FRANCISCO HERNANDEZ-GARCIA v. THE STATE OF TEXAS--Appeal from 232nd District Court of Harris County

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NUMBER 13-99-245-CR 






On appeal from the 232nd District Court
of Harris County, Texas.


Before Justices Dorsey, Chavez, Kennedy(1)
Opinion by Justice Kennedy

Appellant was indicted for possession of more than 400 grams of cocaine with intent to deliver. He was found guilty by a jury and the trial court assessed punishment at confinement for thirty-five years.

This appeal brings six points of error. The first four allege error in the trial court's denying the motion to suppress evidence and in admitting the seized contraband into evidence. Points one, two, and three complain of the warrantless search because of (1) lack of probable cause, (2) illegal detention, and (3) an illegal consent to search. Point four raises the Texas exclusionary rule to argue that the seized evidence was inadmissible.

The final two points of error allege that the evidence was insufficient legally (point five) and factually (point six) to support a finding that appellant knowingly and intentionally possessed the cocaine. At trial the court denied appellant's motion for instructed verdict based upon all of these points.

The states' evidence revealed that two City of Houston narcotics officers observed the vehicle in which the cocaine was found in the parking lot of a Houston motel. The officers became suspicious because of the furtive activities of appellant and the man who was with him and they set up a surveillance of the vehicle. When the two men left in the vehicle the officers followed and called for a marked police unit to stop the vehicle because, earlier, the officers had observed an expired inspection sticker on the windshield. The officers requested, and were given, written permission to search the vehicle after it had been stopped, however, their initial search failed to produce any contraband. The narcotics officers then produced a narcotics detection dog. The dog "alerted" on three areas of the vehicle and when the officers began to dismantle these areas they uncovered a vast amount of what was shown to be cocaine. An officer testified that the street value of the cocaine was $1.7 million.

With respect to the first four points of error, the state, in its brief, argues that appellant has waived error, if any, because, when the contraband was offered at trial, he stated that he had no objection to its introduction. This court has so held in Wilson v. State, 857 S.W.2d 90, 93 (Tex.App. Corpus Christi 1993, pet. ref'd.). In both the case at hand and Wilson, a pretrial motion to suppress had been overruled. In Wilson this court first ruled that there was no requirement that appellant object to the admission at trial in order to preserve error, but that his affirmative assertion of "no objection" to the admission of the evidence waived any error.

In the case before us, the record shows that defense counsel stated "no objection" when the items seized from appellant's vehicle were offered in evidence. Thus, any error in the trial court's denial of the motion to suppress has been waived. We overrule points of error one through four.

The final two points of error challenge the legal and factual sufficiency of the evidence to support the conviction. In support of these points, appellant correctly cites the standards for judging insufficient evidence as follows:

To determine whether the evidence is legally sufficient to support the verdict, the appellate court views the evidence in the light most favorable to the verdict and asks 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, 318, 319; Weightman v. State, 975 S.W.2d 621, 624 (Tex. Crim. App. 1998). . . . In a factual sufficiency review, the appellate court examines all of the evidence impartially and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).

Appellant was present when the vehicle was searched and the cocaine found. The vehicle in which the cocaine was found was registered to appellant's wife, and appellant was shown to be an insured driver of the vehicle.

The amount of cocaine seized in the case before us was large and very valuable in terms of money. In Menchaca v. State, 901 S.W.2d 640, 652 (Tex.App. El Paso 1995, pet. ref'd). The court said:

The jury was well aware that the cargo with which appellant had been entrusted was valuable. It was a rational inference that appellant would not have been entrusted in taking the valuable cargo across an international border if he were a mere innocent, ignorant of all the details surrounding his responsibility and the importance of the cargo in his care.

Appellant offered no evidence on either the guilt-innocence or punishment phase of the trial. We hold that the evidence of appellant's knowingly and intentionally possessing the cocaine, though circumstantial, is neither legally nor factually insufficient to support the guilty verdict. We AFFIRM the judgment of the trial court.



Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this the 18th day of May, 2000.

1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. 74.003 (Vernon 1998).