ARMANDO RAMIREZ v. THE STATE OF TEXAS--Appeal from 25th District Court of Gonzales County

NUMBER 13-03-309-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ARMANDO RAMIREZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On Appeal from the 25th District Court

of Gonzales County, Texas.

MEMORANDUM OPINION[1]

Before Justices Hinojosa, Ya ez and Castillo

Memorandum Opinion by Justice Castillo

A jury convicted appellant Armando Ramirez of money laundering[2] and assessed punishment at twelve years in the Texas Department of Criminal JusticeBInstitutional Division. By one issue, Ramirez asserts the evidence was legally insufficient to sustain the essential element of "criminal activity" in a money-laundering offense.[3] We affirm.

Scope and Standard of Review

A legal sufficiency challenge calls on us to review the relevant evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003) (en banc); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc). We consider all the evidence that sustains the conviction, whether properly or improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) (citing Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994) (en banc)); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (en banc); Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993) (en banc). In this review, we do not reevaluate the weight and credibility of the evidence, but act only to ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993) (en banc). The legal sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case.[4] Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Swartz v. State, 61 S.W.3d 781, 786 (Tex. App.BCorpus Christi 2001, pet. ref'd). We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 7.

 Hypothetically Correct Jury ChargeBMoney Laundering

A hypothetically correct jury charge against which we measure legal sufficiency would ask the jury if appellant Armando Ramirez (1) on or about January 25, 2000 (2) knowingly possessed, concealed, and transported (3) the proceeds (U.S. currency) (4) of criminal activity, (5) and the value of the funds was $20,000 or more but less than $100,000. See Tex. Pen. Code Ann. ' 34.02(a) (Vernon 2003); Malik, 953 S.W.2d at 240.

Discussion

Ramirez argues that the evidence is insufficient to prove, circumstantially or otherwise, that the currency was "the fruit of a felony, or felonies" and that the State "merely postulates what could be an explanation." The State counters that the evidence is sufficient to prove the sole challenged element. The record shows as follows.

Ramirez testified that the driver, Roger Segura, "may have reached to the back seat and pulled out a bag" and threw it on Ramirez's lap. After denying he knew Segura had money in the vehicle and what the bag contained, Ramirez testified as follows:

Q: Before . . . you hopped out of the car and the bag fell apart, did you know that there was drug money in the car?

A: No, sir.

Q: Do youB

A. ActuallyBfrom what I was told, I thought it was drug money, you know. NoBnothing of drugsBwas mentioned, or no drugsBwe weren

The jury heard that the amount of money in the bag Ramirez admittedly possessed[5] as he exited the vehicle and fled from law enforcement was $19,000. The jury also heard that the currency seized was sufficient to purchase a "felony amount" of a controlled quantity of any of four controlled substances. A rational trier of fact could reasonably conclude that the State proved beyond a reasonable doubt the essential element of "criminal activity." Thus, we conclude that the evidence is legally sufficient to prove the sole challenged element of the offense.[6]

Similarly, we conclude that the evidence is legally sufficient on the State's theory of a money-laundering scheme in place, based on circumstantial evidence.[7] The State's expert witness, captain David Boatright, testified about the common identifiable techniques in the transportation of bulk currency derived from the sale or purchase of controlled substances. The techniques used in the "scheme" include (1) the use of a rental vehicle, (2) Houston as the destination, (3) a wire transfer of currency to pay some type of transportation expense, (4) the use of aliases to disguise ownership of the currency, (5) bundles of currency, sometimes wrapped in cellophane, and (6) "illicit currency." Sources that are used to identify whether currency is "illicit" include (1) the U.S. Treasury database which documents cash transactions over $10,000 in financial institutions, (2) Texas Workforce Commission wage records which document earned income, and (3) a claim of ownership of the seized funds. The State's evidence, as set forth below, proved each of the techniques.

Corporal Patrick Davis testified that he was on criminal interdiction patrol on the date and time of Ramirez's arrest, and pulled the vehicle over for speeding. Ramirez exited the vehicle in possession of a bag containing $19,000 and fled from law enforcement. Ramirez discarded his shirt, admittedly to change his appearance and thereby thwart identification and apprehension. Meanwhile, Segura temporarily engaged Davis in a vehicle pursuit, ultimately stopped, and was apprehended. Segura gave Davis an alias for Ramirez. In the search of the vehicle, incident to the arrest, Davis discovered $10,000 in currency wrapped in blue cellophane. In plain view, he observed marihuana seeds and residue on the passenger seat. Currency seized from the persons of Ramirez and Segura at booking approximated $500, with Ramirez possessing the larger sum of the two.[8]

Police officer Garland Gaston, a canine handler, testified that at the scene, the police canine alerted to narcotics on the front passenger side of the vehicle and the front seat itself. After the currency was collected and concealed at law enforcement quarters as part of the continuing investigation, the canine alerted to narcotics on the currency. Gaston testified that the odor of narcotics remains on currency for approximately twenty-four hours.[9] Based on the canine's reaction, the currency had been in recent close proximity to a controlled substance. Gaston further testified that the canine would not alert on the currency absent an odor from a controlled substance.

