Evangelista Cedeno v. The State of Texas--Appeal from 351st District Court of Harris County

Opinion issued August 2, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-01003-CR

____________

EVANGELISTA CEDENO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 1046772

MEMORANDUM OPINION

A jury found appellant, Evangelista Cedeno, guilty of the offense of possession with intent to deliver a controlled substance, namely cocaine, weighing at least 400 grams. (1) Pursuant to appellant's agreement with the State, the trial court assessed his punishment at confinement for forty years and a one-dollar fine. In four points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction.

We affirm.

Factual Background

Pasadena Police Department Officer D. Leal testified that on November 9, 2005, acting upon information that his department received from the Drug Enforcement Administration ("DEA"), he drove to the entrance of a small trailer park looking for a Hispanic male by the name of Evangelista, driving a white Ford Crown Victoria. Leal saw appellant arrive at the trailer park at 3:25 p.m. on a "clear and sunny" day. Appellant drove a white Ford Contour, which has a similar body style to that of a Ford Crown Victoria, parked at trailer number 222, and then walked to trailer number 220. Leal, who was approximately fifty feet from the car, saw that appellant was the sole occupant of the car. The registered owner of the car was Jacqueline Torres, who lived at trailer number 220.

Leal further testified that after a woman came out of trailer number 220, appellant then walked back to the car and began washing it. Appellant opened the trunk of the car, pulled out a box, went to the right rear passenger side of the car, and placed the box in the back seat of the car. During this time, appellant was "on the phone continuously." He appeared angry and was "waving his arms and talking in that kind of manner." Appellant then "waited, talked on the phone a little bit, pulled the box back out from inside the vehicle, and put it back in the trunk." Leal explained that appellant touched the box "maybe four to five times," and he found appellant's activities to be "very consistent" with narcotics trafficking. After appellant closed the trunk, he "waited 10, 15 minutes and reopened the trunk, rearranged some stuff inside and closed it again." After he received one last phone call, appellant drove off in the car. Leal explained that appellant was at the trailer park for about one hour, and it "[l]ooked like he was actually waiting for somebody."

Pasadena Police Department Officer R. Garivey testified that he was asked to conduct a traffic stop of the white Ford Contour. After Garivey saw that the right taillight was not functioning, he activated his emergency equipment, stopped the car, made contact with appellant, and told appellant why he had been stopped. Garivey explained that appellant was cooperative. When Garivey asked for appellant's driver's license, he noticed that appellant was "extremely nervous" and "shaking" as he handed over his driver's license. Garivey then asked appellant to exit the car and showed appellant the malfunctioning taillight. Garivey asked appellant where he was driving from, and because appellant began "moving around a lot" and "sweating," he could tell that appellant was "extremely nervous." Appellant said that he was coming from a friend's house and was going fishing, but no fishing equipment was found in appellant's car. Appellant signed a consent form in Spanish to search the car. (2)

After searching the interior of the car, Officer Garivey opened the trunk and "saw what appeared to be a gray Sketcher[s] brand shoe bag and it contained like a brownish cardboard box." Appellant told Garivey that he did not know what was inside the box. Garivey "pulled the box out to look in, at which time [he] noticed what appeared to be . . . bricks of cocaine." The box was not taped or sealed and "was just folded over" inside of the gray Sketchers bag. After Garivey pulled the box out of the bag, he counted five bricks of cocaine. However, Garivey did not find any other narcotics, narcotics paraphernalia, or cash inside the car, and appellant indicated that he was surprised that cocaine was found inside the trunk. Based on his experience, Garivey did not believe that the amount of cocaine found was for personal use, but rather would be used to be sold for profit.

Pasadena Police Department Officer J. Wright testified that when he arrived at the city jail, Officer Garivey directed him to a box containing "five brick-like white, off-white brick substances. Four of them were wrapped in a real heavy cellophane and one was just actually clear, clear white." Wright "recognized that this is common as to how kilograms of cocaine are packaged and transported" and indicated that the amount of cocaine recovered was "well beyond personal use" and was for "distribution." The cocaine weighed approximately five kilograms, with a street value between $500,000 and $750,000. Wright explained that such an amount "is well beyond personal use quantity" and "would definitely be for delivery, being the way it was packaged and everything else with it there." Wright further testified that while at the police station after being arrested, appellant's demeanor was "very agitated and very uncooperative and almost combative."

