Affirmed and Memorandum Opinion filed July 25, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-00774-CR
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MIGUEL NUNEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 1,013,463
M E M O R A N D U M O P I N I O N
Appellant, Miguel Nunez, was indicted for the felony offense of possessing more than 400 grams of heroin with the intent to deliver. A jury convicted and sentenced him to twenty-two years= confinement in the Texas Department of Criminal Justice and assessed a $75,000 fine. On appeal, he raises four issues: (1) the evidence is legally insufficient to sustain his conviction; (2) the evidence is factually insufficient to sustain his conviction; (3) the trial court reversibly erred when it didn=t grant his Batson challenge; and (4) the trial court reversibly erred when it sustained his objection to the State=s closing argument during punishment, but did not grant a mistrial. We affirm.
Factual and Procedural Background
On Monday, January 17, 2005, interdiction[1] officers with the Houston Police Department were surveilling the AmTrak station. They intercepted two couriers carrying more than twenty pounds of marijuana. While detaining these couriers for transport to the police station, Officer Gomez observed appellant and Angel Sanchez arrive in a cab with only a black briefcase and a red and black duffle bag. According to Officer Gomez, the two exited the cab and looked around nervously; the two were generally acting suspiciously and as drug couriers typically act. Due to their suspicious behavior, Officer Gomez called Officers Lopez and Heinle to join him as he approached appellant and Sanchez.
When Officers Lopez and Heinle arrived, Officer Gomez was already engaged in conversation with Sanchez. Officer Lopez engaged appellant in conversation, and Officer Heinle stood near to all four in order to provide protection if necessary. Appellant gave contradictory answers to questions and provided an Aodd@ explanation for why he had flown into Houston just hours earlier from Philadelphia and was attempting to purchase a train ticket back to Philadelphia so quickly after his arrival. Police searched a duffle bag appellant had with him and found a blue Abelly band.@ The belly band contained 773.4 grams of heroin of 49.8% purity.
At trial, testimony showed that once police had charged appellant, Officer Bradley of the Heroin Squad approached appellant and attempted to get his cooperation so as to capture other heroin dealers. Although the record indicates appellant ultimately did not cooperate, he told Officer Bradley that his mother sent him to Houston to retrieve the heroin, which was valued between $750,000 and $1,000,000.
Appellant testified at both phases of his trial and categorically denied the officers= version of what happened before and after his arrest. According to appellant, he purchased a one-way plane ticket from Philadelphia to Houston in order to visit his mother who had been visiting Houston and suffered from a medical emergency. He was notified of the emergency on Saturday, January 15, but could not raise the necessary funds for the plane ticket until Monday. Additionally, he took no clothes with him on his trip because he planned to stay with his mother=s friend, who would provide clothes. His neighbor, Sanchez, insisted on joining him on his trip. Appellant had no idea why Sanchez wanted to travel to Houston, but had no reason to forbid his coming. The two paid cash for one-way plane tickets because they did not know how long they would need to stay in Houston.
When they arrived at 10:30 a.m., according to appellant, Sanchez went somewhereCappellant did not know whereCfor over two hours. Appellant waited in a restaurant for Sanchez to return. Once Sanchez returned, the two took a cab and Sanchez directed the driver because he spoke English, but appellant did not.[2] At some point after arriving in Houston, appellant received a phone call from his sister in Philadelphia telling him that the emergency had ended and his mother was already home in Philadelphia. With the emergency resolved, there was no need for appellant to remain in Houston any longer. Sanchez had directed the cab driver to the train station, and the two began inquiring about train tickets to Philadelphia. It was at this point that officers approached the two. Appellant never gave officers permission to search any bag, claimed he did not own the duffle bag, and did not know anything about the drugs.
After hearing these competing versions of events, the jury convicted appellant and then sentenced him to twenty-two years= confinement and assessed a $75,000 fine. Appellant challenges the legal and factual sufficiency of the evidence, and contends the trial court reversibly erred by not granting his Batson challenge and not granting a mistrial after the State made certain comments in its punishment-phase closing argument.[3] We affirm.
Analysis
I. Legal Sufficiency
In his first point of error, appellant alleges the evidence is legally insufficient to sustain his conviction. In a legal-sufficiency challenge, we employ the familiar standard of viewing the evidence in the light most favorable to the verdict. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (en banc). If any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, we will affirm. Id.
As an initial matter, appellant contends we may not consider the rebuttal testimony of Officer Bradley because that evidence was admitted for impeachment purposes only. However, without a limiting instruction to the jury, evidence is admitted as general evidence and may be used for any purpose. Arana v. State, 1 S.W.3d 824, 829 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). Because appellant did not request or receive a limiting instruction, the evidence was admitted for all purposes. We now turn to an evaluation of the evidence.
