NUMBER 13-05-715-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JAIME VILLARREAL LOPEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 263rd District Court of Harris County, Texas.
OPINION
Before Justices Yañez, Rodriguez, and Garza
Opinion by Justice Yañez
A jury found appellant, Jaime Villarreal Lopez, guilty of possession with intent to
deliver cocaine weighing at least 400 grams.1 The jury assessed punishment at 25 years
in prison and a fine of $250,000. In two issues, Lopez argues that the evidence is legally
1
See T EX . H EALTH & S AFETY C OD E A N N . § 481.112 (Vernon 2003).
and factually insufficient to support his conviction. We affirm.2
I. BACKGROUND
Sergeant Oscar Ortegon, supervisor of the Houston Police Department’s Target
Narcotic Enforcement Team (“TNET”), received intelligence regarding an individual named
Refugio Cosio. Deputy Gary Dearmon was a member of TNET and was employed by the
Harris County Sheriff’s Department (“the HCSD”). Sgt. Ortegon instructed Deputy
Dearmon to set up undercover surveillance outside of Cosio’s residence because possible
narcotics trafficking may have been occurring there. While conducting surveillance on the
morning of July 17, 2004, Deputy Dearmon observed Cosio leaving his residence in a
Jeep; he then pursued Cosio in an unmarked vehicle. In the course of his pursuit, Deputy
Dearmon observed Cosio engage in the following activity.
Cosio first drove to a taqueria stand, where he talked for 15 to 20 minutes with an
individual driving a Lincoln Navigator; this individual was later identified as Jesus Alvarado.
Cosio then drove to a Walgreens, where he got out of his Jeep and began talking with an
unidentified male driving a red truck. Cosio took the man’s truck and drove it to “the
Staghill residence.” He entered the residence and remained there for 10 to 20 minutes.
He then drove the truck back to the Walgreens and, after conversing briefly with the same
unidentified male, swapped vehicles again. Cosio then drove the Jeep to the taqueria
stand and spoke briefly with Alvarado. Cosio subsequently drove to a Kroger’s shopping
center, where he circled the parking lot a few times, but never exited his vehicle. He then
drove to a McDonald’s.
2
Lopez’s appeal was transferred to this Court from the Fourteenth Court of Appeals.
2
Upon Cosio’s arrival at the McDonald’s, Lopez exited the McDonald’s and spoke
with Cosio in the parking lot for five to 15 minutes. Deputy Dearmon testified that, upon
observing Cosio and Lopez as they conversed, it appeared to him as if they both knew
each other and that their conversation was friendly. When the conversation concluded,
Cosio drove away in a Mitsubishi Lancer. Deputy Dearmon followed Cosio when he left
the McDonald’s, but soon decided to abandon the effort because he feared Cosio would
detect his presence. He believed, however, that Cosio was driving to the Staghill
residence; the residence was one to two miles from the McDonald’s and authorities
suspected that it was a stash house.3 Deputy Dearmon returned to the McDonald’s
because he believed Cosio would also return there. As he waited for Cosio to return,
Deputy Dearmon observed Lopez sitting inside the McDonald’s with another individual; this
individual was later identified as Javier Ruiz, Lopez’s father-in-law. After being gone
approximately 30 to 45 minutes, Cosio returned to the McDonald’s. Cosio, Lopez, and
Ruiz then met in the parking lot where they briefly conversed. Cosio then drove away in
the Jeep and Lopez and Ruiz drove away in the Lancer, which they co-owned.
According to Deputy Dearmon, Lopez and Ruiz’s exchange of vehicles with Cosio
was an odd act for law-abiding citizens, but common conduct for drug traffickers. Sgt.
Ortegon provided the jury with the following explanation as to why drug traffickers switch
vehicles:
Vehicle switch is, first and foremost, it's a collateral where one subject
will leave his vehicle in assurance to the other subject that he's going to
3
According to Sgt. Ortegon, a “stash house” is a location in which narcotics are stored until they are
dissem inated to individual buyers. Testim ony revealed that at som e point after Lopez's arrest, authorities
entered the Staghill residence and uncovered drug paraphernalia, which included ledgers, m oney counters,
rubber bands, and Food Saver vacuum seal bags.
3
return with his vehicle.
Then once they switch vehicles, one is taken off and it's loaded with
the various narcotics. And then it's returned back, and then they make the
switch.
What that does is, one, it assures that he's going to come back with
his vehicle.
And, two, it prevents the disclosure of the location where they're
getting the narcotics from, where it's being stored, where it's being housed
until it's disseminated.
So—and that in and of itself protects the other side of the subject so
that they're not getting robbed. So that somebody isn't there to rob them and
steal their narcotics or to steal their money that they have.
According to his testimony, Sgt. Ortegon believed that Lopez switched vehicles with Cosio
for the above reasons. His testimony was supplemented by Deputy Dearmon, who, on
direct examination, explained the role he believed Lopez played in the purported drug
transaction:
Q: Okay. And, so, would you agree with me that Lopez and Ruiz are probably
a little bit lower in the [drug] organization than Cosio?
A: I would agree with that, yes.
Q: Based on what?
A: Based on what I actually saw out there. Obviously, there was no
money exchanged that we knew of. We didn't see it.
But based on my experience, many times individuals are tasked with
just picking up a load of illegal narcotics and delivering it to another
location. And for lack of a better word, many times it's just referred to
in the drug business as mules. They were responsible for—for
moving it from one location to another location.
