Jose Luis Perez v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

JOSE LUIS PEREZ, §
No. 08-07-00219-CR
Appellant, §
Appeal from the
v. §
384th Impact Court
THE STATE OF TEXAS, §
of El Paso County, Texas
Appellee. §
(TC#20040D00050)
§

OPINION

Jose Luis Perez was convicted by a jury of unlawful possession of at least 50, but less

than 2,000, pounds of marijuana. He was sentenced to ten years’ imprisonment, which was

suspended and he was placed on community supervision. We affirm the conviction.

Sergeant Guadalupe Ruiz is as an undercover narcotics officer with the El Paso Police

Department. During December 2003, an informant working with Sergeant Ruiz identified a

tractor-trailer as one possibly being used to transport drugs. This trailer was housed at a

warehouse located at 1533 Bassett Ave. in Central El Paso.1 Sergeant Ruiz began surveillance

on the warehouse, and, during the course of the surveillance, he observed a trailer in front of the

Bassett warehouse being unloaded and its contents being placed along a fence. While the trailer

was being unloaded, Sergeant Ruiz also observed two people on bicycles looking into cars in the

vicinity, which, Sergeant Ruiz indicated, suggested a counter-surveillance operation. After the

off-loading of the merchandise, the truck was re-loaded. The entire off-loading and re-loading

1
During the course of the investigation, Sergeant Ruiz learned that the Bassett Ave. warehouse was being
rented by one of the drug cartels located in Cd. Juárez, Chih., which is located directly across the Rio Grande from El
Paso.
process took about an hour to complete. After the completion of the re-loading, Sergeant Ruiz

then observed the trailer being moved to a fenced yard, where it was un-hitched and left.

Sergeant Ruiz testified that he never observed any marijuana being loaded onto the trailer during

the one-hour off-loading and re-loading period. Indeed, Sergeant Ruiz never observed any drugs

being placed inside the trailer during the course of his surveillance operation.

At 6 p.m., Sergeant Ruiz handed over the surveillance operation to two other police

officers for the evening. These were Officers Jesus Rodriguez, Jr. and Gabe Peralta, both

members of the El Paso Tactical and Gang Enforcement Unit. During the course of the

surveillance operation, no officer was able to identify the driver of the tractor, and Appellant was

never positively identified as the driver during the loading and unloading of the trailer. Appellant

was also never identified as one of the men un-loading and re-loading the trailer.

At the time of Appellant’s arrest, he was employed by Menoli Express. Menoli and its

truck yard are located at 3101 North Zaragoza Rd. in El Paso. Testifying in his own defense,

Appellant stated that he received a phone call on December 15 from Menoli, asking him to report

to work. After he arrived at Menoli, Appellant was sent to Trans-Expedite, Inc., located on

Founders Blvd., to pick up his merchandise, which he was supposed to transport to various parts

of the country. He then returned to the Menoli yard around 7:20-7:30 p.m., where he locked up

his truck and left for the night.

The next morning, December 16, Appellant went back to Menoli to pick up his tractor-

trailer at around 9 a.m. At 9:15, Appellant discovered that one of the lights on the trailer was not

working, so he took it to Utility Trailer Southwest Sales Company (Utility), at 11630 Gateway

Blvd. East, for repairs. After dropping off the trailer at Utility, Appellant testified, he went back

to Menoli, where he left his tractor and returned home.
 At 6 p.m., Appellant received a phone call from Menoli, instructing him to leave right

away. Appellant testified that, when he arrived at Menoli, his trailer was not there, so he took his

tractor and went to the Petro fuel station at I-10 and Horizon Blvd. to fill up with diesel. After

filling up, Appellant testified, he went to pick up his friend at the intersection of Piedras St. and

Alameda Ave. After waiting for his friend for twenty minutes, Appellant drove to the Bassett

warehouse, where he picked up his trailer. It took Appellant about forty minutes to hook his

tractor to the trailer and to inspect the rig.

Between 8 and 8:30 p.m, the surveillance team saw the tractor arrive at the Bassett

warehouse and back into the side yard, where the trailer was located. At the same time, people

on bicycles resumed their counter-surveillance of the area. The tractor remained in the fenced

yard for forty-five minutes to an hour. At around 9 p.m., a blue tractor hitched with the trailer

pulled out of the fenced yard onto Piedras St. Officer Rodriguez observed two vehicles which

appeared to be escorting the tractor-trailer, a red car in front of the tractor-trailer and a black

pickup behind it. At this time, the surveillance team called a marked unit and requested it to

effect a traffic stop on the tractor-trailer.

