No. 14-05-00150-CR
Opinion filed February 23, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 183rd District Court, Harris County, Texas, Trial Court Cause No. 968,206. Affirmed and Memorandum.
Panel consists of Justices FOWLER, EDELMAN, and GUZMAN.
WANDA McKEE FOWLER, Justice.
Appellant, Jesus Alejandro Vasquez, was indicted for the felony offense of possession of cocaine weighing at least 400 grams with intent to deliver. A jury found him guilty and assessed his punishment at 70 years' imprisonment and a $100,000 fine. In six points of error, all raising legal and factual sufficiency claims, appellant appeals his conviction. We affirm.
Factual and Procedural Background
According to police testimony, on November 13, 2003, appellant, Jesus Alejandro Vasquez, arrived in Houston on a bus from Phoenix, Arizona. After exiting the bus, he crossed the street and entered a cab. Police officers, Officers Eller and Siens, noticed appellant because he continuously looked over his shoulder as if to see if someone were following him. He also had no luggage, except for a laptop and black backpack, which he was carrying at all times. Appellant entered the cab with another individual, Mr. Sanchez, and Officers Eller and Siens then approached the cab. Officer Eller approached the driver, identified himself as a police officer, and asked if he could speak with the passengers. Officer Siens positioned himself at the rear of the cab to observe the two occupants. Upon hearing that there was a police officer present, appellant opened the cab door and placed the backpack under the cab. Officer Eller began talking with Mr. Sanchez while Officer Siens, who saw appellant hide the backpack, approached appellant. Officer Siens asked appellant if he could examine the backpack; appellant said he did not care because the backpack was not his. Another officer, Officer Simerly, arrived and searched the backpack. Police recovered over 800 grams of cocaine valued at approximately $100,000, and 15 ounces of marijuana from the backpack. Appellant's fingerprint was on the bag of marijuana; police recovered no usable prints from the package of cocaine. While talking to appellant, Officer Siens asked several questions relating to appellant's trip to Phoenix and asked to see appellant's bus ticket. Appellant traveled to Phoenix under one assumed name, and back to Houston under a different assumed name. Appellant falsely told Officer Siens the second assumed name was his correct name. He also gave Officer Siens conflicting stories for why he had made a trip to Phoenix and then returned quickly to Houston. That story conflicted with the version appellant gave in his trial testimony. Based upon their experience in narcotic interdiction and the evidence seized, the officers arrested appellant and filed charges of possession with intent to deliver. While arrested, appellant attempted to escape from jail, but was unsuccessful. The police and appellant gave, in appellant's attorney's words, "two totally different stories." Although similar in some respects, appellant's version of events was markedly different. According to appellant, he was not carrying the backpack, Mr. Sanchez was. The backpack belonged to his friend, the other passenger in the cab. The two had gone to Phoenix at his friend's request. Appellant had no luggage because his clothes were in his friend's backpack — the one police testified appellant had carried. Appellant had reached into the backpack to get his clothes and thus, although appellant had no idea there were drugs in that backpack, his fingerprint was on the marijuana bag. Appellant also testified that only Officer Siens approached the car and other officers arrived much later. Further, appellant's friend tried to hide the backpack. As for trying to escape, appellant suffered a panic attack and was not attempting an escape from the jail. After hearing these competing stories, the jury returned a verdict of guilty. On appeal, appellant claims the evidence was legally and factually insufficient to support that verdict. We affirm. Analysis
I. Legal Sufficiency Appellant argues the evidence is legally insufficient in three ways: (1) to affirmatively link him to the narcotics; (2) to establish his knowledge of the unlawful nature of the narcotics; and (3) to show that he was aware of the nature of the substance, and to show his control over the narcotics for a sufficient period of time for him to terminate control over the narcotics. Essentially, appellant argues the State failed the "affirmative links" test as espoused in Brown v. State. 911 S.W.2d 744, 747 (Tex.Crim.App. 1995) (explaining that "affirmative link" is merely shorthand for what must be proven in a prosecution for possession of illegal drugs, such as awareness and control). In a legal-sufficiency challenge, we employ the familiar standard of viewing the evidence in the light most favorable to the verdict. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). If any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, we will affirm. Id. We will not re-weigh the evidence and substitute our judgment for that of the jury. Id. Because appellant's claims really revolve around the elements the State must prove in any case of possession, we evaluate his legal sufficiency claims together so as to explain that the State proved appellant (1) exercised actual care, control, or custody of the substance; and (2) knew the substance was contraband. See Brown, 911 S.W.2d at 747. When an accused does not exercise exclusive control over the place where the contraband is found, the State must provide evidence to affirmatively link an accused to the contraband. Reed v. State, 158 S.W.3d 44, 47 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). Those links may be established by additional facts and circumstances raising a reasonable inference of the accused's knowledge and control. Id. When determining if the State established affirmative links, we examine factors such as the following: (1) the contraband was in plain view; (2) the contraband was accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the accused was the driver of the automobile in which the contraband was found; (5) the contraband was found on the same side of the vehicle seat as the accused was sitting; (6) the contraband was found in an enclosed place; (7) the odor of drugs was present; (8) paraphernalia to use the contraband was in view of or found on the accused; (9) conduct by the accused indicated a consciousness of guilt; (10) the accused had a special connection to the contraband; (11) occupants of the vehicle gave conflicting statements about relevant matters; (12) the accused appeared to be under the influence of drugs; and (13) affirmative statements connected the accused to the contraband. Id. n. 1 (citation omitted). Our review is more concerned with the significance of the factors than the number of additional factors. See id. However, the affirmative links — the additional facts and circumstances — need not rule out every other reasonable hypothesis of innocence. See id. Given the evidence and the factors we consider, the evidence was legally sufficient to sustain appellant's conviction. In this case, appellant exited a bus carrying the contraband. He exhibited behavior that seasoned narcotics officers testified was typical of a courier. Appellant entered a cab and, once he knew police were honing in on him, attempted to discard the contraband. His fingerprint was on at least one package of the drugs. He traveled to Phoenix under one assumed name, and returned almost immediately under another assumed name. Appellant's reasons for traveling to Phoenix were contradictory and he had no luggage. Officers testified that this behavior and method of travel was in line with a drug courier. Also, the jury could have determined that attempting to abandon the backpack and denying ownership evidenced guilt and knowledge. Once in custody, appellant attempted to escape — evidencing guilt and knowledge. Given that appellant fit the profile for a courier, lied to police regarding his true identity, maintained possession and control over the narcotics when exiting the bus and entering the cab, attempted to abandon the narcotics when confronted by police, and then attempted to escape prison, we have no difficulty concluding the evidence was legally sufficient. II. Factual Sufficiency
Appellant also raises the issue of factual sufficiency. When conducting a factual sufficiency review, we view the evidence in a neutral light and will set the verdict aside only if the evidence is so weak as to make the verdict clearly wrong and manifestly unjust, or if the contrary evidence is so strong that the standard of proof, beyond a reasonable doubt, could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004), cert. denied, 125 S. Ct. 1697 (2005). While we have reviewed the entire record and have considered all evidence presented at trial, we cannot re-weigh the evidence and supplant the role of the jury to resolve conflicts in testimony and evaluate witness credibility. See Zuniga v. State, 144 S.W.3d 477, 482 (Tex.Crim.App. 2004) (stating that appellate courts are not to "find" facts or substitute their judgment for that of the jury). The evidence is factually sufficient as well. The only evidence at trial contrary to the verdict was appellant's own testimony. He contradicted virtually every aspect of the officers' testimony. Simply offering an alternate version of events, however, is not enough to create evidence so strong that the standard of proof could not be met, or render the State's evidence so weak to make the verdict clearly wrong and manifestly unjust. The jury weighs the evidence and credibility. When faced with testimony from experts and officers contrasted with appellant's version of events, the jury was justified in finding appellant guilty. As outlined above, the evidence established appellant was in control of the contraband, he had handled at least some of the contraband, and acted in a way conforming with that of a drug courier. The jury had evidence showing appellant's knowledge and control. Given the state of the evidence and the jury's role of resolving conflicts in testimony, we cannot say the evidence was factually insufficient. Conclusion
Having overruled each of appellant's points of error, we affirm the judgment of the trial court.