Deputy Dearmon did not follow Cosio out of the McDonald’s, but began to pursue
Lopez and Ruiz, instead. While following them, Deputy Dearmon contacted Deputy Steve
4
Shaddox of the HCSD. He directed Deputy Shaddox, who was driving a patrol vehicle, to
the Lancer’s location and instructed him to look for any type of traffic infraction that would
provide probable cause to stop the Lancer. Deputy Shaddox stopped the Lancer after its
driver committed an unsafe lane change. He approached the Lancer’s passenger side,
where he observed Ruiz sitting in the driver’s seat and Lopez in the front passenger seat.
Upon approaching the vehicle, Deputy Shaddox noticed that Lopez’s hands and arms were
“trembling.” According to Deputy Shaddox, Lopez “appeared to be upset by [his] presence”
and “appeared to be overly nervous.” Deputy Shaddox asked Ruiz for his driver’s license
and insurance, but Ruiz had neither. As a result, Ruiz was arrested and placed in the
backseat of the patrol vehicle. Deputy Shaddox subsequently asked Lopez for his driver’s
license and insurance, but Lopez had neither. Deputy Shaddox then asked if there were
any weapons or narcotics in the Lancer; Lopez stated that there were none. Lopez and
Ruiz were both asked if they would consent to the Lancer being searched and both gave
their consent orally and in writing.
The search was conducted by Deputy Wallace Wyatt of the HCSD, who arrived on
the scene at the time Ruiz was being placed in Deputy Shaddox’s patrol vehicle. Prior to
the search, Lopez was placed in the backseat of Deputy Wyatt’s patrol vehicle. Deputy
Wyatt searched the driver and passenger compartments, but found nothing. He then
opened the trunk and saw two large duffle bags; upon inspection, he concluded that the
bags contained cocaine. Deputies Wyatt and Dearmon both testified that the cocaine
emitted a strong odor, which they smelled upon opening the trunk.
Deputy Wyatt subsequently transported Lopez to jail, where he was detained for
further investigation. While being transported to jail, Lopez began to speak, prompting
5
Deputy Wyatt to turn on an audio recording device. The jury listened to the recorded
conversation and was provided with a transcript of the recording, which contained the
following:
DEPUTY WYATT: YOU HOT?
LOPEZ: WHO POINT THE FINGER?
DEPUTY WYATT: WHAT?
LOPEZ: WHO POINT THE FINGER?
DEPUTY WYATT: WHAT DO YOU MEAN “PUT THE FINGER?”?
LOPEZ: SOMEBODY POINT THE FINGER
DEPUTY WYATT: LIKE “POINT THE FINGER” WHAT DO YOU MEAN?
LOPEZ: NO...SOMEBODY PUT THE....WHOSE THAT?
Deputy Wyatt testified that, from his past experience, Lopez’s question—“Who point the
finger?”—meant “who told on me or who knew I was dealing the drugs, taking the drugs
somewhere and told you to stop me.”
Lopez’s fingerprints were not found on the duffle bags. An investigation of the duffle
bags’ contents revealed that each bag contained 25 bricks of cocaine, which had a
combined weight of 48.6 kilograms (approximately 107.14 pounds). Deputy Dearmon
testified that the wholesale value of a kilogram of cocaine was between $13,000 and
$15,000; under this estimate, the wholesale value of 48.6 kilograms of cocaine would be
between $630,500 and $729,000. Sgt. Ortegon testified that a kilogram of cocaine had a
street value of $100,000; under this estimate, the street value of 48.6 kilograms of cocaine
would be $4,860,000.
Lopez did not present a defense.
6
II. APPLICABLE LAW
In cases involving unlawful possession of a controlled substance, the State must
prove that the accused intentionally or knowingly exercised actual care, custody, control,
or management over the substance and that the accused knew the matter possessed was
contraband.4 Possession of contraband need not be exclusive and evidence which shows
that an accused jointly possessed the contraband with another is sufficient.5 Whether the
theory of prosecution is sole or joint possession, the evidence must link the accused to the
contraband in such a manner and to such an extent that a reasonable inference may arise
that the accused knew of the contraband’s existence and that he had possession of it.6
The evidence, be it direct or circumstantial, must establish, to the requisite level of
confidence, that the accused’s connection with the drug was more than just fortuitous;7 the
evidence must generate more than a strong suspicion or mere probability of guilt.8 Courts
require the State to satisfy this evidentiary burden in order to protect the innocent
bystander—a relative, friend, or even stranger to the actual possessor—from conviction
merely because of his fortuitous proximity to someone else’s drugs.9 Accordingly, mere
4
Acosta v. State, 752 S.W .2d 706, 707 (Tex. App.–Corpus Christi 1988, pet. ref’d).
5
Martin v. State, 753 S.W .2d 384, 387 (Tex. Crim . App. 1988).
6
Lassaint v. State, 79 S.W .3d 736, 740 (Tex. App.–Corpus Christi 2002, no pet.).
7
Poindexter v. State, 153 S.W .3d 402, 405-06 (Tex. Crim . App. 2005). Until recently, this principle
was referred to as the “affirm ative links rule,” term inology that has been abandoned in favor of sim ply referring
to the evidentiary “links” between the accused and the contraband. See Evans v. State, 202 S.W .3d 158, 162
n.9 (Tex. Crim . App. 2006) (noting “‘affirm ative’ adds nothing to the plain m eaning of ‘link’” and court will
henceforth “use only ‘link’”).
8
Grant v. State, 989 S.W .2d 428, 433 (Tex. App.–Houston [14th Dist.] 1999, no pet.).
9
Poindexter, 153 S.W .3d at 406.