Officer Sanchez observed Appellant fail to signal as he turned from Piedras onto Gateway

East; based on this violation, Officer Sanchez stopped the Appellant. Officer Sanchez testified

that Appellant initially appeared nervous. According to the officer, Appellant also gave several

different accounts of where he had come from. At first, Appellant stated that he had come from

the Northeast side of El Paso. Because the Appellant was driving north on Piedras at the time of

the traffic stop, Officer Sanchez asked the Appellant again where he was coming from. This

time, Appellant said that he was coming from trying to pick up his partner at Piedras and

Alameda and that he had waited for thirty minutes for his partner, who never showed up. Later,
Appellant told Officer Sanchez that, after he had inspected the back of the truck, he had “fueled

up, gone and picked up the load, picked up the – fixed the trailer – fixed the truck or the trailer,

picked up the ‘carga’ [i.e., the load to be transported] and, then, was on his way to go pick up his

partner.”

There was also some confusion about what exactly Appellant was hauling. Appellant

produced several documents for Officer Sanchez when he was stopped. The documents included

three bills of lading (two of which were for prior deliveries), a fuel receipt, a driving log, and a

repair receipt. The current bill of lading was for a load that was supposed to have been delivered

in Oklahoma that day, making the intended delivery impossible, considering the time of day and

the distance involved.

Officer Sanchez looked for a seal on the back of the trailer. Seals are placed on the backs

of trailers to prevent tampering with the load, thus improving load security. Officer Sanchez

testified that there was no seal on the back of the truck, and, after further questioning, Officer

Sanchez asked Appellant for his consent to search the trailer. Appellant voluntarily gave both his

oral and written consent to allow officers to search the trailer. After consent was given, K-9

handler Santos Perez testified that his dog detected the presence of narcotics from underneath the

trailer and at the back of the opened trailer. Officer Perez also testified that he could smell

marijuana from the back of the opened trailer. On the other hand, Officer Sanchez testified that

he did not smell the marijuana until he got about half way through the trailer, which was where

the boxes containing the marijuana were located.

Officers Sanchez, Rodriguez, and Sagaribay searched the truck and found boxes that

looked different from the rest of the load in the trailer and that also smelled like marijuana. The

boxes contained large bundles wrapped in plastic, which were later determined to contain
marijuana. At this point, the Appellant was placed under arrest. During the Appellant’s arrest he

appeared calm, did not ask any questions, and was not shocked that he had just been arrested.

The boxes found in the trailer contained 675 bundles of marijuana, weighing a total of 1,643.9

pounds. Sergeant Ruiz explained that the wholesale price of marijuana in El Paso is $300 per

pound, and the street price for a half-ounce is $20. Officer Enrique Ledesma, who is the

narcotics custodian for the El Paso Police Department, testified that no fingerprints were found

on the boxes containing the marijuana and no search for fingerprints was done on the boxes.

Gary Zelenak, Trans-Expedite’s Vice-President for Sales and Marketing, testified that a

seal had, in fact, been placed on the trailer and that the seal’s number was recorded on one of the

bills of lading for the shipment. Zelenak also explained that trailers tend to be loaded with the

last destination being loaded first and the first destination being loaded last, although he

conceded that the loading does not always ensure that the first delivery will be closest to the door

or that the loading is always done properly.

Based on his experience as a narcotics investigator, Sergeant Ruiz testified that an owner

of narcotics usually hires someone to transport the drugs and that the person hired usually knows

what he is transporting, because someone who does not know the contents of his load would not

be the best person to haul narcotics. Sergeant Ruiz also testified that the people observed

looking into the trailer during the re-loading process were most likely the owners of the narcotics

looking for the best placement of the drugs to make the entire shipment look legitimate.

Appellant denied telling the police that he had just come from Northeast El Paso when he

was stopped, denied having given oral consent to search his trailer, and stated that he had nothing

to hide.2

2
Appellant concedes, however, that he did give written consent to do so.
 In his Issue No. One, Appellant contends that the evidence was legally insufficient to

prove that he knowingly or intentionally possessed at least 50, but less than 2,000, pounds of

marijuana.

