Cynthia Chaparro v. State

• Court: Court of Appeals of Texas
• Decided: May 28, 2010
• Docket: 08-08-00290-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

CYNTHIA CHAPARRO, § No. 08-08-00290-CR Appellant, § Appeal from the v. § Criminal District Court No. One THE STATE OF TEXAS, § of El Paso County, Texas Appellee. § (TC# 20080D01513) §

OPINION

A jury convicted Appellant, Cynthia Chaparro, of possession of marijuana, in the amount of

2,000 pounds or less but more than 50 pounds, and in accordance with an agreement between the

parties, the trial court assessed punishment at four years confinement, probated for four years.1

Appellant brings four issues on appeal, challenging the sufficiency of the evidence, the admission

of extraneous offenses, and the imposition of an unreasonable probation condition. We affirm.

BACKGROUND

On March 12, 2008, Appellant attempted to cross the Paso Del Norte Bridge, an international

port of entry connecting Juarez, Mexico, with El Paso, Texas, in a 1998 Ford Mustang, with fifty-

nine bundles of marijuana. When she entered the inspection lane, Appellant met Border Protection

Officer Israel Martinez. After noting that Appellant was the sole occupant in the vehicle, Officer

Martinez verified that the license plate matched that displayed on his automatic license-plate scanner.

Upon inquiry, Appellant told the officer that she had been in Juarez for about three to four hours

1 W e pause to note that the written judgment reflects that the jury assessed punishment. However, this is contrary to the record. Thus, we reform the clerical error in the written judgment to reflect that the trial court assessed punishment. visiting her aunt. When Officer Martinez inquired about the vehicle, Appellant responded that the

car belonged to her boyfriend, that she had the car for about two months, that no one else drove the

car but her, and that no work had been done to the car. Appellant then presented the officer with a

Texas title and bill of sale for the car. Officer Martinez thought the documents were “odd” as the

title was issued in 1991, and the bill of sale was dated 1994, but the car itself was a 1998 model.

Appellant told the officer that she was not bringing anything from Mexico into the United States, and

after inspecting the trunk and finding no personal items, which is generally expected of someone

driving a car for two months, Officer Martinez noted that Appellant’s demeanor changed. She was

more somber and serious, and as one leg bounced up and down, she grasped at the steering wheel

“like if she was driving 50, 60 miles an hour . . . .” Noting that Appellant’s behavior indicated

nervousness and was consistent with someone trying to lie or hide something, Officer Martinez

checked the car’s border-crossing history and found that it had no prior crossings. At that point, the

officer chose to refer Appellant to Border Patrol Officer Jose Arzate for a secondary inspection.

Again, Appellant told Officer Arzate that the car belonged to her boyfriend, but contrary to

her earlier assertions before Officer Martinez, Appellant claimed that she was coming from her

boyfriend’s house in Juarez. During Officer Arzate’s interview, Appellant became more nervous

and she had a blank stare. Consequently, the officer asked Appellant to exit the vehicle and

requested a canine inspection. The canine alerted, by sitting, to the driver-side door and the rear-seat

area of the vehicle. Brown-taped bundles of marijuana, weighing 62.65 pounds, were then found

under the rear-seat cushion of the car. The wholesale price for the marijuana was between $200 and

$250 per pound, or $12,530 to $15,662 for the lot.

Appellant later gave a written statement, which alleged that she was in Juarez at her dad’s

house when, at 2 p.m., her boyfriend called and told her to get ready as they were going to El Paso. According to Appellant, she had “barely” met her boyfriend two weeks before, who told her that his

father owned a car lot in Juarez and that they also had an office in El Paso where customers “fix the

papers for the cars.” Appellant then claimed that her boyfriend picked her up and they drove to the

bridge. However, just a few blocks before the bridge, she contended that her boyfriend stopped at

the Consulate and told her to take the car and that he would meet her in El Paso. Her boyfriend told

her that she should not have any trouble at the bridge. Appellant then drove the car to the bridge.

She denied knowing the car contained drugs or that it was stolen.

Her testimony at trial followed her statement. Appellant further stated that she drove the

Mustang for the first time on March 12, 2008, and denied that she told Officer Martinez that she had

been driving the car for two months.

SUFFICIENCY OF THE EVIDENCE

Appellant’s first issue challenges the legal sufficiency of the evidence, and her second issue

challenges the factual sufficiency of the evidence. According to Appellant, the evidence presented

failed to link her to the marijuana found in the vehicle. We disagree.

Standard of Review

In determining the legal sufficiency of the evidence, we view all of the evidence in the light

most favorable to the verdict and determine whether, based on the evidence and reasonable

inferences therefrom, any rational trier of fact could have found the defendant guilty of the offense

beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). In a factual-sufficiency

review, however, we view all of the evidence in a neutral light and ask whether the jury was

rationally justified in finding guilt beyond a reasonable doubt. Roberts v. State, 220 S.W.3d 521,

524 (Tex. Crim. App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Evidence is factually insufficient when the evidence supporting the conviction is so weak that the

verdict seems clearly wrong and manifestly unjust, or when the evidence supporting the conviction

is outweighed by the great weight and preponderance of the contrary evidence so as to render the

verdict clearly wrong and manifestly unjust. Roberts, 220 S.W.3d at 524. Under either standard,

we defer to the jury’s determination of the credibility of the witnesses and the weight to be given the

testimony. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Sharp v. State, 707

S.W.2d 611, 614 (Tex. Crim. App. 1986).

