JOSE ANGEL TREVINO v. THE STATE OF TEXAS--Appeal from 24th District Court of Jackson County

NUMBER 13-04-194-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JOSE ANGEL TREVINO, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court

of Jackson County, Texas.

  MEMORANDUM OPINION[1]

Before Justices Ya ez, Castillo, and Garza

Memorandum Opinion by Justice Castillo

The trial court convicted appellant Jose Angel Trevino of possession of more than five but less than fifty pounds of marihuana. The court assessed punishment at a term of ten years in the Texas Department of Criminal JusticeBInstitutional Division and assessed a $5,000 fine. By seven issues, Trevino challenges the sufficiency and admissibility of the evidence. We affirm.

I. Background

State Trooper Don Plunkett testified that, on October 15, 1996, accompanied by another trooper, he was on drug interdiction patrol in a marked unit. He observed an unrestrained child standing on the back seat of an older model Ford station wagon traveling on U.S. 59. The vehicle had an expired registration sticker from February 1996. Trooper Plunkett activated the overhead lights on his unit and stopped the vehicle. Trevino, nervous and apprehensive, emerged from the vehicle. Trevino grew increasingly nervous in the trooper's presence. In his professional opinion, trooper Plunkett concluded that Trevino was extremely nervous in his appearance and manner, consistent with individuals Plunkett stopped in the past for hauling large amounts of narcotics. Trevino told trooper Plunkett that he had purchased the vehicle two days ago and he was traveling to Houston to search for work. Trevino's wife was a passenger in the front seat. Trooper Plunkett testified that her communications were consistent with Trevino's statements to him. Trooper Plunkett observed a small amount of clothing in the vehicle but no personal belongings or household items to indicate an extended stay. Both Trevino and his wife consented to the search of the vehicle.

Trooper Plunkett detected a strong odor of a deodorizer in the driver's side area of the vehicle. He also detected a strong odor of fresh paint and Bondo emanating from the rear seat area. Plunkett testified that, based on his training and experience, deodorizers are used to mask the smell of drugs in transport. He further testified that fresh paint and Bondo, considered "trademarks," are consistent with creating false compartments in vehicles for purposes of transporting drugs. Because the odor was very strong in the back seat, Trooper Plunkett concentrated his search in that area. On the left rear passenger side door, he observed new rivets and scratch marks on the middle section of the rear seat area, which, based on his experience and training, indicated someone tampered with it. Trooper Plunkett searched underneath the station wagon and tapped on the gas tank. Tapping produced a solid, dull sound. He smelled a strong odor of paint and Bondo emitting from the top portion of the gas tank. On further inspection, he detected a strong odor of marihuana emanating from the gas tank. Based on his training and experience, these were indicators that contraband was inside the gas tank. Subsequently, he arrested Trevino for possession of a controlled substance.

Plunkett testified that further search of the vehicle once impounded and inventoried showed that Bondo and paint were used on a false compartment within the gas tank. The search of the compartment in the gas tank netted approximately fifty bundles of fresh marihuana. Alteration of the gas tank occurred from the interior of the vehicle in the back seat area. Consistent with his experience, trooper Plunkett testified that the technique is used by drug traffickers because law enforcement at border patrol checkpoints generally view the underside of the vehicle to check alteration of gas tank bolts. Modifying the gas tank from inside the vehicle will not show alteration of the gas tank from beneath the vehicle. According to trooper Plunkett, the method is used to stay a "step ahead" of law enforcement detection of concealed compartments.

Bob Snipes testified that he was in the business of selling and financing old cars in Waco. He purchased a 1984 Ford Crown Victoria station wagon on March 8, 1996 from the vehicle owner, Carolyn Matteson. On September 2, 1996, he sold the vehicle to a Jose Luis Gonzales. During the approximate seven months the vehicle was at his business, no work was performed on the vehicle involving Bondo or fresh paint. No one in his business made a false compartment to fit into the gas tank.

