Alejandro Ojeda v. State

• Court: Court of Appeals of Texas
• Decided: September 24, 2004
• Docket: 08-02-00404-CR
• Status: Published

Opinion

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ALEJANDRO OJEDA,                                         )

                                                                              )               No.  08-02-00404-CR

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )                 168th Impact Court

THE STATE OF TEXAS,                                     )

                                                                              )            of El Paso County, Texas

Appellee.                           )

                                                                              )               (TC# 20000D03230)

                                                                              )

O P I N I O N

Alejandro Ojeda appeals his conviction for possession with intent to deliver more than four grams but less than two-hundred grams of heroin.  A jury found him guilty and the trial court assessed punishment at 35 years= imprisonment.  On appeal, Appellant raises four issues:  two deal with evidentiary matters; one raises a legal insufficiency argument; and the last issue challenges the trial court=s denial of Appellant=s motion to quash indictment.  We affirm.

At approximately 8 p.m. on November 3, 1999, Appellant, driving a gray 1991 Chrysler Caravan, approached the U.S. Customs inspection booth at the Paso Del Norte Bridge.  Martha Guerra was sitting in the front passenger seat.  During routine questioning, Customs Inspector Armando San Roman asked Appellant for his citizenship, his purpose for traveling to Mexico, and inquired about the vehicle=s ownership.  Appellant responded that he was a U.S. citizen, and that he had bought the vehicle about thirty days prior in Mexico.  As he was conducting the questioning, Inspector San Roman noticed Appellant Amoving around and sitting upright and getting nervous.@  Noticing that the vehicle did not have a front license plate, Inspector San Roman asked the Appellant and Ms. Guerra for identification and proceeded to the back of the vehicle.  Inspector San Roman testified at trial that Appellant=s demeanor by this time was unusual; Appellant was talking loud, getting tense, and then he sat upright and appeared to be getting anxious.  According to Inspector San Roman, Appellant=s nervous behavior was out of the ordinary.  In addition, Ms. Guerra, with the exception of declaring her citizenship, did not utter a word, although Inspector San Roman testified that he directed some questions towards her.^[1]  Inspector San Roman testified that she was sitting at the edge of her seat, just looking at him; she appeared to be nervous and anxious.  Inspector San Roman testified that Appellant=s behavior and Ms. Guerra=s silence made him get suspicious.

Inspector San Roman walked to the back of the vehicle and saw that the vehicle=s plates were from Kansas.  He returned back to the driver=s side and proceeded to ask the same questions he had asked before to verify that the answers were the same.  This time, Appellant stated that he had been in Juarez for about two to three hours and that the reason for his trip was to take Ms. Guerra=s cousin to Mexico.  Inspector San Roman then noticed that the names on Appellant=s and Ms. Guerra=s ID=s matched the names provided on a Abe on the lookout@ bulletin.  Inspector San Roman sent the vehicle to the secondary inspection station.^[2] 

Senior Inspection Officer Maria Elena Frazier was standing at Inspector San Roman=s booth when all this was happening, and walked alongside the vehicle to the secondary inspection booth.  Once the vehicle pulled into the secondary inspection booth, Inspector Frazier took a declaration from the Appellant in which he stated that he was not bringing anything back from Mexico.^[3]  She then had the Appellant and Ms. Guerra stand away from the vehicle. 

Inspector John Maxwell, trained as a canine enforcement officer, was asked to screen the Appellant and Ms. Guerra with the canine.  He testified that the canine is trained to alert to marijuana, hash, cocaine, heroin, and crystal meth, and that he is what is called a passive alerter.  This means that if the canine gets the odor of narcotics, he changes his behavior by wagging his tail, his ears come up, his breathing gets heavier, and then he sits next to where the odor is detected.  On this occasion, Inspector Maxwell testified that the canine alerted to both the Appellant and Ms. Guerra, who were standing about a foot apart.  The canine then went over to the open door of the vehicle, sniffed the passenger seat and alerted to it as well.  Although Inspector Maxwell testified that he is not trained to search a vehicle with the canine, he testified that the canine itself does not differentiate between contraband odor on people and vehicles. 