7
presence in the vicinity of contraband that is being used or possessed by others does not,
by itself, support a finding that the accused is a joint possessor or a party to the offense.10
Along the same line, mere presence does not make an accused a party to joint possession
even if the accused knows of the existence of the contraband and has knowledge of an
offense.11
When an accused is not in exclusive possession of the place where the contraband
is found, it cannot be concluded or presumed that the accused had knowledge of or control
over the contraband unless there are additional independent facts and circumstances
connecting or linking the accused to the knowing possession of the contraband.12
Similarly, when the contraband is not found on the accused’s person or it is not in the
exclusive possession of the accused, additional independent facts and circumstances must
link the accused to the knowing possession of the contraband.13
Several factors may help to establish a link between the accused and the
contraband, including, among others, the following: (1) whether the contraband was in
plain view or recovered from an enclosed place; (2) the accused was the owner of the
premises or had the right to possess the place where the contraband was found, or was
the owner or driver of the automobile in which the contraband was found; (3) the accused
was found with a large amount of cash; (4) the contraband was conveniently accessible
10
See, e.g., Harvey v. State, 487 S.W .2d 75, 77 (Tex. Crim . App. 1972).
11
Allen v. State, No. 03-04-00557-CR, 2008 Tex. App. LEXIS 1709, at *24 (Tex. App.–Austin Mar.
7, 2008, no pet. h.).
12
Lassaint, 79 S.W .3d at 740.
13
Id.
8
to the accused, or found on the same side of the vehicle as the accused was sitting; (5) the
contraband was found in close proximity to the accused; (6) a strong residual odor of the
contraband was present; (7) the accused possessed other contraband when arrested; (8)
paraphernalia to use the contraband was in view, or found on the accused; (9) the physical
condition of the accused indicated recent consumption of the contraband in question; (10)
conduct by the accused indicated a consciousness of guilt; (11) the accused attempted to
escape or flee; (12) the accused made furtive gestures; (13) the accused had a special
connection to the contraband; (14) the occupants of the premises gave conflicting
statements about relevant matters; (15) the accused made incriminating statements
connecting himself to the contraband; (16) the quantity of the contraband; and (17) the
accused was observed in a suspicious area under suspicious circumstances.14
There is no established or set formula of factors that would dictate a finding of a link
to support a reasonable inference of knowing possession of contraband.15 One reason for
this is that a factor that contributes to the sufficiency of evidence that the accused
possessed contraband in one case, may be of little or no value in a different case.16
Though the number of factors is not as important as the logical force the factors have in
establishing the elements of the offense,17 it is seldom that any one factor will have the
logical force sufficient to sustain a conviction based on constructive possession of
14
Id. at 740-41.
15
Allen, 2008 Tex. App. LEXIS 1709, at *29 n.13.
16
See id.
17
Evans, 202 S.W .3d at 166; Lassaint, 79 S.W .3d at 741.
9
contraband.18 Ultimately, the question of whether the evidence is sufficient to link the
accused to the contraband must be answered on a case-by-case basis.19
III. LINKS BETWEEN LOPEZ AND THE COCAINE
In Ruiz v. State, the First Court of Appeals rejected a legal and factual sufficiency
challenge raised by Lopez’s father-in-law, Javier Ruiz, who was separately tried and
convicted for possessing the cocaine found in the Lancer.20 In finding that a link between
Ruiz and the cocaine existed, the court considered the amount of the cocaine that was
recovered from the trunk,21 as well as the following facts and circumstances:
(1) Cosio talked to [Ruiz] and Lopez in the McDonald’s parking lot, where
they exchanged something, and Cosio left McDonald’s driving the Lancer,
consistent with drug trafficking; (2) Lopez and [Ruiz] did not appear to order
any food while at McDonald’s, but seemed only to be waiting for Cosio’s
return; (3) Lopez and [Ruiz] met Cosio in the McDonald’s parking lot when
Cosio returned, where the three conversed, they exchanged something
again, and Lopez and [Ruiz] got into the Lancer to drive away; (4) [Ruiz] and
Lopez did not have their licenses or vehicle registration, which is common
with drug dealers who do not want to be detected; (5) the certified public
document from the Texas Department of Transportation regarding the
registered owners of the Lancer showed that [Ruiz] and Lopez owned the car
together; and (6) cocaine has a very strong odor, even if sealed, and the
odor was immediately noticeable and overwhelming to Deputy Wyatt.22
Unlike in Ruiz, there is no testimony in the instant case to establish that (1) both Lopez and
Ruiz talked with Cosio when he initially arrived at the McDonald’s (testimony established
18
Allen, 2008 Tex. App. LEXIS 1709, at *29 n.13.
19
Lassaint, 79 S.W .3d at 741.
20
Ruiz v. State, No. 01-06-00018-CR, 2006 Tex. App. LEXIS 10318, at *4 (Tex. App.–Houston [1st
Dist.] Nov. 30, 2006, no pet.) (m em . op., not designated for publication).
21
Id. at *10.
