Appeal from the 232nd District Court Harris County, Texas
Trial Court Cause No. 1531630
consists of Justices Wise, Jewell, and Hassan (Hassan, J.,
convicted appellant Manuel Espino-Cruz of possession with
intent to deliver a controlled substance weighing more than
400 grams, and the trial court sentenced him to twenty
years' confinement in the Texas Department of Criminal
Justice, Institutional Division. In two issues, appellant
challenges the evidentiary sufficiency to support his
conviction. Appellant first contends the evidence is legally
insufficient to support a finding that he possessed the
controlled substance, heroin, because no evidence
affirmatively links him to the heroin. Appellant also argues
that the evidence is legally insufficient to support the
finding that appellant intended to deliver the heroin.
Concluding the evidence is sufficient in both respects, we
affirm the judgment.
confidential source provided information about a drug
trafficking organization to Houston Police Department
("HPD") Narcotics Officer Ariel
Ferrer. Ferrer arranged to purchase about 100
grams of heroin from the source's drug seller in a
"small-scale" buy, which would serve as a precursor
to a contemplated larger transaction. Ferrer conducted the
small buy in his car with a man and a woman. Ferrer could not
see the male's face clearly because he wore a surgical
face mask and sat in the car's backseat. No one was
arrested during this transaction because Ferrer planned to
arrange a larger purchase. Ferrer asked the male about
purchasing a larger quantity of heroin, and the individual
told Ferrer to talk to his boss.
through the confidential source, Ferrer arranged to purchase
seven pounds of black tar heroin. The confidential source
scheduled the transaction. On the day of the sale, the source
maintained contact with Ferrer to provide ongoing details.
The source contacted the sellers and provided Ferrer with
information about the sellers' vehicle, a Ford Fusion.
Ferrer was conducting surveillance nearby and saw the Ford
Fusion. He also saw the Fusion's two occupants, one of
whom was appellant. Ferrer saw the occupants talking with the
confidential source. After the confidential source made
contact with the sellers, the source left the scene in his
car, and the sellers followed directly behind him in the Ford
Fusion. Ferrer observed this activity from his location.
provided a description of the sellers' vehicle to patrol
units, which followed the Fusion for several blocks. When the
driver of the Fusion failed to signal a lane change, HPD
Officer Clifford Marshall stopped the Fusion. Marshall's
partner approached the driver, while Marshall approached
appellant, who occupied the front passenger seat. Appellant
and the driver were detained, and Marshall's partner
obtained the driver's consent to search the vehicle. When
Marshall opened the trunk, he immediately smelled a strong
odor of heroin. He found a large quantity of what he believed
to be heroin in a brown bag inside the trunk of the car.
Forensic analysis revealed the substance in the bag to be 3,
482.63 grams of heroin.
jury charged appellant with possession with intent to deliver
over 400 grams of a controlled substance, namely heroin. At
appellant's trial, Ferrer, Marshall, and a chemist
testified. The trial court instructed the jury that it could
convict appellant of the charged offense either as a
principal actor or under the law of parties. After hearing
the evidence and argument of counsel, the jury convicted
appellant. The trial court sentenced him to twenty years'
confinement in the Texas Department of Criminal Justice,
presents two issues for our review: (1) a challenge to the
legal sufficiency of the evidence to support his conviction,
and (2) a challenge to the trial court's denial of his
motion for directed verdict. Both issues turn on the legal
sufficiency of the evidence to support a conviction. See
Gabriel v. State, 290 S.W.3d 426, 435 (Tex.App.-Houston
[14th Dist.] 2009, no pet.); Lewis v. State, 193
S.W.3d 137, 139-40 (Tex.App.-Houston [1st Dist.] 2006, no
pet.). We address appellant's two issues together.
Standard of Review
reviewing the sufficiency of the evidence, we view all the
evidence in the light most favorable to the verdict and
determine whether a rational jury could have found the
elements of the offense beyond a reasonable doubt. See
Gear v. State, 340 S.W.3d 743, 746 (Tex.Crim.App. 2011)
(citing Jackson v. Virginia, 443 U.S. 307, 318-19
(1979)); Jackson v. State, 530 S.W.3d 738, 741
(Tex.App.- Houston [14th Dist.] 2017, no pet.). We consider
all evidence in the trial record, whether it was admissible
or inadmissible. Winfrey v. State, 393 S.W.3d 763,
767 (Tex.Crim.App. 2013). We also consider both direct and
circumstantial evidence, as well as any reasonable inferences
that may be drawn from the evidence. See Clayton v.
