Victor Rodriguez v. State

NUMBER 13-07-150-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

VICTOR RODRIGUEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 347th District Court

of Nueces County, Texas

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela

Memorandum Opinion by Justice Vela

A jury convicted appellant, Victor Rodriguez, of possession of a controlled substance, cocaine, weighing more than four grams but less than 200 grams. See Tex. Health & Safety Code Ann. § 481.115(a), (d) (Vernon 2003). Punishment, enhanced by two prior felony convictions, was assessed by the jury at sixty-five years in prison, plus a $10,000 fine. Appellant presents three issues on appeal. We affirm.

I. Factual Background

On March 25, 2006, Corpus Christi police officer Joe Gonzales was patrolling Highway 286 when he saw a Dodge Ram pickup ahead of him. He testified that about an hour before seeing the pickup:

[W]e had received some intelligence over the radio. One of our narcotics officers was conducting a surveillance on a known drug house and he observed a vehicle matching this description either arrive at the home and leave or was at the home and left. He advised that if we had any run ins with the vehicle or saw the vehicle, if we could establish any kind of probable cause, it might be something that we might want to look in a little bit later on.

He stated that the pickup's license plate "was the license plate and possibly the vehicle that the narcotics officer was talking about." Gonzales kept an eye on the pickup as its driver, whom Gonzales later identified as appellant, made an unsignaled lane change from the middle lane to the outside lane. After changing lanes, appellant, without signaling, turned onto the Morgan Street exit. Gonzales followed him and saw him stop at a red light. When the light changed, appellant, without signaling, turned left onto Morgan Street. Gonzales testified that "I made the discretionary decision once I had seen those infractions occur . . . to stop the vehicle. . . ." When Gonzales turned on his overhead lights, appellant, without signaling, cut across two lanes of traffic and turned into a parking area.

When appellant stopped, Gonzales saw two female passengers in the vehicle. Appellant did not have a driver's license, so Gonzales asked him to get out of the vehicle. Gonzales testified:

[A]s I opened the [pickup's] door, he [appellant] stepped out and instead of coming this way, he kind of gives me his back and he turns this way and shuffles and then begins to walk back this way. As he did that, I noticed that that movement was a little odd and I began to look at him. On his right hand, it came down and as he made this movement, I saw his hand open up and I looked down and something fell from his hand and went down to the floor.

When Gonzales looked down, he could see what fell from appellant's hand. He said it was "a large rock, what appeared to be crack cocaine." Gonzales patted appellant down for weapons and found what appeared to be a crack pipe in his front pocket. After putting appellant in the patrol car, Gonzales looked around to make sure no one was around the evidence. He then picked it up. Gonzales testified the evidence was inside a little cellophane bag. When the prosecutor asked him, "Did you have any problems seeing what you say you saw?", he replied, "No, no. It was a dark area, but my overhead lights were on. My headlights were on in the vehicle, so I could easily see whatever fell from his hand and hit the ground."

Gonzales identified State's Exhibit 1 as the "piece of evidence" he found that night. The trial court admitted it into evidence. Defense counsel stipulated to the admission of the lab report into evidence. The lab report showed the substance tested was over five grams of crack cocaine.

On cross-examination, the defense showed that, with respect to this incident, Gonzales filled out a field-arrest report and an offense report. The former showed appellant had committed only one traffic violation: failure to signal a lane change. The latter showed he had committed two traffic violations: failure to signal a lane change; and failure to signal before turning onto Morgan. Gonzales stated that he was "almost certain" that he did not have a camera in his car when he stopped appellant. He did not know whether the baggie which contained the crack cocaine was processed for fingerprints. He said the crack pipe was not checked for fingerprints.

Cesario Perez, a narcotics investigator, testified that the crack cocaine admitted into evidence had a street value of $250, if sold by the gram. He also testified that a person could "sell it by less than half a gram, which would normally go for about $20," increasing the value to between $250 and $400.

The defense rested without calling any witnesses.

II. Discussion

I. Sufficiency of the Evidence

By issue one, appellant contends the evidence is legally and factually insufficient to support his conviction. In assessing the legal sufficiency of the evidence to support a conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The reviewing court must give deference to "'the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Hooper, 214 S.W.3d at 13 (quoting Jackson, 443 U.S. at 318-19). In reviewing the sufficiency of the evidence, we should look at "'events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act.'" Hooper, 214 S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)). Each fact need not point directly and independently to the accused's guilt, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13; see Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993) ("[i]t is not necessary that every fact point directly and independently to the defendant's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances.").

