Guadalupe Pinales v. The State of Texas--Appeal from 59th District Court of Grayson County

NO. 12-01-00303-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

GUADALUPE PINALES,

 
APPEAL FROM THE 59TH

APPELLANT

 

V.

 
JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

 
GRAYSON COUNTY, TEXAS

Guadalupe Pinales ("Appellant") appeals her conviction for possession of marijuana, for which she was sentenced to confinement for two years, probated for five years, and fined four hundred dollars. Appellant raises four issues on appeal. We affirm.

 

Background

Based on information provided by a confidential informant, law enforcement obtained and executed a search warrant for a house in which the Pinales family resided. Multiple law enforcement officers executed the warrant on the evening of April 23, 1997. During the conduct of their search, officers discovered marijuana in Appellant's son's bedroom. The officers discovered additional marijuana in a compartment in the wall of the master bedroom, occupied by Appellant and Frank Pinales, Sr. The quantity of marijuana retrieved from within the wall of the master bedroom was approximately 1.6 pounds.

Appellant was indicted for possession of more than four ounces, but less than five pounds of marijuana. (1) Appellant pleaded "not guilty," and the matter proceeded to voir dire. During voir dire, the State of Texas (the "State") exercised peremptory challenges against certain members of the venire. At the conclusion of voir dire, Appellant, who is of Hispanic descent, raised a Batson (2) challenge as to the State's peremptory strikes against Gladis Bowen ("Bowen"), who is of African American descent, Jimmy Thompson ("Thompson"), who is of Hispanic descent, and Maria Gutierrez ("Gutierrez"), also of Hispanic descent. The State responded with purportedly race-neutral explanations for these three peremptory strikes. As to Bowen, the State explained that it had exercised a strike against her because she had a relative in prison and because she had not been forthcoming concerning her conviction for theft by check when questioned by the State. With regard to Thompson, the State explained that it exercised a peremptory strike against him because of his profession, a truck driver, and the way in which he was dressed, which the State described as "blue collarish." Finally, in explaining its reasons for striking Gutierrez, the State claimed that it struck her because she indicated that she had a cousin that was convicted of a drug offense. Appellant responded that the State had failed to strike other members of the venire for similar reasons, including one who had family members who had been convicted on drug-related charges, and another, who was a painter, a profession Appellant argued was a "blue collar" profession. The State responded that it did not have enough peremptory challenges to strike these other members of the venire. At the conclusion of the hearing, the trial court overruled Appellant's Batson challenge, and the trial of the case commenced.

Following the presentation of evidence, the trial court asked the parties if they had any objections concerning the court's charge. Appellant stated that she had no objection, but requested an instruction that "[t]here must be independent facts and circumstances which affirmatively link the defendant to the marijuana in such a manner it can be concluded she had knowledge of the marijuana, as well as control over it." The trial court denied Appellant's request. Ultimately, the jury found Appellant guilty as charged and the trial court sentenced Appellant to confinement for two years, probated for five years, and fined Appellant four hundred dollars.

 