To prove unlawful possession of a controlled substance, the State was required to prove that:

(1) the accused exercised control, management, or care over the substance; and (2) the accused knew

the substance possessed was contraband. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App.

2006). Regardless of whether the evidence is direct or circumstantial, it must establish that the

accused’s connection with the drugs was more than just fortuitous. Id. Although mere presence at

the location where the drugs are found is insufficient, by itself, to establish actual care, custody, or

control of the drugs, presence or proximity, when combined with other evidence, either direct or

circumstantial (e.g., “links”), may well be sufficient to establish that element beyond a reasonable

doubt. Id. at 162.

In determining whether sufficient evidence links an accused to the contraband, we consider

several factors, including: (1) the accused’s presence when a search is conducted; (2) whether the

contraband was in plain view; (3) the accused’s proximity to and the accessibility of the narcotic;

(4) whether the accused was under the influence of narcotics when arrested; (5) whether the accused

possessed other contraband or narcotics when arrested; (6) whether the accused made incriminating

statements when arrested; (7) whether the accused attempted to flee; (8) whether the accused made

furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the accused owned or had the right to possess the place

where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13)

whether the accused was found with a large amount of cash; and (14) whether the conduct of the

accused indicated a consciousness of guilt. Evans, 202 S.W.3d at 162 n.12. In conducting our

review, we are mindful that it is not the number of links that is dispositive, but rather the logical

force of all of the evidence, both direct and circumstantial, that links an accused to the drugs. Id. at

162.

Application

Here, Appellant was present when the search was conducted, the marijuana was found hidden

under the backseat, Appellant’s position in the car was in close proximity to the concealed drugs,

Appellant was alone and in exclusive possession of the vehicle, and her conduct, i.e., nervousness

and inconsistent statements, indicated a consciousness of guilt. See, e.g., Gant v. State, 116 S.W.3d

124, 131-32 (Tex. App.–Tyler 2003, pet. ref’d) (finding links where appellant was in possession of

the vehicle, was present when the drugs were found, and was in close proximity to the drugs);

Menchaca v. State, 901 S.W.2d 640, 651 (Tex. App.–El Paso 1995, pet. ref’d) (finding appellant’s

ownership or exclusive possession of the vehicle and nervousness linked him to the contraband);

Hurtado v. State, 881 S.W.2d 738, 743-44 (Tex. App.–Houston [1st Dist.] 1994, pet. ref’d) (finding

links where appellant was the driver and sole occupant of the car, the contraband, which was

underneath the passenger seat, was accessible by him, and appellant was nervous and exhibited

unusual conduct). Additionally, a large and valuable amount of marijuana was found, appraised

between $12,530 and $15,662. See Willis v. State, 192 S.W.3d 585, 593 (Tex. App.–Tyler 2006, pet.

ref’d); Robinson v. State, 174 S.W.3d 320, 328-29 (Tex. App.–Houston [1st Dist.] 2005, pet. ref’d)

(cases finding link when a large and valuable amount of contraband was found). After reviewing the evidence in the light most favorable to the verdict, we believe there was legally sufficient

evidence from which the jury could find, beyond a reasonable doubt, that Appellant exercised care,

custody, control, or management over the marijuana and knew that the substance she possessed was

marijuana. Appellant’s first issue is overruled.

Further, after reviewing all of the evidence in a neutral light, we do not believe that the

evidence was factually insufficient. Although Appellant claimed the car belonged to her boyfriend

and that she first drove the car on March 12, 2008, the jury, as the sole judge of the credibility of the

witnesses, could have chosen to disbelieve Appellant, especially when the evidence tended to show

that she gave inconsistent statements to each officer about where she was coming from. See Hooper

v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (stating that the appellate courts, in conducting

a sufficiency analysis, should defer to the “responsibility of the trier of fact to fairly resolve conflicts

in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts”). Appellant also argues that her nervous behavior was but a tenuous link. Although

nervousness may be a tenuous link as “most people are somewhat nervous when confronted by a

police officer,” Jenkins v. State, 76 S.W.3d 709, 713 n.3 (Tex. App.–Corpus Christi 2002, pet. ref’d),

we believe the “logical force of all of the evidence” sufficiently links Appellant to the drugs. See

Evans, 202 S.W.3d at 162 (holding it is “not the number of links that is dispositive, but rather the

logical force of all of the evidence”). Lastly, Appellant notes that she only had $20 cash on her

person, which is not a large amount. However, pointing out a possible link that was not established

does not negate the other links that were established. See Lair v. State, 265 S.W.3d 580, 588 (Tex.