22
Id. at *13
10
that only Lopez initially met and spoke with Cosio); (2) Cosio made any hand-to-hand
exchanges with either Lopez or Ruiz; (3) Lopez and Ruiz did not appear to order any food
while at the McDonald’s; or (4) the failure of Lopez and Ruiz to carry their driver’s licenses
and vehicle registration was behavior consistent with drug dealers who wished to avoid
detection.23
Many of the evidentiary factors traditionally used to establish a link between an
accused and the contraband are not present in this case: (1) Lopez was not found with a
large amount of cash; (2) the contraband was not conveniently accessible to Lopez;24 (3)
the contraband was not in close proximity to Lopez;25 (4) Lopez did not present other
contraband when arrested; (5) paraphernalia to use the contraband was not in view, or
found on Lopez; (6) Lopez’s physical condition did not indicate recent consumption of the
contraband in question; (7) Lopez did not attempt to escape or flee; (8) Lopez did not make
any furtive gestures;26 (9) Lopez did not have a special connection to the contraband; (10)
23
Assum ing, arguendo, that there was testim ony to establish the latter two points, we would still have
im m ense difficulty affording any weight to this testim ony. First, the testim ony at trial established that Deputy
Dearm on followed Cosio when he left the McDonald’s in the Lancer, thus leaving no law enforcem ent agents
to watch Lopez and Ruiz at the McDonald’s. Lopez and Ruiz rem ained unobserved at the McDonald’s for a
few m inutes until Deputy Dearm on returned to wait for Cosio. Based on these facts, it is hard to exclude the
possibility that Lopez and Ruiz ordered food at the McDonald’s— a fast-food establishm ent— and consum ed
it prior to Deputy Dearm on’s return. Second, the notion that Lopez and Ruiz did not possess their licenses
and vehicle registration to avoid detection is dubious considering that they willingly and truthfully provided their
nam es and dates of birth when giving written consent for the search of their vehicle.
24
“The term ‘conveniently accessible’ m eans that the contraband m ust be within the close vicinity of
the accused and easily accessible while in the vehicle so as to suggest that the accused had knowledge of
the contraband and exercised control over it.” Robinson v. State, 174 S.W .3d 320, 326 (Tex. App.–Houston
[1st Dist.] 2005, pet. ref’d) (em phasis added). In the present case, the cocaine was not accessible to Lopez,
who was sitting in the passenger com partm ent.
25
See Jenkins v. State, 76 S.W .3d 709, 717 (Tex. App.–Corpus Christi 2002, pet. ref’d) (finding that
contraband found in vehicle’s trunk was not in close proxim ity to the accused, who was a front seat
passenger).
26
“Furtive” gestures are generally defined as those which are surreptitious, underhanded, or done by
stealth. W EBSTER 'S C OLLEGIATE D IC TIO N AR Y 474 (10th ed., Merriam -W ebster, Inc. 1993).
11
Lopez and Ruiz did not give conflicting statements; and (11) Lopez was not observed in
a suspicious area.27
We also find that two additional factors—“a strong residual odor of contraband was
present” and “the contraband was in plain view or recovered from an enclosed
space”28—are also not present in this case. First, we afford no weight to any testimony
relating to the cocaine’s odor because Deputies Wyatt and Dearmon testified that they only
smelled the cocaine once the trunk was open. At no time did either of them testify that the
odor of the cocaine was detectable while sitting in the Lancer’s front-passenger
compartment with the doors and trunk closed, nor did either testify that Lopez opened the
Lancer’s trunk after Cosio returned the vehicle.29 There was also no evidence that Lopez
recognized the smell of cocaine.30
Second, though the cocaine was found in an enclosed space (i.e., the Lancer’s
trunk),31 we believe that no weight should be afforded to this fact. Though there are a
27
See Lassaint, 79 S.W .3d at 740-41.
28
See id.
29
See Mar v. State, 814 S.W .2d 898, 900 (Tex. App.–San Antonio 1991, no pet.) (discounting officer’s
testim ony that drugs discovered within a vehicle’s trunk sm elled, because the vehicle contained a partition
between the trunk and passenger com partm ent); see also Oaks v. State, 642 S.W .2d 174, 177 (Tex. Crim .
App. 1982) (“The appellant was standing either six to eight inches or two feet from the trash can where the
heroin was found. . . . The m ajority of the Court of Appeals concluded the heroin was in plain view from
appellant’s location. This is not supported by the evidence. No one placed him self in appellant’s position and
stated that he could see the heroin in the trash can from that location.”); Allen, 2008 Tex. App. LEXIS 1709
at *38 (recognizing that officer’s testim ony that he was able to locate cocaine on top of a refrigerator did not
prove that the cocaine was in plain view of appellant, given that she was only seen in the living room and she
was seven inches shorter than the officer).
30
See Reyes v. State, 575 S.W .2d 38, 40 (Tex. Crim . App. [Panel Op.] 1979); Armstrong v. State,
542 S.W .2d 119, 120 (Tex. Crim . App. 1976); Mar, 814 S.W .2d at 900.
31
See Hudson v. State, 128 S.W .3d 367, 374 (Tex. App.–Texarkana 2004, no pet.) (finding trunk of
vehicle an enclosed space).
12
number of cases that have treated the fact that contraband was found in an enclosed
space within a vehicle as a link between the accused and the contraband, these cases
have involved instances in which the duration of the contraband’s presence in the enclosed
space was unknown. In the instant case, the State implicitly asked the jury to find that
Cosio placed the cocaine in the Lancer’s trunk during the time Lopez was observed at the
McDonald’s; we presume that the jury made this finding.32 There was no evidence that
Lopez ever opened the trunk when Cosio returned to the McDonald’s in the Lancer. Under
these circumstances, the fact that the cocaine was found in the trunk—even when viewed
in the light most favorable to the verdict—cannot possibly assist a rational fact-finder in
arriving at the conclusion that Lopez had knowledge of the cocaine’s presence in the trunk.