Batson Challenge

In order to establish a prima facie case of racial discrimination, three things must be shown: (1) Appellant is a member of a cognizable racial group; (2) the State used peremptory challenges to remove members of a minority group from the jury; and (3) these facts, and any other relevant circumstances, raise an inference that the prosecutor excluded the venirepersons from the venire because of their race. See Batson v. Kentucky, 476 U.S. at 96, 106 S. Ct. at 1723; Henry v. State, 729 S.W.2d 732, 734 (Tex. Crim. App. 1987). When the trial court determines that the appellant has made a prima facie Batson case, the burden shifts to the prosecutor to come forward with race neutral reasons for the peremptory strikes. See Keeton v. State, 749 S.W.2d 861, 867-68 (Tex. Crim. App. 1988); Shears v. State, 895 S.W.2d 456, 461 (Tex. App.-Tyler 1995, no pet.). The explanation the State gives justifying the strike does not have to rise to the level of a challenge for cause, but it must be a clear, specific, and legitimate explanation for each relevant challenge. See Brooks v. State, 802 S.W.2d 692, 695 (Tex. Crim. App. 1991). A reviewing court is not to concern itself with who served on the jury, but whether the State was racially motivated in using a peremptory challenge against even one venire member of discernible race. See Linscomb v. State, 829 S.W.2d 164, 167 (Tex. Crim. App. 1992). The trial judge cannot merely accept the specific reasons given by the prosecutor at face value, but must consider whether the prosecutor contrived the racially neutral explanations to avoid admitting acts of discrimination. See Dennis v. State, 925 S.W.2d 32, 39-40 (Tex. App.-Tyler 1995, pet. ref'd). Once the prosecutor gives a racially neutral explanation that can legally support a judgment in the State's favor, he presents a fact issue that the trial judge can resolve only by assessing the weight and credibility of the evidence. Id. at 40. The defendant bears the ultimate burden of proving that the prosecutor exercised the State's peremptory strikes in a discriminatory fashion. Id.

The standard of review of a trial court's decision and finding as to whether a reason given by a prosecutor is sufficiently race neutral is reviewable by a "clearly erroneous" standard. See Tennard v. State, 802 S.W.2d 678, 681 (Tex. Crim. App. 1990); Dennis, 925 S.W.2d at 39. Thus, the reviewing court should afford great deference to the findings of the trial court. See Robinson v. State, 851 S.W.2d 216, 226 (Tex. Crim. App. 1991); Shears, 895 S.W.2d at 461. The record of both the voir dire and hearing will be reviewed in a light most favorable to the trial court's ruling. See Adanandus v. State, 866 S.W.2d 210, 224 (Tex. Crim. App. 1993). In Keeton, the court of criminal appeals discussed the following nonexclusive list of factors which weigh against the legitimacy of a race-neutral explanation: (1) the prosecutor's reason for the peremptory challenge is not related to the facts of the case; (2) there was a lack of questioning to the challenged juror or a lack of meaningful questions; (3) there was disparate treatment in that persons with the same or similar characteristics were not struck; (4) there was disparate examination in that a challenged juror was questioned so as to evoke a certain response whereas other panel members were not asked the same question; and (5) the prosecutor gives an explanation based on a group bias where the group trait is not shown to apply specifically to the challenged juror. See Keeton, 741 S.W.2d at 868. These factors tend to show that the reasons or explanations given by a prosecutor are merely a sham or a pretext. See Emerson v. State, 851 S.W.2d 269, 273 (Tex. Crim. App.1993); Keeton, 749 S.W.2d at 868.

The parties do not dispute the issue of whether Appellant made a prima facie case of racial discrimination. Thus, shifting our focus to the prosecutor's burden, we conclude that the State offered a sufficiently race-neutral explanation for each of its peremptory strikes. See Gerber v. State, 845 S.W.2d 460, 464-65 (Tex. App.-Houston [1st Dist.] 1993, pet. ref'd) (striking a juror due to the manner of their dress or appearance provides a race-neutral explanation); Holman v. State, 772 S.W.2d 530, 533 (Tex. App.-Beaumont 1989, no pet.) (failure to reveal criminal history is a race-neutral reason for exercising a peremptory strike); Bolden v. State, 923 S.W.2d 730, 734 (Tex. App.-Tyler 1996, no pet.) (a venire member's prior criminal conviction is a race-neutral reason for exercising a peremptory strike). Appellant argues that multiple Keeton factors indicate that the State's purportedly race-neutral reasons were a mere pretext. We disagree.

First, Appellant argues that there was a distinct lack of questioning as to Gutierrez and Thompson. However, while the State's reasons for striking these venire members would be bolstered had it individually questioned each of them, the State's reasons for its strikes are not rendered racially impermissible simply because the State failed to so question them. See Vargas v. State, 838 S.W.2d 552, 556 (Tex. Crim. App. 1992).