App.–Houston [1st Dist.] 2008, pet. ref’d) (“Further possible links that do not exist, however, do not

negate the links that are present.”). Accordingly, we find the evidence factually sufficient to support

the jury’s findings that Appellant exercised care, custody, control, or management over the marijuana and knew the substance she possessed was marijuana. Appellant’s second issue is overruled.

EXTRANEOUS OFFENSES

Appellant’s third issue asserts that the trial court erred by admitting extraneous offenses in

violations of Rules 403 and 404(b) when the State’s proffered evidence through Officer Martinez’s

testimony and the documents he examined, i.e., the title and bill of sale for the car, which suggested

that she committed two other crimes, namely, possession of fraudulent papers and driving a stolen

car. The State responds that Appellant’s complaints are not preserved for our review. We agree.

Underlying Facts

After Officer Martinez testified that Appellant provided a title and bill of sale for his

inspection, Appellant asked to approach the bench. According to Appellant, the prosecutor was

attempting to “get into an extraneous offense” of which she was not provided notice. The prosecutor

replied that Appellant was referring to whether the car was stolen, and Appellant agreed that was

what she was alluding to and objected under Rule 403. However, the prosecutor argued that whether

the car was stolen was not an extraneous offense but part of the facts of the case and constituted

same transactional, contextual evidence. The trial court noted that the evidence was simply a factor,

among the multiple others discussed, that the officer considered in determining whether further

investigation was necessary and overruled the objection. Officer Martinez then testified that he

found the documents “odd” because the vehicle was a 1998 Mustang and the title was dated 1991,

and the bill of sale was dated 1994. He did not refer to the documents as fraudulent or testify that

based on those documents, he believed the car was stolen. When the State then proffered the

documents for admission, Appellant objected again under Rules 401 and 403. The trial court

overruled the objections, noting that it was “reiterat[ing] its prior ruling under [Rule] 403,” and

admitted the documents. Later, when the prosecutor proffered Appellant’s statement, which acknowledged that she did not know that the car was stolen, Appellant raised no objections.

Similarly, when Appellant testified, she denied knowing that the car was stolen or that the car’s

papers were “fake.”

Law

To preserve a complaint for appellate review, the complaining party must raise her objection

before the trial court and obtain an adverse ruling thereon. See TEX . R. APP . P. 33.1(a). Moreover,

that party must object each time the objectionable evidence is offered. Fuentes v. State, 991 S.W.2d

267, 273 (Tex. Crim. App.), cert. denied, 528 U.S. 1026, 120 S.Ct. 541, 145 L.Ed.2d 420 (1999);

Ethington v. State, 819 S.W.2d 854, 858-59 (Tex. Crim. App. 1991). Further, even if a trial court

errs in admitting evidence, that error is cured when the same evidence is admitted elsewhere without

objection. See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).

Here, Appellant never objected to the admission of the documents on grounds that they

constituted an extraneous offense for possession of fraudulent documents. Rather, she objected that

those documents suggested another extraneous offense, that is, that she was driving a stolen car.

As Appellant’s fraudulent-possession complaint was never presented to the trial court, we find that

she has not preserved that issue for our review. See Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim.

App. 1996) (finding error not preserved when “Appellant’s trial objections in no way specifically

alerted the trial judge to the alleged error of which he now complains”); Schultze v. State, 177

S.W.3d 26, 41 (Tex. App.–Houston [1st Dist.] 2005, pet. ref’d) (complaint on appeal must comport

with the objection made at trial). Further, although Appellant objected under Rule 403 that the

alleged stolen-car extraneous testimony was inadmissible when the title and bill of sale were

admitted into evidence, she failed to object when the same evidence was admitted by her written statement and live testimony. Thus, Appellant has failed to preserve her stolen-car complaint for our

review. See Fuentes, 991 S.W.2d at 273; Ethington, 819 S.W.2d at 858-60 (cases finding error not

preserved when appellant failed to object each time the objectionable evidence was offered). Finally,

even if the documents could be interpreted as extraneous offenses and the trial court erred by

overruling Appellant’s objections to the same – an issue we do not reach – because the same

evidence came in through Appellant’s written statement and testimony without objection, any error

was cured. See Leday, 983 S.W.2d at 718; Meza v. State, 153 S.W.3d 238, 241 (Tex. App.–El Paso

2004, no pet.) (overruling of an objection to evidence is not reversible when other such evidence was

admitted without objection). Accordingly, we overrule Appellant’s third issue.

PROBATION CONDITION

Appellant’s fourth and final issue challenges a condition of her probation. Specifically,

Appellant asserts that the trial court’s condition that she not visit Mexico is unreasonable. However,

Appellant never objected to this condition when her probation was imposed, nor did she attempt to

file a motion to modify her probation conditions, asserting that the travel restriction to Mexico was

unreasonable. Having never complained to the trial court of the condition, she may not challenge

it for the first time on appeal. See Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999); Meza,

153 S.W.3d at 242 (cases holding appellant may not complain about conditions of probation for the

first time on appeal). Appellant’s fourth issue is overruled.

CONCLUSION

Having overruled Appellant’s issues, we affirm the trial court’s judgment as reformed.

GUADALUPE RIVERA, Justice

May 28, 2010 Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)