The only remaining factors listed in Lassaint that appear to be present are the
following: (1) Lopez was an owner and occupant of the vehicle containing the contraband;
(2) Lopez’s conduct (i.e., nervousness) indicated a consciousness of guilt; (3) Lopez made
incriminating statements connecting himself to the contraband; (4) Lopez was in a vehicle
that contained a large quantity of contraband; and (5) Lopez, though not observed in a
suspicious place, was observed under suspicious circumstances.33 With regard to the first
listed factor, we observe that because Lopez and Ruiz both occupied the Lancer when the
cocaine was discovered, the fact that Lopez owned and occupied the Lancer cannot, by
32
It is in the State’s benefit that we presum e the jury m ade this finding. If we presum e otherwise, the
State’s theory of what transpired at the McDonald’s ceases to m ake sense, and it becom es im m ensely difficult
to understand how Lopez’s loaning of the Lancer to Cosio establishes his knowledge of drug activity and, as
a result, the cocaine.
33
See Lassaint, 79 S.W .3d at 740-41.
13
itself, permit a conclusion or presumption that he knew of the cocaine’s presence.34
Additional independent facts and circumstances must exist in order to link Lopez to the
cocaine.35 Consequently, our legal and factual sufficiency review involves determining
whether the remaining four factors create the additional independent facts and
circumstances necessary for linking Lopez to the cocaine.
IV. LEGAL SUFFICIENCY
A. Standard of Review
In his first issue, Lopez argues that the evidence is legally and factually insufficient
to prove that he knowingly exercised care, custody, control, or management of the cocaine,
or that he knowingly possessed the cocaine. When there is a challenge to the legal
sufficiency of the evidence to sustain a criminal conviction, we consider whether a rational
trier of fact could have found the essential elements of the offense beyond a reasonable
doubt.36 The “reasonable alternative hypothesis” analysis for reviewing the legal sufficiency
of circumstantial evidence has been abandoned.37 The consequence of this “is that each
defendant must still be affirmatively linked with the drugs he allegedly possessed, but this
link need no longer be so strong that it excludes every other outstanding reasonable
hypothesis except the defendant’s guilt.”38
In addressing a legal sufficiency challenge, we review all the evidence in the light
34
See id. at 740.
35
See id.
36
Vodochodsky v. State, 158 S.W .3d 502, 509 (Tex. Crim . App. 2005).
37
Sonnier v. State, 913 S.W .2d 511, 516 (Tex. Crim . App. 1995).
38
Brown v. State, 911 S.W .2d 744, 748 (Tex. Crim . App. 1995).
14
most favorable to the verdict and assume that the trier of fact resolved conflicts in the
testimony, weighed the evidence, and drew reasonable inferences in a manner that
supports the verdict.39 It is not necessary that every fact point directly and independently
to the defendant's guilt, but it is enough if the conclusion is warranted by the combined and
cumulative force of all the incriminating circumstances.40 We must consider all the
evidence, rightly or wrongly admitted, that the trier of fact was permitted to consider.41
B. Discussion
In order to establish that Lopez had knowledge of the cocaine found in the Lancer,
the State presented the jury with the theory that both Lopez and Cosio knowingly
participated in a drug transaction at the McDonald’s. This theory was predicated on the
jury inferring that Cosio placed the cocaine in the trunk while Lopez remained at the
McDonald’s. We believe the jury could have reasonably made this inference upon hearing
that (1) TNET had intelligence on Cosio that tied him to possible drug trafficking; (2) prior
to his initial arrival at the McDonald’s, Cosio was observed engaging in suspicious activity
that was consistent with drug trafficking behavior; (3) prior to his initial arrival at the
McDonald’s, Cosio visited the Staghill residence, a suspected stash house where drug
paraphernalia was later discovered; (4) Cosio’s act of arriving at the McDonald’s in the
Jeep and departing in the Lancer reflected the sort of vehicle switching that drug traffickers
engage in for the purpose of transferring contraband from one party to another; and (5)
Deputy Dearmon testified that he strongly believed that Cosio had driven the Lancer to the
39
See Rollerson v. State, 227 S.W .3d 718, 724 (Tex. Crim . App. 2007).
40
Hooper v. State, 214 S.W .3d 9, 13 (Tex. Crim . App. 2007).
41
See Conner v. State, 67 S.W .3d 192, 197 (Tex. Crim . App. 2001).
15
Staghill residence, which was only one to two miles away from the McDonald’s.42
The State’s theory also required the jury to infer that Lopez knowingly allowed Cosio
to temporarily possess the Lancer for the purpose of placing cocaine within it. When the
evidence is construed in a light most favorable to the verdict, we deem that the jury could
have reasonably made such an inference. Because Lopez co-owned the Lancer and was
the only owner who conversed with Cosio before he took possession of the vehicle, the jury
could have concluded that Cosio had to acquire Lopez’s consent to leave the McDonald’s
in the Lancer. The jury could have then determined that the only plausible reason Lopez
would have allowed Cosio to take sole possession of the Lancer, when Cosio’s Jeep
appeared operable, was to engage in a drug transaction. This was the only explanation
the jury was provided. Furthermore, the jury was told that the cocaine’s wholesale value
was between $630,500 and $729,000. The jury could have concluded that Cosio would
not have placed such valuable cargo in Lopez’s possession, while leaving him ignorant of
all details surrounding his responsibility and the importance of the cargo in his care.43
Lastly, the jury could have concluded that Lopez knew of the cocaine’s presence upon
finding that (1) his nervous demeanor evidenced a consciousness of guilt,44 and (2) his
42
See Hooper, 214 S.W .3d at 16 (stating that an inference is a conclusion reached by considering
other facts and deducing a logical consequence from them , and noting that juries are perm itted to draw
m ultiple reasonable inferences from either direct or circum stantial evidence).