Dennis Quarles testified he worked in automotive repair and, in that capacity, worked with the Texas Department of Public Safety in removing drugs from vehicle compartments and, in particular, from Trevino's vehicle. He testified that the gas tank, as modified, could hold between five and seven gallons of gas and the driver would have to fill the gas tank approximately every one hundred miles.

The trial court pronounced Trevino guilty and assessed punishment. This appeal ensued.

II. Sufficiency of the Evidence

By his first and second issues, Trevino argues that the evidence is legally and factually insufficient to sustain the conviction for possession of marihuana because the evidence does not affirmatively link him to the marijuana. The State counters that the evidence was sufficient.

A. Legal Sufficiency 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). The legal sufficiency of the evidence is measured against the statutory elements of the offense as modified by the charging instrument. Curry v. State, 30 S.W.3d 394, 404 (Tex. 2000). 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.

B. Factual Sufficiency Standard of Review

A factual sufficiency review begins with the presumption that the evidence supporting the verdict is legally sufficient, that is, sufficient under Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996) (en banc). In a factual sufficiency review, the appellate court views all the evidence in a neutral light and determines whether evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond a reasonable doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004) (en banc). In conducting a factual sufficiency review, we review all the evidence. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We must consider the most important evidence that the appellant claims undermines the verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). However, we approach a factual sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder.[2] Johnson v. State, 23 S.W.3d 1, 6 7 (Tex. Crim. App. 2000) (en banc). Every fact need not point directly and independently to the accused's guilt. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981). A conclusion of guilt can rest on the combined and cumulative force of all the incriminating circumstances. Id.

Our neutral review of all the evidence, both for and against the challenged elements, looks to determine whether proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or whether proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Zuniga v. State, 144 S.W.3d 477, 484 85 (Tex. Crim. App. 2004); see also Zuliani v. State, 97 S.W.3d 589, 593 94 (Tex. Crim. App. 2003). We must assume that the fact finder resolved conflicts, including conflicting inferences, in favor of the verdict, and must defer to that resolution. Matchett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App. 1996) (en banc).

C. Elements of the Offense of Possession of Marihuana

The indictment charged Trevino with possession of five pounds or more but less than fifty pounds of marihuana. The elements of the offense require proof that (1) Trevino, (2) on or about October 15, 1996, (3) intentionally and knowingly, (4) possessed, (5) marihuana, (6) in an amount of five pounds or more but less than fifty pounds.[3] See Tex. Health & Safety Code Ann. 481.121(a)(4) (Vernon 2003). A person acts knowingly, or with knowledge, with respect to the nature of conduct or to circumstances surrounding conduct when the person is aware of the nature of the conduct or that the circumstances exist. Tex. Pen. Code Ann. ' 6.03(b) (Vernon 2003). Intent may also be inferred from circumstantial evidence such as acts, words, and the conduct of the appellant. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).

In possession of controlled substance cases, the two following evidentiary requirements must be satisfied: first, the State must prove the defendant exercised actual care, control and management over the contraband; and, second, that he had knowledge that the substance in his possession was contraband. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995) (en banc). The term "controlled substance" includes the "aggregate weight of any mixture, solution, or other substance containing a controlled substance." Tex. Health & Safety Code Ann. _ 481.002(5) (Vernon Supp. 2004-05).[4] Expert witness testimony regarding the nature of the controlled substances based upon visual observation is proper evidence. See Tex. R. Evid. 702; Martinez v. State, 22 S.W.3d 504, 508 (Tex. Crim. App. 2000) (en banc).