Once the canine had alerted to the Appellant and Ms. Guerra, Inspector Frazier escorted Ms. Guerra to the main building.  The Appellant was escorted by a male officer as well.  Inspector Frazier placed Ms. Guerra in a holding cell and then requested the assistance of Inspector Dianne Crissman in conducting a pat-down of Ms. Guerra.  Inspector Frazier asked Ms. Guerra to stand, put her hands against the wall, and spread her legs.  Initially, Ms. Guerra did not want to comply and had to be asked several times before Inspector Frazier had to push open her legs.  In conducting a pat-down of Ms. Guerra, Inspector Frazier felt a foreign substance in Ms. Guerra=s groin area.  Inspector Frazier asked Ms. Guerra to remove the object, but it was not until she asked Ms. Guerra if she needed medical assistance in removing the object that Ms. Guerra complied.  Ms. Guerra removed from her vaginal cavity a condom containing about four to five golf size balls of a black tar like substance which were wrapped in another condom.  The two condoms combined formed a cylinder like shape.  The substance field tested positive as heroin.  Further laboratory testing confirmed that the substance was in fact pure heroin containing some adulterants and dilutants, and that it weighed 125.19 grams. 

Inspector Frazier testified that she saw Ms. Guerra walking funny, as if she was holding something between her legs, but that she had not suspected she was hiding contraband, until the heroin was found.  Inspector Crissman testified that Ms. Guerra was taking very small steps, as if she was having a hard time walking.

Upon searching Ms. Guerra=s purse, Inspector Crissman testified that she found among other things, a condom.  A search of vehicle uncovered an open plastic bag sitting in between the driver=s seat and the passenger=s seat that contained an unopened box of condoms, an open box of condoms, two open condom wrappers, and lubricants, one container which was open.  The condom in Ms. Guerra=s purse matched the brand on the condom wrappers and both boxes. 

Over Appellant=s objections, Officer John Majerczyk, a thirteen-year veteran with the Metro Narcotics Task Force of the El Paso Sheriff Department, testified that on the day in question, he responded to a call that an arrest had been made in connection with some heroin being seized.  He testified that with information provided by a confidential informant, he placed a Abe on the look out@ bulleting regarding the possible trafficking of heroin.^[4]  Detective Majerczyk testified that he first made contact with Ms. Guerra and then went to Appellant=s holding cell.  When he met the Appellant, Officer Majerczyk stated that the first thing he did was tell Appellant that he was under arrest and then gave him his Miranda warnings.  Without asking Appellant any questions or informing him that heroin had been found on Ms. Guerra, Appellant told the officer that he could not be arrested because he was not carrying the heroin.  Officer Majerczyk also testified that Appellant would not provide a written statement.  The officer also noticed heavy tracks of heroin usage on Appellant=s forearms.  Finally, he testified that the street value of the heroin seized, once diluted, would be approximately $100,000.

Over the numerous and strong objections of Appellant=s counsel, the State introduced the testimony of Detective Jeff Gibson, of the El Paso Sheriff=s Department.  Detective Gibson testified that for the past ten years, he has been involved with the investigation of gang activity.  He also works closely with the FBI task force on gang activity and has published several documents regarding his findings.  Detective Gibson testified that he focuses on the Barrio Azteca gang.  He testified that Barrio Azteca is a prison gang that operates both inside and outside the prison system.  The gang consists of only male members, some of which are no longer in prison.  According to Detective Gibson=s testimony, the primary trade of the gang is the trafficking of narcotics, primarily heroin.  He testified that the heroin is often carried through at method known as body carrying.  He testified that females are often used to help traffic the heroin, with the normal procedure being that the female hides the heroin in her body cavity.  A male member of the gang will usually accompany the female to ensure the drugs are safely delivered.  Detective Gibson testified that he was only familiar with the Appellant from reports and other investigations.  After reviewing this information, he was of the opinion that Appellant was a member of the Barrio Azteca gang.  According to Detective Gibson, Appellant had admitted to being a gang member on more than one occasion, he had been arrested with other known gang members in criminal offenses, and his tattoos identified him with Barrio Azteca.^[5]

Appellant did not testify at trial nor did he offer any supporting testimony.  After hearing

all of the evidence, the jury found the Appellant guilty of possession of a controlled substance with the intent to deliver as charged by the indictment.  The trial court then sentenced the Appellant to thirty-five years= confinement.  The Appellant filed a motion for new trial which was apparently overruled as an operation of law.  Appellant now timely brings this appeal.

