Eugene Nixon v. The State of Texas--Appeal from 168th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

EUGENE NIXON, )

) No. 08-02-00323-CR

Appellant, )

) Appeal from the

v. )

) 168th District Impact Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20010D04387)

)

O P I N I O N

Appellant Eugene Nixon appeals his conviction for possession of a controlled substance, to wit: cocaine, having an aggregate weight, including adulterants or dilutants, of 400 grams or more. Appellant was tried with codefendant Alma Montes. The jury found Appellant guilty of the charged offense and assessed punishment at 15 years= imprisonment in the Institutional Division of the Texas Department of Criminal Justice and a fine of $5,000. On appeal, Appellant challenges the legal and factual sufficiency of the evidence to sustain his conviction. We affirm.

On August 20, 2001, Officer Edgar Baca was on duty as a security officer at the El Paso County Jail. Officer Baca was working at the main entrance of the building in the second security booth where visitors= permit information is verified. Officer Baca=s station was past the information booth and the metal detector. Officer Baca observed an older gentlemen and young lady, later identified as Appellant and codefendant Alma Montes, come through his security checkpoint. Ms. Montes passed through the metal detector first. Officer Baca noticed that she hesitated and stopped a little past the security desk and did not proceed to the elevators.

Appellant was standing in front of the metal detector and Officer Baca told him to pass through the machine. Appellant set off the metal detector when he passed through it. Appellant was carrying a nylon portfolio and Officer Baca asked him what was in it. Appellant told Officer Baca that it contained legal papers. Officer Baca suggested that an officer could take the paperwork upstairs to be signed. He told Appellant to open the portfolio so he could see the contents. Appellant hesitated before handing it over. Officer Baca told Appellant just to open up the portfolio and the officer looked inside it. Inside was a black box a bit larger than a video cassette. There was nothing else inside the portfolio. Officer Baca asked Appellant what the object was and Appellant replied, AI don=t know.@ Officer Baca also asked Ms. Montes but she also did not know. Ms. Montes told Officer Baca the box was not hers.

Appellant and Ms. Montes were detained while Officer Baca contacted Lieutenant Joe Chairez and Deputies Conner and Lovato. The officers initially thought the item was some kind of narcotics, but became concerned that the box or bundle, which Deputy Conner described as a square-shaped item wrapped in black electrical tape, was an explosive device and transferred it to a table near the lieutenant=s office. Appellant and Ms. Montes were moved away from the public.

Appellant and Ms. Montes were separated and Lieutenant Chairez interviewed them at different times. When Lieutenant Chairez could not determine the contents of the package, he called Captain Gilbert Pinon who told him to contact the Criminal Investigation Division (ACID@). Lieutenant Chairez then spoke with Sergeant Scott Mann at CID, who instructed him to act as if the package held explosives and to secure and evacuate the first floor of the building. Sergeant Mann contacted the military police for the bomb unit. The bomb unit x-rayed the package, but no electrical wires were observed. After another x-ray was taken, the officers determined that the package did not appear to be a bomb. Lieutenant Chairez requested that the bomb unit open the package. The package was found to contain a yellowish-white powdery substance. The substance field-tested positive for cocaine. The total gross weight of the cocaine was 1,080.6 grams. Upon further analysis Criminalist Ann Marie Falknor determined that the net weight of the cocaine was 987.97 grams with a purity of 65 percent.

On August 21, Detective Marcela Gil of the Metro Narcotics Task Force Unit in the Sheriff=s Department was assigned to the case. When Detective Gil interviewed Ms. Montes, she told the detective that she had received an anonymous call from a man instructing her to meet him around five in the afternoon at a nearby Furr=s if she did not want any harm to come to her husband, who was in jail at the time. Ms. Montes drove to Furr=s in her truck, parked by the pay phone, and was approached by an Anglo male on the passenger side. Ms. Montes told Detective Gil that the man entered her vehicle and placed a black portfolio underneath her seat. The man repeated his threat and instructed her to drive to a location, which was Appellant=s address. The man exited her vehicle and Ms. Montes drove to Appellant=s apartment. Ms. Montes delivered the portfolio to Appellant, who she claimed she did not know. When Ms. Montes told Appellant she was going to visit her husband in jail, Appellant invited himself along and took the portfolio with him. Ms. Montes indicated to Detective Gil that she knew there was some type of narcotics in the portfolio and that she knew and expected to be arrested at the jail.