The mere presence of the accused at a place where contraband is located does not make him a party to joint possession, even if he knows of the contraband's existence. Oaks v. State, 642 S.W.2d 174, 177 (Tex. Crim. App. 1982). Whether the theory of prosecution is sole or joint possession, the evidence must affirmatively link the accused to the contraband in such a manner, and to such an extent that a reasonable inference may arise that the accused knew of the contraband's existence and that he exercised control over it. Travis v. State, 638 S.W.2d 502, 503 (Tex. Crim. App. 1982). When an accused is not in exclusive possession and control of the place where contraband is found, it cannot be concluded he had knowledge or control over the contraband unless there are additional independent facts and circumstances that affirmatively link him to the contraband. Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App.1995) (en banc). Similarly, 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. Menchaca v. State, 901 S.W.2d 640, 651 (Tex. App.BEl Paso 1995, pet. ref'd). The affirmative links doctrine is the appropriate means of applying the Jackson rationality standard of appellate review. Jackson, 443 U.S. at 319; Martinets v. State, 884 S.W.2d 185, 188 (Tex. App.BAustin 1994, no pet.). Various factors may be considered when determining whether the evidence is sufficient to affirmatively link the accused with the contraband. The number of the factors is not as important as the logical force the factors have in establishing the elements of the offense. Jones v. State, 963 S.W.2d

826, 830 (Tex. App.BTexarkana 1998, pet. ref'd); Hurtado v. State, 881 S.W.2d 738, 743 (Tex. App.BHouston [1st Dist.] 1994, pet. ref'd); Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.BHouston [1st Dist.] 1994, pet. ref'd).

 D.  Sufficiency Analysis

1. Legal Sufficiency

In reviewing the sufficiency of the evidence, we should look at "events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act." Guevara, 152 S.W.3d at 49. Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative effect of all the incriminating facts are sufficient to support the conviction. Id.

In this case, viewed in the light most favorable to the verdict, the evidence showed that Trevino was "extremely nervous," when stopped for routine traffic violations. He told the trooper that he was en route to Houston to look for work, however, in plain view, the trooper noticed a small amount of clothing in the vehicle for a trip to look for work. The trooper also observed in plain view the odor of a deodorizer, an altered middle section of the back seat, and a strong odor of fresh paint and Bondo. Trevino consented to the search of the vehicle, admitting that he bought it two days before that date. The trooper's search netted a false compartment above the gas tank, created by access through the interior of the vehicle. The search yielded approximately fifty bags of fresh marihuana. Testimony showed that the alteration of the gas tank occurred from inside the vehicle. Paint and Bondo, often used to mask transportation of contraband, apparently were used in the alteration of the gas tank. The strong odor caught the arresting trooper's attention and led to the discovery of the contraband. Testimony showed that the gas tank was altered small enough to reasonably infer that frequent stops to re-fuel were necessary.

Trevino admitted he owned the vehicle. The vehicle carried fresh marihuana, secreted in a false compartment. The odor of fresh paint and Bondo establishes that the alteration of the gas tank to create the false compartment was recent. Similarly, that the marihuana was fresh established that its packaging and secreting was recent. The trial court could have reasonably concluded that the alteration and secreting of the contraband occurred within the two days of Trevino's ownership of the vehicle. Further, the significant quantity of the marihuana indicates that Trevino had knowledge of the marihuana and control over it, because the reasonable inference drawn from that evidence is that the owner of approximately fifty bundles of fresh marihuana would not place it in a concealed compartment without knowing who would be driving the vehicle. See Menchaca, 901 S.W.2d at 652; Travis, 638 S.W.2d at 503. Further, the strong odor of paint and Bondo emanating from inside his vehicle and the presence of an altered back seat section were in plain view enough to alert the trooper, and thus Trevino, to an altered gas tank. We conclude that these affirmative links sufficiently linked Trevino to the marihuana to sustain his conviction. We conclude that the evidence was legally sufficient. Jackson, 443 U.S. at 319; Escamilla, 143 S.W.3d at 817.

