Edward August Gerken, Jr. v. The State of Texas--Appeal from 365th Judicial District Court of Maverick County

No. 04-98-00054-CR
Edward August GERKEN, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 365th Judicial District Court, Maverick County, Texas
Trial Court No. 95-08-04443-CR
Honorable Amado Abascal, III, Judge Presiding

Opinion by: Alma L. L pez, Justice

Sitting: Alma L. L pez, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: November 4, 1998

AFFIRMED The question before the Court is whether the trial court erred in denying Appellant's, Edward August Gerken, Jr., motion for directed verdict after the Appellee, the State of Texas, had rested her case-in-chief. For the reasons stated in this opinion, we affirm.

FACTUAL BACKGROUND

Gerken arrived at the Eagle Pass port of entry from Mexico driving a late model Ford LTD on April 7, 1995. When he approached the primary checkpoint at the port of entry, Gerken was waving a liqueur bottle with his left hand out of the car window, while driving with his right hand. Gerken was very talkative. He began asking where he would have to pay the tax for the bottle of liqueur. He stated that he had been in Mexico for only two hours after driving from Houston. The primary checkpoint customs inspector was concerned by Gerken's nervous demeanor and the fact that he had driven all the way from Houston only to visit Piedras Negras, Mexico for a couple of hours.

The customs inspector directed Gerken to a secondary checkpoint. Gerken began telling the secondary customs inspector that he worked and was a patient at the Veterans Administration Hospital. Gerken also confided to the inspector that he had recently purchased the car he was driving by paying $500. Gerken continued by informing the inspector that he still owed $500 on the vehicle. While inspecting Gerken's vehicle, the customs inspector noticed that the bolts of the gas tank and the area by the gas tank were covered with mud. Upon removing the mud, the inspector noticed scratch marks around the bolts of the gas tank.

Upon further investigation, the inspector summoned a canine customs inspector. The canine customs inspector is trained to search for contraband with a canine. While conducting a canine inspection of Gerken's vehicle, the dog immediately alerted the inspectors to the gas tank of the vehicle. Gerken was patted down by the inspectors to ensure that he did not have any weapons or other contraband on his person. A fiber-optic scope was used to examine the gas tank. A hidden compartment was discovered inside the gas tank. The hidden compartment contained 52 pounds of a green leafy substance, which tested positive as marijuana. Gerken was indicted for second degree felony possession of marijuana. See Tex. Health & Safety Code Ann. 481.121 (a)(b)(5) (Vernon Supp. 1998). Gerken was found guilty of the offense charged in the indictment and the jury assessed punishment at imprisonment for 10 years and imposed a fine of $10,000.00, with a recommendation that Gerken be placed on community supervision. Gerken is appealing this conviction and sentence.

STANDARD OF REVIEW

An appellate court must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 US. 307, 319 (1979); Little v. State, 758 S.W.2d 551, 562 (Tex. Crim. App.), cert. denied, 488 U.S. 934 (1988). The standard for reviewing the sufficiency of the evidence on appeal is the same for direct and circumstantial evidence cases. See Alexander v. State, 740 S.W.2d 749, 757-758 (Tex. Crim. App. 1987). An appellate court does not sit as a thirteenth juror, nor may it substitute its judgment for that of the jury. Rather, the jury is the sole judge of the credibility of the witnesses and the weight given to the testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). The State bears the burden of proving beyond a reasonable doubt that the defendant's conduct does not fall within an exception. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The appellate court must review the sufficiency of the evidence by comparing the evidence with the indictment as incorporated into the charge. See Benson v. State, 661 S.W.2d 708, 715 (Tex. Crim. App. 1982) (op. on reh'g), cert. denied, 467 U.S. 1219 (1984); Garrett v. State, 749 S.W.2d 784, 788 (Tex. Crim. App. 1986). The State must prove the allegations beyond a reasonable doubt. Mr. Gerken has the burden to prove an affirmative defense by a preponderance of evidence.

DISCUSSION

Gerken argues that the trial court committed reversible error in denying the Appellant's motion for an instructed verdict. Gerken contends that the State's case-in-chief offered insufficient evidence under the pleadings to raise an issue to go to the jury. In order to meet its burden the State must prove Gerken exercised actual care, control and management over the contraband, and had knowledge that the substance in his possession was contraband. See King v. State, 895 S.W.2d 701, 705 (Tex. Crim. App. 1995).

A person commits an offense if he knowingly or intentionally possesses a usable quantity of marijuana. See Tex. Health & Safety Code Ann. 481.121 (Vernon Supp. 1998); Lejeune v. State, 538 S.W.2d 775, 777 (Tex. Crim. App. 1976). The elements of the offense of possession of marijuana are (1) a person (2) did knowingly or intentionally (3) possess (4) a usable quantity of (5) marijuana (6) in the required amount as set forth in statute.

Gerken arrived alone at the port of entry driving a Ford LTD, which he told the customs inspector he had recently purchased in Houston. Gerken had come from Houston and had been in Mexico for at least two hours prior to the inspection of his vehicle. This would ascertain Gerken's ownership of the vehicle. Gerken was in possession of the marijuana by virtue of his driving the vehicle. The gas tank had been tampered with and the marijuana took the majority of the space in the fuel tank. One could reasonably infer that Gerken was aware of the condition of the gas tank and its cargo. He would have had to refuel to reach any destination, since the 52 pounds of marijuana took up most of the space in the gas tank.

We find that the facts and circumstances were sufficient to permit a rational factfinder to draw reasonable inferences leading to the conclusion that Gerken knew he possessed marijuana. See Brown v. State, 911 S.W.2d 744, 746-748, (Tex. Crim. App. 1995); Haynes v. State, 475 S.W.2d 739, 742 (Tex. Crim. App. 1971).

CONCLUSION

Appellant's point of error is overruled and the judgment is affirmed.

Alma L. L pez, Justice

DO NOT PUBLISH

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