Appellant argues that the evidence did not affirmatively link him to the contraband. To prove a case for possession of illegal drugs, the State must affirmatively link the defendant to the contraband. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). The State must prove that the defendant (1) exercised actual care, control, or custody of the substance; and (2) knew the substance was contraband. See Brown, 911 S.W.2d at 747. When the defendant did not exercise exclusive control over the place where the contraband was found, the State must provide evidence to affirmatively link the defendant to the contraband. Reed v. State, 158 S.W.3d 44, 47 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). Those links may be established by additional facts and circumstances raising a reasonable inference of the defendant=s knowledge and control. Id. When determining if the State established affirmative links, we examine the presence of certain factors such as the following: (1) the contraband was in plain view; (2) the contraband was accessible to the defendant; (3) the defendant was the owner of the place where the contraband was found; (4) the defendant was the driver of the automobile in which the contraband was found; (5) the contraband was found on the same side of the vehicle seat as the defendant was sitting; (6) the contraband was found in an enclosed place; (7) the odor of drugs was present; (8) paraphernalia to use the contraband was in view of or found on the defendant; (9) conduct by the defendant indicated a consciousness of guilt; (10) the defendant had a special connection to the contraband; (11) occupants of the vehicle gave conflicting statements about relevant matters; (12) the defendant appeared to be under the influence of drugs; and (13) affirmative statements connected the defendant to the contraband. Id. n.1 (citation omitted). In conducting our review, we are more concerned with the significance of the factors than the number of factors. See id. However, the affirmative linksCthe additional facts and circumstancesCneed not rule out every other reasonable hypothesis of innocence. See id.
The jury heard evidence that appellant admitted to being a drug courier. Specifically, appellant told officers that his mother sent him to Houston to retrieve a large amount of heroin for resale. Appellant traveled to Houston, made the drug transaction, and was en route to Philadelphia when apprehendedCall by his own admission. Even without this admission, police testified that appellant acted in a suspicious way, consistent with a drug courier. Appellant told police that the bag containing the drugs was hisCthough he disavowed owning the belly band in which the drugs were found. This evidence, viewed in the light most favorable to the verdict, is legally sufficient to support appellant=s conviction.
II. Factual Sufficiency
Appellant also raises a factual sufficiency challenge. Factual-sufficiency challenges require the reviewing court to consider and balance all the evidence in a neutral manner. See Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). In reviewing the evidence, an appellate court will determine the evidence is factually insufficient if: (1) the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or (2) in the event that there is evidence both supporting and contradicting the verdict, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484. An appellate court cannot, in light of deference given to the jury, substitute its own conclusions for that of the jury. See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Clewis, 922 S.W.2d at 133. AThe jury . . . is the exclusive judge of the facts proved, and of the weight to be given to the testimony.@ Tex. Code Crim. Proc. art. 38.04.
The jury heard appellant=s two versions of events: the one presented to Officer Bradley and discussed above; and (2) appellant=s version of events relayed while on the witness stand. It was the jury=s role to resolve the conflicts in that testimony, and it did so. We will not disturb that finding on appeal absent some contrary evidence that is strong enough such that guilt could not have been proven beyond a reasonable doubt. Appellant was arrested with the heroin, he admitted to one officer that his mother sent him to Houston to retrieve it, and that he was returning with the heroin to Philadelphia. The only contrary testimony was his trial version of events. Appellant=s testimony essentially alleged the police were lying regarding (1) his suspicious activities (2) his ownership of the bag containing the drugs, and (3) the illogical aspects of his story. It was the jury=s role to resolve these conflicts in testimony, which it did. The jury was justified in rejecting appellant=s testimony, determining he was not credible, and instead believing the officer=s testimony.
III. Batson Challenge
In his third issue, appellant contends we must reverse because the trial court did not conduct further proceedings in the third phase of a Batson challenge. At the close of voir dire, counsel for appellant raised a Batson challenge and the following discussion occurred between the judge and the lawyers in this case:
[Appellant]: I would like to make a Baston challenge.
The Court: All right.
[Appellant]: As to the only 2 Hispanic jurors on the whole panel that were struck by Mr. Jones. That would be No. 14 and juror No. 32.
The Court: 14 and 32.
[Appellant]: 14 and 32 Your Honor.
The Court: 14 and 32 All right. You have an explanation?
[State]: Yes, sir. For the record Your Honor the State represents that no challenge was made for any racial reason. State challenge [sic] juror No. 14 for the reason that she has a cousin in prison doing 10 years for a drug case and this is a drug case. Also she=s below 30 years of age.
The Court: And 32.
[State]: Which was the other one, 32? This is the juror that=s charged with theft Your Honor. Because she was charged with theft.
[Appellant]: Which she already testified about that Judge. She already told us in chambers that that was a long time ago and the case was dismissed so there=s really not a neutral reason why this juror should be dismissed.
As to juror No. 14 there are some other jurors that [the State] is allowed in [sic] who also have relatives who have criminal background [sic] that he=s let them in [sic].
[State]: Not that I=m aware of.
[Appellant]: This is nothing as to a pretext [sic] as to why these 2 are being dismissed.