In reviewing the legal sufficiency of the evidence, we view the evidence in the light most

favorable to the judgment to determine whether any rational trier of fact could find the essential

elements of the offense, as alleged in the application paragraph of the charge to the jury, beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979). More particularly,

sufficiency of the evidence is measured by the elements of the offense, as defined by the

hypothetically-correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 239-40 (Tex.

Crim. App. 1997).

Our role is not to ascertain whether the evidence establishes guilt beyond a reasonable

doubt. Dwyer v. State, 836 S.W.2d 700, 702 (Tex. App.–El Paso 1992, pet. ref’d). We do not

resolve any conflict in fact, weigh any evidence, or evaluate the credibility of any witnesses, so

the fact-finding results of a criminal jury trial are given great deference. Menchaca v. State, 901

S.W.2d 640, 650-52 (Tex. App.–El Paso 1995, pet. ref’d); Adelman v. State, 828 S.W.2d 418,

421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991);

Leyva v. State, 840 S.W.2d 757, 759 (Tex. App.–El Paso 1992, pet. ref’d); Bennett v. State, 831

S.W.2d 20, 22 (Tex. App.–El Paso 1992, no pet.). Instead, our only prerogative is to determine

whether both the explicit and implicit findings of the trier of fact are rational, by viewing all the

evidence admitted at trial in the light most favorable to the verdict. Adelman, 828 S.W.2d at

421-22. In so doing, we resolve any inconsistencies in the evidence in favor of the verdict.

Matson, 819 S.W.2d at 843 (quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App.

1988)). The trier of fact, not the appellate court, is free to accept or reject all or any portion of
any witness’s testimony. Belton v. State, 900 S.W.2d 886, 897 (Tex. App.–El Paso 1995, pet.

ref’d).

Unlawful possession requires that the “State . . . prove two elements: (1) that the accused

exercised care, control and management over the contraband; and (2) that the accused knew the

matter was contraband.” Martin v. State, 753 S.W.2d 384, 386 (Tex. Crim. App. 1988) (citing

Nunn v. State, 640 S.W.2d 304 (Tex. Crim. App. 1982)); Davila v. State, 930 S.W.2d 641, 644-

45 (Tex. App.–El Paso 1996, pet. ref’d).

To prove that Appellant had both knowledge and control, the State had the burden to

prove an affirmative link between him and the marijuana contained in his truck, because no

direct evidence showed that Appellant knowingly or intentionally possessed the marijuana. TEX .

HEALTH & SAFETY CODE ANN . § 481.115(a) (Vernon 2003); McGoldrick v. State, 682 S.W.2d

573, 578 (Tex. Crim. App. 1985); Brown v. State, 911 S.W.2d 744 (Tex. Crim. App. 1995);

Menchaca, 901 S.W.2d at 651. An affirmative link generates a reasonable inference that the

accused knew of the contraband’s existence and exercised control over it. Brown, 911 S.W.2d at

747.

Factors we consider include (1) the defendant’s presence when the search warrant was

executed, (2) whether the contraband was in plain view, (3) the defendant’s proximity to and the

accessibility of the narcotic, (4) whether the defendant was under the influence of narcotics when

arrested, (5) whether the defendant possessed other contraband or narcotics when arrested, (6)

whether the defendant made incriminating statements when arrested, (7) whether the defendant

attempted to flee, (8) whether the defendant made furtive gestures, (9) whether there was an odor

of the contraband, (10) whether other contraband or drug paraphernalia were present, (11)

whether the defendant owned or had the right to possess the place where the drugs were found,
(12) whether the place where the drugs were found was enclosed, (13) whether the accused was

the driver of the automobile in which the contraband was found, (14) whether the defendant was

found with a large amount of cash, and (15) whether the conduct of the accused indicated a

consciousness of guilt. Tucker v. State, 183 S.W.3d 501, 510 (Tex. App.–Fort Worth 2005, no

pet.) (citing McQuarters v. State, 58 S.W.3d 250, 259 (Tex. App.–Fort Worth 2001, pet. ref’d)).

The number of factors linking an accused to the contraband is not as important as their

logical force in establishing the elements of the offense. See Jenkins v. State, 76 S.W.3d 709,

713 (Tex. App.–Corpus Christi 2002, pet. ref’d); see also Jones v. State, 963 S.W.2d 826, 830

(Tex. App.–Texarkana 1998, pet. ref’d); Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.–

Houston [1st Dist.] 1994, pet. ref’d). Proof amounting to a strong suspicion, or even a

probability, of guilt will not suffice. See Hall v. State, 86 S.W.3d 235, 240 (Tex. App.–Austin

2002, pet. ref’d).

