No. 05-06-01152-CR
Opinion Filed January 22, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 6 Dallas County, Texas, Trial Court Cause No. F05-01021-LTX.
Before Justices O'NEILL, RICHTER, and LANG.
DOUGLAS S. LANG, Justice.
A jury convicted Luis Ramiro Lugo of unlawful possession with intent to deliver cocaine in an amount of 400 grams or more and assessed punishment, enhanced by a prior felony conviction, at sixty years' imprisonment and a $250,000 fine. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm as modified.
Background
On January 21, 2005, undercover narcotics officers negotiated the purchase of ten kilograms of cocaine from Delfino Quintinilla at a small restaurant. Other officers provided surveillance of the meeting place and transaction. After negotiations were finished, Quintinilla used a push-to-talk phone and talked with appellant. A short time later, Jose Lopez, appellant's father (Father) arrived at the restaurant driving a white Grand Am. Appellant was in the front passenger seat. Father and Quintinilla talked, then Father and appellant drove from the restaurant, motioning for Quintinilla to follow them. Father and appellant drove to a laundromat a few blocks away, then motioned for Quintinilla to park there. Quintinilla remained at that location while Father and appellant drove to a house two blocks from the laundromat. Father and appellant carried cardboard soda boxes that contained ten kilograms of cocaine from the house to the white Grand Am. Then, Father returned to the laundromat. Appellant was not in the car with Father, but there was a woman in the front passenger seat. At the laundromat, Father transferred the boxes to Quintinilla's vehicle, then drove back to the house. Quintinilla drove from the parking lot in the opposite direction and was pulled over by officers a short time later. Meanwhile, surveillance officers at the house saw Father come out and get into the back seat of the white Grand Am. Appellant got into the front passenger seat and Alexander Casso got in the driver's seat. Casso drove to a small grocery store a few blocks away. At the store, Father got out of the vehicle and got into a maroon Buick. Officers stopped both vehicles and arrested all three men. Officers executed a search warrant on the house, which had two bedrooms. During the search, officers found bundles of money that were vacuum sealed in cellophane wrapping totaling $967,000. The officers also found money counting machines, digital scales, packing and shipping materials, ledgers and notebooks, and cocaine that was packaged into "bricks." Later analysis showed the narcotics found inside the house and in the cardboard soda boxes given to Quintinilla totaled 16.99 kilograms of cocaine, including adulterants and dilutents. The officers found several weapons in various rooms inside the house, including a .380-caliber Colt semi-automatic handgun, a .380-caliber Beretta pistol, a .40-caliber Beretta pistol, a nine-millimeter Beretta pistol, and a .357-caliber Magnum revolver. When officers searched a crawlspace in the room designated as "bedroom #1," they found two fragmentation vests, two Norinco MAK-90 assault rifles, a barrel extender for the rifles, and an Uzi pistol. The rifles were not loaded and appeared to be in bad condition. Both Quintinilla and Casso testified at trial. Casso testified that on January 20, 2005, appellant called him and told him to come to the house to count money. Casso had known appellant for about five years. Casso arrived at the house at 11:00 p.m. driving Casso's father's white Grand Am. Appellant told Casso to sleep in one of the bedrooms. The next morning, Casso started counting money. Casso testified he counted, labeled, and wrapped bundles of money that totaled about $800,000 that day. Casso testified he agreed to count money in hopes he could "move up the chain in the organization." According to Casso, appellant was at the house during the time Casso counted the money, but appellant went "in and out" with Father throughout the day. At one point, Casso heard appellant tell Father to get the soda boxes. Casso saw appellant and Father carry the boxes to the Grand Am. Casso testified Father had asked him to use the Grand Am. Casso knew they were using his car to transport drugs. Casso testified he heard appellant telling Father "go over there" and "get in the car" that day. Casso left the house sometime between 3:00 p.m. and 4:00 p.m. with appellant and Father. Appellant told Casso to drive them to pick up another car, then directed him where to go. Casso drove a short distance to where a maroon car was parked. After Father got into the maroon car, police officers stopped them. Quintinilla testified he saw appellant and Father for the first time on January 20, 2005. At that time, he made arrangements with Father to get ten kilograms of cocaine. Appellant was present at the time Quintinilla met with Father, but appellant only asked if Quintinilla wanted something to eat and how long Quintinilla knew the buyers. The next day, Quintinilla used a push-to-talk phone and appellant answered the call. Quintinilla testified appellant and Father had different voices and he could distinguish between them. Quintinilla testified Father came to the restaurant and talked with him. There was another person with Father whose identity Quintinilla did not remember. Quintinilla testified he and Father stood outside by their cars discussing the drug sale, after which he followed Father to a nearby laundromat. Quintinilla waited in his car for twenty-five minutes while Father and appellant went to get the drugs. When Father returned, he had a woman with him. Father put two boxes of soda in Quintinilla's trunk, then left. Quintinilla drove back toward the restaurant to finalize the transaction, but was stopped by officers. Quintinilla testified he pleaded guilty to possession with intent to