Reynaldo Antunez Osorio v. The State of Texas--Appeal from 230th District Court of Harris County

Opinion issued October 19, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01 05-01058 CR

REYNALDO ANTUNEZ OSORIO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 1031438

MEMORANDUM OPINION

A jury found appellant, Reynaldo Antunez Osorio, guilty of possession with intent to deliver a controlled substance // and assessed punishment at 23 years confinement and a $1 fine. In two points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction.

We affirm.

Background

The following is a summary of the evidence presented by the State at trial through the testimony of police officers G. Siens and A. Ordaz, members of the Houston Police Department s drug interdiction squad.

On the evening of June 21, 2005, Officers Siens and Ordaz were working undercover at a Houston bus terminal. It was a location that the officers frequently worked to catch illegal drug couriers. At 8:00 p.m., Officer Siens noticed appellant arrive at the terminal as a passenger in a car. Officer Siens saw appellant get out of the car, take two duffel bags from the backseat, and walk away from the car without saying anything to the woman who was driving. One of appellant s bags had the Nike logo on its side and the other was a Skyline-brand bag. Both bags appeared to be new and did not have name identification tags. While purchasing his bus ticket, appellant glanced over his shoulder to see if anyone was watching. Officer Siens found this behavior odd. Appellant purchased a ticket to Indianapolis with cash and then sat down in the small overflow seating area rather than in the large main seating area. Officer Siens thought that this was unusual because people rarely sat in that section.

Officer Siens approached appellant and, speaking in English, identified himself as a police officer. Officer Siens asked appellant if he could speak with him. Appellant responded, Yes. Officer Siens asked to see appellant s bus ticket, and appellant handed it to the officer. Officer Siens saw that the name on the ticket was Reynaldo Antunez. Officer Siens then asked appellant for identification and appellant gave him a Mexican identification card bearing the name Reynaldo Antunez Osorio. Officer Siens also noted that appellant s bus to Indianapolis was scheduled to leave at 8:30 p.m.

Officer Siens noticed that appellant s hand was shaking when he gave the ticket back to appellant. Officer Siens also noticed that appellant was becoming more nervous and that his English was becoming more broken. At that point, Officer Siens asked Officer Ordaz, who is certified by the Houston Police Department as a Spanish interpreter, to speak with appellant.

Appellant told Officer Ordaz that the two duffel bags belonged to him. When Officer Ordaz asked appellant if he had packed both bags, appellant responded that he had packed the Nike bag. When the officer asked who had packed the Skyline bag, appellant just looked at it and did not answer. Officer Ordaz asked if anyone had asked appellant to carry any items to Indiana. Appellant denied that anyone had. Officer Ordaz then asked appellant if he knew what was in both bags. Appellant replied that he did not know what was in the Skyline bag, leading Officer Ordaz to believe that it contained contraband.

When asked, appellant denied being in possession of any large amounts of narcotics or money. Officer Ordaz asked appellant if they could search his bags. Appellant agreed and knelt down to open the Nike bag. Officer Ordaz stopped appellant, informing him that the officers would search the bags. Officer Siens opened the Skyline bag and pulled back a blanket revealing 10 bricks of cocaine. At that point, without the officers saying anything to him, appellant placed his hands behind his back in a position indicating that he expected to be handcuffed. Appellant did not ask what had been found and did not seem surprised to see the bricks of cocaine in the bag. Appellant did, however, appear to be upset because his eyes started to water.

The officers did not find anything in or on the bags with appellant s name on it. No other illegal drugs were found in appellant s possession.

A post-arrest search of appellant revealed a fake Texas identification card bearing appellant s picture and the name Javier Gutierres Torres. Appellant also had a bus ticket from Indianapolis to Houston dated one week earlier.

Officer Siens had estimated that the Skyline bag contained approximately five kilograms of cocaine, with a street value of $500,000. A police crime lab chemist testified that the 10 bricks found in appellant s bag all tested positive for cocaine and had a combined weight of 4.8 kilograms. Legal and Factual Sufficiency

In two points of error, appellant contends that the evidence is legally and factually insufficient to sustain the jury s verdict that he was guilty of possession of a controlled substance with the intent to deliver.

A. Standards of Review

A legal-sufficiency challenge requires us to determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Howley v. State, 943 S.W.2d 152, 155 (Tex. App. Houston [1st Dist.] 1997, no pet.). Although our analysis considers all of the evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).

In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Vodochodsky v. State, 158 S.W.3d 502, 510 (Tex. Crim. App. 2005) (quoting Johnson, 23 S.W.3d at 11). We consider all of the evidence weighed by the jury, comparing the evidence that tends to prove the existence of the elemental fact in dispute with the evidence that tends to disprove it, but avoiding substitution of our judgment for that of the fact finder. Id. In conducting a factual-sufficiency review, we must discuss the evidence that, according to the appellant, most undermines the jury s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

B. Legal Sufficiency Analysis

To prove possession with intent to deliver, the State must prove that the defendant (1) exercised care, custody, control or management over the controlled substance; (2) intended to deliver the controlled substance to another; and (3) knew that the substance in his possession was a controlled substance. Tex. Health & Safety Code Ann. 481.002(38) (Vernon Supp. 2005), 481.112(a) (Vernon 2003); Parker v. State, 192 S.W.3d 801, 805 (Tex. App. Houston [1st Dist.] 2006, pet. ref d). Regarding the third element, appellant contends that the evidence was legally insufficient to show that he knew that the Skyline bag contained cocaine. In determining whether he knew that he possessed cocaine, the jury was allowed to infer appellant s knowledge from his acts, conduct, and remarks, and from the surrounding circumstances. See Ortiz v. State, 930 S.W.2d 849, 852 (Tex. App. Tyler 1996, no pet.); Menchaca v. State, 901 S.W.2d 640, 652 (Tex. App. El Paso 1995, pet. ref d);see also Gutierrez v. State, 628 S.W.2d 57, 60 (Tex. Crim. App. 1980), overruled on other grounds by Chambers v. State, 711 S.W.2d 240, 247 (Tex. Crim. App. 1986) (concluding that jury could reasonably infer from independent facts and circumstances that accused knew of drug s existence).