There must be an affirmative link between an accused and the drugs, to the degree that a

reasonable inference may arise that Appellant knew that the drugs existed and where they were

kept. See Gutierrez v. State, 628 S.W.2d 57, 60 (Tex. Crim. App. [Panel Op.] 1982), overruled

on other grounds by Chambers v. State, 711 S.W.2d 240, 247 (Tex. Crim. App. 1986).

Ultimately, the question of whether the evidence is sufficient affirmatively to link the accused to

the contraband must be answered on a case-by-case basis. Whitworth v. State, 808 S.W.2d 566,

569 (Tex. App.–Austin 1991, pet. ref’d).

Several affirmative links were put into evidence by the State. Appellant was present

while the search of his trailer was conducted, the odor of marijuana was present from the back of

the opened trailer, Appellant was the driver of the tractor-trailer transporting 1,643.9 pounds of

fresh marijuana, and the Appellant appeared nervous and gave differing and confusing accounts
of his activities leading up to his arrest.

Beyond the non-exclusive list of affirmative links, other circumstantial evidence exists,

which a jury could have relied on in making its determination. Evans v. State, 202 S.W.3d 158,

162 n.12 (Tex. Crim. App. 2006) (recognizing that affirmative links are non-exclusive and can be

used singularly or in combination); see also Willis v. State, 192 S.W.3d 585, 593 (Tex.

App.–Tyler 2006, pet. ref’d); Lassaint v. State, 79 S.W.3d 736, 740-41 (Tex. App.–Corpus

Christi 2002, no pet.). The State correctly notes that other pieces of circumstantial evidence

exist, supported by case law and the record, on which the jury could have rationally concluded

that Appellant had knowledge of the marijuana in his trailer.

First, Appellant’s trailer contained a large quantity of marijuana, almost 1,700 pounds.

Sergeant Ruiz testified, based on his narcotics investigation experience, that, if drugs are being

transported, it is not a good idea for the driver not to know what he is transporting. Consistent

with Sergeant Ruiz’s testimony as a narcotics investigator, Texas courts have found that the

presence of a large amount of contraband indicates that the person accused of possession

probably knew of its presence. Hill v. State, 755 S.W.2d 197, 201 (Tex. App.–Houston [14th

Dist.] 1988, pet. ref’d) (citing Carvajal v. State, 529 S.W.2d 517, 520-21 (Tex. Crim. App.

1975), cert. denied, 424 U.S. 926 (1976)). Further, as the State correctly points out, courts have

recognized that large amounts of narcotics, like 1,700 pounds of marijuana, would most likely

not be entrusted to someone who had no knowledge of its presence. “It was a rational inference

that Appellant would not have been entrusted in taking the valuable cargo . . . if he were a mere

innocent, ignorant of all the details surrounding his responsibility and the importance of the cargo

in his care.” Menchaca, 901 S.W.2d at 652; see also Castellano v. State, 810 S.W.2d 800, 806

(Tex. App.–Austin 1991, no pet.). Sergeant Ruiz indicated the wholesale price per pound of
marijuana is around $300. This places the wholesale value of the contraband at $493,170,

making the contraband important and valuable cargo to its owner. The jury could reasonably

have inferred and found that Appellant was no stranger to the ongoing drug trafficking operation

operating out of the Bassett Ave. warehouse and that he was a knowing and willing participant.

During Appellant’s arrest, he appeared calm, did not ask any questions, and was not

shocked that he had just been arrested. It is reasonable that a jury could have inferred from the

lack of shock or surprise that Appellant was aware of the presence of drugs in his trailer.

Bethancourt-Rosales v. State, 50 S.W.3d 650, 655 (Tex. App.–Waco 2001, pet. ref’d).