deliver over 400 grams of cocaine, and that he did not have any "deals" with the prosecutors in exchange for his testimony. Several officers assigned to the High Intensity Drug Trafficking Area (HIDTA) Task Force testified about the undercover drug buy with Quintinilla and how they provided surveillance at the restaurant, a McDonald's, the laundromat, and the residence. Detective Jose Fonseca testified he worked undercover as the buyer. Fonseca met Quintinilla at a restaurant and negotiated a price for ten kilograms of cocaine. At one point another undercover officer entered the restaurant and "flashed money" to Quintinilla to finalize the deal. After negotiating, Fonseca left the restaurant. Fonseca testified he did not follow Quintinilla with the surveillance team, but did help search the house. Glen Schneider, a Drug Enforcement Administration (DEA) agent, testified he supervised the surveillance of the suspects. After the negotiations were made between Quintinilla and Fonseca, Schneider followed Quintinilla from the restaurant to a nearby McDonald's. Schneider saw a white Grand Am park next to Quintinilla's vehicle. Father, who was in the driver's seat, got out of the Grand Am and talked to Quintinilla. Appellant, who was sitting in the front passenger seat, stayed inside the vehicle. At one point, Father and Quintinilla moved towards the back part of the Grand Am and continued talking. Schneider testified all of the windows in the Grand Am were down and appellant appeared to be participating in the conversation. Father and Quintinilla got back into their vehicles and drove to a laundromat located two blocks from the McDonald's. Quintinilla parked his vehicle while Father continued on to a house located two blocks from the laundromat. Father backed the Grand Am into the driveway and near the garage behind the house. The Grand Am left the driveway thirty minutes later. Father was driving, and a female was in the front passenger seat. Father drove back to the laundromat. Once there, Father took soda boxes from the Grand Am and put them into the trunk of Quintinilla's vehicle. Father got back in his vehicle and drove back to the house. One hour later, the Grand Am left the house again. This time, Alexander Casso was driving, appellant was in the front passenger seat, and Father was in the back seat. They stopped at a small grocery store located a few blocks from the house. Father got out of the Grand Am and got into a maroon Buick. Schneider testified officers prevented the vehicles from leaving the location, then arrested appellant, Father, and Casso. Schneider testified officers found two cell phones, one on the passenger seat where appellant was sitting and one on the ground outside the driver's side door. No weapons were found on appellant, Father, or Casso. Officer Chris Wagner testified he pulled over Quintinilla's vehicle shortly after Quintinilla left the laundromat. Wagner was told by undercover officers that Quintinilla's vehicle contained a large quantity of narcotics. After Wagner arrested Quintinilla, he searched the vehicle and found two soda cartons and a cell phone. Wagner did not open the cartons. Brad Norman, an Ellis County Sheriff's deputy assigned to HIDTA, testified he provided surveillance on the house only. After a search warrant was obtained, he helped search the house, concentrating on bedroom one. Norman found several items of paraphernalia in the room, as well as a shaving kit on the dresser. When he looked inside the kit, Norman found a current Tennessee driver's license in appellant's name, with appellant's picture on it, and a Social Security card in appellant's name. Detective Anthony Gipson testified his role was to flash money while at the restaurant where the negotiations were taking place, after which he obtained a search warrant on the house. Gipson testified the records on appellant's and Quintinilla's phones showed calls were made between them. On January 19, 2005, there were ten calls made from appellant's phone to Quintinilla's phone, twenty-five calls to Quintinilla's phone on January 20, 2005, and nine calls to Quintinilla's phone on January 21, 2005. The records also showed that between January 19, 2005 and January 21, 2005, there were twenty calls made from Quintinilla's phone to appellant's phone. Gipson testified officers later discovered the house where the cocaine and money were found was leased by Father, and that appellant lived at another location with his wife and children. Barry Ragsdale, a Dallas police officer assigned to the DEA, testified as an expert on narcotics trafficking. Ragsdale testified cocaine that is meant to be distributed is packaged in kilogram units. Kilogram units of cocaine are not for personal use. One kilogram is equal to 1000 individual doses and is valued at $10 per tenth of a gram, $100 per gram, or $100,000 per kilogram. Ragsdale testified that seventeen kilograms of cocaine would have a street value of $1.7 million. Ragsdale testified the drug trade is run like any other business and includes internal hierarchies. The people at the top shield themselves to maintain their anonymity. Common ways drug traffickers use to shield themselves include using multiple phones, using prepaid phones, using other people's cars, using cars and residences registered in someone else's name, and keeping the people who work for them from knowing what other workers are doing. The defense recalled Schneider, who testified he positively saw appellant sitting in the front passenger seat of the Grand Am at the McDonald's restaurant. Appellant did not testify at trial. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). The standard is the same for both direct and circumstantial evidence cases. See Burden v. State, 55 S.W.3d 608, 613 (Tex.Crim.App. 2001); Bates v. State, 155 S.W.3d 212, 215 (Tex.App.-Dallas 2004, no pet.). