Luis Jaquez v. The State of Texas--Appeal from 203rd District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-95-171-CR

LUIS JAQUEZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 203rd District Court

Dallas County, Texas

Trial Court # F94-61853-P

O P I N I O N

Appellant Luis Jaquez was convicted, after a bench trial, of unlawful possession with intent to distribute a controlled substance, to-wit, cocaine. The trial court found Appellant guilty and assessed his punishment at ten years' confinement in the Texas Department of Criminal Justice, Institutional Division, probated for 10 years.

Appellant asserts one point of error as follows: The evidence is insufficient to support the conviction of Appellant as a party or principal for the offense of unlawful possession with intent to deliver cocaine.

We overrule Appellant's point of error and affirm the judgment of the trial court.

The following is a summary of evidence heard by the trial court: Phillip Musgrove, a patrol officer with the Dallas Police Department, testified that on December 1, 1994, at about 4:00 p.m. he was on duty with his partner, Officer DeLaRosa, in a marked patrol car. While on patrol, Musgrove noticed an apparent drug transaction at 1812 North Carroll Street. While slowing the patrol car at a stop sign, located about 100 feet from a convenience store, Musgrove saw a Hispanic male walk to the passenger window of a car and hand the passenger in the front some money. The passenger then handed the Hispanic male a plastic baggie containing a white powdery substance. The Hispanic male then walked away from the car and leaned against the wall of the convenience store next to a coke machine, about 5 feet from the car. Based upon his experience, Musgrove believed he had just witnessed a narcotics transaction. Musgrove then drove the squad car over to the car containing the suspected seller. The car containing the suspected seller backed out into the street in front of the police car. Officer DeLaRosa got out of the police car and went to the suspected seller's car while Musgrove drove the police car into the parking lot. At the same time Musgrove got out of the police car and walked up to the suspected buyer, who did not try to get away, but dropped something from his right hand onto the ground. The dropped item fell at the suspected buyer's feet; whereupon, Musgrove picked it up and found it to be a baggie containing a white, powdery substance which he believed to be cocaine. Musgrove later field-tested the white powdery substance, which tested positive for cocaine. After retrieving the cocaine, Musgrove arrested the suspected buyer and put him in the police car. Musgrove later learned the suspected buyer's name was Madrid.

Musgrove then went to assist his partner at the stopped car. Officer DeLaRosa had removed two men from the car and was performing a pat-down search on one of them. Musgrove then performed a pat-down search on the other man. No weapons were found during the pat-downs.

Musgrove asked the driver for identification and liability insurance. The driver did not have any; whereupon Musgrove arrested him for traffic violations. Musgrove later learned the driver's name was Juan Hernandez. Musgrove then arrested Appellant, the passenger in the car, and the suspected seller of the cocaine. Hernandez and Appellant were put into another squad car that meanwhile had arrived at the scene.

Officer DeLaRosa performed an inventory search of the car and recovered two semi-automatic pistols and a large quantity of drugs, both cocaine and "black-tar" heroin from under the rear seat of the car. Some of the cocaine consisted of large chunks contained in plastic baggies. Other cocaine was contained in capsules. The cocaine Musgrove recovered from the suspected buyer outside the car was of the same consistency and color as that recovered from the back seat of the car. The officers also seized currency from Hernandez and Appellant.

Musgrove also testified that the area where the arrest occurred was known as an area where narcotics were sold; that the car belonged to the suspect driving it (Hernandez); also that the drugs were recovered from the passenger's side of the back seat.

Officer DeLaRosa testified that he was on duty December 1, 1994, with his partner, Officer Musgrove; that he (DeLaRosa) saw what appeared to be a transaction between Appellant and another man; that he did not see an actual transfer of money, but the event appeared to him to be a drug transaction; that Musgrove noticed the activity first and pointed it out to DeLaRosa.

DeLaRosa further testified that Musgrove drove the police car toward the car containing the suspected seller. The car tried to evade the police by backing into the street. The officers activated the police lights and DeLaRosa got out of the police car and went to the driver's side of the car. DeLaRosa ordered the two occupants from the car and handcuffed them both. He performed a pat-down search of the men but found no weapons. DeLaRosa asked the two men for identification. The driver produced an I.D. card, but the passenger had no identification. DeLaRosa identified Appellant as the passenger he arrested.

After the arrest of Appellant and Hernandez, Officer DeLaRosa searched the interior of the car and found two .380 caliber semi-automatic pistols, a large quantity of drugs, and money from the two men. Appellant had $60 and Hernandez had over $200. Appellant also had some .380 caliber ammunition on his person.

