Amalia Guerrero v. The State of Texas--Appeal from 34th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

AMALIA GUERRERO, )

) No. 08-04-00177-CR

Appellant, )

) Appeal from the

v. )

) 34th District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20040D02024)

)

O P I N I O N

Amalia Guerrero appeals her jury conviction for unlawful possession of cocaine with intent to deliver, over 400 grams. The trial court assessed punishment at 15 years= imprisonment. On appeal, she challenges the legal and factual sufficiency of the evidence to sustain her conviction. We affirm.

On March 23, 2004, El Paso Police Detectives Ruben Cardenas and Barry Alvarez were surveilling a south El Paso bus station for drug trafficking. Detective Cardenas noticed a black pickup truck pull into the parking lot with three passengers, a young Hispanic male driver, the Appellant in the center, and an older Hispanic male sitting on the right passenger side. After watching the driver and the Appellant for about twenty minutes, Detective Cardenas became suspicious of the two and decided to confront them as they waited in a line to board a bus to Kansas City.

Detective Cardenas identified himself as a police officer. He began asking Appellant questions about her trip plans and her answers were inconsistent. He also noticed that her shirt appeared to be too big for her size. He suspected that Appellant was wearing baggy clothing to conceal packages of narcotics. The detective then asked Appellant if she would consent to a search of her luggage. Appellant consented to the search and, at trial, the detective could not remember exactly what the luggage contained, but thought it contained only a blanket.

Finally, Detective Cardenas asked Appellant if she had any drugs or weapons and she told him that she did not. He then asked her if she could lift her outer shirt so that he could see the shirt she was wearing underneath. After Appellant complied with his request, he asked her to unbutton the first two or three buttons of her shirt and lift it. Detective Cardenas then noticed what appeared to be a girdle strapped to Appellant=s waist. He then asked Appellant to move her shirt aside and he noticed a black object strapped to the side of her waist, which he suspected to be narcotics. Appellant was taken to the central police station for a further search by a female officer. At the station, two rectangular bundles weighing approximately five pounds were removed from Appellant=s waist. A field test confirmed the bundles contained cocaine.

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, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Hernandez v. State, 946 S.W.2d 108, 110-11 (Tex.App.--El Paso 1997, no pet.). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witness, 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). 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 reviewing the factual sufficiency of the evidence, we must determine whether considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence can be factually insufficient if the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt, or contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484-55. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). We will not set aside the judgement unless the evidence supporting the verdict is so weak as to be clearly wrong and manifestly unjust. Zuniga, 144 S.W.3d at 481. A clearly wrong and manifestly unjust verdict occurs where the jury=s finding Ashocks the conscience@ or Aclearly demonstrates bias.@ Id. An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the Appellant=s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

A person commits an offense if the person knowingly manufactures, delivers, or

possesses with intent to deliver a controlled substance listed in Penalty Group 1. Tex.Health & Safety Code Ann. ' 481.112(a)(Vernon 2003). An offense under Subsection (a) is a felony of the first degree if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 400 grams or more. Id. at ' 481.112(f).

Appellant concedes that the evidence was sufficient to support the finding of possession, but challenges the sufficiency of the evidence supporting the finding of intent to deliver, arguing that she was only holding the cocaine for another and did not have the requisite intent to deliver.

Intent is a question of fact to be determined by the trier of fact. Ingram v. State, 124 S.W.3d 672, 676 (Tex.App.--Eastland 2003, no pet.). Intent to deliver can be proven by circumstantial evidence, such as: (1) the amount of the controlled substance possessed; (2) the manner in which it was possessed; (3) the manner of packaging; (4) the nature of the location where the defendant was arrested; (5) the presence or absence of drug paraphernalia (for use or sale); (6) the amount of cash the defendant possessed in addition to the drugs; and (7) the defendants status as a drug user. See Williams v. State, 902 S.W.2d 505, 507 (Tex.App.--Houston [1st Dist.] 1994, pet. ref=d); Jordan v. State, 139 S.W.3d 723, 726 (Tex.App.--Fort Worth 2004, no pet.). Expert testimony by experienced law enforcement officers may be used to show an accused=s intent to deliver. See Mack v. State, 859 S.W.2d 526, 529 (Tex.App.--Houston [1st Dist.] 1993, no pet.); Branch v. State, 833 S.W.2d 242, 244-45 (Tex.App.--Dallas 1992, pet. ref=d). A large quantity of drugs accompanied by an experienced officer/expert testimony alone can be sufficient to show an intent to deliver. Pitts v. State, 731 S.W.2d 687, 691 (Tex.App.--Houston [1st Dist.] 1987, pet. ref=d).