State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007).
we consider everything presented at trial, we do not
re-evaluate the weight and credibility of the evidence or
substitute our judgment for that of the fact finder. See
Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.
2007). Because the jury is the sole judge of the credibility
of witnesses and of the weight given to their testimony, any
conflicts or inconsistencies in the evidence are resolved in
favor of the verdict. Jackson, 530 S.W.3d at 741-42
(citing Wesbrook v. State, 29 S.W.3d 103, 111
State was required to prove appellant knowingly possessed
with intent to deliver a controlled substance listed in
penalty group I, which includes heroin. See Tex.
Health & Safety Code § 481.112(a), (e); see also
id. § 481.102(2) (identifying heroin as a member of
penalty group I). To support a defendant's conviction as
a principal actor, the State had to prove the defendant
"knowingly possessed" the contraband, which
requires proof that the defendant (1) exercised "actual
care, custody, control, or management" over the
substance and (2) knew the substance was contraband. See
id. § 481.002(38) (definition of possession);
Blackman v. State, 350 S.W.3d 588, 594
(Tex.Crim.App. 2011); Evans v. State, 202 S.W.3d
158, 161 (Tex.Crim.App. 2006). "Deliver" means to
transfer, actually or constructively, to another a controlled
substance, including an offer to sell a controlled substance.
Tex. Health & Safety Code § 481.002(8). The State
need not show exclusive possession of the contraband to
support conviction as a principal actor. Robinson v.
State, 174 S.W.3d 320, 325 (Tex.App.-Houston [1st Dist.]
2005, pet. ref'd). Control over the contraband may be
exercised by more than one person. Id.
prove possession of a controlled substance as a party, the
State must show (1) that another possessed the contraband and
(2) the defendant, with the intent that the offense be
committed, solicited, encouraged, directed, aided, or
attempted to aid the other's possession. Id. at
324-25; see also Tex. Penal Code § 7.02(a)(2);
Vela v. State, No. 14-16-00786-CR, 2018 WL 1004699,
at *3-4 (Tex.App.-Houston [14th Dist.] Feb. 22, 2018, pet.
ref'd) (mem. op., not designated for publication). To
determine whether the defendant participated as a party,
courts may look to events occurring before, during, and after
the commission of the offense, and may rely on the
defendant's actions that show an understanding or common
design to commit the offense. Vela, 2018 WL 1004699,
at *4 (citing Ransom v. State, 920 S.W.2d 288, 302
(Tex.Crim.App. 1994)). Mere presence or knowledge of an
offense does not make one a party to possession; instead, the
evidence must show that at the time of the offense, the
parties were acting together, each contributing some part
towards the execution of their common purpose. Id.
argues that the evidence shows nothing more than his presence
as a passenger in a car whose driver was involved in a drug
transaction, and that no evidence exists proving that he
intended to deliver the contraband. Therefore, his conviction
as a principal actor is improper. Further, he argues his
conviction is improper under the law of parties because there
is no evidence that appellant solicited, encouraged,
directed, aided, or attempted to aid the driver in possessing
the heroin. The State responds that legally sufficient
evidence exists to support appellant's conviction either
as a principal actor or as a party.
first examine whether the evidence is legally sufficient to
support appellant's conviction as a principal actor. The
State had to prove that appellant knowingly possessed the
heroin, i.e., that he exercised actual care, custody,
control, or management over the heroin and knew it was
appellant was not in exclusive possession of the place where
the controlled substance was found, we cannot conclude that
appellant had knowledge of and control over the contraband
unless the State establishes an "affirmative link"
between the accused and the contraband. See Poindexter v.
State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005),
overruled in part on other grounds by Robinson v.
State, 466 S.W.3d 166, 173 & n.32 (Tex.Crim.App.
2015); Robinson, 174 S.W.3d at 325. A link
"generates a reasonable inference that the accused knew
of the contraband's existence and exercised control over
it." Olivarez v. State, 171 S.W.3d 283, 291
(Tex.App.-Houston [14th Dist.] 2005, no pet.). The elements
of possession may be proven through direct or circumstantial