The State introduced by stipulation a report of a chemist who analyzed the drugs seized during the arrest, which confirmed that the seized drugs consisted of cocaine and heroin.

The Appellant presented the following evidence: Libraba Ortiz, who said she was Appellant's cousin, said Appellant was living in her house at the time of his arrest; on December 1, 1994, Appellant went to a nearby convenience store to buy his uncle some juice; Appellant had some money; and Appellant took his uncle's car to make the trip to the store.

Appellant testified he had been living with Libraba Ortiz and her husband and his aunt for two weeks leading up to his arrest; he had recently come to this country from Mexico; on December 1, 1994, he went to the store to buy some juice for his uncle, and drove his uncle's car; he had $60 when he went to the store; at the store he saw Juan (Appellant did not know Juan's last name); Appellant had talked to Juan the day before about a job; Appellant was going to cut Juan's yard; while Appellant was in Juan's car a man walked up and asked them for money so he could buy beer; Juan and Appellant told the man they had no money; the police arrived seconds later, arrested Appellant and handcuffed him; the police did not tell Appellant why he was arrested; Appellant was in Juan's car about ten minutes before the police arrived; Appellant gave nothing to the man who asked for beer money; the man gave nothing to Appellant; Appellant gave no drugs to the man; Appellant did not know there were drugs and weapons in the car; Appellant was paid $60 for a painting job three days before his arrest; Appellant only had sporadic jobs in the three weeks prior to the arrest; Appellant gave no explanation for pistol bullets in his pocket.

Appellant's sole point of error asserts the evidence is insufficient to support his conviction as a party or principal for unlawful possession with intent to deliver cocaine.

In reviewing the sufficiency of the evidence to support a conviction, an appellate court must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991); Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); Butler v. State, 769 S.W.2d 234 (Tex. Crim. App. 1989). Having reviewed the evidence in the light most favorable to the verdict, we hold the evidence is sufficient to allow a rational trier of fact to find the essential elements of the offense beyond a reasonable doubt as charged in the indictment.

Appellant argues that there are no affirmative links establishing that he possessed the seized drugs. We disagree.

Analytical construct, under which an appellate court reviews sufficiency of evidence in cases of circumstantial evidence to determine whether circumstantial evidence excludes every other reasonable hypothesis other than guilt of the defendant, was rejected for further use as a method of appellate review for evidentiary sufficiency in Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991).

Haynes v. State, 475 S.W.2d 739, 742 (Tex. Crim. App. 1971) introduced the shorthand expression "affirmative link" to identify what must be proven in a prosecution for possession of illegal drugs. Under our law, an accused must not only have exercised care, control, or custody of the illegal substance, but must also have been conscious of his connection with it and must have known what it was. Therefore, evidence which affirmatively links him to it suffices for proof that he possessed it knowingly. It does not matter whether this evidence is direct or circumstantial. Brown v. State, 911 S.W.2d 744 (Tex. Crim. App. 1995).

Brown held that each defendant must still be affirmatively linked with the drugs he allegedly possessed, but this link need no longer be so strong that it excludes every other reasonable hypothesis except the defendant's guilt.

In essence, Brown's holding is that the sufficiency of the evidence is determined by the Jackson v. Virginia standard. In other words, Brown holds that each defendant must be affirmatively linked with the drugs he allegedly possessed, but this link need no longer be so strong that it excludes every other outstanding reasonable hypothesis except the defendant's guilt. That is to say, the affirmative link's analysis is a convenient and logically sound method of applying the Jackson standard 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 possession of illicit drugs beyond a reasonable doubt. See Collins v. State, 901 S.W.2d 503, 506 (Tex. App. Waco 1994, writ ref'd); also Dixon v. State, 918 S.W.2d 678 (Tex. App. Beaumont 1996).

Appellant sold cocaine to Madrid that was identical in color, consistency, and packaging as that seized from the car. The cocaine was found under the back seat immediately behind Appellant. The Appellant had .380 caliber ammunition on his person when arrested. Two .380 caliber semi-automatic pistols were recovered, one with drugs recovered from the back seat immediately behind Appellant. The total cache was a large quantity of drugs consisting of over three grams of "black tar" heroin and over one hundred grams of cocaine. The evidence is sufficient to affirmatively link Appellant to the cocaine seized and to show Appellant exercised care, control, management of the cocaine and that he knew it was unlawful, beyond a reasonable doubt. Brown v. State, supra.

Judgment of the trial court is affirmed.

JOHN A. JAMES, JR.

Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Justice James (Retired)

Affirmed

Opinion delivered and filed October 16, 1996

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