In a factual-sufficiency review, we review the evidence in a neutral light rather than (as in a legal sufficiency review) in the light most favorable to the verdict. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 282 (2007); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The evidence can be factually insufficient in one of two ways: "(1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, and (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust." Roberts, 220 S.W.3d at 524; Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Johnson, 23 S.W.3d at 11. A reversal for factual insufficiency cannot occur when "'the greater weight and preponderance of the evidence actually favors conviction.'" Roberts, 220 S.W.3d at 524 (quoting Watson, 204 S.W.3d at 417). Although an appellate court reviewing factual sufficiency has the ability to second-guess the jury to a limited extent, the review should still be deferential, with a high level of skepticism about the jury's verdict required before a reversal can occur. Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417; Cain v. State, 958 S.W.2d 404, 407, 410 (Tex. Crim. App. 1997).

Analysis

A person commits an offense if that person intentionally or knowingly possesses more than four grams but less than 200 grams of cocaine. See Tex. Health & Safety Code Ann. § 481.115(a), (d) (Vernon 2003). To prove unlawful possession of a controlled substance, the State must prove: (1) the accused exercised control, management, or care over the substance; and (2) the accused knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). Regardless of whether the evidence is direct or circumstantial, it must establish that an accused's connection with the drug was more than fortuitous. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). ⁽¹⁾ The number of links ⁽²⁾ between an accused and the drugs is not dispositive, rather it is the logical force of all of the evidence, direct and circumstantial. Id.

Here, the evidence showed that: (1) Gonzales saw appellant's hand open up and drop something: (2) Gonzales looked down and saw what appeared to be a rock of crack cocaine; (3) Gonzales had enough light to see what appellant had dropped; (4) Gonzales picked up the suspected crack cocaine; (5) the suspected crack cocaine was admitted into evidence; (6) counsel stipulated to the lab report, which showed the substance tested to be over five grams of crack cocaine; and (7) appellant had what appeared to be a crack pipe in his pocket.

The defense showed that: (1) when appellant was stopped, there were two female passengers in the pickup; ⁽³⁾ (2) Gonzales did not know whether police checked for latent fingerprints on the baggie, which had contained the crack cocaine; (3) police did not check for latent fingerprints on the crack pipe; and (4) nothing related to this incident was caught on videotape.

The evidence, viewed in the light most favorable to the verdict, established beyond a reasonable doubt that appellant exercised actual care, custody, control, or management of the crack cocaine and that he knew the matter he possessed was contraband. Thus, the evidence was legally sufficient to support the verdict.

Furthermore, the evidence is factually sufficient because the evidence supporting the verdict is not so weak that the verdict seems clearly wrong and manifestly unjust, and the supporting evidence is not outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. We overrule issue one.

2. Motion to Suppress

By issue two, appellant argues the trial court abused its discretion by denying his motion to suppress the evidence obtained in connection with the stop, thus depriving him of liberty without due process of law in violation of the Fourteenth Amendment to the United States Constitution and Article 1, Section 19 of the Texas Constitution. See U.S. Const. amend. XIV; Tex. Const. art. 1, § 19.

At the pretrial suppression hearing, the State called Officer Gonzales, who testified appellant failed to use his turn signal before changing lanes on Highway 286, exiting the highway, and turning left onto Morgan. Even though Gonzales stated that the pickup appellant was driving resembled the description of the pickup given by the undercover narcotics unit, he testified that he stopped appellant because of a traffic violation. ⁽⁴⁾

On cross-examination, counsel showed that Gonzales's offense report and field-arrest report reflected that appellant had committed two traffic violations and one traffic violation, respectively.

Appellant testified that he used his turn signal when he changed lanes, exited the freeway, and turned left onto Morgan Street. He claimed Gonzales was lying about him not using his turn signal.