Claudia Busby, a forensic chemist and quality manager at the Pasadena Police Department Crime Laboratory, testified that she received "five brick packages of white powder," weighing approximately 4.8 kilograms. Her testing of the substance indicated the presence of "approximately 88 percent pure cocaine hydrochloride." Pasadena Police Department Officer K. Ginther testified that he was not able to gather any useable fingerprints off of the bricks of cocaine or the cardboard box. Ginther recovered one useable print from the plastic bag, but was unable to match the fingerprint.

Standard of Review

We review the legal sufficiency of the evidence by viewing 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. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We note that the trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We note that a jury is in the best position to evaluate the credibility of witnesses, and we are required to afford "due deference" to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).

Knowingly in Possession

In his first and second points of error, appellant argues that the evidence is legally and factually insufficient to prove that he knowingly possessed the cocaine because (1) "the drugs were not in plain view, nor was there evidence that [appellant] ever looked into the closed box"; (2) appellant "was not the owner of the white Contour"; (3) "[t]he contraband was not found on the driver's side of the car"; (4) "the place where the drugs were found was not enclosed, in the sense of hidden"; (5) "there was no odor of drugs present"; (6) "there was no paraphernalia of any kind"; (7) appellant's "conduct in cooperating with the officers and signing the consent to search form did not indicate any consciousness of guilt"; (8) appellant "did not appear to be under the influence of cocaine, or any other substance"; (9) "there were no conflicting statements about ownership of the property involved"; (10) appellant "did not appear to be under the influence of cocaine, or any other substance"; (11) "[n]othing [appellant] said connected him to the cocaine"; (12) "[n]o traces of cocaine were found on or near him"; and (13) "[n]o large sum of money was found." Appellant asserts that he "was never seen touching the contents of the bag and box, nor reaching within it, nor even looking in it."

A person commits an offense if he knowingly or intentionally possesses, with intent to deliver, cocaine in an amount of 400 grams or more by aggregate weight, including any adulterants or dilutants. Tex. Health & Safety Code Ann. 481.102(3)(D) (Vernon Supp. 2006), 481.112(a), (f) (Vernon 2003). To establish unlawful possession with the intent to deliver a controlled substance, the State must show that a defendant (1) exercised care, custody, control, or management over the controlled substance; (2) knew that he possessed a controlled substance; and (3) had the intent to deliver the controlled substance. See id. 481.002(38) (Vernon Supp. 2006), 481.112(a) (Vernon 2003); see also Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005).

The State may prove that a defendant knowingly possessed contraband by offering circumstantial evidence affirmatively linking him to the contraband. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). The State need not show that the defendant exercised exclusive control over the controlled substance, but, when the defendant does not have exclusive control, the State must show additional affirmative links between the defendant and the contraband. Cedano v. State, 24 S.W.3d 406, 411 (Tex. App.--Houston [1st Dist.] 2000, no pet.). The affirmative links must raise a reasonable inference that the defendant knew of and controlled the contraband. Dickerson v. State, 866 S.W.2d 696, 700 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd). Affirmative links are established when the evidence, direct or indirect, establishes that the accused's connection with the narcotics was more than just fortuitous. Parker v. State, 192 S.W.3d. 801, 805 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd).

Factors that may be considered to establish affirmative links include (1) the defendant's presence when the search was executed; (2) whether the narcotics were in plain view; (3) the defendant's proximity to and accessibility of the narcotics; (4) whether the defendant was under the influence of narcotics when arrested; (5) the defendant's possession of other narcotics when arrested; (6) the defendant's incriminating statements; (7) the defendant's attempted flight; (8) the defendant's furtive gestures; (9) the presence of an odor of the narcotics; (10) the presence of other narcotics or narcotics paraphernalia; (11) the defendant's ownership or right to possession of the place where narcotics were found; and (12) whether the narcotics were found in an enclosed place. Williams v. State, 859 S.W.2d 99, 101 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd). Despite this list of factors, there is no set formula necessitating a finding of an affirmative link; rather, affirmative links are established by the totality of the circumstances. Sosa v. State, 845 S.W.2d 479, 483 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd). It is not the number of factors present that is important, but rather the "logical force" that they create to prove that a defendant knowingly possessed the controlled substance. Parker, 192 S.W.3d. at 805. Here, viewing the evidence in a light most favorable to the verdict, Officer Leal testified that he was looking for a Hispanic male driving a white Ford Crown Victoria when he spotted appellant driving a white Ford Contour, described as having a similar body style to that of a Crown Victoria. Although appellant was not the registered owner of the car, during both Officer Leal's surveillance and Officer Garivey's subsequent traffic stop and search of the car, appellant was the only person who accessed the car and, thus, had access to the narcotics. Officer Leal saw appellant move the box containing the cocaine from the trunk to inside the car and touch the box "maybe four to five times." When he pulled the box containing the cocaine out of the gray Sketchers bag, Officer Garivey saw that the box was not taped or sealed, and he was able to see the bricks of cocaine in the box. From inside the box, officers recovered 4.8 kilograms of "88 percent pure cocaine hydrochloride," with a street value in excess of $500,000. Although appellant told Garivey that he was going fishing, no fishing equipment was found inside the car. Additionally, Garivey stated that appellant was "extremely nervous" during the traffic stop and subsequent search. We conclude that a rational trier of fact could have found, beyond a reasonable doubt, that appellant knowingly possessed the cocaine. Accordingly, we hold that the evidence is legally sufficient to establish that appellant knowingly possessed the cocaine.