Viewing the evidence in the light most favorable to the verdict, the evidence shows that Appellant was apprehended while attempting to board a bus bound for Kansas City with two bundles of cocaine, weighing 2.09 kilograms, or approximately 4.6 pounds, secured by a girdle strapped around her mid-section. John Janczak, a criminalist with the Texas Department of Public Safety Field Crime Lab, testified that the cocaine tested 78 percent pure.

Detective Cardenas testified that El Paso was a major source of narcotics for the United States and Appellant=s destination, Kansas City, was a Ademand city@ for these narcotics. According to Detective Cardenas, an amount for personal use would only be a gram or less and Appellant was carrying 2.09 kilograms (approximately 2,000 grams). He also stated that only a person who had built up a level of trust with an organization or seller would be able to purchase two kilograms of cocaine and a first-time buyer would find it Aimpossible or pretty close to impossible@ to buy such a large amount.

Detective Alvarez, who assisted Detective Cardenas during the arrest, testified that it would take an individual several years to use two kilograms of cocaine without overdosing. He also stated that a distributor would deal in larger amounts from a couple of ounces to kilograms while a user dealt locally in smaller amounts ranging from one gram to a couple of ounces. He also testified that drugs typically flow from a source city to a demand city. Finally, Appellant gave the officers no information about her male travel companion which would implicate him as having any relationship to the cocaine and both individuals denied knowing each other or having any kind of prior relationship. We conclude that a rational finder of fact could have found Appellant possessed the requisite intent to deliver the cocaine beyond a reasonable doubt.

In her factual insufficiency complaint, Appellant claims that the evidence only shows she was holding the cocaine for her male companion. Appellant argues that Detective Cardenas admitted Appellant was Ajust a mule who was carrying the drugs from Point A to Point B.@ However, while the record shows Detective Cardenas did testify as to his understanding of the term Amule,@ he never Aadmitted@ that Appellant=s role was relegated to that of an unknowing mule. Appellant also directs our attention to certain statements by Detective Cardenas in his testimony to support her contention. First, Detective Cardenas stated that as Appellant approached the bus, her male companion pointed Aas if directing her where to walk to and how to approach the bus.@ Second, Appellant asked her male companion if she should place her luggage beneath the bus. Third, Detective Cardenas believed that Appellant=s male companion was involved, but he could not prove it. Finally, Appellant points out that Detective Cardenas stated that it was possible that Appellant=s male companion was accompanying Appellant to Atak[e] care of his investment.@ Appellant claims that this evidence shows that she was only holding the cocaine for her male companion and that he, not her, would have actually delivered the cocaine. Although Appellant was accompanied by a male traveler, there was no evidence, other than speculation by Officer Cardenas, linking him to the cocaine. In fact, Appellant told Detective Cardenas she had only recently met her male companion after he stopped to give her a ride to the bus station. At best, the evidence tends to show that additional parties were involved rather than negating Appellant=s role in the transaction. After a neutral review of all of the evidence, we conclude that the evidence supporting the verdict is not too weak to support the guilty finding beyond a reasonable doubt nor so contrary to the verdict as to be clearly wrong and unjust. Accordingly, we conclude the evidence was both legally and factually sufficient to sustain the conviction. Issues One and Two are overruled.

The trial court=s judgment is affirmed.

October 20, 2005

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)