Gang-Membership Testimony

In Issue One, Appellant contends the trial court erred in admitting gang-membership and extraneous offense evidence at trial because such evidence was irrelevant and prejudicial.  At the guilty/innocent phase of the trial, over Appellant=s numerous objections, the trial judge allowed expert testimony regarding Appellant=s alleged affiliation with the prison gang known as Barrio Azteca.  The State contends that this evidence was properly admitted under Tex.R.Evid. 404(b) to prove the Appellant=s motive, plan, intent, and knowledge of the crime.

In determining whether a trial court erred in admitting evidence, we apply an abuse of discretion standard for review.  Mozon v. State, 991 S.W.2d 841, 846-47 (Tex.Crim.App. 1999); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996).  A trial court is found to have abused its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree.  Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991)(Op. on reh=g).  Absent such a finding, the trial court=s ruling on the admission of evidence will not be reversed.  Green, 934 S.W.2d at 101-02.

In order for Rule 404 evidence to be admissible, it must be relevant.  See Tex.R.Evid. 402.  Our first determination then must be whether the gang affiliation evidence is relevant under Texas Rule of Evidence 401.  Evidence is relevant if it has Aany tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.@  Tex.R.Evid. 401.  Contrary to Appellant=s argument, the gang-membership evidence was specifically linked to the case and was not used as character conformity evidence.  Detective Majerczyk=s testimony about Appellant=s affiliation with the Barrio Azteca gang and his testimony regarding Barrio Azteca=s trade being the trafficking of heroin, primarily by using a female=s body cavity to transport the contraband, and having that female accompanied by a gang member, was relevant to the offense.  We find that it was within the zone of reasonable disagreement for the trial court to find the gang membership evidence relevant.  See Green, 934 S.W.2d at 101-02.

We now turn to consider whether the evidence was admissible under Rule 404(b).  Texas Rule of Evidence 404(b) reads:

(b)        Other Crimes, Wrongs, or Acts.  Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.  It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State=s case-in-chief such evidence other than that arising in the same transaction. 

Tex.R.Evid. 404(b).

Under Rule 404(b), however, same transaction contextual evidence is admissible Aonly to the extent that it is necessary to the jury=s understanding of the offense.@  Pondexter v. State, 942 S.W.2d 577, 584 (Tex.Crim.App. 1996), quoting England v. State, 887 S.W.2d 902, 915 (Tex.Crim.App. 1994).  It is admissible only when the offense would make little or no sense without also bringing in the same transaction evidence.  Id.  The conduct must be blended or connected to the act for which the defendant is being tried so that they form an indivisible criminal transaction, such that full proof of one could not be given without showing the other.  Mayes v. State, 816 S.W.2d 79, 86 n.4 (Tex.Crim.App. 1991).  Same transaction contextual evidence is admissible as an exception under Rule 404(b) where such evidence is necessary to the jury=s understanding of the charged offense.  Nelson v. State, 864 S.W.2d 496, 498 (Tex.Crim.App. 1993); Camacho v. State, 864 S.W.2d 524, 532 (Tex.Crim.App. 1993).  It has long been held that the jury is entitled to know all relevant surrounding facts and circumstances of the charged offense; an offense is not tried in a vacuum.  Pondexter, 942 S.W.2d at 584, citing Moreno v. State, 721 S.W.2d 295, 301 (Tex.Crim.App. 1986).  The evidence is not admissible for the purpose of showing character conformity, but rather to illuminate the nature of the crime alleged.  Camacho, 864 S.W.2d at 532.

In this case, evidence regarding Appellant=s gang membership was interlaced with the offense.  Detective Gibson=s testimony regarding Appellant=s gang membership provided information essential to understanding the context of the offense and the circumstances surrounding Appellant=s involvement with Ms. Guerra.  Part of the explanation included the practice of Barrio Azteca=s trafficking of heroin in a female=s body cavity and having that female accompanied by a member of the Azteca=s to ensure safe delivery of the heroin.  Without such evidence, Appellant=s offense would have made little if any sense; the offense=s obscurity was eliminated with evidence that the Appellant was a gang member.

