In the Matter of B.D.G., a Juvenile--Appeal from 327th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

)

) No. 08-01-00502-CV

IN THE MATTER OF )

) Appeal from

B.D.G., a Juvenile. )

) 327th District Court

)

) of El Paso County, Texas

)

) (TC# 0101457)

O P I N I O N

B.D.G., a juvenile, appeals from an adjudication order and disposition order. A jury found that B.D.G. engaged in delinquent conduct by possessing more than fifty but less than 2,000 pounds of marihuana. Following a disposition hearing, the trial court placed B.D.G. on supervised juvenile probation with an electronic monitor. We affirm.

FACTUAL SUMMARY

Ray Provencio, a United States Custom Inspector, was working at the Bridge of the Americas during the late evening hours of October 1, 2001. At approximately 11:20 p.m., a 1985 Chrysler Fifth Avenue approached Provencio=s lane attempting to make entry into the United States. The vehicle was driven by seventeen-year-old N.G., B.D.G.=s older brother. B.D.G. sat in the right rear passenger seat and a female passenger sat in the front seat. N.G. told Provencio that they had driven to Juarez to visit their grandmother and were now on their way home. At first, he said they had entered Juarez three hours earlier, but then said they had left El Paso at 3:30 p.m. that same day. According to N.G., the vehicle belonged to his father. The vehicle had been in N.G.=s possession during the entire trip. B.D.G. told Provencio that he had been with N.G. throughout the trip.

Provencio, who was familiar with the model vehicle driven by N.G., observed that the vehicle=s rear seats were protruding and Aswollen@ rather than Aplush.@ He pushed on the seats and noticed that both the seat and backrest felt solid. Provencio opened the trunk and pushed a Aprobe@ through the backseat. When he pulled it out, he extracted a green leafy substance consistent with marihuana. Provencio discreetly signaled for assistance, removed N.G., B.D.G. and the female passenger from the vehicle, and escorted them to the customs office. The vehicle was moved to another area for closer inspection.

Alfonso Holguin, a customs inspector, confirmed Provencio=s observation that the rear seat and backrest were not only bulging abnormally but were solid when he touched them. It took them approximately thirty minutes to remove twenty-three bundles of marihuana from inside the rear seat where it had been hidden in the springs. The marihuana weighed 97.8 pounds and in Holguin=s opinion, it would have taken more than a few minutes to hide the marihuana in this manner.

B.D.G.=s father, F.G., testified that B.D.G. told him that he was going out that evening with a friend. He did not specifically mention that he was going out with his brother, but F.G. noted that they always went out together. F.G. had never owned a 1985 Chrysler Fifth Avenue and B.D.G.=s grandmother did not live in Juarez.

HEARSAY TESTIMONY

In Issue One, B.D.G. challenges the admission of several hearsay statements through the witness Provencio. During the State=s direct examination of Provencio, the following occurred:

[The State]: And what conversation, if any, took place between you and [N.G.]?

[Provencio]: I received the standard customs declaration as far as admissibility and entry into the country.

[The State]: Did you ask him anything else concerning their whereabouts?

[Provencio]: Yes. I asked the purpose of their trip to Mexico and the driver said at that time --

[Defense counsel]: I=m going to have to object, of course, to any hearsay for purposes of the record, sir. And also right of confrontation as to anything that the driver might have told this officer.

[The Court]: The objection is overruled. You may go ahead and answer.

[Defense counsel]: Thank you, sir.

[Provencio]: I asked the driver the purpose of the trip to Mexico. The driver stated that the purpose of their trip to Mexico was to go visit the grandmother.

[The State]: Okay. Did you ask him how long he had been in Mexico?

[Provencio]: Later on I asked him approximately how long ago he left El Paso, and he stated he left three hours prior. But then I further -- later on after that I asked him approximately what time he left El Paso and he stated 3:30 p.m..

. . .

[The State]: Okay. Did you ask him concerning ownership of the vehicle?

. . .

[Defense counsel]: Again, judge, we have to, for the purposes of the record, object to anything that this driver is stating to this customs officer as hearsay statements, and they also violate [B.G.]=s right to confrontation.

[The Court]: All right. Objections will be overruled. You may answer.

[Provencio]: The driver stated the owner of the vehicle was his father.

[The State]: And did he say how long his father has owned the vehicle?

[Provencio]: Approximately three months.

. . .

[The State]: And so did you ask anything else of [N.G.] besides what you=ve already testified to at primary?

[Provencio]: At primary I asked him if he had full possession of the vehicle when he was in Mexico.

[Defense counsel]: Again, I have to object for purposes of record, sir, as to hearsay and right of confrontation on behalf of my client.

[The Court]: All right, objection is overruled. Go ahead and answer, please.