The sole contrary evidence is that the vehicle was sold to a Jose Luis Gonzalez approximately six weeks before Trevino purchased it. However, Trevino claimed ownership of the vehicle. The freshness of the marihuana and of the Bondo and paint indicated recent packaging and concealment. Thus, viewed in a neutral light, we conclude that the contrary evidence is not so strong that the State could not have met its beyond-a-reasonable-doubt burden of proof. We conclude the evidence was factually sufficient to sustain the conviction. Threadgill, 146 S.W.3d at 664. We overrule Trevino's first and second issues.

III. Admissibility of Evidence

By his third, fourth, fifth, sixth, and seventh issues, Trevino generally asserts that the trial court abused its discretion in admitting five exhibits over his hearsay objections. The State responds that, even if improperly admitted, the error is not reversible because it did not affect Trevino's substantial rights.

A. Standard of Review

A trial court's admission or exclusion of evidence is reviewed under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002); Salazar v. State, 38 S.W.3d 141, 153 54 (Tex. Crim. App. 2001). An abuse of discretion occurs when the trial court acts arbitrarily or unreasonably, without reference to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (en banc). In other words, an abuse of discretion occurs only when the trial court's decision is so wrong as to lie outside that zone within which reasonable persons might disagree. Id.

B. Analysis

The complained of exhibits are the State's exhibits. Exhibit 10 is Trevino's motor vehicle proof-of-liability insurance card. Exhibits 11 and 12 are paper dealer's license plates retrieved from Trevino's vehicle. Exhibit 13 is the check of the State's witness Snipes, showing he purchased the vehicle before selling it to Jose Luis Gonzalez. Exhibit 14 is the invoice reflecting the sale of the vehicle by Snipes to Gonzalez on September 2, 1996. Trevino argues that the exhibits constitute hearsay and, as such, were inadmissible.

Trooper Plunkett testified that the paper license plates (exhibits 11 and 12) were removed from the vehicle during the post-arrest inventory search. Trooper Plunkett did not recall whether the insurance card (exhibit 10) was discovered during the inventory search or given him by Trevino. Snipes, the car dealer, testified that he paid for the car by check (exhibit 13) and he sold the same car to a Jose Luis Gonzalez (exhibit 14).

The case was tried to the bench. The exhibits were relevant if each had "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. The trial court could have reasonably concluded that the exhibits were relevant to prove the chain of custody, possession, or ownership of the vehicle from the period of ownership by Snipes to Gonzalez to Trevino. Thus, we conclude that the trial court's admitting the evidence was not outside the zone of reasonable disagreement. Montgomery, 810 S.W.2d at 379. Accordingly, the trial court did not abuse its discretion in admitting in evidence State's exhibits 10, 11, 12, 13, and 14 in evidence.

Even assuming the trial court erred in not admitting the exhibits, we conclude the error, if any, was harmless. Tex. R. App. P. 44.2(b). If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the appellate court must reverse a judgment of conviction or punishment, unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Id. Errors that do not affect substantial rights must be disregarded. Tex. R. App. P. 44.2(b). On this record, we conclude that Trevino has not shown reversible error. Thus, we overrule Trevino's third, fourth, fifth, sixth, and seventh issues.

IV. Conclusion

Having overruled Trevino's seven issues, we affirm the trial court judgment.

ERRLINDA CASTILLO

Justice

Do not publish.

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

Memorandum Opinion delivered and filed

this 4th day of August, 2005.

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

[2] We always remain aware of the fact finder's role and unique position, a position we are unable to occupy. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000) (en banc). Exercise of our authority to disagree with the fact finder's determination is appropriate only when the record clearly indicates our intervention is necessary to stop manifest injustice. Id. Otherwise, we accord due deference to the fact finder's determinations, particularly those concerning the weight and credibility of the evidence. Id.

[3] Trevino does not challenge the amount of marihuana.

[4] The State has to prove only that the aggregate weight of the controlled substance mixture, including adulterants and dilutants, equals the alleged minimum weight. Melton v. State, 120 S.W.3d 339, 344 (Tex. Crim. App. 2003).