Standard of Review

When police conduct a warrantless search and seizure, the State bears the burden to show the officer had reasonable suspicion to believe the individual was violating the law. Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him or her to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. Castro, 227 S.W.3d at 441 (citing Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001)). A reasonable-suspicion determination is made by considering the totality of the circumstances, giving almost total deference to the trial court's determination of historical facts and reviewing de novo the trial court's application of the law to facts not turning on credibility and demeanor. Castro, 227 S.W.3d at 441 (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). Because the trial court did not make explicit findings of fact in this case, we review the evidence in a light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact supported by the record. Castro, 227 S.W.3d at 441 (citing Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002)).

Appellant contends there are discrepancies in the number of traffic violations which Officer Gonzales testified to at the suppression hearing and at trial and which he mentioned in his offense report and field-arrest report. Appellant argues the discrepancies are sufficient to question Gonzales's credibility. Thus, he contends there is no evidence of any traffic violation to justify the stop.

Officer Gonzales testified at the suppression hearing that he stopped appellant for traffic violations, one of which was an unsignalled lane change. He mentioned this violation in his offense report and his field-arrest report. Section 545.104(a) of the transportation code provides, in relevant part: "An operator shall use the signal authorized by Section 545.106 to indicate an intention to . . . change lanes, . . . ." Tex. Transp. Code Ann. § 545.104(a) (Vernon 1999). A law-enforcement officer may validly stop and detain a person for a traffic violation. ⁽⁵⁾ Lemmons v. State, 133 S.W.3d 751, 756 (Tex. App.-Fort Worth 2004, pet. ref'd); see Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992) (police officers' stop and detention of defendant for stop-sign violation reasonable under Fourth Amendment principles); Hargrove v. State, 40 S.W.3d 556, 559 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd) (reasonable suspicion for stop existed when detective testified officers made traffic stop based on driver's failure to signal lane change); Tex. Dep't of Pub. Safety v. Walter, 979 S.W.2d 22, 29 (Tex. App.-Houston [14th Dist.] 1998, no pet.) (trooper's sworn report stating he saw driver commit traffic offense of changing lanes without signaling was "substantial evidence that he had reasonable suspicion to stop" the vehicle).

Under the applicable standard of review, we defer to the trial court's assessment of Officer Gonzales's and appellant's credibility. See Ross v. State, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (at suppression hearing, judge may believe or disbelieve all or any part of a witness's testimony); State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999) (at suppression hearing, trial court is sole trier of fact and judge of witness's credibility and weight to be given their testimony). Furthermore, with respect to appellant's contention that there are discrepancies in the number of traffic violations which Gonzales testified to at the suppression hearing and which he mentioned in his offense and field-arrest reports, we presume the trial court resolved any discrepancies against appellant. See Ross, 32 S.W.3d at 855; Ballard, 987 S.W.2d at 891.

Viewing the evidence in the light most favorable to the trial court's ruling, then, we infer that the trial court believed Gonzales's testimony. ⁽⁶⁾ Ross, 32 S.W.3d at 855; Ballard, 987 S.W.2d at 891. Accordingly, giving deference to the trial court's implied finding that Gonzales saw appellant commit the traffic violation of failure to signal a lane change, we conclude the trial court did not err by determining that Gonzales had reasonable suspicion to stop appellant and that the stop was valid. Therefore, we hold that the trial court did not err by denying appellant's motion to suppress. We overrule issue two.

3. Jury Instruction

In his third issue, appellant contends the trial court committed reversible error when it refused to grant a jury instruction pursuant to article 38.23 of the Texas Code of Criminal Procedure. That article provides:

(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005).

Appellant contends the evidence before the jury regarding Officer Gonzales's reason for stopping him raised the issue and, therefore, the trial court should have instructed the jury as per the article. The record reflects Gonzales was the only witness who testified in front of the jury regarding the facts of the stop.

In construing article 38.23(a), the court of criminal appeals has held that "when conflicting evidence raises an issue regarding the right to stop a driver, a court is statutorily bound to include a requested charge on this issue." Reynolds v. State, 848 S.W.2d 148, 149 (Tex. Crim. App. 1993) (emphasis added). A fact issue about whether the evidence was legally obtained may be raised "'from any source, and the evidence may be strong, weak, contradicted, unimpeached, or unbelievable.'" Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004) (quoting Wilkerson v. State, 933 S.W.2d 276, 280 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd)). The jury is required to receive an article 38.23 instruction only when the trial evidence raises a factual issue regarding whether the evidence was obtained in violation of the Constitution or laws of the United States or the State of Texas. See Bell v. State, 938 S.W.2d 35, 48 (Tex. Crim. App. 1996). A factual dispute about how the evidence was obtained must also exist. Balentine v. State, 71 S.W.3d 763, 773 (Tex. Crim. App. 2002).