[Provencio]: I asked [N.G.] when he went to Mexico if the vehicle had been in his possession from El Paso to Juarez to El Paso, he further stated yes. I asked him where he was headed at the moment, he said he was headed home. I asked him if he was headed straight home with no other stops and he said yes. That=s -- those are the questions I asked.

Generally, hearsay is not admissible except as provided by statute or the Texas Rules of Evidence. Tex.R.Evid. 802. Hearsay is a statement, other than one made by the declarant while testifying at trial or hearing, offered into evidence to prove the truth of the matter asserted. Tex.R.Evid. 801(d). B.D.G. admits that several of N.G.=s statements are not hearsay because they were not offered for the truth of the matter asserted. All of N.G.=s statements pertaining to the purpose of their trip, the time they left El Paso, and their father=s ownership of the car are not hearsay because the State offered the statements only to show that N.G. made them, and not for the truth of the matter asserted. In fact, the State offered the statements to show that they were not true statements. Therefore, these statements do not qualify as hearsay.

The critical statement, however, is N.G.=s comment that the vehicle had been in his possession during the entire trip from El Paso to Juarez. The State offered this for the truth of the matter asserted because it sought to show that B.D.G. had been present when the marihuana had been loaded in the vehicle. It pointed to this statement and B.D.G.=s statement that he had been present with N.G. throughout the trip to Juarez as proof that B.D.G. had been present when the marihuana was loaded in the vehicle.

The State argues that N.G.=s statement is admissible as a statement by a co-conspirator made during the course of and in furtherance of the conspiracy. Tex.R.Evid. 801(e)(2)(E). Such a statement is not hearsay. Further, the applicability of Rule 801(e)(2)(E) is not limited to conspiracy prosecutions. Meador v. State, 812 S.W.2d 330, 333 (Tex.Crim.App. 1991). Rather, it is a rule of evidence applicable to any offense. Meador, 812 S.W.2d at 333. The party offering the statement under this rule has the burden of showing by a preponderance of the evidence that, at the time of his statement, the alleged co-conspirator was participating in a conspiracy in which the defendant was also participating or later joined and that the statement was made in furtherance of that conspiracy. Ward v. State, 657 S.W.2d 133, 136-37 (Tex.Crim.App. 1983); see Bourjaily v. United States, 483 U.S. 171, 175, 107 S. Ct. 2775, 2779, 97 L. Ed. 2d 144 (1987). A trial court has discretion to determine admissibility of alleged hearsay statements under the co-conspirator rule. Howard v. State, 962 S.W.2d 119, 123 (Tex.App.--Houston [1st Dist.] 1997, pet. ref=d). Therefore, we review the trial court=s ruling for an abuse of discretion.

Given the totality of the circumstantial and direct evidence, the State sufficiently established that B.D.G. and N.G. had an agreement to smuggle marihuana into the United States. N.G.=s statement to Provencio was certainly made during the course of the conspiracy. Now, we must determine whether it was also made Ain furtherance@ of the conspiracy, or in other words, whether it was made in an effort to advance the cause of the conspiracy or facilitate the conspiracy. See Deeb v. State, 815 S.W.2d 692, 697 (Tex.Crim.App. 1991), cert. denied, 505 U.S. 1223, 112 S. Ct. 3038, 120 L. Ed. 2d 907 (1992). At the point Provencio asked N.G. whether the vehicle had been out of his possession, no marihuana had been found. The question was not asked to establish possession of any contraband that might later be found but rather to determine whether someone had placed something in the vehicle without N.G.=s knowledge or permission. N.G. answered this question in the negative with the presumed expectation that they would be permitted to enter the United States with the vehicle and the marihuana. Thus, the State sufficiently established that he made the statement to facilitate the conspiracy. The trial court did not abuse its discretion in admitting the statement under Rule 801(e)(2)(E). Issue One is overruled.

LEGAL SUFFICIENCY

In Issue Two, B.D.G. challenges the legal sufficiency of the evidence to support the jury=s finding that he engaged in delinquent conduct by possessing marihuana because there are insufficient affirmative links. When reviewing challenges to the legal sufficiency of the evidence to establish the elements of the penal offense that forms the basis of the finding that the juvenile engaged in delinquent conduct, we apply the standard set forth in Jackson v. Virginia, 443 U.S. 307, 320, 99 S. Ct. 2781, 2789 90, 61 L. Ed. 2d 560 (1979). In the Matter of A.S., 954 S.W.2d 855, 858 (Tex.App.--El Paso 1997, no pet.). Under this standard, an appellate court must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2789; Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Crim.App. 1995).