“[E]xhibit[ing] unnatural equanimity and lack of concern throughout the temporary detention and

the subsequent investigation” links Appellant with the contraband in question. Fields v. State,

932 S.W.2d 97, 104 (Tex. App.–Tyler 1996, pet. ref’d).

Last, the State points out that Appellant’s conduct was not consistent with that of an

ordinary and responsible truck driver. The vice-president of sales and marketing of Trans-

Expedite testified that Appellant was personally responsible for the load Trans-Expedite was

contracted to haul. On the witness stand, Appellant admitted that, at the time he picked up his

cargo from Trans-Expedite, he had not looked at the paperwork he signed and did not know what

he was hauling. Appellant did not observe his trailer being loaded or check the load before he

left Trans-Expedite. Appellant did not ensure that a seal was on the back of the truck, which is

customary in the trucking business and designed to ensure that no one has tampered with his

cargo. Appellant did not inspect the lights on his trailer when he originally picked it up on

December 15. He left his trailer loaded in the Menoli truck yard overnight without a seal to

prevent tampering. After leaving his truck unattended and without a seal, Appellant did not

inspect his load on the night of December 16 to make sure that the load he was about to transport
was the same load he had signed for or to check for tampering. Last, Appellant admitted on the

stand that he normally inspects his tractor and trailer every time he hooks the trailer up to the

tractor, except in the present case. It was a reasonable inference, based on Appellant’s deviations

from his standard procedure, that, for this trip at least, he was not a normal truck driver and that

he could have been working in concert with a drug-trafficking operation, fully aware of the

contraband he was transporting.

Even considering and accepting as true that, as Appellant testified, he never said that he

was coming from the Northeast; no finger prints were found on the marijuana; no odor emanated

from Appellant’s closed trailer; Appellant did not attempt to flee; he did not exhibit any furtive

gestures; no weapons or large amounts of money were found on him at the time of his arrest; and

he was not seen at the Bassett warehouse during the surveillance operation, enough evidence was

presented that a jury could rationally have found Appellant guilty of unlawful possession.

We do not resolve any conflict of fact or assign credibility to the witnesses, as that was

the function of the trier of fact. See Adelman, 828 S.W.2d at 421; Matson, 819 S.W.2d at 843.

Instead, our duty is only to determine whether both the explicit and implicit findings of the trier

of fact are rational, by viewing all of the evidence admitted at trial in a light most favorable to the

verdict. Adelman, 828 S.W.2d at 422. In so doing, we resolve any inconsistencies in the

evidence in favor of the verdict. Matson, 819 S.W.2d at 843.

This Court concludes that the circumstantial evidence, when viewed in combination and

its sum total, is sufficient evidence connecting Appellant to the actual care, custody, control, or

management of the marijuana found in his trailer. It is the logical force of the circumstantial

evidence, not the number of affirmative links, that supports a jury’s verdict. The logical force of

the combined circumstantial evidence in this case, along with reasonable inferences, is sufficient
to establish beyond a reasonable doubt that Appellant exercised actual care, custody, control, or

management of the marijuana.

We overrule Issue No. One.

In his Issue No. Two, Appellant asserts that the evidence was factually insufficient to

sustain his conviction.

When conducting a factual-sufficiency review, we view all of the evidence in a neutral

light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside

only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2)

the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23

S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot say that a

conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence

admitted, we would have voted to acquit, had we been on the jury. Watson v. State, 204 S.W.3d

404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a

conflict in the evidence justifies a new trial, simply because we disagree with the jury’s

resolution of that conflict. Before finding that the evidence is factually insufficient to support a

verdict under the second prong of Johnson, we must be able to say, with some objective basis in

the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict.

Id. In conducting our factual-sufficiency review, we must also discuss the evidence which

Appellant claims is the most important in allegedly undermining the finding. Sims v. State, 99

S.W.3d 600, 603 (Tex. Crim. App. 2003). We defer to the fact finder’s determination of

witnesses’ credibility and of the weight to be given to the evidence. Cleveland v. State, 177

S.W.3d 374, 388 (Tex. App.–Houston [1st Dist.] 2005, pet. ref’d), cert. denied, 547 U.S. 1073

(2006).
 Here, Appellant argues several points that directly deal with witness credibility and the

weight of the evidence. While it is true that Sergeant Ruiz did testify that he observed only the

loading and unloading of electronic equipment, the jury could have determined that this

testimony was irrelevant, or given it little weight, or concluded that something was missed during

the course of the surveillance operation. There are any number of inferences and judgments that

the jury could have made, and it is not the job of this Court to second guess the determinations of

the jury made during their deliberations. Regardless of Sergeant Ruiz’s testimony about never

having observed drugs during the unloading and loading, almost 1,700 pounds of fresh marijuana

were found in Appellant’s trailer. The very fact that marijuana was found in the Appellant’s

trailer is a strong piece of evidence, resting on its own.