At trial, Officer Siens told the jury that he noticed appellant get out of a car at the bus terminal, grab his bags, and walk away without saying anything to the driver. Officer Siens, a 13-year veteran of the police department s narcotics division and a six-year veteran of the drug interdiction squad, explained that a drug courier often does not speak to the person giving him a ride because the courier often may not know the driver. Officer Siens also noticed that appellant s bags did not have identification tags and were new. Officer Siens explained that a drug courier often does not put identification tags on his bags to prevent a bag containing contraband from being linked to him. Officer Siens also told the jury that a drug courier often uses new bags.

Officer Siens stated that a drug courier will often glance around as he purchases his ticket to see who may be watching and will usually pay for the ticket in cash so that there will be no paper trail of the purchase. Officer Siens also testified that Indianapolis is currently a popular illegal drug destination. Here, Officer Siens noted that appellant was glancing over his shoulder as he purchased his ticket. Officer Siens also noticed that appellant purchased a ticket to Indianapolis and that he paid for the ticket with cash.

Officer Siens also explained that a drug courier will often arrive at the terminal shortly before his departure time to limit the time in which he may be detected. Here, the evidence showed appellant arrived at the bus station at 8:00 p.m. and that his bus to Indianapolis was scheduled to leave at 8:30 p.m.

The evidence also showed that appellant became nervous when speaking with Officer Siens, another characteristic of a drug courier. Officer Siens testified that the name on the bus ticket did not match the name on appellant s Mexican identification card. Officer Ordaz testified that a fake Texas identification card was also found on appellant bearing yet a third name. According to Officer Siens, drug couriers often use aliases. A one-way ticket from Indianapolis to Houston, purchased the previous week, was also found on appellant. Officer Siens testified that drug couriers often travel on one-way tickets. In addition, Officer Ordaz testified that, when appellant denied knowing what was in the Skyline bag, the officer became suspicious that contraband was in the bag. Officer Ordaz stated that a drug courier often tries to distance himself from a bag containing contraband.

When the officers discovered the cocaine in his bag, appellant immediately turned around and placed his hands behind his back as though preparing to be handcuffed, though neither officer had said anything to indicate that drugs had been discovered or that appellant would be arrested. Furthermore, the officers testified that appellant did not appear at all surprised by the their discovery.

Taken together, appellant s appearance, demeanor, conduct, and remarks indicated that he knew that the Skyline bag contained cocaine. See Alexander v. State, 740 S.W.2d 749, 758 59 (Tex. Crim. App. 1987) (concluding that sufficiency of evidence is determined from cumulative effect of all evidence; each fact in isolation need not establish the guilt of accused). Morever, the fact that appellant was found carrying 10 bricks of cocaine weighing 4.8 kilograms in a duffel bag is also probative of his knowledge. See Menchaca, 901 S.W.2d at 652 (concluding that knowledge of presence of contraband may be inferred from control over vehicle in which contraband is concealed, particularly if amount of contraband is large). After viewing the evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt that appellant knew that the Skyline bag contained cocaine. Accordingly, we hold that the evidence was legally sufficient to support appellant s conviction.

We overrule appellant s first point of error.

C. Factual Sufficiency Analysis

Appellant also contends that the evidence was factually insufficient to show that he knew that the Skyline bag contained cocaine. Appellant contends that the evidence supports only a suspicion of guilt.

Besides the police officers testimony, the record also shows that appellant testified in his own defense. Appellant testified that he moved to Houston from Indiana after his cousin offered him a job with better pay. Appellant explained that, after only one week in Houston, he discovered that work was available only three days a week and that the pay was low. For these reasons, he decided to return to Indiana. Appellant told the jury that the night before he was to depart a friend called asking appellant to take a bag with him to Indiana. Appellant testified that he did not ask any questions about what was in the bag and stated that he was not concerned that the bag might contain an illegal substance. Appellant testified that he had always been a very trusting person. Despite appellant s explanation of the events, the jury, as fact finder, was free to disbelieve appellant s testimony. See Cain v. State, 958 S.W.2d 404, 408 09 (Tex. Crim. App. 1997).

Moreover, the evidence that legally supports the finding that appellant knew the Skyline bag contained cocaine is not so weak that our confidence in the jury s verdict is undermined. As discussed, the evidence showed that appellant (1)possessed a duffel bag containing 10 bricks of cocaine, (2) exhibited numerous characteristics of a drug courier, (3) automatically placed his hands behind his back when the officers found the cocaine, and (4) did not act surprised to see the cocaine. Such circumstances and conduct indicate that appellant knew that the bag contained cocaine. Such evidence supports more than a suspicion of guilt.

Viewing all of the evidence in a neutral light, we conclude that the proof of appellant s guilt is [not] so obviously weak as to undermine confidence in the jury s determination, nor is it greatly outweighed by contrary proof. Johnson, 23 S.W.3d at 11; see Vodochodsky, 158 S.W.3d at 510. We hold that the evidence is factually sufficient to support appellant s conviction.

We overrule appellant s second point of error.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Nuchia, Jennings, and Higley.

Do not publish. See Tex. R. App. P. 47.2(b).