Furthermore, at trial, the State went into an in depth explanation as to the purpose of the evidence.  The State adamantly argued that the purpose of introducing such evidence was to show motive, intent, knowledge of the offense, and explicitly stated that the purpose of the evidence was not to show Appellant=s character.  We therefore find that the evidence was admissible under Texas Rule of Evidence 404(b).

Appellant additionally argues that the probative value of the evidence is substantially outweighed by its prejudicial effect on the jury.  Appellant argues that evidence of Appellant=s bad character distracted the jury from considering whether he was guilty of the crime charged.  In essence, Appellant argues that the Appellant was convicted because he was a gang member. Appellant argues that this is best demonstrated in the State=s closing argument. 

A Rule 403 balancing test includes, but is not limited to the following factors:  (1) how probative is the evidence; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent=s need for the evidence.  Reese v. State, 33 S.W.3d 238, 240-41 (Tex.Crim.App. 2000), citing Montgomery, 810 S.W.2d at 389-90.  However, after a review of the record, we find the State=s statement in its closing argument made it clear to the jury that the gang evidence was being used to show motive, intent, and knowledge.  We find that the State did not inflame the jury by mentioning the Appellant=s gang membership.  While we acknowledge that often times, society looks down upon gang members, and that this could potentially affect the jury in an emotional way, we note that the evidence in this case was necessary to provide the jury with a full account of the offense.  As we have stated above, the two crimes are so intertwined that the evidence of one is necessarily probative of the other.  In light of this, we find no abuse of discretion on the trial court=s part in its application of Rule 403.  See id.  We find no abuse of discretion on the part of the trial court in admitting the evidence regarding Appellant=s gang membership, and therefore, we overrule Issue One.

Motion to Quash Indictment

In Issue Two, Appellant alleges the trial court erred in denying his motion to quash the indictment on the basis that it did not provide the Appellant with adequate notice of the nature of the accusation against him since it failed to allege how the controlled substance was delivered.  Under the Tex.Health & Safety Code Ann. ' 481.002 (8)(Vernon Supp. 2004-05), delivery can be accomplished three different ways, and Appellant contends that failure to specify which theory the State would use failed to provide adequate notice of the charge against him as required by the U.S. Const. amend. VI and Tex.Const. art. I, ' 10.

In relevant part, the indictment alleged that on or about November 3, 1999, the Appellant,  Adid then and there unlawfully, knowingly and intentionally possess, with intent to deliver, a controlled substance, to-wit:  HEROIN, having an aggregate weight, including adulterants or dilutants, of 4 grams or more but less than 200 grams.@  (Emphasis added).  The indictment did not charge the Appellant with the offense of delivery, but rather with Apossession, with intent to deliver.@  As such, Appellant=s reliance on Ferguson v. State, 622 S.W.2d 846 (Tex.Crim.App. 1981), to support his argument fails since Ferguson is not on point.  Ferguson is distinguishable from the case at hand because in that case, the indictment was for Aunlawfully, intentionally and knowingly deliver@ a controlled substance.  Ferguson, 622 S.W.2d at 849.  In this case, the indictment was for possession with the intent to deliver.  In this case, the State was not required to prove the particular method of delivery.  Additionally, similar arguments have been rejected.  See Pitts v. State, 731 S.W.2d 687, 691 (Tex.App.--Houston [1st Dist.] 1987, pet. ref=d); Gonzales v. State, 638 S.W.2d 41, 44 (Tex.App.--Houston [1st Dist.] 1982, pet. ref=d).  We therefore overrule Issue Two.

Legal Sufficiency

In Issue Three, Appellant raises a legal insufficiency claim alleging that the State failed to establish both that Appellant had control and knowledge of the contraband. 

In reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788‑89, 61 L.Ed.2d 560, 573 (1979); Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000).  The standard is the same for both direct and circumstantial evidence cases.  King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995).  We must evaluate all of the evidence in the record, whether it was admissible or inadmissible.  Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999); Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998).  We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact.  See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is to determine whether if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict.  See Adelman, 828 S.W.2d at 421‑22.  In doing so, any inconsistencies in the evidence are resolved in favor of the verdict.  Matson, 819 S.W.2d at 843.

Possession of a Controlled Substance

A person commits the offense of possession of heroin if the person knowingly or intentionally possesses the controlled substance.  See Tex.Health & Safety Code Ann. ' 481.115(a)(Vernon 2003).  Possession is defined as Aactual care, custody, control, or management.@  Tex.Health & Safety Code Ann. ' 481.002(38)(Vernon Supp. 2004-05).  To support a conviction for unlawful possession of a controlled substance, the State must prove that the accused (1) exercised actual care, custody, control, and management over the contraband, and (2) the accused knew the substance he possessed was contraband.  See Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995); Menchaca v. State, 901 S.W.2d 640, 651 (Tex.App.--El Paso 1995, pet. ref=d).  By either direct or circumstantial evidence, the State Amust establish, to the requisite level of confidence, that the accused=s connection with the drug was more than just fortuitous.@  Brown, 911 S.W.2d at 747.

When the defendant is not in exclusive possession or control of the place where the contraband is found, as in this case, the State must prove independent facts and circumstances affirmatively linking the defendant to the contraband.  Hackleman v. State, 919 S.W.2d 440, 444 (Tex.App.--Austin 1996, pet. ref=d, untimely filed).  An affirmative link generates a reasonable inference that the accused knew of the contraband=s existence and exercised control over it.  See Brown, 911 S.W.2d at 747; Menchaca, 901 S.W.2d at 651.  These affirmative links may include: (1) the contraband was in plain view; (2) the contraband was conveniently accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the accused was the driver of the automobile in which the contraband was found; (5) the contraband was found on the same side of the car seat as the accused was sitting; (6) the place where the contraband was found was enclosed; (7) the contraband emitted a strong odor; (8) paraphernalia to use the contraband was in view of or found on the accused; (9) conduct by the accused indicated a consciousness of guilt; (10) the accused had a special connection to the contraband; (11) occupants of the automobile gave conflicting statements about relevant matters; (12) the physical condition of the accused was compatible with recent consumption of the contraband found in the car; (13) traces of the contraband were found on the accused; (14) affirmative statements connect the accused to the contraband; and (15) the accused possessed other contraband when arrested.  See Nguyen v. State, 54 S.W.3d 49, 53 (Tex.App.--Texarkana 2001, pet. ref=d); Jones v. State, 963 S.W.2d 826, 830 (Tex.App.--Texarkana 1998, pet. ref=d); De La Paz v. State, 901 S.W.2d 571, 583‑84 (Tex.App.--El Paso 1995, pet. ref=d).  However, there is no set formula of facts necessary to support an inference of knowing possession.  Hyett v. State, 58 S.W.3d 826, 830 (Tex.App.--Houston [14th Dist.] 2001, pet. ref=d).  Rather, affirmative links are established by a totality of the circumstances.  Hyett, 58 S.W.3d at 830.  The number of factors present is less important than the logical force the factors have in establishing the elements of the offense.  Hurtado v. State, 881 S.W.2d 738, 743 (Tex.App.--Houston [1st Dist.] 1994, pet. ref=d).

Inspector San Roman indicated that the Appellant appeared nervous, he was shifting in his seat, and his voice was first loud and then if became soft.  Due to all those factors, Inspector San Roman testified that he became suspicious and sent the vehicle to the secondary inspection booth.  The jury may have rationally inferred from this evidence that Appellant=s knowledge of the contraband was the cause of his nervousness.  Detective Majerczyk indicated that without having questioned the Appellant or mentioned to him where the heroin was found, Appellant told him that he could not be arrested because Ms. Guerra was the person in possession of the contraband.  The jury could have inferred from this that the Appellant had knowledge of the  contraband.  There was also testimony from Detective Gibson regarding Appellant=s gang membership with Barrio Azteca and the gang=s common method used in trafficking the narcotics, which matched the circumstances in this case.  The jury was shown photographs of Appellant=s arms, which had track marks on them, which Detective Majerczyk testified were an indicator of him being a drug user.  Given the evidence presented at trial, we believe that a rational trier of fact could easily have inferred that Appellant exercised care, custody, and control of the contraband.  Viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to affirmatively link the Appellant to the heroin and to sustain the conviction.  We therefore overrule Issue Three.