43
See United States v. Del Aguila-Reyes, 722 F.2d 155, 157 (5th Cir. 1983); Menchaca v. State, 901
S.W .2d 640, 652 (Tex. App.–El Paso 1995, pet. ref’d); Castellano v. State, 810 S.W .2d 800, 806 (Tex.
App.–Austin 1991, no pet.).
44
See James v. State, No. 01-06-00496-CR, 2008 Tex. App. LEXIS 545, at *10 (Tex. App.–Houston
[1st Dist.] Jan. 24, 2008, no pet. h.) (recognizing that it is within the jury’s province to conclude that the
accused’s nervousness was due to a consciousness of guilt, rather than som ething else); but cf. Lassaint, 79
S.W .3d at 744 (declining to find, in the course of a legal sufficiency review, that the accused—a passenger
in a vehicle stopped by law enforcem ent— dem onstrated a consciousness of guilt through his nervousness,
because the evidence established that the accused was also cooperative).
16
question to Deputy Wyatt—“Who point the finger?”—was an incriminating statement
connecting him to the cocaine, as interpreted by Deputy Wyatt.
In light of the jury’s ability to make the aforementioned inferences,45 as well as the
evidence establishing that Lopez occupied and owned the Lancer when the cocaine was
discovered—we deem there was some evidence permitting the jury to reasonably
conclude beyond a reasonable doubt that Lopez had knowledge of the mere presence of
cocaine, and that he had knowledge of his possession of cocaine.46
V. FACTUAL SUFFICIENCY
A. Standard of Review
In his second issue, Lopez argues that the evidence is factually insufficient to prove
that he knowingly exercised care, custody, control, or management of the cocaine, or that
he knowingly possessed the cocaine. When reviewing the factual sufficiency of the
evidence to support a conviction, we review all the evidence in a neutral light, favoring
neither party.47 We then ask (1) whether the evidence supporting the conviction, although
legally sufficient, is nevertheless so weak that the jury’s verdict seems clearly wrong or
manifestly unjust, or (2) whether, considering conflicting evidence, the jury’s verdict is
45
W e find that the jury reasonably m ade the necessary inferences based upon the com bined and
cum ulative force of all the evidence when viewed in the light m ost favorable to the verdict. See Hooper, 214
S.W .3d at 16-17.
46
See United States v. W illiams-Hendricks, 805 F.2d 496, 501 (5th Cir. 1986) (“As the owner of the
truck, Hendricks had control over who used it and how it was used. Hendricks allowed W illiam s to drive the
truck back to the United States and accom panied him on the trip. W hen considered with other evidence in
this case, control over the vehicle where contraband is found is sufficient evidence by which a jury could infer
that Hendricks possessed the m arijuana.”); Sendejo v. State, 841 S.W .2d 856, 860 (Tex. App.–Corpus Christi
1992, no pet.).
47
W atson v. State, 204 S.W .3d 404, 414-15 (Tex. Crim . App. 2006); Drichas v. State, 175 S.W .3d
795, 799 (Tex. Crim . App. 2005).
17
against the great weight and preponderance of the evidence.48 An appellate court judge
cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because,
on the quantum of evidence admitted, she would have voted to acquit had she been on the
jury.49 Nor can an appellate court declare that a conflict in the evidence justifies a new trial
simply because it disagrees with the jury’s resolution of that conflict.50 Nevertheless,
though due deference must be given to the fact finder's determinations—particularly those
concerning the weight and credibility of the evidence—the reviewing court may disagree
with the result in order to prevent a manifest injustice.51
The court of criminal appeals has stated that “[w]hile alternative hypotheses may be
a factor in conducting a factual sufficiency review,” it has “never held that the old
outstanding reasonable hypothesis test must be satisfied for the evidence to be factually
sufficient.”52 As explained by the Dallas Court of Appeals in Richardson v. State:
[A] reviewing court conducting a factual sufficiency analysis necessarily
considers any reasonable alternative reasonable hypotheses raised by the
evidence. The very nature of a factual sufficiency review requires the court
to consider all of the evidence presented at trial and not just that which is
favorable to the verdict. Therefore, if the evidence suggests the existence
of a reasonable alternative reasonable hypothesis, the court cannot ignore
it and still properly perform the analysis required under Clewis. However, the
mere existence of an alternative reasonable hypothesis does not render the
evidence factually insufficient. . . . [E]ven when an appellant identifies an
alternative reasonable hypothesis raised by the evidence, the standard of
48
W atson, 204 S.W .3d at 414-15, 417; Johnson v. State, 23 S.W .3d 1, 11 (Tex. Crim . App. 2000).
49
W atson, 204 S.W .3d at 417.
50
Id.
51
Johnson, 23 S.W .3d at 9; Cain v. State, 958 S.W .2d 404, 407 (Tex. Crim . App. 1997).
52
Goodman v. State, 66 S.W .3d 283, 298 (Tex. Crim . App. 2001).
18
review remains the same.53
B. Discussion
While viewing the evidence in a neutral light does not alter the cumulative force of
the evidence permitting the fact-finder to infer that Cosio placed the cocaine in the Lancer,
it does diminish the strength of the link establishing Lopez’s knowledge of the cocaine.
