.W.2d 744, 748 (Tex.Crim. App. 1995); Cedano, 24 S.W.3d at 411; see Porter v. State, 873 S.W.2d 729, 734 (Tex. App.-Dallas 1994, pet. ref'd) (when accused is not in exclusive control or possession of place where contraband is found, he cannot be charged with knowledge and control over contraband unless additional independent facts and circumstances affirmatively link him to contraband in such manner and to such extent that reasonable inference may arise he knew of contraband's existence and exercised control over it). In determining whether sufficient affirmative links exist, we examine such circumstantial factors as the amount of contraband found; its location in relationship to the accused's personal belongings; the accused's proximity to and the accessibility of the narcotic; and the accused's relationship to other persons with access to the premise. We also consider whether: the accused possessed other contraband when arrested; the accused made incriminating statements when arrested; the accused attempted to flee; the accused made furtive gestures; the amount of contraband found was large enough to indicate the accused knew of its existence; there was an odor of the contraband; other contraband or drug paraphernalia was present; the accused owned or had the right to possess the place where the drugs were found; the police found the contraband in plain view or in areas private or accessible only to the accused; and the place the drugs were found was enclosed. See Frierson v. State, 839 S.W.2d 841, 849 (Tex. App.-Dallas 1992, pet. ref'd) (citing Pollan v. State, 612 S.W.2d 594, 596 (Tex.Crim.App. [Panel Op.] 1981) and Earvin v. State, 632 S.W.2d 920, 924 (Tex. App.-Dallas 1982, pet. ref'd) (en banc)); Green v. State, 892 S.W.2d 220, 222 (Tex. App.-Texarkana 1995, pet. ref'd); Villegas v. State, 871 S.W.2d 894, 896 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). "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). A person is criminally responsible for the conduct of another if "acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense[.]" Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003); see Fuller v. State, 827 S.W.2d 919, 932 (Tex.Crim. App. 1992). Evidence is legally sufficient to support a conviction under section 7.02(a)(2) where "the actor is physically present at the commission of the offense, and encourages the commission of the offense either by words or other agreement." Burdine v. State, 719 S.W.2d 309, 315 (Tex.Crim. App. 1986) (citing Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim. App. 1985)). To determine whether a person is guilty as a party under section 7.02(a), the jury may consider events occurring before, during, and after commission of the offense and may rely on actions of the defendant that show an understanding and common design to commit the offense. See Burdine, 719 S.W.2d at 315; Beier v. State, 687 S.W.2d 2, 4 (Tex.Crim.App. 1985); Vasquez v. State, 804 S.W.2d 606, 610 (Tex. App.-Dallas 1991, no pet.); Hanson v. State, 55 S.W.3d 681, 690 (Tex. App.-Austin 2001, pet. ref'd). In addition, when determining whether an agreement to commit the underlying offense exists, the jury may infer knowledge and intent from the acts, words, and conduct of the accused. See Martinez v. State, 653 S.W.2d 630, 634 (Tex. App.-San Antonio 1983, pet. ref'd). Although appellant claims the evidence is legally insufficient to show he, acting either alone or as a party, possessed more than 400 grams of methamphetamine with intent to deliver, we cannot agree. During trial, Jesus Gallo testified he is a special agent with the Drug Enforcement Agency (DEA) in Dallas. In this investigation, he used a confidential informant named Saul Horcasitas whom he had known and worked with intermittently since 1988. Gallo characterized Horcasitas as a reliable confidential informant who provides good information and noted that the two men had worked together in over fifty cases. The two men targeted "traffickers that distribute large quantities of cocaine, heroin[,] and methamphetamine." Horcasitas did the street work while Gallo played the role of his cousin, the one who had money for drugs. Gallo testified he received information about an automobile body shop called "Los Llanos" located at 10307 Denton Drive in northwest Dallas. Since 1999, the DEA had been aware of drug distribution activities from this body shop. Acting on information from Horcasitas, Gallo began an investigation of methamphetamine and amphetamine drug trafficking. In particular, he identified two subjects involved in the trafficking, Jesus Vasquez and his boss, appellant. Vasquez told Horcasitas that appellant could get him methamphetamine. On May 22, 2001, Horcasitas delivered three methamphetamine samples to Gallo. After field testing the samples, Gallo