To support a conviction for unlawful possession, the State must prove that the accused (1) exercised care, control, and management over the contraband, and (2) knew the matter possessed was contraband. See Martin v. State, 753 S.W.2d 384, 386 (Tex.Crim.App. 1988); Davila v. State, 930 S.W.2d 641, 644-45 (Tex.App.--El Paso 1996, pet. ref=d). Mere presence at the scene is not sufficient to establish unlawful possession of a controlled substance, but evidence which affirmatively links the defendant to the controlled substance will suffice to prove that he possessed it knowingly. McGoldrick v. State, 682 S.W.2d 573, 578-79 (Tex.Crim.App. 1985). The affirmative link must raise a reasonable inference that the accused knew of and controlled the contraband, Christian v. State, 686 S.W.2d 930, 932 (Tex.Crim.App. 1985); Levario v. State, 964 S.W.2d 290, 294 (Tex.App.--El Paso 1997, no pet.), and may be shown by either direct or circumstantial evidence establishing Ato the requisite level of confidence, that the accused=s connection with the drug was more than just fortuitous.@ Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). Factors which may establish an affirmative link are whether: (1) the contraband was in plain view; (2) the contraband was conveniently accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the accused was the driver of the automobile in which the contraband was found; (5) the contraband was found on the same side of the car seat as the accused was sitting; (6) the place where the contraband was found was enclosed; (7) the strong odor of marijuana was present; (8) paraphernalia to use the contraband was in view of or found on the accused; (9) conduct by the accused indicated a consciousness of guilt; (10) the accused had a special connection to the contraband; (11) occupants of the automobile gave conflicting statements about relevant matters; (12) the physical condition of the accused indicated recent consumption of the contraband found in the car; (13) traces of the contraband were found on the accused; and (14) affirmative statements connected the accused to the contraband. Whitworth v. State, 808 S.W.2d 566, 569 (Tex.App.--Austin 1991, pet. ref=d)(and cases cited therein). Certain of these factors may bear on the care, custody, control or management element of the offense. Whitworth, 808 S.W.2d at 569. Others may bear on knowledge and some may be relevant to both. Id. One factor alone does not support a finding of an affirmative link. Herndon v. State, 787 S.W.2d 408, 409 (Tex.Crim.App. 1990). The number of factors present is less important than the logical force the factors have alone or in combination in establishing the elements of the offense. Whitworth, 808 S.W.2d at 569.

Taken in the light most favorable to the verdict, the evidence showed that B.D.G. was returning from Juarez in a vehicle loaded with nearly 100 pounds of marihuana. The marihuana was concealed in a seat on which B.D.G. sat. Both Provencio and Holguin observed that the marihuana caused the seat to not only bulge noticeably but to be hard and uncomfortable. B.D.G. neglected to inform his father about their plans to go to Juarez but instead told him only that he was going out with a friend. N.G. lied to Provencio about the purpose of their trip and their father=s ownership of the vehicle thereby indicating a consciousness of guilt on N.G.=s part. Significantly, N.G. told Provencio that the vehicle had not left his possession during their trip to Juarez and B.D.G. stated that he had been with N.G. during the entire trip. Given that the State established a consciousness of guilt on the part of N.G. and the connection between the brothers and the vehicle, the jury could have reasonably concluded that B.D.G. had knowledge of the marihuana in the vehicle. Issue Two is overruled.

FACTUAL SUFFICIENCY

In Issue Three, B.D.G. challenges the factual sufficiency of the evidence to support the jury=s finding of delinquent conduct. As argued in Issue Two, he maintains that the evidence shows nothing more than mere presence.

In reviewing this factual sufficiency challenge, we view all of the evidence but do not view it in the light most favorable to the verdict in determining whether the State met its burden of proof beyond a reasonable doubt. A.S., 954 S.W.2d at 860; see also Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Only if the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust will we conclude that the State failed to carry its burden. A.S., 954 S.W.2d at 860.

Although B.D.G. argues that the evidence shows nothing more than mere presence in the vehicle, the evidence permits a conclusion that B.D.G. was present when the marihuana was loaded in the vehicle. N.G. told Provencio that the vehicle had been in his constant possession while in Juarez. According to N.G.=s statements, the trio had been in Juarez for approximately eight hours. N.G.=s knowledge of the marihuana in the vehicle is evidenced by his exercise of control over the vehicle and the lies he told Provencio about their purpose in going to Juarez and his father=s ownership of the car. Given B.D.G.=s admission that he had been with his brother during the entire trip, the jury could have concluded that B.D.G. was present when the marihuana was loaded in the vehicle. After reviewing all of the evidence, we cannot say that the jury=s verdict is contrary to the overwhelming weight of the evidence. Issue Three is overruled. The adjudication and disposition orders are affirmed.

October 31, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)