Campbell, Charles v. The State of Texas--Appeal from 168th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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CHARLES CAMPBELL, ) No. 08-01-00357-CR

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Appellant, ) Appeal from

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v. ) 168th District Court

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THE STATE OF TEXAS, ) of El Paso County, Texas

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Appellee. ) (TC# 20000D03794)

O P I N I O N

Charles Campbell was charged with possession of more than 50 but less than 2,000 pounds of marijuana. A jury found him guilty and the court assessed punishment at ten years to be served in the Institutional Division of the Texas Department of Criminal Justice. At issue in this appeal is whether the evidence was legally and factually insufficient to show that Appellant intentionally and knowingly possessed marijuana. We affirm.

FACTUAL SUMMARY

Detective Louis Serrano and Officer Hope Gomez both worked for the Astash house unit@ of the El Paso Police Department.[1] On July 10, 2000, at about 11:30 a.m., Officer Gomez began surveillance on a home located at 2072 Pueblo Nuevo Circle in El Paso, Texas after police received an anonymous tip of possible narcotics trafficking. Gomez watched the premises from an unmarked pickup truck down the street from the house. Backed into the carport on the side of the house was a yellow Ryder rental truck. Parked directly in front of the Ryder was a large red Adually@ pickup truck which had also been backed into the driveway so that it was facing the street. Directly behind the Ryder was a detached garage which Appellant used as an office.

Other officers were nearby and an unmarked police vehicle was parked in the front of the house. The surveillance team observed Appellant walking between the back of the Ryder truck and the side door of the house some three or four times. Officer Gomez and Detective Serrano were assigned to perform a Aknock-and-talk@ to see if Appellant would consent to a search of the house. They were met by Appellant at the door. Both officers were wearing plain clothes, did not have their weapons visible, flashed their badges and identified themselves as officers. Appellant was calm and cooperative; he invited the officers to come in but asked them to wait a minute since he was on the telephone. When Appellant returned, the officers explained that they had been notified that drugs were possibly being stored at the residence. Officer Gomez noticed another man watching television in a room to the left of the dinette. This individual, Leroy Robinson, was a truck driver for Appellant=s company who was laying over between runs and staying at Appellant=s home as a guest. Appellant told the officers that he owned the home and that they could search it because there were no drugs there. When the officers told him that the search would go more quickly if the K-9 unit were used, Appellant consented to a K-9 sweep for narcotics detection. The K-9 unit alerted to the Ryder truck in the driveway. The officers asked Appellant if the truck belonged to him or if he had rented it. Appellant explained that the day before, a friend had asked permission to leave the truck at the house because he could not park it in the apartment complex where he lived. Because the friend is identified in the record as either Devon Johnson or Devon Harrison, we will simply refer to him as ADevon.@ After explaining that the truck was not his, Appellant offered police the keys which had been laying on an island counter in the kitchen.

Inside the truck, officers found ten moving boxes. Ironically, the boxes were printed with the slogan, ASay no to drugs.@ One of the boxes was open and the officers looked inside to discover numerous bundles of marijuana. Officers later determined that there were over 979 pounds of marijuana in 603 individual bundles with a street value in the neighborhood of $295,000. An invoice found inside the cab indicated that Alvaro Acosta had rented the vehicle. Officers ultimately discovered that Acosta had rented the truck for Aa friend.@ The Afriend@ was not identified at trial and Appellant denied discussing the rental with Acosta. Police were not able to link Acosta to the marijuana.

After finding the marijuana, the officers conducted a full search. Inside the detached garage, they found several boxes and packaging tape similar but not identical to that found in the truck. Officers also found a receipt from Rhino Self Storage dated July 8, 2000, reflecting the purchase of ten extra large boxes and three rolls of tape. Inside the house, the officers found a water bill, a Homecomings Financial Network mailing, a deposit stub from Bank of America, and a Dish Network receipt, all bearing Appellant=s name and address. The dually was registered to Appellant in the state of Florida.

