Thomas Enrique Gutierrez v. The State of Texas--Appeal from 218th Judicial District Court of Frio County

MEMORANDUM OPINION

No. 04-05-00883-CR and 04 -05-00884-CR

Thomas Enrique GUTIERREZ,

Appellant

v.

The STATE of Texas ,

Appellee

From the 218th Judicial District Court, Frio County, Texas

Trial Court Nos. 04-08-00093-CRF & 04-08-00094-CRF

Honorable Donna S. Rayes , Judge Presiding

Opinion by: Rebecca Simmons , Justice

Sitting: Sandee Bryan Marion , Justice

Phylis J. Speedlin , Justice

Rebecca Simmons , Justice

Delivered and Filed: October 11, 2006

AFFIRMED

Appellant Thomas Gutierrez was convicted by a jury of possession of cocaine with intent to deliver and possession of methamphetamine. The jury assessed punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for twenty years and five years respectively. In his two points of error, Gutierrez claims the jury's findings were based on legal and factual insufficiency of the evidence. Because the evidence is both legally and factually sufficient to support Gutierrez's possession of cocaine with intent to deliver and possession of methamphetamine, we affirm the judgments of the trial court.

Factual Background

On the evening of December 13, 2003, Officer Doug Phillips of the Department of Public Safety Texas Regional Narcotics Task Force stopped a vehicle driven by Hector Gandara in violation of the Texas Transportation Code. The vehicle had an unsecured spare tire, dangerously close to the road, and an expired registration. See Tex. Transp. Code Ann. 547.004(a)(2) and 502.002(a)(1) (Vernon 1999). Appellant Thomas Gutierrez was a passenger in the vehicle. The officer immediately noticed that Gandara appeared extremely nervous. Specifically, Officer Phillips noted Gandara's lips and voice trembled, he moved his hands in and out of his pockets, the muscles around his eyes twitched, and he glanced at the back of the vehicle when Officer Phillips inquired about illegal substances. Gutierrez also appeared nervous, took rapid and shallow breaths and repeatedly avoided eye contact with the officer.

After obtaining verbal consent to conduct a search, Officer Phillips discovered a plastic bag and a pill bottle from the front of the vehicle, both containing a white powdery residue. He also noted white powdery residue on the front floor. Upon examination of the rear compartment, Officer Phillips uncovered a knotted t-shirt bundle containing double-bagged cocaine weighing more than eighty-five grams, fifteen grams of marihuana, four methamphetamine pills, several small plastic bags, and a set of scales. Both Gutierrez and Gandara were given their Miranda rights and taken into custody. The next morning, after being given his Miranda rights again by Officer Joel Arrellano, Gutierrez provided a voluntary written statement in which he admitted ownership of the drugs.

Gutierrez was convicted by a jury for possession of cocaine with intent to deliver and possession of methamphetamine and sentenced to confinement in the Institutional Division of the Texas Department of Criminal Justice for twenty years and five years respectively.

Standard of Review

Gutierrez contends that the evidence is legally and factually insufficient to support his convictions. In determining the legal sufficiency of the evidence, we follow the standard of Jackson v. Virginia, 443 U.S. 307, 319 (1979), and consider the evidence in the light most favorable to the challenged finding to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and how much weight to give to their testimony. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998); see also Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994).

When factual sufficiency of the evidence is challenged, we consider all of the evidence, both in support of and contrary to the finding, and uphold the verdict unless it is so weak as to undermine confidence in the jury's determinations. See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004); see also Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (citing Stone v. State 823 S.W.2d 375, 381 (Tex. App.--Austin, pet. ref'd, untimely filed). In other words, the verdict will be upheld unless it is clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).

Analysis

Gutierrez asserts that the evidence is insufficient to support his convictions of possession of cocaine with intent to deliver and possession of methamphetamine. When an accused is charged with unlawful possession of a controlled substance, the prosecution must prove: 1) that the accused exercised care, control and management over the contraband, and 2) that the accused knew the matter possessed was contraband. Martin v. State, 753 S.W.2d 384, 386 (Tex. Crim. App. 1988). Possession need not be exclusive, but can be jointly exercised with other persons. Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). In cases of possession with intent to deliver, the State must establish, in addition to possession, that the accused had the intent to distribute. See Hawkins v. State, 687 S.W.2d 48, 50 (Tex. App.--Dallas 1985. pet. ref'd) (citingUnited States v. Gonzales, 700 F.2d 196, 204 (5th Cir. 1983)); see also Tex. Pen. Code Ann. 1.07 (a)(39) (Vernon 2006).