Viewing the evidence neutrally, it is true that Officer Garivey testified that appellant was cooperative and signed a consent form to search the car. Appellant told Officer Garivey that he did not know what was inside the box, and no other narcotics, narcotics paraphernalia, or cash was found inside the car. Additionally, no fingerprints matching that of appellant were recovered from the bricks of cocaine or the cardboard box. However, although appellant was not the registered owner of the car, he was in sole possession of the car at the time of the surveillance and the traffic stop. In light of the above evidence supporting the jury's verdict, we conclude that the evidence is not so obviously weak such that the verdict is clearly wrong and manifestly unjust, or that the proof of guilt is against the great weight and preponderance of the evidence. Accordingly, we hold that the evidence is factually sufficient to establish that appellant knowingly possessed the cocaine.

We overrule appellant's first and second points of error.

Intent to Deliver

In his third and fourth points of error, appellant argues that the evidence is legally and factually insufficient to prove that he intended to deliver the cocaine because (1) "[a]s to the nature of the place where [appellant] was arrested, he was arrested in broad daylight driving down a Harris County two-lane street"; (2) "there was nothing unusual about the manner of packaging"; (3) "no drug paraphernalia was found"; (4) appellant "was not found to be in possession of a large amount of cash"; and (5) "there was no evidence that he was a dealer as opposed to a user, except for the quantity of drugs themselves." Appellant asserts that the State failed to prove that he "knew there was contraband in his car," and that because "he was not the owner of the car, it cannot be concluded that [he] had knowledge of and control over the substance." Appellant notes that he "was never seen touching the contents of the bag and box, nor reaching within it, nor even looking in it."

Intent to deliver a controlled substance may be proved by circumstantial evidence. Williams v. State, 902 S.W.2d 505, 507 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd). Factors courts have considered include (1) the nature of the location at which the defendant was arrested; (2) the quantity of controlled substance in the defendant's possession; (3) the manner of packaging; (4) the presence of drug paraphernalia (for either drug use or sale); (5) the defendant's possession of large amounts of cash; and (6) the defendant's status as a drug user. Id. The number of factors present is not as important as the "logical force" the factors have in establishing the elements of the offense. Moreno v. State, 195 S.W.3d 321, 326 (Tex. App.--Houston [14th Dist.] 2006, pet. ref'd). Expert testimony by experienced law enforcement officers may be used to establish an accused's intent to deliver. Id.

Here, officers recovered 4.8 kilograms of "88 percent pure cocaine hydrochloride" with a street value possibly in excess of $500,000. Officer Leal testified that appellant's observed activities were very consistent with those associated with narcotics trafficking. Officer Wright testified that, based on the packaging of the narcotics and the quantity of narcotics recovered, the narcotics were being used for distribution and not merely personal use.

Viewing all the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found, beyond a reasonable doubt, that appellant intended to deliver the cocaine. Furthermore, viewing the evidence neutrally, we conclude that the evidence is not so obviously weak such that the jury's verdict is "clearly wrong and manifestly unjust" or that the proof of guilt is against the great weight and preponderance of the evidence. Accordingly, having held that the evidence is legally and factually sufficient to establish that appellant knowingly possessed the cocaine, we further hold that the evidence is legally and factually sufficient to establish that appellant intended to deliver the cocaine.

We overrule appellant's third and fourth points of error.Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Taft, Jennings, and Alcala.

Do not publish. Tex. R. App. P. 47.2(b).

1. See Tex. Health & Safety Code Ann. 481.102(3)(D) (Vernon Supp. 2006), 481.112 (a), (f) (Vernon 2003).

2. Garivey testified that appellant "spoke mainly Spanish." Garivey also speaks Spanish and believed that appellant understood what he was saying.