Here, Officer Gonzales testified that he saw appellant change lanes on Highway 286 without signaling. He also testified that he saw appellant commit three other traffic violations. On cross-examination, he stated that he mentioned in his offense report and field-arrest report that appellant committed only two traffic violations and one traffic violation, respectively. We note that Gonzales mentioned the unsignalled lane change in both reports. Thus, his cross-examination testimony did not raise a fact issue concerning the reason for the stop. There is a discrepancy in the number of traffic violations which Gonzales saw appellant commit. However, there is no dispute that Gonzales stopped appellant because of a traffic violation, and there is no dispute that appellant failed to signal a lane change. One traffic violation provided the reasonable suspicion necessary for Gonzales to stop appellant.

Accordingly, because there is no conflicting evidence which raises an issue regarding the right to stop appellant, the trial court was not statutorily bound to include the requested charge on this issue. See Reynolds, 848 S.W.2d at 149; see also Rose v. State, 470 S.W.2d 198, 200 (Tex. Crim. App. 1971) (no jury issue raised when defendant called no witness to controvert officers' testimony with respect to events and circumstances at time of arrest, and cross-examination did not raise fact issue on right to arrest). The third issue is overruled.

III. Conclusion

The trial court's judgment is affirmed.

ROSE VELA

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 27th day of December, 2007.

1. In Evans v. State, 202 S.W.3d 158, 161 n.9 (Tex. Crim. App. 2006), the court agreed with Judge Womack's concurrence that the "affirmative links" rule is not an independent test of legal sufficiency. The court stated, "We use that term merely as a shorthand catch-phrase for a large variety of circumstantial evidence that may establish the knowing 'possession' or 'control, management, or care' of some item such as contraband." The court went on to say that Judge Womack was correct in stating that "the legal issue is 'whether there was evidence of circumstances, in addition to mere presence, that would adequately justify the conclusion that the defendant knowingly possessed the substance.'" The court stated, "We have used that term 'affirmative links,' but we recognize that 'affirmative' adds nothing to the plain meaning of 'link.'" (citation omitted).

2. The Fourteenth Court of Appeals summarized a non-exclusive list of possible "affirmative links" that Texas courts have recognized as sufficient, either singly or in combination, to establish a person's possession of contraband: (1) the accused's presence when a search is conducted; (2) whether the contraband was in plain view; (3) the accused's proximity to and the accessibility of the drug; (4) whether the accused was under the influence of drugs when arrested; (5) whether the accused possessed other contraband or drugs when arrested;(6) whether the accused made incriminating statements when arrested; (7) whether the accused tried to flee; (8) whether the accused made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the accused 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 found with a large amount of cash; and (14) whether the conduct of the accused indicated a consciousness of guilt. Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.-Houston [14th Dist.] 2005, no pet.). In Evans, the court, referring to the aforementioned links, stated, "These are simply some factors which may circumstantially establish the legal sufficiency of the evidence to prove a knowing 'possession.' They are not a litmus test." Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006).

3. The two female passengers did not testify during the guilt phase.

4. During the pretrial suppression hearing, the prosecutor questioned Officer Gonzales as follows:

Q. [D]id the vehicle that you stopped resemble the vehicle that was described?

A. Yes. It was the license plate that was given.

Q. But the traffic violation is why you stopped him?

A. Yes. It was.

5. An objectively valid traffic stop is not unlawful even if it is merely pretextual (i.e., even if the detaining officer has some ulterior motive for making the stop). Crittenden v. State, 899 S.W.2d 668, 671, 674 (Tex. Crim. App. 1995); Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992).

6. Once a police officer makes a bona-fide stop or arrest for a traffic offense, he or she can then make an arrest, or an additional arrest, for any other offense unexpectedly discovered while investigating or questioning a motorist. See Lemmons v. State, 133 S.W.3d 751, 756 (Tex. App.-Fort Worth 2004, pet. ref'd); Hernandez v. State, 867 S.W.2d 900, 907 (Tex. App.-Texarkana 1993, no pet.).