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Espino-Cruz v. State

Court of Appeals of Texas, Fourteenth District

September 24, 2019

MANUEL ESPINO-CRUZ, Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 1531630

          Panel consists of Justices Wise, Jewell, and Hassan (Hassan, J., dissenting).

          MAJORITY OPINION

          Kevin Jewell Justice

         A jury 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.

         Background

         A confidential source provided information about a drug trafficking organization to Houston Police Department ("HPD") Narcotics Officer Ariel Ferrer.[1] 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.

         Working 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.

         Ferrer 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.[2]

         A grand 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, Institutional Division.

         This appeal followed.

         Issues

         Appellant 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.

         A. Standard of Review

         When 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).

         Although 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 (Tex.Crim.App. 2000)).

         B. Governing Law

         The 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.

         To 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.

         Appellant 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.

         C. Possession

         We 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 contraband.

         Because 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 ...


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