Further, Appellant argues that, with respect to Thompson, the State failed to demonstrate that Thompson exhibited the "blue collarish" group trait, which the State used as a reason for striking him. However, Appellant overlooks the State's contention that it also exercised a peremptory strike against Thompson based on his appearance and manner of dress. When the State offers numerous race-neutral reasons for challenging a potential juror, the fact that other jurors possessed one or more of the objectionable attributes is not sufficient to establish disparate treatment. See Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim. App. 1992). As set forth above, striking a juror due to the manner of their dress or appearance provides a race-neutral explanation. See Gerber, 845 S.W.2d at 464-65. Similarly, as to Bowen, while Appellant cites to disparate treatment related to other jurors who, like Bowen, claimed to have relatives with convictions, Appellant offers no argument related to the State's explanation that it also struck Bowen because she was not forthcoming regarding her previous conviction for theft by check. See Holman, 772 S.W.2d at 533.

Finally, Appellant argues that there was disparate treatment in that the State exercised a peremptory strike against Gutierrez based on the fact that she had a relative who had been convicted, while other venire members with the same or similar characteristics were not struck. However, Appellant did not cross-examine the prosecutor under oath or impeach her as to the underlying reasons for her failure to challenge other members of the venire on this basis. Furthermore, although Appellant indicated to the trial judge the names of other venire members who were not struck, there is no evidence in the record upon which we can determine the respective races of these venire members. See Shields v. State, 820 S.W.2d 831, 834 (Tex. App.-Waco 1991, no pet.).

Facts necessary to show the existence or absence of disparate treatment (showing that the prosecution did or did not strike jurors with characteristics similar to the challenged juror) cannot be merely recited into the record as evidence through unsworn statements. Id. at 833. Counsel who want the record to reflect certain facts must include those facts in the record as evidence either by sworn testimony, exhibits, stipulations, admissions or judicial notice. Id. The most elaborately constructed, fact-based argument on appeal is for naught unless it is supported by evidence in the record. Id. As we have no evidence before us to enable us to determine the race of venire members who were not struck who possessed similar characteristics to Gutierrez, we cannot determine whether she suffered disparate treatment.

If the district court's account of the evidence is plausible in light of the record viewed in its entirety, we may not reverse it even if we, sitting as the trier of fact, might have weighed the evidence differently. See Vargas, 838 S.W.2d at 556. Where there are two permissible views of the evidence, the fact-finder's choice between them cannot be clearly erroneous. Id. Here, the trial court found the State's explanations to be race-neutral, and based our review of the record, the evidence does not suggest otherwise. As such, we hold that the trial court did not err in overruling Appellant's Batson challenge. Appellant's first issue is overruled.

 

Legal Sufficiency

In his second issue, Appellant contends that the evidence was not legally sufficient to support the jury's verdict. Specifically, Appellant argues that there was no evidence to support the jury's finding that she possessed the marijuana in question. Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.-San Antonio 1999, no pet.). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the jury's verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982).

A person commits the offense of possession of marijuana if he knowingly or intentionally possesses a usable quantity of marijuana. See Tex. Health & Safety Code 481.121(a). To prove unlawful possession of a controlled substance, the state must show that the defendant (1) exercised care, control, and management over the controlled substance and (2) knew that it was a controlled substance. See Humason v. State, 728 S.W.2d 363, 364 (Tex. Crim. App. 1987), overruled on other grounds, Geesa v. State, 820 S.W.2d 154, 157 (Tex. Crim. App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570, 473 (Tex. Crim. App. 2000). Mere presence in the vicinity of a controlled substance is not enough. Id. at 365. The State must prove an affirmative link between the defendant and the drug. See McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985). Possession need not be exclusive, however, and a showing of joint possession with another is sufficient. See Siroky v. State, 653 S.W.2d 476, 479 (Tex. App.-Tyler 1983, pet. ref'd). Whether the possession of the accused is sole or joint, still an affirmative link must be established between the accused and the controlled substance by proof of other independent facts and circumstances, and such affirmative link may be established by circumstantial evidence. Id. Moreover, when the narcotics are secreted, the State must address whether the defendant knew of the existence of the secret place and its contents. See Vargas v. State, 883 S.W.2d 256, 263 (Tex. App.-Corpus Christi 1994, pet. ref'd).