The Court: I accept the reasons for both jurors.
Appellant complains because the trial court simply overruled his Batson challenge after both he and the State=s attorney stated their reasons why the strikes were race-motivated/race-neutral. It appears that appellant wanted the trial court to conduct further proceedings or engage in more analysis on the record. We have considered quite similar arguments in another case and rejected them. Peetz v. State, 180 S.W.3d 755, 758 (Tex. App.CHouston [14th Dist.] 2005, no pet.).
In Peetz, we reviewed the structure of a Batson hearing. We explained that Batson hearings have three distinct steps and a very specific role for the trial judge throughout the process. See id. In the first, the challenging party[4] must make a prima facie showing of discrimination. Id. In the second, the striking party must provide race-neutral reasons for his strike. Id. Those are both evidentiary steps. Id. at 759. In the third step, the trial court evaluates the evidence presented, considers its own perceptions of voir dire, and then determines whether or not the Batson challenge was sufficient. See id. Although on some occasions a trial court may decide to delve into the matter further, if the trial court is satisfied from the lawyers= answers and its own observations that it needs no further information, it need not conduct a further review of the challenge.
We afford the trial court great deference in its rulings because it observes the attorneys and venirepanel and is thus in a better position to evaluate whether the strikes were racially motivated or not. Id. Below, the trial court apparently decided from the lawyers= statements and its own observation of voir dire that the State=s strikes were not racially motivated. In addition, neither at trial nor on appeal did appellant specify which remaining venire members the State had treated differently from the venire members it struck.[5] This failure by appellant=s trial counsel also may have played some role in the trial court=s evaluation. Thus, the trial court followed the three-step procedure outlined in Peetz, and, on the basis of this record, we do not conclude that the trial court=s evaluation was clearly erroneous. See Peetz, 180 S.W.3d at 760. We overrule appellant=s third issue.
IV. Closing Argument
In his final issue, appellant contends the trial court erred when it sustained his objection to the State=s closing argument during the punishment phase, but did not grant a mistrial. Appellant=s issue concerns the following argument and exchange:
[The State]: Looking at this I think the testimony is that=s 473 grams, that the average - - the testimony is the average does [sic] is ten percent of that, one-tenth of a gram so that=s 400 and - - 440 grams. You can cut that at least ten times. That=s forty-seven thousand three-hundred opportunities, doses to kill somebody overdosing with Heroin. Forty-seven thousand opportunities to ruin a life, to destroy a child=s future, to destroy a community, to cause someone to be a high-jacker or somebody to support a Heroin addict, an opportunity to turn forty-seven thousand human beings into zombies, hopeless drug addicts. That=s what they=re doing to our society. If this were an explosive you realize if you detonated that - -
[Appellant]: Judge, I=m going to object to that. We almost arguing [sic] whether this was a terrorist case and it=s not. It=s improper argument and I object to it and ask that the jury - -
The Court: I sustain that.
[Appellant]: Ask for an instruction to disregard.
The Court: Jury will disregard.
[Appellant]: Move for mistrial Your Honor.
The Court: Be overruled.
(Emphasis added). Appellant contends that this argument was Aextreme and manifestly improper, and injected new facts harmful to the defendant into the trial proceeding.@
The approved general areas of argument are: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Even an impermissible argument, however, will not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper or injects new facts harmful to the accused into the trial proceeding. Id.
The trial court determined that the above-referenced argument was error and gave a limiting instruction. We presume juries comply with limiting instructions. Id. at 116. Only when the argument constitutes offensive or flagrant error will we reverse when there has been an instruction to disregard. Such was not the situation in this case.
Certainly, terrorism is an inflammatory topic in today=s world. And, appellant contends that the comments sought to equate him with a terrorist. However, in light of the entire statement, we do not believe the comment was so offensive and inflammatory as to constitute reversible error. The statement as a whole, and in light of the surrounding comments, simply referenced the serious impact distribution of such a large amount of heroin could have on a community. Though his analogy was one the trial court deemed to be error, it was not of such a magnitude that the instruction to disregard was inadequate. We overrule appellant=s final issue.
Conclusion
Having overruled each of appellant=s issues, we affirm the judgment of the trial court.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Memorandum Opinion filed July 25, 2006.
Panel consists of Justices Fowler, Frost, and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] As Officer Gomez testified, the Interdiction Squad is a specialized arm of the Houston Police Department trained in identifying narcotics couriers and traffickers utilizing public transportation.
[2] At the time of trial, appellant had lived in the United States only two years.
[3] We incorporate the necessary facts regarding the Batson challenge and the closing argument in the analysis section.
[4] The challenging party can be either the State or the defendant. In this appeal, the defendant challenged the State=s strikes; in Peetz, the State challenged the defendant=s strikes.
[5] Appellant has cited part of the voir dire transcript in which appellant=s trial counsel contended the State was making race-neutral strikes. However, appellant provides no other record cites or analysis for why the trial court=s decision was an abuse of discretion.