While searching the master bedroom, officers came across separate stashes of cash. A blue plastic bag inside the armoire contained $3,440. The dresser drawers contained another $2,380. A Federal Express envelope outside the front door held $2,520 in cash and was addressed to a person in Miami who was affiliated with Mayflower, a common carrier transportation company. The total amount of cash discovered at the residence was $8,340. The officers later hid the money that had been discovered in the dresser drawers to see if the K-9 unit could detect the presence of narcotics. When the drug dog was brought inside to search the house, he alerted to the residual odor of drugs on the money.

Appellant told authorities he was self-employed. He had been in the moving transportation business since 1979. His business, Savior Transportation, was incorporated in the state of Florida and Appellant had lived in Florida until 1999 when he moved to El Paso. At the time of his arrest, the business was operating four or five 18-wheeler tractor-trailer rigs. On the morning of July 10, Appellant was in Juarez with his girlfriend and when he returned to his home, he found the Ryder truck parked in the driveway as he had instructed Devon to do. Appellant testified that he had met Devon through a maintenance man at an apartment complex who had become a friend and often referred him customers in need of moving services. Appellant and Devon had met on three or four different occasions to work out the details for Appellant to move Devon from the apartment complex in El Paso to Washington, D.C. During these visits, Devon became acquainted with Leroy Robinson. The police later contacted Devon. He mentioned that he was trying to get a job with Appellant as a truck driver. Devon denied driving the Ryder truck to Appellant=s house. However, one of the drug dogs alerted to marijuana inside Devon=s apartment.

Appellant claimed he never looked in the back of the truck nor did he know that there was marijuana inside. While he normally takes inventory of everything that he transports, that day he was unable to inspect the cargo since he had just returned from Juarez. Appellant usually keeps large amounts of currency in his house at all times so he can supply his truck drivers with money to pay for fuel and emergencies. The Federal Express package contained cash because he was Atoo lazy@ to get a money order. He also denied going back and forth between his house and the truck repeatedly when the police were conducting surveillance, and he never opened the cargo door. He said that the police could not see him as he passed behind the truck, and that he was actually working on some lawn equipment near the garage.[2]

Detective Serrano testified concerning his experience with drug trafficking between El Paso

and Florida. The common form of transportation is 18-wheelers and customarily, the traffickers utilize a legitimate business as a front for moving money.

SUFFICIENCY OF THE EVIDENCE

In his sole point of error, Appellant challenges the legal and factual sufficiency of the evidence to support his conviction. More specifically, he argues that the evidence does not affirmatively link him to the marijuana found in the Ryder rental.

Possession of a Controlled Substance

Unlawful possession of a controlled substance contains two elements. The State must prove that the accused: (1) exercised care, control, and management over the contraband, and (2) knew the substance was contraband. See Martin v. State, 753 S.W.2d 384, 386 (Tex.Crim.App. 1988); Levariov. State, 964 S.W.2d 290, 294 (Tex.App. El Paso 1997, no pet.). When the contraband is not found on the accused=s person or it is not in the exclusive possession of the accused, additional facts and circumstances must link the accused to the contraband. Id. An affirmative link must be established between the accused and the contraband demonstrating both that the accused had control over it and that the accused had knowledge of its existence and character. See Brown v. State, 911 S.W.2d 744 (Tex.Crim.App. 1995); Levario, 964 S.W.2d at 294. This Aaffirmative link@ may be shown by either direct or circumstantial evidence, and Ait must establish, to the requisite level of confidence, that the accused=s connection with the drug was more than just fortuitous.@ Brown, 911 S.W.2d at 747; Levario, 964 S.W.2d at 294. Courts have looked to various factors in determining the existence of an affirmative link, including: (1) the place where the contraband was found was enclosed; (2) the contraband was conveniently accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the quantity of the drugs found; (5) the accused possessed a key to the locked location of the drugs; (6) a tip by an informant that the accused was in possession of the contraband; (7) the accused was in close proximity to a large quantity of contraband; and (8) drug paraphernalia was found on or in plain view of the accused. See Washington v. State, 902 S.W.2d 649, 652 (Tex.App. Houston [14th Dist.] 1995, pet ref=d); Villegas v. State, 871 S.W.2d 894, 897 (Tex.App.--Houston [1st Dist.] 1994, pet. ref=d); Edwards v. State, 813 S.W.2d 572, 575 (Tex.App. Dallas 1991, pet. ref=d). Certain of these factors may bear on the care, custody, control, or management element of the offense, while others may bear on knowledge, and yet others may be relevant to both elements. Whitworth v. State, 808 S.W.2d 566, 569 (Tex.App. Austin 1991, pet. ref=d). The number of factors present is of less import than the logical force the factors have, alone or in combination, in establishing the elements of the offense. Whitworth, 808 S.W.2d at 569.