told Horcasitas to order twenty pounds of methamphetamine to be picked up the following day. In the meantime, Gallo set up surveillance of the body shop. Horcasitas contacted appellant and placed the order. The drugs were to be delivered around noon on May 23, 2001, but did not arrive on time. Appellant told Horcasitas to go home and that he would call when the drugs arrived. Appellant subsequently contacted Horcasitas and told him the drugs were ready. When Horcasitas arrived, he discovered there were four pounds of methamphetamine, not the twenty pounds Gallo requested. He called Gallo who understood Horcasitas to say there were "four small ones" or four ounces. Gallo refused the deal. When Horcasitas clarified there were four pounds of methamphetamine, Gallo agreed to delivery of the drugs. By phone, Gallo instructed appellant to follow Horcasitas to a La Quinta Hotel off Regal Row and Interstate 35. Vasquez and appellant got in a white BMW car and left the body shop, following Horcasitas. Vasquez was driving when Officer Romeo Rodriguez, a Dallas sheriff, stopped the BMW and its occupants. Once the BMW came to a complete stop, both occupants jumped out and ran. They were later arrested. Charles Styron, a special agent with the DEA, testified he conducted wiretaps on Los Llanos. The body shop was a legitimate automobile repair business as well as a large scale drug distribution point. On the afternoon of May 23, 2001, Styron and several other DEA agents were conducting surveillance of the body shop. Styron had binoculars and had the best vantage viewpoint of the shop. According to Styron, Horcasitas arrived at the shop. There was a white BMW in the driveway. Appellant pulled up in a brown van. Appellant retrieved a package, like a white plastic grocery bag, and placed it in the BMW. Appellant got in the BMW and left the shop. Horcasitas testified he took his pickup to the body shop to get some work done. Vasquez mentioned drugs to him because Horcasitas was known as someone who "would purchase great quantities of drugs." Vasquez and Horcasitas talked about drugs, including heroin and methamphetamine. Vasquez said either he or his boss could get Horcasitas what he wanted. Horcasitas contacted Gallo and told him about the potential for a drug buy. Gallo told him to proceed. Horcasitas indicated to Vasquez that he was interested in buying drugs, and a few days later, Vasquez introduced him to appellant. Horcasitas ordered twenty pounds of methamphetamine. On May 23, 2001, Horcasitas went to the body shop. A brown van arrived. Appellant grabbed a plastic bundle from the van and put it in the car on the seat. Appellant made several phone calls, "trying to get more." Ultimately, appellant told Horcasitas he only had four which Horcasitas took to mean four ounces. Horcasitas called Gallo and told him. Gallo then spoke to appellant on the phone. When he realized it was four pounds, Gallo told Horcasitas to "go ahead and do it." Horcasitas looked at the drugs before leaving. He then told appellant to follow him in the car. After they left the body shop, appellant and Vasquez were pulled over by a police officer. Officer Rodriguez testified he works in the drug enforcement division of the Dallas sheriffs' office and, on May 23, 2001, he was assisting the DEA. That day, he was parked down the street from Los Llanos body shop. His target vehicle was a white BMW. He saw the vehicle approach and received radio confirmation that the car he saw was the right vehicle. He pulled his squad car onto the road and followed the white BMW. He noticed the right brake light was not functioning and that the occupants were not wearing seat belts. As they approached Northwest Highway and Harry Hines, the officer activated his squad car emergency lights. The passenger began making furtive gestures, moving inside the vehicle as though "he was either trying to hide something or trying to pull out a gun or something." When the car did not stop, Rodriguez activated his siren. The BMW pulled into a U-Haul parking lot and slowed down. Rodriguez slowed his car and was ready to open the car door when the BMW drove off around the back of the building where it again slowed. Rodriguez explained that the car could not exit the back parking lot because there were trailers all along the side of the building. The BMW slowly drove around the parking lot, periodically stopping and going. That "got [his] attention," and he could see the passenger still making furtive gestures. The BMW finally came to a stop. Suddenly, the driver side door flew open, and the driver started running. Rodriguez had begun chasing the driver when the passenger came out and started running away. The passenger, who Rodriguez identified as appellant, was carrying something in his hands, holding it close to his