A. Possession Of A Controlled Substance.

When the contraband is not found on the accused's person or is not in his exclusive possession, additional facts must affirmatively link the accused to the contraband in order to support a conviction of possession of a controlled substance. See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). Circumstances that may link a defendant to the controlled substance include: 1) presence when the search was executed; 2) contraband in plain view; 3) proximity to and accessibility of the contraband; 4) defendant under the influence of contraband when arrested; 5) defendant's possession of other contraband when arrested; 6) defendant's incriminating statements; 7) attempted flight; 8) furtive gestures; 9) odor of the contraband; 10) presence of other contraband; 11) defendant's right to possession of the place where contraband was found; and 12) drugs found in an enclosed place. See Rischer v. State, 85 S.W.3d 839, 843 (Tex. App.--Waco 2002, no pet.);see also Lassaint v. State, 79 S.W.3d 736, 740-41 (Tex. App.--Corpus Christi 2002, no pet.). Importantly, the number of factors, or independent links, is not as important as the degree to which they, alone or together, tend to affirmatively link the accused to the drugs. See Nhem v. State, 129 S.W.3d 696-700 (Tex. App.--Houston [1st Dist.] 2004, no pet.); Hudson v. State, 128 S.W.3d 367, 374 (Tex. App.--Texarkana 2004, no pet.); Taylor v. State, 106 S.W.3d 827 (Tex. App.--Dallas 2003, no pet.).

There were multiple affirmative links, in this case, to connect Gutierrez to the cocaine and methamphetamine, not the least of which was his confession. In his written statement, Gutierrez admitted to ownership of the drugs, and further explained that he had personally hidden the drugs when the vehicle was under his control. Gutierrez's signed confession connected him directly to the drugs, supported his knowledge of the drugs, that he exercised control over the drugs, and demonstrated his knowledge that the drugs were, in fact, contraband. See Francis v. State, 877 S.W.2d 441, 442-43 (Tex. App.--Austin 1994, pet. ref'd). The confession, in conjunction with the other affirmative links, such as Gutierrez's presence when the contraband was uncovered and his suspicious behavior at the traffic stop provide ample evidence linking Gutierrez to the contraband. See Booty v. State, No. 05-90-00748-CR, 1991 WL 107542 (Tex. App.--Dallas 1991, pet. ref'd). Accordingly, there is both legally and factually sufficient evidence to support possession of the contraband.

B. Intent To Deliver.

Gutierrez next argues that the State failed to prove the necessary intent to deliver. We disagree. Intent to deliver may be shown by circumstantial evidence, including evidence surrounding its possession. Rhodes v. State, 913 S.W.2d 242, 251 (Tex. App.--Fort Worth 1995), aff'd, 945 S.W.2d 115 (Tex. Crim. App. 1997). Moreover, intent to deliver may be inferred from the quantity of drugs possessed, the manner in which they are packaged, and expert testimony indicating an intent to deliver. See Jordan v. State, 139 S.W.3d 723, 726-27 (Tex. App.--Fort Worth 2004, no pet.). Gutierrez's confession was only one piece of the State's evidence. Officer Phillips stated that the location of the initial stop is a major corridor for drug trafficking. He testified that the large amount of cocaine, several sandwich bags, and a digital scale all bundled and hidden together in the jack compartment, a common place for traffickers to conceal contraband in a vehicle, indicated Gutierrez's intent to deliver. Officer Raul Guerrero, specializing with the Regional Narcotics Task Force, testified that eighty-five-plus grams of cocaine is not an amount for personal use. Texas Department of Public Safety lieutenant John Salazar, with fifteen years in narcotics investigations and covert operations, also testified that the amount of cocaine Gutierrez possessed was inconsistent with personal use.

In light of the fact that the large amount of contraband was located together with paraphernalia used to weigh, package and distribute the cocaine, specifically measuring scales and sandwich bags, the evidence supports that Gutierrez intended to distribute the cocaine. Not one, but three, experts testified that the large amount of cocaine found along with packaging and weighing paraphernalia was consistent with the intent to sell the contraband. See Hawkins v. State, 687 S.W.2d 48, 50 (Tex. App.-Dallas 1985. pet. ref'd). Based on the experts' testimony, the cocaine Gutierrez possessed could supply a few hundred people and yield a minimum street value of $17,000.00. Furthermore, the testimony of the experts, in conjunction with Gutierrez's confession, is sufficient to establish Gutierrez's guilt. Richardson v. State, 600 S.W.2d 818 (Tex. Crim. App. 1980).

Conclusion

A review of the record supports that a rational trier of fact could have found beyond a reasonable doubt that Gutierrez possessed the cocaine with intent to deliver and possessed methamphetamine. Furthermore, the verdict is not so weak as to undermine confidence in the jury's verdict. Accordingly, we conclude the evidence is both legally and factually sufficient to support the jury's verdict and the judgment of the trial court is affirmed.

Rebecca Simmons, Justice

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