Legal Sufficiency

In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, in the light most favorable to the verdict to 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, 318 19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991). We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct and circumstantial evidence cases. Geesa, 820 S.W.2d at 158; Chesnut v. State, 959 S.W.2d 308, 311 (Tex.App. El Paso 1997, no pet.).

Several of the enumerated factors exist here. Police were tipped by an informant that Appellant was in possession of the contraband. Appellant owned and resided in the home where the Ryder truck was parked. The keys to the truck were in his possession. Nearly 1,000 pounds of marijuana were packed into ten moving boxes. Similar boxes, packaging tape and packing Apeanuts@ were found in Appellant=s garage/office. Officers recovered a receipt from Appellant=s garage indicating that ten large boxes and three rolls of tape had been purchased just two days earlier. One of the Appellant=s employees was on the premises and available to drive the load. The evidence is legally sufficient to establish that Appellant had knowledge of and control of the marijuana. Watson v. State, 861 S.W.2d 410, 415 16 (Tex.App. Beaumont 1993, pet. ref=d)(although defendant was not in exclusive possession of motel room where cocaine was found, evidence established an affirmative link where cocaine was conveniently accessible to defendant, defendant indicated exercise of control over room by answering door, cocaine was in enclosed place, cocaine paraphernalia was in defendant=s view, and smoke alarm had been manually disconnected).

Factual Sufficiency

When conducting a factual sufficiency review, we consider all of the evidence, but we do not view it in the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996); Levario, 964 S.W.2d at 295. We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832, 118 S. Ct. 100, 139 L. Ed. 2d 54 (1997). A defendant challenging the factual sufficiency of the evidence may allege that the evidence is so weak as to be clearly wrong and manifestly unjust, or in a case where the defendant has offered contrary evidence, he may argue that the finding of guilt is against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11. Although we are authorized to set aside the fact finder=s determination under either of these two circumstances, our review must employ appropriate deference and should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any evidence presented at trial. See Johnson, 23 S.W.3d at 7. We are not free to reweigh the evidence and set aside a verdict merely because we feel that a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Clewis, 922 S.W.2d at 135.

While there was certainly conflicting testimony as to who drove the truck to Appellant=s home and no testimony concerning the identify of the Afriend@ on whose behalf Acosta rented the truck, Appellant owned the residence where the truck was parked, the keys to the truck were found inside his house on the kitchen counter, similar--albeit not identical--packaging materials were found in the garage, and large amounts of cash were found in the house. Appellant offered explanations for the presence of the truck, the boxes and packaging material, and the cash, all of which related to his operation of an interstate moving company. The dog did not alert to any of the boxes or packing materials in the garage. Although fingerprints were not lifted from the truck or the boxes, Appellant had ready access to the truck and was observed by officers making repeated trips between the house and the cargo end of the vehicle. Despite Appellant=s claim that he was working on a lawnmower in the garage and the officers just could not see him, Officer Gomez testified that she had a clear shot of the garage door from her surveillance location and Appellant never went inside. Furthermore, the jury may make all reasonable inferences from the evidence presented. The operation of the moving company is not inconsistent with, and could in fact facilitate, the trafficking of marijuana. We conclude that the evidence is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis, 922 S.W.2d at 129. Accordingly, we overrule Appellant=s sole point of error and affirm the judgment of conviction.

January 23, 2003

ANN CRAWFORD McCLURE, Justice

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)

[1] The stash house unit is responsible for investigating information relating to houses or warehouses where large amounts of narcotics are kept. The unit is federally funded and focuses on high intensity drug trafficking areas.

[2] The officers did not find a lawnmower or any other tools near the garage when conducting their search. Appellant had no sign of grease on himself or his clothes.