Circumstances that may link a defendant to the controlled substance exist where (1) the defendant was present when the search was executed; (2) the contraband was in plain view; (3) the contraband is in close proximity to and accessible by the defendant; (4) the defendant was under the influence of contraband; (5) the defendant was in possession of other contraband when he was arrested; (6) the defendant made incriminating statements when he was arrested; (7) the defendant attempted to flee; (8) the defendant made furtive gestures; (9) there was an odor of the contraband present at the scene; (10) other contraband or drug paraphernalia were present which were not included in the charge; (11) the defendant owned or had a right to possess the place where the controlled substance was found; (12) the contraband was found in an enclosed place; (13) there was a significant amount of contraband; and (14) the defendant possessed weapons or large amounts of cash. See De La Garza v. State, 898 S.W.2d 376, 379 (Tex. App.-San Antonio 1995, no pet.); Hernandez v. State, 867 S.W.2d 900, 904 (Tex. App.-Texarkana 1993, no pet.); Castillo v. State,867 S.W.2d 817, 820 (Tex. App.-Dallas 1993), vacated & remanded on other grounds, 913 S.W.2d 529 (Tex. Crim. App.1995). Furthermore, the fact that the appellant resides at the location where the contraband is found and the fact that she is closely related to a person in joint possession of the contraband is enough to link her to the possession thereof. See Sanchez v. State, 825 S.W.2d 761, 765 (Tex. App.-Houston [14th Dist.] 1992, no pet.). The number of affirmative links present is not as important as the degree to which they tend to link the defendant to the controlled substance. Williams v. State, 906 S.W.2d 58, 65 (Tex. App.-Tyler 1995, pet. ref'd). (3)

Considering the aforementioned factors with regard to the facts in the instant case, we conclude that they are of sufficient quality to link Appellant to the marijuana in question. The evidence is uncontested that Appellant was present in the residence when the search was executed. The record further reflects that the enclosed space where the marijuana was discovered was easily accessible to Appellant through a hole in her bedroom wall, which was covered only by a broken-out piece of wall paneling. Furthermore, the amount of marijuana discovered in Appellant's bedroom was significant, approximately 1.6 pounds. Moreover, the record reflects that Appellant resided in the place where the marijuana was discovered, was the wife of Frank Pinales, Sr., and was the mother of Frank Pinales Jr., both of whom were present at the time of the search and were arrested and charged with an offense related thereto. See Sanchez, 825 S.W.2d at 765. Finally, the record reflects that Appellant was present in the house during the drug transaction between her son and the confidential informant. Viewing all of the evidence in the light most favorable to the verdict, we conclude that the jury, as the trier of fact, could find beyond a reasonable doubt that Appellant exercised care, control, and management over the 1.6 pounds of marijuana in question, was aware of its existence within her bedroom wall, and was aware that it was contraband. Thus, we hold that the evidence is legally sufficient to support Appellant's conviction. Appellant's second issue is overruled.

Factual Sufficiency

In his third issue, Appellant contends that the evidence was so contrary to the jury's verdict as to be clearly wrong and unjust. In considering the issue of factual sufficiency, we first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence in the record related to Appellant's sufficiency challenge, not just the evidence which supports the verdict. Id. We review the evidence weighed by the jury which tends to prove the existence of the fact in dispute, and compare it to the evidence which tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We may disagree with the jury's determination, even if probative evidence exists which supports the verdict. See Clewis, 922 S.W.2d at 133. However, our evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. See Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. See VanZandt v. State, 932 S.W.2d 88, 96 (Tex. App.-El Paso 1996, pet. ref'd). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the 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. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). A verdict will be set aside only if a finding of guilt beyond a reasonable doubt is clearly wrong and unjust. See Clewis, 922 S.W.2d at 134.