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007), cert. denied, 128 S.Ct. 282 (U.S. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (U.S. 2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. 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 or intentionally 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). To do so, the State had to prove appellant exercised actual care, control, or management over the cocaine and knew it was contraband. See Taylor v. State, 106 S.W.3d 827, 830 (Tex.App.-Dallas 2003, no pet.). The control over the contraband need not be exclusive, but can be jointly exercised by more than one person. See id. at 831. Links between appellant and the contraband must be established by either direct or circumstantial evidence. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005). However, no set formula of facts exists to dictate a finding of links sufficient to support an inference of knowing possession. See Taylor, 106 S.W.3d at 830. It is the logical force of the evidence, and not the number of links, that supports a fact-finder's verdict. See Evans v. State, 202 S.W.3d 158, 166 (Tex.Crim.App. 2006). The jury was instructed it could find appellant guilty as a party to the offense if it found he committed the offense by his own conduct, by the conduct of another for which he is criminally responsible, or both. The jury was instructed that a person is criminally responsible for an offense committed by 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. See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). The jury was also instructed it could find appellant guilty if it found he conspired to commit the offense. "Conspiracy" was defined as an agreement between two or more persons, with the intent that a felony be committed, that they or one or more of them performs an overt act in pursuance of the agreement. See Tex. Pen. Code Ann. § 15.02(a) (Vernon 2003). The jury was further instructed that an agreement constituting a conspiracy may be inferred from the acts of the parties. See id. § 15.02(b). In determining whether the accused is guilty as a party, the fact finder may consider events occurring before, during, and after commission of the offense. Michel v. State, 834 S.W.2d 64, 67 (Tex.App.-Dallas 1992, no pet.). Moreover, because conspirators' work is often done in secrecy and under cover, direct evidence is not required to support a conviction; circumstantial evidence will suffice. See Cuellar v. State, 13 S.W.3d 449, 453 (Tex.App.-Corpus Christi 2000, no pet.). Discussion
Appellant argues the evidence is legally and factually insufficient because (1) no one identified him as a person participating in the drug sale, (2) he was neither present when the cocaine was found nor lived at the house where the cocaine was found, and (3) he did not deliver the drugs to Quintinilla. The State responds that the evidence is legally and factually sufficient to support appellant's conviction as a party or co-conspirator to the offense. The jury was charged it could find appellant guilty of possession with intent to deliver cocaine as a principal, as a party to the offense, as a conspirator to the offense, or not guilty. One narcotics officer positively identified appellant as participating in the sale of ten kilograms of cocaine. Schneider testified he positively identified appellant as the person who was with Father while Father talked with Quintinilla about the cocaine. Although appellant remained inside the vehicle while Father and Quintinilla talked, appellant appeared to be participating in the conversation. Appellant was not present at the house when officers found over $967,000 in cash and a large quantity of cocaine. Officers learned that Father lived in the residence, and appellant lived at a different location. However, officers did find a shaving kit in bedroom one that contained a current Tennessee driver's license in appellant's name and with appellant's picture on it, and a Social Security card in appellant's name. Both Quintinilla and Casso, co-conspirators in this case, testified appellant participated in the drug sale. According to Quintinilla, appellant was with Father when he discussed the quantity of drugs needed. Casso testified appellant told him to count money, told Father to carry the soda boxes to the car, and left the house with Father and the soda boxes, which contained ten kilograms of cocaine. Analysis showed the drugs found inside the house and inside the cardboard soda boxes totaled almost seventeen kilograms of cocaine. In a possession with intent to deliver case, the "intent to deliver" element may be proved by circumstantial evidence, such as the quantity of drugs possessed and the manner of packaging. Smith v. State, 737 S.W.2d 933, 941 (Tex.App.-Dallas 1987, pet. ref'd); see also Edwards v. State, 813 S.W.2d 572, 578-79 (Tex.App.-Dallas 1991, pet. ref'd) (en banc). The jury, as fact finder in this case, was in the best position to evaluate the credibility of the witnesses and the evidence, and we must afford due deference to its determination. See Marshall, 210 S.W.3d at 625. The jury was free to accept or reject any and all of the evidence presented by either side. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). Viewing the evidence under the proper standards, we conclude it is legally and factually sufficient to support appellant's convictions for possession with intent to deliver cocaine. See Roberts, 220 S.W.3d at 524; Evans, 202 S.W.3d at 166; Lane, 151 S.W.3d at 191-92. We overrule appellant's points of error. Modify Judgment
We note the trial court's judgment recites appellant's name as "Luis Ramiro Lobo." Appellant's true name is Luis Ramiro Lugo. On our own motion, we modify the trial court's judgment to show appellant's name is Luis Ramiro Lugo. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). As modified, we affirm the trial court's judgment.