Alfred Botello v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00846-CR
Alfred BOTELLO,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CR-3777
Honorable James E. Barlow, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: October 13, 2004

AFFIRMED AS MODIFIED

Alfred Botello was convicted of possession of 4 to 200 grams of cocaine with intent to deliver and sentenced as a repeat offender to 50 years imprisonment. On appeal, Botello argues that the evidence is factually insufficient (1) to support his conviction because the State failed to prove an affirmative link between Botello and some of the cocaine. We affirm the trial court's judgment as modified in this memorandum opinion under Tex. R. App. P. 47.4 because Botello's sole issue on appeal involves the application of well-settled principles of law.

Background

A confidential informant working with the San Antonio Police Department arranged for a drug deal to take place involving the confidential informant, an undercover police officer, and Botello. The undercover officer, Jeff Stewart, was seated in the passenger side of the vehicle that was driven by the confidential informant to the arranged meeting place. Stewart testified at trial that he observed Botello approach the vehicle as planned, reach into his pocket and pull out the top part of some plastic baggies. After giving the arrest signal, Stewart observed Botello drop two plastic baggies containing a white substance into the space between the driver's seat and the vehicle door. After Botello was handcuffed and placed under arrest, a search revealed a 35 mm film canister in his pants pocket that contained 11 plastic baggies, each of which contained small amounts of a white substance that the officer believed to be cocaine. All 13 baggies were seized and marked as evidence, along with the film canister and a business card also found on Botello's person that was believed to be a narcotics ledger. The arresting officer, David Berrigan, conducted a field test on the substance contained in one of the baggies recovered from the vehicle's floor board and one of the baggies found in Botello's pocket. Both substances field tested positive for cocaine. The baggies were then collectively stored in the narcotics evidence vault at the San Antonio Police Department. A specimen weighing 5.982 grams taken from one baggie was later tested by a chemist with a positive result for cocaine.

Analysis

In a factual sufficiency review, the appellate court conducts a neutral review of all the evidence giving deference to the jury's verdict and determinations of the witnesses' credibility. Zuniga v. State, No. 539-02, 2004 WL 840786 at *4 (Tex. Crim. App. April 21, 2004). "There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt?" Id. at *7. There are two ways in which the evidence may be factually insufficient: (1) when considered by itself, the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or (2) when there is evidence supporting the verdict and evidence contrary to the verdict, if after weighing all the evidence, the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id.

Botello argues on appeal that the evidence is factually insufficient to establish an affirmative link between him and the baggies of cocaine recovered from inside the vehicle because he was not in exclusive control of the vehicle or its contents. Texas courts have held that a field test alone is insufficient evidence on which to base a conviction. See, e.g., Curtis v. State, 548 S.W.2d 57, 59 (Tex. Crim. App. 1977)(noting that a field test alone is insufficient in a case in which the State failed to call the chemist who had conducted laboratory tests to prove the identity of the substance). Botello asserts that the laboratory test may have been completed on a specimen recovered from the vehicle floorboard rather than from his person. Therefore, the tested specimen was not sufficiently linked to Appellant, and his conviction should be overturned.

To support a conviction for possession of narcotics, the State must prove: (1) that the accused exercised care, control, and management over the substance; and (2) knowledge by the accused that the substance was contraband. Nunn v. State, 640 S.W.2d 304, 305 (Tex. Crim. App. 1982). If the accused was not in exclusive control over, or possession of, the area from which the contraband was seized, as is the case here, the State must show an affirmative link between the contraband and the accused. Puente v. State, 888 S.W.2d 521, 526 (Tex. App. - San Antonio 1994, no pet.)(citing Martin v. State, 753 S.W.2d 384, 386 (Tex. Crim. App. 1988)). The evidence used to establish an affirmative link may be either direct or circumstantial, and need only show that the accused's connection with the contraband was "more than just fortuitous." Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995) (en banc). This link need not be so strong, however, that it excludes every other reasonable hypothesis other than the accused's guilt; it must only be credible evidence from which the fact finder could find an affirmative link. Id. at 748.

In the present case, the evidence consisted of the following testimony: (1) Officer Stewart personally observed Botello pull baggies from his pocket and drop two baggies onto the floor board of the car during the transaction; (2) both the vehicle and the confidential informant were searched prior to the transaction and no contraband was present; (3) baggies resembling those Stewart had observed Botello dropping into the car were discovered on Botello's person immediately after his arrest; (4) field tests of the contents of both sets of baggies were positive for an amount of cocaine sufficient to support conviction of the charged drug quantity; and (5) laboratory tests of one of the baggies obtained at the scene were positive for cocaine. Botello presented no contrary evidence at trial regarding these points, but suggested a defensive theory as to how the cocaine may have ended up on the floor board of the car during cross-examination of the State's witnesses - i.e., that it may have been planted by the confidential informant during the transaction. However, Botello has cited no evidence in the record to support such an inference, and we find no such evidence.

Courts have identified numerous factors which may constitute affirmative links based on the facts of the case. Some of these factors that are present in this case include that Botello was present at the place where the cocaine was found, an officer saw Botello drop a baggie that tested positive for cocaine, the cocaine was found on the same side of the car as Botello, and other baggies of cocaine and drug paraphernalia were found on Botello's person. See Hurtado v. State, 881 S.W.2d 738, 743 n.1 (Tex. App. - Houston [1st Dist.] 1994, pet. ref'd)(providing a non-exhaustive listing of some of the factors that may establish affirmative links). We conclude there is factually sufficient evidence to support the jury's finding of an affirmative link between Botello and the cocaine sufficient to support his conviction. The record does not show that the evidence is too weak to support the finding of guilt beyond a reasonable doubt. Zuniga, 2004 WL 840786 at *7.

In addition, Botello correctly points out that the judgment erroneously indicates that he plead "true" to the enhancement provision based on a prior conviction. The reporter's record reflects that Botello in fact plead "not true" to the enhancement allegation. The appellate courts have the authority to modify the judgment of the trial court where the evidence necessary to correct the judgment appears in the record before it. Tex. R. App. P. 43.2 (b); see also French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). Accordingly, we order that the judgment be modified to correctly reflect that Botello plead "not true" to the enhancement.

For the foregoing reasons, Botello's issue on appeal is overruled and the judgment of the trial court is affirmed as modified.

Phylis J. Speedlin, Justice

Do Not Publish

1. Botello asserts that the evidence is both legally and factually insufficient, but only presents argument and authority as to factual sufficiency; accordingly, we only address the factual sufficiency point of error. Tex. R. App. P. 38.1(h).