1. Suspicious Activity at the McDonald’s
Because weighing the factual sufficiency of the evidence obligates us to consider
the entirety of the evidence in a neutral light, we need not ignore that (1) there are
numerous links, discussed above, that weigh against there being a nexus between Lopez
and the cocaine; (2) there is no evidence that Lopez had any previous involvement with
drug trafficking; (3) TNET had intelligence tying Cosio to drug trafficking, but no intelligence
involved Lopez; (4) there is no evidence that Lopez was aware of Cosio’s driving activity
prior to Cosio’s initial arrival at the McDonald’s; (5) there is no evidence that Lopez had
ever met or spoken with Cosio prior to their observed conversations at the McDonald’s;54
(6) there is no evidence that Lopez and Cosio were discussing anything relating to
contraband at the McDonald’s;55 (7) there is no evidence that Lopez knew where Cosio had
driven the Lancer; and (8) Deputy Dearmon and Sgt. Ortegon testified that it was possible
53
Richardson v. State, 973 S.W .2d 384, 387 (Tex. App.–Dallas 1998, no pet.); see generally Harris
v. State, 133 S.W .3d 760, 763-65 (Tex. App.–Texarkana 2004, pet. ref’d); Orona v. State, 836 S.W .2d 319,
322 (Tex. App.–Austin 1992, no pet.).
54
On cross-exam ination, Deputy Dearm on and Sgt. Ortegon both acknowledged that it was possible
that Lopez and Cosio were m eeting at the McDonald’s for the first tim e. Deputy Dearm on acknowledged that
he did not have any evidence of a longstanding relationship between Lopez and Cosio.
55
W hen asked on cross-exam ination whether Lopez and Cosio could have been discussing
“som ething com pletely innocent,” Deputy Dearm on responded, “I have no idea what they said, sir.”
19
that Lopez lent the Lancer to Cosio for innocent reasons, and that Lopez did not know
Cosio would place contraband in the vehicle. These facts cut into a fact-finder’s ability to
conclude that Lopez allowed Cosio to take possession of the Lancer because Lopez was
knowingly participating in a drug transaction.
2. Quantity of Contraband
With regard to the quantity of contraband, we note that the contention that a
contraband’s monetary value can create an inference of knowledge has been criticized.56
Nevertheless, even if we embrace the contention, and thus conclude that Cosio would not
have placed valuable cargo in the Lancer without its owner’s knowledge, no evidence
excludes the possibility that Cosio made his actions known to Ruiz, but not Lopez. In fact,
Sgt. Ortegon acknowledged that it was possible that Ruiz knew Cosio, but Lopez did not.
56
In Del Aguila-Reyes, Justice Rubin’s dissent criticized the m ajority’s use of the contention, stating:
My brethren infer guilt from the value of the cargo and the supposition that the owner
of so precious a store of contraband would not likely entrust it to an innocent. I do not know
how the m inds of narcotics dealers work, but the inference that dupes who are unaware that
they carry valuable cargo are less likely to steal it than witting accom plices appears to m e
equally tenable.
722 F.2d at 158 (Rubin, J., dissenting). In United States v. Littrell, 574 F.2d 828 (5th Cir. 1978), the Fifth
Circuit rejected the governm ent’s attem pt to use the value of contraband to infer knowledge:
It is entirely possible that Littrell did not know the cocaine was in the car. The governm ent
suggested at oral argum ent that such an interpretation is not reasonable because a drug
“boss” would not entrust delivery of several thousand dollars worth of cocaine to som eone
who did not know of its presence or who did not know of the drug operation itself. This
analysis has two critical flaws. First, drug bosses com e in all shapes and sizes and com e
from all walks of life. Here, that boss m ay have been a respected businessm an who dealt
in cocaine “on the side.” For all we know, Littrell could have been one of his “legitim ate”
em ployees, and the “boss” would have every reason to trust him . Second, we can hardly
presum e that Littrell knew of the drug operation; indeed, it m ight be an asset for such a
courier to be uninform ed about the nature of his delivery, since he would have no reason to
be nervous or apprehensive about a task he believed to be perfectly legitim ate. Thus, Littrell
m ay sim ply have been an unknowing “runner” in the delivery process.
Id. at 832-33.
20
3. Consciousness of Guilt: Nervousness
We next recognize that Lopez’s nervousness creates a tenuous link between him
and the cocaine. In Lassaint v. State, Lassaint argued that there was legally insufficient
evidence to support his conviction for possession with intent to deliver.57 At trial, a police
officer testified that before he discovered the contraband allegedly possessed by Lassaint,
he observed that Lassaint was nervous.58 In weighing that testimony, this Court noted that
though “[e]xcessive nervous behavior and unsettled demeanor may be examples of
consciousness of guilt[,] [t]he courts have recognized . . . that nervousness is a tenuous
link to the contraband because most people are somewhat nervous when confronted by
a police officer.”59 We then held that because the police officer’s testimony established
that Lassaint was both nervous and cooperative, his conduct did not indicate “a
consciousness of guilt.”60 As in Lassaint, the evidence in this case established that though
Lopez was nervous, he was also cooperative: he did not attempt to flee, he responded to
questions asked, and he provided oral and written consent to a search of the Lancer.
While knowledge of the cocaine’s presence in the trunk may have given rise to Lopez’s
nervousness, it may have just as easily resulted from (1) Deputy Shaddox’s presence by
itself;61 (2) his knowledge that neither he nor Ruiz were carrying either their licenses or
57
Lassaint, 79 S.W .3d at 739.
58
Id. at 743.
59
Id. (citation om itted).
60
Id.
61
Deputy Shaddox acknowledged at trial that som e individuals sim ply get nervous when stopped by
peace officers.
