Araceli Agustina Osornio v. The State of Texas--Appeal from Criminal District Court No. 3 of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Araceli Agustina Osornio

Appellant

Vs. No. 11-03-00106-CR Appeal from Dallas County

State of Texas

Appellee

The jury convicted Araceli Agustina Osornio of possession of a controlled substance, cocaine. The trial court assessed her punishment at 5 years confinement and a $2,000 fine. The trial court suspended imposition of the confinement portion of the sentence and placed appellant on community supervision for 5 years. We affirm.

In her first and second issues on appeal, appellant argues that the evidence is legally and factually insufficient to support her conviction. In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). We review the fact finder s weighing of the evidence and cannot substitute our judgment for that of the fact finder. Cain v. State, supra; Clewis v. State, supra. Due deference must be given to the jury s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000); Jones v. State, 944 S.W.2d 642 (Tex.Cr.App.1996), cert. den d, 522 U.S. 832 (1997). This court has the authority to disagree with the fact finder s determination only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice. Johnson v. State, supra at 9.

Officer Ruben Felan with the Dallas Police Department testified that on May 16, 2002, he was working undercover at Chicas Loca s strip club. The Dallas Police Department had received numerous complaints that the club was involved in prostitution. Officer Felan testified that, when he and his partner arrived at the club, his partner was approached by a lady who performed a table dance for $20. The dance did not involve any physical contact between the dancer and the officer. The dancer informed the officers that, if they wanted more, they would have to go upstairs to the VIP room. In order to go the VIP room, the officers had to purchase a bottle of champagne.

Officer Felan testified that he and his partner and two dancers went to the VIP room. The dancers asked if the officers wanted table dances. The officers agreed. Officer Felan said that this time there was physical contact with the dancers. Officer Felan asked one of the dancers if she performed sexual acts. The dancer agreed, but then had to leave to dance on stage. Appellant then approached Officer Felan and asked if he would like a dance.

Officer Felan testified that appellant was wearing a black teddy and a G string. Officer Felan stated that appellant began to dance and that she took off the top of the teddy. Officer Felan further testified that, while dancing, appellant would grab [his] genitals and rub his face with her breasts. Officer Felan asked appellant whether she had sex with clients from the club while at the club. Appellant said that she did. Officer Felan asked appellant how much she would charge; but, before she could answer, uniformed officers came into the room. Appellant was arrested for public lewdness.

Officer Antonio Aleman with the Dallas Police Department testified that, at the time of the offense, he was working backup for the undercover officers. Officer Aleman said that, when instructed to do so, he and his partner, Officer Mark J. Markulec, went upstairs to the VIP room of the club. Officer Aleman said that he placed appellant under arrest and asked her for identification. Appellant said that her identification was in her purse and that her purse was in the locker room. Officer Aleman escorted appellant to the locker room. Appellant s purse was in her locker, and the locker did not have a lock on it. Officer Aleman retrieved the purse from the locker, and appellant identified the purse as belonging to her. Officer Aleman took appellant s identification from her wallet and then put her wallet back in her purse. Officer Aleman was going to put appellant s purse back and leave it there, but appellant insisted on taking her purse with her. Officer Aleman told appellant she would have to leave her purse, and again she insisted on taking the purse. The officers allowed appellant to take her purse.

The officers took appellant to the squad car. Officer Markulec searched appellant s purse pursuant to her arrest. Officer Markulec testified that at the bottom of the purse, he found a clear bag which contained what he believed to be cocaine and a one dollar bill rolled up into a hollow cylinder which also contained white powdery substance. Officer Markulec also found a green leafy substance in the purse.

Appellant testified at trial that, at the time of the offense, she was working as a dancer at Chicas Loca s. Appellant said that she danced two table dances for Officer Felan in the VIP room. Appellant denied touching Officer Felan. Appellant testified that, after she was arrested, the officers agreed to let her change clothes and that they took her to the locker room. Appellant said that her identification was in her purse, that she took her identification from her purse, and that she gave her identification to the officer. Appellant testified that she did not ask to take her purse with her. Appellant further testified that she did not know there was cocaine in her purse. Appellant stated that a lot of the girls who work at the club use drugs and that sometimes they misplace their things. Appellant said that she did not use cocaine or marihuana.

Appellant specifically argues that the evidence is legally and factually insufficient to show that she knowingly or intentionally possessed the cocaine. In order to prove unlawful possession of a controlled substance, the State must show that the defendant exercised care, custody, and control of the substance and that she knew the substance was contraband. King v. State, 895 S.W.2d 701, 703 (Tex.Cr.App.1995). If the accused was not in exclusive possession of the contraband, the State is required to present evidence affirmatively linking the accused to the contraband. Brown v. State, 911 S.W.2d 744, 748 (Tex.Cr.App.1995). Affirmative links may be established by facts and circumstances that indicate the accused s knowledge of and control over the contraband, including whether the contraband was in open or plain view, whether it was in close proximity to the accused, whether the accused was the owner of the place where the contraband was found, and whether other contraband or drug paraphernalia was present. See Taylor v. State, 106 S.W.3d 827 (Tex.App. - Dallas 2003, no pet n); Linton v. State, 15 S.W.3d 615 (Tex.App. - Houston [14th Dist.] 2000, pet n ref d).

The record shows that the cocaine was found in appellant s purse and that the purse was located in appellant s locker. Appellant identified the purse as belonging to her. Appellant s wallet containing her identification was located inside of the purse. The cocaine was found on the bottom of appellant s purse. Appellant s purse also contained marihuana and a one dollar bill rolled up into a cylinder with white powdery residue on it. Viewing all of the evidence in the light most favorable to the verdict, the evidence established sufficient affirmative links between appellant and the cocaine. We do not find that the verdict is so contrary to the overwhelming weight of evidence as to be clearly wrong and unjust. Appellant s first and second issues on appeal are overruled.

In her third issue on appeal, appellant contends that the standard of review for factual sufficiency challenges is quixotically more demanding than the standard of review for legal sufficiency challenges. Appellant complains that requiring an appellant to prove that the verdict is manifestly unjust, shocks the conscience, or clearly demonstrates bias is more demanding than the standard for reviewing legal sufficiency challenges. Appellant argues that, when reviewing factual sufficiency challenges, appellate courts should review the evidence in a neutral light and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Appellant further argues that appellate courts should not defer to the jury s determinations of the weight and credibility of the evidence.

The Court of Criminal Appeals has determined that, in reviewing challenges to the factual sufficiency of the evidence, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, supra at 236; Goodman v. State, supra; Cain v. State, supra; Clewis v. State, supra. The Court of Criminal Appeals has further mandated that due deference must be given to the jury s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, supra; Jones v. State, supra. We are required to follow the binding precedent established by the Court of Criminal Appeals. See Duckworth v. State, 89 S.W.3d 747 (Tex.App. - Dallas 2002, no pet n); see also State v. Stevenson, 993 S.W.2d 857 (Tex.App. - Fort Worth 1999, no pet n). Appellant s third issue on appeal is overruled.

The judgment of the trial court is affirmed.

JIM. R. WRIGHT

JUSTICE

December 11, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.