Here, Appellant argues that the jury's verdict is clearly wrong and unjust because other factors of the possession analysis as set forth above do not tend to link Appellant to the marijuana in question. Specifically, Appellant notes that (1) there were other adults present in the small, two-bedroom residence, (2) the marijuana was discovered in a wall compartment that was not readily visible, (4) (3) Appellant was not in the bedroom at the time that the search warrant was executed, (5) and (4) other items of contraband were discovered in Frank Pinales, Jr.'s bedroom. We disagree that the quality of these factors, when weighed against the other factors and the record as a whole, tend to demonstrate that the jury's verdict was clearly wrong and unjust. We iterate that the number of affirmative links present is not as important as the degree to which they tend to link the defendant to the controlled substance. See Williams, 906 S.W.2d at 65. Our review of the record does not uncover any great weight of evidence contradicting the quality of evidence linking Appellant to the 1.6 pounds of marijuana found in her bedroom, nor does the jury's verdict otherwise shock the conscience of this court. As such, we hold that the evidence of possession was factually sufficient to support the jury's verdict. Appellant's third issue is overruled.

 

Charge Instruction on "Possession"

In his fourth issue, Appellant argues that the trial court erred in failing to include an appropriate instruction within the charge to apply the law of possession to the facts of the instant case. Appellant requested that the trial court include an instruction in the charge that "[t]here must be independent facts and circumstances which affirmatively link the defendant to the marijuana in such a manner it can be concluded she had knowledge of the marijuana, as well as control over it." Appellant's request was denied by the trial court. Failure to give an affirmative charge regarding knowledge is reversible error. See Troyer v. State, 516 S.W.2d 163, 164 (Tex. Crim. App. 1974).

In the instant case, the court's charge instructed the jury that "a person commits a felony offense if he/she intentionally or knowingly possesses a usable quantity of marijuana." The charge further instructed the jury that "possession" is "the actual care, custody, control or management of the marijuana . . . ." Moreover, the charge instructed the jury that "a person acts intentionally or with intent . . . when it is his conscious objective or desire to engage in the conduct or cause the result" and that "[a] person acts knowingly or with knowledge with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware that his conduct is reasonably certain to cause the result." Finally, the charge instructed the jury that "[i]ntent or knowledge may be inferred by acts done or words spoken." We conclude that the court's charge properly instructed the jury as to the law applicable to the case at hand. The language requested by Appellant, if included, would have been redundant of the instructions already provided in the charge, and was, therefore, properly refused by the trial judge. Appellant's fourth issue is overruled.

Accordingly, the judgment of the trial court is affirmed.

 

SAM GRIFFITH

Justice

Opinion delivered August 30, 2002.

Panel consisted of Gohmert, Jr., C.J., Worthen, J., and Griffith, J.

 
(DO NOT PUBLISH)

1. See Tex. Health & Safety Code Ann. 481.121(a) (Vernon Supp. 2002).

2. Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

3. Citing McCarty v. State, 788 S.W.2d 213, 215 (Tex. App.-Fort Worth 1990, no pet.), Appellant argues that the State also has the burden to exclude all alternative reasonable hypotheses beyond a reasonable doubt. However, this rule as set forth in McCarty, has been since rejected by the court of criminal appeals. See Geesa v. State, 820 S.W.2d at 161, overruled on other grounds, Paulson v. State, 28 S.W.3d at 473; see also Bethancourt-Rosales v. State, 50 S.W.3d 650, 653 n. 1 (Tex. App.-Waco 2001, pet. ref'd).

4. While the record reflects that the compartment within the wall was not readily visible, the evidence further shows that the breach in the wall was covered only by a broken-out piece of wall paneling.

5. Appellant has provided no record cite for this statement of fact. Our review of the record uncovers no evidence that Appellant was not in the master bedroom during the execution of the search warrant. The testimony of the officers executing the search warrant reflected that they had no memory of the location of Appellant at that time. The undisputed evidence indicates that Appellant was present in the residence, which, as Appellant points out in her brief, was a small two bedroom house, at the time the search warrant was executed.