The jury also heard that a third party rented three vehicles, each showing over one thousand miles traveled. On the rental contract for the vehicle Segura drove, the third party listed a wrong address. The U.S. Treasury database revealed no legitimate cash transactions involving Ramirez and Segura. Neither Ramirez[10] nor Segura was gainfully employed. Neither claimed an ownership interest in the currency. Both disclaimed any interest in the currency seized for purposes of forfeiture proceedings. Finally, the jury could infer Ramirez's guilt from evidence of flight. See Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994) (en banc) (holding that evidence of flight is admissible as a circumstance from which a jury may draw an inference of guilt); see also Cawley v. State, 310 S.W.2d 340, 342 (Tex. Crim. App. 1957) (stating flight "amounts in effect to a quasi admission of guilt of the offense charged"); Martin v. State, 151 S.W.3d 236, 245 n.8 (Tex. App.BTexarkana 2004, pet. ref'd) (noting no distinction has been made between flight from a crime scene and flight from police).

Ramirez denied culpability. He testified Segura approached him the night before their arrest, while Ramirez played basketball. Segura invited him to Houston to buy a truck. Because Ramirez had never traveled to Houston before, he agreed to go with his friend. When Davis signaled the stop, Ramirez fled to avoid arrest on a probation violation warrant. Ramirez denied contrary evidence from law enforcement.[11]

According to Ramirez's theory at trial, the State's evidence merely demonstrated that he was riding as a passenger in a vehicle that contained currency, and he had no knowledge of or interest in the currency. Essentially, the defense theorized that Segura deceived Ramirez into traveling with him to Houston, through a known interdiction area, and then used Ramirez as a decoy at the traffic stop so that Segura could flee the scene. Thus, Ramirez argues, the evidence is legally insufficient to prove money laundering, and, in particular, the essential element of "criminal activity."

In a sufficiency review, we are governed by the fact that the jury is the exclusive judge of the facts proved, the credibility of the witnesses, and the weight to be given to the testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). The jury may believe or disbelieve all or any part of a witness's testimony, even though the witness's testimony has been contradicted. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Reconciliation of conflicts in the evidence is within the exclusive province of the jury. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). By its verdict, the jury rejected Ramirez's claim of innocence. Viewed in the light most favorable to the verdict, the circumstantial evidence adduced by the State has sufficient probative force to constitute a basis for the rational inference that the currency was derived from "criminal activity."

Considering all the evidence that sustains the conviction in the light most favorable to the verdict, measured by the hypothetically correct jury charge for the offense of money laundering, we conclude that a rational trier of fact could have found beyond a reasonable doubt the essential element of "criminal activity." Jackson, 443 U.S. at 319. Accordingly, we overrule the sole issue presented and affirm the trial court judgment.

ERRLINDA CASTILLO

Justice

Dissenting Memorandum Opinion by Justice Linda Reyna Ya ez

Do not publish.

Tex. R. App. P. 47.2(b)

Memorandum Opinion delivered and filed

this 28th day of July, 2005.

[1] See Tex. R. App. P. 47.2, 47.4.

[2]See Tex. Pen. Code Ann. _ 34.02(a)(1) (Vernon 2003).

[3] Section 34.02 states that a person commits an offense if the person knowingly acquires or maintains an interest in, receives, conceals, possesses, transfers, or transports the proceeds of criminal activity. Tex. Pen. Code Ann. _ 34.02(a)(1) (Vernon 2003). "Criminal activity" means any offense, including any preparatory offense that is classified as a felony under the laws of this state or the United States. Id. _ 34.01(1) (Vernon 2003).

[4] This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime rather than a mere error in the jury charge submitted. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

[5] "Possession" means actual care, custody, control, or management. Tex. Health & Safety Code Ann. '481.002(38) (Vernon Supp. 2004-05).

[6] The circumstantial evidence adduced by the State demonstrates the essential element of proceeds of "criminal activity." Circumstantial evidence is an effective and accepted means to prove certain money is the proceeds of criminal activity. See State v. $11,014.00, 820 S.W.2d 783, 784 (Tex. 1991).

[7] Circumstantial evidence is "direct proof of a secondary fact which, by logical inference, demonstrates the ultimate fact to be proven." Taylor v. State, 684 S.W.2d 682, 684 (Tex. Crim. App. 1984) (en banc). Every fact and piece of evidence need not, however, point independently to the defendant's guilt. See Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). A conviction may rest on the cumulative strength of all incriminating circumstances. Id.

[8] Segura had $111.00. Ramirez had $311.76. The sole expense proven was for breakfast.

[9] The jury also heard that the odor of narcotics on currency occurs because a person will handle narcotics, not clean the hands, and then handle the currency. The odor of the narcotics is on the person's hands and is left on the currency after handling.

[10] Ramirez testified he occasionally worked with his father.

[11] The jury heard evidence that (1) Corporal Davis intercepted a cellular phone call in which the caller stated he was buying a truck from Segura, (2) Segura stated they were going to Houston to see a girlfriend, and (3) Ramirez told the transport officer he hid $2,000 after he fled.