As part of Detective Gil=s investigation, Ms. Montes=s truck was taken into custody. It was parked in a nearby lot about a block from the jail. Detective Gil asked Deputy Luis Almonte to bring his K-9, Blackjack, to sniff search the vehicle. Blackjack alerted to the bottom of the driver=s side seat and the vehicle was then transported to the Task Force impound lot. No narcotics were found inside the vehicle, but Deputy Almonte testified that the dog=s alert signal indicated to him that at one time there had been a narcotic inside the vehicle.

Appellant testified he had been living in El Paso for just over a year. Appellant stated that he had met Ms. Montes and her husband a month or two earlier at a ball game. They talked for about twenty minutes and then he went on his way. He met Ms. Montes for the second time on August 16 when she knocked on his apartment door and asked if he remembered her from the ballpark. He told her he did and let her into the apartment. After exchanging pleasantries, Ms. Montes informed Appellant that her husband was incarcerated and had told her to go to Appellant and ask for his help in getting him out of jail. Ms. Montes asked Appellant to contact her husband=s attorney. Appellant called the attorney=s office twice, but never spoke with him.

On August 20, Ms. Montes came to his apartment again. Ms. Montes told Appellant that her husband had called and that they made a deal to get him out of jail. Ms. Montes could not provide satisfactory information about the deal, so Appellant suggested that she go down to the jail to talk to her husband. Initially, Ms. Montes asked Appellant to go to the jail, but he told her that she would have to go with him because he did not have transportation. When Appellant got into the truck, he saw a black bag sitting between the seats. Ms. Montes parked the truck a block down the street from the jail and asked him to carry the black bag since she was carrying her purse. Appellant asked her what was in the bag and she told him it contained the papers to get her husband out of jail. Appellant took the bag and they went inside the jail. Ms. Montes and Appellant got in line. He tried to give her back the bag, but she said she had to go check her purse. When she returned, he tried to give her the bag again, but she left again to sign them in for visitation. When she returned, Appellant followed Ms. Montes through the visitation check-in station and on to the security station. When Appellant entered the security station, the officer asked him what was in the bag. Appellant told him about the papers but the officer said he would have to inspect the bag. When Appellant opened the bag, he was surprised to find no papers in it and instead it contained a black bundle.

On cross-examination, Appellant denied owning the portfolio. Appellant thought that it contained papers and had no reason to believe Ms. Montes was lying. Appellant disagreed with Officer Baca=s impression that he became nervous when the metal detector went off.

Defense counsel introduced into evidence a written statement Appellant gave to the police on the day of his arrest. In his statement, Appellant stated that when the officer questioned Ms. Montes about the bag, she told him that it was not Appellant=s. Appellant denied knowing what was inside the bag. Appellant believed that Ms. Montes knew what was in the bag because he noticed that she kept trying to distance herself from it while they were at the jail.

Codefendant Alma Montes also testified at the trial. According to Ms. Montes, she received a phone call from Appellant on August 20. Appellant told her his name and said he had legal papers that could help her husband, but she had to go pick him up because he did not have transportation. Appellant gave her the address to his apartment. Ms. Montes did not know Appellant, but she went to his apartment because she believed she could trust him based on her husband=s word. She waited at the door while he grabbed a package from inside his apartment that purportedly contained the legal papers. Upon entering her truck, Appellant put the package on the left side of the floor board.

While waiting in line at the jail, Ms. Montes realized she still had her purse with her. She told Appellant that they were not allowed to take anything inside and asked him whether he wanted her to take the package back to her truck as well. Appellant said no, that he had legal papers in the package. After passing through the metal detector, Ms. Montes stopped to pick up her keys and driver=s license from the basket. Appellant then passed through and set off the metal detector. Ms. Montes heard Appellant say Ashe=s with me,@ and the officer told her to stop. When asked what was in the package, Ms. Montes told the officer it contained legal papers, but she had never seen the inside of the package. Ms. Montes knew she was going to be arrested when they were stopped at the metal detector because when they entered the jail, Appellant mentioned to her that the package could get them into a lot of trouble. Ms. Montes did not leave when Appellant told her this because at that point she was already inside the jail and the officer told her to go in. She also stayed in line because she wanted to visit her husband. It did not occur to her to mention Appellant=s statement to the officers.

