Genaro Galvan Acosta Jr. v. State

Opinion

NUMBER 13-14-00415-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

GENARO GALVAN ACOSTA JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 156th District Court of Nueces County, Texas.

DISSENTING MEMORANDUM OPINION

Before Justices Garza, Benavides, and Perkes Dissenting Memorandum Opinion by Justice Perkes I dissent from the majority’s holding because I believe the evidence is sufficient to

support appellant’s conviction.

Each case must be examined on its own facts. Hurtado v. State, 881 S.W.2d 738,

743 (Tex. App.—Houston [1st Dist.] 1994, pet ref’d); Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.—Austin 1991, pet. ref’d). The logical effect of the cumulative evidence

is more important than tallying factors. As the majority notes, “it is not the number of

links that is dispositive, but rather the logical force of all of the evidence, direct and

circumstantial.” Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). The

Texas Court of Criminal Appeals cautions us against reviewing these facts or links in

isolation. Id. at 164. Furthermore, we may not substitute our own weighing of the

evidence and alternative-explanation exercises for those of the jury. Id. With that in

mind, I turn to the evidence.

The evidence admitted against appellant consists of: 1) approximately 25 pounds

of marijuana found in the spare tire of the car; 2) appellant was the driver of the car at the

time of the arrest and had been earlier observed driving the car; 3) appellant appeared

nervous during the stop and subsequent search; 4) appellant’s incriminating statement

made after the discovery of the marihuana; and 5) appellant possessed $300 but was

unemployed.1

The fact that appellant was the driver of the car that was later found to contain

marijuana is suspicious. See Roberson v. State, 80 S.W.3d 730, 742 (Tex. App.—

Houston [1st Dist.] 2002, pet. ref’d); Martinets v. State, 884 S.W.2d 185, 188 (Tex. App.—

Austin 1994, no pet.). This, combined with other evidence, can be sufficient to uphold

possession convictions. See Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App.

1976). The other evidence was that Officer Prado saw appellant driving the same car

1 I agree with the majority that the “Santa Muerte” religious paraphernalia is not an “affirmative link” connecting appellant to the drugs. Even if such material did constitute evidence of drug smuggling, officers located the “Santa Muerte” artifact in appellant’s wife’s purse. 2 three months prior, inferring that appellant had a right to possess the car. This is the

second link. Appellant continued to exhibit nervous behavior by pacing back and forth

in the police station—the third, albeit weak, link. After officers discovered the marijuana

in the car, appellant stated he would accept responsibility if his family were released—

the strong fourth link. While appellant’s possession of the $300 is not by itself unusual,

when combined with his unemployment, the money does have probative value in

connecting appellant to the drugs. This is the fifth link.

Each piece of evidence is not dispositive by itself. However, when weighing the

cumulative effect of the evidence, I believe that the jury could have reasonably found,

based on the circumstantial evidence coupled with the reasonable inferences from it, that

appellant exercised sufficient care, custody, control, or management over the marijuana.

Appellant’s issue sole should be overruled.

I would affirm the conviction.

GREGORY T. PERKES Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 9th day of July, 2015.