In Issue Four, Appellant argues the trial court error in admitting hearsay evidence.   Specifically, Appellant complains the testimony provided by Detective Majerczyk indicating that he responded to the Paso Del Norte Bridge on the day in question in reference to a Abe on the lookout@ bulletin, which he gave to U.S. Customs based on information provided to him by an anonymous tip.  The State contends that under the law of the case doctrine, this Court previously addressed this issue and as such, it should not be revisited.  See Howlett v. State, 994 S.W.2d 663, 666 (Tex.Crim.App. 1999).  We agree with the State=s contention. 

Under the doctrine known as law of the case, an appellate court=s resolution of a question of law in a previous appeal of the same case will govern the disposition of the same issue when raised in a subsequent appeal.  Id. at 666.  This court made doctrine is designed to promote judicial consistency and efficiency that eliminates the need for appellate courts to prepare opinions discussing previously resolved matters.  Id.  Under this doctrine, trial courts are assured that they may rely on an appellate court=s disposition of an issue in the case they are presiding over and gives the trial courts an incentive to follow those decisions closely.  See id.

As is pointed out in the State=s brief, and acknowledged in the Appellant=s brief, this Court has already decided on this issue.  In Ex Parte Ojeda, 08-01-00084-CR, 2002 WL 27107, *3 (Tex.App.-- El Paso January 10, 2002, pet. ref=d)(not designated for publication), this Court found the same testimony complained-of here, admissible.  In that opinion, we stated,

Here the evidence was not being used to prove that Majerczyk had received information about relator and to thereby affirmatively establish relator=s guilt.  Instead, the evidence was intended to provide the circumstances of Majerczyk=s involvement with the case.  The evidence that was being requested was to provide context for Majerczyk=s presence at the bridge and to explain the course of events of the evening.

Ex Parte Ojeda, 2002 WL 27107 at *3.

We find that Appellant=s argument is the same today as it was in Ex Parte Ojeda.  Our finding today is the same as before.  See id.  We overrule Issue Four.

We affirm the trial court=s judgment.

September 24, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

---

^[1] He asked her for her citizenship and if she was bringing anything over from Mexico. 

^[2] He testified that the reasons for sending the vehicle to the secondary inspection booth were Appellant=s demeanor and the fact that the names matched those on the bulletin.  He further testified that had there been no bulletin, he still would have sent the vehicle to the secondary inspection booth.

^[3] Inspector Frazier also testified that she took a declaration from Ms. Guerra, but does not provide the context of that declaration in her testimony. 

^[4] On cross-examination, Appellant=s counsel requested the name of the confidential informant to be released arguing that the State under Rule 508B had opened the door because they introduced the testimony.  After a lengthy discussion outside of the jury=s presence, the trial court denied Appellant=s request.

^[5] Introduced into evidence as State=s Exhibits 25 and 26 were photographs of Appellant=s tattoos on his arms and right side of his chest.  The first photograph showed a tattoo of a band with the letters BA.  The second photograph contained a symbol which Detective Gibson testified was an Aztec symbol for eternal war.  The third photograph was an Aztec Indian=s head.  Detective Gibson testified that based on his experience and training, the tattoo of the band with the letters BA were a symbol for the name Barrio Azteca.  He then testified that the other two tattoos alone did not indicate a specific prison gang, but rather were a point of pride for people with an Aztec descendent.  However, combined with the BA tattoo, they strongly support the conclusion that the Appellant is a member of the Barrio Azteca gang.  Furthermore, he testified that someone who was not affiliated with Barrio Azteca, but that had the tattoos on his body, if seen by an Azteca gang member, would be beaten and then given a chance to remove or cover the tattoo.  If they did not, then Detective Gibson testified that they would be beaten again and possible even killed.