Contrary to Lieutenant Chairez=s testimony, Ms. Montes claimed that she and Appellant were left alone together in a room for a few minutes before they were separated for questioning. At that time, Appellant threatened her husband and told her to take the blame for the package. Ms. Montes was afraid to tell the officers about the threat. During questioning, Ms. Montes made up the story Detective Gil told in her testimony, except Ms. Montes said she told the story to a different detective.

DISCUSSION

Sufficiency of the Evidence

In two issues, Appellant challenges the legal and factual sufficiency of the evidence to sustain his conviction for possession of over 400 grams of cocaine. Specifically, Appellant asserts the State failed to prove beyond a reasonable doubt that he had knowledge that cocaine was inside the portfolio that he carried into the county jail.

Standards of Review

In reviewing the legal sufficiency of the evidence, we must view the evidence 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 v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991); Lucero v. State, 915 S.W.2d 612, 614 (Tex.App.--El Paso 1996, pet. ref=d). Instead, our duty is to determine whether if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. See Adelman, 828 S.W.2d at 421-22. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843.

In conducting a review of the factual sufficiency of the evidence, we view all the evidence in a neutral light, both for and against the verdict, to determine whether it demonstrates that the proof of guilt is so obviously weak as to undermine our 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); Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). We review the evidence supporting a fact in dispute and compare it to evidence tending to disprove that fact. Johnson, 23 S.W.3d at 6-7; Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832, 118 S. Ct. 100, 139 L. Ed. 2d 54 (1997). Although we are authorized to set aside the jury=s determination, we must give appropriate deference its determination and should not intrude upon the jury=s role as the sole judge of the weight and credibility given to evidence presented at trial. See Johnson, 23 S.W.3d at 7. We will set aside a verdict only where the evidence supporting guilt is so obviously weak or the contrary evidence so overwhelmingly outweighs the supporting evidence as to render the conviction clearly wrong and manifestly unjust. Ortiz v. State, 93 S.W.3d 79,87 (Tex.Crim.App. 2002), cert. denied, 123 S. Ct. 1901, 155 L. Ed. 2d 824 (2003). A jury=s verdict is not manifestly unjust merely because the fact finder resolved conflicting views of the evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997).

Possession of a Controlled Substance

In cases involving possession of a controlled substance, the State must prove beyond a reasonable doubt that the accused: (1) exercised care, custody, control or management over the contraband; and (2) knew the substance he possessed was contraband. See Tex.Health & Safety Code Ann. '' 481.115(a), 481.002(38)(Vernon 2003 & Vernon Supp. 2004); see also Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995); Menchaca v. State, 901 S.W.2d 640, 651 (Tex.App.--El Paso 1995, pet. ref=d). An affirmative link must be established between the accused and the contraband, demonstrating both that the accused had control over it and had knowledge of its existence and character. See Brown, 911 S.W.2d at 747; Menchaca, 901 S.W.2d at 651. Knowledge can be inferred from the conduct of and remarks by the accused and from circumstances surrounding the acts engaged in by the accused. Menchaca, 901 S.W.2d at 652.

In this case, Appellant entered the county jail with a black portfolio. Appellant was carrying the portfolio when he passed through the metal detector. Officer Baca observed Appellant with the portfolio and asked Appellant what it contained. Appellant told Officer Baca that it contained legal papers, but the portfolio was found to contain a black bundle, which officers later determined contained cocaine with a total gross weight of 1,080.6 grams. The contraband was found in Appellant=s exclusive physical possession. According to Ms. Montes, Appellant warned her that the package he was carrying could get them in a lot of trouble and later threatened to harm her husband if she did not take the blame. Based on this evidence the jury could reasonably infer that Appellant had control over the contraband and had knowledge of its existence and character. While Appellant offered contrary testimony as to who owned the portfolio, the jury as trier of fact and sole judge of the credibility of the witnesses was free to accept or reject all or part of his or other witnesses= testimony. See Jones, 944 S.W.2d at 647. After reviewing all the evidence in a neutral light, we conclude the evidence supporting guilt is not so obviously weak nor overwhelmingly outweighed by contrary proof as to render the conviction clearly wrong and manifestly unjust. Therefore, we conclude the evidence is both legally and factually sufficient for the jury to find, beyond a reasonable doubt, that Appellant knowingly and intentionally possessed 400 grams or more of cocaine. Issues One and Two are overruled.

Accordingly, we affirm the trial court=s judgment.

July 22, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)