Opinion
Nos. 05-07-00310-CR, 05-07-00311-CR
Opinion issued May 7, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 382nd District Court Rockwall County, Texas, Trial Court Cause Nos. 2-06-245, 2-06-538.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
OPINION
Carlos Lopez appeals his conviction for possession of marijuana in the amount of 2000 pounds or less but more than fifty pounds in cause number 05-07-00310-CR and possession of cocaine in the amount of 400 grams or more with intent to deliver in cause number 05-07-00311-CR. Appellant pled guilty to marijuana possession and not guilty to cocaine possession to a jury, which found appellant guilty of both offenses. The trial court sentenced appellant to twenty years' confinement and a $ 5000 fine in cause number 05-07-00310-CR and fifty years' confinement and a $ 10,000 fine in cause number 05-07-00311-CR. In two issues, appellant argues the evidence is legally and factually insufficient to show he had knowledge of the presence of the cocaine, and his trial counsel was ineffective in failing to move to suppress the contraband or to have appellant plead not guilty and submit the question of the lawfulness of the search to the jury. We affirm the trial court's judgments. Rockwall police officer Mark Spears testified he was assigned to the narcotics task force on November 1, 2005. At approximately 11:30 a.m. that day, Spears saw a white SUV with Mississippi license plates drive by and noticed the passenger was not wearing a seat belt. Spears stopped the SUV and approached. In the back of the vehicle were large tires "sticking above the glass." Spears did not see any luggage or suitcases, so he went to talk to the driver. Appellant, the driver, identified himself but could not produce a driver's license or proof of insurance. Appellant's passenger produced a Mexican driver's license identifying him as Hector Diaz. Spears removed appellant and Diaz from the vehicle and separated them. Appellant said he and his passenger were going from Fort Worth back to Mississippi, he came down to visit his grandmother, and the vehicle belonged to his girlfriend. When Spears spoke to appellant, appellant "would cross his arms in front of his chest while he answered, which is a normal deception type." Diaz "fidgeted around the front seat, moving around a bunch." Diaz said they were coming from Mexico, going to Tennessee, and the vehicle was borrowed from a mechanic shop where appellant worked. Spears had dealt with "hundreds" of cases involving narcotics couriers, and appellant and Diaz were showing "pretty much all the signs" of what Spears looked for in narcotics couriers. Appellant orally consented to Spears' search of the vehicle, and Spears found sixty bundles of marijuana in the "big truck tire" in the back of the vehicle and twenty kilograms of cocaine in the vehicle's own spare tire. Spears also found bundles of marijuana in the vehicle's doors, quarter panel, and a "large speaker box." Appellant was charged and later pled guilty to possession of marijuana in the amount of 2000 pounds or less but more than fifty pounds in cause number 05-07-00310-CR but pled not guilty to possession of cocaine in the amount of 400 grams or more with intent to deliver in cause number 05-07-00311-CR. A jury convicted appellant of both offenses, and these appeals followed. In his first issue, appellant argues the evidence is insufficient to show he knowingly and intentionally possessed the cocaine as alleged in the indictment. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. The jury, as the sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. In making a factual sufficiency review, a reviewing court is permitted to substitute its judgment for the jury's when considering credibility and weight determinations, but only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006) (explaining factual sufficiency jurisprudence still requires appellate court to afford "due deference" to jury's determinations). Unless the record clearly reveals a different result is appropriate, an appellate court must defer to the jury's determination concerning what weight to give contradictory testimonial evidence. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). The State was required to prove beyond a reasonable doubt that appellant knowingly possessed with intent to deliver cocaine in an amount of 400 grams or more. See Tex. Health Safety Code Ann. §§ 481.112(a), (f) (Vernon 2003). Possession means "actual care, custody, control, or management." Id. §§ 481.002(38) (Vernon Supp. 2007). The elements of possession may be proved by circumstantial evidence. Smith v. State, 56 S.W.3d 739, 746 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). Without an admission by the accused, due to its subjective nature, the knowledge element of the crime may be inferred. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App. 1985); Smith, 56 S.W.3d at 746. Because appellant was not in exclusive possession of the vehicle where the contraband was found, the State must affirmatively link appellant to the contraband. See Brown v. State, 911 S.W.2d 744, 747-48 (Tex.Crim.App. 1995). Among the factors to be considered in determining whether an affirmative link exists are: (1) the accused's proximity to and accessibility to the contraband; (2) the quantity of the contraband found; (3) whether the contraband was in plain view; (4) whether the accused was present at the time of the search; and (5) whether the conduct of the accused with respect to the drugs indicates his knowledge and control. See Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.-Dallas 2003, no pet.); Pettigrew v. State, 908 S.W.2d 563, 571 (Tex.App.-Fort Worth 1995, pet. ref'd). The number of factors present is not as important as the logical force or the degree to which the factors, alone or in combination, tend to affirmatively link the accused to the contraband. See Wallace v. State, 932 S.W.2d 519, 524 (Tex.App.-Tyler 1995, pet. ref'd). Moreover, the link need not be so strong as to preclude every other reasonable explanation except the accused's guilt. See Brown, 911 S.W.2d at 748. Here, appellant pled guilty to possessing the marijuana but argued at trial and on appeal that he did not know about the cocaine. Appellant testified a man in Mississippi named "Twin" offered appellant $ 3000 to bring fifty pounds of marijuana from Dallas to Mississippi. Appellant initially rejected the offer but agreed to bring one hundred pounds of marijuana for $ 6000. On October 29, 2005, appellant drove into the Dallas area and stayed in a hotel. "Through a telephone call," appellant was told where to leave his vehicle and where to leave his keys inside. Appellant did not know who was coming to get the vehicle, but "those people were delayed." Appellant stayed another night at a different hotel, and in the morning he found two tires in the vehicle that were "not supposed to be there." The tires were where appellant "thought the marijuana was." Although Spears testified one of the tires fit the vehicle, appellant knew he did not have a spare when he came to Dallas. Appellant was "worried," but he did not know where all of the marijuana was in the vehicle. According to appellant, he did not know anything about the cocaine in the tire until he "got to the jail in Rockwall." Nevertheless, by his own admission, appellant knew that he was transporting at least a hundred pounds of marijuana in his vehicle. Also by his own admission, appellant was aware that both tires in the vehicle contained drugs, though he claimed at trial to think they both contained marijuana. Rockwall police officer Steve Tigert testified that the cocaine recovered from appellant's vehicle would have an approximate street value of $ 4 million. Tigert testified that, if a courier were to get arrested or have someone steal the drugs they were transporting, the courier could "expect a death threat or an attempt" and "their families would be threatened." Based on Tigert's training and experience, he testified no one would be entrusted with $ 4 million worth of cocaine and allowed to transport it without knowing how much money was involved and how much drugs were involved. We conclude the jury was free to believe Tigert's testimony and find that appellant knew he was transporting cocaine in addition to the marijuana. See McGoldrick, 682 S.W.2d at 578; Smith, 56 S.W.3d at 746. Under these circumstances, the evidence was legally and factually sufficient to show appellant knowingly possessed the cocaine. See Jackson, 443 U.S. at 319; Watson, 204 S.W.3d at 415. In his second issue, appellant argues his trial counsel was ineffective in failing to move to suppress the contraband or to have appellant plead not guilty and submit the question of the lawfulness of the search to the jury. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on an ineffective assistance of counsel claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 694. The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Id. at 813. The record in this case is silent as to trial counsel's strategy in failing to move to suppress the marijuana. However, appellant's counsel argued that the key issue in the case was whether appellant knowingly possessed the cocaine. Appellant's counsel argued appellant knew about the marijuana and admitted to knowing about it, but he did not know about the cocaine. Appellant has failed to rebut the presumption that it was a reasonable decision to plead guilty to the marijuana possession charge and not guilty only to the possession of cocaine charge. See id. at 814. Further, we cannot conclude a reasonable probability exists that, but for trial counsel's failure to act, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. Appellant pled not guilty to the possession of cocaine offense and, when the jury found him guilty of that offense, he elected to have the trial court assess punishment. Although the maximum sentence for that offense was ninety-nine years' confinement, the trial judge assessed punishment at fifty years' confinement. Under the facts and circumstances of this case, we cannot conclude appellant received ineffective assistance of counsel. We overrule appellant's second issue. We affirm the trial court's judgments.
See Tex. Health Safety Code Ann. §§ 481.121(a), (b)(5) (Vernon 2003).
See Tex. Health Safety Code Ann. §§ 481.112(a), (f) (Vernon 2003).