21
proof of insurance; or (3) the fact that he was not from this country.62
4. Incriminating Statement
We also observe that one could draw more than one inference from Lopez’s
statement to Deputy Wyatt: “Who point the finger?” On cross-examination, Lopez’s
counsel vocalized at least one competing inference when he asked Deputy Wyatt if the
statement could suggest an innocent person asking, “who set me up” or “who’s telling you
I did this?” Though Deputy Wyatt replied that an innocent person would not use the terms
utilized by Lopez, but would simply say, “I didn’t do anything,” case law reveals that even
a statement such as this is not immune from scrutiny.63
5. Logical Force of Factors Combined in Proving Knowledge
Though this Court can question and reveal weaknesses in every factor the State
utilizes to link Lopez to the cocaine, we cannot simply assess the strength of the State’s
case by analyzing every factor in isolation;64 rather, we must analyze the logical force of
62
Som e courts have even determ ined that a lack of nervousness m ay indicate guilt. See, e.g.,
Rosales v. State, 50 S.W .3d 650, 655-56 (Tex. App.–W aco 2001, pet. ref’d.) (stating that a “lack of surprise
or concern during a tem porary detention and investigation can suggest knowledge of the presence of
contraband”). As observed by Justice Brian Quinn in Valle v. State:
It is interesting how easily evidence of dem eanor can be m anipulated to m ean just
about anything. Som e suggest that nervousness indicates guilt. Others find culpability in a
suspect’s calm ness. Should he cooperate with law enforcem ent or consent to a search, then
that sim ply m eans (as one officer has insinuated here) he is setting him self up to later feign
surprise and innocence. But, if the suspect were to be uncooperative or refuse to perm it a
search, then he m ust be hiding som ething, som e would say. Interesting, indeed.
223 S.W .3d 538, 543 n.3 (Tex. App.–Am arillo 2006, pet. dism ’d).
63
See Valle, 223 S.W .3d at 542-43 (discussing a police officer’s testim ony, in which the officer opined
that the accused’s cooperativeness during a traffic stop, and his reaction of disbelief upon the officer’s
discovery of contraband, “is often an attem pt to m ask guilt”).
64
See Evans, 202 S.W .3d at 164.
22
the factors combined in establishing the elements of the offense.65 Upon assessing that
logical force, we must then determine whether it generates more than a strong suspicion
or mere probability of guilt.66
Based on a neutral view of the following facts, we find that the jury could have
reasonably inferred that at least one individual—either Lopez or Ruiz—knowingly
participated in a drug transaction with Cosio: (1) Lopez and Ruiz co-owned the Lancer; (2)
both were present at the McDonald’s and spoke with Cosio; (3) both were obviously aware
that Cosio had driven away in their vehicle for some purpose; (4) it can be reasonably
inferred, as explained above, that Cosio placed cocaine in the Lancer; and (5) it can be
reasonably inferred that Cosio would not have placed cargo valued at $630,500 to
$729,000 in the Lancer without informing at least one of its owners of all the details
surrounding his responsibility and the importance of the cargo in his care.67 We do not
believe that this inference, by itself, permits a fact-finder to conclude beyond a reasonable
doubt that Lopez knew the Lancer contained cocaine. This Court does believe, however,
that a fact-finder can come to this conclusion when Lopez’s statement to Deputy Wyatt is
combined with the aforementioned facts.
It was the jury’s responsibility to resolve conflicts in the evidence and to draw
reasonable inferences from it. We presume that the jury chose to infer that Lopez’s
statement meant “who told on me or who knew I was dealing the drugs, taking the drugs
65
See Lassaint, 79 S.W .3d at 741.
66
See Grant, 989 S.W .2d at 433.
67
“[W ]e perm it juries to draw m ultiple reasonable inferences as long as each inference is supported
by the evidence presented at trial.” Hooper, 214 S.W .3d at 15.
23
somewhere and told you to stop me,” as suggested by Deputy Wyatt, rather than the
meaning proffered by Lopez’s counsel.68 In so doing, the jury rejected Lopez’s alternative
hypothesis that he was an innocent observer of a drug transaction between Ruiz and
Cosio.69 The jury may have found support for its interpretation from (1) the belief that the
words comprising the statement better lent themselves to the chosen interpretation, and
(2) the fact that, just a few minutes prior to making the statement, Lopez was observed
engaging in suspicious activity that resembled drug trafficking behavior. We thus afford
due deference to the jury’s findings and decline to reevaluate the weight the jury afforded
Lopez’s statement in arriving at its verdict.
Accordingly, we find that the evidence generates more than a strong suspicion or
mere probability that Lopez knew of the cocaine. Moreover, because the evidence
encompasses the fact that Lopez was an owner and occupant of the Lancer at the time the
cocaine was discovered, we find that the jury could conclude beyond a reasonable doubt
that Lopez knowingly possessed the cocaine.70 Though this case presents a close call, we
simply cannot say that—from the totality of the evidence when considered in a neutral
light—the evidence supporting conviction is so weak that the verdict seems clearly wrong
and manifestly unjust.
VI. CONCLUSION
68
The jury’s freedom to select am ong com peting interpretations has its lim itations. See Anderson
v. City of Bessemer, 470 U.S. 564, 574 (1985) (“W here there are two perm issible views of the evidence, the
fact finder’s choice between them cannot be clearly erroneous.”).
69
Though Lopez did not present evidence at trial, he raised the alternative hypothesis through cross-
exam ination of the State’s witnesses.
70
See W illiams-Hendricks, 805 F.2d 496 at 501; Sendejo, 841 S.W .2d at 860.
24
The judgment of the trial court is affirmed.
LINDA REYNA YAÑEZ,
Justice
Publish. TEX . R. APP. P. 47.2(b).
Opinion delivered and filed this
the 29th day of May, 2008.
25
Jaime Villarreal Lopez v. State
Combined Opinion