Candelario Garcia, Jr. v. The State of Texas--Appeal from 216th Judicial District Court of Kendall County

MEMORANDUM OPINION
No. 04-03-00298-CR
Candelario GARCIA, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 216th Judicial District Court, Kendall County, Texas
Trial Court No. 3971
Honorable Stephen B. Ables, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: June 16, 2004

AFFIRMED

A jury found Candelario Garcia, Jr. ("Garcia") guilty of possession of heroin. In his sole issue on appeal, Garcia challenges the factual sufficiency of the evidence to support his conviction. We affirm the trial court's judgment.

Background

Rhonda Lackey provided Officer Robert Matthews with information regarding drug trafficking. Based on that information, Officer Matthews and his supervisors decided to set up surveillance on Interstate 10 with the assistance of the Kendall County Sheriff's Office. Law enforcement officers were given a description of the truck that was to be kept under surveillance. The truck was to be stopped if a traffic violation was observed. During the surveillance, the officers observed that the driver, Garcia, was not wearing a seatbelt. The truck was stopped for the traffic violation, and Garcia and the three passengers, Clifford Carter, Candy Coffey, and Lackey, were subsequently arrested for possession of heroin.

Standard of Review

In reviewing the factual sufficiency of the evidence, we look at all the evidence to determine whether it is so weak as to make the verdict clearly wrong and manifestly unjust or whether the adverse finding is against the great weight and preponderance of the evidence. Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003). Appellate courts "are not free to reweigh the evidence and set aside a jury verdict merely because the judges feel that a different result is more reasonable." Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). "What weight to give contradictory testimonial evidence is within the sole province of the jury, because it turns on an evaluation of credibility and demeanor." Id. at 408-09.

Discussion

Garcia was convicted of possessing less than one gram of heroin. In his briefing, Garcia relies heavily on contradictory testimony regarding whether he passed seven heroin-filled balloons that were retrieved from the toilet of the holding cell where Garcia was taken after he was administered a laxative. Garcia's argument, however, glosses over testimony linking him to another balloon containing heroin.

Officer Roger Tamez, who initiated the stop, testified that he instructed Garcia to exit and move to the back of the truck. Noticing a bulge in Garcia's pocket, Officer Tamez conducted a pat-down frisk of Garcia and seized a syringe. After obtaining consent to search the truck, Officer Tamez left Garcia at the back of the truck and proceeded to the driver's side door. Officer Tamez recovered four balloons from the driver's seat where Garcia had been sitting. Officer Tamez then returned to Garcia to place him in custody. Officer Tamez saw Garcia drop something when Garcia was handcuffed. Another officer instructed Officer Tamez to look under the truck because the other officer saw what had been dropped under the truck. Officer Tamez recovered a balloon from directly beneath the truck bed. Officer Joel Budge testified that the balloon contained .08 grams of heroin. This evidence alone is factually sufficient to support Garcia's conviction.

Even if we were required to consider the evidence of the other seven heroin-filled balloons, we would not find the evidence to be factually insufficient. Office Matthews testified that Garcia was given a laxative in accordance with a search warrant. The search warrant was obtained based on the belief that Garcia had swallowed balloons containing heroin. After keeping watch over Garcia for some time, Garcia was moved from the med room at the jail to a holding cell by an assistant jailer. Garcia believed the jailer's name was Johnson. Officer Matthews returned to the med room to retrieve some paperwork and instructed the jailer to supervise Garcia. Officer Matthews was summoned by the jailer to quickly return because Garcia had a bowel movement. Officer Matthews observed Garcia getting off the toilet and fixing his pants. Officer Matthews retrieved seven heroin-filled balloons from the toilet. Officer Matthews also testified that as he was returning Garcia to the med room for further observation, Garcia stated that Officer Matthews already "got what [he] wanted," so "why didn't [he] just leave [Garcia] alone."

Corporal Johnson's testimony is consistent with Officer Matthews' except Corporal Johnson testified that he was not the jailer who moved Garcia into the holding cell. Corporal Johnson returned to the holding cell in which Garcia had been placed when he was unable to see Garcia on the camera monitor for the holding cell area. Corporal Johnson testified that he summoned Officer Matthews, entered the cell, and told Garcia not to flush the toilet.

Garcia relies on certain contradictions in the testimony and the absence of certain records. The evidence relied upon by Garcia includes: (1) contradictory testimony regarding the date Officer Matthews obtained a photograph of the truck that was placed under surveillance; (2) whether Carter told Officer Matthews that Lackey, not Garcia, was requesting others to assist in swallowing the balloons; (3) whether Garcia appeared ill at the scene; (4) evidence that Garcia was chewing tobacco at the time he was stopped from which the jury could infer that he could not have swallowed balloons; (5) the testimony of Carter and Coffey who stated that they did not see Garcia in possession of heroin; (6) the absence of any record in the daily jail log regarding the incident involving Garcia's passing of the balloons; (7) the absence of any written report of the incident; (8) the failure to retrieve and retain the tape from the video camera recording the activity in the holding cell; (9) the testimony of several officers that they were unaware of the incident involving Garcia even though it was out the ordinary and would have been extensively discussed; (10) Corporal Dooling's testimony that she placed Garcia in the holding cell but did not recall being instructed to keep Garcia under constant surveillance or to ensure that Garcia did not flush the toilet after using it; (11) Corporal Dooling's testimony that Corporal Johnson never told her that Garcia had passed the balloons; (12) Corporal Dooling's testimony that Corporal Johnson told her that the balloons had not been passed; and (13) evidence that Lackey had been in the holding cell prior to Garcia. Explanations for several of these contradictions also were introduced, including: (1) Carter's written statement that the drugs belonged to Garcia and Lackey; (2) admissions by the law enforcement officers that the daily jail logs were only as accurate and complete as the officers made them, that the logs were not carried with the officers, and that the officers sometimes would get distracted with other events; (3) Johnson's explanation that he did not make a written report because he believed Garcia was under Officer Matthews' control; and (4) evidence that Corporal Dooling had left the jail for a period of time to purchase additional laxative.

The weight the contradictory testimony was given is within the sole province of the jury. Id. at 408-09. The jury rested its verdict either on Officer Tamez's testimony that Garcia dropped the balloon recovered from under the bed of the truck or the testimony of Officer Matthews and Corporal Johnson regarding Garcia's passing of the seven heroin-filled balloons. In either event, the evidence is factually sufficient to support the jury's verdict.

Conclusion

The judgment of the trial court is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH