Gerardo Ramirez-Delgado v. State

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

GERARDO RAMIREZ-DELGADO, ' No. 08-11-00254-CR Appellant, ' Appeal from the v. ' Criminal District Court No. 1 THE STATE OF TEXAS, ' of El Paso County, Texas ' Appellee. ' (TC#20100D01736)

OPINION

Gerardo Ramirez-Delgado appeals his conviction of unlawful possession of marijuana in

an amount of 2,000 pounds or less but more than 50 pounds. We affirm.

BACKGROUND

On March 25, 2010, El Paso County Sheriff’s Office (EPSO) Detectives Benjamin Perales

and Raul Apodaca conducted surveillance at a warehouse on Rojas Street in El Paso. Detective

Perales observed a white van back into a loading dock at the warehouse and then saw the driver

exit the vehicle and walk away. Minutes later, Perales saw a black Volkswagen Jetta with two

occupants drive slowly through the warehouse area and then leave. Subsequently, other members

of the surveillance team advised that some subjects had entered the warehouse through the front

doors.

Next, the detectives observed a Hispanic male open the bay doors to the loading dock, walk

down the stairs, and open the back doors of the white van.1 A second man, later identified as

Lazaro Camacho, was seen standing at the top of the loading dock. The two men appeared to be

1 At trial, Detectives Perales and Apodaca identified Appellant as the man they saw open the van. unloading items from the van. At that time, the detectives decided to make an approach. As the

detectives approached the van, their badges were exposed and Detective Perales identified himself

to Appellant. Both detectives observed that Appellant had a bundle in his hand, which Appellant

dropped and immediately raised his hands in the air upon seeing the detectives. 2 Detective

Perales also observed a box on the ground containing several bundles. After Camacho fled from

the warehouse and was later detained, Detective Perales detained Appellant by the van. After

Appellant was taken into custody, he was searched and the keys to the white van were found in his

front pockets. When the detectives approached the van they noticed a very strong odor of

marijuana. Inside the van, Detective Perales observed a large number of bundles, which were

later determined to contain marijuana. A total of 905 bundles were found at the scene, weighing a

total of 1,031 pounds. At trial, Perales explained that 1,031 pounds of marijuana is a usable

quantity. Based on his training and experience as a narcotics investigator, Perales testified that

around March 25, 2010, the going rate of marijuana was $250 per pound. Thomas Downs, the

evidence custodian with EPSO’s Narcotics Task Force, took video of the warehouse before the

approach was made as well as photos at the scene. Downs testified that he did not attempt to take

any fingerprints off of any of the bundles found in the van.3 The net weight of the marijuana

without the packing material was 847 pounds.

The detectives searched the warehouse which was found to be empty except for some

boxes, saws, scales, tape, air freshener, and small amounts of marijuana on some saws. Detective

Perales testified that based on his training and experience these items indicated that the warehouse

was being used as a stash house. He also testified that the saws are used to cut the bundles, the

2 Detective Perales testified that he did not instruct Appellant to raise his hands and that he did not draw a weapon on Appellant. Detective Apodaca testified that neither he nor anyone else in his unit pulled a weapon on Appellant. 3 Downs collected as evidence the marijuana found in the van.

2 tape is used to tape the bundles back up, the air freshener is used to mask the odor of the marijuana,

and the scales are used to weigh the bundles.

Appellant testified in his defense. He told the jury that he was an auto mechanic, had a

mechanic shop in Ciudad Juarez, Mexico, and when work was scarce, he would advertise for work

in El Paso. He testified that on March 25, 2010, he received a call asking if he could work on a

van. After an unsuccessful attempt at finding the location he was given, he waited in the parking

lot at Home Depot on Rojas for the man who called him about the van. The man was dropped off

at Appellant’s location. The man then got in Appellant’s car and they drove to where the van was

located. Appellant testified that he had never met the man before.

Appellant was told that the van was not working and was full of materials because it was a

carpet-cleaning business. According to Appellant, the plan was to go to the man’s house to leave

Appellant’s car there, drive back to the warehouse in the man’s truck so they could unload the van

and push the van to another location where Appellant could work on it.

Appellant left his car at the man’s house and they returned to the warehouse and entered

through the front doors. Appellant testified that he did not have the keys to the warehouse. He

stated that he opened the door to go outside to the back of the warehouse. After he was given the

keys to the van, Appellant opened the back of the van with the keys. Appellant testified that the

man gave him an empty box to put all the cleaning materials in. He stated that he never attempted

to start the vehicle.

When Appellant opened the van, he saw that the van was full of carpets all the way to the

top. He testified that he did not see any bundles in the back of the van as were depicted in the

photos admitted into evidence. While he was unpacking the van, he saw a person in plain clothes

approach with a gun who told him to raise his hands, which he did. Appellant testified that he was

3 not aware of the drugs in the back of the van and that he did not intend to load or unload drugs to or

from the van. He stated that he would not have accepted the job if he knew he would be involved

with marijuana that day.

On cross-examination, Appellant testified that he lived in Juarez and had a visa to cross the

border but not a visa to work. He testified that when the detective approached him, the box into

which he was packing cleaning supplies was not on the ground. He also testified that he did not

notice a smell of marijuana and stated that he knew what marijuana smells like. Appellant stated

that Detective Perales lied about being the detective who stopped him, that the marijuana found in

the van was depicted accurately in the photos that were admitted into evidence, and that there was

an odor of marijuana. He also testified that the officer who pointed the gun was not present in

court.

When asked if the van started when the officers tried to run it, Appellant testified that it did

not work, but that the officers stayed there until it started. He further acknowledged that the van

did start.

On rebuttal, Detective Apodaca testified that no cleaning supplies were found on the scene

and that he did not hide any cleaning supplies so that they could not be photographed as evidence.

Based on his training and experience as a narcotics officer, Apodaca testified that it would not

make sense for someone to call a stranger to help him unload a van full of marijuana. He stated

that this was because they do not want to get turned into the police or they are concerned that the

stranger could possibly steal the load. Apodaca explained that the consequences of losing a load

due to the police being called or the load being stolen could include a severe beating or even death.

4 After Appellant pleaded not guilty, the jury found Appellant guilty as alleged in the

indictment, and sentenced him to five years’ and six months’ confinement. 4 This appeal

followed.

DISCUSSION

Legal Sufficiency

In his sole issue on appeal, Appellant contends that the evidence does not affirmatively link

him to the marijuana found in the van, and therefore, is insufficient to support his conviction.

Specifically he argues that the direct and circumstantial evidence is insufficient to show that

Appellant exercised care, custody, control, or management of the marijuana found in the van.

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 to determine whether any rational jury could have found the essential

elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).

The jury is the sole judge of the weight and credibility of the witnesses. Brooks, 323 S.W.3d at

899. It is the role of the jury to resolve any conflicts of testimony and to draw rational inferences

from the facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We do not overturn a

verdict unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State,

819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The standard of review is the same for both direct

and circumstantial evidence cases. Geesa v. State, 820 S.W.2d 154, 158 (Tex. Crim App. 1991), 4 We note that the written judgment reflects that Appellant pleaded guilty to the offense. However, this is contrary to the record. Therefore, we reform the clerical error in the written judgment to reflect that Appellant pleaded not guilty to the charged offense. See TEX. R. APP. P. 43.2(b).

5 overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000).

Possession and Affirmative Links

A person commits the offense of possession of marijuana if the person knowingly or

intentionally possesses a usable quantity of marijuana. TEX. HEALTH & SAFETY CODE

ANN. § 481.121 (West 2010). Possession is defined as “actual care, custody, control, or

management.” TEX. HEALTH & SAFETY CODE ANN. § 481.002(38) (West 2010). The State

had the burden to prove beyond a reasonable doubt that the accused: (1) exercised actual care,

custody, control, and management over the contraband, and (2) knew the substance he possessed

was contraband. See Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); 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).

When a defendant is not in exclusive possession or control of the place where the drugs are

found, an affirmative link must be found between the accused and the contraband demonstrating

that the accused exercised control over it and knew of its existence and character. See Evans, 202

S.W.3d at 162; Brown, 911 S.W.2d at 747; Menchaca, 901 S.W.2d at 651. An “affirmative link”

may be shown to exist by either direct or circumstantial evidence, and it must establish that the

accused’s association to the contraband was more than just fortuitous. Evans, 202 S.W.3d at 161;

Brown, 911 S.W.2d at 747; Menchaca, 901 S.W.2d at 651. An affirmative link may be shown by

the following non-exclusive factors: (1) the accused’s presence when the search occurred; (2)

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

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

accused’s possession of other contraband when arrested; (6) the accused’s incriminating

statements when arrested; (7) whether the accused attempted to flee; (8) the accused’s furtive

6 gestures; (9) the odor of the contraband; (10) the presence of other contraband or drug

paraphernalia; (11) whether the accused owned or had the right to possess the place where the

contraband was found; (12) whether the contraband was found in an enclosed area; (13) whether

the accused was the operator of the automobile where contraband was found; (14) whether the

accused was found with a large amount of cash or weapons when arrested; (15) the accused’s

conduct indicating a consciousness of guilt; and (16) the amount of contraband found. See Evans,

202 S.W.3d at 162 n.12; Gregory v. State, 159 S.W.3d 254, 260 (Tex.App.–Beaumont 2005, pet.

ref’d); Nguyen v. State, 54 S.W.3d 49, 53 (Tex.App.–Texarkana 2001, pet. ref’d); Hurtado v.

State, 881 S.W.2d 738, 743 n.1 (Tex. App. – Houston [1st Dist.] 1994, pet. ref’d). 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. Evans, 202 S.W.3d at 162.

Application

Appellant argues that the independent facts and circumstances in this case do not link

Appellant to the contraband found in the van. We disagree. Although Appellant points out that

specific affirmative links were not present, such a notation does not negate the other established

links. 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.”).

Several of the links exist here.

Appellant was present when the search of the van was conducted and the contraband was in

plain view. Appellant was also in close proximity to the contraband as he opened the back of the

van where the marijuana was found, was observed unloading items from the van, and was seen

holding a bundle, which he dropped and immediately raised his hands in the air without being told

7 to do so by the detectives, indicating a consciousness of guilt. See, e.g., Evans, 202 S.W.3d at 163

(finding links where appellant was present when drugs were found and drugs were within arm’s

reach, and in plain view); Rice v. State, 195 S.W.3d 876, 879-81 (Tex. App. – Dallas 2006, pet.

ref’d) (finding link where appellant was present when drugs were found inside vehicle); Gant v.

State, 116 S.W.3d 124, 131-32 (Tex. App. – Tyler 2003, pet. ref’d) (finding links where appellant

possessed vehicle, was present when contraband was found, and was in close proximity to the

drugs); Watson v. State, No. 01-97-00526-CR, 1999 WL 21470, at *5 (Tex. App. – Houston [1st

Dist.] Jan. 21, 1999, no pet.) (not designated for publication) (where appellant came out of the

bathroom with hands raised and lowered himself to the ground before officers asked him to do so

indicated a consciousness of guilt).

Here, Appellant was found to be in possession of the keys to the van. See Hernandez v.

State, 867 S.W.2d 900, 905 (Tex. App. – Texarkana 1993, no pet.) (affirmative link between

appellant and marijuana established where appellant possessed the key to the lock on a spare tire

where drugs were found); Whitworth v. State, 808 S.W.2d 566, 570 (Tex. App. – Austin 1991, pet.

ref’d) (appellant’s possession of the key to the location where marijuana was found reasonably

implies his control over it). Additionally, a strong odor of marijuana was present, the marijuana

was enclosed in the van, and a large amount of marijuana was found. See, e.g., Whitworth, 808

S.W.2d at 569-70 (strong odor of marijuana found in vehicle’s trunk is an affirmative link

establishing requisite element of actual care, custody, control, or management of drugs); Robinson

v. State, 174 S.W.3d 320, 327 (Tex. App. – Houston [1st Dist.] 2005, pet. ref’d) (whether

contraband is found inside an enclosed space is an affirmative link and a vehicle containing the

contraband is an enclosed space); Allen v. State, 249 S.W.3d 680, 698 (Tex. App. – Austin 2008,

no pet.) (the presence of a large quantity of drugs strengthens the inference that the accused was

8 aware of the drugs); Roberson v. State, 80 S.W.3d 730, 740 (Tex. App. – Houston [1st Dist.] 2002,

pet ref’d) (the presence of a significant amount of drugs is an affirmative link connecting the

accused to the contraband). We find the logical force of all the evidence presented at trial

sufficiently established a link between Appellant and the marijuana. See Evans, 202 S.W.3d at

162.

As the sole judge of the credibility of the witnesses, the jury was permitted to disbelieve

Appellant’s claims that he only accepted a job to work on a van that he was told was not working,

that he was unaware the van contained marijuana, that he had no intention of loading or unloading

drugs from the van, that he did not see any bundles in the back of van, that there was no smell of

marijuana, and further explained that he raised his hands in the air when an officer pointed a gun at

him and told him to do so. See Brooks, 323 S.W.3d at 899; Hooper, 214 S.W.3d at 13.

Additionally, as the State notes, the jury was entitled to draw an adverse inference from the story

advanced by Appellant to explain his involvement with the van in which the marijuana was found.

See Bethancourt-Rosales v. State, 50 S.W.3d 650, 655-56 (Tex. App. – Waco 2001, pet. ref’d) (the

jury was free to infer guilty knowledge from the implausibility of Appellant’s story); see also

United States v. Casilla, 20 F.3d 600, 604-06 (5th Cir. 1994) (implausible explanation by

defendant about how he came to be driving a van with cocaine hidden inside was part of the

circumstantial evidence from which the jury could infer the defendant had knowledge of the drugs

in the van).

After reviewing the evidence in the light most favorable to the verdict, we conclude there

was legally-sufficient evidence presented at trial from which a rational jury could find, beyond a

reasonable doubt, that Appellant exercised care, custody, control, or management over the

marijuana and knew that substance he possessed was marijuana. See Johnson v. State, 23 S.W.3d

9 1, 14 (Tex. Crim. App. 2000) (great deference is given to the jury on deciding the weight of the

evidence and the credibility of the witnesses). Issue One is overruled.

CONCLUSION

The trial court’s judgment is affirmed as reformed.

GUADALUPE RIVERA, Justice January 16, 2013

Before McClure, C.J., Rivera, and Antcliff, JJ. Antcliff, J., not participating

(Do Not Publish)