Appellant argues that the jury should not have assumed that the tractor originally

observed by Sergeant Ruiz early on December 16, with the assistance of his informant, was the

same tractor observed driving into the Bassett warehouse that evening. The record, however,

indicates that the State did not attempt to link the tractor seen earlier in the day with the one seen

later in the day. The jury could have believed that two different tractors had been at the Bassett

warehouse on December 16; alternatively, the jury could have determined that the number of

tractors was not important to their determination of guilt. The surveillance described at trial

merely established the original suspicion that the Bassett warehouse was possibly being used as a

cover for the transportation of narcotics. Testimony about the surveillance operation put the

investigation into context, but it does not appear that the State relied extensively on information

obtained during the surveillance operation to prove Appellant’s guilt. Initially, Appellant was

stopped because of a traffic violation, not pursuant to a warrant based on information garnered

from the surveillance operation. Following the traffic stop, Appellant consented to his trailer
being searched, which led to the discovery of the stash of marijuana.

Appellant argues that it is unlikely that he could have driven his trailer to the Utility

repair shop located on the far east side of El Paso, had the trailer repaired there, and then hitched

it up to his tractor and driven across town to the warehouse at 1533 Bassett Ave. in Central El

Paso, all before 11:30 a.m. on the same day. Appellant admits, however, that this scenario is

possible. The State also points out that the Appellant testified that he dropped off his trailer for

repairs at 9:15 a.m. on December 16, which gave him 2½-3 hours to have his trailer repaired and

then drive to downtown. For a similar time comparison, the State points out that Appellant

testified that he filled up his tractor at 6:30 p.m. on the far east side of El Paso, arrived at Piedras

and Alameda between 7 and 7:30 p.m., stayed twenty minutes, and still made it back to the

Bassett location by 7:50 p.m. The jury could have inferred, based on the re-fueling time line, that

the State’s version of the repair time line was also possible, given the relatively similar distances

and time requirements. While any number of possible alternative theories exist, it is the jury’s

job to sort through the evidence and make a factual determination. Cleveland, 177 S.W.3d at

388. When viewing the evidence in its totality and in a neutral light, the possibility or the

impossibility of the repair time line (which Appellant concedes is possible, even if arguably

improbable) does not so undercut the State’s case as to lead to a conclusion that the evidence in

favor of conviction was factually insufficient.

Last, the record indicates that several different versions of the Appellant’s conversation

with Officer Sanchez exist. Appellant argues that the jury should have accepted his version of

his activities prior to his arrest, which is, of course, more favorable to his case. Officer Sanchez

testified that the Appellant initially said he had come from the Northeast part of El Paso. Officer

Sanchez then reminded Appellant that he was traveling north on Piedras. Appellant replied by
saying, “Well, I’m going to go pick up my partner.” Appellant then told Officer Sanchez that he

had been waiting for his partner for thirty minutes at the intersection of Alameda and Piedras,

which Officer Sanchez testified was not true, because he had been following Appellant’s trailer

since he left the Bassett warehouse. Further, Officer Sanchez also testified that Appellant never

stopped at the Alameda/Piedras intersection. On cross-examination, Officer Sanchez testified

that he asked Appellant where he had picked up his cargo, and Appellant said from the

Northeast. According to Officer Sanchez, Appellant did not state when he had picked up his

cargo from the Northeast.

Appellant testified, conversely, that he never said to Officer Sanchez that he had come

from the Northeast. It is, however, the jury’s job to reconcile the evidence and to determine

which version(s) of the facts to base their verdict on. Cain, 958 S.W.2d at 407. The jury can

decide to believe all, some, or none of the evidence presented at trial. Id. at 407 n.5.

In reviewing Appellant’s claims which allegedly undermined the jury’s finding, we do not

find that the great weight and preponderance of the evidence contradicts the verdict. Given the

circumstantial evidence linking Appellant to the marijuana, discussed above in our legal

sufficiency analysis, compared with Appellant’s claims against factual sufficiency, there is

factually sufficient evidence upon which the jury could have based its determination. It is the

jury’s role to believe or disbelieve Appellant’s version of events, and this Court holds that the

jury could justifiably have come to its conclusion that Appellant was guilty of the charged

offense. Issue No. Two is overruled.

We affirm the judgment of the trial court.

DAVID WELLINGTON CHEW, Chief Justice
March 12, 2009

Before Chew, C.J., McClure, and Carr, JJ.
Carr, J., not participating

(Do Not Publish)