body. Kenneth Hempel testified he works for U-Haul. He was at the U-Haul site when the BMW drove into the parking lot, followed by a police car. According to Hempel, the passenger in the BMW was "pulling something from the back of the vehicle and bringing it to the front of the vehicle and putting it in the glove box." He was absolutely sure it was the passenger because the driver had both hands on the wheel. He testified that both men jumped out of the car and ran across Northwest Highway to a construction site. The one man ran around the sand pile, then up on the sand pile and "burrowed" himself down in. One officer figured out where the man went. He "pointed his gun at him and asked him to come down." Officer Shane Harris testified he is a Richardson police officer, assigned to the DEA task force for the past two years. On May 23, 2001, he was assisting with surveillance at the body shop. He followed the BMW from the body shop to the U-Haul parking lot. When Rodriguez began chasing the driver, Harris chased the passenger, who he identified in court as appellant. Appellant ran to a construction site where there was a dirt pile "bigger than a house." After appellant ran passed the dirt pile, Harris lost sight of him. When Harris looked around to see where appellant had gone, he saw a construction worker waving at him. The worker pointed toward the dirt pile. Harris returned to the dirt pile and found appellant, lying on his back in a low area of the dirt pile. Harris pointed his pistol in appellant's direction. When appellant raised his head, he saw Harris and, according to Harris's instructions, got down from the dirt pile. Jackie Smith testified he works at Jett Concrete, a concrete plant at Harry Hines and Northwest Highway. He testified he found the drugs buried under some sand at his concrete plant. Although the police were searching three to four hours with dogs, they were unable to discover the drugs. When they left, they told him he would likely find drugs at some point and to give them a call when he did. He looked around for thirty to forty-five minutes, prodding the ground with a long stick, and discovered two bricks wrapped in plastic. He called the police, and they retrieved the bricks. Officer Raul Reyna testified he assisted Gallo on May 23, 2001. He pulled into the U-Haul parking lot and discovered the empty BMW. After ensuring Rodriguez and Harris were safe, Reyna began searching the BMW and taking photographs. Reyna located a round object wrapped in pink plastic in the glove compartment of the car. In addition, there was a box and a shopping bag on the floor. Reyna was called out later to recover the bricks Smith found. Matthew Lambing, supervisor of the drug analysis section at the Southwestern Institute of Forensic Sciences, testified Nancy Weber and Robert Blake tested the evidence in this case. The contraband found in the car was 428 grams of methamphetamine; that found at the construction site was 675 grams of methamphetamine and ephedrine. From these facts, we conclude a rational jury could find beyond a reasonable doubt that the State presented sufficient evidence affirmatively linking appellant to the contraband in the car and at the construction site, and therefore, appellant, acting alone or as a party, knowingly possessed with intent to deliver more than 400 grams of methamphetamine. After viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction. We overrule appellant's first, second, and third points of error. In his fourth point, appellant claims the evidence is factually insufficient to support his conviction. Under this point, appellant again argues the evidence fails to establish he possessed the drugs, knew any of the individuals involved in the incident, offered to sell drugs to anyone, or that the drugs were found in the car or at the construction site. In support of his argument, appellant relies primarily on his testimony at trial in which he denied any involvement in the drug sale. The jury was the factfinder in this case and, as such, was entitled to accept or reject any or all of the evidence presented by either side. Here, the jury chose not to believe appellant's version of events Giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude, after reviewing the evidence in this case, that the State's evidence was so uncertain, improbable, or unbelievable that it would be clearly unjust to allow the verdict to stand. See Scott v. State, 934 S.W.2d 396, 398-99 (Tex. App.-Dallas 1996, no pet.). Nor can we conclude the verdict is against the great weight of the evidence so as to be clearly wrong and unjust. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Scott, 934 S.W.2d at 398. Therefore, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's fourth point of error. We affirm the trial court's judgment.